                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

          FLORENTINO JOSUE MILLAN ERIVEZ, Appellant.

                         No. 1 CA-CR 13-0858
                           FILED 1-13-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-165742-001
                The Honorable Pamela S. Gates, Judge

                      AFFIRMED AS MODIFIED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
                            STATE v. ERIVEZ
                           Opinion of the Court




                                OPINION

Judge Andrew W. Gould delivered the opinion of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.


G O U L D, Judge:

¶1           This opinion answers the question of whether a defendant
can be convicted of multiple independent lesser-included offenses of a
greater charged offense.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On the night of December 30, 2012, Florentino Josue Millan
Erivez (“Erivez”) and his co-defendants, Federico Rodriguez and Alfonso
Quiroz Villalobos, forced their way into the home of victim Martha B. The
defendants allegedly entered the home because they were bail recovery
agents searching for a fugitive. In response, Martha and her children ran
out the back door and tried to escape by climbing over the fence.

¶3           Based on the testimony at trial, either Erivez or Rodriguez
confronted Martha and her children with a gun as they were climbing
over the fence. Erivez or Rodriguez then directed the victims back inside
the house.

¶4           The defendants confined the victims in the living room
while they purportedly searched the house for the fugitive. At one point,
Villalobos entered the living room, where the victims were being
restrained, while holding a shotgun.

¶5             The police arrived shortly after the defendants entered the
victims’ home. Rodriguez advised the police that he recruited Erivez and
Villalobos to assist him in searching for a fugitive in the home. Rodriguez
later testified at trial that he gave Erivez a gun on the way to the victims’
house.

¶6           Erivez, Rodriguez, and Villalobos were jointly charged in
one indictment. Erivez was charged with several offenses, including
count six, which alleged that he or an accomplice committed aggravated


                                     2
                           STATE v. ERIVEZ
                          Opinion of the Court

assault by “intentionally plac[ing] [victim Martha B.] . . . in reasonable
apprehension of imminent physical injury . . . using a deadly weapon or
dangerous instrument” in violation of Arizona Revised Statutes (“A.R.S.”)
sections 13-1203(A)(2) and 13-1204(A)(2) (2014).1 See A.R.S. § 13-303(A)(3)
(stating that an “accomplice” is accountable for the criminal acts of
another).

¶7           The case proceeded to trial, and at the close of the evidence,
the court reviewed the final jury instructions with counsel. The court
proposed the following lesser-included offense instruction as to count six:

      The crime of Aggravated Assault includes the lesser offenses
      of Disorderly Conduct and Assault. You may consider the
      lesser offense of Disorderly Conduct and/or Assault if
      either:

      1. You find the Defendant not guilty of Aggravated Assault;
      or

      2. After full and careful consideration of the facts you cannot
      agree on whether to find the Defendant guilty or not guilty
      of Aggravated Assault.

¶8            Erivez’s attorney did not object to the proposed jury
instruction. Rather, he agreed that disorderly conduct and assault were
both lesser-included offenses of aggravated assault, and that the jury
should be given instructions regarding both lesser-included offenses.

¶9           The court read the proposed instruction to the jury, and
provided the jury with three verdict forms:

             We, the jury, duly empanelled and sworn, upon our
      oaths, do find [Erivez], on the charge of Aggravated Assault
      (Martha [B.]) as follows (check only one):

             ___ Not Guilty

             ___ Guilty

             ___ Cannot Agree

1     We cite the current version of the applicable statutes, unless
material revisions have since occurred.



                                    3
                             STATE v. ERIVEZ
                            Opinion of the Court

       To Be Completed only if Not Guilty or Cannot Agree on the
       offense of Count 6: Aggravated Assault (Martha [B.]).

              We, the jury, duly empanelled and sworn, upon our
       oaths, do find [Erivez], on the lesser included charge of
       Assault (Martha [B.]) as follows (check only one):

              ___ Not Guilty

              ___ Guilty

       To Be Completed only if Not Guilty or Cannot Agree on the
       offense of Count 6: Aggravated Assault (Martha [B.]).

              We, the jury, duly empanelled and sworn, upon our
       oaths, do find [Erivez], on the lesser included charge of
       Disorderly Conduct (Martha [B.]) as follows (check only
       one):

              ___ Not Guilty

              ___ Guilty

¶10          Based on these verdict forms, the jury found Erivez “not
guilty” of aggravated assault, but determined he was “guilty” of both
disorderly conduct and assault as lesser-included offenses.

¶11           At sentencing, the court determined that based on the jury
verdicts, Erivez was guilty of both disorderly conduct and assault. The
State moved to have Erivez sentenced only on the disorderly conduct
conviction. Erivez did not object, and, as to count six, the court sentenced
Erivez on the lesser-included offense of disorderly conduct. Erivez timely
appealed.

                               DISCUSSION

¶12           Erivez argues the court erred by instructing the jury on both
assault and disorderly conduct as independent, lesser-included offenses of
aggravated assault. Erivez contends “[t]he jury should have been
instructed to consider the (felony) disorderly conduct lesser first and, if it
could not decide unanimously on that charge, to consider the
(misdemeanor) assault lesser.”

¶13           Erivez did not object to the verdicts or jury instructions at
trial, and therefore our review is limited to fundamental error review.


                                      4
                              STATE v. ERIVEZ
                             Opinion of the Court

Ariz. R. Crim. P. 21.3(c); State v. Miller, 234 Ariz. 31, 43, ¶ 45, 316 P.3d
1219, 1231 (2013). “To prevail under this standard of review, a defendant
must establish both that fundamental error exists and that the error in his
case caused him prejudice.” State v. Henderson, 210 Ariz. 561, 567, ¶ 20,
115 P.3d 601, 607 (2005).

¶14            A lesser-included offense is “one composed solely of some
but not all of the elements of the greater crime so that it is impossible to
have committed the [greater] crime charged without having committed
the lesser one.” State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 11, 965 P.2d
94, 97 (1998) (citation omitted); see State v. Garcia, 235 Ariz. 627, 629-30, ¶ 6,
334 P.3d 1286, 1288-89 (App. 2014). “[A]n offense is ‘necessarily included,’
and so requires that a jury instruction be given, only when it is lesser
included and the evidence is sufficient to support giving the instruction.”
State v. Wall, 212 Ariz. 1, 3, ¶ 14, 126 P.3d 148, 150 (2006). A “jury may
deliberate on a lesser offense if it either (1) finds the defendant not guilty
on the greater charge, or (2) after reasonable efforts cannot agree whether
to acquit or convict on that charge.” State v. LeBlanc, 186 Ariz. 437, 438,
924 P.2d 441, 442 (1996).

¶15            Disorderly conduct by recklessly displaying or handling a
firearm is a lesser-included offense of aggravated assault as charged in
this case. State v. Miranda, 200 Ariz. 67, 68, ¶ 3, 22 P.3d 506, 507 (2001);
State v. Angle, 149 Ariz. 478, 479, 720 P.2d 79, 80 (1986); State v. Foster, 191
Ariz. 355, 357, ¶ 9, 955 P.2d 993, 995 (App. 1998). In addition, assault was
a lesser-included offense of aggravated assault because, based on the
evidence, the jury in this case could have determined that the
distinguishing element between assault and aggravated assault, the use or
threatened use of a deadly weapon, was not present. A.R.S. § 13-
1204(A)(2) (as applicable here, a person commits aggravated assault if he
“commits assault as prescribed by § 13-1203” and the additional element
of using a deadly weapon is proven); see State v. Jansing, 186 Ariz. 63, 68,
918 P.2d 1081, 1086 (App. 1996), overruled on other grounds, State v. Bass, 198
Ariz. 571, 576, ¶ 12, 12 P.3d 796, 801 (2000).

¶16           We conclude the court properly instructed the jury on both
disorderly conduct and assault as lesser-included offenses in this case.
The evidence showed that Erivez, or his accomplice Rodriguez, displayed
a gun in the presence of victim Martha B. The only disputed issue was
whether in so doing Erivez or Rodriguez intended to place the victim in
“reasonable apprehension of imminent physical injury” or merely to
“disturb” or frighten her. See State v. Angle, 149 Ariz. 499, 508-09, 720 P.2d
100, 109-10 (App. 1985) (Kleinschmidt, J., dissenting), adopted by, 149 Ariz.


                                        5
                             STATE v. ERIVEZ
                            Opinion of the Court

478, 720 P.2d 79 (1986). That disputed issue was one for the jury to resolve
based upon its interpretation of the evidence and its evaluation of the
witnesses’ testimony. See State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d
987, 988-89 (1974) (holding “the credibility of the witnesses and the weight
and value to be given to their testimony are questions exclusively for the
jury”).

¶17           Although disorderly conduct and assault are lesser-included
offenses of the aggravated assault charge in this case, neither offense is a
lesser-included offense of the other. Disorderly conduct is not a lesser-
included offense of assault because it requires the reckless
display/handling of a firearm, an additional element not required for
assault. A.R.S. § 13-2904(A)(6); A.R.S. § 13-1203(A)(2); see Garcia, 235 Ariz.
at 629-30, ¶ 6, 334 P.3d at 1288-89 (stating “the greater offense must
require each element of the lesser offense plus one or more additional
elements not required by the lesser offense”).

¶18           Additionally, assault is not a lesser-included offense of
disorderly conduct. Erivez may have committed disorderly conduct by
intending to “disturb the peace or quiet” of the victim. However, such
conduct does not necessarily rise to the level of placing the victim in
reasonable apprehension of immediate physical injury, the conduct
required for an assault. Thus, under the facts of this case, it was possible
for Erivez to commit disorderly conduct without committing assault.
Chabolla-Hinojosa, 192 Ariz. at 363, ¶ 11, 965 P.2d at 97.

¶19           Because disorderly conduct and assault are independent
lesser-included offenses, and assault is not a lesser-included offense of
disorderly conduct, the jury was not required to consider the charge of
disorderly conduct before it could consider assault. See United States v.
Lacy, 446 F.3d 448, 450, 452 (3rd Cir. 2006) (jury may convict for more than
one lesser-included offense arising out of a single charge); People v. Eid, 59
Cal. 4th 650, 657-58, 328 P.3d 69, 74 (2014) (holding that court properly
instructed jury on two independent lesser-included offenses).

¶20          Erivez also argues that his due process rights were violated
because he was not given notice that he could be convicted of two lesser-
included offenses arising from one count. We disagree.

¶21          Jury verdict forms “shall be submitted to the jury for all
offenses necessarily included in the offense charged.” Ariz. R. Crim. P.
23.3. Additionally, Rule 13.2(c) provides “[s]pecification of an offense in
an indictment, information, or complaint shall constitute a charge of that



                                      6
                            STATE v. ERIVEZ
                           Opinion of the Court

offense and of all offenses necessarily included therein.” Ariz. R. Crim. P.
13.2(c). As a result, a “defendant is on notice from the beginning of the
proceedings against him that the jury may be asked to consider any lesser-
included offenses supported by the trial evidence.” State v. Gipson, 229
Ariz. 484, 486-87, ¶ 14, 277 P.3d 189, 191-92 (2012).

¶22          Finally, Erivez contends the court erred by disregarding the
assault conviction and sentencing him solely on the disorderly conduct
conviction.

¶23           Erivez was originally charged in count six with one count of
aggravated assault; however, the jury ultimately convicted Erivez of two
independent lesser-included offenses as to this count. As a result, the
State requested the court to sentence Erivez on only one offense,
disorderly conduct, and, by implication, dismiss the assault conviction.
Erivez did not object, and the court sentenced Erivez only for disorderly
conduct. Based on these facts, we discern no error in the trial court
disregarding the misdemeanor assault conviction and sentencing Erivez
on the more serious felony offense of disorderly conduct. Cf. State v.
Brown, 191 Ariz. 102, 103, 952 P.2d 746, 747 (App. 1997) (holding there was
no fundamental error where jury returned guilty verdicts on both the
greater and lesser-included offenses and trial court vacated the verdict on
lesser-included offense).

¶24           However, the trial court failed to expressly dismiss Erivez’s
conviction for assault, which is now surplusage. We therefore exercise
our discretion and vacate the assault conviction. Cf. State v. Powers, 200
Ariz. 123, 127, ¶ 16, 23 P.3d 668, 672 (App. 2001) (where defendant was
charged and convicted of same offense twice, and convictions were
therefore multiplicitous, court of appeals properly vacated one of
defendant’s convictions).




                                     7
                           STATE v. ERIVEZ
                          Opinion of the Court

                             CONCLUSION

¶25          For the foregoing reasons, we affirm Erivez’s conviction and
sentence as modified. Erivez’s conviction and sentence for disorderly
conduct, a lesser included offense of count six, is affirmed. However,
Erivez’s conviction for assault, a lesser included offense of count six, is
vacated.




                                 :ama




                                    8
