State v. Cabrera ( 2014 )

NOTICE: NOT FOR PUBLICATION.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
FILED 08-19-2014
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
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
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STATE v. CABRERA
Decision of the Court
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.
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STATE v. CABRERA
Decision of the Court
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.
:gsh
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).
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