Appeal from the Superior Court in Mohave County No. S8015CR20100834 The Honorable Steven F. Conn, Judge
Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee
Mohave County Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant
Judge Margaret H. Downie delivered the opinion of the Court, in which Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.
¶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 HISTORY
¶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.
¶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).
¶6 We review de novo whether a crime is a lesser-included offense of a charged offense. 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." ...