IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

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, 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

2

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 
STATE v. ERIVEZ

Opinion of the Court

3

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. 
STATE v. ERIVEZ

Opinion of the Court

4

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. 
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 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. 
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’ 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 lesserincluded 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 lesserincluded 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 
STATE 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 lesserincluded 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). 
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.