                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

           ARMANDO MEDRANO VALENZUELA, Appellant.

                No. 1 CA-CR 13-0530 and 1 CA-CR 14-0211
                            (Consolidated)
                               FILED 3-31-2015


           Appeal from the Superior Court in Maricopa County
             No. CR2011-006301-001 and CR2012-006241-001
                             (Consolidated)
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
                        STATE v. VALENZUELA
                          Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.


C A T T A N I, Judge:

¶1            Armando Medrano Valenzuela appeals his conviction of
manslaughter by sudden quarrel or heat of passion (“provocation
manslaughter”).1 Valenzuela argues that the trial evidence did not warrant
instructing the jury on this form of manslaughter as a lesser-included
offense of second-degree murder, and that his conviction should thus be
reversed. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2          On April 16, 2011, Valenzuela’s girlfriend, C.M., who lived in
the same Phoenix apartment complex as Valenzuela, was drinking beer in
her apartment with her friend C.P. Another friend subsequently joined
them.

¶3           After the three women decided to go for a drive, they saw
Valenzuela’s friend Fernando Z., who they invited to go with them. As they
were driving, Fernando indicated that Valenzuela was at home with
another woman. They returned to Valenzuela’s apartment and, after
Valenzuela’s roommate opened the door, went inside to look for
Valenzuela. He was not there, however, and they waited in the front room
while C.M. called him.

¶4            When Valenzuela arrived, he and C.M. began arguing, and he
demanded that the women leave. While continuing to argue, Valenzuela
retrieved a handgun that Fernando had been carrying. When C.P. saw the
gun, she said she was going to call the police to have Valenzuela arrested,
but C.M. and Valenzuela continued to argue without acknowledging her
statement.


1      Valenzuela appeals from six convictions—manslaughter, two counts
of aggravated assault, misconduct involving weapons, influencing a
witness, and attempted witness tampering—and the resulting sentences.
His claim of error, however, relates only to the manslaughter conviction.


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                         STATE v. VALENZUELA
                           Decision of the Court

¶5            Valenzuela pointed the gun at C.M.’s chest, and she
responded by saying “what, are you going to shoot me? If you’re going to
do it, well, do it.” Without turning away from C.M., Valenzuela then
swung the gun to the right toward where C.P. was sitting a few feet away,
and shot her in the head. Valenzuela then ran from the room.

¶6           C.P. died from the gunshot wound. Valenzuela was arrested
and charged, as relevant here, with second-degree murder.

¶7            During trial, the State filed proposed jury instructions,
including a request for an instruction on provocation manslaughter as a
lesser-included offense of second-degree murder. Valenzuela did not
object to the manslaughter instruction, although he also requested an
instruction on negligent homicide as a lesser-included offense of second-
degree murder.

¶8             After instructing the jury on second-degree murder, the court
also stated:

       If you find the elements of second degree murder proven
       beyond a reasonable doubt, you must consider whether the
       homicide was committed upon a sudden quarrel or heat of
       passion resulting from adequate provocation by the victim,
       [C.P.].

       If you unanimously find that the homicide was committed
       upon a sudden quarrel or heat of passion resulting from
       adequate provocation by the victim, [C.P.], then you must
       find the defendant not guilty of second degree murder.

The court further instructed the jury on provocation manslaughter, which
requires proof of all the elements of second-degree murder and that:

       2. The defendant acted upon a sudden quarrel or heat of
       passion; and

       3. The sudden quarrel or heat of passion resulted from
       adequate provocation by the person who was killed.

       Adequate provocation means conduct or circumstances
       sufficient to deprive a reasonable person of self-control.
       Words alone are not adequate provocation to justify reducing
       an intentional killing to manslaughter.




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                          STATE v. VALENZUELA
                            Decision of the Court

       ....

       If you determine that the defendant is guilty of either second
       degree murder or manslaughter by sudden quarrel or heat of
       passion, but you have a reasonable doubt as to which it was,
       you must find the defendant guilty of manslaughter by
       sudden quarrel or heat of passion.

¶9           The jurors indicated that they could not agree on the charge
of second-degree murder, and they found Valenzuela guilty of provocation
manslaughter. Valenzuela timely appealed, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -4033.2

                                DISCUSSION

¶10             Valenzuela argues that the evidence did not support an
instruction on provocation manslaughter, and that his conviction of that
offense must therefore be reversed. He claims specifically that no evidence
supported a finding of adequate provocation by the victim required for
conviction of this form of manslaughter. Because Valenzuela did not object
to the instruction, we review only for fundamental, prejudicial error. See
State v. Henderson, 210 Ariz. 561, 567–68, ¶¶ 19–20, 115 P.3d 601, 607–08
(2005); see also State v. James, 231 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185 (App.
2013).

¶11            To obtain relief based on an erroneous jury instruction, a
defendant “must show that a reasonable jury ‘could have reached a
different result’ had the jury been properly instructed” in order to show
prejudice. James, 231 Ariz. at 494, ¶ 15, 297 P.3d at 186 (quoting Henderson,
210 Ariz. at 569, ¶ 27, 115 P.3d at 609). Here, we need not decide whether
the instruction at issue was erroneous or whether the alleged error went to
the heart of the case, because Valenzuela has not established prejudice.

¶12            Provocation manslaughter is an “unusual” lesser-included
offense of second-degree murder because “[i]nstead of deleting an element
of the greater offense, it specifies a different circumstance as a requirement
to find the lesser offense.” Peak v. Acuna, 203 Ariz. 83, 84, ¶ 6, 50 P.3d 833,
834 (2002). By definition, this form of manslaughter requires a finding that
the defendant “[c]ommitt[ed] second degree murder” under A.R.S. § 13-
1104(A), as well as a finding that the offense occurred “upon a sudden
quarrel or heat of passion resulting from adequate provocation by the

2     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                        4
                         STATE v. VALENZUELA
                           Decision of the Court

victim.” A.R.S. § 13-1103(A)(2). As we have previously held, the elements
of provocation manslaughter are the same as the elements of second-degree
murder; the “different circumstance” of adequate provocation is not an
element of the offense, but simply an additional question of fact for the jury.
State v. Lua, 235 Ariz. 261, 263–64, ¶¶ 9, 11, 330 P.3d 1018, 1020–21 (App.
2014).

¶13          Here, by convicting Valenzuela of provocation manslaughter,
the jury necessarily found each element of second-degree murder.
Accordingly, absent the only error alleged on appeal (that is, the instruction
on adequate provocation), Valenzuela would have been subject to
conviction of the greater offense (second-degree murder) instead of
manslaughter. Because the alleged error benefitted Valenzuela, he was not
prejudiced. See State v. Valverde, 220 Ariz. 582, 586, ¶ 17, 208 P.3d 233, 237
(2009).

¶14           Citing State v. Sprang, 227 Ariz. 10, 14–15, ¶¶ 15–17, 251 P.3d
389, 393–94 (App. 2011), Valenzuela argues that the fact that the alleged
error was in some sense favorable (that is, conviction of the lesser offense
decreased the potential sentencing range) nevertheless does not establish
that the error was harmless. In Sprang, this court vacated a second-degree
murder conviction after concluding that, because the evidence supported
first-degree premeditated murder, and not a lesser offense, an instruction
on (and conviction of) second-degree murder was erroneous. Id. at 13–14,
¶¶ 11–13, 251 P.3d at 392–93. But in that case, although the error benefitted
the defendant by allowing conviction of a less serious offense, the error was
not harmless because the jury was not required to find premeditation in
reaching its guilty verdict on second-degree murder. Id. at 14–15, ¶¶ 15–
17, 251 P.3d at 393–94. Absent the erroneous instruction, “[t]he jury could
have acquitted Sprang of the first-degree murder charge, as it did, or been
unable to reach a verdict.” Id. at ¶ 17.

¶15            Here, in contrast—and as we noted in Sprang—provocation
manslaughter involves an additional element to second-degree murder;
thus an allegation that the jury lacked sufficient evidence of the additional
element (adequate provocation) only “establishe[d] that the jury found all
of the factors of second-degree murder.” Id. at 15, ¶ 18, 251 P.3d at 394.
Absent the allegedly incorrect factor of adequate provocation, Valenzuela
is left with a jury finding of all of the elements of the greater offense, and
there is no uncertainty regarding whether the jury might have found an
additional element to establish the greater offense.             Accordingly,
Valenzuela has not shown prejudice.



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                STATE v. VALENZUELA
                  Decision of the Court

                     CONCLUSION

¶16   Valenzuela’s conviction is affirmed.




                          :ama




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