                                       IN THE

           SUPREME COURT OF THE STATE OF ARIZONA

                                 STATE OF ARIZONA,
                                     Appellee,

                                          v.

                                 CHRISTEPHER E. LUA,
                                      Appellant.

                                 No. CR-14-0283-PR
                                 Filed June 19, 2015


                  Appeal from the Superior Court in Mohave County
                       The Honorable Steven F. Conn, Judge
                                  No. CR201000834
                                    AFFIRMED

                    Opinion of the Court of Appeals, Division One
                       235 Ariz. 261, 330 P.3d 1018 (App. 2014)
                                      VACATED


COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T.
Maziarz, Chief Counsel, Criminal Appeals Section, Linley Wilson (argued), Assistant
Attorney General, Phoenix, Attorneys for State of Arizona

Barbara Cook-Hamp, Legal Advocate, Jill L. Evans (argued), Deputy Legal Advocate,
Kingman, Attorneys for Christepher E. Lua


VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, JUSTICES BERCH, BRUTINEL, and TIMMER joined.
                                       STATE V. LUA
                                    Opinion of the Court

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶1             We address in this case whether, in a prosecution for second-degree
murder, the trial court may instruct the jury on manslaughter over a defendant’s
objection if the evidence supports a finding that the killing occurred “upon a sudden
quarrel or heat of passion resulting from adequate provocation by the victim”
(“provocation manslaughter”) under A.R.S. § 13-1103(A)(2). We hold that the court may
give such an instruction.

                                              I.

¶2            Christepher Lua was tried on two counts of attempted second-degree
murder and other charges. At the close of evidence, the trial court, over Lua’s objection,
instructed the jury on attempted provocation manslaughter, which the court ruled was a
lesser-included offense of attempted second-degree murder. Lua was convicted of both
counts of attempted provocation manslaughter.

¶3            The court of appeals affirmed, holding that the jury instruction was proper
because provocation manslaughter is a lesser-included offense of second-degree murder
and the evidence supported the instruction, a point Lua did not dispute. State v. Lua, 235
Ariz. 261, 261 ¶ 1, 264 ¶ 12, 330 P.3d 1018, 1018, 1021 (App. 2014). In doing so, the court
rejected Lua’s argument that Peak v. Acuna, 203 Ariz. 83, 50 P.3d 833 (2002), “stands for
the proposition that provocation manslaughter is not a lesser-included offense of
second-degree murder.” Id. at 263 ¶ 8, 330 P.3d at 1020.

¶4           We granted review because the issue raised is recurring and of statewide
importance. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona
Constitution and A.R.S. § 12-120.24.

                                              II.

¶5             An instruction on an offense other than that charged is proper if the offense
is included within the charged offense and the evidence supports giving the instruction.
See State v. Miranda, 200 Ariz. 67, 68 ¶ 2, 22 P.3d 506, 507 (2001); see also Ariz. R. Crim. P.
23.3 (requiring court to submit jury verdict forms “for all offenses necessarily included in
the offense charged,” including an attempt to commit the offense if such attempt is a
crime); State v. Valenzuela, 194 Ariz. 404, 406 ¶ 10, 984 P.2d 12, 14 (1999). Whether an
offense is included within another is a question of statutory interpretation that we review
de novo. State v. Geeslin, 223 Ariz. 553, 555 ¶ 9, 225 P.3d 1129, 1131 (2010).


                                              2
                                     STATE V. LUA
                                  Opinion of the Court

                                            A.

¶6            A person commits second-degree murder, a class 1 felony, if, “without
premeditation,” the person causes the death of another “intentionally,” “knowingly,” or
“recklessly” “[u]nder circumstances manifesting extreme indifference to human life.”
A.R.S. § 13-1104(A), (C). A person commits provocation manslaughter, a class 2 felony,
by “[c]ommitting second degree murder . . . upon a sudden quarrel or heat of passion
resulting from adequate provocation by the victim.” Id. § 13-1103(A)(2), (C).

¶7             A lesser-included offense is one “composed solely of some but not all of the
elements of the greater crime so that it is impossible to have committed the crime charged
without having committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251, 660 P.2d
849, 852 (1983). Under that “elements test,” provocation manslaughter is not a lesser-
included offense of second-degree murder. Although it is a lesser degree of homicide,
see A.R.S. §§ 13-1101(2), -1103(C), -1104(C), provocation manslaughter has the same (not
fewer) elements as second-degree murder, with the added mitigating “circumstance” of
adequate provocation. See Peak, 203 Ariz. at 84 ¶ 6, 50 P.3d at 834 (“Instead of deleting
an element of the greater offense, [A.R.S. § 13-1103(A)(2)] specifies a different
circumstance as a requirement to find the lesser offense.”). Thus, it is possible to commit
second-degree murder without committing provocation manslaughter; one who
intentionally, knowingly, or with extreme recklessness kills another without
premeditation and without provocation commits second-degree murder, but does not
simultaneously commit provocation manslaughter. See id. at 84–85 ¶ 6, 50 P.3d at 834–35
(holding that double jeopardy did not bar retrial for second-degree murder following
acquittal of provocation manslaughter because the acquittal “d[id] not necessarily mean
that [Defendant] did not commit second-degree murder,” rather, “[i]t might well have
meant that the jury found Defendant had not acted after a sudden quarrel or in the heat
of passion”).

                                            B.

¶8            Lua first argues that Arizona’s statutes do not allow a
provocation-manslaughter instruction in a second-degree murder case unless that
offense is separately charged or the defendant consents to an amendment adding that
charge. The pertinent statutes do not expressly address Lua’s argument, and therefore
we consider their context, historical background, spirit and purpose, and the effects and
consequences of competing interpretations in determining legislative intent. See State ex
rel. Montgomery v. Harris, 237 Ariz. 98, 101 ¶ 13, 346 P.3d 984, 987 (2014).




                                            3
                                       STATE V. LUA
                                    Opinion of the Court

¶9             Allowing a provocation-manslaughter instruction in a second-degree
murder trial if the evidence warrants such an instruction comports with the framework
of Arizona’s homicide statutes, which provide increased punishment for progressively
more serious crimes. See A.R.S. §§ 13-1102 to -1105; cf. State v. Woodall, 155 Ariz. 1, 4, 744
P.2d 732, 735 (App. 1987) (observing that the drafters of the current homicide provisions
intended that the “degree of culpable mental state” govern the degree of homicide). The
classification of provocation manslaughter as a lesser-grade felony than second-degree
murder reflects a policy that those who commit second-degree murder “upon a sudden
quarrel or heat of passion resulting from adequate provocation by the victim” deserve a
lesser punishment. A.R.S. § 13-1103(A)(2); cf. id. § 13-101(4) (declaring the “policy” and
“general purposes” of the criminal code “[t]o differentiate on reasonable grounds
between serious and minor offenses and to prescribe proportionate penalties for each”);
State v. Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990) (concluding that A.R.S.
§ 13-1904(A)(2) reflects the legislature’s determination that those who use deadly
weapons or dangerous instruments deserve a greater punishment).

¶10            Because the state is required to prove second-degree murder to obtain a
provocation-manslaughter conviction, however, see § 13-1103(A)(2), the state has little
incentive to separately charge provocation manslaughter, even if the facts warrant it. As
a practical matter, therefore, adopting Lua’s argument would undermine the legislature’s
intent to reduce second-degree murder to manslaughter when circumstances exist to
justify the less-serious charge.

¶11            Legislative history also suggests that the legislature intended to allow a
provocation-manslaughter verdict in a second-degree murder case when justified by the
evidence. Before 1978, Arizona’s criminal laws codified the common-law definitions of
murder as “the unlawful killing of a human being with malice,” and manslaughter as
“the unlawful killing of a human being without malice.” See former A.R.S. §§ 13-451, -455,
repealed by 1977 Ariz. Sess. Laws, ch. 142, § 15 (1st Reg. Sess.). Under that scheme, a killing
that was willful, deliberate, and premeditated, or occurred during the commission of
certain specified crimes, constituted first-degree murder. State v. Schantz, 98 Ariz. 200,
206, 403 P.2d 521, 524–25 (1965). A killing that lacked willfulness, deliberation, or
premeditation, and did not occur during the commission of one of the specified crimes
but was accompanied by malice, constituted second-degree murder. Id. at 206, 403 P.2d
at 525. And if the killing lacked the element of malice, it was still the lesser offense of
manslaughter, “which if committed upon a sudden quarrel or heat of passion [wa]s
known as voluntary manslaughter.” Id.

¶12           When the legislature adopted the current criminal code in 1977, it retained
these distinctions. It defined the “premeditation” required for first-degree murder,

                                              4
                                       STATE V. LUA
                                    Opinion of the Court

A.R.S. § 13-1105(A)(1) (former § 13-452), “in terms of intention or knowledge that
precedes the killing by enough time to allow reflection and exclude[d] killings that occur
as a result of a sudden quarrel.” State v. Thompson, 204 Ariz. 471, 476 ¶ 18, 65 P.3d 420,
425 (2003) (discussing A.R.S. § 13-1101(1)); see also State v. Christensen, 129 Ariz. 32, 35, 628
P.2d 580, 583 (1981) (noting that the current criminal code “prescribe[s] the conditions
when murder may be reduced to manslaughter through the lack of reason or planning;
that is, when a person acts in the heat of passion with adequate provocation”). But rather
than defining manslaughter as the “unlawful killing of a human being without malice,”
as it had done previously, the legislature defined manslaughter in ways that gave content
to the meaning of “without malice.” Cf. Christensen, 129 Ariz. at 35, 628 P.2d at 583 (“The
distinguishing characteristic between murder and manslaughter is that malice is not an
element of the latter.”). Compare A.R.S. § 13-1103(A)(2), with State v. Mendell, 111 Ariz. 51,
54, 523 P.2d 79, 82 (1974) (“[M]alice is implied when no considerable provocation
appears . . . .” (quoting former A.R.S. § 13-451(B))). Nothing in the current statutes or
their histories suggests that the legislature intended to change the former statutory
distinction between second-degree murder and voluntary manslaughter or to bar a jury
instruction and finding on provocation manslaughter in a second-degree murder case.

¶13             In addition to effecting the legislature’s intent, our conclusion furthers the
“societal interest in ‘avoiding the unjustified exoneration of wrongdoers and in punishing
a defendant only to the extent of his crime.’” State v. Gipson, 229 Ariz. 484, 487 ¶ 16, 277
P.3d 189, 192 (2012) (quoting People v. Garcia, 721 N.E.2d 574, 582–83 (Ill. 1999)); accord
Padie v. State, 557 P.2d 1138, 1141–42 (Alaska 1976) (holding that the trial court must give
a provocation-manslaughter instruction in a second-degree murder trial when the
evidence supports such an instruction because without one, jurors may convict of
second-degree murder even though, correctly instructed, they would find the defendant
guilty of no crime more serious than manslaughter). Allowing juries the option of
convicting on provocation manslaughter affords them a less drastic alternative than the
choice between convicting and acquitting on the second-degree murder charge, and
ensures the defendant has the full benefit of the reasonable doubt standard. See
Valenzuela, 194 Ariz. at 407 ¶ 13, 984 P.2d at 15.

¶14           Our conclusion is also supported by a long line of cases in which we have
approved provocation-manslaughter instructions in first- and second-degree murder
trials when supported by the evidence. See, e.g., Gipson, 229 Ariz. at 485 ¶ 4, 487 ¶ 17, 277
P.3d at 190, 192 (upholding manslaughter conviction in a first-degree murder trial when
trial judge sua sponte instructed jury on provocation manslaughter over both parties’
objections); State v. Delahanty, 226 Ariz. 502, 507 ¶ 23, 250 P.3d 1131, 1136 (2011) (“In a
first degree murder trial, instructions for second degree murder, manslaughter, or
negligent homicide are required when supported by the evidence.”); State v. Noleen, 142

                                               5
                                      STATE V. LUA
                                   Opinion of the Court

Ariz. 101, 107, 688 P.2d 993, 999 (1984) (“An accused murderer is entitled to an instruction
on the lesser-included offense of manslaughter if the evidence shows the killing was done
in the heat of passion . . . .”); Antone v. State, 49 Ariz. 168, 176, 65 P.2d 646, 649 (1937)
(noting that, in a second-degree murder prosecution, it is the judge’s duty to instruct on
manslaughter “[w]hen the evidence shows . . . that the killing was the result of a sudden
quarrel, or was committed in the heat of passion”). In addition, our conclusion is
consistent with the views of other courts that have interpreted similar statutes. See State
v. Smith, 822 N.W.2d 401, 416–17 (Neb. 2012) (concluding that a voluntary-manslaughter
instruction is appropriate in a second-degree murder trial when there is evidence that the
defendant acted under the provocation of a sudden quarrel, notwithstanding that
voluntary manslaughter, as defined by statute, is not a lesser-included offense of
second-degree murder); State v. Shane, 590 N.E.2d 272, 274–75 (Ohio 1992) (same, in a
murder prosecution).

                                             C.

¶15           Lua also argues that by instructing the jury on provocation manslaughter
over his objection, the trial court “constructively amended the indictment” in violation of
Arizona Rules of Criminal Procedure 13.2(c) and 23.3, and the Sixth Amendment’s notice
requirement. We disagree.

¶16           Rules 13.2(c) and 23.3 relate to charging documents and jury verdict forms
and address offenses that are “necessarily included” in the offense charged. See Ariz. R.
Crim. P. 13.2(c), 23.3. Those two rules are not implicated here because provocation
manslaughter is not a lesser- or necessarily included offense of second-degree murder,
but merely a less serious offense. See Gipson, 229 Ariz. at 486 ¶ 14 n.2, 277 P.3d at 191 n.2
(“An offense is necessarily included ‘when it is lesser included’ and ‘the facts of the case
as presented at trial are such that a jury could reasonably find that only the elements of a
lesser offense have been proved.’” (quoting State v. Wall, 212 Ariz. 1, 3 ¶ 14, 126 P.3d 148,
150 (2006))). Neither rule precludes a trial judge from instructing a jury on and
submitting a verdict form for provocation manslaughter when the indictment charges
only second-degree murder but the evidence supports the less serious charge. Cf. id. at
486–87 ¶ 14, 277 P.3d at 191–92 (rejecting the argument that Rules 13.2(c) and 23.3
preclude a trial judge in a first-degree murder trial from instructing on provocation
manslaughter over both parties’ objections). Indeed, the trial court complied with the
second sentence of Rule 23.3 by submitting a verdict form for attempted provocation
manslaughter. See Ariz. R. Crim. P. 23.3 (“The defendant may not be found guilty of any
offense for which no form of verdict has been submitted to the jury.”).




                                             6
                                      STATE V. LUA
                                   Opinion of the Court

¶17            Nor is the Sixth Amendment violated where, as here, the defendant “had
actual notice of the charge, from either the indictment or other sources,” and is therefore
not “actually prejudiced by a new or amended charge.” State v. Freeney, 223 Ariz. 110,
115 ¶ 29, 219 P.3d 1039, 1044 (2009) (emphasis added); see also id. at ¶¶ 28, 30 (finding no
Sixth Amendment violation when defendant “never suggested that the amendment
affected, let alone prejudiced, his litigation strategy, trial preparation, examination of
witnesses, or argument” and did not “request a trial continuance or recess”); cf. State v.
Hutton, 143 Ariz. 386, 389–90, 694 P.2d 216, 219–20 (1985) (holding that a defendant on
trial for first-degree murder is on notice that he may be convicted of provocation
manslaughter).

¶18            This case differs markedly from Freeney, in which the state’s amendment
during trial “changed the nature of the offense and therefore violated Rule 13.5(b),” a rule
that has not been argued in this case at any level. 223 Ariz. at 111 ¶ 2, 219 P.3d at 1040.
Although provocation manslaughter requires proof of the additional circumstance set
forth in § 13-1103(A)(2), it does not substantively change the nature of second-degree
murder in a way that requires it to be separately charged, either initially or by
amendment. Given Arizona’s statutory history and our case law, defendants charged
with second-degree murder have sufficient notice that they may be convicted of
provocation manslaughter when the evidence justifies an instruction on that separate,
less serious offense.

                                             D.

¶19            Having concluded that provocation manslaughter is not a lesser-included
offense of second-degree murder, we further observe that our holding in State v. LeBlanc
does not apply if a provocation-manslaughter instruction is given. 186 Ariz. 437, 438, 440,
924 P.2d 441, 442, 444 (1996) (stating that a “jury may deliberate on a lesser offense if it
either (1) finds the defendant not guilty on the greater charge, or (2) after reasonable
efforts cannot agree whether to acquit or convict on that charge,” and directing trial
courts to give this “’reasonable efforts’ instruction in every criminal case involving
lesser-included offenses”); cf. State v. Eddington, 226 Ariz. 72, 81–82 ¶ 31, 244 P.3d 76, 85–
86 (App. 2010) (noting the “logically compelling” argument that “a jury literally
following the LeBlanc instruction would never reach the issue of adequate provocation in
order to find a defendant guilty of manslaughter under § 13-1103(A)(2) rather than
second-degree murder,” assuming the former is a lesser-included offense of the latter).
But because we now clarify that a provocation-manslaughter instruction is appropriate
in a second-degree murder trial if supported by the evidence, to alleviate future
confusion, we briefly address the form the instruction should take.


                                              7
                                     STATE V. LUA
                                  Opinion of the Court

¶20         In a second-degree murder prosecution, when there is evidence that the
homicide was committed upon a sudden quarrel or heat of passion resulting from
adequate provocation by the victim, the following instruction should be given:

      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. If you unanimously find that the homicide was
      committed upon a sudden quarrel or heat of passion resulting from
      adequate provocation by the victim, then you must find the defendant
      guilty of manslaughter rather than second-degree murder.

RAJI (Standard Criminal) 11.04 (3d ed.). This instruction ensures that the jury will
consider whether the circumstance differentiating second-degree murder from
provocation manslaughter is present, thus justifying a finding of guilt on the less serious
offense. Id. cmt.

                                           III.

¶21          For the foregoing reasons, we affirm Lua’s convictions and sentences for
two counts of attempted manslaughter. Although we agree with the result reached by
the court of appeals, we disagree with some of its reasoning and therefore vacate its
opinion.




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