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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RAYMOND GABRIEL CABRERA, Appellant.
No. 1 CA-CR 16-0595
FILED 6-13-2017
Appeal from the Superior Court in Maricopa County
No. CR2014-108873-001
The Honorable Richard L. Nothwehr, Commissioner
AFFIRMED AS CORRECTED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Office of Nicole Farnum
By Nicole T. Farnum
Counsel for Appellant
STATE v. CABRERA
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.
N O R R I S, Judge:
¶1 Raymond Gabriel Cabrera timely appeals from his
convictions and sentences for criminal damage, a class 5 felony under
Arizona Revised Statutes (“A.R.S.”) section 13-1602(A)(1) (Supp. 2016),1
and criminal trespass in the third degree, a class 3 misdemeanor under
A.R.S. § 13-1502 (Supp. 2016). After searching the record on appeal and
finding no arguable question of law that was not frivolous, Cabrera’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738,
87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451
P.2d 878 (1969), asking this court to search the record for fundamental
error. This court granted counsel’s motion to allow Cabrera to file a
supplemental brief in propria persona, but he did not do so. After reviewing
the entire record, we find no fundamental error and, therefore, affirm
Cabrera’s convictions. We also affirm Cabrera’s sentences as corrected.
FACTS AND PROCEDURAL BACKGROUND2
¶2 On the evening of February 22, 2014, Officer J.L. responded
to a 911 call from a hotel owner that stated a male had been causing a
disturbance with hotel guests. When Officer J.L. arrived, the hotel owner
informed him the person causing the disturbance had left and was at the
adjoining property, a reception hall that shared a parking lot with the
hotel.
¶3 Officer J.L. saw Cabrera standing on a sidewalk in front of
the reception hall, which had no trespassing signs, and was closed. As
1The Legislature has not materially amended the statutes
cited in this decision after the date of Cabrera’s offenses. Thus, we cite to
the current version of the statutes.
2We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Cabrera.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
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STATE v. CABRERA
Decision of the Court
Officer J.L. approached him, Cabrera threw his beer on the ground. When
Officer J.L. contacted Cabrera, Cabrera stated he was no longer on the
property and was not trespassing. Officer J.L., however, advised him that
he was trespassing on the property of the reception hall and Cabrera
responded, “F[—]k You. Nobody called. I’m not trespassing.” Because
Cabrera did not leave, and gave no indication he intended to leave, Officer
J.L. arrested Cabrera for trespassing and transported him to the precinct.
¶4 At the precinct, Officer J.L. had trouble finding the
authorization to arrest trespassers given to the police by the owner of the
reception hall. Consequently, he decided to release Cabrera. He walked
Cabrera from the holding cell to the precinct’s lobby and released him. A
few minutes later, a police aid working at a desk in the lobby notified
Officer J.L. that she had heard “loud banging” outside of the precinct near
the lobby area. Officer J.L. walked outside the precinct to investigate. He
saw Cabrera walking away from the precinct, and everything looked “the
same as normally,” so he returned inside.
¶5 A few minutes later, the police aid again heard “loud
banging” and again notified Officer J.L. Officer J.L., with Officer W.W.,
walked into the lobby and were about to walk outside when they heard a
“loud bang” and the lobby’s window shattered. Officers J.L. and W.W.
walked outside of the lobby to the front of the precinct and saw river
rocks throughout the parking lot area and Cabrera standing about 30 feet
away. Cabrera then said, “Why the f[—]k did you leave me all the way up
here on Cactus?” Officer J.L. asked, “Why did you break the window?”
Cabrera stated, “Prove it. DNA the rock.” Cabrera then took off his
sweatshirt and threw it on the ground in a confrontational manner. As
Officer J.L. and W.W. moved closer, Cabrera turned around, and put his
hands behind his back. Officer J.L. arrested him.
¶6 Afterward, Officer J.L. went outside again to look at the
damage and saw that, in addition to the broken window, a government
car in the parking lot and some tiles on the roof of the precinct had been
damaged. At trial, Officer J.L. testified he had not seen anyone outside of
the precinct when he had walked outside. Both officers, and the police aid,
testified that the damage had not previously been there earlier in the
night. The estimator who repaired the damaged car testified the repairs
were over $2,000, and a service aid at the precinct testified the damage to
the window was $566.06.
¶7 A jury properly comprised of eight jurors found Cabrera
guilty of the offenses listed above. See supra ¶ 1. At the sentencing hearing,
the superior court found Cabrera had one historical prior felony
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STATE v. CABRERA
Decision of the Court
conviction.3 As a category two repetitive offender, the court sentenced
Cabrera to the presumptive term of 2.25 years’ imprisonment on the
criminal damage charge, with 64 days of presentence incarceration credit,
and to 30 days in jail with credit for time served on the criminal trespass
charge.
DISCUSSION
¶8 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Cabrera received a
fair trial. He was represented by counsel at all stages of the proceedings.
Although Cabrera was present at sentencing, he was voluntarily absent at
trial, and waived his right to be present for trial.4
¶9 The evidence presented at trial was substantial and supports
the verdicts. The court properly instructed the jury on the elements of the
charges, Cabrera’s presumption of innocence, the State’s burden of proof,
and the necessity of a unanimous verdict. Although the record reflects the
court ordered the Adult Probation Department to prepare a presentence
report and the sentencing hearing transcript suggests the court considered
the report, the record on appeal does not contain the report. Cabrera was
given an opportunity to speak at sentencing, and he did so. His sentences
were within the range of acceptable sentences for his offenses.
¶10 The sentencing minute entry contains three errors
concerning the sentence imposed by the court on the criminal damage
charge, however. First, the sentencing minute entry states the superior
court imposed an aggravated sentence on that charge when, in fact, the
court imposed the presumptive sentence of 2.25 years. See A.R.S. § 13-
703(B), (I) (Supp. 2016). We thus correct the sentencing minute entry to
state the superior court imposed a presumptive sentence on the criminal
damage charge.
¶11 Second, the sentencing minute entry states the superior court
sentenced Cabrera pursuant to A.R.S. § 13-702 (2010). The superior court
3The court found Cabrera had a prior felony conviction for
the offense of robbery, a class 4 felony, committed on October 2, 2008, and
convicted on July 23, 2009. See generally A.R.S. § 13-105(22)(a)(1) (Supp.
2016).
4The record reflects the court notified Cabrera of the trial
setting, his right to be present, and the consequences if he failed to appear.
See generally Ariz. R. Crim. P. 9.1.
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STATE v. CABRERA
Decision of the Court
sentenced Cabrera pursuant to A.R.S. § 13-703, however. We therefore
correct the sentencing minute entry by deleting the reference to A.R.S. §
13-702.
¶12 Third, the sentencing minute entry states the superior court
found Cabrera had one historical prior felony conviction pursuant to
A.R.S. § 13-604 (2010). Section 13-604, however, was inapplicable here as
that statute concerns class 6 felony convictions. We correct the sentencing
minute entry to delete the reference to A.R.S. § 13-604, and to state that the
court found Cabrera had a historical prior felony conviction pursuant to
A.R.S. § 13-105(22)(a)(1). See supra note 3.
CONCLUSION
¶13 We decline to order briefing and affirm Cabrera’s
convictions and sentences, as corrected.
¶14 After the filing of this decision, defense counsel’s obligations
pertaining to Cabrera’s representation in this appeal have ended. Defense
counsel need do no more than inform Cabrera of the outcome of this
appeal and his future options, unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶15 Cabrera has 30 days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. On
the court’s own motion, we also grant Cabrera 30 days from the date of
this decision to file an in propria persona motion for reconsideration.
AMY M. WOOD • Clerk of the Court
FILED: AA
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