State v. Inzunza

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. GILDARDO INZUNZA, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-10-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0559 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-134566-001 DT The Honorable Janet E. Barton, Judge AFFIRMED AS MODIFIED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Pamela J. Eaton Attorney for Appellant Phoenix I R V I N E, Presiding Judge ¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Gildardo Inzunza ( Inzunza ) asks this court to search the record for fundamental error. Inzunza was given an opportunity to file a supplemental brief in propria persona. reviewing the record, sentences for aggravated Inzunza we affirm has not Inzunza s assault and done so. After convictions misconduct and involving weapons. FACTS AND PROCEDURAL HISTORY ¶2 On September 5, 2008, the grand jury issued an indictment, charging Inzunza with aggravated assault, a class three dangerous felony, and misconduct involving weapons, a class four felony. At the close of the evidence, the trial court properly instructed the jury on the elements of the offense. Inzunza was convicted as charged. ¶3 The trial court conducted the sentencing hearing in compliance with Inzunza s constitutional rights and Rule 26 of the Arizona Rules of Criminal Procedure. The trial court sentenced Inzunza to nine years imprisonment in ADOC for count one and 2.5 years for count two with credit for 409 days presentence incarceration. The court ordered the sentences to run concurrently. DISCUSSION ¶4 Section Statutes We 9, exercise of the section jurisdiction Arizona pursuant Constitution 12-120.21(A)(1) 2 (2003). and We to Article Arizona review 6, Revised Inzunza s convictions and sentences for fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). ¶5 Our court erred review in its of the record calculation indicates of that pre-sentence the trial incarceration credit. 1 The record indicates that Inzunza was arrested on May 31, 2008. He remained in custody until the sentencing hearing on July 15, 2009, which means that Inzunza was incarcerated for 410 days. Inzunza only received 409 days of pre-sentence incarceration credit. Because pre-sentence incarceration credit calculation errors can be corrected without a remand to the trial court, see State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992); Ariz.R.Crim.P. 31.17(b), we modify the sentencing minute entry to reflect an additional one day of presentence incarceration credit. ¶6 a Counsel for Inzunza has advised this court that after diligent arguable search question of of the law. entire The record, court has she read has and found no considered counsel s brief and fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record 1 On April 29, 2010, we ordered the parties to file simultaneous supplemental memoranda addressing the issue of presentence incarceration credit. Counsel for Inzunza agreed that the trial court erred; the State did not file a memorandum. 3 reveals, Inzunza was represented by counsel at all stages of the proceedings and the sentence imposed was within the statutory limits. We decline to order briefing and we affirm Inzunza s convictions and sentences. ¶7 Upon the filing of this decision, defense counsel shall inform Inzunza of the status of his appeal and of his future unless, options. upon Defense review, counsel counsel has finds no an further issue obligations 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, 15657 (1984). Inzunza shall have thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. On the court s own motion, we extend the time for Inzunza to file a pro per motion for reconsideration to thirty days decision. 4 from the date of this CONCLUSION ¶8 We affirm Inzunza s convictions and sentences, but modify the sentencing minute entry to reflect 410 days of presentence incarceration credit. /s/ __________________________________ PATRICK IRVINE, Presiding Judge CONCURRING: /s/ _____________________________________ MICHAEL J. BROWN, Judge /s/ _____________________________________ DONN KESSLER, Judge 5

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