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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

           EVER GERARDO GASTELUM GARCIA, Appellant.

                             No. 1 CA-CR 15-0435
                               FILED 6-20-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2012-128983-001 DT
                 The Honorable Bruce R. Cohen, Judge

  CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,
     MODIFIED IN PART, VACATED IN PART AND REMANDED
                    FOR RESENTENCING


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                            STATE v. GARCIA
                           Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.1


B R O W N, Chief Judge:

¶1            Ever Gerardo Gastelum Garcia appeals his convictions and
sentences for first-degree murder, drive-by shooting, and five counts of
endangerment. For the reasons that follow, we affirm each of Garcia’s
convictions, the sentences for murder, drive-by shooting, and two counts of
endangerment (modified to reflect one additional day of presentence
incarceration credit). We vacate the remaining sentences for endangerment
and remand for resentencing.

                             BACKGROUND2

¶2             In June 2012, G.V. attended J.M.’s high school graduation.
After the ceremony, G.V. and J.M. had J.M.’s mother’s Chevrolet Tahoe and
picked up four additional friends to look for a party. J.M. drove, J.C.R. sat
as the front-seat passenger, R.M., D.C., and G.V. sat in the “middle seats,”
and J.J.R. sat alone in the “third row.”

¶3            The young men drove around throughout the night. At
dawn, G.V. noticed a white Chevrolet Impala behind the Tahoe that quickly
pulled up on the right side. As the Impala moved alongside the Tahoe, G.V.
looked inside the Impala and saw Garcia, whom he recognized, holding a
gun. Within thirty seconds, G.V. heard at least five gunshots and saw “the
windows burst” and “explode[.]” Instinctively, he ducked down. When the
gunfire ended, G.V. heard the Tahoe’s engine “roaring” and noticed the
vehicle veering out of its lane. He reached over the front seat in an attempt



1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).



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                             STATE v. GARCIA
                            Decision of the Court

to take the steering wheel, but recoiled when he realized it and J.M. were
covered in blood.

¶4            G.V. then saw a brick wall ahead, opened the nearest door,
and dove on to the street. Afraid Garcia might circle back and shoot again,
G.V. started walking on side streets to the nearby home of a cousin. Along
the way, he met up with the other passengers from the Tahoe and they
walked together to G.V.’s cousin’s home.

¶5             Once there, however, none of them contacted the police.
Instead, G.V. called another cousin, who picked them up and drove them
back to the site of the shooting. By the time they arrived, police officers had
taped off the area, and G.V. learned that J.M. had died. G.V. spoke with the
police, telling them he recognized the shooter as Garcia. Later that day,
G.V. positively identified Garcia from a photo line-up and Garcia was
apprehended.

¶6             The State charged Garcia with one count of first-degree
murder (Count 1 – victim J.M.), one count of assisting a criminal street gang
(Count 2), one count of drive-by shooting (Count 3), and five counts of
endangerment (Count 4 – victim G.V.; Count 5 – victim D.C.; Count 6 –
victim J.C.R.; Count 7 – victim R.M.; and Count 8 – victim J.J.R.). The State
also alleged aggravating circumstances.

¶7             At trial, Garcia testified that he shot at the Tahoe in self-
defense. He explained that some of the occupants of the Tahoe had
threatened him on multiple occasions, even shooting at him in one instance.
Garcia testified that on the morning of the incident, the Tahoe drove
aggressively toward him, causing him to fear that it might hit him from
behind. The Tahoe then pulled next to the Impala on the left side and
Garcia saw J.J.R. “throwing up gang signs” and then lean down. Fearing
J.J.R. may be retrieving a gun, Garcia ducked and “fired a couple shots.” In
a state of panic, Garcia then threw his firearm out the window and drove
away.

¶8           After a thirteen-day trial, the jury acquitted Garcia on the
count of assisting a criminal street gang and found him guilty of the
remaining charges. The court sentenced Garcia to life with the possibility
of release on the murder conviction; a concurrent, aggravated term of
twenty-one years’ imprisonment for the drive-by shooting conviction; and
consecutive, aggravated terms of three years’ imprisonment for each
endangerment conviction. The court awarded Garcia 1,090 days of




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                             STATE v. GARCIA
                            Decision of the Court

presentence incarceration credit for the murder and drive-by shooting
convictions. Garcia timely appealed.

                                DISCUSSION

   I.      Failure to Redact Interview Recording

¶9             On the fourth day of trial, defense counsel moved to redact a
video recording of Garcia’s police interview and eliminate any reference to
guns found where he lived. Specifically, because none of the guns seized
from where Garcia lived had been “forensically tied” either to him or the
shooting, and the guns allegedly belonged to two gang-member felons (his
brothers), Garcia argued the evidence was irrelevant and would cause
“confusion of [the] issues.” The State countered that the portion of the
interview discussing the guns was relevant to demonstrate that Garcia had
initially been evasive with police. The State disagreed that an unredacted
video would confuse the issues, explaining the jury would also hear
Garcia’s statement to police that he threw his gun out the window once he
finished shooting. The trial court found that the contested portion of the
interrogation video was relevant to show “how the whole interview
evolved,” and was not unfairly prejudicial. On appeal, Garcia challenges
the court’s ruling, asserting that because there was no connection between
those guns and the shooting, the jury may have found him “guilty by
association with his brothers, rather than having acted in self-defense.”

¶10            We review evidentiary rulings for an abuse of discretion.
State v. Armstrong, 218 Ariz. 451, 458, ¶ 20 (2008). In reviewing a trial court’s
admissibility ruling, we view the evidence “in the light most favorable to
the proponent, maximizing its probative value and minimizing its
prejudicial effect.” State v. Ortiz, 238 Ariz. 329, 333, ¶ 5 (App. 2015).

¶11           Evidence is relevant if it has “any tendency” to make a fact of
consequence in determining the action “more or less probable than it would
be without the evidence.” Ariz. R. Evid. 401. Relevant evidence is
admissible unless it is otherwise precluded by the federal or state
constitution, an applicable statute, or rule. Ariz. R. Evid. 402. Relevant
evidence may be excluded, however, if its probative value “is substantially
outweighed” by a danger of unfair prejudice or confusion of the issues.
Ariz. R. Evid. 403.

¶12          Based on Garcia’s admissions that he shot at the Tahoe and
then threw the firearm out the window of the Impala, the only issue before
the jury was whether he acted in self-defense. Thus, the video recording
was not offered to prove that Garcia committed the shooting. Nor was it


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                             STATE v. GARCIA
                            Decision of the Court

offered to demonstrate Garcia’s character or propensity to possess firearms.
See Ariz. R. Evid. 404(b). Instead, the State offered the evidence to show
that Garcia had been evasive and misleading during much of the police
interrogation, and did not initially claim he had acted in self-defense.
Because Garcia’s credibility was a critical issue at trial, evidence related to
the development of his self-defense narrative was relevant. And given this
relevance, Garcia has not shown how the unredacted video recording was
so unfairly prejudicial that the trial court abused its discretion in overruling
Garcia’s objection.

¶13             Moreover, even assuming the trial court erred by admitting
the unredacted video recording, the State has met its burden of showing
any such error was harmless as to all counts, including Count 8 (see ¶¶ 16-
18, infra). See State v. Anthony, 218 Ariz. 439, 446, ¶ 39 (2008) (“The State has
the burden of convincing us that any error was harmless.”); State v.
Henderson, 210 Ariz. 561, 567, ¶ 18 (2005) (noting harmless error analysis,
applicable where a timely objection was improperly overruled, “places the
burden on the state to prove beyond a reasonable doubt that the error did
not contribute to or affect the verdict”).

¶14             Garcia admitted, both during his police interrogation and at
trial, that he shot at the Tahoe multiple times, knowing it was occupied by
several people. Although Garcia asserted concerns for his safety based on
his previous encounters with some of the victims, he did not claim that any
of the victims brandished a weapon or made any threats suggesting his life
was in imminent danger. He further admitted that when interviewed by
the police, he initially denied any knowledge of or involvement in the
shooting, and only later claimed he shot at the Tahoe at least eight times in
self-defense.

¶15           In final jury instructions, the court advised jurors they must
not consider Garcia’s statements to police unless they determined beyond
a reasonable doubt his statements were given voluntarily (not resulting
from police violence, coercion, threat, or promise), and they were to give
such weight as they felt deserving under all the circumstances. Although
the jury convicted Garcia on seven of the eight counts, it acquitted him of
the charge of assisting a criminal street gang (the only charge dependent
upon his association with gang members), indicating the jury carefully
considered the evidence presented and was not confused by the portion of
the video recording relating to guns seized at the house. In light of the
jury’s decision to acquit on the charge of assisting a criminal street gang, we
may reasonably conclude that the admitted evidence did not improperly
influence the jury’s verdicts.


                                       5
                            STATE v. GARCIA
                           Decision of the Court

¶16           Whether the error is harmless as to Count 8 (one of the five
endangerment counts) requires a closer examination of the record. Garcia
does not dispute that he endangered the lives of each passenger in the
Tahoe. See Ariz. Rev. Stat. (“A.R.S.”) § 13-1201(A) (“A person commits
endangerment by recklessly endangering another person with a substantial
risk of imminent death or physical injury.”). Instead, he argues the State
failed to prove that J.J.R. was a passenger, suggesting there were only four
endangerment victims. Section 13-1201, however, “does not require or
imply that the name or exact identity of the victim is a necessary element of
the offense.” State v. Villegas-Rojas, 231 Ariz. 445, 448, ¶ 8 (App. 2012).
Nonetheless, the number of endangerment convictions obviously cannot
exceed the number of passengers that were in the Tahoe at the time of the
shooting.

¶17            At trial, a man who was driving a delivery truck when he
witnessed the Tahoe’s “dramatic stop” testified to seeing three individuals
emerge from the vehicle. Adding the victim who was killed and G.V.,
Garcia contends this evidence demonstrates that only five men occupied
the vehicle at the time of the shooting. R.M. testified there were six people
in the Tahoe, including four in the back seat, and he identified J.J.R. and
J.C.R. as two different individuals. G.V. testified there were six people in
the Tahoe: J.M. and J.C.R. in the front; he, R.M., and D.C. in the back
“middle seats;” and J.J.R. alone in the back “third row.” Garcia, however,
argues that G.V. only identified five people in the Tahoe when he initially
spoke to police officers, and did not mention J.J.R.

¶18             The trial record reveals some confusion regarding the identity
of the passengers. The victim in Count 6, J.C.R., and the victim in Count 8,
J.J.R., share similar names. Further, J.J.R. was referred to as both “Juan R.”
and “Jose R.” In response to a juror’s question, the parties stipulated that
“Jose R. . . . is actually Juan R.” J.C.R. and J.J.R. are not the same person.
The prosecutor referenced this confusion during closing argument, while
explaining where each passenger sat in the vehicle:

       The front passenger, [J.C.R.]. There’s also in the middle row,
       there’s [R.M., D.C., G.V.]. And then in the back seat, and this
       is the infamous how many ways can we say your name Juan
       R., Juan Carlos – or excuse me, Jose R., Juan Jose R. And that’s
       where the confusion might have been on some of your parts
       is that his middle name was Jose and sometimes he goes by
       Jose.




                                      6
                             STATE v. GARCIA
                            Decision of the Court

Notwithstanding the confusion, G.V. and R.M. unequivocally testified that
there were six people in the Tahoe. Moreover, although G.V. initially
identified only five occupants to police, failing to mention J.J.R., the officer
who spoke with G.V. testified that he also interviewed J.J.R. and confirmed
he was in the Tahoe that night.

¶19           On this record, and considering the nature and context of the
assumed error, we conclude beyond a reasonable doubt that the admission
of the portion of Garcia’s interrogation video relating to the guns seized at
his home did not contribute to or affect the jury’s verdicts on the murder,
drive-by shooting, and endangerment charges. See State v. Bible, 175 Ariz.
549, 588 (1993) (“Error, be it constitutional or otherwise, is harmless if we
can say, beyond a reasonable doubt, that the error did not contribute to or
affect the verdict.”); cf. State v. Dann, 205 Ariz. 557, 570, ¶ 44 (2003)
(“Although evidence of prior crimes generally is not admissible, courts will
not reverse a conviction based on the erroneous admission of evidence
unless there is a reasonable probability that the verdict would have been
different had the evidence not been admitted.”) (internal citation and
quotation omitted).

   II.    Imposition of Aggravated Sentence on Counts 6, 7, and 8

¶20           Garcia argues the trial court erred by imposing aggravated
sentences on Counts 6, 7, and 8. The State concedes the error,
acknowledging that no aggravating circumstances were present for the
convictions in Counts 6, 7, and 8, meaning the aggravated sentences for
those counts were in error and that a remand for resentencing on these
counts is necessary.

¶21            Garcia did not object in the trial court, and we therefore
review only for fundamental, prejudicial error. See Henderson, 210 Ariz. at
567, ¶¶ 19-20. The endangerment counts were charged as, and found by
the jury to be, dangerous offenses. Pursuant to A.R.S. § 13-704(A), the
presumptive sentence for a class six felony that is designated a “dangerous
offense” is two and one-quarter years. Although use of a deadly weapon is
a recognized aggravating factor under A.R.S. § 13-701(D), a court may not
aggravate a sentence for the use of a deadly weapon “if this circumstance
. . . has been utilized to enhance the range of punishment” under A.R.S. §
13-704 (dangerousness). A.R.S. § 13-701(D)(2). Therefore, because the jury
found no aggravating circumstances for Counts 6, 7, and 8, the maximum
legal sentence for the convictions was the presumptive sentence for a class
six dangerous offense: two and one-quarter years. Accordingly, the court
erred by imposing an aggravated sentence of three years’ imprisonment on


                                       7
                             STATE v. GARCIA
                            Decision of the Court

each of those convictions and we remand for resentencing on Counts 6, 7,
and 8.

    III.   Consideration of Mitigating Factor

¶22           Garcia contends the trial court abused its discretion by failing
to consider his age as a mitigating factor when imposing aggravated
sentences for Counts 3 through 8.3 See State v. Davolt, 207 Ariz. 191, 216,
¶ 112 (2004) (sentencing determinations reviewed for an abuse of
discretion). A trial court abuses its discretion “when the sentencing
decision is arbitrary or capricious, or when the court fails to conduct an
adequate investigation into the facts relevant to sentencing.” State v.
Fillmore, 187 Ariz. 174, 184 (App. 1996). “Although [a] court must consider
relevant evidence offered in mitigation, it is not required to find that
evidence to be mitigating.” State v. Gonzales, 181 Ariz. 502, 515 (1995).

¶23           By statute, a defendant’s age may be a mitigating
circumstance. A.R.S. § 13-701(E)(1). At sentencing, the court acknowledged
that Garcia’s age at the time of the shooting, nineteen years old, was “a
factor in this matter.” The court then noted, however, that Garcia had
fathered five children, four of whom had been born at the time of the
murder, and through that life experience, had “moved . . . beyond [his]
age.” Indeed, because Garcia had taken on the adult responsibility of
parenthood, the court concluded his age did not merit a mitigated sentence.

¶24             The trial court’s finding is consistent with Garcia’s own trial
testimony. Acknowledging his previous gang affiliation, Garcia explained
that, after having his first child, he distanced himself from the gang-related
activities of others, and instead focused “on what [he] needed to do and not
what [he] wanted to do.” Garcia also testified that fatherhood had changed
his life, requiring him to take responsibility and support his children.
Because the record reflects that the court considered the relevant mitigation
and aggravation evidence, including Garcia’s age, he has not shown the
court abused its discretion.

    IV.    Calculation of Presentence Incarceration Credit

¶25           Although he received 1,090 days of presentence incarceration
credit, Garcia argues on appeal he had a right to 1,091 days of credit for the


3       Arguably, the remand for resentencing on Counts 6, 7, and 8 moots
this issue for those convictions. Because the issue may arise at resentencing,
however, the analysis here is applicable to Counts 3 through 8.


                                      8
                             STATE v. GARCIA
                            Decision of the Court

murder and drive-by shooting convictions.               The State concedes he is
entitled to such credit. A.R.S. § 13-712(B).

¶26           Garcia was arrested on June 2, 2012 and remained in custody
until sentencing on May 29, 2015. Garcia was thus incarcerated for a total
of 1,091 days before sentencing and should have received one additional
day of presentence incarceration credit, for a total of 1,091 days. We modify
his sentence to reflect 1,091 days of presentence incarceration credit on
Counts 1 and 3. See Ariz. R. Crim. P. 31.17(b); State v. Stevens, 173 Ariz. 494,
496 (App. 1992) (modifying sentence to reflect correct presentence
incarceration credit).

                               CONCLUSION

¶27           For the foregoing reasons, we affirm Garcia’s convictions,
affirm his sentences on Counts 1 and 3 as modified to reflect one additional
day of presentence incarceration credit, affirm the sentences on Counts 4
and 5, and vacate his sentences on Counts 6, 7, and 8 and remand for
resentencing on those three counts.




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




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