[Copyrighted Material Omitted]
Appeal from the Superior Court in Yuma County. No. S1400CR201101023. The Honorable John Neff Nelson, Judge.
Office of the Attorney General, Phoenix, Colby Mills, Counsel for Appellee.
Sharmila Roy, Laveen, Counsel for Appellant.
Judge John C. Gemmill delivered the opinion of the Court, in which Judge Kent E. Cattani joined. Presiding Judge Randall M. Howe concurred in part and dissented in part.
¶1 Francisco Javier Felix appeals his convictions and sentences on ten counts of attempted second-degree murder, ten counts of aggravated assault, one count of assisting a criminal street gang, and one count of endangerment. We vacate Felix's convictions for attempted second-degree murder because the jurors were improperly instructed that they could convict Felix of that offense if they found that he attempted to cause death through conduct he knew would cause death or serious physical injury. We affirm Felix's remaining convictions and sentences and remand for further proceedings.
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against the defendant. State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).
¶3 Felix, his girlfriend Heidy, and three other friends went to a bar in Yuma to celebrate a friend's birthday. While they were there, Heidy received phone messages from her cousin Elizabeth, inviting them to a party at Elizabeth's house. Elizabeth also told Heidy to tell Felix that she did not want any trouble because she knew that Felix was a member of the East Side Naked City gang.
¶4 The group arrived at the house at approximately 2:30 a.m. and found the party underway, with approximately 15-20 people in the house. Heidy and Felix went into the bathroom. When they came out, someone who appeared to be waiting for Felix immediately began punching his face and body. Others joined in and beat Felix to the ground. At some point, one of the people hitting Felix yelled " Okie" or " Okie Town," referring to a rival gang. When Heidy stepped in to help Felix, the person who had initially hit Felix told his friends to " jump her," and several people started hitting and beating Heidy. Felix and Heidy fled the house, but the others followed them and continued to attack. When Elizabeth's boyfriend Steve noticed that Heidy was being hurt, he told everyone to leave and stated he was going to call the police.
¶5 Felix, Heidy, and their friends returned to their vehicle. Felix was bleeding, his clothes were ripped, and one of his eyes was badly bruised, but he refused to go to the hospital. On their drive home, Felix took Heidy's phone and called someone to say he had been " beat up really bad" and that " they were going to do something about it." He told the person that he needed a ride and asked to be picked up. Felix also stated he needed to " get these mother f__ ers" and asked the person to " pick up a toy or get a toy" - common gang terminology for a gun.
¶6 When Felix and Heidy arrived at their home, Felix did not go inside, but asked Heidy for Elizabeth's address. A friend and fellow East Side Naked City gang member picked Felix up in a car at about 4:30 a.m.
¶7 Around 5:00 a.m., a shooter approached the front of Elizabeth and Steve's house on foot and fired nine large-caliber high-velocity bullets in multiple bursts from an AK-47 into the house. While firing, the shooter changed locations at least one time. Steve, Elizabeth, their sixteen-month-old baby, J.V., and seven of Steve's friends were inside at the time. No one was injured by the shots.
¶8 Two neighbors heard the gunshots and observed a vehicle with male occupants and a male figure running toward the vehicle as it sped away, but neither witness could identify the individuals. After the shooting, Felix told Heidy that he had given her cousin's address to his friends and that they had " shot up" her cousin's house.
¶9 The police investigation led to Felix as the suspected shooter and the State charged him with nine counts of attempted first-degree murder, one count of attempted first-degree murder of a juvenile, nine counts of
aggravated assault with a deadly weapon, one count of aggravated assault of a juvenile, one count of assisting a criminal street gang, and one count of endangerment. The jury declined to convict Felix on the attempted first-degree murder counts, but found him guilty of ten counts of the lesser-included offense of attempted second-degree murder. The jury also found Felix guilty of ten counts of aggravated assault with a deadly weapon, one count of assisting a criminal street gang, and one count of endangerment. The jury found that the attempted murder, aggravated assault, and endangerment offenses were committed " with the intent to promote, further or assist any criminal conduct by a criminal street gang."
¶10 The trial court sentenced Felix to concurrent terms of 12 years' imprisonment on each of the attempted second-degree murder convictions, and a concurrent term of 3.5 years' imprisonment for assisting a criminal street gang. On each of the aggravated assault offenses with adult victims, the trial court sentenced him to concurrent terms of 10 years' imprisonment. For the aggravated assault conviction involving J.V., a dangerous crime against children, the court sentenced Felix to a consecutive term of 15 years' imprisonment. The court sentenced Felix to time served on the endangerment offense. Felix timely appeals.
¶11 Felix raises four arguments: (1) the trial court gave incorrect instructions on attempted second-degree murder and accomplice liability; (2) there was insufficient evidence to support his conviction of aggravated assault against J.V; (3) the trial court incorrectly ordered consecutive sentences based on its finding that the aggravated assault against J.V. was a dangerous crime against children; and (4) the trial court abused its discretion when it admitted photographs of a stuffed gorilla and a crib with bullet holes in them.
I. Improper Jury Instruction on Attempted Second-Degree Murder
¶12 The trial court instructed the jury on attempted first-degree premeditated murder and, without objection, instructed the jury as follows regarding the lesser-included offense of attempted second-degree murder:
The crime of second degree murder requires proof of one of the following.
The defendant or an accomplice attempted to intentionally cause the death of another person; or, two, the defendant or an accomplice attempted to knowingly cause the death of another person by conduct which the defendant knew would cause death or serious physical injury.
¶13 Felix challenges the portion of the instruction permitting the jury to return a guilty verdict on the alternative showing that Felix knew that his conduct " would cause death or serious physical injury." He did not object to the instruction at trial, and we are therefore limited to fundamental error review on appeal. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Felix has the burden to " establish both that fundamental error exists and that the error in this case caused him prejudice." Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.
A. Fundamental Error
¶14 " [I]nstructing a jury on a non-existent theory of criminal liability is fundamental error." State v. Dickinson, 233 Ariz. 527, 530, ¶ 12, 314 P.3d 1282, 1286 (App. 2013); State v. James, 231 Ariz. 490, 493, ¶ 13, 297 P.3d 182, 185 (App. 2013). In State v. Ontiveros, 206 Ariz. 539, 542, ¶ 14, 81 P.3d 330, 333 (App. 2003), this court held that attempted second-degree murder can be committed only when the defendant intended to kill the victim or knew that his conduct would cause death. See also Dickinson, 233 Ariz. at 530, ¶ 11, 314 P.3d at 1285 (following Ontiveros and recognizing that attempted second-degree murder cannot be " based on knowing merely that one's conduct will cause serious physical injury" ). Such an instruction potentially relieves the State of its burden of proving an element of the offense of attempted second-degree murder. Dickinson, 233 Ariz. at 531, ¶ 12, 314 P.3d at 1286. Consequently, instructing the jury that it
could convict Felix of attempted second-degree murder based on a finding that he knew that his conduct would merely cause serious physical injury resulted in fundamental error.
¶15 Fundamental error alone is not, however, sufficient grounds for reversal. Id. at 531, ¶ 13, 314 P.3d at 1286. To obtain relief based on an erroneous jury instruction, a defendant must also show prejudice, i.e. " that a reasonable jury 'could have reached a different result' had the jury been properly instructed." State v. James, 231 Ariz. 490, 494, ¶ 15, 297 P.3d ...