330 P.3d 1018
Ariz. Ct. App.2014Background
- Defendant Christepher Lua shot two men after a confrontation outside a convenience store; he admitted shooting one because he believed the victim had a gun.
- Charged originally with attempted first-degree murder (two counts), aggravated assault (two counts), and assisting a criminal street gang; later amended to attempted second-degree murder for the murder counts and joined with a separate weapons charge.
- At trial the court instructed the jury that attempted manslaughter on sudden quarrel/heat of passion (provocation manslaughter) was a lesser-included offense of attempted second-degree murder; Lua objected.
- The jury convicted Lua of two counts of attempted manslaughter, two counts of aggravated assault, one count of assisting a criminal street gang, and one weapons count.
- On appeal Lua argued the court erred by instructing on provocation manslaughter because it is not a lesser-included offense of second-degree murder; the court considered whether the ‘‘elements test’’ is satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether provocation manslaughter (A.R.S. § 13-1103(A)(2)) is a lesser-included offense of second-degree murder | State: Provocation manslaughter is comprised solely of elements of second-degree murder and may be a lesser-included offense | Lua: Peak and related reasoning show provocation manslaughter requires a different circumstance and is not a true lesser-included offense | Court held provocation manslaughter is a lesser-included offense of second-degree murder because the ‘‘different circumstance’’ (sudden quarrel/heat of passion) is not an extra element the State must prove, so instructing on attempted manslaughter was proper |
Key Cases Cited
- Peak v. Acuna, 203 Ariz. 83 (Ariz. 2002) (discussed distinction that provocation manslaughter specifies a different circumstance but did not hold it was not lesser-included)
- State v. Kamai, 184 Ariz. 620 (App. 1995) (statutory phrase distinguishing offenses does not always create a separate element the State must prove)
- State v. Cheramie, 218 Ariz. 447 (App. 2008) (de novo review and elements test for lesser-included offenses)
- State v. Hines, 232 Ariz. 607 (App. 2013) (articulation of the elements test: lesser-included offense must be comprised solely of some, but not all, elements of the greater offense)