IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

DAVID SOTO CECENA,

Appellant.

No. 2 CA-CR 2013-0368

Filed September 25, 2014

Appeal from the Superior Court in Pima County

No. CR20082701

The Honorable Deborah Bernini, Judge

REMANDED

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix 

By Joseph L. Parkhurst, Assistant Attorney General, Tucson

Counsel for Appellee

Harriette P. Levitt, Tucson

Counsel for Appellant
STATE v. CECENA

Opinion of the Court

2

OPINION

Presiding Judge Miller authored the opinion of the Court, in which 

Chief Judge Eckerstrom and Judge Espinosa concurred.

M I L L E R, Presiding Judge:

¶1 David Cecena was convicted after a jury trial of one 

count of continuous sexual abuse of a minor and sentenced to 

twenty years’ imprisonment. On appeal, he argues the trial court 

erred in refusing to grant him credit for time served during his 

presentence incarceration in Mexico pursuant to A.R.S. § 13-712(B).

For reasons set forth below, we remand this case for further fact 

finding as to whether his incarceration in Mexico was pursuant to 

the Arizona charge.

Factual and Procedural Background

¶2 We limit our overview to the facts relevant to Cecena’s 

claimed error regarding presentence incarceration credit. On July 7, 

2008, Cecena was arrested and later charged with one count of 

continuous sexual abuse of a child. He was held in the Pima County 

jail awaiting trial until March 30, 2009, when he was released on 

bond. He apparently returned shortly thereafter to his native 

Mexico.

¶3 In September 2010, Cecena failed to appear for trial; he 

was convicted in absentia, and the trial court issued a bench warrant 

for his arrest. He was extradited from Mexico to the United States 

on May 31, 2013, and was booked at the Pima County jail that day.

¶4 Cecena was sentenced on August 12, 2013. He claimed 

in the presentence report that he had been apprehended in Mexico 

on July 13, 2012, and remained in custody there until he was 

extradited. At the sentencing hearing, he requested credit for the 
STATE v. CECENA

Opinion of the Court

3

time he had served both in the United States and in Mexico, 

claiming a total of 662 days. The trial court denied this request, 

sentencing Cecena to the presumptive term of twenty years and 

granting 340 days1 of presentence incarceration credit, representing 

only the time served in the United States. Cecena timely appealed.

Discussion

¶5 Cecena’s sole argument is that the trial court 

improperly denied his request for presentence incarceration credit 

under A.R.S. § 13-712(B) for time spent incarcerated in Mexico. He 

maintains the statute requires credit for all presentence incarceration

pursuant to an Arizona offense, even if served in a foreign nation.

¶6 We review interpretation of statutes de novo. Ariz. 

Citizens Clean Elections Comm’n v. Brain, 234 Ariz. 322, ¶ 11, 322 P.3d 

139, 142 (2014). “[T]he best and most reliable index of a statute’s 

meaning is its language,” State v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d 

166, 168 (2007), and if that language is clear, then “‘we rely on the 

plain language rather than utilizing other ways of interpreting the 

statute.’” Cornerstone Hosp. of Se. Ariz., LLC v. Marner ex rel. Cnty. of 

Pima, 231 Ariz. 67, ¶ 11, 290 P.3d 460, 465 (App. 2012), quoting Lo v. 

Lee, 231 Ariz. 531, ¶ 8, 298 P.3d 220, 222 (App. 2012).

 

1 The sentencing minute entry prescribes 340 days of 

presentence credit, but at the sentencing hearing, the judge quoted a 

figure of 343 days. Cecena served 267 days from his initial booking 

on July 7, 2008, until he posted bond on March 30, 2009. He served 

an additional 73 days from his extradition on May 31, 2013, to the 

date of his sentencing, August 12, 2013. The correct amount of 

presentence credit for time spent in the United States therefore is 340 

days. See State v. Provenzino, 221 Ariz. 364, ¶¶ 25-26, 212 P.3d 56, 62 

(App. 2009) (discrepancy between oral pronouncement of sentence 

and minute entry may be resolved by reference to the record 

showing dispositive evidence of trial court’s intent); State v. Lopez, 

230 Ariz. 15, n.2, 279 P.3d 640, 643 n.2 (App. 2012) (“When we can 

ascertain the trial court’s intent from the record, we need not 

remand for clarification.”).
STATE v. CECENA

Opinion of the Court

4

¶7 Section 13-712(B), provides: “All time actually spent in 

custody pursuant to an offense until the prisoner is sentenced to 

imprisonment for such offense shall be credited against the term of 

imprisonment otherwise provided for by this chapter.” In State v. 

Mahler, our supreme court granted a defendant credit for time 

served in Nevada pursuant to his Arizona offense. 128 Ariz. 429, 

430, 626 P.2d 593, 594 (1981). The court reasoned that as a matter of 

plain language, the presentence credit statute 2 referred to “[a]ll 

time” spent in custody pursuant to an Arizona offense, making no 

distinction between custody in Arizona or in another jurisdiction. 

Id. However, this court later clarified that presentence incarceration

credit is unavailable for time served based on a charge other than 

that for which the defendant is being sentenced, because such

incarceration is not “pursuant to” the relevant offense. State v. 

Horrisberger, 133 Ariz. 569, 570, 653 P.2d 26, 27 (App. 1982).

¶8 No Arizona case has determined whether § 13-712(B)

applies to presentence incarceration in another country. Although 

the prosecutor argued in the trial court that foreign incarceration 

never provides pretrial credit, on appeal the state now concedes that 

it does. We agree. Just as the plain language of § 13-712(B) makes 

no distinction between in-state and out-of-state custody, Mahler, 128 

Ariz. at 430, 626 P.2d at 594, neither does it distinguish between 

domestic and foreign custody. As long as the foreign incarceration

is pursuant to the Arizona charge for which he or she is being 

sentenced, a defendant should be entitled to credit for presentence 

incarceration in another country just as for such incarceration in 

another state. A.R.S. § 13-712(B); see also State v. Hemphill, 917 A.2d 

247, 249-50 (N.J. Super. Ct. App. Div. 2007) (interpreting analogous 

New Jersey statute to allow credit for detention in Scotland if solely 

because of New Jersey charge, and remanding for further fact 

finding on that issue); Ex parte Rodriguez, 195 S.W.3d 700, 703-04 

 

2The court in Mahler construed former A.R.S. § 13-709(B), 

which was later renumbered as A.R.S. 13-712(B). See 128 Ariz. at 

430, 626 P.2d at 594; 2008 Ariz. Sess. Laws, ch. 301, § 27(B). The 

relevant language is identical.
STATE v. CECENA

Opinion of the Court

5

(Tex. Crim. App. 2006) (granting presentence incarceration credit for 

Mexico detention on Texas charge).

¶9 Resolving this statutory interpretation question does 

not end our inquiry, however, because we must determine whether 

Cecena’s incarceration in Mexico was “pursuant to” his Arizona 

charge within the meaning of § 13-712(B). See Horrisberger, 133 Ariz. 

at 570, 653 P.2d at 27 (no Arizona credit for presentence 

incarceration on out-of-state charges); State v. Lalonde, 156 Ariz. 318,

320, 751 P.2d 978, 980 (App. 1987) (same).

¶10 It is the defendant’s burden at sentencing to 

demonstrate entitlement to presentence incarceration credit. 3 See 

People v. Shabazz, 132 Cal. Rptr. 2d 708, 709 (Cal. Ct. App. 2003); 

accord State v. Coe, 554 A.2d 656, 659 (Vt. 1988) (defendant seeking

presentence credit, “bears the burden” of showing home state 

charge was sole basis for sister state incarceration); Kitzke v. State, 84 

P.3d 950, 951-53 (Wyo. 2004) (defendant failed to carry his burden of 

proof on presentence credit). Indeed, in Arizona, the defendant has 

the obligation to object to the presentence report, which includes a 

calculation of presentence incarceration credit. See Ariz. R. Crim. P. 

26.8(a). To meet this burden, a defendant must show that the 

Arizona charge was a “‘but for’ cause” of his or her out-of-state 

presentence incarceration. See People v. Bruner, 892 P.2d 1277, 1286-

87 & n. 11 (Cal. 1995).

¶11 The state argues for the first time on appeal that Cecena 

failed to meet his burden of proving entitlement to time served 

because he did not show he was confined by Mexican authorities as 

a result of a formal hold or detainer, citing a Texas case, Fernandez v. 

State, 775 S.W.2d 787 (Tex. App. 1989). But more recent Texas cases 

indicate that a defendant may demonstrate by some other means 

that his presentence incarceration was pursuant to the state cause. 

 

3That being said, the prosecutor has an ethical duty to timely 

disclose to the defense all evidence or unprivileged information he 

or she knows that tends to demonstrate the defendant is entitled to 

presentence incarceration credit. See ER 3.8(d), Ariz. R. Prof’l 

Conduct, Ariz. R. Sup. Ct. 42.
STATE v. CECENA

Opinion of the Court

6

See Ex parte Rodriguez, 195 S.W.3d 700, 703 (Tex. Crim. App. 2006)

(letter from United States Department of Justice regarding Mexico 

incarceration sufficient); cf. Hannington v. State, 832 S.W.2d 355, 356 

(Tex. Crim. App. 1992) (regarding in-state incarceration, “existence 

of a detainer is merely one means of establishing incarceration on a 

particular cause”). This strikes us as the better course. As with 

other sentencing issues, such as introduction of mitigating factors,

entitlement to presentence incarceration credit can be demonstrated 

by less formal means, as deemed appropriate by the trial court. See 

Ariz. R. Crim. P. 26.7(b) (“any reliable, relevant evidence, including 

hearsay,” may be introduced at pre-sentence hearing); see also State 

v. Marquez, 127 Ariz. 3, 6, 617 P.2d 787, 790 (App. 1980) (same).

¶12 The state next maintains, again for the first time on 

appeal, that even if we do not follow Fernandez, Cecena nevertheless

failed to prove that his custody in Mexico was pursuant to the bench 

warrant issued after his trial in absentia.

4 The state thus asks us to

affirm the sentence. In the alternative, the state proposes that we 

remand this case for further fact finding on the issue of whether 

Cecena was confined in Mexico pursuant to the Arizona charge, 

citing Hemphill, 917 A.2d at 250.

¶13 At the sentencing hearing, Cecena’s attorney asserted 

that Cecena had been detained in Mexico on July 13, 2012, and held 

there until May 31, 2013, when he was extradited. This is in accord 

with Cecena’s own statements in the presentence report. The state 

did not contest these dates below, nor does it do so on appeal.

¶14 However, Cecena never actually asserted before the 

trial judge that his detention in Mexico was pursuant to the 

September 2010 arrest warrant. As previously noted, the prosecutor 

 

4Cecena argues the state waived this claim since it never 

suggested below that his Mexico incarceration was on account of 

any other charge. Even assuming, without deciding, that this 

contention is correct, we nevertheless may consider the issue at our 

discretion. See, e.g., State v. Smith, 203 Ariz. 75, ¶ 12, 50 P.3d 825, 829 

(2002) (failure to make legal argument in trial court does not bar 

appellate court from addressing merits in its discretion).
STATE v. CECENA

Opinion of the Court

7

opposed pretrial credit solely based on an incorrect statement of law

that the trial court accepted, and the issue was not addressed 

further. Thus, neither the prosecutor nor the court questioned 

whether Cecena’s incarceration in Mexico was for reasons other than

the Arizona offense, and the state may not benefit from persuading 

the court that no fact-finding was necessary. We decline to affirm 

the sentence on this ground.

Disposition

¶15 We remand this case for further findings on the length 

of Cecena’s incarceration in Mexico and whether it was pursuant to 

the Arizona charge of continuous sexual abuse of a minor. See 

Hemphill, 917 A.2d at 250 (remanding for hearing to determine 

whether defendant’s foreign incarceration was solely on account of 

in-state charge); cf. State v. Alevras, 517 A.2d 460, 465 (N.J. Super. Ct. 

App. Div. 1986) (“We decline to decide the question of credits to 

which defendant was entitled . . . because the issue was not 

developed before the sentencing judge.”). If, upon remand, the trial 

court determines that some or all of Cecena’s time served in Mexico 

was pursuant to the Arizona charge within the meaning of 

§ 13-712(B), then Cecena is entitled to credit for such time, in 

addition to the 340 days the trial court already granted him for 

presentence incarceration in the United States.