                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  JOHNNY G. VALENZUELA, Appellant.

                             No. 1 CA-CR 18-0390
                               FILED 5-16-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-030728-001
                  The Honorable Ronda R. Fisk, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                         STATE v. VALENZUELA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Kenton D. Jones joined.


B R O W N, Judge:

¶1             Johnny G. Valenzuela appeals from his conviction and
sentence for possession of a narcotic drug. He challenges only the sentence
imposed, asserting (1) the superior court improperly found he had three
historical prior felony convictions, and (2) the court should have awarded
additional presentence incarceration credit.

¶2            At Valenzuela’s sentencing hearing, the superior court
admitted into evidence certified copies of minute entries showing three
prior convictions. Valenzuela then admitted to the following felony
convictions: possession or use of dangerous drugs, committed on March 19,
2010; possession or use of dangerous drugs, committed on January 2, 2011;
and aggravated assault, also committed on January 2, 2011. He was
convicted of each of those felonies on June 9, 2011. The court sentenced
Valenzuela as a category three repetitive offender to a less-than-minimum
term of seven years’ imprisonment. The court awarded Valenzuela 199
days of presentence incarceration credit. This timely appeal followed.

¶3             We generally view sentencing decisions for an abuse of
discretion. See State v. Cazares, 205 Ariz. 425, 427, ¶ 6 (App. 2003). However,
because Valenzuela did not object at sentencing to either issue he raises on
appeal, we review his claims for fundamental error only. State v. Henderson,
210 Ariz. 561, 567, ¶ 19 (2005). In fundamental error review, we first
determine whether trial error exists. Id. at 568, ¶ 23. If so, we must decide
whether the error is fundamental, looking at the totality of the
circumstances. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). “A
defendant establishes fundamental error by showing that (1) the error went
to the foundation of the case, (2) the error took from the defendant a right
essential to his defense, or (3) the error was so egregious that he could not
possibly have received a fair trial.” Id. If fundamental error is established
under the first or second prong, a separate showing of prejudice must be
made. Id. A separate showing of prejudice is not required when
fundamental error is established under the third prong. Id.



                                      2
                         STATE v. VALENZUELA
                           Decision of the Court

¶4            Valenzuela argues the superior court committed fundamental
error when it found he had three historical prior felony convictions for
sentence enhancement purposes.          He contends that one of those
convictions, possession of a narcotic drug, could not be used as a separate
prior historical conviction because it occurred on the “same occasion” as
the aggravated assault conviction.

¶5            A defendant with two or more historical prior felony
convictions is a category three repetitive offender. Ariz. Rev. Stat.
(“A.R.S.”) § 13-703(C). Section 13-703(L), however, provides that “two or
more offenses committed on the same occasion” must be “counted as only
one conviction” for sentence enhancement purposes. At sentencing, the
superior court found that Valenzuela had the three prior felony convictions
to which he admitted, but the court did not specify which of those three
convictions were prior historical felonies. To properly sentence Valenzuela
as a category three repetitive offender, however, we presume the court
found at least two of Valenzuela’s prior convictions qualified as historical
under § 13-703(C). See State v. Trostle, 191 Ariz. 4, 22 (1997) (“Trial judges
are presumed to know the law and to apply it in making their decisions.”
(quoting Walton v. Arizona, 497 U.S. 639, 653 (1990))).

¶6            To the extent the superior court may have classified all three
prior convictions as historical prior felony convictions, Valenzuela has not
established the court erred. To determine if two offenses were committed
“on the same occasion,” courts consider whether (1) a defendant’s “criminal
conduct was continuous and uninterrupted;” (2) the criminal “conduct was
directed to the accomplishment of a single criminal objective rather than
multiple criminal objectives;” (3) “only one person was victimized;” and (4)
“the time period involved was very brief.” State v. Noble, 152 Ariz. 284, 286
(1987).

¶7             Valenzuela has not identified anything in this record
showing the two felonies committed on January 2, 2011 were committed on
the same occasion under § 13-703(L). To further his argument, Valenzuela
relies on his admission that he committed those felonies and the sentencing
minute entries, but that information does not allow us to determine
whether those felonies were committed “on the same occasion;” it simply
shows the felonies were committed on the same date, which is insufficient
under Noble. See id.; see also State v. Kelly, 190 Ariz. 532, 535, ¶ 12 (1997)
(explaining that if the defendant “sold marijuana and methamphetamine to
a single officer in a single transaction” and “the offenses were
uninterrupted and committed at the same time and place with a single



                                      3
                         STATE v. VALENZUELA
                           Decision of the Court

criminal objective,” then the two offenses would be committed on the
“same occasion”). Thus, we find no error, much less fundamental error.

¶8             Even assuming the two felonies Valenzuela committed on
January 2, 2011 occurred “on the same occasion,” he admits that “reducing
the number of prior convictions from three to two will have no effect on the
sentencing range into which [he] falls.” He argues instead there is a
possibility “one or more of [the] historical prior convictions may be set aside
on collateral attack, in which case he would have to be treated as an
offender with only one prior or perhaps none at all.” He also asserts that
the number of prior convictions may affect his housing assignment and
eligibility for education and rehabilitative programs in prison. But
Valenzuela does not cite any authority for those broad assertions nor does
he explain why he would be treated any differently if his convictions are
historical priors instead of non-historical priors. Valenzuela’s assertions are
therefore based on mere speculation, and speculative prejudice is
insufficient under a fundamental error review. See Escalante, 245 Ariz. at
142, ¶ 21 (explaining that a defendant must make a fact-intensive showing
of prejudice). Because Valenzuela concedes he was correctly sentenced as
a category three repetitive offender even if he has only two historical prior
felony convictions, he has failed to establish prejudice.

¶9            Valenzuela next argues he is entitled to more presentence
incarceration credit than the 199 days awarded by the superior court. A
defendant is entitled to presentence incarceration credit for all time spent
in custody for an offense. A.R.S. § 13-712(B). The failure to award the
correct amount of presentence incarceration credit toward a defendant’s
sentence constitutes fundamental error. State v. Ritch, 160 Ariz. 495, 498
(App. 1989). The State acknowledges Valenzuela is entitled to an additional
51 days’ presentence incarceration credit because the court’s award of 199
days, pursuant to the presentence report, did not account for the time he
spent in custody after the original sentencing date was continued.
Valenzuela spent 89 days in custody after conviction and prior to
sentencing—the presentence report correctly listed 38 days based on the
original sentencing date but omitted 51 days. The State therefore concedes,
and Valenzuela agrees, that the sentencing order should be amended to
reflect presentence incarceration credit of 250 days—the undisputed 161
days of pre-conviction incarceration plus 89 days of post-conviction
presentence incarceration. We therefore modify his sentence to reflect 250
days’ presentence incarceration credit. See A.R.S. § 13-4037(A).




                                      4
                      STATE v. VALENZUELA
                        Decision of the Court

¶10         For the foregoing reasons, we affirm Valenzuela’s sentence as
modified.




                      AMY M. WOOD • Clerk of the Court
                       FILED: AA




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