NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JOSE ROBERT CABRERA, Appellant.

No. 1 CA-CR 13-0735

Appeal from the Superior Court in Maricopa County

No. CR 2012-143021-001

The Honorable David B. Gass, Judge

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Stephen Whelihan

Counsel for Appellant
STATE v. CABRERA

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

B R O W N, Judge:

¶1 Jose Robert Cabrera appeals his convictions and sentences for 

one count of misconduct involving weapons and two counts of threatening 

or intimidating. Counsel for Cabrera filed a brief in accordance with Anders 

v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 

878 (1969), advising that after searching the record on appeal, he was unable 

to find any arguable grounds for reversal. Cabrera was given the 

opportunity to file a supplemental brief in propria persona. He has not done 

so, and has not raised any issues for review through counsel.

¶2 Our obligation is to review the entire record for reversible 

error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We 

view the facts in the light most favorable to sustaining the conviction and 

resolve all reasonable inferences against Cabrera. State v. Guerra, 161 Ariz. 

289, 293, 778 P.2d 1185, 1189 (1989). For the following reasons, we affirm 

Cabrera’s convictions but modify his sentences to reflect 39 additional days 

of presentence incarceration credit. 

¶3 The State indicted Cabrera for one count of unlawful flight, a 

class 5 felony, in violation of Arizona Revised Statutes (“A.R.S.”) section 28-

622.01; one count of misconduct involving weapons as a prohibited 

possessor, a class 4 felony, in violation of A.R.S. § 13-3102(A)(4); one count 

of hindering prosecution in the first degree, a class 5 felony, in violation of 

A.R.S. § 13-2510; and three counts of threatening or intimidating, class 1 

misdemeanors, in violation of A.R.S. § 13-1202. The following evidence was 

presented at trial.

¶4 Officer McElvain testified that in August 2012, he and Officer 

Soliz were on patrol near the Black Canyon freeway. McElvain heard 

gunshots and observed a car traveling at a high rate of speed on the freeway 

access road. McElvain activated his lights and siren to pursue the car, 

which eventually stopped in a parking lot. When the driver’s side door of 

the car opened, McElvain heard the sound of “metal clinking on the 

ground.” McElvain and Soliz then detained Cabrera, who was driving the 
STATE v. CABRERA

Decision of the Court

3

vehicle, and the passenger until another unit arrived to assist. When 

Officers Reeson and Rowley arrived at the scene, Cabrera, who had been

yelling obscenities and kicking the inside of McElvain’s vehicle, was placed 

in the backseat of their patrol vehicle.

¶5 McElvain informed Reeson and Rowley that there were .45 

caliber shell casings found on the ground outside of the vehicle, and after 

hearing the gunshots, he observed the passenger “throw a black object out 

of the car.” Reeson recovered a .357 caliber handgun in the vicinity that 

McElvain indicated, as well as a .45 caliber semiautomatic handgun 

underneath the vehicle Cabrera was driving.

¶6 Reeson testified that during transport, Cabrera referenced his 

connection to a dangerous drug cartel and directed the officers to watch an 

online video of men being beheaded. Several times Cabrera told the officers 

they would suffer the same fate, in front of their children. The officers 

testified they felt threatened by the words Cabrera said, the video he 

directed them to watch, and his overall physical aggression. 

¶7 A jury found Cabrera guilty as to count 2, misconduct 

involving weapons,

1 and counts 6 and 7, threatening or intimidating. 

Cabrera was acquitted of the remaining charges. The trial court sentenced 

him to a presumptive 4.5 years’ term of imprisonment for the felony, with 

credit for 75 days of presentence incarceration. For the misdemeanors, the 

court imposed six months’ jail time for each conviction, to be served 

concurrently with the felony sentence. Cabrera timely appealed.

¶8 We have searched the entire record for reversible error and 

find none. All of the proceedings were conducted in accordance with 

Arizona Rules of Criminal Procedure. The record shows Cabrera was 

present at all pertinent proceedings and was represented by counsel. 

Cabrera had an opportunity to speak before sentencing, and the sentence 

imposed was within the statutory limits. 

¶9 We have determined, however, that the trial court incorrectly 

calculated the presentence incarceration credit. Cabrera was originally 

scheduled to be sentenced on August 9, 2013 but the hearing was postponed

to September 17, 2013. Therefore, Cabrera should have been credited with 

an additional 39 days of presentence incarceration credit, for a total of 114

days. See State v. Stevens, 173 Ariz. 494, 495-96, 844 P.2d 661, 662-63 (App.

 

1 Cabrera stipulated at trial that he was a prohibited possessor whose 

civil rights had not been restored at the time of the incident.
STATE v. CABRERA

Decision of the Court

4

1992) (“A defendant is entitled to presentence incarceration credit for all 

time spent in custody pursuant to an offense.”).

¶10 Based on the foregoing, we affirm Cabrera’s convictions and 

sentences but modify Cabrera’s sentence to reflect 114 days of presentence 

incarceration credit.

2 

¶11 Upon the filing of this decision, counsel shall inform Cabrera

of the status of the appeal and his options. Defense counsel has no further 

obligations unless, upon review, counsel finds an issue appropriate for 

submission to the Arizona Supreme Court by petition for review. See State 

v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Cabrera shall 

have thirty days from the date of this decision to proceed, if he so desires, 

with a pro per motion for reconsideration or petition for review.

 

2 We also note that an error occurred relating to the sentences for

counts 6 and 7. The trial court sentenced Cabrera to concurrent six-month 

jail terms to run concurrent with his prison term in count 2, which was 

improper. See A.R.S. § 13-707 (“A sentence of imprisonment for a 

misdemeanor shall be . . . served other than a place within custody of the 

state department of corrections.”); see State v. Garcia, 165 Ariz. 547, 548 n.1, 

799 P.2d 888, 889 n.1 (App. 1990) (finding that the trial court improperly 

ordered misdemeanor jail sentences to run concurrently with term of 

imprisonment). The State, however, did not challenge the sentences by 

filing a cross-appeal and therefore we will not disturb the sentence. See

State v. Dawson, 164 Ariz. 278, 282-83, 792 P.2d 741, 745-46 (1990).