                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                 JAIRO DAVID ALANIZ-SILVA, Appellant.

                             No. 1 CA-CR 14-0049
                              1 CA-CR 14-0384
                               (Consolidated)
                                  FILED 6-23-2015


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201300054
              The Honorable Stephen J. Rouff, Commissioner

AFFIRMED IN PART AS CORRECTED; REMANDED IN PART WITH
                     INSTRUCTIONS


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Elizabeth Brown Attorney at Law, Yuma
By Elizabeth Brown
Counsel for Appellant
                          STATE v. ALANIZ-SILVA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined.


N O R R I S, Judge:

¶1             Jairo David Alaniz-Silva timely appeals from his conviction
and sentence for aggravated assault, a class 3 dangerous felony, in violation
of Arizona Revised Statutes (“A.R.S.”) section 13-1204 (Supp. 2014),1 and
from the superior court’s denial of his motion to vacate the judgment. After
searching the record on appeal and finding no arguable question of law that
was not frivolous, Alaniz-Silva’s counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search
the record for fundamental error. This court granted counsel’s motion to
allow Alaniz-Silva to file a supplemental brief in propria persona, but he did
not do so. After reviewing the entire record, we find no fundamental error
relating to Alaniz-Silva’s conviction. Therefore, we affirm Alaniz-Silva’s
conviction for aggravated assault, as corrected for errors in the judgment,
see infra ¶ 8, but strike the jury’s improper verdict on the lesser-included
charge of assault. See infra ¶¶ 9–11.

¶2            We have, however, discovered reversible error with respect
to Alaniz-Silva’s sentence. See infra ¶¶ 12–13. Thus, we remand the
sentence and direct the superior court to enter a special order in conformity
with A.R.S. § 13-603(L) (2010).

             FACTS AND PROCEDURAL BACKGROUND2

¶3            In January 2013, Alaniz-Silva and his brother, Arnold,
attacked their mother’s estranged boyfriend, G.L. The brothers approached

              1Although    the Arizona Legislature has amended certain
statutes cited in this decision after the date of Alaniz-Silva’s offense, these
revisions are immaterial to our resolution of this appeal. Thus, we cite to
the current version of these statutes.
              2We    view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Alaniz-Silva.
See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).


                                       2
                        STATE v. ALANIZ-SILVA
                          Decision of the Court
G.L., asking whether he had seen their pregnant dog. G.L. answered he had
not and turned away. Alaniz-Silva hit G.L. in the back of the head with a
mallet. After he went down, Arnold began punching G.L. with brass
knuckles while Alaniz-Silva repeatedly hit him with the mallet.

¶4            A jury found Alaniz-Silva guilty of aggravated assault, see
A.R.S. § 13-1204(A)(2), (D), and that the offense was dangerous. See A.R.S.
§ 13-105(13) (Supp. 2014). The jury also found Alaniz-Silva guilty of the
lesser-included charge of assault. See A.R.S. § 13-1203 (2010). The superior
court, however, entered judgement against Alaniz-Silva only for
aggravated assault, and for that offense, sentenced Alaniz-Silva to the
minimum sentence of five years’ imprisonment. See A.R.S. § 13-704(A)
(Supp. 2014). It also found that sentence clearly excessive. See infra ¶¶ 12–
13. The superior court awarded Alaniz-Silva 41 days of presentence
incarceration credit.

¶5            Alaniz-Silva subsequently moved to vacate the judgement,
asserting prosecutorial misconduct, errors by the superior court, and newly
discovered evidence. The superior court denied the motion. Alaniz-Silva
timely appealed from both the judgment and the denial of his motion to
vacate the judgement.

                              DISCUSSION

I.    Anders Review

¶6             Alaniz-Silva received a fair trial and was represented by
counsel at all stages of the proceedings. Alaniz-Silva was either present or
voluntarily absent at all critical stages of the case.

¶7            The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of eight members, and the
court properly instructed the jury on the elements of the offense, Alaniz-
Silva’s presumption of innocence, the State’s burden of proof, and the
necessity of a unanimous verdict. The superior court received and
considered a presentence report, Alaniz-Silva was given an opportunity to
speak at sentencing, and his sentence was within the range of acceptable
sentences for aggravated assault. Furthermore, the superior court did not
abuse its discretion nor did it misapply the law in denying Alaniz-Silva’s
motion to vacate the judgment. See State v. Parker, 231 Ariz. 391, 408, ¶ 78,
296 P.3d 54, 71 (2013) (reviewing denial of motion to vacate judgment of
guilt for abuse of discretion).




                                     3
                         STATE v. ALANIZ-SILVA
                           Decision of the Court
II.    Errors in the Judgment

¶8            In our review of the record, we discovered two errors in the
superior court’s judgment. The judgment referenced A.R.S. § 13-1204(C), a
subsection which makes aggravated assault a more serious felony if
committed against a peace officer. The State did not allege Alaniz-Silva
assaulted a peace officer nor would the evidence presented at trial support
such a finding. The judgment also improperly referenced A.R.S. § 13-3601
(Supp. 2014), a statute which defines “domestic violence.” At trial,
however, the State withdrew its allegation of domestic violence. Thus, we
correct the judgment to delete its citation to “13-1204(C)” and “13-3601.”

III.   Improper Verdict

¶9             Despite the superior court’s instruction to the jury that it
could only consider the lesser-included offense if it found Alaniz-Silva not
guilty or could not agree whether Alaniz-Silva was guilty of aggravated
assault, the jury found Alaniz-Silva guilty of both aggravated assault and
the lesser-included offense of assault. After the jury rendered its verdict,
the superior court held a bench conference with counsel to discuss how to
handle this anomaly. The State advised the court to release the jury,
arguing the lesser-included verdict posed no problem because it was
essentially consistent with the jury’s guilty verdict on the greater offense of
aggravated assault. Defense counsel did not object, and the superior court
released the jury without further inquiry.

¶10           Our supreme court has instructed that “[w]hen a jury returns
guilty verdicts for both a charged offense and a lesser included offense, the
preferable course of action is to ‘explain the situation to the jury, reinstruct
on the law, and allow the jury to deliberate further.’” State v. Rich, 184 Ariz.
179, 181, 907 P.2d 1382, 1384 (1995) (quoting State v. Engram, 171 Ariz. 363,
366, 831 P.2d 362, 365 (App. 1991)). Nonetheless, the superior court’s failure
to follow the preferable course of action does not constitute reversible error;
by not entering judgment or sentencing Alaniz-Silva on the improper
verdict, the superior court essentially treated it as surplusage. See State v.
Brown, 191 Ariz. 102, 103, 952 P.2d 746, 747 (App. 1997) (when defendant
did not object, superior court did not commit reversible error by deeming
verdict on lesser-included offense surplusage and setting it aside instead of
following procedure outlined in Rich); Engram, 171 Ariz. at 365–66, 831 P.2d
at 364–65 (App. 1991) (same).

¶11          For clarity, we strike the jury’s guilty verdict on the lesser-
included charge of assault. See State v. Stuart, 168 Ariz. 83, 87, 811 P.2d 335,



                                       4
                         STATE v. ALANIZ-SILVA
                           Decision of the Court
339 (App. 1990) (superior court properly struck jury verdict on lesser-
included offense as “mere surplusage”).

IV.    Non-Compliance with A.R.S. § 13-603(L)

¶12            At sentencing, the superior court found Alaniz-Silva’s
sentence clearly excessive pursuant to A.R.S. § 13-603(L). The superior
court did not, however, take the necessary steps to give its finding legal and
practical effect. See State v. Garza, 190 Ariz. 487, 489–90, 949 P.2d 980, 982–
83 (App. 1997) (failure to comply with requirements of what is now A.R.S.
§ 13-603(L) frustrated statute’s purpose of allowing “practical and efficient”
review by board of executive clemency). Upon finding a sentence required
by law clearly excessive, the superior court is to “enter a special order
allowing the person sentenced to petition the board of executive clemency
for a commutation of sentence within ninety days after the person is
committed to the custody of the state department of corrections.” A.R.S. §
13-603(L). The superior court must “set forth in writing its specific reasons
for concluding that the sentence is clearly excessive” and “allow both the
state and the victim to submit a written statement on the matter.” Id. “The
court’s order, and reasons for its order, and the statements of the state and
the victim” then must “be sent to the board of executive clemency.” Id.

¶13            Here, the record contains no indication the superior court
complied with any of these requirements. Failure to comply with A.R.S. §
13-603(L) after finding a sentence clearly excessive is reversible error.
Garza, 190 Ariz. at 488, 949 P.2d at 981. Thus, we remand Alaniz-Silva’s
sentence and direct the superior court to enter a special order conforming
with A.R.S. § 13-603(L). See id. at 490, 949 P.2d at 983. Alaniz-Silva shall
have 90 days from the entry of the special order within which to a file a
petition for a commutation of sentence. See A.R.S. § 13-603(L); Garza, 190
Ariz. at 490, 949 P.2d at 983.




                                      5
                        STATE v. ALANIZ-SILVA
                          Decision of the Court
                              CONCLUSION

¶14            We decline to order briefing and affirm Alaniz-Silva’s
conviction for aggravated assault as corrected. See supra ¶ 8. We strike the
jury’s guilty verdict on the lesser-included offense of assault. See supra ¶¶
9–11. We remand, however, Alaniz-Silva’s sentence to the superior court
with instructions. See supra ¶¶ 12–13.

¶15            Alaniz-Silva has 30 days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. On the
court’s own motion, we also grant Alaniz-Silva 30 days from the date of this
decision to file an in propria persona motion for reconsideration.




                                   :ama




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