State v. Garcia ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL ANTHONY GARCIA, Appellant.
No. 1 CA-CR 18-0386
FILED 6-25-2019
Appeal from the Superior Court in Maricopa County
No. CR2015-125585-001
The Honorable Jay R. Adleman, Judge
AFFIRMED
COUNSEL
The Poster Law Firm, P.L.L.C., Glendale
By Rick D. Poster
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
STATE v. GARCIA
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Acting
Presiding Judge Paul J. McMurdie and Vice Chief Judge Peter B. Swann
joined.
J O N E S, Judge:
¶1 Michael Garcia appeals from his convictions and sentences
for one count each of trafficking in stolen property and theft. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2014, Garcia began living with the victim.1 At the
time, the victim owned a personal computer she had purchased for
$2,182.18. The same day Garcia moved out of the victim’s home, May 9,
2015, the victim discovered the computer was gone.
¶3 On May 20, 2015, Garcia took the computer to a pawn shop.
In exchange for the computer and accessories, Garcia received a three-
month “loan” of $400. According to the terms of the agreement, if Garcia
did not repay the $400, plus a $96.50 finance charge, in ninety days, the
pawn shop could sell the items.
¶4 In June 2015, after being advised of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), Garcia admitted he had pawned the
computer, which he did not own. At the time of the offense, Garcia was on
felony probation for an unrelated crime he committed in 2011.
¶5 The jury convicted Garcia of trafficking in stolen property and
theft of property valued at least $1,000 but less than $2,000. At the
sentencing hearing, the trial court revoked Garcia’s probation, sentenced
him to a mitigated term of 1.5 years’ imprisonment for the 2011 offense, and
1 “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).
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STATE v. GARCIA
Decision of the Court
credited him with 291 days of presentence incarceration. See Ariz. Rev. Stat.
(A.R.S.) § 13-708(E)2 (stating that imposition of a sentence for an offense
committed while the defendant is on probation “shall revoke the convicted
person’s release”). The court then sentenced Garcia to the presumptive
terms of 11.25 years’ imprisonment for trafficking in stolen property and
3.75 years’ imprisonment for theft, with these sentences to be served
concurrent to each other but consecutive to the sentence imposed on the
2011 offense. Garcia timely appealed, and we have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. Sufficiency of the Evidence
¶6 Garcia argues the State failed to prove he intended to
permanently deprive the victim of the computer and therefore there is
insufficient evidence to support his convictions. When evaluating the
sufficiency of the evidence to support a conviction, we determine de novo
“whether a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” State v. Montaño, 204 Ariz. 413, 423,
¶ 43 (2003) (quoting State v. Tison, 129 Ariz. 546, 552 (1981)).
¶7 A person commits theft when “without lawful authority, the
person knowingly . . . [c]ontrols property of another with the intent to
deprive the other person of such property.” A.R.S. § 13-1802(A)(1).
“Deprive” is defined by statute, in relevant part, as “to withhold [property]
. . . with the intent to restore it only on payment of any reward or other
compensation or to transfer or dispose of it so that it is unlikely to be
recovered.” A.R.S. § 13-1801(A)(4). Moreover, Arizona courts have held
that “[t]he wrongful taking of another’s property without an apparent
purpose to return it and without [satisfactory] explanation evidences an
intent to permanently deprive.” State v. Ramirez, 115 Ariz. 70, 75 (App.
1977) (citation omitted); see also State v. Jackson, 101 Ariz. 399, 402 (1966)
(“The trial judge, in the absence of a satisfactory explanation, not only could
have disregarded appellant’s testimony, but also could have inferred from
its unsatisfactory nature, that there was no apparent intent to return the
automobile.”) (collecting cases).
¶8 Substantial evidence supports the verdict here. Although
Garcia argues the prosecution was not “ripe” because the ninety-day loan
2 Absent material changes from the relevant date, we cite a statute’s
current version.
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STATE v. GARCIA
Decision of the Court
period during which the property could be redeemed had yet to pass, the
crime of theft “does not require permanent deprivation.” Maricopa Cty. Juv.
Action No. J-98065, 141 Ariz. 404, 406 (App. 1984); see also A.R.S. § 13-
1801(A)(4) (defining “deprive”). The record reflects Garcia knew the
computer belonged to someone else when he “loaned” it to the pawn shop
and that it would not be returned unless and until $496.50 was paid before
the ninety days expired. From these circumstances, a reasonable juror
could find Garcia had “no apparent purpose to return” the computer to the
victim or, alternatively, disposed of it such that it was unlikely to be
recovered. Accordingly, sufficient evidence supports the jury’s
determination that Garcia intended to deprive the victim of the computer,
and we find no error in his convictions.
II. Presentence Incarceration Credit
¶9 Garcia argues the trial court violated his right to due process
when it erroneously applied his presentence incarceration credit. Whether
a defendant is entitled to presentence incarceration credit presents a
question of law subject to de novo review. State v. Lambright, 243 Ariz. 244,
249, ¶ 9 (App. 2017) (citing State v. Bomar, 199 Ariz. 472, 475, ¶ 5 (App.
2001)).
¶10 Generally, “[a] sentence of imprisonment commences when
sentence is imposed.” A.R.S. § 13-712(A). However, a person is entitled to
credit against a term of imprisonment for “[a]ll time actually spent in
custody pursuant to an offense until the prisoner is sentenced to
imprisonment for such offense.” A.R.S. § 13-712(B). The credit for Arizona
jail time applies to the defendant’s total sentence. State v. McClure, 189 Ariz.
55, 57 (App. 1997) (citing United States v. VonWillie, 59 F.3d 922, 930 (1995)).
Thus, “[w]hen consecutive sentences are imposed, a defendant is not
entitled to presentence incarceration credit on more than one of those
sentences, even if the defendant was in custody pursuant to all of the
underlying charges prior to trial.” Id. (citing State v. Cuen, 158 Ariz. 86, 88
(App. 1988), and State v. Jackson, 170 Ariz. 89, 94 (App. 1991)).
¶11 Garcia complains that he did not receive presentence
incarceration credit for 101 days he spent in custody between October 12
and November 29, 2016 and April 11 and June 1, 2018. The record reflects,
however, that the trial court included these days within the 291 days of
presentence incarceration credit Garcia received against his sentence for the
2011 offense. He is not entitled to credit for those same days against his
consecutive sentences for the trafficking and theft offenses, and we find no
error.
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STATE v. GARCIA
Decision of the Court
CONCLUSION
¶12 Garcia’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: JT
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