In re Carlos P.

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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 ) ) ) ) ) ) ) ) ) ) ) ) IN RE CARLOS P. No. DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-JV 10-0052 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JV175167 The Honorable Jo Lynn Gentry-Lewis, Judge AFFIRMED Richard M. Romley, Acting Maricopa County Attorney By Linda Van Brakel, Deputy County Attorney Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Suzanne Sanchez, Deputy Juvenile Public Defender Attorneys for Appellant Mesa T I M M E R, Chief Judge ¶1 The juvenile court adjudicated Carlos P. delinquent for threatening or intimidating, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1202 (2010), 1 and placed him on standard probation. in finding him Carlos appeals and argues the court erred delinquent because his actions were legally justified. BACKGROUND 2 ¶2 At approximately 11:00 p.m. on October 24, 2009, R.S. saw his godson, Carlos, and other boys knock on a neighbor s door and run away. R.S. went to Carlos s apartment, which he shared with his mother, and knocked on the door. When Carlos opened the door and stepped outside, R.S. confronted him about his behavior. Carlos denied he was involved, spoke harshly to R.S., and then stepped back into the apartment. words were exchanged, and a physical R.S. followed, altercation ensued. Eventually, R.S. moved out of [Carlos s] way, and Carlos left the apartment. Once Carlos was outside, he yelled that someone needed to call 9-1-1 and then threatened to kill R.S. Although Carlos denied threatening to kill R.S., he admitted threatening to have his friends mess [R.S.] up with punches and stuff. 1 We cite to the current versions of the statutes discussed herein as no substantive changes have occurred. 2 We view the facts in the light most favorable to upholding the juvenile court s order and resolve all reasonable inferences against Carlos. In re John M., 201 Ariz. 424, 426, ¶ 7, 36 P.3d 772, 774 (App. 2001); State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 ¶3 The acts, State including alleged one count of threatening or intimidating. juvenile court found Carlos committed assault and four three delinquent counts of After an adjudication hearing, the Carlos delinquent of one count of threatening or intimidating in violation of A.R.S. § 13-1202. The court reasoned that while there were different versions of what transpired between Carlos and R.S., it was clear that Carlos threatened R.S. and went beyond the circumstances that were happening on this particular evening. After the court placed Carlos on probation, this timely appeal followed. DISCUSSION ¶4 Carlos argues the juvenile court erred by adjudicating him delinquent because his actions were legally justified and therefore did not constitute threatening or intimidating. We review of a juvenile court s disposition order for an abuse discretion but review de novo statutory and legal challenges to the court s disposition. In re Hillary C., 221 Ariz. 78, 79, ¶ 2, 210 P.3d 1249, 1250 (App. 2009); State v. Martinez, 218 Ariz. 421, 434, ¶ 59, 189 P.3d 348, 361 (2008). ¶5 that Section [a] person 13-1202(A)(1), commits provides, threatening or in relevant intimidating part, if the person threatens or intimidates by word or conduct: 1. To cause physical injury to another property of another. person or serious damage to the Carlos does not dispute that his actions 3 fit this definition. Instead, he maintains that justification defenses set forth in A.R.S. §§ 13-404(A) (2010), -407 (2010), and -411 (2010) immunized him from culpability. defenses describe conduct that, if not Justification justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct. If evidence of justification . . . is presented by the defendant, the state must prove beyond a reasonable doubt justification. -407(A), 4 and threatening to that the defendant A.R.S. § 13-205 (2010). -411(A) 5 use state physical that a force did act with Sections 13-404(A), 3 person to not the is justified extent that in a reasonable person would believe it to be immediately necessary 3 Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other s use or attempted use of unlawful physical force. A.R.S. § 13-404(A). 4 A person or his agent in lawful possession or control of premises is justified in threatening to use deadly physical force or in threatening or using physical force against another when and to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises. A.R.S. § 13-407(A). 5 A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other s commission of . . . burglary . . . or aggravated assault. A.R.S. § 13-411(A). 4 to protect against physical force, criminal trespass, or burglary. ¶6 The juvenile court was warranted in rejecting Carlos s justification defenses. Carlos s threat was The evidence supports a finding that not immediately necessary to either prevent R.S. from physically harming Carlos or to compel R.S. to leave the apartment. Carlos threatened R.S. with physical harm after R.S. had moved out of the way and Carlos had left the apartment. The record does not reflect that R.S. pursued Carlos or to refused leave the apartment peaceably. Additionally, Carlos admitted that at the time he threatened R.S., someone was restraining R.S. In sum, once Carlos broke contact with R.S., Carlos was not justified in threatening to physically harm R.S. See State v. Powers, 117 Ariz. 220, 222, 226-27, 571 P.2d 1016, 1018, 1022-23 justification (1977) defense (holding after defendant fight with the could not ended victim use and contact ha[d] been broken ); State v. Buggs, 167 Ariz. 333, 335, 337, 806 P.2d defendant not entitled after a fight has 1381, 1383, to broken 1385 (App. self-defense off, one 1990) (concluding instruction cannot pursue because a person several seconds or minutes later and use physical force merely because he therefore once did feared not err for by his life ). rejecting 5 The Carlos s juvenile court justification defenses alleged pursuant to A.R.S. §§ 13-404(A), -407, and -411. ¶7 Carlos also argues the juvenile court erred by failing to find his actions were justified as set forth in A.R.S. §§ 13417 (2010) and -418 (2010). for the first fundamental ¶ 19, 115 time error. P.3d on appeal, State 601, 607 Because Carlos raises this argument v. he has Henderson, (2005). To waived 210 gain it Ariz. relief absent 561, 567, under a fundamental-error standard of review, an appellant must prove error occurred, the error was fundamental, and the appellant was prejudiced by the error. 608. Id. at 568, ¶¶ 23-24, 26, 115 P.3d at Error is fundamental if it reaches the foundation of the appellant s case or removes an essential right to the defense. State v. McGann, 132 Ariz. 296, 298, 645 P.2d 811, 813 (1982) (citation omitted). ¶8 Section 13-417(A) provides that [c]onduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person s own conduct. uses the term imminent and the Although this provision previously described justification statutes use the term immediate, the difference . . . does not seem to result in any practical distinction in 6 the application of the law. at 1384. Buggs, 167 Ariz. at 336, 806 P.2d The evidence does not support a conclusion that Carlos was compelled to engage in threatening or intimidating and had no reasonable private injury. alternative to avoid A.R.S. § 13-417(A). imminent public or As stated earlier, Carlos had already left the situation when he issued the threats, and he therefore had the reasonable alternative of continuing to walk away or call for help. We do not discern any error by the juvenile court in failing to apply A.R.S. § 13-417 sua sponte. ¶9 Section 13-418(A), provides, in relevant part, as follows: Notwithstanding any other provision of this chapter, a person is justified in threatening to use . . . physical force or deadly physical force against another person if the person reasonably believes himself or another person to be in imminent peril of death or serious physical injury and the person against whom the physical force or deadly physical force is threatened . . . was in the process of unlawfully or forcefully entering, or had unlawfully or forcefully entered, a residential structure . . . . Although Carlos and R.S. had engaged in a physical altercation, it is unclear who instigated the contact and the nature of the circumstances surrounding the incident. Regardless, no evidence suggests that Carlos reasonably believed himself or his mother to be in imminent peril of death or serious physical injury. Carlos and his mother both testified that Carlos sustained only 7 minor injuries to his ear as a result of the altercation, and a police officer testified he did not see any injuries to Carlos that evening. Further, because R.S. is Carlos s godfather and resided in a neighboring apartment, the officer indicated he did not consider that R.S. had trespassed. Additionally, evidence suggests R.S. forcefully entered the apartment. no In short, the evidence did not support a defense under A.R.S. § 13418(A), and the juvenile court did not err by failing to apply it sua sponte. CONCLUSION ¶10 For the foregoing reasons, we affirm the juvenile court s adjudication of delinquency and resulting disposition. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ Jon W. Thompson, Presiding Judge /s/ Patricia K. Norris, Judge 8

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