IN THE



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

FLORENTINO JOSUE MILLAN ERIVEZ
, Appellant

.

No. 1 CA

- CR 13

- 0858

Appeal from the Superior Court in Maricopa County

No. CR2012

- 165742

- 001 The Honorable Pamela S. Gates
, Judg e

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 C ounsel for AppellantSTATE v. ERIVEZ Opinion of the Court

2 OPINION
Judge Andrew W. Gould delivered t he 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 gr eater 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 in to the home of victim Martha B. The defendants allegedly entered the home because they were bail recovery agent s 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, ei ther Erivez or Rodriguez confronted Martha and her children with a gun as they were climb ing 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 purported ly searched the house for the fugitive

. At one point, V illalobos 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 o n the way to the victims’ house

. ¶6 Erivez, Rodriguez
, and Villalobos were jointly char ged in

one indict ment

. Erivez was charged with several offenses, including count six, which alleged that he or an accomplice committed aggravatedSTATE v. ERIVEZ Opinion of the Court

3 assault by “intentionally plac [ing] [victim Martha B.]

. . . i n 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 a n “ 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 i nstruction as to count six:

The crime of A ggravated A ss ault includes the lesser offense s of D isorderly C onduct and A ssault. You may consider the lesser offense of D isorderly C onduct and/or A ssault if either:

1. You find the D efendant not guilty of A ggravated A ssault;

or

2. After full and careful considerat ion of the facts you cannot agree on whether to find the D efendant guilty or not guilty of A ggravated A ssault.

¶8 Erivez ’ s attorney did not object to the proposed jury instruction . R ather, he agreed that disorderly conduct and assault were both lesser

- includ ed offenses of aggravated assault, and that the jury should be given instructions regarding both lesser

- included offense s

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

We, the jury, duly e mpanelled 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 curr ent version of the applicable statutes, unless material revisions have since occurred.STATE v. ERIVEZ Opinion of the Court

4 To Be Completed only if Not Guilty or Cannot Agree on the offense of Coun t 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 N ot 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, t he 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 determin ed that based on the jury verdicts, Erivez was guilty of both disorderly conduct and assault. T he State moved to have Erivez sentenced on ly on the disorderly conduct conviction. Erivez did not object, and , as to count six, the court sentence d Erivez on t he lesser

- included offense of disorderly conduct. Erivez t imely 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 co ntends “[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 in structions at trial, and therefore our review is limited to fundamental error review

.STATE v. ERIVEZ Opinion of the Court

5 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 bo th 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 gr eater 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. 62 7, 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. Wal l , 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 gr e ater 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 D isorderly 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, a ssault was a lesser

- included offense of aggravated assault because , based on the evidenc e, 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 a ssault if he “commits assault as prescribed by § 13

- 1203” and the additional element of using a deadly weapon is proven ); s ee 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 offen s e s in this case. The evidence showed that Erivez, or his accomplice Rodriguez, displayed a gun in the prese nce 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, 5 08

- 09, 720 P.2d 100
, 109

- 10 (App. 1985) (Kleinschmidt, J., dissenting), adopted by , 149 Ariz.STATE v. ERIVEZ Opinion of the Court

6 478, 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’ t estimony

. 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 que stions exclusively for the jury ”)

. ¶17 A l though disorderly con duct and assault are lesser

- included offenses of the aggravated assault charge in this case, n either offense is a lesser

- included offense of the other. D isorderly conduct is not a lesser

included offense of assault because it requires the reckless displa y/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 offens e plus one or more additional elements not required by the le sser 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 v ictim . H owever, 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 comm it disorderly conduct without committ ing 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, th e 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. Additi onally, Rule 13.2 (c) provides “ [s] pecification of an offense in an indictment, information, or complaint shall constitute a charge of thatSTATE v. ERIVEZ Opinion of the Court

7 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 , ¶ 1 4 , 277 P.3d 189, 191

- 92 (2012).

¶22 Finally, Erivez contends the court erred by disregard ing the assault conviction and sentenc ing 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 E rivez 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 Howe ver, the trial court failed to expressly dismiss Erivez’ s conviction for assault, which is now surplusage. W e 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)

.STATE v. ERIVEZ Opinion of the Court

8 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.