                         NOTICE: NOT FOR OFFICIAL PUBLICATION.
     UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                     AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                        IN THE
                 ARIZONA COURT OF APPEALS
                                    DIVISION ONE


                           STATE OF ARIZONA, Appellee,

                                            v.

                            EDGAR CABRERA, Appellant.

                                 No. 1 CA-CR 14-0032
                                   FILED 4-7-2015


               Appeal from the Superior Court in Maricopa County
                            No. CR2012-150362-001
                     The Honorable Hugh E. Hegyi, Judge

                   AFFIRMED IN PART, VACATED IN PART


                                       COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant



                           MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in which
Judge Kenton D. Jones and Judge Donn Kessler joined.
                                  STATE v. CABRERA
                                  Decision of the Court

G E M M I L L, Judge:

¶1            Edgar Cabrera appeals his convictions and sentences on one count
of aggravated assault, a class 2 dangerous felony, one count of assault,1 a class 1
misdemeanor, and one count of resisting arrest, a class 6 felony. Cabrera filed a
timely notice of appeal, and we have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A).

¶2            Cabrera argues that his convictions for aggravated assault in Count
1 and assault in Count 2, based on a single act, violated his constitutional right to
protection from being “twice put in jeopardy for the same offense.” We review
double jeopardy claims de novo. Lemke v. Reyes, 213 Ariz. 232, 236-37, ¶ 10, 141
P.3d 407, 411-12 (App. 2006). In deciding whether a defendant has been tried and
punished twice for the same offense, in violation of his double jeopardy rights, we
apply the “same-elements” test, also referred to as the Blockburger2 test, in which
we inquire “whether each offense contains an element not contained in the other.”
United States v. Dixon, 509 U.S. 688, 696, 703-04, 711 (1993) (holding that “same-
elements” test is the only test for double jeopardy bar, overruling the additional
“same-conduct” test adopted by Grady v. Corbin, 495 U.S. 508 (1990).

¶3             The convictions in this case did not violate double jeopardy because
each of the offenses contained an element not included in the other. Cabrera was
charged and convicted of aggravated assault under A.R.S. §§ 13-1203(A)(1), -
1204(A)(8)(a), and -1204(A)(2) in Count 1 for (1) knowingly; (2) causing physical
injury; (3) to a peace officer engaged in official duties; and (4) using a vehicle, a
dangerous instrument. Cabrera was likewise convicted of assault in Count 2 –
described in the jury instructions and verdict form as a lesser-included offense of
aggravated assault – for (1) intentionally; (2) placing in reasonable apprehension of

1In its sentencing order, the trial court recorded the Count 2 assault conviction as
a misdemeanor based on A.R.S. § 13-1203(A)(2). In the jury instructions, however,
the jury was asked to consider, as a lesser-included offense of aggravated assault,
the simple assault elements of § 13-1203(A) and whether Cabrera knew that Officer
D.G. was a “peace officer performing official duties,” which is an aggravating
element found in A.R.S. § 13-1204(A)(8)(2). Thus, the Count 2 “assault” conviction
was apparently for aggravated assault although the court treated it as simple
misdemeanor assault. Neither the State nor Cabrera has raised this issue on appeal
and we therefore do not consider it. See State v. Dawson, 164 Ariz. 278, 282, 792
P.2d 741, 746 (1990) (noting that this court does not have jurisdiction to consider
an illegally lenient sentence when the State has not filed an appeal or cross-appeal).

2   Blockburger v. United States, 284 U.S. 299 (1932).



                                             2
                                STATE v. CABRERA
                                Decision of the Court

imminent physical injury; (3) a peace officer engaged in official duties. The two
subsections of the simple (non-aggravated) assault statute, § 13-1203, on which
these convictions were based – assault causing physical injury under (A)(1) and
reasonable apprehension assault under (A)(2) – comprise distinct offenses, “not
merely different manners of committing the same offense.” See State v. Waller, 235
Ariz. 479, 488, ¶29, 333 P.3d 806, 815 (App. 2014); State v. Freeney, 223 Ariz. 110,
113, ¶¶16-20, 219 P.3d 1039, 1042 (2009). Moreover, because the conviction for
Count 1 assault under § 13-1203(A)(1) required proof of causing physical injury
and the conviction for Count 2 assault under § 13-1203(A)(2) required proof of
intentionally placing the individual in reasonable apprehension of imminent
physical injury, the Count 2 assault conviction was not a lesser-included offense
of the Count 1 aggravated assault conviction. Cabrera’s conviction on both
offenses accordingly did not violate double jeopardy.

¶4              Nonetheless, under the peculiar circumstances of this case, we
conclude it is appropriate for this court to vacate the misdemeanor assault
conviction on Count 2. Although the indictment did not charge Counts 1 and 2
“in the alternative,” the parties and the trial court nonetheless agreed to approach
the case on that basis. In settling jury instructions, the court noted that prosecutor
and defense counsel understood “going into this trial” that “defendant is only
going to be sentenced” on one of the counts because they arose from the same set
of facts. Moreover, the prosecutor agreed “[a]bsolutely” with defense counsel that
defendant could not be convicted of both Count 1 and the lesser-included offense
of Count 2. At sentencing, the judge said he recollected a discussion in chambers
“with regard to whether the defendant could be convicted and sentenced to both
counts one and two because they were in part alternate theories,” and asked the
prosecutor for his thoughts. The prosecutor responded, “I apologize. I completely
forgot about it until it was brought up, but you’re absolutely right. Counts one
and two were alternative theories for the same alleged, now proven, criminal
activity so it would be the State’s request that the defendant be sentenced on count
one and not sentenced on count two.” The trial court later noted, regarding Count
2, that “as we discussed earlier . . . in essence it is an alternative theory to count
one.” It is unclear what the prosecutor intended by asking the court not to
sentence Cabrera on his conviction on Count 2, because of his conviction on Count
1 (as opposed to simply seeking concurrent sentences on Counts 1 and 2). This
court recently construed a similar request as an implicit request to dismiss that
conviction. See State v. Erivez, 236 Ariz. 472, ___, ¶ 23-24, 314 P.3d 514, 518-19 (App.
2015).

¶5           In its sentencing minute entry, the court formally recorded the
judgment of conviction on Count 2, designated it a class 1 misdemeanor, and then
ordered:



                                           3
                              STATE v. CABRERA
                              Decision of the Court

      Upon stipulation of the parties,

      IT IS ORDERED terminally disposing of Count 2 as duplicative of
      Count 1.

      IT IS FURTHER ORDERED releasing Defendant from custody as to
      Count 2.

The superior court apparently construed the prosecutor’s various requests and
comments on this issue to be an agreement to consider Counts 1 and 2 as though
charged in the alternative, or the court would not have construed the counts as
“duplicative.” The parties on appeal, however, appear to have interpreted the trial
court’s “terminal disposition” of Count 2 as essentially sentencing Cabrera to time
already served, for this misdemeanor conviction. Such an interpretation may be
plausible, but we conclude that the trial court did not intend to impose a sentence
on Cabrera for the Count 2 conviction of assault. Alternatively, if the court did
intend to sentence Cabrera to time served on this misdemeanor conviction, such a
sentence is contrary to the apparent understandings between the court and
counsel that Counts 1 and 2 were viewed (although mistakenly) as having been
charged in the alternative. On this unusual record and in accordance with the
statements of the trial court and counsel during trial and sentencing, we conclude
that the record must be made clear that there is no conviction on Count 2.

¶6          For the foregoing reasons, we vacate the misdemeanor assault
conviction on Count 2. Cabrera’s remaining convictions and sentences are
affirmed.




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