SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0292-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0696
JESUS VALVERDE, JR., )
) Maricopa County
Appellant. ) Superior Court
) No. CR2006-119293-001 DT
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable J. Richard Gama, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
220 Ariz. 171, 204 P.3d 429 (App. 2008)
VACATED
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TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona
LAW OFFICE OF NICOLE T. FARNUM Tempe
By Nicole T. Farnum
Attorney for Jesus Valverde, Jr.
________________________________________________________________
B A L E S, Justice
¶1 The trial court, without objection, failed to instruct
the jury that the defendant, rather than the State, had the
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burden of proof on self-defense under the applicable law.
Because the defendant has not shown prejudice from the omitted
instruction, it is not fundamental error.
FACTS AND PROCEDURAL BACKGROUND
¶2 Jesus Valverde, Jr. was charged with aggravated
assault. At trial, he admitted committing the assault on April
19, 2006, but claimed he had acted in self-defense. The
applicable statute provided that “a defendant shall prove any
affirmative defense raised by a preponderance of the evidence.”
Ariz. Rev. Stat. (“A.R.S.”) § 13-205 (2001).1
¶3 Valverde’s attorney asked the court to instruct the
jury on the elements of self-defense and the State’s burden of
proof beyond a reasonable doubt, but did not request and the
trial court did not give an instruction explaining Valverde’s
burden to prove self-defense by a preponderance of the evidence.
With regard to self-defense, the trial court, without objection,
instructed the jury:
Justification for Self-Defense. A defendant is
justified in using or threatening physical force in
self-defense if the following two conditions existed:
1
On April 24, 2006, the Legislature amended A.R.S. § 13-205
to provide that, if a defendant provides evidence of
justification pursuant to chapter 4 of title 13, “the state must
prove beyond a reasonable doubt that the defendant did not act
with justification.” 2006 Ariz. Sess. Laws, ch. 199, § 2 (2d
Reg. Sess.). The 2006 amendment does not apply to offenses
committed before its effective date. Garcia v. Browning, 214
Ariz. 250, 251 ¶ 1, 151 P.3d 533, 534 (2007).
2
1. A reasonable person in the defendant’s situation
would have believed that physical force was
immediately necessary to protect against
another’s use or attempted use of unlawful
physical force; and
2. The defendant used or threatened no more physical
force than would have appeared necessary to a
reasonable person in the defendant’s situation.
Self-defense justifies the use or threat of
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 physical force is justified if a
reasonable person in the situation would have
reasonably believed that immediate physical danger
appeared to be present. Actual danger is not
necessary to justify the use of physical force or
deadly physical force in self-defense.
You must decide whether a reasonable person in a
similar situation would believe that physical force
was immediately necessary to protect against another’s
use of unlawful physical force. You must measure the
defendant’s belief against what a reasonable person in
the situation would have believed.
¶4 The jury found Valverde guilty of aggravated assault,
and the trial court sentenced him to the presumptive term of 7.5
years’ imprisonment.
¶5 On appeal, Valverde argued that the trial court erred
by not instructing the jury that self-defense is an affirmative
defense that the defendant must prove by a preponderance of the
evidence. State v. Valverde, 220 Ariz. 171, 173 ¶ 7, 204 P.3d
429, 431 (App. 2008). Because Valverde did not request an
instruction on his burden of proof or object to the instruction
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given, the court of appeals properly reviewed the instructions
for fundamental error. Id. at ¶ 8 (citing State v. Henderson,
210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005)).
¶6 The court of appeals, citing State v. Hunter, 142
Ariz. 88, 90, 688 P.2d 980, 982 (1984), concluded that “failure
to properly instruct the jury regarding the defendant’s burden
of proof on self-defense is fundamental error.” Valverde, 220
Ariz. at 174 ¶ 10, 204 P.3d at 432. The court acknowledged that
Hunter predated Henderson’s comprehensive discussion of
fundamental error but noted that Henderson cited Hunter
approvingly. Id. at ¶ 11. The court interpreted the two
opinions as recognizing that a failure to properly instruct on
the defendant’s burden of proof is both fundamental and
prejudicial. Id. Accordingly, the court vacated Valverde’s
conviction and remanded for a new trial. Id. at ¶ 13.
¶7 Three months later, in a case involving similar facts,
another panel of the court of appeals concluded that no
prejudice resulted from a trial court’s failure to instruct on
the defendant’s burden of proof for self-defense. State v.
Karr, 545 Ariz. Adv. Rep. 3, 4 ¶ 15 (App. Dec. 18, 2008).
¶8 We granted review to resolve the conflict between the
opinions of the court of appeals and to reconcile our opinions
in Hunter and Henderson. Our jurisdiction is based on Article
6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-
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120.24 (2003).
DISCUSSION
I.
¶9 Alleged trial court error in criminal cases may be
subject to one of three standards of review: structural error,
harmless error, or fundamental error. Each type of error places
a different burden of proof on the parties.
¶10 Structural error “deprive[s] defendants of basic
protections without which a criminal trial cannot reliably serve
its function as a vehicle for determination of guilt or
innocence,” State v. Ring (Ring III), 204 Ariz. 534, 552 ¶ 45,
65 P.3d 915, 933 (2003) (internal quotation marks omitted), and
“therefore is limited to such circumstances as denial of counsel
or a biased [trier or fact],” State v. Garza, 216 Ariz. 56, 63
n.6 ¶ 20, 163 P.3d 1006, 1013 n.6 (2007).2 If an appellate court
finds structural error, reversal is mandated regardless of
2
In Ring III, we identified instances in which the United
States Supreme Court has found structural error.
Those instances involve errors such as a biased trial
judge, complete denial of criminal defense counsel,
denial of access to criminal defense counsel during an
overnight trial recess, denial of self-representation
in criminal cases, defective reasonable doubt jury
instructions, exclusion of jurors of the defendant’s
race from grand jury selection, excusing a juror
because of his views on capital punishment, and denial
of a public criminal trial.
204 Ariz. at 552-53 ¶ 46, 65 P.3d at 933-34 (footnotes omitted).
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whether an objection is made below or prejudice is found. If
error is structural, prejudice is presumed. United States v.
Warner, 498 F.3d 666, 704 (7th Cir. 2007).
¶11 Harmless error review, in contrast, applies in cases
in which the defendant properly objects to non-structural error.
Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at 607. A reviewing
court will affirm a conviction despite the error if it is
harmless, that is, if the state, “in light of all of the
evidence,” can establish beyond a reasonable doubt that the
error did not contribute to or affect the verdict. State v.
Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). “‘The
inquiry . . . is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was
surely unattributable to the error.’” State v. Anthony, 218
Ariz. 439, 446 ¶ 39, 189 P.3d 366, 373 (2008) (quoting Bible,
175 Ariz. at 588, 858 P.2d at 1191).
¶12 If no objection is made at trial, and the error
alleged does not rise to the level of structural error, we
review only for fundamental error. Henderson, 210 Ariz. at 567
¶¶ 19, 115 P.3d at 607. Fundamental error is limited to “those
rare cases that involve ‘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
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could not possibly have received a fair trial.’” Id. (quoting
Hunter, 142 Ariz. at 90, 688 P.2d at 982). The defendant bears
the burden of proving both that the error was fundamental and
that the error caused him prejudice. Id. at ¶ 20. We place
this burden on the defendant “to discourage a defendant from
‘tak[ing] his chances on a favorable verdict, reserving the
“hole card” of a later appeal on [a] matter that was curable at
trial, and then seek[ing] appellate reversal.’” Id. at ¶ 19
(quoting State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313, 317-
18 (1989)). Because fundamental error review is a fact-
intensive inquiry, the showing necessary to demonstrate
prejudice will vary on a case-by-case basis. Id. at 568 ¶ 26,
115 P.3d at 608.
II.
¶13 In Hunter, we held that the failure to instruct on the
burden of proof as to the defendant’s self-defense claim
constituted fundamental error in that case. 142 Ariz. at 90,
688 P.2d at 982. At the time, Arizona law required that the
state prove “all of its case against a defendant beyond a
reasonable doubt[,]” including rebuttal of self-defense. Id. at
89, 688 P.2d at 981. Thus, when a defendant claimed self-
defense, he was required only to “present evidence sufficient to
raise a reasonable doubt about whether his conduct was
justified” and was not required to “prove that he properly acted
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in self-defense.” Id. 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. Because the trial court
instructed jurors generally on the state’s burden, but failed to
set forth the burden with respect to self-defense, we concluded
that the instructions could mislead or confuse the jury. Id. at
90, 688 P.2d at 982. Concerned that the jury could have
interpreted the instruction as impermissibly shifting the burden
of proof to the defendant, we found that the failure to
specifically instruct on the burden of proof constituted
fundamental error. Id.
¶14 In Henderson, we cited Hunter to illustrate the
application of fundamental error analysis. Henderson, 210 Ariz.
at 567 ¶¶ 19-20, 115 P.3d at 607. We neither held nor stated
that Hunter established that prejudice inevitably results when a
court fails to instruct on the defendant’s burden of proof in
self-defense cases. Instead, in Henderson, we cited Hunter for
the proposition that a “defendant must demonstrate how [a]
faulty jury instruction prejudiced him.” Id. at 569 ¶ 26, 688
P.2d at 609. To the extent the Valverde court interpreted
either Henderson or Hunter as establishing a per se rule, the
court of appeals erred by conflating fundamental error with
structural error.
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III.
¶15 Assuming that the omission of an instruction on the
defendant’s burden was fundamental in nature, an issue we need
not address here, we must consider whether Valverde showed that
the error resulted in prejudice in the circumstances of his
case. On this issue, it is notable that Valverde, unlike the
defendant in Hunter, actually had the burden of proving self-
defense by a preponderance of the evidence. The trial court
instructed the jury that Valverde did not have to prove his
innocence and that the State was required to prove beyond a
reasonable doubt that he was guilty.
¶16 In assessing the impact of an erroneous instruction,
we also consider the attorneys’ statements to the jury. State
v. Kinkade, 140 Ariz. 91, 94-95, 680 P.2d 801, 804-05 (1984).
In her opening statement, Valverde’s counsel said: “This was
self-defense. The State cannot prove its case to you beyond a
reasonable doubt.” During closing arguments, she again argued:
“The State here can’t meet its burden. This is a justifiable
use of force.” The lawyers did not otherwise address the burden
of proof in their closing arguments.
¶17 In light of defense counsel’s statements, Valverde
cannot show that he was prejudiced by the trial court’s failing
to instruct the jury as to his burden of proving self-defense.
The trial court’s omission would most likely have led the jury
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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.
IV.
¶18 Because the trial court’s failure to specifically
instruct on Valverde’s burden of proof for self-defense did not
prejudice Valverde, we vacate the opinion of the court of
appeals and affirm the judgment of the trial court.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
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Ruth V. McGregor, Chief Justice
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Rebecca White Berch, Vice Chief Justice
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Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
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