IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
LAZARO ENRIQUE VILLA JR.,
Appellant.
No 2 CA-CR 2023-0196
Filed April 19, 2024
Appeal from the Superior Court in Pima County
No. CR20212256001
The Honorable James E. Marner, Judge
AFFIRMED
COUNSEL
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Ashley Torkelson Levine, Assistant Attorney General, Phoenix
Counsel for Appellee
James Fullin, Pima County Legal Defender
By Alex Heveri, Assistant Legal Defender, Tucson
Counsel for Appellant
STATE v. VILLA
Opinion of the Court
OPINION
Judge O’Neil authored the opinion of the Court, in which Vice Chief
Judge Staring and Judge Sklar concurred.
O’ N E I L, Judge:
¶1 Lazaro Villa, Jr. killed one person and injured another when
he opened fire on another driver after a near collision at a gas station.
Convicted of first-degree murder, he asserts the trial court should have
instructed the jury on manslaughter as a lesser-included offense. He argues
the harm was exacerbated by a purported error in the prosecutor’s closing
argument concerning when the jury should consider a lesser-included
offense. We conclude that the evidence did not support a manslaughter
instruction, and any error in the prosecutor’s argument was neither
fundamental nor prejudicial. We therefore affirm Villa’s convictions and
sentences.
Background
¶2 We consider the facts and all reasonable inferences in favor of
affirming the verdict. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). Villa was
driving his stepmother home from running errands. On the way, he
stopped at a Circle K. Villa filled the truck with gas while his stepmother
went inside. Villa finished at the pump, then went to pick up his
stepmother at the front of the store. After she had gotten back into the truck,
Villa started backing up.
¶3 Villa’s “anger kicked in” when another car “almost hit” him.
As the other driver began to drive past, Villa pulled his truck forward and
stopped alongside and slightly in front of the other car. The car stopped.
Villa picked up his gun, opened his door, and began firing. Villa fired either
five or six rounds. Five shots struck the driver, J.T., in an area of just over
six square inches. Bullets penetrated his heart, lung, and soft tissue, killing
him. J.T.’s son was sitting next to J.T. in the passenger seat and was injured
by shrapnel. An additional shot may have flattened J.T.’s tire.
¶4 At trial, the state argued both premeditation and felony
murder as alternative theories to support a first-degree murder charge. The
trial court also instructed the jury on second-degree murder as a lesser-
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STATE v. VILLA
Opinion of the Court
included offense, under alternative theories that Villa caused J.T.’s death
either knowingly or intentionally. Although only six of the jurors found
that the state had proven premeditation, the jury unanimously agreed on
the felony murder theory and found Villa guilty of first-degree murder.
The court sentenced Villa to natural life in prison for first-degree murder, a
consecutive fifteen years’ imprisonment for aggravated assault, and a
concurrent twenty-one years’ imprisonment for drive-by shooting. We
have jurisdiction over his appeal. A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A)(1).
Manslaughter Instruction
¶5 Villa argues the trial court erred when it denied his request to
give a lesser-included jury instruction for manslaughter. A court must give
any requested lesser-included instruction that the evidence supports. State
v. Vickers, 159 Ariz. 532, 542 (1989). We review the decision to deny a
requested jury instruction for abuse of discretion. See State v. Price, 218 Ariz.
311, ¶ 21 (App. 2008). Villa has shown no error.
¶6 Villa asserts the evidence supported a manslaughter
instruction under a theory that he “recklessly caused the death of” J.T.1 See
A.R.S. § 13-1103(A)(1). Villa’s argument rests on his contention that he
killed J.T. in the “heat of passion.” He argues “[i]f the jury believed that
Appellant reacted in a heat of passion after being or almost being struck by
the victim’s vehicle, and that he shot his gun recklessly, creating a grave
risk of death and thereby caused the death of another, they could have
properly convicted him of manslaughter upon the appropriate
instructions.”
¶7 Reckless manslaughter is a lesser-included offense of first-
degree premeditated murder and knowing or intentional second-degree
murder. See State v. Sprang, 227 Ariz. 10, ¶ 6 (App. 2011); State v. Valenzuela,
194 Ariz. 404, ¶ 16 (1999); State v. Hurley, 197 Ariz. 400, ¶¶ 12-14 (App.
2000). Premeditated murder and the theories of second-degree murder at
issue in this case involve either intentionally or knowingly causing the
death of another person. A.R.S. §§ 13-1104(A)(1), (2), 1105(A)(1). Reckless
1Villa raised an additional theory for the first time on appeal:
he
committed provocation manslaughter “on a sudden quarrel or heat of
passion resulting from adequate provocation by the victim.” See A.R.S.
§ 13-1103(A)(2). He has withdrawn that argument, however, noting “that
argument was an error.”
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Opinion of the Court
manslaughter, by contrast, requires proof that the defendant caused the
person’s death recklessly. § 13-1103(A)(1). A defendant acts “recklessly”
when he “is aware of and consciously disregards a substantial and
unjustifiable risk.” A.R.S. § 13-105(10)(c). As the trial court correctly
determined, the evidence did not support a manslaughter instruction. On
this record, a reasonable jury could not have concluded that Villa’s actions
were less than knowing or intentional.
¶8 A defendant acts “knowingly” when he “is aware or believes”
his conduct is of a certain nature, as “described by a statute defining an
offense.” § 13-105(10)(b). A defendant acts “intentionally” when his
“objective is to . . . engage in that conduct.” § 13-105(10)(a). Villa did not
consciously disregard a risk that he would shoot at J.T.’s vehicle. See § 13-
105(10)(c). Villa admitted that he “made a bad decision” when he pointed
his gun “straight back” towards J.T.’s car and began firing. That conduct
meets the statutory definition of a drive-by shooting. See A.R.S. § 13-
1209(A) (“A person commits drive by shooting by intentionally discharging
a weapon from a motor vehicle at a person, another occupied motor vehicle
or an occupied structure.”). Villa could have had no other objective than to
engage in that conduct when he stopped his truck, picked up his gun,
opened his door, aimed in the direction of the victim’s vehicle, and began
pulling the trigger, firing one round into J.T.’s tire and five more into an
area of six by six-and-a-half inches on J.T.’s body. See Vickers, 159 Ariz. at
542 (record did not support reckless manslaughter instruction where
“[d]efendant did not recklessly disregard the risk,” but rather “[d]efendant
created the risk”).
¶9 Villa nonetheless suggests that he acted only recklessly
because he acted in the “heat of passion” when he “became enraged and
blacked out.” He implies his actions were not intentional because in his
anger, he “was not thinking.” His argument finds no support in the law.
¶10 Villa’s argument conflates the “heat of passion” necessary for
provocation manslaughter with the mental state required for reckless
manslaughter. See § 13-1103(A)(1), (2). Unlike provocation manslaughter,
the statutory language applicable to reckless manslaughter makes no
reference to a defendant’s “heat of passion.” See § 13-1103(A)(1), (2).
Section 13-1103(A)(2) provides that second-degree murder may be reduced
to provocation manslaughter when committed “on a sudden quarrel or heat
of passion,” so long as it results “from adequate provocation by the victim.”
Application of that provision presupposes that a defendant has committed
second-degree murder under any of three subsections in § 13-1104(A), two
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Opinion of the Court
of which require a knowing or intentional act. See § 13-1104(A)(1), (2). It
necessarily follows that provocation manslaughter can be a knowing or
intentional homicide. See A.R.S. §§ 13-105(10)(a), (b), 13-1101(2), 13-
1103(A)(2), 13-1104(A)(1), (2). Indeed, “[a]dequate provocation,” as defined
in § 13-1101(4), “means conduct or circumstances sufficient to deprive a
reasonable person of self-control.” Thus, a person may act in the “heat of
passion,” under circumstances that would deprive a reasonable person of
self-control, yet remain guilty of committing a knowing or intentional act.
§ 13-1103(A)(2); see also § 13-1104(A)(1), (2).
¶11 Under the circumstances defined by § 13-1103(A)(2) for
provocation manslaughter, the “heat of passion” might reduce a second-
degree murder charge to manslaughter, but it does not convert a knowing
or intentional act into mere recklessness. See § 13-105(10)(a)-(c). Anger does
not negate intent. The evidence in this case did not support a reckless
manslaughter instruction.
¶12 Nor was Villa prejudiced by the trial court’s decision. The
jury was instructed on second-degree murder as a lesser-included offense
of first-degree premeditated murder. The jury’s rejection of that theory
amounted to an implicit rejection of any other lesser offenses. See State v.
White, 144 Ariz. 245, 247 (1985).
¶13 Moreover, manslaughter is not a lesser-included offense of
first-degree felony murder, the theory on which the jury unanimously
agreed. See State v. Canion, 199 Ariz. 227, ¶ 15 (App. 2000) (“[T]here are no
lesser-included offenses to felony murder.”). The jury was instructed on
both felony murder and premeditated murder as alternate theories of first-
degree murder. The jury could have considered a lesser offense to
premeditated murder only after it had first considered each of the first-
degree murder theories. See id. ¶ 19. The jury’s verdict on the felony
murder theory precluded consideration of any lesser offense. See id.
¶14 The felony murder theory required proof that Villa
committed a “drive by shooting under § 13-1209 . . . and, in the course of
and in furtherance of the offense[,] . . . cause[d] the death of [J.T.]” A.R.S.
§ 13-1105(A)(2). Felony murder “requires no specific mental state other
than what is required for the commission of” the underlying drive-by
shooting. § 13-1105(B). A “drive by shooting” under § 13-1209 means
“intentionally discharging a weapon from a motor vehicle at a person,
another occupied motor vehicle or an occupied structure.” Thus, to be
guilty of felony murder, Villa need not have caused J.T.’s death
intentionally, knowingly, or even recklessly. He need only have
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Opinion of the Court
intentionally discharged his weapon at J.T. or his vehicle. Because it had
found Villa guilty of felony murder, the jury could not have reached
manslaughter as a lesser-included offense even if it had accepted Villa’s
contention that he caused J.T.’s death only recklessly.
Closing Argument
¶15 Villa also argues a portion of the prosecutor’s closing
argument “set forth the wrong standard for when the jury could consider
second-degree murder.” Villa did not object to the prosecutor’s comments
at trial, so we will reverse only upon a showing of fundamental error and
resulting prejudice. State v. Escalante, 245 Ariz. 135, ¶ 1 (2018) (“When a
defendant fails to object to trial error, he forfeits appellate relief absent a
showing of fundamental error.”). Villa has demonstrated neither.
¶16 The prosecutor’s comments came during the state’s rebuttal
to Villa’s closing argument. Villa had argued that “[s]econd-degree murder
is the same as first-degree murder,” but “[i]t’s just without premeditation.”
He told the jury that “without this premeditation, it drops to second-degree
murder.” He argued his actions were neither intentional nor premeditated
because there was “no time to formulate intent,” and both premeditation
and intent “require reflection.” He stated that intent is “not just quick
reaction,” but it “requires formulation.”
¶17 In rebuttal, the prosecutor asserted that Villa’s arguments
“mix[ed] premeditation with the intent that’s required under” the felony
murder theory. He stated it was “[r]eally important that you pay attention
to the substance of your jury instructions.” Referring to those instructions,
he argued that “nowhere in the definition of intent is there anything about
time or reflection.” And he argued that to the extent Villa had asked the
jury to move from its consideration of “first-degree premeditated murder,
way straight down to . . . second-degree” murder, “that’s not the law you’re
following.” Instead, the prosecutor summarized the trial court’s lesser-
included instruction as follows:
You must consider fully and completely both
first-degree premeditated murder and felony
murder, and only after you have considered
both of those, both and completely, and you can
agree on those or you find him not guilty on
those, only then can you move down to second-
degree murder.
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STATE v. VILLA
Opinion of the Court
¶18 Villa asserts the prosecutor thus “argued an improper
procedure” that required the jury “to first acquit [Villa] of premeditated
and then felony murder before it could” consider second-degree murder as
a lesser-included offense. See State v. LeBlanc, 186 Ariz. 437, 438-39 (1996).
Although LeBlanc rejected the “acquittal-first requirement” in favor of the
“reasonable efforts” procedure when instructing a jury to consider a lesser-
included offense, it also stated that “the giving of a[n acquittal-first]
instruction does not rise to the level of fundamental error.” Id. at 439-40 &
440. Thus, although an argument directing jurors to apply an acquittal-first
requirement would constitute error, any error in the prosecutor’s comments
was not fundamental.
¶19 Moreover, Villa has not demonstrated prejudice. What the
prosecutor intended to convey is unclear. Villa reads the prosecutor’s
comments to exclude the possibility that the jury could consider the lesser
offense if it was unable to agree on first-degree murder. The state argues
the prosecutor simply misspoke. Regardless, we conclude these few
imprecise words, brief and ancillary to the prosecutor’s argument, would
not have misled the jury. Villa concedes that the trial court properly
instructed the jury. A proper instruction can be enough to cure a
prosecutor’s improper comments. See State v. Haverstick, 234 Ariz. 161, ¶ 6
(App. 2014); see also State v. Newell, 212 Ariz. 389, ¶¶ 67-68 (2006). The jury
instructions and verdict form each correctly directed the jury to consider
the lesser offense “[i]f [you] find the defendant not guilty of the crimes of
first-degree premeditated murder and felony murder, or if after careful
deliberation you cannot agree upon a verdict.” Viewed in the context of the
entire argument and the instructions to the jury, the prosecutor’s comments
were not prejudicial.
Disposition
¶20 We affirm the convictions and sentences.
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