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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    CHRISTOPHER ROBLES, Appellant.

                             No. 1 CA-CR 15-0504
                              FILED 11-10-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-120223-001
           The Honorable Roland J. Steinle, III, Judge (retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                            STATE v. ROBLES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Christopher Robles (Defendant) appeals his convictions and
sentences for two counts of aggravated assault and one count of resisting
arrest. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            Phoenix motorcycle police officer Kanavel conducted a traffic
stop on a vehicle that Defendant was driving. Using the information on
Defendant’s identification card, Kanavel conducted a records check and
learned Defendant had outstanding arrest warrants. Kanavel requested a
patrol unit to transport Defendant to jail, and he returned to Defendant’s
vehicle. Defendant then exited the vehicle and fled on foot. Kanavel ran
after Defendant.

¶3            Kanavel eventually apprehended Defendant and “took him
down to the ground.” Defendant physically resisted Kanavel’s attempts to
restrain him, and the two began scuffling on the ground. Defendant rose
to his feet and grabbed Kanavel’s holstered handgun. Defendant began
“tugging on both the holster and the pistol trying to gain control of it.”
Kanavel feared Defendant would get the gun out of the holster and “use it
on [him].”

¶4          After dislodging Defendant’s hand from the pistol grip,
Kanavel drew his firearm and shot Defendant in the leg. Defendant
grabbed the gun barrel with both hands and pulled Kanavel to his feet.
Defendant continued pulling the barrel, and Kanavel, holding his firearm
with only one hand, again feared Defendant would get control of the
weapon and shoot him. Unable to “pull it back out of [Defendant’s] hand,”


1      “We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant.” State
v. Valencia, 186 Ariz. 493, 495 (App. 1996)).



                                     2
                            STATE v. ROBLES
                           Decision of the Court

Kanavel “went forward with [Defendant’s] motion and pressed the weapon
into his chest and pulled the trigger.” The gun did not fire, and Defendant
fled. Police officers responding to Kanavel’s call for transportation
apprehended Defendant and took him into custody. Kanavel received
multiple scrapes, abrasions, and bruises from the struggle with Defendant.

¶5            The State charged Defendant with two counts of aggravated
assault, one a class 2 dangerous felony (Count 1), the other a class 3
dangerous felony (Count 3), and resisting arrest, a class 6 felony (Count 2).
The State also alleged prior felony convictions, historical prior convictions,
and other aggravating circumstances. The jury found Defendant guilty as
charged, determined Counts 1 and 3 were dangerous offenses and, as an
aggravating factor regarding those counts, found the State proved the
offenses involved the infliction or threatened infliction of serious physical
injury. The court imposed concurrent sentences of imprisonment, the
longest being aggravated 13-year terms for Counts 1 and 3. Defendant filed
a delayed notice of appeal after the court permitted him to do so. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1, and
13-4033.A.1. (West 2016).2

                               DISCUSSION

I.     Sufficiency of Evidence: Aggravated Assault Count 1

¶6            Defendant argues that evidence of his attempt to gain control
over Kanavel’s weapon was insufficient to show he “used” a handgun as
required to support his conviction on Count 1.

¶7            We review a claim of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Sufficient evidence may be direct or
circumstantial and “is such proof that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.” State v. Borquez, 232 Ariz. 484, 487, ¶ 9 (App. 2013)
(internal quotations and citations omitted). “To set aside a jury verdict for
insufficient evidence it must clearly appear that upon no hypothesis
whatever is there sufficient evidence to support the conclusion reached by
the jury.” State v. Arredondo, 155 Ariz. 314, 316 (1987).



2     Absent material changes from the relevant date, we cite a statute’s
current version.



                                      3
                             STATE v. ROBLES
                            Decision of the Court

¶8            As charged in Count 1, a person commits aggravated assault
by using a deadly weapon to intentionally place another person in
reasonable apprehension of imminent physical injury.                A.R.S. §§
13-1203.A.2, -1204.A.2. By definition, a firearm is a deadly weapon. A.R.S.
§ 13-105.15. If the victim is a peace officer, the offense is a class 2 felony.
A.R.S. § 13-1204.E. At trial, the State referred to Defendant’s grabbing and
pulling the barrel of Kanavel’s gun as evidence of Defendant’s use of the
weapon to warrant a conviction on Count 1.3

¶9            Defendant contends that, because he never gained exclusive
control over Kanavel’s firearm, he was unable to “use” it as contemplated
by A.R.S. § 13-1204.A.2.

¶10             We interpret statutes de novo. State v. Neese, 239 Ariz. 84, 86,
¶ 8 (App. 2016). When the language of a statute is clear, “we need not look
further to determine the statute’s meaning and apply its terms as written.”
State v. Lee, 236 Ariz. 377, 383, ¶ 16 (App. 2014).

¶11           To the extent Defendant contends he was required to shoot
the weapon to satisfy the use requirement, we reject that contention.
Arizona law does not require a person to fire a gun to be guilty of
aggravated assault. Indeed, an unloaded gun, if used in an assault can
elevate the offense to aggravated assault. A.R.S. § 13-105.19 (a “Firearm”
means “any loaded or unloaded handgun”).

¶12            We find sufficient evidence in the record of Defendant’s use
of a deadly weapon. Kanavel testified that Defendant grabbed and pulled
his gun barrel, and Kanavel “was thinking that [Defendant] was going to
be able to get the weapon from my hand.” Kanavel further testified that he
was afraid of Defendant “us[ing] it on me once he got it away from me.”
By intentionally grabbing and pulling on the holster and barrel of Kanavel’s
gun, Defendant used the gun to place the officer in reasonable
apprehension of being shot and sustaining a serious physical injury. See
State v. Morgan, 128 Ariz. 362, 368 (App. 1981) (holding that a defendant


3        Count 3 alleged that Defendant “knowing or having reason to know
that . . . Kanavel was a peace officer . . . and is engaged in the execution of
any official duties intentionally placed . . . Kanavel in reasonable
apprehension of imminent physical injury by knowingly taking or
attempting to exercise control over a peace officer’s firearm[.]” At trial, the
State argued for a conviction on Count 3 based on Defendant’s attempt to
take Kanavel’s gun out of the holster when the two began struggling.



                                       4
                            STATE v. ROBLES
                           Decision of the Court

“need only intentionally act using a deadly weapon or dangerous
instrument so that the victim is placed in reasonable apprehension of
imminent physical injury” to be convicted of aggravated assault).

¶13            Moreover, although Defendant did not have exclusive use of
the weapon, nothing in § 13-1204.A.2 requires a defendant to have exclusive
control or possession of a gun for an aggravated assault to occur. We will
not create a limitation in the statute that the legislature did not write. See
Hart v. Hart, 220 Ariz. 183, 187, ¶ 17 (App. 2009) (“[S]tandard principles of
statutory construction require that we do not judicially impose a
requirement the legislature has intentionally chosen not to require.”).

¶14           Finally, Defendant’s reliance on State v. Befford, 148 Ariz. 508
(1986) and State v. Romero, 135 Ariz. 102 (App. 1982) is misplaced. In those
cases, the supreme court and this court did not construe “use” in the context
of deadly weapon aggravated assault; rather, the courts addressed the
first-degree burglary statute, A.R.S. § 13-1508.A, which at the time required
the State to prove a defendant was “armed with . . . a deadly weapon.”
Befford, 148 Ariz. at 509; Romero, 135 Ariz. at 104. Befford and Romero are,
therefore, inapplicable. Additionally, the legislature amended § 13-1508.A
in 1988 to its present form by replacing “armed with” to “knowingly
possess,” eliminating the “armed with” language. 1988 Ariz. Sess. Laws,
ch. 241 (2nd Reg. Sess.).

¶15         Substantial evidence established Defendant used a deadly
weapon to commit an assault on officer Kanavel. Accordingly, sufficient
evidence supports Defendant’s conviction on Count 1.4

II.    Sentencing

¶16            Defendant argues his sentences for Counts 1 and 3 are
unlawful because the court used the jury’s finding of dangerousness based
on infliction of serious injury to enhance the sentences pursuant to A.R.S.
§ 13-704 and as an aggravating factor pursuant to A.R.S. § 13-701.



4      We summarily reject Defendant’s argument that, because he
attempted to take Kanavel’s firearm—which is another form of assault
under A.R.S. § 13-1204.A.9(a)—Defendant did not use it to commit
aggravated assault. Defendant’s attempt to take the officer’s gun from its
holster during the initial struggle formed the basis for his conviction on
Count 3, not Count 1. See supra note 3, at ¶ 8. That is, Defendant committed
two different criminal offenses, each stemming from a separate act.


                                      5
                            STATE v. ROBLES
                           Decision of the Court

¶17           However, the State alleged Defendant committed several
prior felonies as an aggravating factor. At trial, Defendant admitted to two
prior felonies. At sentencing, the trial court relied on Defendant’s prior
felonies as a “substantial aggravator.” After considering mitigating and
aggravating factors, the court sentenced Defendant to a slightly aggravated
term of thirteen years’ incarceration. Based on Defendant’s admission, the
trial court had authority to find his prior felony convictions as aggravating
circumstances to increase the sentence. See A.R.S. § 13-701.D.11. By
admission, Defendant exposed himself to the maximum term permitted
under A.R.S. § 13-704. See A.R.S. § 13-701.C; State v. Estrada, 210 Ariz. 111,
120-21, ¶ 25 (App. 2005) (“[T]he existence of a single aggravator authorizes
a judge (in his or her discretion) to impose a sentence up to the statutory
maximum.”). The trial court sentenced Defendant accordingly.

                              CONCLUSION

¶18           Defendant’s convictions and sentences are affirmed.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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