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State v. Corona2/11/1997
n the defendant's flight and on consideration of evidence of prior bad acts;
4. Whether the prosecutor committed misconduct, amounting to fundamental error, by vouching for witnesses and in misdefining "reasonable doubt" during closing argument;
5. Whether the court erred in denying his motion for a mistrial based on evidence of his prior arrests;
6. Whether fundamental error occurred when the state's gang expert delivered an improper opinion;
7. Whether the jury's verdicts were the product of undue pressure; and
8. Whether the court erred when it received the verdicts in the defendant's absence.
In the appeal from the revocation of his probation, defense counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking that we review the record for reversible error. The defendant was permitted to file a supplemental brief in propria persona but he did not do so.
Discussion
A. Denial of Lesser-included-offense Instruction
The defendant argues that the trial court erred in denying his requested jury instruction on threatening and intimidating as a class 1 misdemeanor under ARIZ. REV. STAT. ANN. ("A.R.S.") section 13-1202(A)(1) and (B), a lesser-included offense of the class 4 felony under section 13-1202(A)(3) and (B). To decide if the defendant was entitled to the instruction, we first determine whether the misdemeanor was a lesser-included offense of the felony. According to State v. Gooch, 139 Ariz. 365, 366, 678 P.2d 946, 947 (1984), such an instruction is warranted if (1) the included offense is always a constituent part of the greater offense or (2) if the charging document described the lesser offense even though it would not always form a constituent part of the greater offense. See also State v. Magana, 178 Ariz. 416, 418, 874 P.2d 973, 975 (App. 1994).
The state argues that misdemeanor threatening and intimidating is not always a lesser-included offense because it may be committed by a threat to cause "serious" damage. It continues that, because a threat to cause "serious" damage is not required under section 13-1202(A)(3), the alleged lesser offense contains an element not contained in the greater. The state ignores, however, the second part of the Gooch test: whether "the charging document described the lesser offense." 139 Ariz. at 366, 678 P.2d at 947. In this case, the information charged the separate offenses against A.L. and B.L. in identical terms:
JAMES M. CORONA, on or about the 30th day of October, 1994, threatened or intimidated by word or conduct to cause physical injury to [victim], in order to promote, further or assist in the interests of or to cause, induce, or solicit another person to participate in a criminal street gang, a criminal syndicate or a racketeering enterprise, in violation of A.R.S. §§ 13-1202, 13-702, 13-702, and 13-801.
(Emphasis added.) Thus the information clearly described the misdemeanor.
Further, a lesser-included offense instruction is required if the jury could rationally find that the state failed to prove the element of the greater offense that distinguished it from the lesser offense. State v. Kinkade, 147 Ariz. 250, 253, 709 P.2d 884, 887 (1985). The jury in this case could have made that distinction. Although the defendant denied at trial that he had threatened A.L. and B.L., other evidence, such as his testimony that retaliating against a Hollywood "gang family" was impossible, supported the contention that any threats which he made stemmed from personal, not gang-relate
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