                          SUPREME COURT OF ARIZONA
                                  En Banc

STATE OF ARIZONA,                 )          Arizona Supreme Court
                                  )          No. CR-10-0085-AP
                        Appellee, )
                                  )          Maricopa County
                 v.               )          Superior Court
                                  )          No. CR2008-144114-001 DT
MANUEL OVANTE, JR.,               )
                                  )
                       Appellant. )
                                  )          O P I N I O N
__________________________________)

         Appeal from the Superior Court in Maricopa County
             The Honorable Warren J. Granville, Judge

                       AFFIRMED AS AMENDED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                               Phoenix
     By   Kent E. Cattani, Chief Counsel
          Criminal Appeals/Capital Litigation Section
          Jeffrey A. Zick, Assistant Attorney General
          Ginger Jarvis, Assistant Attorney General
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER           Phoenix
     By   Thomas K. Baird, Deputy Public Defender
          Tennie B. Martin, Deputy Public Defender
Attorneys for Manuel Ovante, Jr.
________________________________________________________________

B A L E S, Vice Chief Justice

¶1         This    automatic     appeal   concerns   Manuel      Ovante,     Jr.’s

2010   death   sentence    for   murdering   Damien    Vickers.         We    have

jurisdiction      under   Article   6,    Section    5(3)   of    the   Arizona

Constitution and A.R.S. §§ 13–4031 and -4033(A)(1) (2010).

                     FACTS AND PROCEDURAL BACKGROUND

¶2         On June 11, 2008, Ovante and three friends drove to
Jordan      Trujillo’s       house,      hoping      she        would     give      them

methamphetamine.            Trujillo      refused,       but      Ovante        returned

repeatedly that day attempting to obtain drugs.                    When Ovante and

his   friends      entered     Trujillo’s     home       the     last     time,     they

encountered Trujillo, who was asleep on a living room couch,

Damien   Vickers,     and     Gabriel    Valenzuela.            Without    expressing

anger or distress, Ovante suddenly pulled out a gun.

¶3           Ovante pointed the gun at Valenzuela and yelled “[W]ho

left the safety on?”           Ovante released the safety, pointed the

gun again at Valenzuela, and told him not to move.                       He then shot

the sleeping Trujillo twice in the head and began shooting at

Valenzuela     and   Vickers,     wounding        both     of    them.          Trujillo

appeared to die almost instantly, but Vickers begged for help

and Valenzuela called the police.

¶4           After the shooting, Ovante and two of his friends got

into a truck and tried to convince the third friend, Nathan

Duran, to leave Vickers behind.               Duran instead dragged Vickers

into the back of the truck.                Vickers was bleeding from his

bullet wounds, holding onto Duran, and asking to be taken to a

hospital.     Ovante refused to do so.             After Vickers died in the

truck,   Ovante      decided     to     abandon    his     body     in     an     alley.

Valenzuela, who remained in the apartment, survived the attack.

¶5           The   State     charged    Ovante    with     two    counts    of     first

degree murder and one count of aggravated assault.                         The State

                                          2
sought the death penalty, alleging as aggravating circumstances

that Ovante had been previously convicted of a serious offense

(the    aggravated       assault    of    Valenzuela),      see    A.R.S.   §   13-

751(F)(2) (2008), and had been convicted of one or more other

homicides committed during the commission of the offense, see

id. § 13-751(F)(8).             Ovante pleaded guilty to all charges and

admitted both aggravating circumstances.

¶6          At    the    conclusion       of    the   penalty   phase,    the   jury

determined Ovante should be sentenced to life in prison for the

murder of Trujillo and sentenced to death for Vickers’ murder.

Accordingly, the trial court entered sentences of life with a

possibility      of    parole    after    twenty-five     years    for   Trujillo’s

murder, death for Vickers’ murder, and a mitigated term of six

years in prison for the aggravated assault on Valenzuela.

                                    DISCUSSION

A.     Ability to Challenge the Guilty Pleas on Appeal

¶7          The       State   argues     that   Ovante    cannot   challenge     the

validity of his guilty pleas as part of this Court’s mandatory

direct review in a capital case, and that he, like a noncapital

defendant seeking to challenge a guilty plea, must instead seek

post-conviction relief under Rule 32.                 We reject this argument.

¶8          Our criminal rules expressly provide that a defendant

who pleads guilty in a noncapital case waives direct appeal and

can seek review only by petitioning for post-conviction relief

                                           3
under Rule 32.         Ariz. R. Crim. P. 17.1(e) see also id. 17.2(e)

(requiring     court    to    advise   defendant        that    guilty    plea    will

“waive   the    right    to    have    the    appellate        courts    review    the

proceedings by way of direct appeal”).

¶9           The rules addressing capital cases, in contrast, do

not distinguish between capital defendants who plead and those

who are convicted after trial.               Instead, if a death sentence is

imposed, the superior court clerk files an automatic notice of

appeal that suffices “with respect to all judgments entered and

sentences imposed in the case.”               Id. 31.2(b).       Thus, regardless

of any plea, this Court automatically reviews a death sentence.

¶10          Accepting the State’s argument that any judgment of

guilt entered as result of a plea can only be reviewed in a Rule

32 proceeding would unnecessarily bifurcate appellate review in

capital cases.     The State conceded this point at oral argument.

In death penalty cases, consistent with Rule 31.2(b), this Court

will review the validity of a plea on direct appeal, before it

reviews the capital sentence.

B.    Adequate Factual Basis for the Guilty Pleas

¶11          Ovante contends that because he did not understand the

difference     between        first    and     second     degree        murder,   his

statements at the plea hearing did not establish premeditation,

and thus there was not an adequate factual basis for his first

degree murder guilty pleas.

                                         4
¶12       We review the trial court’s acceptance of a guilty

plea for abuse of discretion.           State v. Djerf, 191 Ariz. 583,

594 ¶ 35, 959 P.2d 1274, 1285 (1998).            Before accepting a plea,

a court must establish a factual basis for each element of the

crime.   Ariz. R. Crim. P.         17.3; State v. Carr, 112 Ariz. 453,

455, 543 P.2d 441, 443 (1975).               This Court may examine the

entire record on appeal but must vacate the plea if the record

does not support “strong evidence of guilt” for every element.

State v. Wallace, 151 Ariz. 362, 365, 728 P.2d 232, 235 (1986)

(quoting State v. Hamilton, 142 Ariz. 91, 93, 688 P.2d 983, 985

(1984)); State v. Diaz, 121 Ariz. 16, 18, 588 P.2d 309, 311

(1978) (holding that a reviewing court can consider the record,

and not only plea colloquy, to determine if there is a factual

basis for a plea).

¶13       To   support      a    plea   to   first    degree,     premeditated

murder, a court must find that facts support a conclusion that

the accused (1) intended to cause the death of another, (2)

caused the death of another, and (3) acted with premeditation.

See A.R.S. § 13-1105(A)(1) (2008).             “Premeditation means that

the defendant acts with either the intention or the knowledge

that he will kill another human being, when such intention or

knowledge precedes the killing by any length of time to permit

reflection.”   A.R.S. § 13-1101 (2008).

¶14       There   is   no       prescribed   period   of   time    which   must

                                        5
elapse between the formation of the intent to kill and the act

of     killing,    but    the     record      must      at    least   circumstantially

support that a defendant considered his act and did not merely

react to an instant quarrel or in the heat of passion.                               State v.

Thompson, 204 Ariz. 471, 479 ¶¶ 31-32, 65 P.3d 420, 428 (2003).

“[T]hreats made by the defendant to the victim, a pattern of

escalating violence between the defendant and the victim, or the

acquisition of a weapon by the defendant before the killing” are

circumstances that can establish premeditation.                       Id. at ¶ 31.

¶15          Ovante argues that the record is ambiguous or leaves

to    “guesswork”    whether       he    actually        reflected      before       killing.

But he acknowledged in the plea colloquy that he had given “some

thought to [killing Trujillo] before [he] committed the act.”

Ovante then agreed with defense counsel’s statement that, if the

case    proceeded    to    trial,       the   evidence        would   show      Ovante    had

pointed the gun at Valenzuela but had to stop and release the

safety before he could actually shoot.                          When the judge asked

whether Ovante had given some thought to murdering the second

victim, Vickers, Ovante took a moment to confer with his counsel

before    answering,       “Yes.”        Evidence        presented      in     the    penalty

phase corroborated Ovante’s admissions.

¶16          Circumstantial             evidence         further      shows          Ovante’s

premeditation.           Ovante    carried        a    loaded   gun     into    Trujillo’s

house,    paused    to     disengage       the        gun’s   safety,    targeted        only

                                              6
persons who had not accompanied him, and shot each murder victim

multiple   times.       Combined    with        his    statements       at   the     plea

hearing,   this    evidence     amply     supports      a   finding      that    Ovante

reflected on the killings before pulling the trigger.

¶17         Ovante     might      not      have        fully      understood         that

premeditation      distinguishes        first     degree       murder   from     second

degree murder, compare A.R.S § 13-1104(A) (2008) (second degree

murder does not require premeditation), with id. § 13-1105(A)(1)

(first degree murder is premeditated), but his understanding of

the legal terminology is not determinative.                        “Arizona courts

have consistently held that it is sufficient that the court, not

the   defendant,     satisfy    itself     of    the    factual     basis      for    the

plea.”     State v. Herndon, 109 Ariz. 147, 148, 506 P.2d 1041,

1042 (1973).       The trial court was not required to explain the

distinction between first and second degree murder and was free

to accept the guilty plea if it was satisfied that the record

established premeditation.         See State v. DeGrate, 109 Ariz. 143,

144, 506 P.2d 1037, 1038 (1973).

C.    Prosecution’s Decision to Seek the Death Penalty

¶18         Ovante    next     contends       that     Arizona     lacks     statewide

standards to identify when the death penalty will be sought,

leaving the decision to individual county attorneys.                            He also

asserts that he did not have a fair opportunity to enter a plea

agreement, alleging that in 2009 he offered to plead guilty in

                                          7
exchange for life sentences but the Maricopa County Attorney,

who allegedly refused to enter plea agreements while seeking

reelection    in     2008,    rejected     this    offer.            This    exercise   of

“[u]nbridled charging discretion,” Ovante argues, violates due

process, equal protection, and the Eighth Amendment.                           We review

Ovante’s    developed        constitutional       claims    de       novo.      State   v.

Smith, 215 Ariz. 221, 228 ¶ 20, 159 P.3d 531, 538 (2007).1

¶19          “Arizona’s       death   penalty          scheme    [is]        designed   to

narrow, in a constitutional manner, the class of first degree

murderers who are death-eligible,” and prosecutors may seek the

death penalty only in the limited cases that qualify under the

scheme.      State v. Carlson, 202 Ariz. 570, 582 ¶ 45, 48 P.3d

1180, 1192 (2002) (quoting State v. Soto-Fong, 187 Ariz. 186,

202, 928 P.2d 610, 626 (1996)); see also State v. Sharp, 193

Ariz. 414, 426 ¶ 49, 973 P.2d 1171, 1183 (1999) (holding the

discretion        afforded    to   prosecutors          under    Arizona’s        capital

sentencing scheme does not violate the Eighth Amendment).

¶20          We     reject     Ovante’s        challenge        to     the     discretion

generally    afforded        prosecutors       under    Arizona’s       death     penalty

statutes.     See State v. Salazar, 173 Ariz. 399, 411, 844 P.2d

566, 578 (1992); see also Gregg v. Georgia, 428 U.S. 153, 199

1
    Although Ovante alleges violations of several federal and
state constitutional provisions, he fails to develop arguments
for most of them.    This Court does not consider or address


                                           8
(1976) (upholding a statutory scheme that narrows the types of

defendants      eligible     for     death          and   affords    a     prosecutor    the

option to seek or not seek the death penalty at various stages

in the criminal process).               Our holding comports with opinions by

many other courts recognizing that prosecutorial discretion is

appropriately        constrained           by       death    penalty        statutes     and

appellate review.           See, e.g., State v. Rizzo, 31 A.3d 1094,

1163-64     (Conn.       2011)     (citing      cases       rejecting      constitutional

challenges); Wade v. State, 41 So.3d 857, 875-76 (Fla. 2010);

State v. Banks, 271 S.W.3d 90, 154-55 (Tenn. 2008); State v.

Yates, 168 P.3d 359, 400-01 (Wash. 2007).

¶21          The record also does not show that the death penalty

was sought in Ovante’s case for a discriminatory or otherwise

improper reason.           Ovante contends that defendants in Maricopa

County    are     more     likely     to     receive        the    death     penalty    than

defendants similarly situated in other locations.                                To show a

violation    of    the     Equal     Protection           Clause    of     the   Fourteenth

Amendment,      however,         “the      defendant         must        show    purposeful

discrimination that had a discriminatory effect on him and in

his particular case.”            State v. Roque, 213 Ariz. 193, 226 ¶ 143,

141 P.3d 368, 401 (2006) (citing McCleskey v. Kemp, 481 U.S. 279,

292   (1987)).           Because     our     criminal        justice       system   affords


unsupported constitutional claims.    State v. Hardy, 230 Ariz.
281, 285 ¶ 12 n.3, 283 P.3d 12, 16 n.3 (2012).

                                                9
prosecutors wide discretion to decide which crimes to prosecute

and     which    sentences       to    pursue,         “a    defendant        must   show

‘exceptionally clear proof’ of discrimination for the Court to

infer discriminatory purpose.               Any legitimate explanation for a

state’s decision to seek the death penalty precludes a finding

of a Fourteenth Amendment violation.”                       Id. (internal citations

omitted).

¶22           “In Arizona, the state may seek the death penalty if

it     can    prove    beyond    a    reasonable        doubt     that    a    defendant

committed first degree murder and can also prove the existence

of at least one aggravating factor.”                   Id. at 227 ¶ 144, 141 P.3d

at     402.      Ovante     committed       two    murders        and    admitted     two

aggravating circumstances, rendering him eligible for a death

sentence.       That the County Attorney sought this sentence in many

qualifying cases in Maricopa County, or rejected Ovante’s offers

to plead guilty in exchange for a life sentence, does not make

the decision to seek death in his case unconstitutional.                             See

id. ¶ 143.

D.     Prosecutor’s Closing Argument

¶23           Ovante      argues      that,       in    closing         argument,    the

prosecutor (1) impermissibly suggested that Ovante had failed to

take     responsibility         for   his     actions        by   implying      Ovante’s

presentation of mitigation and request for mercy were negative

conduct, and (2) made “an overly emotional play coloring Mr.

                                            10
Ovante as a poisoned seed from a bad family.”                           Because Ovante

did     not   object     at     trial,      we    review     the       statements      for

fundamental error.           See State v. Henderson, 210 Ariz. 561, 567

¶ 19, 115 P.3d 601, 607 (2005).

¶24           Prosecutors are given “wide latitude” when presenting

arguments.      State v. Morris, 215 Ariz. 324, 336 ¶ 51, 160 P.3d

203,    215   (2007).         They   are    permitted      to    suggest       reasonable

inferences from the facts presented, but their statements should

not “call[] the jurors’ attention [to] matters [the jury] should

not consider.”        Id.     Although highly misleading statements might

sometimes taint a trial, “cautionary instructions by the court

generally      cure    any     possible     prejudice”          from    statements      by

counsel because juries are presumed to follow the trial court’s

instructions.         State v. Manuel, 229 Ariz. 1, 6 ¶ 24, 270 P.3d

828, 833 (2011)

¶25           Here,    the    trial     court     instructed       the      jurors    that

statements by the lawyers should not be interpreted as evidence

and should only be used as tools to help the jury “understand

the evidence and apply the law.”                  Given these instructions, we

evaluate Ovante’s claim presuming that the jury recognized that

the    lawyers’   statements         were   not   evidence       and    that    the   jury

sought to reach a “reasoned, moral judgment about which sentence

[was]    justified     and     appropriate.”        See State          v.   Newell,    212

Ariz. 389, 403 ¶¶ 67–68, 132 P.3d 833, 847 (2006) (holding that

                                            11
jury       instructions         negated             improper         comments         of

prosecutor);    State v. Anderson, 210 Ariz. 327, 342 ¶ 50, 111

P.3d 369, 384 (2005) (holding that jury instructions cured the

prosecutor's misstatement of the law).

  i. Failure to take responsibility

¶26          Ovante argues that, by telling the jury that Ovante

failed to take responsibility for his actions, the prosecutor

improperly     suggested       “that    the        presentation        of     mitigation

evidence    constitutes    a    failure       to    own   up    to   the      [criminal]

conduct.”      He   argues      the    prosecutor         directly      attacked     the

process of mitigation instead of specific mitigating factors,

permitting the jury to unfairly conclude that Ovante’s “plea for

his life [during the mitigation process] was nothing more than a

failure to take responsibility.”

¶27          The record does not support Ovante’s claim that the

State improperly argued that the presentation of mitigation was

itself a failure to accept responsibility.                      During the penalty

phase, the defense contended that Ovante’s negative childhood

and    background   played       a     large       part    in    his        predicament,

repeatedly making statements like “our choices are the product

of our backgrounds,” and “[w]hat goes into the recipe bowl is

oftentimes what comes out.”            In response, the State argued that

Ovante had a choice in all of the decisions he made but was

attempting to deflect responsibility.

                                         12
¶28          Although      the     State     is      prohibited           from    telling         a

capital jury that it cannot consider mitigating evidence, the

State may argue that mitigating evidence should not be given

much weight.        See State v. Pandeli, 215 Ariz. 514, 526                             ¶¶ 35–

36,   161   P.3d    557,     569    (2007).          Because        the    prosecutor         was

rebutting mitigation evidence presented about Ovante’s troubled

childhood    and    dysfunctional         family,       the    prosecutor’s            comments

did not create fundamental error.

  ii. Overly Emotional Argument

¶29          Ovante     next       argues     that      the     prosecutor’s            closing

argument    made    “an    overly     emotional         play    coloring         [him]       as   a

poisoned     seed     from     a    bad     family.”           He    asserts          that    the

prosecutor     focused       heavily        on    the     “generational               violence”

present in Ovante’s family and allowed the jury to speculate

that, if it did not impose the death sentence, other murders

could occur during this or future generations.

¶30          The prosecutor’s comments about generational violence

responded to defense arguments that Ovante’s conduct partially

resulted from his dysfunctional family.                         The prosecutor said,

“But what happens down the line?                  When does it stop?                  When does

anyone in the Ovante family have to stand up and say, I made

choices?     I am responsible for what I did. Instead of poisoning

further     generations      of     Ovantes . . . .”                Viewed       in    context,

these     statements       militated         against      the        notion           that    one

                                             13
generation of a family “poisons” the next, and did not urge the

jury to sentence Ovante to death to prevent such “poisoning.”

Even      if      the         prosecutor’s             words           were      susceptible         to

misunderstanding,             we     presume           the       trial        court’s     admonition

negated any improper statements.                            See, e.g., Newell, 212 Ariz.

at 403 ¶¶ 67–68, 132 P.3d at 847 (holding that jury instructions

negated prosecutor’s comments).                            Ovante has not shown that the

prosecutor’s closing comments were fundamental error.

E.      Evidence of Circumstances of the Murders

¶31            Ovante         argues       that        the        trial       court     abused      its

discretion       by     allowing          the    State,          at     the    beginning       of   the

penalty phase, to present evidence of the circumstances of his

crimes.         Noting       that    he        pleaded          guilty    to     the    charges     and

stipulated       to     the    alleged          aggravating            factors,       Ovante    argues

that     this     evidence          was     irrelevant             to     the     thrust       of   his

mitigation and unfairly prejudicial.

¶32            This     argument          is     meritless.               This    Court       recently

reaffirmed       that       the    State        may    offer       evidence       in    the    penalty

phase     about       the     circumstances                of    the     murder    regardless        of

whether the defendant presents any mitigation.                                         See State v.

Nordstrom, 230 Ariz. 110, 114-115 ¶¶ 10, 13, 280 P.3d 1244,

1248–49 (2012).               Ovante has not established that any of the

State’s evidence regarding the circumstances of the murders and

the     aggravated          assault       (or     the           related       (F)(2)    and     (F)(8)

                                                      14
aggravating circumstances) was unduly prejudicial.                                   Cf. id. at

115    ¶   11,        280     P.3d         at    1249      (holding        that     evidence    of

circumstances of crime was not unduly prejudicial).

F.     Final Jury Instructions

¶33             Ovante argues that the trial court erred in its final

jury     instructions            by    stating         that      Ovante    had     admitted    two

statutory aggravating factors and then failing to identify the

particular aggravators for the jurors.                               He contends that the

applicable aggravating factors had to be identified in order for

jurors     to    assess          whether        the    mitigating         factors    called    for

leniency.        Because Ovante did not object to the instructions at

trial, we review this claim for fundamental error.                                        State v.

Kuhs, 223 Ariz. 376, 386 ¶ 52, 224 P.3d 192, 202 (2010).

¶34             In    the     preliminary             instructions        before    the    penalty

phase, the trial court explained that Ovante had admitted two

aggravating factors and then briefly described those factors.

Both   parties         received        a    copy      of   the    final     jury    instructions

before they were read to the jury and neither party objected to

how the aggravating and mitigating circumstances were handled.

In the final jury instructions, the court said, “The defendant

has    admitted        that       statutory        aggravating        circumstances         exist,

which make the defendant eligible for the death sentence,” but

the    court         did    not       specifically         identify        which     aggravating

factors    Ovante          had    admitted.             The   prosecution,         however,    did

                                                      15
explain the two aggravating factors in its closing statement.

¶35          “In assessing the adequacy of jury instructions, the

instructions          must    be     viewed          in      their        entirety     to   determine

whether they adequately reflect the law.”                                   State v. Garcia, 224

Ariz. 1, 18 ¶ 75, 226 P.3d 370, 387 (2010).                                          A court is not

required to give a separate instruction if its substance has

already     been       covered           by     other        instructions,           id.,   and     “[a]

conviction       will        not     be        reversed           based    on    the    instructions

unless, taken as a whole, they misled the jurors.” State v.

Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d 629, 633 (2009).

¶36          The jury instructions, taken as a whole, were accurate

and not misleading.                 The preliminary instructions specifically

identified       the    applicable              aggravating             circumstances.         At    the

beginning        of    the     penalty              phase,        the     prosecution       presented

evidence     regarding             the        crimes        and     aggravating        factors      that

Ovante     had     admitted.                  Although        it     would      have    been      better

practice    for        the    trial           court     to        have    again      identified      the

particular aggravating factors in the final instructions, the

failure to do so here was not fundamental error.

G.    Discrepancy between the Minute Entry and Oral Pronouncement
      of the Sentence

¶37          Ovante          argues           his    sentence            must   be     remanded      for

clarification because the trial judge orally pronounced that his

sentences would run consecutively but entered a minute entry


                                                       16
ordering two of them to run concurrently.                    In pronouncing the

sentences, the trial court observed that the victims’ suffering

warranted    separate         sentences.        Accordingly,      the    court    gave

Ovante a six-year prison term for the aggravated assault charge,

to begin on February 24, 2010, and stated that Ovante would

“then be sentenced to life” in prison for count 1 and death for

count 2.     The court also announced that Ovante’s life sentence

for count 1 would run consecutively to his death sentence for

count 2.     Although the corresponding minute entry states that

the sentence on count 1 will run consecutively to that for count

2, it states that all sentences will begin on February 24, 2010.

¶38         When    a   discrepancy        between    the    trial      court’s   oral

pronouncement of a sentence and the written minute entry can be

clearly     resolved     by      looking    at     the    record,       the    “[o]ral

pronouncement in open court controls over the minute entry.”

State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989).

This Court can order the minute entry corrected if the record

clearly identifies the intended sentence.                   Id. at 487, 768 P.2d

at 649.

¶39         Here, the trial court clearly stated its intent that

the   sentence     on   the    aggravated       assault   count   would       begin   on

February 24, 2010, and the life sentence on count 1 would run

consecutively to the death sentence on count 2.                   By stating that

Ovante’s death sentence would be concurrent with his sentence

                                           17
for the aggravated assault, the minute entry is not inconsistent

with the oral pronouncement of the sentences.                        The minute entry,

however,      incorrectly         states     that    the    sentence     of    life    with

possible      parole      after    twenty-five        years    will     also    begin    on

February 24, 2010.           Accordingly, we correct the minute entry to

delete this statement, leaving the sentence on count 1 to run

consecutively to the sentence on count 2, and affirm the trial

court’s oral pronouncement of the sentences.

H.    Abuse of Discretion Review

¶40           Because Ovante murdered Vickers after August 1, 2002,

we review the jury’s imposition of a death sentence for abuse of

discretion.         A.R.S. § 13-756(A) (2008) State v. Chappell, 225

Ariz. 229, 242 ¶ 56, 236 P.3d 1176, 1189 (2010).

              1.    Aggravating Circumstances

¶41           Ovante      admitted     the    (F)(2)       aggravator    based    on    his

conviction         of     aggravated       assault     with     a     handgun     against

Valenzuela and the (F)(8) aggravator based on his premeditated

murder   of    Trujillo.          After     Ovante    pleaded       guilty,    the    court

conducted a second colloquy to confirm that he was knowingly,

voluntarily,        and    intelligently         admitting     the    aggravators       and

that he understood that death was a possible sentence.

¶42           Nothing prevents a defendant from waiving his Sixth

Amendment      right        to     have      a      jury     determine        aggravating

circumstances.            State v. Brown, 212 Ariz. 225, 231 ¶ 26, 129

                                              18
P.3d 947, 953 (2006) (citing Blakely v. Washington, 542 U.S.

296, 310 (2004)).                The record amply supports the (F)(2) and

(F)(8) aggravators admitted by Ovante.

              2.     Mitigating Circumstances

¶43           At     the       penalty    phase,        each     juror     must    determine

whether mitigating circumstances exist and whether death is the

appropriate penalty.               See A.R.S. § 13-751(C).                 “The defendant

must prove the existence of the mitigating circumstances by a

preponderance of the evidence,” but “the jurors do not have to

agree unanimously that a mitigating circumstance has been proven

to exist.”         Id.

¶44           Ovante          presented   several       mitigation       witnesses.         The

days   of    testimony          detailing       Ovante’s       childhood    drew     a    bleak

picture      of     a     life     filled       with     poverty,        violence,       crime,

molestation,            and     drug     use.          The     defense     discussed        his

longstanding         substance         abuse,     and        Ovante    expressed     remorse

during      allocution,          but   there     was    little        evidence    showing     a

strong connection between the mitigation and the murders.

              3. Propriety of death sentence

¶45           We     must       uphold    a     jury’s       decision      that    death     is

appropriate if any “reasonable juror could conclude that the

mitigation presented was not sufficiently substantial to call

for leniency.”            State v. Gallardo, 225 Ariz. 560, 570 ¶ 52, 242

P.3d 159, 169 (2010).              In the context of independent review, the

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Court has given “extraordinary weight” to the multiple murders

aggravating circumstance.        State v. Hampton, 213 Ariz. 167, 185

¶ 90, 140 P.3d 950, 968 (2006).             Here, in light of the (F)(2)

and   (F)(8)     aggravators    and   the   mitigation   evidence     in   the

record, a reasonable juror could conclude that the mitigating

circumstances     were   not   “sufficiently    substantial   to    call   for

leniency.”      Id.; see also A.R.S. § 13-751(C).

I.    Additional Issues

¶46          Stating that he seeks to preserve certain issues for

federal        review,    Ovante       lists     thirty-one        additional

constitutional claims that he acknowledges have been rejected in

previous decisions.      We decline to revisit these claims.

                                 CONCLUSION

¶47          We affirm Ovante’s convictions and his sentences as

corrected.


                               __________________________________
                               Scott Bales, Vice Chief Justice

CONCURRING:


__________________________________
Rebecca White Berch, Chief Justice


__________________________________
A. John Pelander, Justice


__________________________________
Robert M. Brutinel, Justice

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__________________________________
Ann A. Scott Timmer, Justice




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