Opinion
No. 1 CA-CR 17-0769
02-28-2019
STATE OF ARIZONA, Appellee, v. JUAN MANUEL GASTELUM, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jillian Francis Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Nicholaus Podsiadlik Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2016-146223-001
The Honorable Julie Ann Mata, Judge Pro Tempore
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jillian Francis
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig joined. JONES, Judge:
¶1 Juan Gastelum appeals his conviction and sentence for theft of means of transportation. For the following reasons, we affirm Gastelum's conviction and affirm his sentence as modified.
FACTS AND PROCEDURAL HISTORY
¶2 In September 2016, Blake C., the manager and part-owner of a used car dealership, realized a Toyota Avalon was missing from the lot. When the dealership employees could not account for the vehicle, Blake activated its tracking device and drove to its location. After Blake parked his car behind the Avalon, its driver, Gastelum, accidentally backed into him. Blake then called law enforcement to report the theft.
"We view the facts in the light most favorable to sustaining the conviction[] 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)).
¶3 When questioned by police, Gastelum claimed he had recently purchased the Avalon for $400 and one half-ounce of methamphetamine. Gastelum acknowledged something "wasn't right" with the transaction but advised he had planned to obtain a title for the Avalon through a contact at the motor vehicle department. Thereafter, the officer matched the Avalon's vehicle identification number to a title identifying the dealership as the sole owner of the vehicle and confirmed its license plate belonged to a different vehicle.
¶4 A jury convicted Gastelum of one count of theft of means of transportation and also found he had committed the offense while on felony probation. The trial court then found Gastelum had seven prior felony convictions, sentenced him to the presumptive term of 11.25 years' imprisonment, and credited him with 416 days of presentence incarceration. Gastelum timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
Absent material changes from the relevant date, we cite the current version of rules and statutes.
DISCUSSION
I. Exclusion of Witnesses
¶5 Gastelum argues the trial court improperly permitted Blake to remain in the courtroom after his counsel invoked Arizona Rule of Evidence 615 and Arizona Rule of Criminal Procedure 9.3(a)(1). Those rules require the court, "[a]t a party's request, . . . [to] order witnesses excluded so that they cannot hear other witnesses' testimony." Ariz. R. Evid. 615; accord Ariz. R. Crim. P. 9.3(a)(1).
¶6 Even assuming the trial court erred, reversal is warranted only if the failure to honor a request to exclude results in prejudice to the defendant. State v. Roberts, 126 Ariz. 92, 94 (1980) (collecting cases). Reversal is not warranted if "after examining the record it is possible to conclude with assurance that a defendant was definitely not prejudiced by the failure to exclude." Id. (citing State v. Valdez, 115 Ariz. 1, 2 (App. 1977)).
¶7 Gastelum argues he was prejudiced because Blake's testimony advanced the State's theory of the case, addressed "the defense's attacks," and possibly influenced Gastelum's decision not to testify. But "[t]he general purpose of the rule [of exclusion] is to prevent fabrications and preserve individual testimony." State v. Edwards, 154 Ariz. 8, 13 (App. 1986); see also Spring v. Bradford, 243 Ariz. 167, 170, ¶ 14 (2017) ("The purpose of Rule 615 is to prevent witnesses from tailoring their testimony to that of earlier witnesses and to aid in detecting testimony that is less than candid.") (quotation and citation omitted). Therefore, the relevant inquiry is not whether the witness's testimony was favorable to the State's case or effectively rebutted the defense, but whether the witness altered his testimony to conform to another, prior witness's account. Compare Roberts, 126 Ariz. at 95 (finding reversible error where it was "possible" the witness who was erroneously permitted to remain in the courtroom changed his story because he heard the testimony of other witnesses), with Valdez, 115 Ariz. at 2 (finding no reversible error where the witness who was erroneously permitted to remain in the courtroom did not hear any testimony "involv[ing] an element of the case").
¶8 The record reflects that the only testimony Blake heard after Gastelum invoked the rule excluding witnesses was the State's redirect of the investigating officer. See Roberts, 126 Ariz. at 94-95 (demonstrating that a reviewing court assesses prejudice by considering only the testimony offered after Rule 615 is invoked). On redirect, the officer confirmed that no fingerprints were collected from the Avalon because Gastelum was found inside the vehicle; the absence of tampering did not preclude the possibility of theft, particularly if the vehicle were stolen with the owner's key; and the sale of a vehicle normally includes the exchange of title. Thereafter, Blake testified regarding his position and financial interest in the dealership and the Avalon; the dealership employees' access to the vehicles on the lot; and the facts surrounding his realization that the Avalon was missing and its subsequent discovery.
On cross-examination, Gastelum's counsel elicited more specific information from Blake regarding the dealership's business practices and policies, including the use of a lock box on the vehicle's window to store its key. To the extent these responses corroborated the investigating officer's testimony by explaining the lack of tampering, it was invited error. See State v. Maggard, 104 Ariz. 462, 465 (1969) ("[W]here an answer is clearly responsive to the question asked concerning the facts surrounding the commission of a criminal act . . . it falls within the 'invited error' rule, and [the] defendant may not be heard to object, when the answer is unfavorable.").
¶9 Blake's testimony was distinct from that offered by the prior witness after the exclusionary rule was invoked, and there is no indication that he changed his testimony as a result of being allowed to remain in the courtroom during trial. Given the clear absence of prejudice, Blake's continued presence after invocation of the rule excluding witnesses, even if erroneous, was not reversible error.
II. Presentence Incarceration Credit
¶10 Gastelum also argues he did not receive appropriate presentence incarceration credit, an error the State concedes. The record reflects that Gastelum was arrested on September 26, 2016 and remained in custody until sentencing on November 17, 2017. He was therefore incarcerated for a total of 417 days before sentencing and should have received credit for each day. Accordingly, we modify Gastelum's sentence to reflect credit for 417 days of presentence incarceration. See State v. Stevens, 173 Ariz. 494, 495-96 (App. 1992) (modifying a defendant's sentence to reflect correct presentence incarceration credit).
CONCLUSION
¶11 Gastelum's conviction is affirmed and his sentence is affirmed as modified to reflect 417 total days of presentence incarceration credit.