STATE v. GARCIA

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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. Supreme Court 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. ) ) ) ) Appellant. ) ) PAUL GARCIA, DIVISION ONE FILED: 7/9/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0470 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-162576-001 The Honorable Warren J. Granville, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Thomas Baird, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Presiding Judge ¶1 Paul Garcia ( Appellant ) appeals his award of presentence incarceration credit, arguing the trial court erred in crediting him for only 210 days rather than 211 days. the following reasons, we affirm. For BACKGROUND 1 ¶2 On indictment, December charging 16, 2011, Appellant a with grand one jury count issued of an aggravated assault on a peace officer, a class 2 dangerous felony (Count 1), two counts of aggravated assault, class 3 dangerous felonies (Counts 2 and 3), one count of theft of means of transportation, a class 3 felony (Count 4), and one count of unlawful flight from a law enforcement vehicle, a class 5 felony (Count 5). ¶3 charged Following a trial, the jury found Appellant guilty as of convicted offense Counts Appellant of 2 through of aggravated 5. As to disorderly conduct, assault. The Count a trial 1, the jury lesser-included court sentenced Appellant to an aggregate total of 25.75 years imprisonment in the Arizona Department of Corrections, and credited Appellant for 210 days of presentence incarceration. ¶4 Appellant filed a timely notice of appeal. We have appellate jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes sections 12120.21(A)(1) (West 2013), 2 13-4031, and 13-4033. 1 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 We cite the current version of the applicable statutes because no revisions material to this decision have occurred since Appellant s crimes. 2 ANALYSIS ¶5 not Appellant argues the trial court erred because it did credit him for one additional day of presentence incarceration. Because Appellant failed to object at sentencing to court s the trial award of fundamental, prejudicial error. 210 days, we review for See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-26, 115 P.3d 601, 607-08 (2005). ¶6 A person is entitled to receive presentence incarceration credit for all time actually spent in custody, excluding the day Hamilton, 153 Ariz. 1987). Time that sentence 244, actually 245-46, spent in incarceration in a jail or prison. is imposed. 735 P.2d See 854, custody State 855-56 refers to v. (App. actual State v. Carnegie, 174 Ariz. 452, 453, 850 P.2d 690, 691 (App. 1993). For the purpose of determining presentence incarceration credit, custody begins when the defendant is booked into a detention facility. Id. at 453-54, 850 P.2d at 691-92. ¶7 Appellant contends that he was arrested and booked on December 11, 2011, and therefore, should have begun on that date. 3 3 his time of incarceration The record, however, belies The basis for Appellant s argument seems to be that the final release questionnaire filled out by the arresting officer is dated December 11, 2011, and contains Appellant s booking number. The arresting officer s draft release questionnaire, which is nearly identical to the final version, 3 Appellant s contention, and he therefore fails burden of establishing that error occurred. to carry his See Henderson, 210 Ariz. at 567, ¶¶ 19-20, 115 P.3d at 607. ¶8 The record indicates that at 11:30 p.m. on December 11, 2011, police officers arrested Appellant. They transported him to the hospital to be treated for minor injuries and a bite wound caused hospital at by a police almost dog. midnight A or a detective little arrived after at the midnight, interviewed one of Appellant s victims, and then proceeded to Appellant s room to check on his condition. After Appellant was later released from the hospital, a police officer transported him to a police station for questioning. detective interviewed forty minutes. Appellant for At the station, the approximately thirty to After the interview, an officer drew blood from Appellant and later transported him to the main jail. Based on the foregoing timeline created by the record, Appellant could not have been booked into jail before midnight on December 11, 2011, the day he was arrested. Moreover, Appellant s booking photograph indicates he was booked into the detention facility on December 12, 2011. ¶9 Appellant remained in custody until he was sentenced on July 9, 2012 - a total of 210 days. Accordingly, Appellant is also dated December 11, 2011, but does not contain a booking number issued to Appellant. 4 was entitled to credit for 210 days of presentence incarceration, the precise amount of credit awarded by the trial court. CONCLUSION ¶10 The trial court s award of presentence incarceration credit is affirmed. _________________/S/_________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: ____________/S/__________________ MARGARET H. DOWNIE, Judge ____________/S/__________________ DIANE M. JOHNSEN, Chief Judge 5

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