                             NOTICE: NOT FOR PUBLICATION.
      UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
             LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                       IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                          STATE OF ARIZONA, Appellee,

                                           v.

                 ANTHONY EDWARD RAIMONDE, Appellant.

                                No. 1 CA-CR 13-0378
                                 FILED 12-23-2014


              Appeal from the Superior Court in Maricopa County
                           No. CR2011-145256-001
                   The Honorable Dawn M. Bergin, Judge

                            AFFIRMED AS MODIFIED


                                      COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Stephen Whelihan
Counsel for Appellant
                              STATE v. RAIMONDE
                               Decision of the Court



                          MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which Presiding
Judge Margaret H. Downie and Judge Samuel A. Thumma joined.


G O U L D,

¶1            Anthony Edward Raimonde appeals his convictions and sentences
for second-degree murder and misconduct involving weapons. For the reasons
that follow, we affirm his convictions and sentences but vacate the court’s order
requiring Raimonde to pay the fee for DNA testing.

                    FACTS AND PROCEDURAL HISTORY1

¶2            Early on a Saturday night, C.C. and A.R. went to a bar in Mesa to
watch a sporting event. The two saw Raimonde, whom they both had known for
years, and the three men drank there for about an hour before C.C. drove them to
a bar in Scottsdale. On the way there, Raimonde learned that A.R.’s handgun
was under the front passenger seat.

¶3           After an hour of drinking at the Scottsdale bar, the trio went to
another bar in Scottsdale. Sometime after midnight, Raimonde and C.C. started
arguing, and C.C. pushed Raimonde, who lost his balance and fell to the ground.
A bouncer told them to leave, although they had shaken hands and told the
bouncer they were “cool.” All three left the bar together.

¶4            On the ride home, Raimonde was angry, he told C.C. he felt
“disrespected” and “punked.” When C.C. stopped at a convenience store,
Raimonde started arguing with C.C. again. Raimonde punched C.C. in the face,
then took off his shirt and demanded they fight. C.C. and Raimonde got out of
the car and started fighting.

¶5           When A.R. realized that C.C. was overpowering Raimonde, who
was much smaller, A.R. got out of the car and pulled C.C. off Raimonde, and
stood beside C.C. at the rear, driver’s side of the car. Raimonde ran to the
passenger side of the car, pulled A.R.’s handgun out from underneath the front

1      We view the trial evidence in the light most favorable to sustaining the
jury’s verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App.
2007).



                                          2
                              STATE v. RAIMONDE
                               Decision of the Court

seat, and pointed it at C.C. Putting his hands up and stepping back, C.C. said,
“No.” Raimonde pulled the trigger, shooting C.C. in the head and killing him.
Raimonde fled the scene and hid the gun in a planter at a nearby restaurant.

¶6               At trial, Raimonde claimed that C.C. was “still coming after [him]”
after A.R. had pulled C.C. off him, and said he shot C.C. because he was “scared
for [his] life.”

¶7            The court instructed the jury on heat-of-passion manslaughter as a
lesser-included offense of second-degree murder as well as the justifications of
self-defense and use of force in crime prevention, specifically aggravated assault
resulting in serious physical injury. The jury convicted Raimonde of the charged
offenses of second-degree murder and misconduct involving weapons. The jury
found harm to the victim’s family as an aggravating circumstance for the second-
degree murder conviction and found the weapons offense to be a dangerous
offense. Based on Raimonde’s admissions at trial, the court found Raimonde had
two prior historical felony convictions and was on probation at the time of the
offense. The court sentenced Raimonde to 19 years, a term greater than the
presumptive, for the second degree murder conviction and a concurrent term of
8 years, the maximum term, for the weapons conviction. Raimonde filed a
timely notice of appeal, and we have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A).

                                  DISCUSSION

I.     Instruction on Lesser Included Offenses

¶8           Raimonde argues first that the court fundamentally erred in failing
to sua sponte instruct the jury on the lesser-included offenses of reckless
manslaughter and negligent homicide, based on his honest, although
unreasonable, belief in the need to use deadly force.               As Raimonde
acknowledges, because he did not request instructions on reckless manslaughter
and negligent homicide, we review for fundamental error only. See State v.
Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). Raimonde thus bears
the burden of demonstrating that the court’s failure to sua sponte give these
instructions was error, that the error was fundamental, and that he was
prejudiced thereby. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.

¶9            Raimonde has not shown that the court erred in failing to sua sponte
instruct the jury on reckless manslaughter and negligent homicide. Raimonde
does not challenge the justification instructions that the jury rejected by returning
guilty verdicts. Instead, he argues the court erred in failing to sua sponte instruct
the jury on an “imperfect justification” theory.



                                         3
                              STATE v. RAIMONDE
                               Decision of the Court

¶10            Arizona does not recognize the defense of “imperfect justification”
which is an honest but unreasonable belief that force was necessary. See State v.
King, 225 Ariz. 87, 90, ¶¶ 11-12, 235 P.3d 240, 243 (2010) (noting that A.R.S. § 13-
404 “adopts a purely objective standard”); see also A.R.S. § 13-404(A) (2014);2
A.R.S. § 13-405(A)(2); A.R.S. § 13-411(A). Moreover, our supreme court long ago
expressly rejected the argument that an honest but unreasonable belief in the
necessity for use of force reduces the degree of the offense. State v. Tuzon, 118
Ariz. 205, 209, 575 P.2d 1231, 1235 (1978) (“The standard is a reasonable person’s
belief, not the unreasonable, even if honest, belief of the accused.”). We are not
persuaded by Raimonde’s argument that this holding is no longer good law. The
current justification statutes specify an objective standard of reasonableness, see
King, 225 Ariz. at 90, ¶ 11, 235 P.3d at 243, making Tuzon equally applicable to
the current statutes. See A.R.S. § 13-404(A), A.R.S. § 13-405(A)(2), A.R.S. § 13-
411(A).

¶11            Nor are we persuaded otherwise by language in the appellate court
cases relied upon by Raimonde, Korzep v. Superior Court, 172 Ariz. 534, 838 P.2d
1295 (App. 1991), and State v. Govan, 154 Ariz. 611, 744 P.2d 712 (App. 1987).
The suggestion in Korzep that “consistent with MPC [Model Penal Code] § 3.09, a
defendant’s honest but unreasonable belief becomes a mens rea issue which may
lead the trier of fact to acquit or convict of a lesser degree of the charged crime,
i.e., a defendant’s reckless or negligent use of force may lead to conviction for
reckless or negligent homicide rather than for intentional homicide,” is dictum.
See Korzep, 172 Ariz. at 540, 838 P.2d at 1301. We decline to rely on this language
for the broad proposition that an honest but unreasonable belief that force is
required always warrants instructions on reckless manslaughter and negligent
homicide.3 Govan does not stand for the proposition that the court must instruct

2    We cite to the current versions of the statutes, because they have not been
amended in material part since the date of this offense, August 28, 2011.

3      Moreover, in light of the amendment to A.R.S. § 13-411(C), after Korzep
was decided, eliminating the subjective component to this defense, and the
reliance of Model Penal Code § 3.09 on a purely subjective justification, we
decline to rely on this suggestion, even if it were not dictum. Compare A.R.S. §
13-411(C) (1991) (“[A] person is presumed to be acting reasonably for the
purposes of this section if he is acting to prevent the commission of any of the
offenses listed in subsection A of this section.”) with A.R.S. § 13-411(C) (2011)
(“A person is presumed to be acting reasonably for the purposes of this section if
the person is acting to prevent what the person reasonably believes is the imminent or
actual commission of any of the offenses listed in subsection A of this section.”)
(Emphasis added).



                                          4
                              STATE v. RAIMONDE
                               Decision of the Court

on reckless manslaughter whenever the defendant acts on an honest but
unreasonable belief. See Govan, 154 Ariz. at 615, 744 P.2d 716 (stating that where
the evidence supports the instruction the court can instruct the jury on the lesser-
included manslaughter offense even though defendant has claimed self defense).
We accordingly reject Raimonde’s claim that a trial court must instruct on
reckless manslaughter and negligent homicide as lesser-included offenses of
second-degree murder whenever a defendant presents evidence of an honest, yet
unreasonable, belief that the use of force is necessary for purposes of a
justification defense.

¶12           Additionally, the evidence did not support instructions on reckless
manslaughter and negligent homicide. A court is required to instruct and
provide verdict forms only on “necessarily included offenses.” See State v. Wall,
212 Ariz. 1, 3, ¶¶ 13-14, 126 P.3d 148, 150 (2006); Ariz. R. Crim. P. 23.3 (stating
that “[f]orms of verdict shall be submitted to the jury for all offenses necessarily
included in the offense charged”). “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.’” State v. Gipson, 229 Ariz. 484, 486, ¶ 14, n.2, 277 P.3d 189, 191 n.2 (2012)
(quoting Wall, 212 Ariz. at 3, ¶ 14, 126 P.3d at 150). “To determine whether there
is sufficient evidence to require the giving of a lesser included offense
instruction, the test is whether the jury could rationally fail to find the
distinguishing element of the greater offense.” State v. Jackson, 186 Ariz. 20, 27,
918 P.2d 1038, 1045 (1996) (quoting State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621,
625 (1995)); see also State v. Bearup, 221 Ariz. 163, 168, ¶ 23, 211 P.3d 684, 689
(2009).

¶13           On this record, the jury could not have rationally failed to find that
Raimonde shot C.C. point-blank in the head intentionally, knowingly, or at a
minimum recklessly, under circumstances which showed an extreme
indifference to human life. Compare A.R.S. § 13-1104(A) (setting forth mental
states for second-degree murder) and A.R.S. § 13-1103(A)(2) (requiring one of
those mental states for commission of provocation manslaughter) with A.R.S. §
13-1103(A)(1) (defining so-called reckless manslaughter as “[r]ecklessly causing
the death of another person”) and A.R.S. § 13-1102(A) (a person commits
negligent homicide “if with criminal negligence the person causes the death of
another person”). Raimonde acknowledged that he raised the gun, pointed the
gun at C.C., and pulled the trigger. He claimed that he shot the victim because
he was in fear of his life. Raimonde’s own testimony accordingly demonstrated
that he shot the victim intentionally. There was no evidence in the record from
which a reasonable jury could conclude that Raimonde acted only recklessly or
negligently. We accordingly conclude that the trial court did not err, much less
fundamentally err to Raimonde’s prejudice, in failing to sua sponte instruct on


                                          5
                              STATE v. RAIMONDE
                               Decision of the Court

reckless manslaughter and negligent homicide as lesser included offenses of the
charged crime of second-degree murder.

II.   Provocation Manslaughter Instruction

¶14           Raimonde also argues that the court fundamentally erred in
instructing the jury on second-degree murder and provocation manslaughter.
He contends the court should have instructed the jury that the State had the
burden to prove beyond a reasonable doubt the absence of the special
circumstance distinguishing the lesser offense, that is, that the murder was not
committed “upon a sudden quarrel or heat of passion resulting from adequate
provocation by the victim,” to convict Raimonde of second-degree murder.

¶15           During discussion of the proposed instructions on second-degree
murder and provocation manslaughter, the prosecutor noted that he had no
objection; Raimonde, however, did not ask for a separate instruction on the
burden of proving the absence of the special circumstance, or object to the jury
instruction that he now claims was misleading. Raimonde accordingly bears the
burden of demonstrating that there was error, and that the error was both
fundamental and prejudicial. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.

¶16           We review de novo whether the instructions given properly state the
law. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). In doing so,
we examine the instructions in their entirety to determine if they accurately and
adequately reflect the law applicable to the case. State v. Hoskins, 199 Ariz. 127,
145, ¶ 75, 14 P.3d 997, 1015 (2000); State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16, 961
P.2d 1006, 1009 (1998). The instructions must not mislead the jury. State v.
Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). Closing arguments,
however, may clarify and even cure deficient jury instructions. See State v. Milke,
177 Ariz. 118, 122-23, 865 P.2d 779, 783-84 (1993).

¶17           Raimonde has failed to meet his burden to demonstrate that the
court erred, much less fundamentally erred to his prejudice, in failing to include
an instruction on the burden of proving the special adequate provocation
circumstance. Manslaughter committed in the heat of passion is a lesser
included offense of second-degree murder. See Gipson, 229 Ariz. at 485, ¶ 4, 487,
¶ 17, 277 P.3d at 190, 192. Heat-of-passion manslaughter admittedly is an
unusual type of lesser included offense in that “[i]nstead of deleting an element
of the greater offense, it specifies a different circumstance as a requirement to
find the lesser offense,” that is, the commission of second-degree murder “upon
a sudden quarrel or heat of passion resulting from adequate provocation by the
victim.” Peak v. Acuna, 203 Ariz. 83, 84, ¶¶ 5-6, 50 P.3d 833 (2002); A.R.S. § 13-
1103(A)(2). “Unlike a true element of a charged offense, it is not the State’s



                                         6
                              STATE v. RAIMONDE
                               Decision of the Court

burden to prove ‘a sudden quarrel or heat of passion resulting from adequate
provocation by the victim.’ The existence of this ‘different circumstance’ is a
question of fact for the jury to determine based on the evidence presented.” State
v. Lua, 235 Ariz. 261, 263, ¶ 9, 330 P.3d 1018, 1020 (App. 2014) (internal citations
omitted).

¶18           The instructions the court gave accurately and adequately reflected
the governing law and were not misleading. The court instructed the jury that
the State had the burden of proving each element of the offense beyond a
reasonable doubt. The court also instructed the jury that it could convict
Raimonde of second-degree murder only if it found beyond a reasonable doubt
that “the homicide was not committed upon a sudden quarrel or heat of passion
resulting from adequate provocation by the victim.” The court further instructed
the jury in accordance with A.R.S. § 13-115(B) that if it determined that
Raimonde was guilty of either second-degree murder or manslaughter, “but you
have a reasonable doubt as to which it was, you must find the Defendant guilty
of manslaughter.” See A.R.S. § 13-115(B) (“When it appears that a defendant has
committed a crime or public offense, and there is reasonable ground of doubt in
which of two or more degrees he is guilty, he may be convicted of the lowest of
such degrees only.”)

¶19            These instructions, read in their entirety, effectively informed the
jury that it could not convict Raimonde of second-degree murder unless the State
had proved beyond a reasonable doubt that the murder had not been committed
“upon a sudden quarrel or heat of passion resulting from adequate provocation
by the victim.” Moreover, the State’s closing argument suggested that the State
believed it had the burden, and undertook the burden, of proving the absence of
the special circumstance in order to convict Raimonde of second-degree murder.
The prosecutor acknowledged in settling jury instructions that it was his burden
to prove the absence of this special circumstance to convict Raimonde of second-
degree murder. In closing, the prosecutor presented an extensive argument on
how the evidence proved that the homicide did not result from a sudden quarrel
or heat of passion resulting from adequate provocation. Defense counsel in turn
argued that the beating Raimonde suffered at the hands of C.C. immediately
before the shooting constituted adequate provocation, and Raimonde’s loss of
control reduced the offense to manslaughter.

¶20            Because the court’s instructions, considered in their entirety,
correctly stated that the State had the burden to prove the absence of the “special
circumstance” in order to convict Raimonde of the more serious offense of
second-degree murder, we do not address the State’s argument that the existence
of this “special circumstance” is an affirmative defense reducing second-degree



                                         7
                             STATE v. RAIMONDE
                              Decision of the Court

murder to manslaughter, on which the defendant has the burden of proof. Cf.
Lua, 235 Ariz. at 263, ¶ 9, 330 P.3d at 1020.

¶21          For all of these reasons, we conclude that the court did not err,
much less fundamentally err to Raimonde’s prejudice, by instructing the jury as
it did. The instructions in this case adequately informed the jury of the
governing law, and the court did not fundamentally err in giving them.

III.   DNA Fee

¶22          Raimonde also argues, and the State concedes, that the court erred
in ordering Raimonde to pay for DNA testing. We agree. A.R.S. § 13-610 does
not authorize such an order. State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35,
39 (App. 2013).

                                 CONCLUSION

¶23          For the foregoing reasons, we affirm Raimonde’s convictions and
sentences, but vacate the court order requiring Raimonde to pay for DNA
testing.




                                     :gsh




                                            8
