                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    IVAN ERNESTO ESKIVEL, Appellant.

                             No. 1 CA-CR 13-0495
                              FILED 07-24-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-005669-001
                 The Honorable Robert E. Miles, Judge

                         AFFIRMED AS MODIFIED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
                            STATE v. ESKIVEL
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Randall M. Howe joined.


K E S S L E R, Judge:

¶1            Appellant Ivan Ernesto Eskivel appeals his award of 447
days’ presentence incarceration credit in connection with concurrent
sentences of two and one half years’ incarceration for pleading guilty to
misconduct involving weapons, and a natural life sentence imposed after
a jury found him guilty of first degree murder. Eskivel claims that he is
entitled to three more days of presentence incarceration credit and thus
should have been awarded 450 days’ credit. The State does not cross-
appeal, but argues that the award of 447 days’ credit should be affirmed
because Eskivel is only entitled to 431 days’ credit and therefore he cannot
prove fundamental error. For the following reasons we affirm, but modify
Eskivel’s award of presentence incarceration credit to reflect one
additional day of presentence incarceration credit for a total of 448 days.

              FACTUAL AND PROCEDURAL HISTORY

¶2             Within an hour of a fatal shooting in a Home Depot parking
lot, police located a car on the freeway that was suspected to be involved
in the shooting. After exiting the freeway, the car crashed into a truck.
Eskivel was in the car with a gun and police took him into custody.
Eskivel was handcuffed and taken to a nearby area where multiple
witnesses to the shooting drove by in a police car in an attempt to identify
Eskivel. The testimony in this case and most of the records in this case
clearly show that the above events occurred on March 29, 2012. In




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                             STATE v. ESKIVEL
                            Decision of the Court

addition, the records in the first complaint brought against Eskivel for the
above incident confirm that the above events occurred on March 29, 2012. 1

¶3            Later that evening at the Mesa police station, Eskivel was
placed in an interview room around 8:15 p.m., for approximately three
hours, where he was fingerprinted, photographed, and his clothes were
confiscated. At around 10:00 p.m., Eskivel was read his rights and
interviewed for about thirty minutes by Officer B about the Home Depot
shooting, and the owner of the car and the gun. Near the end of the
interview, Officer B told Eskivel that he would be booked into jail and
would go to court the next day on the charges of aggravated assault and
being a prohibited possessor of a gun. The video that recorded all of this
is about three hours long.

¶4            Following the dismissal of the other related case based on
these incidents, a “release questionnaire” from the San Tan Justice Court
was filed reflecting that Eskivel was arrested for the instant offenses on
April 16, 2012, at the Lower Buckeye Jail. That questionnaire was
contradicted by the Court Information Sheet attached to the complaint in
this matter, which reflects that Eskivel had been in custody since March 28
and a later pretrial services document stating he had been in custody since
March 30. After pleading guilty to misconduct involving weapons and
being convicted by a jury of first degree murder, the court sentenced
Eskivel on June 21, 2013, giving him 447 days’ presentence incarceration
credit. Eskivel timely appealed. We have jurisdiction pursuant to Article
6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010) and 13-4033(A)(1)
(2010).




1 We take judicial notice of the record in Maricopa County Superior Court
case number CR2012-117391-001 reflecting related criminal charges filed
against Eskivel, before the charges in the instant matter were brought. We
can take judicial notice of the record in related cases. See In re Sabino R.,
198 Ariz. 424, 425, ¶ 4, 10 P.3d 1211, 1212 (App. 2000) (“It is proper for a
court to take judicial notice of its own records or those of another action
tried in the same court,” and an appellate court may “take judicial notice
of anything of which the trial court could take notice, even if the trial court
was never asked to take notice.”). Those charges were dismissed once the
direct complaint for murder and weapons violations in this case were
brought.



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                             STATE v. ESKIVEL
                            Decision of the Court

                               DISCUSSION

I.     The record reflects that the instant offenses occurred on March
       29, 2012.

¶5             Eskivel argues he is entitled to 450 days’ presentence
incarceration credit because “[t]he record reveals that [he] was taken into
the custody of the San [T]an Justice Court at approximately 5:30 p.m. on
March 28, 2012,” and that he was held without bond until his sentences
began on June 21, 2013. The State argues that “[a]lthough [Eskivel]
committed the offense[s] on the afternoon of March 28, 2012, he was not
arrested on the offense[s] (booked) until April 16, 2012, at the ‘Lower
Buckeye Jail.’” The only citation to the record to support the parties’
statements is the above referenced release questionnaire which does not
reflect the date March 28, but rather March 29.

¶6           Although both parties mistakenly refer to the offense and
above-described events as occurring on March 28, 2012, as shown above,
the crime did not occur until March 29, 2012.

II.    The record reflects that Eskivel was arrested and taken into police
       custody on March 29, 2012, and was “in custody” for purposes of
       presentence incarceration credit for the instant offenses
       beginning March 30, 2012.

¶7             The record reflects that on the day of the instant offenses,
after the car crash and one man show ups, Eskivel was transported to the
police station and interviewed by police regarding the Home Depot
shooting. During the interview at the police station an officer informed
Eskivel that he was going to be booked into jail and go to court the next
day, March 30, 2012, for aggravated assault and prohibited possessor
charges. This corresponds with the superior court’s determination that
Eskivel was arrested and in police custody beginning March 29, 2012.

¶8            A defendant is entitled to “[a]ll time actually spent in
custody pursuant to an offense” until sentenced to imprisonment, A.R.S. §
13-712(B) (2010), and custody is “equated with incarceration in a jail or
prison and not merely with the substantial restraint of freedom which is
commensurate with an arrest or detention,” State v. Reynolds, 170 Ariz.
233, 234-35, 823 P.2d 681, 682-83 (1992) (quoting State v. Cereceres, 166 Ariz.
14, 15, 800 P.2d 1, 2 (App. 1990)). Thus, we have stated, “for purposes of
presentence incarceration credit, ‘custody’ begins when a defendant is
booked into a detention facility.” State v. Carnegie, 174 Ariz. 452, 453-54,
850 P.2d 690, 691-92 (App. 1993).


                                      4
                            STATE v. ESKIVEL
                           Decision of the Court

¶9             As described above, the record reflects that the earliest
Eskivel’s interview was complete was after 11:00 p.m. on March 29. There
is nothing in the record to suggest that he was booked into a qualifying
detention facility, earlier than March 30, 2012. In addition, the county
pretrial service agency indicated Eskivel was “[i]n custody since 3-30-12.”
This “in custody” date is also consistent with the presentence
incarceration report the superior court considered when sentencing
Eskivel.

¶10            The State maintains that Eskivel was not in custody for the
instant offenses until April 16, 2012, the day he was booked into the Lower
Buckeye Jail. To support its contention, the State relies on Eskivel’s
release questionnaire from the San Tan Justice Court which notes that
Eskivel is a three-time deported felon and illegally in the United States.

¶11            This reference in the record appears to be background
biographical information and does not indicate in any way that Eskivel
was involved in proceedings related to the status of his presence in the
U.S. Nor does a document prepared by the county pretrial services
agency that has a checkmark next to the words “immigration hold” under
the “unusual circumstances” category. These documents, despite the
described references do not support that Eskivel was in custody for his
status to be in the country, particularly in light of the record evidence
supporting that he was in custody for the instant offense as of March 30,
2012. The State never raised its objection or advanced its current
argument before the superior court. The record supports that Eskivel was
in custody for purposes of presentence incarceration credit for the current
offenses starting March 30, 2012.

III.   Eskivel is entitled to one additional day of presentence
       incarceration credit for a total of 448 days.

¶12            Eskivel was taken into custody for purposes of presentence
incarceration credit for the instant offenses on March 30, 2012 and it is
undisputed that he remained in custody until his sentencing on June 21,
2013. The superior court clearly stated that June 21 was the first day of
Eskivel’s sentence. Thus, Eskivel is entitled to presentence incarceration
credit starting March 30, 2012 and ending June 20, 2013—448 days’ credit.
See State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987)
(stating defendant not entitled to credit for day sentence is imposed if it is
the first day of defendant’s sentence). We therefore, credit Eskivel with
one additional day for a total of 448 days’ presentence incarceration credit.




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                           STATE v. ESKIVEL
                          Decision of the Court

                            CONCLUSION

¶13          For the reasons stated, we affirm Eskivel’s award of
presentence incarceration credit, but modify the award by adding one
additional day for a total of 448 days’ presentence incarceration credit.




                                :gsh




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