STATE v. CERVANTES
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NOTICE: NOT FOR PUBLICATION.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. GABRIEL CERVANTES, Appellant. No. 1 CA-CR 14-0541 FILED 8-4-2015 Appeal from the Superior Court in Maricopa County No. CR2013-442993-003 The Honorable Robert E. Miles, Retired Judge AFFIRMED COUNSEL Arizona Attorney General’s Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Janelle A. McEachern, Attorney at Law, Chandler By Janelle A. McEachern Counsel for Appellant STATE v. CERVANTES Decision of the Court MEMORANDUM DECISION Presiding Judge Maurice Portley delivered the decision of the Court, in which Judge John C. Gemmill and Judge Michael J. Brown joined. P O R T L E Y, Judge: ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Gabriel Cervantes has advised us that after searching the entire record she has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant was given the opportunity to file a supplemental brief but has not done so. FACTS1 ¶2 Defendant Gabriel Cervantes and co-defendants Augustine Cervantes and Jose Treviso were kicked out of a strip club on September 7, 2013, for causing a disturbance. As the three men were being escorted out, they picked a fight with the victims, M.S., E.S., and Q.S., who were trying to leave the club. During the fight, Defendant punched M.S., knocking him unconscious, then repeatedly kicked his face as he lay on the ground unconscious and bleeding. ¶3 Defendant then got into a car with Augustine and Jose, and they drove away. M.S. sustained serious injuries, including an orbital fracture, and was transported to St. Joseph’s Hospital. Defendant, Augustine and Jose were soon pulled over by police and detained. Defendant was later identified by E.S. ¶4 Defendant was indicted on one count of aggravated assault, a class three dangerous felony, two counts of aggravated assault, both misdemeanor offenses, and riot, a class five felony. Augustine and Jose were offered and accepted plea agreements, and testified against Defendant We view the facts “in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant.” State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997). 1 2 STATE v. CERVANTES Decision of the Court at trial. Prior to trial, count four, the riot charge, was dismissed without prejudice by the court. ¶5 During the trial, the jury also heard from the police officers, M.S., E.S., and the surgeons who treated M.S. Defendant testified and stated that he was acting in self-defense after getting jumped outside of the establishment. At the close of the State’s case, the court granted Defendant’s Rule 20 motion and dismissed counts two and three. After closing arguments and final jury instructions, the jury found Defendant guilty of the aggravated assault on M.S. And after being properly instructed, the jury also found that the offense was dangerous, and that the physical harm to the victim was an aggravating circumstance. Defendant was subsequently sentenced to six years in prison, and received 112 days of presentence incarceration credit. He was later ordered to pay restitution, jointly and severally, with the co-defendants in the amount of $9,349.79. ¶6 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).2 DISCUSSION ¶7 We have read and considered counsel’s brief and have searched the entire record for reversible error. We find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings, pretrial motions were filed and resolved, and the sentence imposed was within the statutory limits. ¶8 After this decision is filed, counsel’s obligation to represent Defendant in this appeal has ended. Counsel must only inform Defendant of the status of the appeal and Defendant’s future options, unless counsel identifies 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). Defendant may, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. We cite the current version of the applicable statutes absent changes material to this decision. 2 3 STATE v. CERVANTES Decision of the Court CONCLUSION ¶9 Accordingly, we affirm Defendant’s conviction and sentence. : RT 4
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