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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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 “sameelements” 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 

 

1 In 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).
STATE v. CABRERA

Decision of the Court

3

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:
STATE v. CABRERA

Decision of the Court

4

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.