                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                   CHRISTEPHER E. LUA, Appellant.

                         No. 1 CA-CR 12-0819
                          FILED 07-29-2014


           Appeal from the Superior Court in Mohave County
                        No. S8015CR20100834
                The Honorable Steven F. Conn, Judge

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant



                              OPINION

Judge Margaret H. Downie delivered the opinion of the Court, in which
Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.
                              STATE v. LUA
                            Opinion of the Court

D O W N I E, Judge:

¶1             Christepher Lua appeals his convictions and sentences for
attempted manslaughter, aggravated assault, misconduct involving
weapons, and assisting a criminal street gang. He raises several issues, all
but one of which we resolve in a separate memorandum decision
pursuant to Arizona Rule of Criminal Procedure 31.26. In this opinion, we
address Lua’s contention he was improperly convicted of a crime that is
not a lesser-included offense of the charged offense. For reasons that
follow, we hold that so-called “provocation manslaughter,” see A.R.S.
§ 13-1103(A)(2), is a lesser-included offense of second degree murder. We
therefore affirm Lua’s attempted manslaughter convictions.

                 FACTS AND PROCEDURAL HISTORY1

¶2            D.G. and D.C. were leaving a convenience store when Lua
and other men gathered around a nearby car began verbally taunting
them. Events progressed quickly to a physical altercation. D.G. and D.C.
returned to their vehicle. After hearing someone yell “coward,” D.C.
gestured as if he were grabbing something from his car and ran back
toward the other vehicle, where Lua was now in the driver’s seat. D.C.’s
hand was behind his back as he approached.               When D.C. was
approximately two feet away, Lua shot him. D.G. then ran toward Lua
and began grabbing his arm and hitting him. Lua shot D.G. before
fleeing. During a police interview, Lua admitted shooting D.C. several
times but said that he did so because he believed D.C. had a gun and “was
going to shoot us.”

¶3             Lua was originally charged with two counts of attempted
first degree murder (counts 1 and 2); two counts of aggravated assault
(counts 3 and 4); and one count of assisting a criminal street gang (count
5). His first trial ended in a mistrial. The State subsequently charged Lua
by separate indictment with one count of misconduct involving weapons
arising from the same incident and successfully moved to join the charges
under Rule 13.3. The trial court also granted the State’s unopposed
motion to amend counts 1 and 2 to reduce the charges to attempted
second degree murder.



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).



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                             STATE v. LUA
                           Opinion of the Court

¶4            At the second trial, the court instructed the jury over Lua’s
objection regarding the offense of attempted manslaughter upon a sudden
quarrel or heat of passion resulting from adequate provocation by the
victim (“provocation manslaughter”), which the court ruled was a lesser-
included offense of attempted second degree murder. The jury found Lua
guilty of two counts of attempted manslaughter, two counts of aggravated
assault, one count of assisting a criminal street gang, and one count of
misconduct involving weapons. The court sentenced him to concurrent
and consecutive prison terms.

¶5           Lua timely appealed. We have jurisdiction under Article VI,
Section 9, of the Arizona Constitution and A.R.S. §§ 12–120.21(A)(1),
13–4031, and –4033(A)(1).

                              DISCUSSION

¶6             We review de novo whether a crime is a lesser-included
offense of a charged offense.2 State v. Cheramie, 218 Ariz. 447, 448, ¶¶ 6-8,
189 P.3d 374, 375 (2008). Under the “elements test,” a lesser-included
offense is one that is comprised solely of some, but not all, elements of the
greater offense, such that it is impossible to commit the charged crime
without also committing the lesser one. State v. Hines, 232 Ariz. 607, 610, ¶
10, 307 P.3d 1034, 1037 (App. 2013).

¶7          The trial court instructed jurors that the offense of attempted
second degree murder includes “the less serious crime of Attempted
Manslaughter.” It further instructed:

      The State may prove Attempted Manslaughter, but fail to
      prove the more serious crime of Attempted Second Degree
      Murder. You are permitted to find the Defendant guilty of
      the less serious crime of Attempted Manslaughter if:

      1. You determine unanimously that the evidence does not
      show beyond a reasonable doubt that the Defendant is guilty

2      The State contends our review is limited to fundamental error
because Lua’s trial objections were inadequate to trigger harmless error
review. We disagree. Lua objected to the lesser-included offense
instruction based on “the interjection of the extra element,” which the trial
court clearly understood as questioning whether provocation
manslaughter is a lesser-included offense of second degree murder.




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                             STATE v. LUA
                           Opinion of the Court

      of Attempted Second Degree Murder or if after reasonable
      efforts you cannot agree unanimously whether to acquit or
      convict on that charge; AND

      2. You determine unanimously that the evidence does show
      beyond a reasonable doubt that the Defendant is guilty of
      Attempted Manslaughter.

      The difference between Attempted Second Degree Murder
      and Attempted Manslaughter is that Attempted
      Manslaughter requires that the Defendant attempted to
      commit the crime of Manslaughter rather than Second
      Degree Murder.

      The crime of Manslaughter has the following elements:

      1. The Defendant committed Second Degree Murder; AND

      2. The Defendant did so upon a sudden quarrel or heat of
      passion resulting from adequate provocation by the victim.

The court also instructed jurors regarding second degree murder, stating:

      The crime of Second Degree Murder has the following
      elements:

      1. The Defendant caused the death of another person; AND

      2. The Defendant intended or knew that his conduct would
         cause death.

Lua does not challenge the content of these jury instructions; we therefore
do not address their substantive adequacy or accuracy.

¶8           According to Lua, Peak v. Acuna, 203 Ariz. 83, 84-85, ¶ 6, 50
P.3d 833, 834-35 (2002), stands for the proposition that provocation
manslaughter is not a lesser-included offense of second degree murder.
We disagree. The defendant in Peak was charged with the first degree
murder of her husband. 203 Ariz. at 84, ¶ 2, 50 P.3d at 834. At trial, jurors
in Peak were instructed regarding first degree murder, second degree
murder, and provocation manslaughter. Id. The jury acquitted Peak of
first degree murder and provocation manslaughter but convicted her of
second degree murder. Id. The superior court ordered a new trial, and
the State sought special action review. Id. at ¶¶ 3-4. The Arizona



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                              STATE v. LUA
                            Opinion of the Court

Supreme Court rejected Peak’s contention “that because [provocation]
manslaughter is a lesser-included offense of second-degree murder, her
acquittal of manslaughter bars the state from retrying her for second-
degree murder.” Id. at ¶ 5. The court stated:

       [T]he relevant statute in the present case [A.R.S.
       § 13-1103(A)(2)] is unusual. Instead of deleting an element
       of the greater offense, it specifies a different circumstance as
       a requirement to find the lesser offense . . . .

Id. at ¶ 6. The court explained:

       Defendant’s acquittal of manslaughter does not necessarily
       mean that she did not commit second-degree murder. It
       might well have meant that the jury found Defendant had
       not acted after a sudden quarrel or in the heat of passion.
       This is quite likely, given the fact that the victim was shot in
       his sleep and that the jury convicted on the second-degree
       murder charge.

Id. at 84-85, ¶ 6, 50 P.3d at 834-35. The court ruled that double jeopardy
principles did not bar retrying Peak for second degree murder. Id.

¶9             Peak did not suggest, let alone hold, that the “different
circumstance” existing for provocation manslaughter is an element of the
offense over and above those necessary to prove second degree murder.
Black’s Law Dictionary 597 (9th ed. 2009) defines “elements of crime” as
“[t]he constituent parts of a crime — usu. consisting of the actus reus,
mens rea, and causation — that the prosecution must prove to sustain a
conviction.” Unlike a true element of a charged offense, it is not the
State’s burden to prove “a sudden quarrel or heat of passion resulting
from adequate provocation by the victim.” A.R.S. § 13-1103(A)(2). The
existence of this “different circumstance,” Peak, 203 Ariz. at 84, ¶ 6, 50 P.3d
at 834, is a question of fact for the jury to determine based on the evidence
presented, cf. State v. Young, 192 Ariz. 303, 307, ¶¶ 13, 16, 965 P.2d 37, 41
(App. 1998) (under statute making exception for firearms in “permanently
inoperable condition,” whether a given weapon was permanently
inoperable is a question of fact. “Operability of the weapon is not an
element of the offense of knowingly possessing a prohibited weapon.”).

¶10          In State v. Kamai, 184 Ariz. 620, 911 P.2d 626 (App. 1995), we
considered whether unlawful use of a means of transportation is a lesser-
included offense of theft of an automobile.            The statute under
consideration stated that unlawful use of a means of transportation occurs


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                             STATE v. LUA
                           Opinion of the Court

when, “without intent permanently to deprive,” a person knowingly takes
unauthorized control over another’s means of transportation. 184 Ariz. at
622, 911 P.2d at 628. The phrase “without intent permanently to deprive”
did not appear, though, in the relevant theft statute, which prohibited
controlling property of another “with the intent to deprive him of such
property.” Id. This Court held that the phrase “without intent to
permanently deprive” in the unlawful use statute did not “describe an
element of the crime which the state must prove.” Id. Instead, it simply
distinguished unlawful use from the offense of auto theft. Id. By way of
analogy, we noted that first degree murder is homicide “with
premeditation.” Id. at 623, 911 P.2d at 629. Second-degree murder, a
lesser-included offense, is homicide “without premeditation.”         Id.
However, “[p]roper jury instructions on second-degree murder do not list
‘without premeditation’ as an element of the offense that the state must
prove.” Id.

¶11         Similarly, a “sudden quarrel or heat of passion resulting
from adequate provocation by the victim” distinguishes the offense of
provocation manslaughter from second degree murder. As in Kamai, the
phrase does not “describe an element of the crime which the state must
prove.” Id. at 622, 911 P.2d at 628. Provocation manslaughter is
comprised solely of elements of the greater offense of second degree
murder.

¶12           Lua does not contend the trial evidence was insufficient for
jurors to find the “different circumstance” of “sudden quarrel or heat of
passion resulting from adequate provocation by the victim.” A.R.S.
§ 13-1103(A)(2); see Kamai, 184 Ariz. at 622, 911 P.2d at 628 (“The propriety
of giving a jury instruction on a lesser included offense depends upon
whether the offense is a lesser included offense of the crime charged and
whether the evidence supports the giving of the instruction.”). Under the
facts of this case, the trial court properly instructed the jury regarding
attempted provocation manslaughter as a lesser-included offense of
attempted second degree murder.




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                          STATE v. LUA
                        Opinion of the Court

                          CONCLUSION

¶13           For the reasons stated, we affirm Lua’s convictions and
sentences for two counts of attempted manslaughter.




                             :gsh




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