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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 STEVEN RICARDO VALLEJO, Appellant.

                             No. 1 CA-CR 14-0677
                             No. 1 CA-CR 15-0398
                               (Consolidated)
                                 FILED 6-7-2016


           Appeal from the Superior Court in Maricopa County
            Nos. CR2014-100568-001 and CR2013107817-001
             The Honorable Pamela Hearn Svoboda, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
                            STATE v. VALLEJO
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1            Steven Ricardo Vallejo appeals from his         convictions and
sentences for unlawful use of means of transportation         and misconduct
involving weapons.      For reasons that follow, we           affirm Vallejo’s
convictions, and we affirm his sentences as modified to       reflect credit for
presentence incarceration.

             FACTS AND PROCEDURAL BACKGROUND

¶2               One evening in January 2014, an Arizona Department of
Public Safety officer conducted a license plate check on a red sedan. The
car had been reported stolen, so the officer pulled up behind it as it stopped
at a traffic light. The officer saw the passenger switch places with the driver,
and the car then rapidly accelerated onto the freeway. The officer activated
his siren and followed, but the driver attempted to evade the officer (and
others who joined as backup), eventually exiting the freeway, driving
through an abandoned industrial park, and finally crashing into an on-
ramp median wall. Talia Quezada got out of the driver’s side of the car and
was arrested. Several minutes later, Vallejo got out of the passenger side of
the car and was also arrested.

¶3           Quezada asked an officer to retrieve a cell phone from her
purse so she could contact someone. When she unlocked the phone, the
officer saw a photo of a black semi-automatic handgun. An additional
photo showed the gun surrounded by cash and a blue bandana, and
another photo showed Vallejo holding the cash and the blue bandana. After
the car was loaded onto a tow truck, another officer discovered a black
semi-automatic handgun approximately 10 to 15 feet behind where the car
had stopped. Vallejo told officers that he shared the cell phone with
Quezada, but he denied that the gun belonged to him.

¶4             Vallejo was charged with theft of means of transportation and
misconduct involving weapons, and following a jury trial, he was convicted
of the lesser-included offense of unlawful use of means of transportation



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                            STATE v. VALLEJO
                            Decision of the Court

and of misconduct involving weapons. The jury also found that Vallejo
committed the crimes while on probation from a 2013 conviction.

¶5            The superior court sentenced Vallejo to 3.5 years’
imprisonment for the unlawful use of means of transportation conviction,
and to a concurrent 4.5 year term for the misconduct involving weapons
conviction, with 251 days of presentence incarceration credit. The court
revoked Vallejo’s probation and sentenced him to 3.5 years’ imprisonment,
to run consecutively to the sentences for the 2014 convictions. Vallejo
timely appealed the 2014 convictions, and with authorization from the
superior court, filed a delayed appeal from the probation revocation. We
have jurisdiction under Arizona Revised Statues (“A.R.S.”) § 13-4033.1

                               DISCUSSION

I.     Severance.

¶6             Before trial, Vallejo filed a motion to sever the theft of means
of transportation charge from the weapons misconduct charge. The court
denied the motion, and Vallejo renewed the motion at trial before the close
of evidence.2 See Ariz. R. Crim. P. 13.4(c). Vallejo argues on appeal that the
superior court abused its discretion by denying the severance request, and
that he is entitled to a new trial on the theft charge. We review the denial
of a severance motion for abuse of discretion, and we will reverse based on
this issue only if the defendant shows “compelling prejudice against which
the trial court was unable to protect.” State v. Murray, 184 Ariz. 9, 25 (1995)
(quoting State v. Cruz, 137 Ariz. 541, 544 (1983)). Here, Vallejo’s claim fails
because he has not shown compelling prejudice.

¶7             Under Rule 13.3(a), charges may be joined if the separate
crimes “arise from a series of connected acts and are provable by
overlapping evidence.” State v. Burns, 237 Ariz. 1, 14, ¶ 32 (2015). But under
Rule 13.4(a), a motion to sever must be granted if “necessary to promote a
fair determination of the guilt or innocence of any defendant of any
offense.” Id. at ¶ 31 (quoting Ariz. R. Crim. P. 13.4(a)).


1     Absent material revisions after the relevant date, we cite a statute’s
current version.

2       The State asserts that Vallejo failed to renew the severance motion at
trial, and that we should thus review the issue for fundamental error only.
See State v. Laird, 186 Ariz. 203, 206 (1996). The record shows, however, that
Vallejo renewed his severance motion at trial.


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                           STATE v. VALLEJO
                           Decision of the Court

¶8             In Burns, the Arizona Supreme Court found that the failure to
sever a weapons misconduct charge from sexual assault, kidnapping, and
murder charges was an abuse of discretion, but did not result in reversible
error. Id. at 14–15, ¶¶ 33, 36, 38. The court noted that “[b]ut for joinder of
the misconduct-involving-weapons charge, the evidence of Burns’ prior
felony convictions would not have been admissible during the guilt phase,”
and that although his “possession of the murder weapon was cross-
admissible for the murder and the weapons charge, his prior conviction was
not and its admission created a serious risk of prejudice.” Id. at 14, ¶¶ 35–
36. The court found the error to be harmless, however, because (1) evidence
of guilt was overwhelming, (2) the State did not emphasize the prior
conviction during closing argument, and (3) the jury was correctly
instructed as to how the evidence could be considered. See id. at 15, ¶ 38.

¶9           In the instant case, we similarly conclude that the superior
court abused its discretion by failing to sever the charges. Without the
weapons misconduct charge, the jury considering the theft charge would
not have been aware of Vallejo’s prior felony conviction, and presenting
evidence of such a conviction created a serious risk of prejudice.

¶10            Nevertheless, as in Burns, we conclude that the error in this
case was harmless. The State did not emphasize Vallejo’s prior conviction
during closing argument, and the jury was correctly instructed as to how
the evidence could be considered. And significantly, the jurors acquitted
Vallejo of theft of means of transportation and instead convicted him of the
lesser-included offense of unlawful use of means of transportation, which
only required proof that Vallejo (without intent to permanently deprive)
“[k]nowingly [took] unauthorized control” over another’s vehicle or was
knowingly “transported or physically located in a vehicle that the person
knows or has reason to know is in the unlawful possession of another.” See
A.R.S. § 13-1803(A). The evidence supporting that conviction was
overwhelming in light of testimony that Vallejo was driving, then was a
passenger in, a stolen car, with no reasonable explanation for how he and
Quezada obtained the vehicle. Accordingly, because the erroneous failure
to sever the charges was harmless, we affirm the convictions.

II.    Presentence Incarceration Credit.

¶11          Vallejo argues that the court erred by denying him
presentence incarceration credit for the sentence imposed for his 2013
conviction. The State concedes that Vallejo is entitled to 173 days of
presentence incarceration credit for that sentence.




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                           STATE v. VALLEJO
                           Decision of the Court

¶12           A defendant is entitled to credit for “[a]ll time actually spent
in custody pursuant to an offense.” A.R.S. § 13-712(B). Although a
defendant is generally not awarded presentence incarceration credit for a
consecutive sentence when the time spent in custody was for multiple
crimes that lead to a mix of consecutive and concurrent sentences, see State
v. McClure, 189 Ariz. 55, 57 (App. 1997), here Vallejo was in custody for 173
days prior to committing the 2014 offenses (and his sentences for the 2014
convictions do not include credit for these 173 days).3 Accordingly, his time
in custody before committing the 2014 offenses should be credited against
the time to be served for the 2013 conviction. We thus modify Vallejo’s
sentence to reflect the 173 days of presentence incarceration credit for his
sentence for his 2013 conviction.

                              CONCLUSION

¶13          For the foregoing reasons, we affirm Vallejo’s convictions and
sentences as modified.




                                   :AA




3       Vallejo was in custody for one day on February 21, 2013, 58 days
from April 18 to June 14, and 114 days from August 30 to December 21, for
a total of 173 days.


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