                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                       VICTOR KYLE LIZARDI,
                            Appellant.

                      No. 2 CA-CR 2013-0188
                       Filed April 11, 2014

         Appeal from the Superior Court in Pima County
                      No. CR20112911001
             The Honorable Teresa Godoy, Judge

                           AFFIRMED


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant


                            OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Howard concurred.
                        STATE v. LIZARDI
                        Opinion of the Court


M I L L E R, Judge:

¶1           Victor Lizardi appeals his convictions and sentences for
first-degree murder and possession of a deadly weapon by a
prohibited possessor, contending the trial court erred in its
premeditation instruction, its determination he was “on parole” at
the time of the prohibited possessor offense, and its order for
restitution to the Crime Victim Compensation Fund. For the
following reasons, we affirm the convictions and sentences.

                Factual and Procedural Background

¶2           We view the facts in the light most favorable to
sustaining the jury’s verdicts and resolve all inferences against
Lizardi. See State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914
(2005). In August 2011, Lizardi was visiting friends in their
apartment. He showed one of the residents bullets he had placed in
the cabinet above the refrigerator. Lizardi left the apartment, but
returned later with a gun, which appeared to be unloaded because
he cocked it repeatedly. After another resident, D.C., told Lizardi to
leave with the gun, D.C. saw him reach for the top of the refrigerator
before walking to the outside door. Shortly thereafter, D.C. heard a
gunshot, ran toward the sound, and observed Lizardi running out of
the apartment. The victim, M.S., was dead on his bed from a single
gunshot wound to the mouth. Soon after the shooting, Lizardi sent
a text message to one of the residents saying, “Don’t say sh--. I did
everyone a favor.”

¶3           Lizardi was arrested and charged with first-degree
murder and possession of a deadly weapon by a prohibited
possessor. At his request, the counts were severed, and Lizardi
agreed that the trial court would act as fact finder for the prohibited
possessor count. The jury found him guilty of murder, and the court
found him guilty on the other count. Lizardi received concurrent
sentences, the longest of which was life in prison without the
possibility of release on any basis for twenty-five years.




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                        STATE v. LIZARDI
                        Opinion of the Court

                     Premeditation Instruction

¶4            Lizardi argues the trial court erred in instructing the
jury that premeditation could involve a short period of reflection.
He contends the temporal portion of the instruction was
unnecessary because “there was ample evidence that premeditation
in this case could have occurred over a substantial period of time, if
it occurred at all.” Lizardi also argues the instruction improperly
emphasized the passage of time, relieving the state from its burden
of proving premeditation.

¶5           We review a court’s ruling on a jury instruction for an
abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604,
616-17 (2009). The court should reject instructions that misstate the
law or would be misleading or confusing to the jury; “the test is
whether the instructions adequately set forth the law applicable to
the case.” State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009-
10 (1998). Further, “in 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). Here, the trial court instructed the jury:

                  Premeditation means that the
            defendant intended to kill another human
            being or knew he would kill another
            human being, and that after forming that
            intent or knowledge reflected on the
            decision before killing. It is this reflection
            regardless of the length of time in which it
            occurs that distinguishes the first degree
            murder from second degree murder.

                  An    act    is    not    done     with
            premeditation if it is the instant effect of a
            sudden quarrel or heat of passion resulting
            from adequate provocation.

                  The time needed for reflection is not
            necessarily prolonged and the space



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                         STATE v. LIZARDI
                         Opinion of the Court

             between the intent or knowledge to kill and
             the act of killing may be very short.

¶6            Lizardi correctly notes there was evidence that his time
to reflect could have started when he left the house to get the gun.
From this possibility of long reflection, he relies on State v. Thompson,
204 Ariz. 471, 65 P.3d 420 (2003), for the proposition that the last
sentence of the trial court’s above instruction should be used “[o]nly
when the facts of a case require it.” Id. ¶ 32. The possibility of long
reflection, however, does not negate evidence the reflection may
have been shorter, starting with the decision to load the gun, the
decision not to leave the apartment when told, or at another time.
Even if the jury concluded Lizardi had considered murder for only a
brief moment, it would require the last sentence of the instruction to
determine how to apply the law.

¶7           Our conclusion is supported by the absence of a specific
indication in Thompson about when the last sentence would be
appropriate, or that use of the sentence could result in error. State v.
Nelson, 229 Ariz. 180, ¶ 22, 273 P.3d 632, 638 (2012) (“Thompson does
not suggest that giving the entire instruction constitutes error.”).
Additionally, neither Thompson nor any case citing it supports
Lizardi’s contention that the presence of evidence suggesting long
reflection precludes the use of the last sentence of the instruction.
See id. ¶¶ 22-23; State v. Lehr, 227 Ariz. 140, ¶¶ 53-59, 254 P.3d 379,
391 (2011).

¶8            In Lehr, our supreme court considered whether the last
sentence was authorized in a case in which victims were killed by
blunt force trauma to the head and bloody rocks were found beside
the bodies. 227 Ariz. 140, ¶¶ 53-59, 254 P.3d at 391. The defendant
argued the instruction, coupled with the prosecutor’s closing
argument that defendant could have formed the necessary intent as
he picked up the rock, allowed the jury to convict him without proof
of actual reflection. The court concluded that the instruction was not
error, observing that the state did not rely on the passage of time
alone. Id. ¶¶ 57-58. Likewise, in Nelson, the court reviewed such an
instruction for fundamental error when evidence showed the
defendant had left the scene, walked to a store, bought the murder
weapon, walked back to the scene, and murdered the victim.

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                         STATE v. LIZARDI
                         Opinion of the Court

229 Ariz. 180, ¶¶ 22-23, 273 P.3d at 638. The court found no error,
and did not indicate that the length of time involved dictated
whether the last sentence was necessary. Id. ¶ 23. Lizardi contends
these cases are distinguishable on their facts. But the distinctions are
not essential to their analysis. Neither opinion indicates what length
of time is proper for the instruction. Lehr appears to deal with a
potentially short time frame in deciding to pick up a rock and use it
as a weapon, Lehr, 227 Ariz. 140, ¶ 58, 254 P.3d at 391, and Nelson
concerns a potentially long period in which the defendant left to
purchase a weapon, Nelson, 229 Ariz. 180, ¶ 23, 273 P.3d at 638.

¶9            Lizardi also argues that the purported error in
including the last sentence of the instruction was compounded by
the state’s closing arguments, in which the prosecutor stated that the
reflection required “could be seconds” or could be “instantaneous.”
But the prosecutor’s argument was based on an accurate assessment
of what the jury could conclude. The state did not improperly
emphasize the passage of time alone to prove premeditation.
Rather, it presented circumstantial evidence of premeditation:
Lizardi brought bullets to the house, left to get a gun, and loaded it
at the house. In closing arguments, the state emphasized the
affirmative steps Lizardi had taken, arguing, “And how do you load
a gun? Well, you put bullets in . . . the magazine, they call it, or the
clip, and then you put the clip in the gun, then you rack the gun.
That’s thinking about what you’re doing.” Reviewing preparatory
steps, even short ones, does not negate the premeditation element.
See Nelson, 229 Ariz. 180, ¶ 23, 273 P.3d at 638 (where prosecutor
highlighted decisions to walk to store to buy weapon before
returning to use it, prosecutor’s mention that time to reflect may be
short not improper).

¶10           Finally, to the extent Lizardi argues Thompson
specifically disapproved of any emphasis on shortened time and use
of the word “instantaneous” by a prosecutor, he is mistaken. First,
the disapproval of the “instantaneous” instruction in Thompson
relied in part on it being paired with the erroneous jury instruction
that “proof of actual reflection was not required.” 204 Ariz. 471,
¶¶ 26-27, 65 P.3d at 427. There was no such instruction here.
Second, even where the prosecutor mentions “instantaneous,” there


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                          STATE v. LIZARDI
                          Opinion of the Court

is no error if the state focuses on the evidence of premeditation. See
e.g., State v. Kiles, 222 Ariz. 25, ¶¶ 21-22, 213 P.3d 174, 180 (2009)
(although prosecutor noted time required to premeditate could be
“instantaneous,” argument properly focused on premeditation
evidence). The trial court did not abuse its discretion in allowing the
last sentence of the premeditation instruction.

                              Alleyne Error

¶11         Lizardi next contends the trial court erred when it
denied his request that the jury decide whether he had been on
parole on the date of the prohibited possessor offense. A finding he
had been “on parole” required that Lizardi be sentenced to at least
the presumptive term on that count. See A.R.S. § 13-708(C).

¶12           We review de novo sentencing issues involving
constitutional law. State v. Urquidez, 213 Ariz. 50, ¶ 11, 138 P.3d
1177, 1180 (App. 2006). Lizardi relies on a recent opinion of the
United States Supreme Court, Alleyne v. United States, ___ U.S. ___,
133 S. Ct. 2151 (2013). There, the Court held that the Sixth
Amendment right to a jury trial requires that facts increasing the
mandatory minimum penalty be submitted to a jury. Id. at ___, 133
S. Ct. at 2158. In so holding, the court expanded the Apprendi
doctrine, which previously had held that facts that increase the
statutory maximum penalty are elements of the offense and must be
submitted to the jury. Id. at ___, 133 S. Ct. at 2160; see also Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). The court also expressly
overruled Harris v. United States, 536 U.S. 545 (2002), in which the
Court had reached the opposite conclusion. Alleyne, ___ U.S. at ___,
133 S. Ct. at 2155.

¶13           At the time of Lizardi’s trial,1 this issue was governed
by Harris. After the jury reached its verdict and was dismissed, the
trial court began the evidentiary hearing on whether Lizardi was on
parole on the date he possessed the weapon. Lizardi objected,


      1As  noted earlier, Lizardi waived his right to a jury trial for
the prohibited possessor count but he had not waived a jury finding
for the “on parole” allegation.


                                    6
                         STATE v. LIZARDI
                         Opinion of the Court

arguing that the jury should have made that determination, but the
court overruled the objection stating, “I think the allegation of on
parole can be proven to the Court because it doesn’t make what’s
available more than the presumptive, it just makes it the
presumptive.” The court then found Lizardi had been “on parole”2
at the time of the prohibited possessor offense, which meant the
lowest sentence Lizardi could receive was the presumptive term of
4.5 years, rather than the mitigated term of 2.25 years. See A.R.S.
§§ 13-703(I), 13-708(C) Because this finding increased Lizardi’s
minimum sentence, the court’s failure to submit the facts supporting
his release status to the jury constituted error under Alleyne. See ___
U.S. at ___, 133 S. Ct. at 2158.3

¶14          We must next consider whether this error is structural
error, requiring automatic reversal, or trial error, subject to harmless
or fundamental error review. State v. Henderson, 210 Ariz. 561, ¶ 12,
115 P.3d 601, 605 (2005). A structural error infects the entire trial
from beginning to end, and includes errors such as a biased trial
judge, denial of defense counsel, or defective reasonable doubt jury
instructions. State v. Ring (Ring III), 204 Ariz. 534, ¶¶ 45-46, 65 P.3d
915, 933-34 (2003). If an error is structural, prejudice is presumed,
and we must reverse. State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d
233, 236 (2009); Ring III, 204 Ariz. 534, ¶ 45, 65 P.3d at 933.

¶15            In contrast, when a defendant preserves his objection to
trial error, the state has the burden of proving “beyond a reasonable


      2Although   the trial court found Lizardi had been on parole,
we observe that the legislature eliminated the possibility of parole
for felonies committed after January 1, 1994. State v. Rosario, 195
Ariz. 264, ¶ 26, 987 P.2d 226, 230 (App. 1999). The distinction is not
relevant to the decision here because a felony offense committed
while released on community supervision also results in elimination
of any sentence less than the presumptive term. A.R.S. § 13-708(C).
Moreover, Lizardi did not object to the “on parole” characterization.
      3 While  this case was pending, Division One of this court
decided State v. Large, No. 1 CA-CR 13-0115, 2014 WL 1226731 (Ariz.
Ct. App. Mar. 25, 2014), and reached the same result we do here.


                                   7
                        STATE v. LIZARDI
                        Opinion of the Court

doubt that the error did not contribute to or affect the verdict or
sentence.” Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607. Failure to
make the objection requires the defendant to prove the error was
fundamental and caused him prejudice. Id. ¶¶ 19-20.

¶16          To determine whether Alleyne error is structural or trial
error, we look to analogous Arizona cases analyzing Apprendi, and
its extension in Blakely v. Washington, 542 U.S. 296, 303-04 (2004)
(defining “statutory maximum” as the maximum penalty a judge
may impose without any additional findings). In Ring III, our
supreme court rejected the contention that Apprendi error was
structural. 204 Ariz. 534, ¶¶ 44-53, 65 P.3d at 933-36. Because an
aggravating circumstance is the functional equivalent of an element
of a greater offense, see Apprendi, 530 U.S. at 494 n.19, the court
determined it should have been found by a jury, Ring III, 204 Ariz.
534, ¶¶ 12, 47, 65 P.3d at 926, 934. Therefore, relying on jury
instruction cases in which the court failed to instruct on an element
of an offense, the court concluded the failure to submit the
aggravating factors to the jury did not “infect the trial process from
beginning to end.” Id. ¶ 50; see also United States v. Cotton, 535 U.S.
625, 630-33 (2002) (harmless error when trial court made findings on
volume of drugs involved, rather than jury); Neder v. United States,
527 U.S. 1, 19-20 (1999) (omitting element of offense from jury
instructions does not taint trial process).

¶17           In Henderson, our supreme court addressed Blakely and
Apprendi error in a non-capital context. 210 Ariz. 561, ¶¶ 3, 11-12,
115 P.3d at 604-06. The court contrasted Neder, in which an element
omitted from a jury instruction constituted trial error, with Sullivan
v. Louisiana, 508 U.S. 275 (1993), a case in which the United States
Supreme Court held that submitting a constitutionally deficient
reasonable doubt instruction constituted structural error. Henderson,
210 Ariz. 561, ¶¶ 14-15, 115 P.3d at 606. Our supreme court
determined Blakely/Apprendi error is trial error, because failure to
have a jury find an aggravating factor “more closely resemble[d]”
the error in Neder than the faulty reasonable doubt instruction in
Sullivan, which had invalidated all of the jury’s findings. Id.
¶¶ 16-17.




                                  8
                         STATE v. LIZARDI
                         Opinion of the Court

¶18          The Alleyne decision is an express extension of the
Apprendi doctrine. Alleyne, ___ U.S. at ___, 133 S. Ct. at 2160.
Accordingly, we conclude that an error under Alleyne also
constitutes trial error, reviewable as either harmless or fundamental
error. As in Henderson, the failure to have a jury find an aggravating
factor that increases a statutory minimum sentence affects an
element of the greater offense, and does not invalidate every finding
made by the jury. See id. ¶ 17. Further, federal circuit courts which
have considered the issue also have concluded that Alleyne errors
may be reviewed for harmless error.4 See United States v. Harakaly,
734 F.3d 88, 94 (1st Cir. 2013) (listing cases and applying harmless
error standard); see also United States v. Lara-Ruiz, 721 F.3d 554, 557
(8th Cir. 2013) (noting harmless error standard but applying plain
error due to failure to preserve argument).

¶19          Because Lizardi objected below, we review for harmless
error.5 Henderson, 210 Ariz. 561, ¶¶ 17-18, 115 P.3d at 607. A trial
error is harmless “if we can say, beyond a reasonable doubt, that the
error did not contribute to or affect the verdict” or sentence. State v.
Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993); see also
Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607. We consider the error
“in light of all of the evidence.” Bible, 175 Ariz. at 588, 858 P.2d at

      4All   federal circuit courts previously have held that Apprendi
error is trial error. See Henderson, 210 Ariz. 561, ¶ 12 & n.3, 115 P.3d
at 605-06 & n.3 (listing cases).
      5The  state contends Lizardi waived his right to relief for all
but fundamental, prejudicial error because he did not raise the issue
until the bench trial, after the jury had been excused. It does not cite
any authority on point or otherwise develop the argument;
therefore, we do not address it. See Ariz. R. Crim. P. 31.13(c)(1)(vi);
State v. Burdick, 211 Ariz. 583, n.4, 125 P.3d 1039, 1042 n.4 (App.
2005). Further, in Large, 2014 WL 1226731, ¶¶ 17-19, the defendant
did not object and Division One “recognize[d] an inherent
unfairness in penalizing [the defendant] on appeal when the legal
authority supporting his position developed only after his
conviction and sentence,” and determined “the error was not
prejudicial even under harmless error review.”


                                   9
                         STATE v. LIZARDI
                         Opinion of the Court

1191. We may find an error to have been harmless when there is
overwhelming evidence of a defendant’s guilt. See, e.g., State v.
Davolt, 207 Ariz. 191, ¶ 64, 84 P.3d 456, 474 (2004) (improperly
admitted gruesome crime scene photographs did not contribute to
verdict due to strength of remaining evidence).

¶20          Lizardi contends the jury “could have reached a
different conclusion than the court on the credibility of the parole
officer,” who testified about Lizardi’s release status. Lizardi,
however, never cross-examined the parole officer or offered any
challenge to her testimony. The officer testified she recognized
Lizardi from her supervision of him and identified him as the
person whose photograph, biographical information, and criminal
records appeared in the department of corrections documents
offered into evidence by the state. The records showed Lizardi had
been convicted of a felony in Pinal County, placed on community
supervised release in July 2011, and absconded on August 3, 2011.
He committed the prohibited possessor offense on August 14, 2011.
Lizardi did not object to the admission of the criminal records into
evidence. The record before us demonstrates that no reasonable jury
could fail to find that Lizardi was on release at the time of the
prohibited possessor offense. See Harakaly, 734 F.3d at 96 (trial
court’s finding defendant responsible for more than fifty grams of
methamphetamine harmless where overwhelming evidence
indicated greater weights); cf. State v. Aleman, 210 Ariz. 232, ¶ 34, 109
P.3d 571, 582 (App. 2005) (Blakely error in trial court’s findings of
sentencing aggravators harmless where evidence indisputably
showed victims were minors and defendant had prior conviction).
The Alleyne error here was harmless.

                          Restitution Order

¶21            Lizardi lastly contends the trial court erred when it
ordered him to pay restitution “in the total absence of supporting
evidence.” As Lizardi concedes, he did not raise this issue below,
and we therefore review only for fundamental error. See State v.
Lewis, 222 Ariz. 321, ¶ 13, 214 P.3d 409, 413 (App. 2009) (defendant
forfeits for review restitution objections not made below).




                                   10
                        STATE v. LIZARDI
                        Opinion of the Court

¶22           Our supreme court has defined the losses for which
restitution should be ordered: the loss must be (1) economic, (2) one
that would not have incurred but for the defendant’s criminal
offense, and (3) directly caused by the defendant’s criminal conduct.
State v. Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d 1131, 1133 (2002).
Although an award may not be “based on mere speculation,” see
State v. Barrett, 177 Ariz. 46, 49, 864 P.2d 1078, 1081 (App. 1993), a
trial court may rely on information contained in a presentence report
and victim impact statement, see State v. Dixon, 216 Ariz. 18, ¶ 13,
162 P.3d 657, 660-61 (App. 2007). “Indeed, the statutory sentencing
scheme implies that the presentence report and victim impact
statement will provide restitution information for the sentencing
court’s consideration.” Id.

¶23          Here, the presentence report included a notation that
the victim’s legal representative did not request restitution because
the family received assistance from the Crime Victim Compensation
Fund. The compensation fund, in turn, requested $1,440.19 in
restitution for funeral expenses. Lizardi did not object to those
calculations. Although the actual amount of the funeral was not
corroborated, Lizardi did not offer evidence contesting it, and the
fund’s request for restitution was supported by the legal
representative’s statement that the fund had assisted the family. The
trial court did not err in awarding restitution. See id. ¶¶ 12-13
(victims’ uncorroborated list of personal property contained in
presentence report sufficient to support award).

                            Disposition

¶24         For the foregoing reasons, Lizardi’s convictions and
sentences are affirmed.




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