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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   CLEMENTE ARIAS-LUNA, Appellant.

                             No. 1 CA-CR 17-0139
                               FILED 1-9-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-112498-001
                The Honorable Teresa A. Sanders, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Mercer Law PLC, Mesa
By Stephen N. Mercer
Counsel for Appellant
                           STATE v. ARIAS-LUNA
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James B. Morse Jr. joined.


M c M U R D I E, Judge:

¶1              Clemente Arias-Luna appeals his convictions of: (1) sexual
conduct (masturbatory) with a minor, a Class 2 felony and dangerous crime
against children; (2) molestation of a child, a Class 2 felony and dangerous
crime against children; and (3) false reporting to a law enforcement agency,
a Class 1 misdemeanor, and the resulting sentences. Arias-Luna’s counsel
filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of
the record, he found no arguable question of law that was not frivolous.
Arias-Luna was given the opportunity to file a supplemental brief, but did
not do so. Counsel asks this court to search the record for arguable issues.
See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999); see also State v. Chavez, 778 Ariz. Adv. Rep. 4, 3, ¶ 9 (App. 2017).
After reviewing the record, we affirm but modify Arias-Luna’s sentence to
reflect 1079 days’ presentence incarceration credit.

              FACTS AND PROCEDURAL BACKGROUND

¶2            On March 16, 2014, Alejandro Vasquez stopped for dinner at
32nd Street and Yale, when he was approached by Arias-Luna. Arias-Luna
had locked his keys in his truck, and asked if Vasquez could help him open
the door to retrieve his keys. Vasquez followed Arias-Luna to his nearby
apartment, and helped open his truck door. While at Arias-Luna’s
apartment, Vasquez saw Arias-Luna’s girlfriend and her twelve-year-old
daughter, I.X., both of whom he recognized. Because Vasquez and
Arias-Luna’s neighbor, Rosa De La Cruz, had previously been involved in
an investigation relating to the molestation of I.X., Vasquez decided to go
to Cruz’s apartment and tell her he had seen I.X. with Arias-Luna.

¶3            Vasquez and Cruz returned to Arias-Luna’s apartment later
that evening, and when Vasquez approached the window of the apartment,
he noticed the curtain was open. Vasquez looked inside and saw
Arias-Luna rubbing his foot on I.X.’s genitals underneath her shorts.
Although he could not see their faces, Vasquez recognized Arias-Luna’s


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                         STATE v. ARIAS-LUNA
                          Decision of the Court

voice inside the apartment and I.X.’s t-shirt from earlier that day. Because
he thought he needed evidence, Vasquez used his phone to take several
pictures of what he saw. Afterwards, Vasquez and Cruz flagged down a
nearby patrol car and informed a Phoenix Police Officer about what
Vasquez had witnessed.

¶4            Phoenix Police made contact with Arias-Luna, who first gave
two incorrect names not found in the police database, before eventually
giving his correct name and date of birth. Arias-Luna was arrested later that
night.

¶5             Arias-Luna was indicted for two counts of sexual conduct
with a minor (one count penetration and one count masturbatory),
molestation of a child, and false reporting to law enforcement, to which he
pled not guilty. Before trial, Arias-Luna moved for a change of counsel,
which the superior court denied. Afterwards, Arias-Luna moved to waive
his right to counsel, which the superior court granted, allowing his previous
counsel to remain in an advisory capacity. Then, after further request from
Arias-Luna, the superior court granted his request to appoint new counsel
and relieved former counsel.

¶6            After a nine-day jury trial, the jury found Arias-Luna guilty
of one count of sexual conduct (masturbatory) with a minor, one count of
molestation of a child, and one count of false reporting to a law enforcement
agency. 1 The court sentenced Arias-Luna to a presumptive term of 20 years’
imprisonment for sexual misconduct with a minor, to be served consecutive
to a presumptive term of 17 years’ imprisonment for molestation of a child,
with 1073 days’ presentence incarceration credit. Arias-Luna received time
served for false reporting to a law enforcement agency. Arias-Luna timely
appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -4033(A).

                              DISCUSSION

¶7           We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We
find none.

¶8             Arias-Luna was present and represented by counsel at all
stages of the proceedings against him. The record reflects the superior court


1     Arias-Luna was found not guilty of the first count of sexual
misconduct with a minor (penetration).


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                          STATE v. ARIAS-LUNA
                           Decision of the Court

afforded Arias-Luna all his constitutional and statutory rights, and the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdicts.

¶9             Arias-Luna’s sentences fall within the range prescribed by
law, however, in reviewing the record, we find the superior court failed to
grant sufficient presentence incarceration credit. Arias-Luna’s presentence
report originally reflected a sentencing date of February 21, 2017, and
therefore recommended 1073 days’ presentence incarceration credit.
However, Arias-Luna’s sentencing was vacated and reset to February 28,
2017. Accordingly, Arias-Luna was entitled to 1079 days’ presentence
incarceration credit. See A.R.S. § 13-712(B) (“All time actually spent in
custody . . . until the prisoner is sentenced to imprisonment for such offense
shall be credited . . . .”) (emphasis added). 2 When sentenced on February
28, 2017, the superior court did not consider the change in sentencing date,
and awarded the 1073-day credit recommended in the presentence report.
Pursuant to § 13-4037, we modify Arias-Luna’s sentence to reflect 1079
days’ presentence incarceration credit.

                               CONCLUSION

¶10           Arias-Luna’s convictions and sentences are affirmed as
modified. After the filing of this decision, defense counsel’s obligations
pertaining to Arias-Luna’s representation in this appeal will end after
informing Arias-Luna of the outcome of this appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584–85 (1984).




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



2     Arias-Luna was taken into custody on March 17, 2014, and sentenced
on February 28, 2017.


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