State v. Saldana ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOVANI REYES SALDANA, Appellant.
No. 1 CA-CR 20-0176
FILED 4-27-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-133601-001
The Honorable Jeanne M. Garcia, Judge (Retired)
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
STATE v. SALDANA
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.
W I L L I A M S, Judge:
¶1 Jovani Reyes Saldana appeals his conviction and sentence
for misconduct involving weapons. Saldana’s counsel filed a brief per
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969), advising us there are no meritorious grounds for reversal. Saldana
was given the opportunity to file a supplemental brief in propria persona
but did not do so. Our obligation is to review the entire record for
reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing
the evidence in the light most favorable to sustaining the conviction and
resolving all reasonable inferences against Saldana, State v. Guerra, 161
Ariz. 289, 293 (1989). After reviewing the record, we affirm Saldana’s
conviction and sentence as modified.
FACTUAL AND PROCEDURAL HISTORY
¶2 In July 2018, three detectives, who were part of an Arizona
Department of Public Safety task force, stopped a truck for traffic
violations. Saldana was in the bed of the truck. Following a conversation,
one detective conducted a pat down of Saldana. All three detectives saw a
handgun in Saldana’s waistband. The handgun was seized, and Saldana
was arrested.
¶3 A fourth officer, who arrived on scene to assist in the traffic
stop, heard Saldana, now sitting on a curb away from the truck, state that
he “shouldn’t have brought that gun.” Later, during the booking process,
Saldana told the same officer that “[i]t was just there. I grabbed it on the
paper and I was just trying to hide it.” After reading Saldana his Miranda 1
rights, Saldana made the following statement to one of the detectives: “I
brought the gun because the other gun.” This statement was recorded and
played at trial. Saldana never challenged the voluntariness of his
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. SALDANA
Decision of the Court
statements to law enforcement, and even so, there is no evidence
suggesting his statements were involuntary.
¶4 Saldana was indicted by a grand jury for one count of
misconduct involving weapons, a Class four felony. The State alleged
aggravating factors, including that the offense was committed while
Saldana was on felony probation and that he had two historical prior
felony convictions. The court held a Rule 609 hearing, finding the State
could use sanitized priors at trial if Saldana chose to testify.
¶5 At trial, the parties stipulated that on the day of the incident
Saldana was a prohibited possessor and his right to carry a firearm had
not been restored. At the close of the State’s case in chief, Saldana moved
for a directed verdict under Rule 20, which was denied.
¶6 The jury convicted Saldana as charged. See A.R.S.
§ 13-3102(A)(4). Following a separate hearing, the jury found that Saldana
was on probation when the offense was committed and had previously
served time in prison. The trial court sentenced Saldana to 10 years
imprisonment and credited him with 620 days’ presentence incarceration.2
Saldana timely appealed. We have jurisdiction pursuant to Article 6,
Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A), 13-4031,
and 13-4033.
DISCUSSION
¶7 After reviewing the record, we detect no reversible error
requiring remand, Clark, 196 Ariz. at 541, ¶ 50, but note one error we can
resolve. The superior court credited Saldana with 620 days of presentence
incarceration. By our calculation, however, Saldana was entitled to 621
days of credit. Saldana was arrested and taken into custody on July 6, 2018
and the sentencing hearing was held March 18, 2020. There is nothing in
the record suggesting Saldana was ever out of custody between those
dates. When calculating presentence incarceration credit, we count from
and include the first day Saldana was incarcerated, but do not include the
day of sentencing. A.R.S. § 13-712(B); State v. Carnegie, 174 Ariz. 452, 454
(App. 1993) (holding that a defendant gets a full day of credit even if
incarcerated for part of the day); State v. Hamilton, 153 Ariz. 244, 246 (App.
2 The record before us does not include a presentence report, but it
appears all parties had access to it. See Ariz. R. Crim. P. 26.7(b)(1).
3
STATE v. SALDANA
Decision of the Court
1987) (holding that a defendant receives no credit for the day of
sentencing). Therefore, Saldana should have been credited 621 days.
¶8 The remainder of the record reflects Saldana was present
and represented by counsel at all critical stages of the proceedings. See
State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages)
(citations omitted); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be
present at critical stages). The evidence presented supported the
conviction, and the imposed sentence falls within the range permitted by
law. See A.R.S. §§ 13-701 through -718 (as applicable). The superior court
appropriately considered and resolved pre-trial and trial motions. As far
as the record reveals, all proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure and Saldana’s constitutional and
statutory rights.
CONCLUSION
¶9 We have reviewed the entire record for reversible error and
find none. Therefore, we affirm Saldana’s conviction and sentence but
modify the sentencing minute entry to reflect that Saldana is credited with
621 days of presentence incarceration.
¶10 After this decision’s filing, defense counsel’s obligation
pertaining to Saldana’s representation in this appeal will end. Defense
counsel need do no more than inform Saldana of this appeal’s outcome
and his future options, unless, upon review, counsel finds “an issue
appropriate for submission” to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the Court’s own
motion, Saldana has 30 days from the date of this decision to proceed, if
he wishes, with an in propria persona motion for reconsideration or petition
for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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