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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ULYSSES JAVIER GONZALEZ, Appellant.

                              No. 1 CA-CR 14-0423
                                FILED 3-17-2015


              Appeal from the Superior Court in Yuma County
                         No. S1400CR201100894
                 The Honorable John Neff Nelson, Judge

                         AFFIRMED AS MODIFIED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele G. Ponce
Counsel for Appellee

Law Office of Terri L. Capozzi, Phoenix
By Terri L. Capozzi
Counsel for Appellant
                          STATE v. GONZALEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.


H O W E, Judge:

¶1            Ulysses Javier Gonzalez appeals his conviction and sentences,
arguing that the superior court failed to properly credit him for time spent
in presentence custody. For the following reasons, we modify Gonzalez’s
sentence to reflect 785 days of presentence incarceration credit for Count 1.

                FACTS AND PROCEDURAL HISTORY

¶2            Gonzalez was charged with misconduct involving weapons
(Count 1); drive-by shooting (Count 2); two counts of discharging a firearm
at a structure (Counts 3 and 4); and four counts of aggravated assault
(Counts 5–8). Gonzalez was found guilty of Counts 1, 2, 5, and 6; he was
also found guilty of disorderly conduct as a lesser-included offense of
aggravated assault for Counts 7 and 8. The superior court dismissed
Count 3 and Gonzalez was acquitted on Count 4.

¶3             On July 2, 2011, Gonzalez was incarcerated at Yuma County
Jail until he was released on bond on January 28, 2012. Gonzalez was then
taken into federal custody on unrelated charges. On November 16, 2012,
while still in federal custody, the superior court issued a warrant for
Gonzalez’s arrest for failing to appear at a hearing. On January 13, 2014,
Gonzalez was released from federal custody and transferred to Yuma
County Jail, where he remained until sentencing.

¶4           On June 13, 2014, the superior court sentenced Gonzalez to
terms of 4.5 years’ imprisonment on Count 1 and a 10.5 years’
imprisonment on Count 2, to be served consecutively to each other. The
court also imposed concurrent terms of imprisonment of 7.5 years for
Counts 5 and 6. The superior court awarded Gonzalez 421 days of
presentence incarceration credit for Count 1.

¶5            When Gonzalez inquired about the accuracy of his
presentence incarceration credit, the superior court advised him to submit
a recalculation. On June 16, 2014, Gonzalez filed a memorandum requesting
785 days of presentence incarceration credit. The State did not respond and


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                            STATE v. GONZALEZ
                             Decision of the Court

the superior court did not alter Gonzalez’s sentence. Gonzalez timely
appealed.

                                DISCUSSION

¶6              Gonzalez argues, and the State effectively concedes, that the
superior court erred by failing to award him 785 days of presentence
incarceration credit for Count 1. A trial court’s failure to credit a defendant
with the appropriate length of presentence custody constitutes
fundamental error, State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App.
1989), and this Court reviews de novo a grant of presentence incarceration
credit, see State v. Bomar, 199 Ariz. 472, 475 ¶ 5, 19 P.3d 613, 616 (App. 2001).

¶7              Under A.R.S. § 13–712(B), a defendant is entitled to credit for
all time that is “actually spent in custody.” For the purposes of that statute,
a defendant is in custody beginning at the time of “actual incarceration in a
prison or jail, not simply a restraint on one’s freedom.” State v. Carnegie, 174
Ariz. 452, 453, 850 P.2d 690, 691 (App. 1993); see also State v. Reynolds, 170
Ariz. 233, 235, 823 P.2d 681, 683 (1992).

¶8             The superior court awarded Gonzalez 421 days of
presentence incarceration credit based on its calculation of the time that
Gonzalez was in federal custody on the outstanding Arizona warrant. The
superior court erred in its award because it (1) failed to award Gonzalez
credit for the time that Gonzalez was incarcerated in Yuma County Jail
pursuant to the state charges and (2) miscalculated the days Gonzalez spent
in federal custody on the outstanding Arizona warrant. Gonzalez was
incarcerated in Yuma County jail from July 2, 2011, until January 28, 2012
(211 days), as well as from January 13, 2014, until June 13, 2014 (152 days).
Gonzalez was also held in federal custody from November 16, 2012, until
January 13, 2014 (422 days) while a state warrant was issued for his arrest.
The superior court therefore erred in awarding him only 421 days of
presentence incarceration credit instead of the sum total of the time
Gonzalez spent in Yuma County Jail and in federal custody, or 785 days.
Accordingly, pursuant to A.R.S. § 13–4037(B), Gonzalez’s sentence is
modified to reflect 785 days of presentence incarceration credit to be
applied against the sentence imposed on Count 1. See State v. Stevens, 173
Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992) (correcting presentence
incarceration credit without remand to trial court).




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                          STATE v. GONZALEZ
                           Decision of the Court

                              CONCLUSION

¶9           Gonzalez’s convictions and sentences are affirmed as
modified to reflect 785 days of presentence incarceration credit for Count 1.




                                :ama




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