                             NOTICE: NOT FOR PUBLICATION.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.

               HELIODORO VALENZUELA-VALDEZ, Appellant

                                No. 1 CA-CR 13-0372
                                 FILED 09-02-2014


              Appeal from the Superior Court in Maricopa County
                           No. CR2012-151686-001
                    The Honorable Steven P. Lynch, Judge

                            AFFIRMED AS MODIFIED


                                      COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Valenzuela-Valdez
                        STATE v. VALENZUELA-VALDEZ
                             Decision of the Court



                          MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which Presiding
Judge Samuel A. Thumma and Judge Randall M. Howe joined.


G E M M I L L, Judge:

¶1              Heliodoro Valenzuela-Valdez appeals his conviction and sentence
for aggravated assault, a class 3 dangerous felony. Valenzuela-Valdez’s counsel
filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record
and found no arguable question of law and requesting that this court examine the
record for reversible error. Valenzuela-Valdez was afforded the opportunity to
file a pro se supplemental brief but did not do so. See State v. Clark, 196 Ariz. 530,
537, ¶ 30, 2 P.3d 89, 96 (App. 1999). In the course of our review, we ordered
supplemental briefing regarding a jury instruction issue. After consideration of
the supplemental briefing and the record, we affirm Valenzuela-Valdez’s
conviction and sentence but modify the sentencing order requiring Valenzuela-
Valdez to pay the cost of his DNA testing.

                    FACTS AND PROCEDURAL HISTORY

¶2            We view the facts and reasonable inferences therefrom in the light
most favorable to upholding the jury verdict. State v. Powers, 200 Ariz. 123, 124, ¶
2, 23 P.3d 668, 669 (App. 2001). Applying that standard, the following evidence
was admitted at trial.

¶3            In September 2012, Valenzuela-Valdez was drinking beer outside
the apartment of an acquaintance, A.M. Later in the evening they were joined by
J.S. Valenzuela-Valdez was upset because of an argument with his wife earlier in
the day. At one point Valenzuela-Valdez was looking to pick a fight and A.M. had
to calm him down.

¶4            At some point in the evening when A.M. was not present,
Valenzuela-Valdez stabbed J.S. without apparent provocation. A.M., emerging
from his apartment, saw Valenzuela-Valdez holding J.S. with one hand and a knife
in the other. He intervened and Valenzuela-Valdez fled. J.S., still in shock, drove
home before he discovered the seriousness of his wound. J.S.’s wife called 911,
and he was taken to the hospital and subsequently hospitalized for approximately
a week.


                                          2
                        STATE v. VALENZUELA-VALDEZ
                             Decision of the Court


¶5            Valenzuela-Valdez, meanwhile, was found by Officer M.D. at a
nearby residence. Valenzuela-Valdez told Officer M.D. that he had been
approached by a man with a knife and that he ran away from the man. Officer
M.D., along with Officer M.V., took Valenzuela-Valdez to look for his shoes which
he claimed had come off when he ran from the man with the knife. The officers
learned that Valenzuela-Valdez might have been involved in a stabbing. Officer
M.V. arrested Valenzuela-Valdez, transported him to Cactus Park precinct, and
read him his Miranda Rights. When asked if he had stabbed someone, Valenzuela-
Valdez responded that he was only trying to defend himself. He told officers that
he had been attacked, but that he did not know the name of the person who had
attacked him.

¶6            After all the evidence and testimony was presented, the jury found
Valenzuela-Valdez guilty of aggravated assault and further found that it was a
dangerous crime. The jury also found the following aggravating factors: infliction
of serious physical injury; use of a deadly weapon; and physical, emotional, or
financial harm. The court, considering only the aggravating factor of emotional
harm to the victim, sentenced Valenzuela-Valdez to an aggravated term of ten
years, with 213 days of presentence credit and community supervision upon
release from prison. The court also ordered Valenzuela-Valdez to submit to DNA
testing for identification purposes and pay the applicable fee for the cost of that
testing.

                                     ANALYSIS

¶7            After our initial review of this Anders appeal, we issued an order
pursuant to Penson v. Ohio, 488 U.S. 75 (1988), requesting supplemental briefing by
the parties regarding whether the trial court erred in declining to give a self-
defense instruction to the jury and, if so, whether such error was harmless. In his
supplemental brief, Valenzuela-Valdez argues the evidence revealed that J.S.
came toward him in an attacking manner and that Valenzuela-Valdez, not
knowing if J.S. had any weapons, acted in self-defense. The State argues the trial
court did not err because J.S. did not have a weapon in his hand and had not
threatened to use a weapon when he moved towards Valenzuela-Valdez. Further,
the State argues that Valenzuela-Valdez testified at trial that the stabbing was an
accident. We review a trial court’s decision declining to give a requested jury
instruction under an abuse of discretion standard. State v. Bolton, 182 Ariz. 290,
309, 896 P.2d 830, 849 (1995).

¶8             A defendant is entitled to an instruction on self-defense “if there is
the slightest evidence of justification for the defensive act.” State v. Lujan, 136 Ariz.



                                           3
                       STATE v. VALENZUELA-VALDEZ
                            Decision of the Court

102, 104, 664 P.2d 646, 648 (1983). Slightest evidence is defined as that “tending to
prove a hostile demonstration, which may be reasonably regarded as placing the
accused apparently in imminent danger of losing [his] life or sustaining great
bodily harm.” Id.

¶9            After review of the supplemental briefs and the record in this case,
we conclude that the trial court did not err in declining a self-defense
instruction. Both parties agree on appeal that the instruction requested orally by
Valenzuela-Valdez was based on Arizona Revised Statutes (“A.R.S.”) § 13-
405. Because the request was oral and the record on appeal does not contain a
copy of the requested instruction, we will consider the Revised Arizona Jury
Instruction (“RAJI”) based on A.R.S § 13-405, which is RAJI Statutory Criminal
4.05:

       A defendant is justified in using or threatening deadly physical force
       in self-defense if the following two conditions existed:

       1. A reasonable person in the situation would have believed that
       deadly physical force was immediately necessary to protect against
       another’s use or apparent attempted or threatened use of unlawful
       deadly physical force; and

       2. The defendant used or threatened no more deadly physical force
       than would have appeared necessary to a reasonable person in the
       situation.

       A defendant may use deadly physical force in self-defense only to
       protect against another’s use or apparent attempted or threatened
       use of deadly physical force.

       Self-defense justifies the use or threat of deadly physical force only
       while the apparent danger continues, and it ends when the apparent
       danger ends. The force used may not be greater than reasonably
       necessary to defend against the apparent danger.

       The use of deadly physical force is justified if a reasonable person in
       the situation would have reasonably believed that immediate deadly
       physical danger appeared to be present. Actual danger is not
       necessary to justify the use of deadly physical force in self-defense.

¶10          The trial court properly denied this instruction because it is not
supported by the evidence. At trial, Valenzuela-Valdez admitted the stabbing was



                                         4
                       STATE v. VALENZUELA-VALDEZ
                            Decision of the Court

accidental and that he did not intend to stab J.S. He testified he accidentally
stabbed J.S. with a knife, which he was using to clean his nails, when J.S.
approached him. Valenzuela-Valdez’s attorney argued in closing that the stabbing
was accidental when he stated that “[Valenzuela-Valdez] never intended to stab
him. He never intended to hurt him.” Based on an “accidental event” view of the
facts, a self-defense instruction was not warranted.

¶11            Alternatively, to the extent a jury might place credence on
Valenzuela-Valdez’s initial assertions of self-defense to the investigating officers,
there is no evidence that J.S. was armed with a weapon or that a reasonable person
in Valenzuela-Valdez’s position would believe that J.S. would cause Valenzuela-
Valdez great bodily harm. See Lujan, 136 Ariz. at 104, 664 P.2d at 648; see State v.
Dumaine, 162 Ariz. 392, 404-05, 783 P.2d 1184, 1196-97 (1989) (overruled on other
grounds). We conclude, therefore, that the trial court did not err in declining to
give the requested self-defense instruction.1

¶12            Finally, Arizona authorizes the department of corrections to “secure
a sufficient sample of blood or other bodily substances for [DNA] testing.” A.R.S.
§ 13-610(A). However, this court has held that A.R.S. § 13-610 does not authorize
the court to require the defendant to pay for such testing. See State v. Reyes, 232
Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013) (holding that because § 13-610 does
not require the defendant to be assessed the cost of DNA testing there was no basis
for ordering him to do so). Therefore, we modify the sentence by vacating the
portion of the sentencing order requiring Valenzuela-Valdez to pay the cost of
DNA testing.

¶13           Having considered defense counsel’s brief and examined the record
for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The
evidence presented supports the conviction and the sentence imposed falls within
the range permitted by law. As far as the record reveals, Valenzuela-Valdez was
represented by counsel at all stages of the proceedings, and these proceedings
were conducted in compliance with his constitutional and statutory rights and the
Arizona Rules of Criminal Procedure.

¶14           Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-
57 (1984), counsel’s obligations in this appeal have ended. Counsel need do no
more than inform Valenzuela-Valdez of the disposition of the appeal and his
future options, unless counsel’s review reveals an issue appropriate for
submission to the Arizona Supreme Court by petition for review. Valenzuela-


1 Because we find no error, we do not address whether any such error may have
been harmless.


                                          5
                      STATE v. VALENZUELA-VALDEZ
                           Decision of the Court

Valdez has thirty days from the date of this decision in which to proceed, if he
desires, with a pro se motion for reconsideration or petition for review.

                                CONCLUSION

¶15          Valenzuela-Valdez’s conviction and sentence are affirmed except
that we modify the sentence by vacating the portion of the sentencing order
requiring Valenzuela-Valdez to pay the cost of his DNA testing.




                                    :gsh



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