STATE OF ARIZONA v. JESUS VALVERDE, JR.

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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JESUS VALVERDE, JR., ) ) Appellant. ) ) ) ) ) __________________________________) Arizona Supreme Court No. CR-08-0292-PR Court of Appeals Division One No. 1 CA-CR 07-0696 Maricopa County Superior Court No. CR2006-119293-001 DT O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable J. Richard Gama, Judge AFFIRMED ________________________________________________________________ Opinion of the Court of Appeals, Division One 220 Ariz. 171, 204 P.3d 429 (App. 2008) VACATED ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for State of Arizona Phoenix LAW OFFICE OF NICOLE T. FARNUM Tempe By Nicole T. Farnum Attorney for Jesus Valverde, Jr. ________________________________________________________________ B A L E S, Justice ¶1 The trial court, without objection, failed to instruct the jury that the defendant, rather than the State, had the 1 burden of proof on self-defense under the applicable law. Because the defendant has not shown prejudice from the omitted instruction, it is not fundamental error. FACTS AND PROCEDURAL BACKGROUND ¶2 Jesus assault. At trial, he admitted committing the assault on April 19, 2006, but Valverde, claimed he Jr. was had charged acted in with aggravated self-defense. The applicable statute provided that a defendant shall prove any affirmative defense raised by a preponderance of the evidence. Ariz. Rev. Stat. ( A.R.S. ) § 13-205 (2001).1 ¶3 Valverde s attorney asked the court to instruct the jury on the elements of self-defense and the State s burden of proof beyond a reasonable doubt, but did not request and the trial court did not give an instruction explaining Valverde s burden to prove self-defense by a preponderance of the evidence. With regard to self-defense, the trial court, without objection, instructed the jury: Justification for Self-Defense. A defendant is justified in using or threatening physical force in self-defense if the following two conditions existed:                                                              1    On April 24, 2006, the Legislature amended A.R.S. § 13-205 to provide that, if a defendant provides evidence of justification pursuant to chapter 4 of title 13, the state must prove beyond a reasonable doubt that the defendant did not act with justification. 2006 Ariz. Sess. Laws, ch. 199, § 2 (2d Reg. Sess.). The 2006 amendment does not apply to offenses committed before its effective date. Garcia v. Browning, 214 Ariz. 250, 251 ¶ 1, 151 P.3d 533, 534 (2007). 2 1. 2. A reasonable person in the defendant s situation would have believed that physical force was immediately necessary to protect against another s use or attempted use of unlawful physical force; and The defendant used or threatened no more physical force than would have appeared necessary to a reasonable person in the defendant s situation. Self-defense justifies the use or threat of physical force only while the apparent danger continues, and it ends when the apparent danger ends. The force used may not be greater than reasonably necessary to defend against the apparent danger. The use of physical force is justified if a reasonable person in the situation would have reasonably believed that immediate physical danger appeared to be present. Actual danger is not necessary to justify the use of physical force or deadly physical force in self-defense. You must decide whether a reasonable person in a similar situation would believe that physical force was immediately necessary to protect against another s use of unlawful physical force. You must measure the defendant s belief against what a reasonable person in the situation would have believed. ¶4 The jury found Valverde guilty of aggravated assault, and the trial court sentenced him to the presumptive term of 7.5 years imprisonment. ¶5 On appeal, Valverde argued that the trial court erred by not instructing the jury that self-defense is an affirmative defense that the defendant must prove by a preponderance of the evidence. 429, 431 State v. Valverde, 220 Ariz. 171, 173 ¶ 7, 204 P.3d (App. 2008). Because Valverde did not request an instruction on his burden of proof or object to the instruction 3 given, the court of appeals properly reviewed the instructions for fundamental error. Id. at ¶ 8 (citing State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005)). ¶6 The court of appeals, citing State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984), concluded that failure to properly instruct the jury regarding the defendant s burden of proof on self-defense is fundamental error. Ariz. at 174 ¶ 10, 204 P.3d at 432. Hunter predated fundamental Henderson s error approvingly. but Id. at ¶ 11. The court acknowledged that comprehensive noted that The Valverde, 220 discussion Henderson court cited of Hunter interpreted the two opinions as recognizing that a failure to properly instruct on the defendant s prejudicial. Id. burden of proof is another fundamental and Accordingly, the court vacated Valverde s conviction and remanded for a new trial. ¶7 both Id. at ¶ 13. Three months later, in a case involving similar facts, panel of the court of appeals concluded that no prejudice resulted from a trial court s failure to instruct on the defendant s burden of proof for self-defense. State v. Karr, 545 Ariz. Adv. Rep. 3, 4 ¶ 15 (App. Dec. 18, 2008). ¶8 We granted review to resolve the conflict between the opinions of the court of appeals and to reconcile our opinions in Hunter and Henderson. Our jurisdiction is based on Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 124 120.24 (2003). DISCUSSION I. ¶9 Alleged trial court error in criminal cases may be subject to one of three standards of review: structural error, harmless error, or fundamental error. Each type of error places a different burden of proof on the parties. ¶10 Structural error deprive[s] defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, State v. Ring (Ring III), 204 Ariz. 534, 552 ¶ 45, 65 P.3d 915, 933 (2003) (internal quotation marks omitted), and therefore is limited to such circumstances as denial of counsel or a biased [trier or fact], State v. Garza, 216 Ariz. 56, 63 n.6 ¶ 20, 163 P.3d 1006, 1013 n.6 (2007).2 finds structural error, reversal is If an appellate court mandated regardless of                                                              2 In Ring III, we identified instances in which the United States Supreme Court has found structural error.     Those instances involve errors such as a biased trial judge, complete denial of criminal defense counsel, denial of access to criminal defense counsel during an overnight trial recess, denial of self-representation in criminal cases, defective reasonable doubt jury instructions, exclusion of jurors of the defendant s race from grand jury selection, excusing a juror because of his views on capital punishment, and denial of a public criminal trial. 204 Ariz. at 552-53 ¶ 46, 65 P.3d at 933-34 (footnotes omitted). 5 whether an objection is made below or prejudice is found. error is structural, prejudice is presumed. If United States v. Warner, 498 F.3d 666, 704 (7th Cir. 2007). ¶11 Harmless error review, in contrast, applies in cases in which the defendant properly objects to non-structural error. Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at 607. court will affirm harmless, that evidence, can a is, conviction if the establish despite state, beyond a in A reviewing the error light of reasonable if all doubt error did not contribute to or affect the verdict. it is of the that the State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. State v. Anthony, 218 Ariz. 439, 446 ¶ 39, 189 P.3d 366, 373 (2008) (quoting Bible, 175 Ariz. at 588, 858 P.2d at 1191). ¶12 alleged If does no not objection rise to is made the level review only for fundamental error. ¶¶ 19, 115 P.3d at 607. at of trial, and structural the error error, we Henderson, 210 Ariz. at 567 Fundamental error is limited to those rare cases that involve error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant 6 could not possibly have received a fair trial. Hunter, 142 Ariz. at 90, 688 P.2d at 982). Id. (quoting The defendant bears the burden of proving both that the error was fundamental and that the error caused him prejudice. Id. at ¶ 20. We place this burden on the defendant to discourage a defendant from tak[ing] his chances on a favorable verdict, reserving the hole card of a later appeal on [a] matter that was curable at trial, and then seek[ing] appellate reversal. Id. at ¶ 19 (quoting State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313, 31718 (1989)). intensive Because inquiry, fundamental the showing error review necessary prejudice will vary on a case-by-case basis. to is a fact- demonstrate Id. at 568 ¶ 26, 115 P.3d at 608. II. ¶13 burden In Hunter, we held that the failure to instruct on the of proof as to the defendant s constituted fundamental error in that case. 688 P.2d at 982. state prove all self-defense claim 142 Ariz. at 90, At the time, Arizona law required that the of its case against a defendant beyond reasonable doubt[,] including rebuttal of self-defense. 89, 688 P.2d at 981. a Id. at Thus, when a defendant claimed self- defense, he was required only to present evidence sufficient to raise a reasonable doubt about whether his conduct was justified and was not required to prove that he properly acted 7 in self-defense. Id. The trial court instructed the jury that the state must prove its case beyond a reasonable doubt and that [i]f you decide the defendant s conduct was justified, you must find the defendant not guilty. Id. Because the trial court instructed jurors generally on the state s burden, but failed to set forth the burden with respect to self-defense, we concluded that the instructions could mislead or confuse the jury. 90, 688 P.2d at 982. Concerned that the jury Id. at could have interpreted the instruction as impermissibly shifting the burden of proof to specifically the instruct fundamental error. ¶14 In defendant, on we the found that burden of the proof failure to constituted Id. Henderson, we cited Hunter application of fundamental error analysis. at 567 ¶¶ 19-20, 115 P.3d at 607. to illustrate the Henderson, 210 Ariz. We neither held nor stated that Hunter established that prejudice inevitably results when a court fails to instruct on the defendant s burden of proof in self-defense cases. the proposition Instead, in Henderson, we cited Hunter for that a defendant must faulty jury instruction prejudiced him. P.2d at 609. To the extent the demonstrate how [a] Id. at 569 ¶ 26, 688 Valverde court interpreted either Henderson or Hunter as establishing a per se rule, the court of appeals erred by conflating structural error. 8 fundamental error with III. ¶15 Assuming that the omission of an instruction on the defendant s burden was fundamental in nature, an issue we need not address here, we must consider whether Valverde showed that the error resulted in prejudice in the circumstances of his case. On this issue, it is notable that Valverde, unlike the defendant in Hunter, actually had the burden of proving selfdefense by a preponderance of the evidence. The trial court instructed the jury that Valverde did not have to prove his innocence and that the State was required to prove beyond a reasonable doubt that he was guilty. ¶16 In assessing the impact of an erroneous instruction, we also consider the attorneys statements to the jury. State v. Kinkade, 140 Ariz. 91, 94-95, 680 P.2d 801, 804-05 (1984). In her opening statement, Valverde s counsel said: This was self-defense. The State cannot prove its case to you beyond a reasonable doubt. During closing arguments, she again argued: The State here can t meet its burden. use of force. This is a justifiable The lawyers did not otherwise address the burden of proof in their closing arguments. ¶17 In light of defense counsel s statements, Valverde cannot show that he was prejudiced by the trial court s failing to instruct the jury as to his burden of proving self-defense. The trial court s omission would most likely have led the jury 9 to conclude that the State was required to prove beyond a reasonable doubt that Valverde did not act in self defense, an interpretation that would have helped rather than harmed Valverde. IV. ¶18 Because the trial court s failure to specifically instruct on Valverde s burden of proof for self-defense did not prejudice Valverde, we vacate the opinion of the court of appeals and affirm the judgment of the trial court. _______________________________________ W. Scott Bales, Justice CONCURRING: _______________________________________ Ruth V. McGregor, Chief Justice _______________________________________ Rebecca White Berch, Vice Chief Justice _______________________________________ Michael D. Ryan, Justice _______________________________________ Andrew D. Hurwitz, Justice 10

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