State v. Luna-Lopez

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ADAN LUNA-LOPEZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/02/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0299 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200800735 The Honorable Mark Wayne Reeves, Judge AFFIRMED ___________________________________________________________ Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Joseph T. Maziarz, Assistant Attorney General Criminal Appeals/Capital Litigation Section Attorneys for Appellee Michael Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender, Attorneys for Appellant K E S S L E R, Judge Phoenix Yuma ¶1 Adan Luna-Lopez ( Luna-Lopez ) appeals from his convictions for one count of importation of marijuana and one count of felonies. possession of marijuana for sale, both class two On appeal, Luna-Lopez argues the trial court erred by not giving a jury instruction on a lesser-included charge of possession of marijuana for count one, importation of marijuana. For reasons that follow, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 United On June 7, 2008, Luna-Lopez attempted to enter the States States/Mexico at the border San Luis carrying Port two of Entry pallets of at the cement United patio furniture in his truck. After having passed inspection, LunaLopez left the cargo dock and drove his truck toward the wrong exit gate. He was then stopped by border patrol Officer S., who testified that Luna-Lopez acted nervously and could not answer questions about his destination. Officer S. further inspected the cargo and discovered packages containing marijuana hidden in hollowed out sections. The total weight of the packages was determined to be 242.45 kilos (534 pounds). ¶3 Luna-Lopez was placed under arrest and interviewed by I.C.E. Special Agent B. ( Agent B. ). Agent B. testified that Luna-Lopez could not answer questions about his employer s company name or address and gave an incorrect number when asked 2 for his employer s phone number. Agent B. testified that Luna- Lopez demeanor was rigid, and he appeared uncomfortable. ¶4 At trial, Luna-Lopez counsel conceded that Luna-Lopez had driven across the border into Arizona carrying packages of marijuana. He argued, however, that there was no evidence that Luna-Lopez knew of the existence of the marijuana in his cargo, or that he had any intent to sell it. ¶5 Prior to trial, Luna-Lopez filed a request for jury instructions, requesting possession of marijuana. whether he was a lesser-included instruction for Luna-Lopez, however, did not specify requesting the lesser-included offense of possession of marijuana on one or both counts. ¶6 discussed After both parties had rested their cases, the court the conference, jury the instructions court with confirmed counsel. that During Luna-Lopez that counsel requested a lesser-included charge of possession for count two only, the possession for sale count. ¶7 Specifically, when the court asked him if he requested a lesser-included instruction on count two, Luna-Lopez s counsel replied, Yes, lesser included possession for sale. Although I suppose it might even be included a lesser included of importation as well, but I did ask for that, yes. The court attempted to clarify and asked, Any other lesser included you are asking for? Counsel replied, Not that I can think of, 3 Judge. The court then reiterated counsel s request and stated, [Y]ou have asked just for one lesser included possession of marijuana. ¶8 Later in the discussion, the court commented on counsel s request, I do believe . . . this possession is really only lesser included of possession of marijuana for sale; it s not a lesser included on importation. . . . Mr. Franklin, in that regard, that s just for that count. Luna-Lopez s counsel did not object. ¶9 Accordingly, in its final written instructions, the trial court instructed the jury on possession of marijuana as a lesser-included offense for count two, possession of marijuana for sale, but not as a lesser-included offense for count one, importation of marijuana. The jury convicted Luna-Lopez, as charged, on both counts. ¶10 Luna-Lopez filed a timely notice of appeal. jurisdiction pursuant Article 6, Section 9 of the We have Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) Sections 12-120.21(A)(1)(2003), 13-4031 (2001), and -4033(A)(Supp. 2009). ANALYSIS I. ¶11 Standard of Review On appeal, Luna-Lopez contends the superior court committed error by failing to instruct the jury that possession of marijuana is a lesser-included 4 offense of importation of marijuana. A trial court s denial of a requested jury instruction is reviewed for an abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006) (citation omitted). However, when jury instructions on a lesser-included offense are not requested at trial, we review for fundamental error. State v. Andriano, 215 Ariz. 497, 504, ¶ 32, 161 P.3d 540, 547 (2007). ¶12 Although instruction on (importation), Luna-Lopez a the maintains lesser-included record clearly that charge shows he requested an count one for that he requested a lesser-included instruction for count two (possession for sale) only. Thus, we review for fundamental error. II. The Superior Court Did Not Err By Failing to Include A Jury Instruction For A Lesser Offense ¶13 For a defendant to prevail under a fundamental error review, he must establish that error exists, that the error was fundamental, and, moreover, the error caused him prejudice. State v. Henderson, 210 Ariz. 561, 568, ¶ 20, 115 P.3d 601, 608 (2005). ¶14 A trial court is only required to give an instruction on a lesser-included offense if the instruction is requested and the offense is necessarily included. Wall, 212 Ariz. at 3, ¶ 13, 126 P.3d at 150; See also Arizona Rules of Criminal Procedure ( Ariz. R. Crim. P. ) 23.3 ( Forms of verdicts shall 5 be submitted to the jury for all offenses necessarily included in the offense charged. ) (emphasis added); Ariz. R. Crim. P. 21.3 cmt. c (reverses case law which held the court is duty bound in all homicide cases to instruct the jury on all necessarily-included offenses that the evidence will support, regardless of whether or not such instruction is requested. ) (citation omitted). As the Court in Wall explained: An offense is lesser included when the greater offense cannot be committed without necessarily committing the lesser offense. But an offense is necessarily included, and so requires a jury instruction be given, only when it is lesser included and the evidence is sufficient to support giving the instruction. In other words, if the facts of the case . . . are such that a jury could reasonably find that only the elements of a lesser offense have been proved, the defendant is entitled to have the judge instruct the jury on the lesser included offense. 212 Ariz. at 3, ¶ 14, 126 P.3d at 150 (citation omitted); see also State v. Schroeder, 95 Ariz. 255, 259, 389 P.2d 255, 257 (1964) (holding instructions on lesser offenses are justified only when there is evidence upon which the jury could convict of a lesser offense and, at the same time, find that the state had failed to prove an element of the greater crime. ). ¶15 The trial court did not commit error, let alone fundamental error, by failing to instruct the jury on a lesserincluded offense for count one. It is true that possession of marijuana marijuana. is a lesser-included offense of transportation of See State v. Chabolla-Hinojosa, 192 Ariz. 360, 364, 6 ¶ 15, 965 P.2d 94, 98 (App. 1998) ( In Arizona, it is settled that possession of marijuana is a lesser-included offense of both transportation of marijuana and possession of marijuana for sale. ). However, the facts of this case are such that the lesser-included offense of possession of marijuana is not a necessarily included offense. ¶16 It is undisputed that Luna-Lopez drove through the Arizona/Mexico border carrying cargo filled with marijuana; his counsel conceded this fact in his opening statement. Luna- Lopez sole defense is that he was not aware that the cargo contained marijuana; thus, he did not possess the requisite knowledge to be convicted of count one. ¶17 However, both the crimes of possession and importation require knowledge. See A.R.S. § 13-3405(A)(4)(Supp. 2009) ( A person shall not knowingly: . . . import into this state . . . marijuana. ); A.R.S. § 13-3405(A)(1) ( A person shall knowingly: [p]ossess or use marijuana. )(emphasis added). not Thus, on the facts of this case, the jury instruction of a lesserincluded offense for count one was not justified because the only defense was knowledge. any jury to convict on It would have been impossible for the lesser charge of possession, requiring knowledge, while at the same time find that the state failed to prove knowledge as an element of the greater crime (importation). If Luna-Lopez was convicted of the lesser charge 7 of possession, knowledge against fail. of an the the jury would marijuana importation in have his conviction, had to cargo. lack believe His of he only had defense knowledge, would Accordingly, the trial court was not required to include instruction on a lesser-included offense for count one, and therefore, did not commit error, let alone fundamental error. III. The Failure to Include A Jury Instruction Did Not Prejudice the Defendant ¶18 Even if the trial court committed fundamental error by failing to instruct the jury on the lesser-included charge for count one, the error would not require reversal because it would not have prejudiced Luna-Lopez. See Henderson, 210 Ariz. at 56768, ¶ 20, fundamental 115 error P.3d at requires 607-08 the (holding plaintiff that to reversal show the for error prejudiced him). ¶19 There is no possibility that the jurors could have concluded Luna-Lopez was guilty of possession and not guilty of importation. Both crimes require knowledge. Luna-Lopez only defense was lack of knowledge; he conceded he imported marijuana into the State. The jury could not have convicted him of mere possession and acquitted him of importation. CONCLUSION ¶20 For the foregoing reasons, the trial court did not err by failing to provide an instruction to the jury on a lesser- 8 included charge for count one. Accordingly, we affirm the conviction and sentence. /s/ ___________________________ DONN KESSLER, Judge CONCURRING: /s/ ________________________________ PATRICK IRVINE, Presiding Judge /s/ ________________________________ MICHAEL J. BROWN, Judge 9

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