THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

PORTLEY, Judge.

¶1 Defendant Pejman Elahi challenges his convictions and the sentences for possession of narcotic drugs and possession of drug paraphernalia. He contends that the court erred in instructing the jury and in the imposing sentences. We affirm the convictions, but vacate the sentences and remand for resentencing.

FACTS1 AND PROCEDURAL HISTORY

¶2 The police were conducting surveillance on Isaac Cantu. Officers followed Cantu to a supermarket parking lot where he parked next to a Cadillac. He got out of his car and opened the two rear passenger doors. Defendant, the sole occupant of the Cadillac, got out and walked over to one of the open rear doors on Cantu's vehicle while Cantu stood at the other. Defendant and Cantu then leaned inward through their respective open rear doors and appeared to engage in a brief conversation. Defendant and Cantu then shook hands and separated. Cantu then closed the doors and drove away.

¶3 Defendant walked back to the Cadillac and was approached by a police officer as he opened the driver's door. Because he could not see Defendant's hands, the officer ordered him to show his hands. Defendant refused to comply until the officer drew his weapon and pointed it at him. Other officers then approached and found two packets of foil on the ground by the Cadillac's driver's door. Inside the packets was a black substance, which was subsequently analyzed and confirmed to be heroin.

¶4 After being advised of his rights, Defendant admitted to driving to the parking lot to meet Cantu. Defendant told the police that the two packets of heroin had been in the console of Cantu's vehicle and that he paid forty dollars for them. He also admitted that he was a heroin user and had been trying to "stop."

¶5 Defendant was indicted on one count of possession of narcotic drugs, a class 4 felony, and possession of drug paraphernalia, a class 6 felony. He was tried, and the jury found him guilty as charged. At sentencing, the court ruled that Defendant's federal armed bank robbery conviction was a violent crime and that he was ineligible for mandatory probation. Defendant was then sentenced to concurrent presumptive prison terms on each conviction. The court further ordered that the two sentences be served consecutive to a three and one-half year prison term imposed the previous month in Maricopa County Superior Court Cause No. CR2011-005958.

DISCUSSION

A. Denial of Mere Presence Instruction

¶6 Defendant argues that the trial court erred by denying his request for a "mere presence" jury instruction. We review the ruling for abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006).

¶7 "A party is entitled to an instruction on any theory of the case reasonably supported by the evidence." State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983). Even so, a court's refusal to give a requested jury instruction is reversible error only if the instructions, taken as a whole, would have misled the jury. State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). "[T]he test is whether the instructions adequately set forth the law applicable to the case." State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16, 961 P.2d 1006, 1009 (1998). "Where the law is adequately covered by [the] instructions as a whole, no reversible error has occurred." State v. Doerr, 193 Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998).

¶8 A mere presence instruction typically states: "[g]uilt cannot be established by the defendant's mere presence at a crime scene or mere association with another person at a crime scene. The fact that the defendant may have been present does not in and of itself make the defendant guilty of the crimes charged." See State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). Here, the evidence does not support that he was merely present. When questioned by the police, Defendant admitted to purchasing the heroin found on the ground next to his Cadillac. A mere presence instruction, as a result, is not appropriate when the evidence indicates that the Defendant was more than a mere passive observer of a crime. Doerr, 193 Ariz. at 65, ¶ 36, 969 P.2d at 1177.

¶9 Moreover, the instructions as a whole made clear that the jury had to find that Defendant knowingly possessed the heroin, which would negate a finding of guilt based only upon his presence at the scene where the heroin was found. As a result, the court did not abuse its discretion by refusing to give the mere presence instruction.

B. Eligibility for Mandatory Probation

¶10 Defendant next argues that the court erred by ruling he was ineligible for mandatory probation pursuant to Arizona Revised Statutes ("A.R.S.") section 13-901.01(A) (West 2012) based on a finding that his prior federal conviction for armed bank robbery was a "violent crime." Because the determination of whether a prior conviction is a violent crime for purposes of A.R.S. § 13-901.01 is an issue of law, we review the trial court's ruling de novo. See State v. Pandeli, 215 Ariz. 514, 522, ¶ 11, 161 P.3d 557, 565 (2007); Cherry v. Araneta, 203 Ariz. 532, 534, ¶ 8, 57 P.3d 391, 393 (App. 2002).

¶11 Section 13-901.01 provides that when a person is "convicted of the personal possession or use of a controlled substance or drug paraphernalia," the court is required to suspend sentencing and place the person on probation. A.R.S. § 13-901.01(A). Nonetheless, a "person who has been convicted of or indicted for a violent crime as defined in § 13-901.03 is not eligible for probation as provided for in this section." A.R.S. § 13-901.01(B). A "violent crime" includes "any criminal act that results in death or physical injury or any criminal use of a deadly weapon or dangerous instrument." A.R.S. § 13-901.03(B) (West 2013). "Dangerous instrument" is defined as "anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury." A.R.S. § 13-105(12) (West 2013).

¶12 In determining whether a prior conviction establishes the commission of a violent crime for purposes of excluding a defendant from mandatory probation pursuant to A.R.S. § 13-901.01(B), we consider the statutory elements of the offense. State v. Joyner, 215 Ariz. 134, 138, ¶ 9, 158 P.3d 263, 267 (App. 2007); see also State v. Smith, 219 Ariz. 132, 134, ¶ 10, 194 P.3d 399, 401 (2008). Defendant's federal conviction judgment states he was convicted of "Armed Bank Robbery, a Class B Felony offense," in violation of Title 18, U.S.C. § 2113(a) and (d). The federal statute provides, in pertinent part:

18 U.S.C. § 2113(a), (d) (West 2013). Subsection 2113(d) does not constitute a separate offense, but merely enhances the possible penalties of 18 U.S.C. § 2113(a) when the circumstances described in the section are present. United States v. Bosque, 691 F.2d 866, 868 n.2 (9th Cir. 1982).

¶13 Defendant argues that his federal offense would not necessarily constitute a violent offense as defined in A.R.S. § 13-901.03(B) because the enhancement provided in 18 U.S.C. § 2113(d) is applicable to either the commission of an assault or the use of a dangerous weapon or device. According to Defendant the court did not find all the elements for a violent offense from the fact of his conviction alone because an assault can be committed without the use of a deadly weapon or dangerous instrument. We disagree.

¶14 Defendant's argument is problematic because it ignores that his federal conviction was for "Armed Bank Robbery," not merely aggravated bank robbery (emphasis added). Armed Bank Robbery, by definition, is committed by putting "in jeopardy the life of any person by the use of a dangerous weapon or device." 18 U.S.C. § 2113(d); see also People v. Miles, 183 P.3d 1236, 1245 (Cal. 2008) (holding federal conviction for "armed bank robbery" indicates "defendant was adjudged . . . to have `put[ ] in jeopardy the life of [a] person by the use of a dangerous weapon or device' within the meaning of section 2113(d)"). The Ninth Circuit has held that

Wagner v. United States, 264 F.2d 524, 530 (9th Cir. 1959); accord United States v. Coulter, 474 F.2d 1004, 1005 (9th Cir. 1973). Accordingly, we hold that the court did not err by ruling that Defendant's federal conviction for Armed Bank Robbery constituted a "violent crime" as defined in A.R.S. § 13-901.03(B) that precluded his eligibility for mandatory probation pursuant to A.R.S. § 13-901.01(B).

C. Imposition of Consecutive Sentences

¶15 Defendant also argues that the court erred by ordering that the sentences in this case be served consecutive to his sentence in Maricopa County Superior Court Cause No. CR2011-005958. We review a court's decision to impose consecutive sentences for abuse of discretion. State v. Ward, 200 Ariz. 387, 389, ¶ 5, 26 P.3d 1158, 1160 (App. 2001). "[A] reviewing court may find abuse of discretion when the sentencing decision is arbitrary or capricious, or when the court fails to conduct an adequate investigation into the facts relevant to sentencing." Id. at ¶ 6. A refusal or failure to exercise discretion constitutes an abuse of discretion. State v. Garza, 192 Ariz. 171, 175, ¶ 16, 962 P.2d 898, 902 (1998).

¶16 At sentencing, the State argued that the two sentences in this case should run consecutive to a sentence that was imposed one month earlier for aggravated assault in Maricopa County Superior Court Cause No. CR2011-005958. Despite Defendant's argument, the court stated that there is a presumption that separate offenses be consecutive and then ordered the sentences in this case be served consecutive to the earlier sentence for aggravated assault.

¶17 The court did not indicate which statute it was referring to when it stated that there is a presumption that sentences on separate offenses be consecutive. On appeal, the parties assume that the trial court was referring to A.R.S. § 13-711(A) (West 2013), which reads:

By its terms, A.R.S. § 13-711(A) is applicable only when "multiple sentences of imprisonment are imposed on a person at the same time." Id. (emphasis added). Here, the sentences ordered to run consecutive were not imposed at the same time but rather on different dates in separate cases. The parties have not cited to any statute or other authority, and we find none, that creates a presumption that sentences imposed on different dates are to be served consecutively.

¶18 Further, even if A.R.S. § 13-711(A) were read to apply to sentences that are not imposed at the same time, our supreme court has made clear that the statute does not create a "presumption" that sentences run consecutively. Garza, 192 Ariz. at 174-75, ¶¶ 10-12, 962 P.2d at 901-02. In Garza, the court explained that the statute does not constrict to any degree judicial discretion to impose concurrent sentences, but rather simply obligates the trial court "to set forth reasons for imposing concurrent rather than consecutive sentences and creates a default designation of consecutive sentences when the judge fails to indicate whether the sentences are to run concurrently or consecutively." Id. at 175, ¶ 12, 962 P.2d at 902; see also Ward, 200 Ariz. at 388, ¶ 3, 26 P.3d at 1159 (same).

¶19 The trial court's remarks in explaining its reasoning for imposing consecutive sentences clearly indicate an erroneous belief in a non-existent presumption in favor of consecutive sentences. Garza, 192 Ariz. at 176, ¶ 17, 962 P.2d at 903. When asked why the sentences were being ordered consecutive, the court responded: "I'm saying that I don't feel like I have the reason — I don't have good grounds, I don't have good reasons to run it concurrently, and I have to state reasons on the record why it should be a concurrent sentence as opposed to consecutive. It's presumed to be consecutive under the statute." The court acknowledged that one reason to run the sentences concurrently was the small amount of drugs involved, but added, "I just don't think that is enough to run it concurrently." We find, however, that the court was proceeding under a mistaken view of the law regarding its discretion to impose concurrent sentences, and its sentencing decision likely was affected by the erroneous belief that a presumption applied. See id. at 174 n.6, ¶ 10, 962 P.2d at 901 n.6 ("So even though the judge recognized he was not bound by a steadfast rule, his discretion was clearly guided by his belief that a presumption existed.").

¶20 The sentences imposed upon Defendant were within the court's authority. It is, however, unclear from the record whether the court would have imposed the same sentences absent its misunderstanding of the law. "Even when the sentence imposed is within the trial judge's authority, if the record is unclear whether the judge knew he had discretion to act otherwise, the case should be remanded for resentencing." Id. at 176, ¶ 17, 962 P.2d at 903. Accordingly, we vacate Defendant's sentences and remand for resentencing.

CONCLUSION

¶21 Based on the foregoing, we affirm Defendant's convictions but vacate the sentences and remand for further proceedings consistent with this decision.

PATRICIA A. OROZCO, Judge, RANDALL M. HOWE, Judge, concurring.