Opinion
No. 1 CA-CR 13-0723
11-19-2015
STATE OF ARIZONA, Appellee, v. YUNIOR BETANCOURT ALMAGUER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Christopher T. Johns Counsel for Appellant Yunior Betancourt Almaguer, Tucson Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-137951-001 DT
The Honorable Hugh Hegyi, 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 Christopher T. Johns
Counsel for Appellant
Yunior Betancourt Almaguer, Tucson
Appellant
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined. BROWN, Judge:
¶1 Yunior Betancourt Almaguer appeals his convictions and sentences for three counts of aggravated assault, one count of theft of means of transportation, one count of unlawful flight from a law enforcement vehicle, and one count of resisting arrest. Counsel for Almaguer filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), advising that after searching the record on appeal, he was unable to find any arguable grounds for reversal. Almaguer was granted the opportunity to file a supplemental brief in propria persona, and he has done so.
¶2 Our obligation is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the facts in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Almaguer. State v. Guerra, 161 Ariz. 289, 293 (1989). Finding no reversible error, we affirm as modified. See infra ¶ 35.
BACKGROUND
¶3 In July 2012, the State charged Almaguer with the following: Count 1, theft of means of transportation, a class three felony, in violation of Arizona Revised Statutes ("A.R.S.") section 13-1814; Count 2, unlawful flight from a law enforcement vehicle, a class five felony, in violation of A.R.S. § 28-622.01; Counts 3-5, aggravated assault, each a class two dangerous felony, in violation of A.R.S. § 13-1204; Count 6, resisting arrest, a class six felony, in violation of A.R.S. § 13-2508; Count 7, theft, a class one misdemeanor, in violation of A.R.S. § 13-1802; and Counts 8-9, aggravated assault, each a class two dangerous felony, in violation of A.R.S. § 13-1204. The following evidence was presented at trial.
The jury found Almaguer not guilty on Counts 4, 7, and 9 and therefore we do not discuss the evidence relating to those counts.
¶4 On the night of July 14, 2012, Officers J.G. and B.G. were on patrol in Phoenix in a marked police car when they observed Almaguer commit a traffic violation while driving a Chevy Caprice. The officers pulled behind the Caprice, activated the patrol vehicle's emergency lights and siren, and attempted to make a traffic stop.
¶5 Almaguer initially accelerated but then stopped abruptly in the middle of the road, which caused the police car to collide with the back of the Caprice. After the collision, Almaguer drove forward again, stopped and then drove the car in reverse until he hit the police car. Almaguer drove forward again, but stopped as the officers were attempting to exit the police car and draw their weapons. Almaguer then drove backwards into the police car a second time, causing the back end of the Caprice to raise up onto the metal "push bar" attached to the front grill of the police car. J.G. and B.G. each testified that they feared for their safety when they saw the reverse lights come on for the second time.
¶6 Almaguer then pulled forward and drove away. Both officers reentered the police car and communicated with police dispatch that they were in pursuit of the Caprice. At the same time, Officers R.W. and C.H., who were stationed in a motel parking lot as off-duty security guards, began driving their marked police SUV toward the street to join the pursuit. Almaguer turned into the parking lot, nearly colliding with the SUV, and eventually made his way onto the I-17 freeway.
¶7 R.W. and C.H. took the lead position in the pursuit as more police vehicles joined. Police continued to follow Almaguer with their emergency lights and sirens activated, and a police helicopter joined the pursuit as Almaguer merged onto the I-10 freeway.
¶8 Several officers from the Special Assignments Unit ("SAU") joined the pursuit in various unmarked police vehicles. The unmarked vehicles and air surveillance followed Almaguer to a strip-mall parking lot in Chandler. Listening to the air surveillance directions and following the helicopter's spotlight, N.T., an SAU officer driving an unmarked police truck, pulled into the parking lot behind Almaguer, who then drove the Caprice towards N.T.'s stopped truck and collided with it. Immediately after the collision, N.T. exited his vehicle wearing a black vest with the word "POLICE" in gold letters on the front and back and carrying his department-issued rifle. Almaguer backed the Caprice away from the truck and drove within 15 feet of N.T., who testified that he aimed his rifle at Almaguer, but could not safely take a shot.
¶9 Within seconds, additional unmarked police vehicles pulled into the parking lot and surrounded Almaguer, preventing him from driving away. As N.T. approached the Caprice, Almaguer exited through a window and climbed onto one of the unmarked vehicles, raising his fists and yelling expletives at the police. N.T. grabbed Almaguer by his pant leg and pulled him off the car. As Almaguer started to sit up, N.T. struck Almaguer in the face with the muzzle of the rifle, and eventually officers were able to place Almaguer under arrest.
¶10 Upon inspection of the Caprice, police officers observed that the vehicle's steering column was cracked and there was a screwdriver inside the vehicle. The registered owner of the Caprice testified at trial that he did not know Almaguer nor had he given him permission to use the vehicle.
¶11 On cross-examination at trial, R.W. testified he used his personal cell phone to notify his supervisor that he and C.H. were leaving their off-duty post to participate in the pursuit. Defense counsel moved for a mistrial on the grounds that the State failed to request R.W.'s phone records, depriving Almaguer of information that could be used to impeach the witness. Counsel argued that had he known R.W. used his personal cell phone, he could have interviewed the recipients of the phone calls to confirm R.W.'s account of the events that occurred while in pursuit of Almaguer. The State argued that Arizona Rule of Criminal Procedure ("Rule") 15.1 only requires disclosure of information that is readily accessible to the State and that the State plans to use in its case-in-chief, or that is exculpatory to the defendant. The State also asserted that evidence of the officer's use of his personal phone to call a supervisor was neither inculpatory nor exculpatory to Almaguer. The trial court denied Almaguer's request for a mistrial, agreeing with the State "that this is an unusual course of inquiry" by Almaguer and therefore "not one that the State would normally anticipate in talking with its witnesses." However, the court ordered the State to strongly "urge" R.W. to use his "best efforts" to obtain the phone records within 24 hours.
As explained by the prosecutor, because R.W.'s phone contract was part of a corporate discount plan, he could only obtain the records by having them sent to him by U.S. mail.
¶12 After the State rested, defense counsel moved for a mistrial on the grounds that the State's late disclosure of N.T.'s disciplinary review violated Rule 15.1(b). N.T.'s disciplinary review had occurred several months before trial, but the State was unaware of the review until N.T. disclosed it as he was preparing to testify at trial. Almaguer argued that an officer's use of excessive force is a defense to the charge of resisting arrest, and evidence that N.T.'s force was excessive is exculpatory and should have been disclosed. The trial court found there was no intentional misconduct by the State, but the information regarding N.T.'s disciplinary review should have been disclosed to Almaguer under Rule 15.1(b). The court then directed the State to obtain N.T.'s disciplinary record and deliver a copy to defense counsel.
¶13 The next trial day, after receiving the disciplinary information from the State, defense counsel renewed the motion for mistrial, arguing that if the information had been timely disclosed, he would have been able to argue excessive force in his opening statement and would have obtained an expert to testify regarding the appropriate level of force for an officer in N.T.'s situation. The trial court denied the motion, finding the State's failure to disclose the disciplinary review did not deprive Almaguer of his right to a fair trial nor did it rise to the level of a mistrial. Almaguer also sought a Willits instruction regarding the untimely disclosure of R.W.'s phone records and N.T.'s disciplinary review. The trial court granted the request as to the disciplinary review but denied it as to the phone records, finding that the phone records were not material evidence requiring disclosure.
A typical Willits instruction provides as follows:
If you find that the State has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, then you should weigh the explanation, if any, given for the loss or unavailability of the evidence. If you find that any such explanation is inadequate, then you may draw an inference unfavorable to the State, which in itself may create a reasonable doubt as to the defendant's guilt.Rev. Ariz. Jury Instr. ("RAJI") Stand. Crim. 10; State v. Willits, 96 Ariz. 184 (1964).
¶14 At the close of the State's case, defense counsel moved for a judgment of acquittal, pursuant to Rule 20, arguing the State had failed to present sufficient evidence to support a finding of guilt on a number of counts. The trial court denied the Rule 20 motion in its entirety, finding that the State had presented substantial evidence as to each of the counts.
¶15 Following a seven-day trial, the jury found Almaguer guilty of: Count 1 (theft of means of transportation), Count 2 (unlawful flight from a law enforcement vehicle), Count 3 (aggravated assault against J.G.), Count 5 (aggravated assault against N.T.), Count 6 (resisting arrest), and Count 8 (aggravated assault against B.G.). In addition, the jury found that Counts 3, 5, and 8 were dangerous offenses pursuant to A.R.S. § 13-704. The jury acquitted Almaguer of Counts 4, 7, and 9. In the aggravation phase, the jury found that the State proved the aggravating factor of infliction or threatened infliction of serious physical injury as to Counts 2, 3, 5, 6, and 8. Almaguer stipulated that he committed the present offenses while on release.
¶16 Almaguer moved for a new trial asserting the State failed to disclose N.T.'s disciplinary review for his use of force against Almaguer and R.W.'s phone records from the night of the incident. After hearing oral argument from counsel, the trial court denied the motion. As to the evidence of N.T.'s disciplinary review, the court explained:
Almaguer filed a motion for new trial on June 19, 2013, relating to the disciplinary records of N.T. On August 29, 2013, Almaguer filed another motion for new trial, which addressed the phone records. At the time of oral argument on the second motion, the parties agreed the court would treat the second motion as a supplement to the first.
[T]he failure to disclose was inadvertent, the bulk of the material was disclosed to [Almaguer] during the trial, and [Almaguer] had an opportunity to, and did, examine witnesses using that information in a meaningful way and to argue meaningfully to the jury the inferences he wished the jury to draw from the information.The court further determined there was substantial evidence of Almaguer's guilt regarding the aggravated assault charge involving N.T., and thus Almaguer was not prejudiced by any untimely disclosure. As to R.W.'s cell phone records, the court ruled as follows:
The State's late delivery of the records is vexing, but the Court finds the records were not material. They related only to a remote issue in the trial. [R.W.] had an obligation to assist in
apprehending [Almaguer] under any circumstances, and whether he had properly clocked onto the City payroll by providing appropriate notification to his supervisor is of no moment. He admitted during trial that he could not recall precisely who he notified or what he said to them, and his personal telephone records are, for all intents and purposes, consistent with his testimony. No jury could entertain reasonable doubt about [Almaguer's] guilt for the counts in issue had it received the information available from the records, and [Almaguer] was in no way prejudiced by their late receipt.
¶17 Prior to sentencing, the State presented evidence of Almaguer's prior felony convictions, and the trial court found beyond a reasonable doubt that Almaguer had one historical prior felony. The trial court sentenced Almaguer to the presumptive term of 6.5 years on Count 1, the presumptive term of 2.25 years on Count 2, the presumptive term of 1.75 years on Count 6 and aggravated terms of 16 years each on Counts 3, 5, and 8, with all six sentences to run concurrently. Because Almaguer had stipulated that he committed the offenses while on release, the court added 2 years to each sentence pursuant to A.R.S. § 13-708(D), for a total term of imprisonment of 18 years with 423 days of presentence incarceration credit. Almaguer timely appealed.
DISCUSSION
A. Motions for Mistrial
¶18 In his supplemental brief, Almaguer first argues the trial court erred in denying his motions for mistrial relating to the lack of disclosure of R.W.'s personal cell phone records and N.T.'s disciplinary records. Almaguer asserts that the State's failure to disclose this evidence deprived him of due process and his right to a fair trial. We review the trial court's denial of Almaguer's motions for mistrial for an abuse of discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000).
¶19 A prosecutor's disclosure obligations are governed by Rule 15.1 and Brady v. Maryland, 373 U.S. 83 (1963). The disclosure required of the prosecution under Rule 15.1 is broader than the requirements of Brady. State v. Jessen, 130 Ariz. 1, 4 (1981). Under Brady, the defendant's due process rights are violated when the prosecution suppresses evidence that favors the defendant and would affect the jury's determination, "irrespective of the good or bad faith of the prosecution." 373 U.S. at 87; State v. Lukezic, 143 Ariz. 60, 64 (1984). Rule 15.1(b)(8) requires the prosecutor to make available to the defendant "[a]ll then existing material or information which tends to mitigate or negate the defendant's guilt as to the offense charged, or which would tend to reduce the defendant's punishment therefor," if within the prosecutor's possession or control. "The underlying principle of Rule 15 is adequate notification to the opposition of one's case-in-chief in return for reciprocal discovery so that undue delay and surprise may be avoided at trial by both sides." State v. Lawrence, 112 Ariz. 20, 22 (1975).
¶20 The decision whether to impose sanctions and the choice of sanctions for a disclosure violation is within the sound discretion of the trial court, and the court's decision will not be reversed on appeal absent a showing of prejudice. Jessen, 130 Ariz. at 4. If the State fails to disclose required material, the court may impose any remedy or sanction it finds just under the circumstances, including "declaring a mistrial when necessary in the interests of justice." Ariz. R. Crim. P. 15.7(a)(3). Declaring a mistrial "is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262 (1983).
¶21 We conclude that the trial court did not abuse its discretion in denying Almaguer's motions for mistrial based on failure to disclose. In denying the first motion, the court found that the phone records only became relevant through defense counsel's "unusual" line of questioning and thus, the records were not materials required to be produced by the State pursuant to Rule 15.1(b). As an alternative to the "dramatic remedy" of mistrial the court ordered the State to communicate with R.W. to urge him to obtain the records, a remedy which was within the court's discretion. Moreover, Almaguer was ultimately acquitted of the charges to which R.W.'s phone records were arguably relevant and therefore Almaguer cannot show he suffered prejudice by the lack of disclosure. See State v. Martinez-Villareal, 145 Ariz. 441, 448 (1985).
¶22 With regard to Almaguer's second and third motions for mistrial, the trial court did find that, although there was no intentional misconduct by the State, N.T.'s disciplinary records were materials the State was required to produce pursuant to Rule 15.1(b)(8). Almaguer argues he was prejudiced by the late disclosure of this information because he was unable to adequately cross-examine key witnesses or conduct a thorough investigation into N.T.'s use of force. However, the State immediately notified defense counsel of N.T.'s revelation that he had been subject to discipline for his use of force and defense counsel was able to cross-examine N.T. regarding the substance of his disciplinary review. Consistent with the court's order, the State delivered N.T.'s disciplinary records to defense counsel within one day, before the defense had rested its case, and when N.T. was subject to recall. Absent any showing of prejudice arising out of undue surprise or delay, Martinez-Villareal, 145 Ariz. at 448, we cannot say that the court abused its discretion in denying Almaguer's motions for mistrial on the grounds that the State failed to timely disclose N.T.'s discipline records.
B. Motion for New Trial
¶23 Almaguer similarly argues that the trial court erred in denying his motion for new trial based on the State's untimely disclosure of R.W.'s phone records and N.T.'s disciplinary records. We review a trial court's ruling on a motion for new trial for abuse of discretion. State v. Spears, 184 Ariz. 277, 287 (1996).
¶24 Under Brady, the prosecution's failure to disclose exculpatory evidence to a defendant will result in a new trial when the suppressed evidence is material. See State v. Bracy, 145 Ariz. 520, 528 (1985). When, as here, there has been a general request for exculpatory evidence, or "Brady material," "the test of materiality is whether the omitted evidence creates a reasonable doubt [as to the defendant's guilt] that did not otherwise exist." Id. (quoting U.S. v. Agurs, 427 U.S. 97, 112 (1976)).
¶25 Here, the trial court found that R.W.'s phone records were not material evidence because they related to a remote issue in the trial—whether R.W. notified his supervisor that he and C.H. were "on-duty" and joining the pursuit of Almaguer. Whether R.W. and C.H. were on-duty during the pursuit was only relevant to the charges of aggravated assault against them, charges for which Almaguer was acquitted. And to the extent that defense counsel intended to use the phone records to impeach R.W.'s credibility as a witness to the pursuit itself, R.W.'s testimony was corroborated by the testimony of C.H. and several other officers who witnessed the pursuit. See State v. Arvallo, 232 Ariz. 200, 206, ¶ 36 (2013) ("To warrant a new trial, impeachment evidence must substantially undermine testimony that was of critical significance at trial.") (internal quotations omitted).
¶26 Regarding evidence of N.T.'s disciplinary review, the trial court denied Almaguer's motion for new trial, finding that "timely disclosure of the evidence that was presented during trial [would not] have led the jury to entertain reasonable doubt about [Almaguer's] guilt regarding the relevant counts." Although defense counsel was not informed of the disciplinary review until trial, counsel had the opportunity to interview N.T. prior to trial and to cross-examine him regarding his discipline history. As the trial court noted, defense counsel "knew the gravamen of the information [related to N.T.'s discipline] at a time during the trial that allowed him to meaningfully present the information and argue to the jury." The court also gave a Willits instruction to the jury, explaining that "the State has failed to produce [N.T.'s] disciplinary file" and that the jury "may draw an inference unfavorable to the State, which in itself may create a reasonable doubt as to the defendant's guilt." We presume the jury followed this instruction. State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Given the Willits instruction and defense counsel's opportunity to interview and cross-examine N.T. regarding his disciplinary review, Almaguer has not shown that proper disclosure of the disciplinary record would have created a reasonable doubt as to Almaguer's guilt. Because Almaguer has failed to demonstrate he was prejudiced by the disclosure violation, we conclude that the trial court did not abuse its discretion in denying Almaguer's motions for new trial based on untimely disclosure of Rule 15.1(b) evidence.
Almaguer also asserts the State's failure to timely disclose evidence constitutes prosecutorial misconduct. "A defendant seeking reversal of a conviction for prosecutorial misconduct must establish that (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial." State v. Dixon, 226 Ariz. 545, 549, ¶ 7 (2011) (internal citation and quotations omitted.) Prosecutorial misconduct "is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal." Pool v. Superior Court in and for Pima County, 139 Ariz. 98, 108-09 (1984). Because Almaguer failed to raise this issue in the trial court, we review solely for fundamental error, which is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (internal quotation omitted). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. at ¶ 20. In this case, defense counsel was apprised of the disciplinary information at a point in the trial when he was able to meaningfully present the information and related arguments to the jury. Therefore, even assuming that Almaguer could show that misconduct occurred, he has not established he was prejudiced by the State's failure to disclose --------
C. Motion for Judgment of Acquittal
¶27 Almaguer argues the trial erred in denying his Rule 20 motion for judgment of acquittal. We review the denial of a Rule 20 motion de novo, viewing the evidence presented in the light most favorable to sustaining the judgment. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We will affirm the ruling if supported by substantial evidence. State v. Vena, 209 Ariz. 503, 505, ¶ 7 (App. 2005). Substantial evidence is "proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. at ¶ 16 (internal quotation omitted). Because Almaguer has not argued that the evidence supporting any particular count was insufficient, we treat his argument as challenging each of the six counts for which he was convicted.
¶28 For Count 1, a person commits theft of means of transportation, if without lawful authority, he controls another person's means of transportation knowing or having reason to know that the property is stolen. A.R.S. § 13-1814(A)(5). Here, the officers involved in the pursuit identified Almaguer as the driver of the Caprice, and they observed the broken ignition as well as a screwdriver. Additionally, the registered owner of the Caprice testified that he did not know Almaguer and did not give him permission to use it.
¶29 As to Count 2, a person commits unlawful flight from pursuing law enforcement vehicle if he willfully flees a pursuing official law enforcement vehicle that is appropriately marked as such. A.R.S. § 28-622.01. The evidence showed that Almaguer willfully fled in the Caprice from several law enforcement vehicles (with emergency lights and sirens activated) that were pursuing him.
¶30 Regarding Counts 3, 5 and 8, a person commits assault by "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury." A.R.S. § 13-1203(A)(2). A person commits aggravated assault if the person commits an assault using a "deadly weapon or dangerous instrument" or if the person knows or has reason to know the victim is a peace officer. A.R.S. § 13-1204(A)(2), (8). J.G. testified that Almaguer backed into the patrol car J.G. was driving "aggressively . . . to do some harm to [he and B.G.]" J.G. also testified he felt his life was threatened when Almaguer backed the Caprice into the police car a second time. B.G. testified that Almaguer drove the Caprice "at a speed great enough that [he] felt it was going to cause . . . bodily harm to [himself]." N.T. testified that he believed Almaguer would "do anything to get away from [the police], including possibly hurt or kill people." When asked if he believed he was going to be struck by Almaguer while running through the parking lot, N.T. testified that he heard the engine of the Caprice accelerate and "I had a feeling it was coming right after me[.]" A reasonable juror could conclude from this evidence that Almaguer intended to place J.G, B.G. and N.T. in reasonable apprehension of imminent physical injury and that Almaguer knew that all of them were police officers.
¶31 As to Count 6, a person commits the offense of resisting arrest by intentionally preventing or attempting to prevent a peace officer from effecting an arrest by using or threatening to use physical force against the peace officer or another. A.R.S. § 13-2508 (A)(1). The State presented evidence that Almaguer physically struggled with several officers to avoid arrest, including kicking one of them.
¶32 Because substantial evidence supports the jury's verdict on each of these six counts, the trial court did not err in denying Almaguer's Rule 20 motion.
D. Willits Instruction
¶33 Finally, Almaguer argues the trial court erred in denying his request for a Willits instruction regarding R.W.'s phone records. A Willits instruction is proper if a defendant demonstrates "(1) that the state failed to preserve material evidence that was accessible and might tend to exonerate him, and (2) resulting prejudice." State v. Fulminante, 193 Ariz. 485, 503, ¶ 62 (1999). A trial court does not abuse its discretion by denying a request for a Willits instruction when a defendant fails to establish that the lost evidence would have had a tendency to exonerate him. See State v. Bolton, 182 Ariz. 290, 309 (1995)
¶34 The trial court denied a Willits instruction regarding R.W.'s personal cell phone records, which were not delivered to defense counsel until after the trial, finding that the cell phone records were not materials the State was required to produce under Rule 15.1. Defense counsel argued he would have used the cell phone records to impeach R.W. and to challenge whether R.W. and C.H. were officially "on-duty" when they participated in the pursuit of Almaguer. However, the jury acquitted Almaguer of the two counts of aggravated assault that related to R.W. and C.H. Moreover, to the extent that R.W.'s credibility as a witness to the pursuit would have been impeached by such evidence, his testimony regarding the pursuit was consistent with and substantiated by the testimony of numerous other officers testifying at trial. Almaguer does not allege on appeal any additional grounds for finding that the cell phone records would have a "tendency to exonerate" him of any of the counts on which he was convicted, nor does he allege any prejudice. Thus, the trial court did not abuse its discretion in denying Almaguer's request for a Willits instruction regarding R.W.'s cell phone records.
E. Presentence Incarceration Credit
¶35 The trial court awarded Almaguer 423 days of presentence incarceration credit. Under A.R.S. § 13-712(B), a defendant is entitled to credit for all time that is "actually spent in custody." Almaguer was taken into custody when he was booked into jail on July 17, 2012 and remained in custody until his sentencing on September 16, 2013, for a total of 425 days. Accordingly, pursuant to A.R.S. § 13-4037(B), Almaguer's sentence is modified to reflect 425 days of presentence incarceration credit to be applied against all sentences. See State v. Stevens, 173 Ariz. 494, 496 (App. 1992) (correcting presentence incarceration credit without remand to trial court).
CONCLUSION
¶36 We have searched the entire record for reversible error and have found none, except for the presentence incarceration credit as explained above. The proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows Almaguer was present at all pertinent proceedings and was represented by counsel. Almaguer had an opportunity to speak before sentencing, and the sentence imposed was within the statutory limits. Accordingly, we affirm Almaguer's convictions and sentences as modified to reflect 425 days of presentence incarceration credit.
¶37 Upon the filing of this decision, counsel shall inform Almaguer of the status of the appeal and his options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Almaguer shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.