State v. Ramirez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

RONNIE RAMIREZ, Appellant.

No. 1 CA-CR 21-0428
FILED 7-28-2022

Appeal from the Superior Court in Maricopa County
No. CR2020-129349-001
The Honorable Roy C. Whitehead, Judge

AFFIRMED IN PART, VACATED IN PART, REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Rebecca Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Peter B. Swann joined.

STATE v. RAMIREZ
Decision of the Court

P A T O N, Judge:

¶1 Ronnie Ramirez appeals from his convictions and sentences
for aggravated assault, unlawful discharge of a firearm, and misconduct
involving weapons. We affirm Ramirez’s convictions but vacate the
sentences imposed and remand for resentencing because the record does
not support his designation as a category three repetitive offender.

FACTS AND PROCEDURAL HISTORY

¶2 The victim was shot at a bus stop at night. He was not
forthcoming when asked about the shooter’s identity but surveillance video
from a nearby business captured the incident from a distance. The footage
showed a man in red shorts walking toward the bus stop with a gun in his
hand, soon followed by a flash. The man in red shorts then ran from the
scene.

¶3 Some of the surveillance footage showed the man in red
shorts with his shirt mostly removed—revealing extensive tattoos on his
upper body. Police worked to identify the man by comparing images from
the footage to photographs of individuals known to them. During that
process, “the name Ronnie Ramirez” was “provided” or “came up” as a
“possible” match. Police had images of Ramirez from a recent contact with
him, and after comparing those images with the surveillance footage,
officers believed the man in red shorts was Ramirez.

¶4 Police apprehended, questioned, and photographed Ramirez.
He denied shooting the victim and claimed to not recognize the man in red
shorts when shown images from the surveillance video, but admitted he
was “sometimes” in the area where the shooting occurred and “could have
been” there that night.

¶5 The State charged Ramirez with aggravated assault, unlawful
discharge of a firearm, and misconduct involving weapons. At trial,
Ramirez offered evidence he was asleep when the shooting took place and
suggested that another person seen in the surveillance video could have
shot the victim. A jury found Ramirez guilty as charged.1 The superior
court found he had two historical prior felony convictions and sentenced

1The misconduct involving weapons count was severed and decided after
the jury returned verdicts on the other two counts. The jury also found
Ramirez was on felony probation when he committed the crimes.

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STATE v. RAMIREZ
Decision of the Court

him as a category three repetitive offender to concurrent presumptive
prison terms, the longest being 11.25 years.

¶6 Ramirez timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and -4033(A)(1).

DISCUSSION

I. Testimony about police receiving Ramirez’s name as a potential
suspect was not fundamental prejudicial error.

¶7 Ramirez argues the court erred by admitting into evidence an
officer’s testimony that “the name Ronnie Ramirez” was “provided” or
“came up” as a “possible” person matching the suspect in the surveillance
video footage. He contends the testimony constituted inadmissible hearsay
and violated his rights under the Confrontation Clause because it conveyed
to jurors that an informant told police Ramirez was, or might be, the
shooter.

¶8 Hearsay is an out-of-court statement offered “in evidence to
prove the truth of the matter asserted in the statement.” Ariz. R. Evid.
801(c). Hearsay is inadmissible unless it falls within an exception to the
hearsay rule. Ariz. R. Evid. 802. “The Confrontation Clause prohibits the
admission of testimonial hearsay unless the declarant is unavailable and the
defendant had a prior opportunity for cross-examination.” State v. Forde, 233 Ariz. 543, 564, ¶ 80 (2014) (citing Crawford v. Washington, 541 U.S. 36, 68
(2004)). We review the application of the hearsay rule for an abuse of
discretion but consider a confrontation clause challenge de novo. Id. at
¶¶ 77, 79. Because Ramirez did not object to the testimony he now
challenges, he must establish that its admission was fundamental
prejudicial error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018).

¶9 Here, no reversible error occurred. The challenged testimony
was offered in a discussion about police comparing the surveillance footage
with images of individuals known to them, and the testimony did not
reveal how, why, or by whom police received Ramirez’s name as someone
to consider. Thus, his argument that the testimony suggested an
anonymous informant implicated him as the shooter is based on
speculation rather than a reasonable inference. But even assuming the
testimony pointed to the existence of an out-of-court statement that
“directly impacted [the] key factual dispute” of the shooter’s identity or
took away Ramirez’s constitutional right to confront a witness against him,
he has not established that a reasonable jury could have reached a different

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STATE v. RAMIREZ
Decision of the Court

verdict without the testimony. Escalante, 245 Ariz. at 141, 144, ¶¶ 18–19, 29.
He therefore fails to show prejudice.

¶10 The crux of this case was whether Ramirez was the man in red
shorts on the surveillance video. To that end, the State’s evidence and
argument centered around comparing images from the surveillance footage
with known images of Ramirez, and the record shows jurors did just that.
For example, the jury asked for a second computer screen “to compare
evidence” during deliberations.

¶11 During closing argument, the State did not refer to the police
receiving Ramirez’s name. Instead, it relied on the photographic evidence
presented, including images showing that both Ramirez and the man in red
shorts had “Phoenix” tattooed on their chest in lettering of the same size,
placement, and style to prove Ramirez was the man the video. Although
other tattoos captured in the surveillance footage are somewhat blurry, the
placement and outlines of those tattoos correspond to Ramirez’s tattoos—
showing apparent matches, for example, of an “S” on the stomach, a
woman’s image on the back, and images on an upper arm. In addition, the
known images of Ramirez show him wearing the same brand and style of
shoes as the man in red shorts and having a similar build, coloring, and
facial features. Accordingly, even if the challenged testimony had been
excluded, “a reasonable jury could [not] have plausibly and intelligently
returned a different verdict” on this record. Id. at 144, ¶ 31.

II. The superior court erroneously sentenced Ramirez as a category
three repetitive offender.

¶12 The superior court sentenced Ramirez as a category three
repetitive offender after finding he had two historical prior felony
convictions. See A.R.S. § 13-703(C). Ramirez argues he must be resentenced
because there was inadequate proof of the priors used to enhance his
sentence. Although he did not object at sentencing, “[t]he improper use of
a conviction as a historical prior felony conviction for enhancement
purposes constitutes fundamental error.” State v. Avila, 217 Ariz. 97, 99, ¶ 8
(App. 2007); see also State v. Kelly, 190 Ariz. 532, 534, ¶ 5 (1997) (claim that
sentence should have been enhanced based on one, not two, prior
convictions, can be raised for first time on appeal); State v. Stroud, 209 Ariz.
410, 414, ¶¶ 20–21 (2005) (remanding for resentencing where the court
misapplied the law even though the defendant affirmatively contributed to
that misapplication).

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STATE v. RAMIREZ
Decision of the Court

¶13 The State bears the burden of proving the defendant has a
particular prior conviction. State v. McGuire, 113 Ariz. 372, 374 (1976).
Although such proof is generally established through a hearing, the State
may also rely on the defendant’s admissions to meet its burden. See State v.
Morales, 215 Ariz. 59, 61, ¶ 7 (2007); State v. Seymour, 101 Ariz. 498 (1966).
The superior court must find a prior conviction proven by clear and
convincing evidence before enhancing the defendant’s sentence on that
basis. Morales, 215 Ariz. at 61, ¶ 6; State v. Robles, 213 Ariz. 268, 270, ¶ 3 n.1
(App. 2006).

¶14 The State alleged before trial that Ramirez had the following
“historical non-dangerous felony conviction(s)”—a class 6 aggravated
assault and a class 3 threat or intimidation—both charged under case
number CR2009-169632-001 and having the same dates of commission and
conviction. “Convictions for two or more offenses committed on the same
occasion” count “as only one conviction” under the repetitive offender
statute. A.R.S. § 13-703(L). “[T]here is no all-encompassing test for
determining whether two offenses constitute the ‘same occasion.’” State v.
Sheppard, 179 Ariz. 83, 84 (1994). Rather, courts consider a number of factors
with “each determination turn[ing] on the underlying facts of the specific
case.” Id. Here, the State did not formally allege the convictions in CR2009-
169632-001 were “committed on the same occasion.” The State separately
alleged Ramirez had a prior felony conviction for a class 5 attempted
robbery in case number CR2007-005289-001, but clarified that the
conviction was “not a historical prior felony as defined in A.R.S. § 13-105.”

¶15 Before Ramirez testified at trial, the superior court ruled the
State could impeach him with sanitized evidence of the two convictions
from the 2009 case number, see Ariz. R. Evid. 609, but it excluded evidence
of the conviction from the 2007 case number as cumulative, see Ariz. R. Evid.
403. On cross-examination, Ramirez admitted he had two prior felony
convictions “from 2009” and did not dispute the State’s assertion that the
convictions were from CR2009-169632-001.

¶16 After the jury found Ramirez guilty, the State asked the
superior court to sentence him as a category three repetitive offender based
on his trial admissions. The State mistakenly asserted that Ramirez had
admitted convictions in both CR2007-005289-001 and CR2009-169632-001.
Consistent with the State’s position, the court sentenced Ramirez as a
repetitive offender with two historical prior felony convictions—one from
the 2007 case and another from the 2009 case.

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STATE v. RAMIREZ
Decision of the Court

¶17 Ramirez argues he was sentenced as a category three
repetitive offender in error. We agree. Ramirez never admitted—and the
State did not otherwise prove—a conviction in the 2007 case. We reject the
State’s argument that an uncertified “criminal history” prepared by the
probation department in this case proved Ramirez had a historical prior
felony conviction in CR2007-005289-001. See State v. Hurley, 154 Ariz. 124,
132 (1987) (reiterating its holding that “to prove prior convictions, the state
must offer in evidence a certified copy of the documents establishing the
conviction and must prove that the defendant is the person to whom the
documents refer” unless the “defendant admits the prior conviction or the
state can show ‘that its earnest and diligent attempts to procure the
necessary documentation were unsuccessful for reasons beyond its control
and that the evidence introduced in its stead is highly reliable’”) (citation
omitted); cf. State v. Rockwell, 161 Ariz. 5, 14 (1989) (presentence report
insufficient to establish prior conviction).

¶18 Although Ramirez admitted prior convictions in the 2009
case, nothing in the trial record showed whether those two offenses were
“committed on the same occasion” under A.R.S. § 13-703(L). See State v.
Derello, 199 Ariz. 435, 437, ¶ 6 (App. 2001) (remanding for evidentiary
hearing where “trial record was silent on whether [prior] convictions were
committed on the same occasion”). Based on the trial record transmitted
on appeal, Ramirez has established sentencing error. Cf. Avila, 217 Ariz. at
98–100, ¶¶ 4, 10–12 (concluding the defendant failed to establish
fundamental sentencing error where the trial record included certified
copies of the defendant’s convictions and sentences that reasonably showed
the convictions were “historical”). We are unpersuaded by the State’s
argument that Ramirez waived the argument that the offenses in CR2009-
169632-001 were “committed on the same occasion” by not “affirmatively”
arguing that interpretation on appeal. Cf. Morales, 215 Ariz. at 62, ¶ 12
(“reject[ing] the State’s suggestion that a defendant should . . . be required
to show the absence of [an improperly found] prior conviction in order to
establish fundamental error” because doing so would undermine the
State’s burden of proving the conviction).

¶19 The State urges us to find no prejudice from any error, and
therefore no need to remand for resentencing, on the theory that the
superior court could have taken judicial notice of records in CR2007-
005289-001 and CR2009-169632-001 that would establish Ramirez had at
least two historical prior felony convictions. The State proposes that
records in the 2007 case—which are not part of the appellate record—
demonstrate that offense was a historical prior felony conviction even
though the State represented before trial that the conviction was “not

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STATE v. RAMIREZ
Decision of the Court

historical.” The State also contends that a presentence report in the 2009
case—which was not part of the trial record but which the State attached to
its response on appeal—establishes that Ramirez’s crimes in that case were
committed on separate “occasions.” We decline the State’s request based
on the record that is before us. See State v. Schackart, 190 Ariz. 238, 247 (1997)
(declining to take judicial notice, on appellate review, of unauthenticated
documents offered by the State to support the trial court’s prior conviction
finding in lieu of the “customary” practice of “prov[ing] a prior offense . . .
by introducing appropriate documentary evidence in the trial court”); cf.
Morales, 215 Ariz. at 62, ¶ 13 (finding remand for hearing on prior
convictions unnecessary where “evidence conclusively proving [the
defendant’s] prior convictions [was] already in the [trial] record”).

CONCLUSION

¶20 We affirm Ramirez’s convictions but vacate his sentences and
remand for further proceedings consistent with this decision.

AMY M. WOOD • Clerk of the Court
FILED: JT

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