                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                         LOUIS E. CESPEDES,
                             Petitioner,

                                    V.


   THE HONORABLE KENNETH LEE, JUDGE OF THE SUPERIOR
  COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF
                          PIMA,
                     Respondent Judge,

                         STATE OF ARIZONA,
                          Real Party in Interest.

                           No. CR-16-0384-PR
                        Filed September 14, 2017

         Special Action from the Superior Court in Pima County
                   The Honorable Kenneth Lee, Judge
                           No. CR20154232-001
                               AFFIRMED

              Order of the Court of Appeals, Division Two
                         Filed August 25, 2016


COUNSEL:

Barbara LaWall, Pima County Attorney, Nicolette Kneup, Deputy County
Attorney, Tucson, Attorneys for State of Arizona

Pima County Public Defender’s Office, David J. Euchner, Deputy Public
Defender, Tucson, Attorneys for Louis E. Cespedes

Louis E. Cespedes, In Propria Persona, Tucson, Petitioner


JUSTICE GOULD authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICE
TIMMER joined. JUSTICE LOPEZ, joined by JUSTICES BRUTINEL and
BOLICK dissented.
                     CESPEDES V. HON. LEE/STATE
                         Opinion of the Court


JUSTICE GOULD, opinion of the Court:

¶1            In this case, we hold that the prosecutor’s instruction to the
grand jury regarding the defense of justification pursuant to A.R.S. § 13-
403(1) was correct and did not deprive petitioner Louis E. Cespedes of a
substantial procedural right. Accordingly, the superior court did not err in
denying Cespedes’ motion to remand the case to the grand jury.

                             BACKGROUND

¶2            A grand jury indicted Cespedes on two counts of child abuse
for physically injuring his son, J.C., by striking him with a belt. During the
presentation to the grand jury, the prosecutor offered Cespedes’ statement
that he previously had used corporal punishment to discipline J.C.

¶3            Cespedes filed a motion to dismiss the indictment and a
motion to remand to the grand jury for a new determination of probable
cause. The superior court denied both motions, and the court of appeals
declined to accept jurisdiction of Cespedes’ special action petition.

¶4             We granted review because the proper instruction of grand
juries on justification defenses is a recurring issue of statewide importance.
We have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.

                               DISCUSSION

¶5           We review the superior court’s rulings for an abuse of
discretion. See Maretick v. Jarrett, 204 Ariz. 194, 195 ¶ 1 (2003).

                                     A.

¶6            Cespedes argues he was denied a substantial procedural right
because the prosecutor misstated the law regarding justification. See Ariz.
R. Crim. P. 12.9(a) (stating that an indictment may be challenged on the
grounds a defendant was denied a substantial procedural right during the
grand jury proceedings). Specifically, he claims that the prosecutor
incorrectly advised the grand jurors they were not allowed to consider
whether his use of physical force was justified under A.R.S. § 13-403(1).

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                     CESPEDES V. HON. LEE/STATE
                         Opinion of the Court

This statute provides that a parent’s use of “reasonable and appropriate
physical force” is justified “to the extent reasonably necessary and
appropriate to maintain discipline.” Id.

¶7           Cespedes bases his argument on the following instructions
the prosecutor gave during the grand jury empanelment process:

      [Section 13-] 205 says except as otherwise provided by law, a
      defendant shall prove any affirmative defense raised by a
      preponderance of the evidence. . . . Justification defenses that
      we’re going to get into now, the legislature changed this . . . .
      [J]ustification used to be an affirmative defense up until a few
      years ago. In other words, if somebody was alleging self-
      defense, they had to prove by a preponderance of the
      evidence that it was self-defense. Now, all justification
      statutes are no longer affirmative defenses. So if somebody
      alleges that then, as you see, the state must prove beyond a
      reasonable doubt the defendant did not act with justification.
      So once that is raised — and, again, you’re not going to be making
      those decisions — although — well, you’re going to be making —
      you certainly can make a decision as to whether someone was
      justified in committing the crime, but in terms of when you go
      to trial, a person can allege that they were acting in self-
      defense and then the state has to disprove that beyond a
      reasonable doubt. That will become clear to you as we go now
      to Chapter 4, which we’re going to spend the rest of the
      morning on.
                                  . . . .

      So when is somebody justified in using physical force under
      [13-]403? A parent, guardian, teacher or other person
      entrusted with the care and supervision of minors or
      incompetent persons can use reasonable and appropriate
      physical force upon that person when and to the extent
      reasonably necessary and appropriate to maintain discipline.

(emphasis added).

¶8          Following this instruction, the prosecutor explained that
under § 13-401(B) “justification is a defense in any prosecution for an

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                       CESPEDES V. HON. LEE/STATE
                           Opinion of the Court

offense pursuant to this title,” and that if one’s act is justified, a person “may
be perfectly protected by the law from [] shooting” another person. The
prosecutor then explained:

       There’s a lot of reasonablenesses [sic] — reasonabli —
       reasonable things in there. Again, there’s no black or white
       answer to this. It is what you as the grand jury deem to be
       reasonable under the circumstances. So the law says that we
       have this provision that teachers and other folks who are
       entrusted with the care, they can use reasonable force. What’s
       reasonable and what’s unreasonable is going to be your decision to
       make.

       All right. And I’m really loathe to give you examples because
       I don’t want to give you an example and you go, oh, that’s
       reasonable or something. You have to decide.”

       (emphasis added).

                                        B.

¶9            A prosecutor has a duty “to instruct the grand jury on all the
law applicable to the facts of the case.” Trebus v. Davis, 189 Ariz. 621, 623
(1997); see Crimmins v. Superior Court, 137 Ariz. 39, 42 (1983). This duty
includes providing instructions on justification defenses that, based on the
evidence presented to the grand jury, are relevant to the jurors determining
whether probable cause exists to indict the defendant. Korzep v. Superior
Court, 172 Ariz. 534, 540-41 (App. 1991); see also Francis v. Sanders, 222 Ariz.
423, 426-27 ¶¶ 12-16 (App. 2009) (discussing prosecutor’s duty to instruct
grand jury on relevant defense of entrapment).

¶10            Here, based on Cespedes’ statement that he used physical
force to discipline J.C., the prosecutor was required to instruct the grand
jury on justification pursuant to § 13-403(1). Reviewing the instructions as
a whole, as reflected in the transcripts provided to this Court, we conclude
that the prosecutor correctly instructed the grand jury on the defense of
justification. Cf. State ex rel. Thomas v. Granville, 211 Ariz. 468, 471 ¶ 8 (2005)
(stating that instructions to a jury are read as a whole, not in isolated parts,
to ensure that a jury is properly instructed on the law).



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                     CESPEDES V. HON. LEE/STATE
                         Opinion of the Court

¶11            The prosecutor first discussed § 13-205(A), which addresses
the respective burdens of proof for affirmative defenses and justification
defenses. The prosecutor noted that unlike an affirmative defense, once a
defendant raises a justification defense, “the state must prove beyond a
reasonable doubt the defendant did not act with justification.” The
prosecutor correctly advised that this standard applies “when you go to
trial,” and that they would not have to “mak[e] those decisions.” Compare
A.R.S. § 13-205(A) (stating that when a defendant raises a justification
defense at trial, the state must prove beyond a reasonable doubt that the
defendant did not act with justification), with A.R.S. § 21-413 (stating that
the grand jury determines whether there is “probable cause to believe the
person under investigation” committed a public offense).

¶12           However, the prosecutor correctly advised the jurors that
they were “going to be making” decisions about justification and “certainly
can” decide whether a defendant’s acts were justified. Indeed, he instructed
the jurors that they would “have to decide” whether a defendant’s use of
force was reasonable, emphasizing that “what’s reasonable and what’s
unreasonable is going to be your decision to make.” He then provided a
correct explanation of the relevant justification defenses to assist them in
making this determination. In discussing those defenses, the prosecutor
emphasized that justification is a defense to any crime.

¶13            The dissent contends that by advising the grand jurors “you
certainly can make a decision as to whether someone was justified in
committing” a crime, the prosecutor implied they were permitted, but not
required, to consider whether Cespedes’ conduct was justified. See infra ¶
26. We disagree. The prosecutor simply advised the jurors that, based on
the facts and circumstances of each case, they “can” decide whether a
defendant’s conduct was justified. The prosecutor emphasized this point
when he advised the jurors they would have to decide whether a
defendant’s use of force was “reasonable under the circumstances,” and
“[w]hat’s reasonable and what’s unreasonable is going to be your decision
to make.” (emphasis added). See infra ¶ 8. This instruction, in combination
with the significant time the prosecutor spent in going through each of the
justification defenses, made it clear that the jurors had to consider
justification where relevant, but ultimately could decide, based on the facts
of the case, whether a defendant’s conduct was justified.



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                       CESPEDES V. HON. LEE/STATE
                           Opinion of the Court

                                        C.

¶14           Cespedes also argues the prosecutor improperly instructed
the grand jurors regarding the standard of reasonableness for using
physical force under § 13-403(1). Cespedes claims the prosecutor failed to
advise the jurors that reasonableness under the statute involves (1) a
subjective component (whether a defendant believes he is acting
reasonably), and (2) an “objective” component (whether the defendant’s
conduct is reasonable based on the perspective of one who believes in
corporal punishment).

¶15            Cespedes’ proposed standard of reasonableness is not
supported by law. Generally, an objective standard is used in determining
whether a defendant’s use of force was reasonable. Thus, using force in
self-defense is based on “a reasonable person's belief, not the unreasonable,
even if honest, belief of the accused.” State v. Tuzon, 118 Ariz. 205, 209
(1978); see State v. King, 225 Ariz. 87, 90 ¶ 11 (2010) (stating that justification
under § 13-404 “adopts a purely objective standard, permitting the use of
force only if a ‘reasonable person would believe that physical force is
immediately necessary to protect himself’”); Korzep, 172 Ariz. at 540
(holding that A.R.S. § 13-411(A) “requires an objective, third person
measure of the reasonableness of a defendant’s preventive force”).

¶16           Here, the prosecutor instructed the grand jury on the proper
objective standard of reasonableness. He correctly explained that under
§ 13-403(1) the grand jury would have to determine whether Cespedes’ use
of force was “reasonable under the circumstances.” This instruction was
not limited to Cespedes’ subjective beliefs, nor was it based on the
subjective beliefs of those who believe in corporal punishment.

                                        D.

¶17            Finally, Cespedes argues that the prosecutor’s instruction
regarding child abuse prevented the grand jury from considering his
justification defense. According to Cespedes, the prosecutor advised the
grand jurors that, in determining whether he committed child abuse, they
were not required to consider whether his conduct was justified under § 13-
403(1).




                                        6
                     CESPEDES V. HON. LEE/STATE
                         Opinion of the Court

¶18          The prosecutor provided the following instruction regarding
child abuse:

      [Section] 13-3623 is our child abuse statute[]. I’m going to
      read it and then explain it. . . . So Subsection A is going to be
      dealing with only under circumstances likely to produce
      death or serious physical injury. If it is not a circumstance
      likely to produce death or serious physical injury, you’re
      going to drop to Subsection B. Okay? But the language is
      otherwise exactly the same.

      Any person who causes a child or vulnerable adult to suffer
      physical injury or, having the care, custody of a child or
      vulnerable adult, who causes or permits the person or health
      of the child or vulnerable adult to be injured or who causes or
      permits a child or vulnerable adult to be placed in a situation
      where the person or health of the child or vulnerable adult is
      endangered is guilty of an offense . . . .

      So the first line of the statute says any person who causes the
      child or vulnerable adult to suffer physical injury. So if you’re
      talking about physical injuries that happened, you don’t care
      what the relationship of that person is to the child.

¶19            The prosecutor did not misstate the law. Section 13-3623(B)
states, in relevant part, that “any person who causes a child . . . to suffer
physical injury” is guilty of child abuse. Thus, a determination of guilt
under this section does not require proof that the defendant is a parent or
guardian of the minor child. Id. Additionally, the prosecutor neither
instructed nor suggested to the grand jury that justification could not be
raised as a defense to child abuse.

                           CONCLUSION

¶20           Because the prosecutors correctly explained the law
regarding justification to the grand jury, Cespedes was not denied a
substantial procedural right. Accordingly, we affirm.




                                     7
                   CESPEDES V. HON. LEE/STATE
  JUSTICE LOPEZ, JOINED BY JUSTICE BRUTINEL, AND JUSTICE BOLICK,
                              DISSENTING

JUSTICE LOPEZ, joined by JUSTICE BRUTINEL, and JUSTICE BOLICK,
dissenting:

¶21                 I respectfully dissent, not because the majority
misconstrues the legal standard for instruction of grand juries on
justification defenses, but rather, because I disagree with the majority's
conclusion that the instruction in this case comports with the relevant
standard.

¶22           Cespedes spanked his thirteen-year-old son, J.C., with a belt,
leaving bruises, as punishment for playing video games without his
permission. J.C. subsequently “borrowed” and used his father’s credit card
without permission and, fearing similar consequences, reported to his
school that Cespedes previously had spanked him. A grand jury indicted
Cespedes on two counts of child abuse under circumstances not likely to
produce death or serious injury, A.R.S. § 13-3623(B)(1). During the grand
jury presentation, the prosecutor offered Cespedes’ statement that he had,
on prior occasions, used corporal punishment to discipline J.C. The grand
jury indicted Cespedes on a nine-to-five vote.

¶23            “Arizona grand juries, like their federal counterparts,
were . . . designed to act as a ‘vital check against the wrongful exercise of
power by the State and its prosecutors.’” McKaney v. Foreman, 209 Ariz. 268,
275 ¶ 31 (2004) (citations omitted). Accordingly, we recognize “the grand
jury's unique role in bringing to trial those who may be guilty and clearing
the unjustly accused,” and the commensurate need to ensure that “the
determinations made by that body are informed, objective and just.”
Crimmins v. Superior Court, 137 Ariz. 39, 41 (1983). “[A]ccurate instructions
to the grand jury concerning an affirmative defense may be just as essential
to avoiding needless prosecution as instruction on one of the elements of
the crime.” Francis v. Sanders, 222 Ariz. 423, 427 ¶ 16 (App. 2009).

¶24          “In a criminal proceeding, error ‘is harmless if we can say,
beyond a reasonable doubt, that the error did not contribute to or affect the
[outcome]. We must be confident beyond a reasonable doubt that the error
had no influence on the jury's judgment.’” Maretick v. Jarrett, 204 Ariz. 194,
198 ¶ 15 (2003) (applying harmless error standard in the context of grand
jury proceedings) (citations omitted); Bashir v. Pineda, 226 Ariz. 351, 356
(App. 2011) (same). “In determining whether the error was harmless, we

                                      8
                    CESPEDES V. HON. LEE/STATE
   JUSTICE LOPEZ, JOINED BY JUSTICE BRUTINEL, AND JUSTICE BOLICK,
                               DISSENTING

consider each misstep in context.”          Maretick, 204 Ariz. at 198 (citing
Crimmins, 137 Ariz. at 42).

¶25           Cespedes argues he was denied a substantial procedural right
because the prosecutor misstated the law regarding justification in the
following instruction to the grand jury during the empanelment:

       Justification defenses that we’re going to get into now, the
       legislature changed this. . . . Now, all justification statutes are
       no longer affirmative defenses. So if somebody alleges that
       then, as you see, the state must prove beyond a reasonable
       doubt the defendant did not act with justification. So once
       that is raised—and, again, you’re not going to be making those
       decisions—although—well, you’re going to be making—you
       certainly can make a decision as to whether someone was justified in
       committing the crime, but in terms of when you go to trial, a
       person can allege that they were acting in self-defense and
       then the state has to disprove that beyond a reasonable doubt.
       That will become clear to you as we go now to Chapter 4,
       which we’re going to spend the rest of the morning on.
                                   .     .     .
       So when is somebody justified in using physical force under
       403? A parent, guardian, teacher or other person entrusted
       with the care and supervision of minors or incompetent
       persons can use reasonable and appropriate physical force
       upon that person when and to the extent reasonably
       necessary and appropriate to maintain discipline.

(emphasis added); A.R.S. § 13-403(1) (“The use of physical force upon
another person which would otherwise constitute an offense is justifiable
and not criminal” where a parent uses “reasonable and appropriate
physical force . . . when and to the extent reasonably necessary and
appropriate to maintain discipline.”).

¶26             Here, the State’s justification instruction, viewed as a whole,
failed to adequately and properly instruct the grand jury for two reasons.
First, the prosecutor, perhaps unnecessarily, attempted to distinguish the
roles of a trial jury and a grand jury with respect to the justification defense.
As a result, he conflated the roles of the trial and grand juries and initially

                                        9
                    CESPEDES V. HON. LEE/STATE
   JUSTICE LOPEZ, JOINED BY JUSTICE BRUTINEL, AND JUSTICE BOLICK,
                               DISSENTING

and erroneously informed the grand jury that it was “not going to be
making [] decisions” on justification, and his attempt to clarify the
misstatement was ambiguous and confusing. Second, and perhaps of even
greater consequence, the prosecutor’s clarification that the grand jury “can
make a decision as to whether someone was justified in committing the
crime” erroneously implied that a justification determination was
permissive rather than mandatory.

¶27             The justification instruction was not a model of clarity. In fact,
in the State’s response to Cespedes’ petition for review, it wrote that “the
State pointed out during instruction that deciding whether justification excuses
criminal liability does not fall within the purview of the grand jury who are
tasked with deciding whether there is probable cause to indict a defendant
for committing a crime.” Although the State later re-characterized its initial
description of the grand jury transcript in a supplemental brief as “an
unartful summary,” it illustrates the point: the instruction, at best, is
ambiguous and confusing. If the State’s appellate counsel, afforded the
advantage of legal training and the relative luxury of time to reflect upon a
written transcript, is left confused by the instruction, I cannot conclude that
the flawed justification instruction did not also influence the grand jury’s
determination.

¶28             After the prosecutor’s erroneous comment that the grand jury
was “not going to be making [] decisions” about justification, he clarified
that it “can make a decision as to whether someone was justified in
committing the crime.” The instruction misstates the law; contrary to the
clarification, the grand jury must decide whether a defendant’s actions were
justified. In a case, like this one, where evidence triggers a justification
instruction, a lawful probable cause determination requires a grand jury to
find that an action was not justified because a justified action is not a crime.
See A.R.S. § 13-205 (“Justification defenses describe conduct that, if not
justified, would constitute an offense but, if justified, does not constitute
criminal or wrongful conduct.”); A.R.S. § 21-413 (“The grand jury shall
return an indictment . . . if . . . it is convinced that there is probable cause to
believe the person under investigation is guilty of such public offense.”). In
other words, although a grand jury can conclude that a defendant’s actions
were justified (and decline to indict), it must consider whether justification
rendered the actions lawful before indicting a defendant.


                                        10
                    CESPEDES V. HON. LEE/STATE
   JUSTICE LOPEZ, JOINED BY JUSTICE BRUTINEL, AND JUSTICE BOLICK,
                               DISSENTING

¶29            The prosecutor seems to have acknowledged this nuance
when he first told the grand jury, “well, you’re going to be making—[a
justification decision],” before changing course and erroneously instructing
that it “can make a decision” on justification. This subtle juxtaposition
communicated to the grand jury that it had a choice whether to decide the
justification defense. Given Cespedes’ contention that he was justified in
disciplining J.C., the grand jury could not have properly returned an
indictment without affirmatively considering and rejecting his justification
defense. Because the instruction improperly suggested that its justification
determination was permissive rather than mandatory, it effectively invited
the grand jury to ignore its obligation to consider Cespedes’ justification
defense before returning an indictment.

¶30            The majority emphasizes that, after the prosecutor provided
the contradictory and muddled justification instruction, he informed the
grand jury that “[w]hat’s reasonable and what’s unreasonable is going to
be your decision to make.” ¶¶ 8, 13. Although this fact makes this a close
case, it does not eliminate the pervasive confusion concerning the
justification instruction infused at the inception of the grand jury process.
If anything, it underscores the ambiguity and contradictions concerning the
grand jury’s charge on justification: “you’re not going to be making those
decisions” to “although—well, you’re going to be making” to “you certainly can
make a decision” and “[w]hat’s reasonable and what’s unreasonable is going to be
your decision to make.”

¶31            There is no evidence that the State intentionally denied
Cespedes his substantial procedural right to a fair and impartial grand jury
hearing. To the contrary, the State introduced the relevant justification
statute and otherwise met its obligation to present exculpatory evidence.
But that does not absolve the State of its duty to carefully and properly
instruct the grand jury on the relevant law, including how to apply it. The
State concedes, as it must, that Cespedes was entitled to a justification
instruction; the instruction here went to the heart of the case. The State’s
presentation of the justification instruction failed to adequately explain how
the grand jury should apply the law, however, because it initially informed
the grand jury that it may not consider justification and then incorrectly
suggested that a justification determination was permissive rather than
mandatory. The grand jury, in the context of this instructional error,


                                      11
                   CESPEDES V. HON. LEE/STATE
  JUSTICE LOPEZ, JOINED BY JUSTICE BRUTINEL, AND JUSTICE BOLICK,
                              DISSENTING

indicted Cespedes on a nine-to-five vote, the minimum number of votes
required for indictment. See Ariz. R. Crim. P. 12.7(a).

¶32           “For while in theory a trial provides the defendant with a full
opportunity to contest and disprove the charges against him, in practice,
the handing up of an indictment will often have a devastating personal and
professional impact that a later dismissal or acquittal can never undo.”
United States v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979) (cited with approval
in Crimmins, 137 Ariz. at 44 (Feldman, J., specially concurring)). Because I
cannot conclude, beyond a reasonable doubt, that the flawed instruction
did not influence the grand jury’s determination, I would remand for a
redetermination of probable cause. Accordingly, I respectfully dissent.




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