THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

VÁSQUEZ, Presiding Judge.

¶1 After a jury trial, David Gomez was convicted of first-degree murder. The trial court sentenced him to life imprisonment with the possibility of release after twenty-five years. On appeal, Gomez argues the court erred by failing to instruct the jury on the state's burden of proof for his justification defenses and by denying his motion for a mistrial based on a witness's testimony that he previously had been incarcerated. For the reasons that follow, we vacate the criminal restitution order but otherwise affirm Gomez's conviction and sentence.

Factual Background and Procedural History

¶2 We view the facts in the light most favorable to sustaining Gomez's conviction. See State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). In early September 2011, R.R. was asked to leave an "after-party" at R.G.'s house because R.G.'s mother didn't "feel safe when [he was] around." According to a witness, R.R. was angry, but he complied. About a week later, R.R. approached R.G. outside a Tucson nightclub. The two had a verbal altercation, and R.R. shot R.G. in the stomach. When R.R. turned and started to walk away, Gomez, who had been standing nearby, shot R.R. R.R. fell to the ground, and Gomez went inside the club. When Gomez came back outside a few moments later, he picked up R.R.'s gun and shot R.R. twice more near his chin, killing him.

¶3 Gomez was charged with first-degree murder. At trial, Gomez argued his actions were justified because he had been acting in self-defense or in defense of a third party. The jury found Gomez guilty, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

Jury Instructions

¶4 Gomez argues the trial court erred by failing to instruct the jury on the state's burden of proof for his justification defenses. Because Gomez did not object to the instructions provided, we review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). To prevail under this standard, Gomez must show both fundamental error and prejudice. Id. ¶ 20. Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). To prove prejudice, Gomez must show that, absent the error, a reasonable jury could have reached a different result. See Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609.

¶5 "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. § 13-205(A). A defendant need only present the "slightest evidence" that his conduct was justified to be entitled to a justification instruction. State v. Lujan, 136 Ariz. 102, 104, 664 P.2d 646, 648 (1983). If a defendant presents evidence that his conduct was justified, "the state must prove beyond a reasonable doubt that the defendant did not act with justification." § 13-205(A). The justification defenses include self-defense and defense of a third person. A.R.S. §§ 13-404, 13-406.

¶6 In Hunter, our supreme court held the trial court's failure to instruct the jury on the burden of proof for the defendant's self-defense claim constituted fundamental error in that case. 142 Ariz. at 90, 688 P.2d at 982. The self-defense law then was similar to the current § 13-205(A) and placed the burden of proof on the state. Hunter, 142 Ariz. at 89, 688 P.2d at 981. The trial court instructed the jury that the state must prove its case beyond a reasonable doubt and that "[i]f you decide the defendant's conduct was justified, you must find the defendant not guilty." Id. But, because the trial court failed to specify the state's burden with respect to self-defense, our supreme court noted the instructions could have misled the jury into thinking the defendant bore the burden of proof. Id. at 90, 688 P.2d at 982. Accordingly, the Hunter court concluded that the failure to specifically instruct on the burden of proof for self-defense constituted fundamental error and remanded the case for a new trial. Id.

¶7 The trial court similarly erred in this case. Although the court instructed the jury on the state's burden of proof generally and the elements of the justification defenses, the court did not instruct the jurors specifically on the state's burden of proof with regard to those defenses. As Gomez points out, and the state concedes, the court failed to instruct the jury that the state has the burden of proving beyond a reasonable doubt that the defendant did not act with justification and that, if the state failed to carry that burden, the jury must find the defendant not guilty. See § 13-205(A); see also State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Stat. Defs. 4.04, 4.06 (2013).

¶8 Assuming the trial court's error was fundamental, as Hunter suggests, Gomez nevertheless must prove prejudice to merit relief on appeal. See Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609. In State v. Valverde, our supreme court explained that Hunter did not create a per se rule that "prejudice inevitably results" when a court fails to instruct on the burden of proof for justification defenses. 220 Ariz. 582, ¶ 14, 208 P.3d 233, 237 (2009). When Valverde was decided, the defendant bore the burden of proving a justification defense at trial by a preponderance of the evidence. Id. ¶ 2. The trial court instructed the jury on the elements of self-defense and the state's burden of proof but did not explain the defendant's burden of proving self-defense by the lower standard. Id. ¶ 3. On review, our supreme court concluded that, despite any error, Valverde could not prove prejudice because the instructions "would most likely have led the jury to conclude that the State was required to prove beyond a reasonable doubt that Valverde did not act in self defense, an interpretation that would have helped rather than harmed Valverde." Id. ¶ 17.

¶9 Here, Gomez argues he was prejudiced because "[h]e would have been acquitted if the court had given the omitted instruction." This assertion, however, is speculative and insufficient to establish prejudice. See State v. Munninger, 213 Ariz. 393, ¶ 14, 142 P.3d 701, 705 (App. 2006) (defendant failed to meet burden to show prejudice by offering only speculation unsupported by record); see also Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607 (burden on defendant to demonstrate prejudice). Indeed, there is no indication in the record that the jury believed Gomez's justification defenses or that any possible confusion on the burden of proof would have affected their decision. See State v. Trostle, 191 Ariz. 4, 13, 951 P.2d 869, 878 (1997) (prejudice must appear affirmatively from record). Even properly instructed, no reasonable jury would have found Gomez acted in self-defense or defense of third persons.

¶10 Moreover, the state eliminated any potential prejudice to Gomez during closing arguments by clarifying that the state bore the burden of proof on the justification defenses. "[I]n evaluating the jury instructions, we consider the instructions in context and in conjunction with the closing arguments of counsel." State v. Johnson, 205 Ariz. 413, ¶ 11, 72 P.3d 343, 347 (App. 2003). During closing arguments in this case, the prosecutor said:

The trial court's instructions, coupled with the closing argument, therefore were sufficient to inform the jury that the state had to prove beyond a reasonable doubt that Gomez was not justified in shooting R.R. and that, if the state failed to do so, the jury must find him not guilty. Cf. State v. Karr, 221 Ariz. 319, ¶ 16, 212 P.3d 11, 15 (App. 2008). Gomez thus has failed to establish he was prejudiced by the court's failure to instruct the jury on the state's burden of proof for his justification defenses.

Motion for a Mistrial

¶11 Gomez also contends the trial court erred by denying his motion for a mistrial based on a witness's testimony that he previously had been incarcerated. We review the denial of a motion for a mistrial for an abuse of discretion. State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995). "A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." Id. "We will not reverse a conviction based on the erroneous admission of evidence without a `reasonable probability' that the verdict would have been different had the evidence not been admitted." State v. Hoskins, 199 Ariz. 127, ¶ 57, 14 P.3d 997, 1012-13 (2000).

¶12 During direct examination of S.L., a former nightclub employee whose boyfriend was a friend of Gomez, the following occurred:

In a bench conference, defense counsel then moved for a mistrial because S.L. had "blurt[ed] out [Gomez] had just gotten out of jail." The prosecutor explained that he thought S.L. would say eight or nine months without mentioning jail.

¶13 Later that afternoon, relying on State v. Bailey, 160 Ariz. 277, 772 P.2d 1130 (1989), the trial court concluded "th[e] comment does not require a mistrial automatically." Without foreclosing the possibility of a curative instruction, the court then implicitly denied the motion for a mistrial, noting the answer had been stricken and the jurors might not have heard the remark in any event. The next day, the court revisited the issue of a curative instruction, which defense counsel declined, explaining: "[A]t this point I really don't want to focus on it. . . . I think there's been so much evidence, to focus on it would just highlight [it]." The prosecutor and the court agreed that S.L.'s remark was "d[e]minimus, given the nature of the case, the evidence, [and] the testimony," and the court decided to take no further action.

¶14 In State v. Hallman, our supreme court set forth the factors a trial court must consider in deciding whether to grant a motion for a mistrial based on a witness's testimony. 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983). The court must determine: (1) whether the testimony called to the jurors' attention matters they would not be justified in considering in reaching their verdict, and (2) the probability under the circumstances of the case that the testimony influenced the jurors. See also State v. Laird, 186 Ariz. 203, 207, 920 P.2d 769, 773 (1996). The purpose of this inquiry is to ascertain whether an improper remark denied the defendant a fair trial. Bailey, 160 Ariz. at 279, 772 P.2d at 1132.

¶15 In Bailey, upon which the trial court relied, defense counsel unsuccessfully moved for a mistrial after a witness "implied that [the] defendant had previously served time in prison." 160 Ariz. at 279, 772 P.2d at 1132. On review, our supreme court applied the Hallman test and affirmed. Id. at 280, 772 P.2d at 1133. The court noted that the first factor was "arguably satisfied" because the defendant did not testify and his prior felony convictions, including any evidence he had spent time in prison, were inadmissible. Id. But, under the second factor, the court concluded the witness's statements were "fairly innocuous" and, even if the jurors had concluded the defendant had been incarcerated previously, they did not know how much time he had spent in prison or for what crime. Id. And, because the trial court "was in the best position to gauge the impact of the statements on the jury," the court found no abuse of discretion in the denial of the defendant's motion for a mistrial. Id.

¶16 Gomez argues that S.L.'s statement is "clearly distinguishable" from the situation in Bailey because "there were no implications or doubts during [S.L.'s] testimony that [Gomez] had been in jail." He thus maintains the trial court erred in relying on that case to deny his motion for a mistrial. Although we agree Bailey presents a slightly different factual scenario, we nevertheless find its reasoning instructive. As the court did in Bailey, we apply the Hallman test here.

¶17 Even assuming S.L.'s remark amounted to an improper statement on Gomez's criminal history because he did not testify, see Ariz. R. Evid. 404(b); Bailey, 160 Ariz. at 280, 772 P.2d at 1133, the trial court did not abuse its discretion by determining the jury was not so influenced by the remark that Gomez was denied a fair trial. See Laird, 186 Ariz. at 207, 920 P.2d at 773. S.L.'s one fleeting reference to Gomez's previous incarceration was made during a four-day trial. Like the situation in Bailey, S.L. did not discuss how long or why Gomez had been jailed. Cf. State v. Jones, 197 Ariz. 290, ¶ 34, 4 P.3d 345, 360 (2000) ("vague references to unproven crimes and incarcerations" not unduly prejudicial). The court struck S.L.'s answer and told the jury not to consider it; we presume the jury followed the court's instructions. See State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). The prosecutor did not refer to the remark during the remainder of the trial, and, at the court's direction, none of the other witnesses testified about Gomez's criminal history. Cf. State v. Stuard, 176 Ariz. 589, 601-02, 863 P.2d 881, 893-94 (1993) (testimony defendant previously in prison not prejudicial because "short remark," minimized by objection made in side-bar conference, and not further mentioned).

¶18 Moreover, the record contains overwhelming evidence of Gomez's guilt. See Hoskins, 199 Ariz. 127, ¶ 58, 14 P.3d at 1013 (affirming denial of mistrial based on "strong circumstantial evidence of defendant's guilt"). Gomez admitted to shooting R.R. but claimed he had done so to defend himself and others. However, the state presented evidence that R.R. had shot R.G. in response to an earlier confrontation and that R.R. had not threatened anyone else when Gomez shot him. Additionally, while R.R. was lying on the ground wounded, Gomez returned and shot him twice more in the chin. Although the medical examiner could not definitively establish which wound ultimately killed R.R., he testified that the first shot to the chin "had a high[] likelihood of causing instantaneous death." The court therefore did not abuse its discretion in denying the motion for a mistrial. See Murray, 184 Ariz. at 35, 906 P.2d at 568.

Criminal Restitution Order

¶19 Although Gomez has not raised the issue on appeal, we find fundamental error in the sentencing minute entry, which states "all fines, fees, assessments and/or restitution are reduced to a Criminal Restitution Order [CRO], with no interest, penalties or collection fees to accrue while the defendant is in the Department of Corrections." See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650-51 (App. 2007) (we will not ignore fundamental error when found). "[T]he imposition of a CRO before the defendant's probation or sentence has expired `constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Nothing in A.R.S. § 13-805,1 which governs the imposition of CROs, "permits a court to delay or alter the accrual of interest when a CRO is `recorded and enforced as any civil judgment' pursuant to § 13-805(C)." Lopez, 231 Ariz. 561, ¶ 5, 298 P.3d at 910.

Disposition

¶20 For the foregoing reasons, we vacate the CRO but otherwise affirm Gomez's conviction and sentence.

JOSEPH W. HOWARD, Chief Judge, J. WILLIAM BRAMMER, JR., Judge*, concurring.