STATE v. BARRERAS-RATCLIFF

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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 DIVISION ONE FILED: 10/11/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) Appellee, ) v. ) ) CARLOS ANTHONY BARRERAS-RATCLIFF, ) ) Appellant. ) ) No. 1 CA-CR 11-0669 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Coconino County Cause No. S0300CR201000600 The Honorable Jacqueline Hatch, Judge AFFIRMED AS MODIFIED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee H. Allen Gerhardt, Jr., Coconino County Public Defender Attorneys for Appellant Phoenix Flagstaff T I M M E R, Presiding Judge ¶1 Carlos Anthony Barreras-Ratcliff conviction and sentence for manslaughter. court committed reversible error by appeals his He argues the trial instructing the jury on heat-of-passion first-degree manslaughter murder and by presentence incarceration. Barreras-Ratcliff s as not a lesser-included giving him full offense of credit for For reasons that follow, we affirm conviction but modify his sentence to increase the credit for presentence incarceration to 411 days. BACKGROUND ¶2 The State charged Barreras-Ratcliff with premeditated first-degree murder in the death of his girlfriend. 1 to a jury, supported the trial court instructions on determined that lesser-included Upon trial the evidence offenses and instructed on second-degree murder, reckless and heat-of-passion manslaughter, and negligent homicide. Ratcliff not guilty of first- and The jury found Barrerassecond-degree murder, but guilty of manslaughter. ¶3 proven, After finding an allegation of prior convictions to be the trial court sentenced Barreras-Ratcliff as a repetitive offender to an aggravated term of twenty-five years imprisonment incarceration. with credit for 340 days of presentence Barreras-Ratcliff timely appealed. 1 The facts of the crime are not relevant to the issues raised on appeal. 2 DISCUSSION A. ¶4 Lesser-included offense instruction Barreras-Ratcliff instructing the jury on claims the heat-of-passion trial court erred manslaughter, in arguing this form of manslaughter is not a lesser-included offense of first-degree murder. As a result, Barreras-Ratcliff asserts, it is possible the jury convicted him of an uncharged offense in violation of his constitutional due process right to notice. 2 ¶5 A charge of first-degree murder includes all lesser- included offenses, thereby putting a defendant on notice of the potential conviction for a lesser-included offense. State v. Hutton, 143 Ariz. 386, 390, 694 P.2d 216, 220 (1985); see also Ariz. R. Crim. P. 13.2(c) ( Specification of an offense in an indictment, information, or complaint shall constitute a charge of that offense therein. ). and of all offenses necessarily included Whether an offense is a lesser-included offense of the charged offense is a question of law we review de novo. State v. Cheramie, 218 Ariz. 447, 448, ¶ 8, 189 P.3d 374, 375 (2008). ¶6 A person commits the offense of heat-of-passion manslaughter by [c]ommitting second degree murder . . . upon a 2 The guilty verdict returned by the jury did not specify the form of manslaughter committed by Barreras-Ratcliff. As a result, it is unknown whether the jury found him guilty of reckless manslaughter or heat-of-passion manslaughter. 3 sudden quarrel or heat of provocation by the victim. 2012). 3 1103(A)(2) (West recognized heat-of-passion passion resulting from adequate Ariz. Rev. Stat. ( A.R.S. ) § 13Our supreme court as manslaughter offense of first-degree murder. has lesser-included a repeatedly See, e.g., State v. Gipson, 229 Ariz. 484, 487, ¶ 17, 277 P.3d 189, 192 (2012); State v. Gomez, 211 Ariz. 494, 501, ¶ 30, 123 P.3d 1131, 1138 (2005); State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 1177, 1187 (1989); State v. Doss, 116 Ariz. 156, 162, 568 P.2d 1054, 1060 (1977). Thus, in a first-degree murder case, the trial court must instruct on heat-of-passion manslaughter when the evidence supports giving of the instruction and it is requested by a party. the State v. Hurley, 197 Ariz. 400, 403, ¶ 13, 4 P.3d 455, 458 (2000); see also Vickers, 159 Ariz. at 542, 768 P.2d at 1187 ( A defendant is entitled establishes to a that manslaughter the homicide instruction was committed if the evidence the heat in of passion aroused by adequate provocation. ). ¶7 to Barreras-Ratcliff does not contend the evidence fails support a conviction for heat-of-passion manslaughter. Rather, he argues only that heat-of-passion manslaughter is not a lesser-included offense of first-degree murder. are bound by the decisions of 3 our supreme Given that we court recognizing Absent material revisions after the date of an alleged offense, we cite a statute s current version. 4 heat-of-passion first-degree manslaughter murder, we as a reject lesser-included offense Barreras-Ratcliff s of argument. See State v. Sullivan, 205 Ariz. 285, 288, ¶ 15, 69 P.3d 1006, 1009 (App. 2003) (noting we are constrained by the decisions of our supreme court and are not permitted to overrule, modify, or disregard them ) (citation omitted). ¶8 Barreras-Ratcliff s reliance on Peak v. Acuna, 203 Ariz. 83, 50 P.3d 833 (2002), for the principle that heat-ofpassion manslaughter is not a lesser-included offense of firstdegree murder is misplaced. The Peak court addressed only whether double jeopardy principles barred a retrial on a charge of second-degree murder when the defendant had been acquitted on manslaughter at her first trial. 834. And relationship manslaughter, Peak, between although Id. at 84, ¶ 5, 50 P.3d at acknowledging second-degree implicitly murder confirms and that the unusual heat-of-passion heat-of-passion manslaughter is a lesser offense of the greater offense of second-degree murder. ¶9 has Id. at ¶ 6. Furthermore, since Peak was decided, our supreme court continued to recognize heat-of-passion manslaughter lesser-included offense of first-degree murder. Gipson, our supreme court upheld a as a For example, in conviction for heat-of- passion manslaughter in a first-degree murder case, rejecting an argument that the trial court erred by sua sponte instructing on 5 this lesser included offense when both defendant objected to the instruction. 277 P.3d at 192. heat-of-passion the State and the 229 Ariz. at 487, ¶ 17, Additional post-Peak decisions recognizing manslaughter as a lesser-included offense of first-degree murder include State v. Patterson, ___ Ariz. ___, ___, ¶ 27, 283 P.3d 1, 7 (2012), and State v. Gomez, 211 Ariz. 494, 501, ¶ 30, 123 P.3d 1131, 1138 (2005). Thus, the trial court did not err in instructing on heat-of-passion manslaughter as a lesser-included offense in the instant case. B. ¶10 Presentence incarceration credit Barreras-Ratcliff also argues the trial court erred by failing to give full credit for his presentence incarceration. Because Barreras-Ratcliff did not raise this matter in the trial court, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567 68, ¶¶ 19 20, 115 P.3d 601, 607 08 (2005). The State concedes the existence of fundamental error, and we agree. ¶11 All time actually spent in custody pursuant to an offense until the prisoner is sentenced . . . shall be credited against the term of imprisonment. . . . (West 2012). A.R.S. § 13-712(B) The trial court granted Barreras-Ratcliff credit for 340 days of presentence incarceration credit; we conclude, however, that he was incarceration credit. entitled credit for to 411 days of presentence presentence The trial court s failure to grant full incarceration 6 constitutes fundamental error. State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). Accordingly, pursuant to A.R.S. § 13 4037(A) (West 2012), we modify Barreras-Ratcliff s sentence to reflect credit for 411 days of presentence incarceration. CONCLUSION ¶12 For the foregoing reasons, we affirm Barreras- Ratcliff s conviction but modify his sentence by increasing the credit for presentence incarceration to 411 days. /s/ Ann A. Scott Timmer, Presiding Judge CONCURRING: /s/ John C. Gemmill, Judge /s/ Margaret H. Downie, Judge 7

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