State v. Nunez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANDRES ALEJANDRO NUNEZ, Appellant.

No. 1 CA-CR 22-0435

FILED 09-19-2024

Appeal from the Superior Court in Maricopa County
No. CR2020-104251-002
The Honorable Monica S. Garfinkel, Judge Pro Tempore

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
 STATE v. NUNEZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Chief Judge David B. Gass joined.

B R O W N, Judge:

¶1 This appeal is presented to us pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. The defendant, Andres Nunez, was given the
opportunity to file a supplemental brief but did not do so.

¶2 Our obligation is to review the entire record for reversible
error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing the
evidence in the light most favorable to sustaining the conviction and
resolving all reasonable inferences against Nunez, State v. Guerra, 161 Ariz.
289, 293 (1989). After our initial review of the record, we requested
supplemental briefing under Penson v. Ohio, 488 U.S. 75 (1988) on whether
the trial court committed fundamental error resulting in prejudice by
considering Nunez’s failure to admit guilt at sentencing.

BACKGROUND

¶3 On the evening of January 27, 2020, Allie was driving
northbound on Cherry Road in a rented SUV; Rachel was a passenger. 1
Meanwhile, Nunez was driving a sedan eastbound on Rio Salado Parkway
with his brother Arturo and Arturo’s girlfriend Maria in the sedan. When
Allie stopped at a stop sign and inched forward to turn right onto Rio
Salado, Nunez slowed down and maneuvered around Allie’s SUV.

¶4 Immediately, Arturo and Maria started yelling profanities
and racial slurs at Allie and Rachel. Rachel proceeded to turn right onto
Rio Salado and attempted to pass the sedan multiple times; however, each
time she tried Nunez swerved into her lane, forcing her SUV into oncoming
traffic. Eventually, both vehicles came to a stop at the crowded intersection
of Rio Salado and Country Club Drive with the SUV a few feet behind the
sedan.

1 We use pseudonyms to protect the victims’ privacy.

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¶5 Arturo exited the sedan and began banging on the hood of the
SUV. Soon after, all occupants exited the vehicles and continued using
profanity and racial slurs. This quickly escalated into a physical encounter
between Rachel and Arturo on the sidewalk. Arturo chest bumped Rachel,
who responded by hitting Arturo in the face; finally, Arturo pushed Rachel
to the ground, ending their encounter. Allie then saw that Nunez had a gun
and she decided to leave. She threw Arturo to the ground and frantically
ran away, making it into the driver’s seat of the SUV.

¶6 Allie drove in reverse a short distance, then shifted into drive
and turned into the entrance of a commercial parking lot, striking Arturo,
who had gotten up and was running toward the sedan. Arturo was
knocked to the ground, and Allie kept driving into the parking lot. A few
seconds later, as Allie drove through the parking lot toward Country Club
Drive, Nunez fired at least 11 shots at the SUV. Allie was shot three times
but managed to survive.

¶7 The State indicted Nunez for (1) discharge of a firearm at a
structure, a class 3 dangerous felony; (2) aggravated assault, a class 3
dangerous felony; and (3) disorderly conduct, a class 6 dangerous felony.

¶8 At trial, the State called 14 witnesses, including Allie, Rachel,
and two other eyewitnesses, who all recounted their version of events.
Police officers who responded to the scene testified to finding a gun and 11
shell casings. A forensics expert testified that Nunez’s DNA was found on
the gun, and a ballistics expert testified that the shell casings matched the
gun and the pattern of bullet holes in the SUV indicated that it was moving
away from the shooter as the shots were fired. Finally, the State played a
recorded interview with Nunez from the night of the shooting.

¶9 When the State rested, Nunez moved for judgment of
acquittal, which the court denied. Nunez testified, admitting he fired the
gun at the SUV 11 times even though it was not coming towards him, he
knew the risks of firing a gun at a moving vehicle, and he was not surprised
that Allie was shot. He agreed that firing multiple gunshots in such a
crowded place would put people in fear. However, Nunez claimed that he
fired the shots in defense of himself and his brother, fearing the SUV would
turn around and harm them. He also claimed that he was aiming at the
front tire and engine to disable the SUV, but his aim was off because of a
recent surgery on one of his fingers. The jury was given self-defense
instructions as Nunez requested.

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¶10 After closing arguments and jury deliberations, Nunez was
found guilty on all three counts. After an aggravation hearing, the jury
found the following four aggravating circumstances were present for each
offense: (1) the offense was dangerous; (2) the offense caused physical,
emotional, or financial harm to the victim; (3) Nunez had the opportunity
to walk away from a confrontation; and (4) Nunez did not seek help for the
victim.

¶11 The trial court then ordered a presentence report. At
sentencing, the court explained it had reviewed the presentence report,
which “calls for concurrent presumptive terms.” The court also noted that
Nunez had “no prior felony history and just a single misdemeanor
conviction from 2019.” After hearing from the victims, the prosecutor, a
few of Nunez’s friends and family members, and Nunez himself, the court
stated:

The jury found several aggravating factors which
justifies the Court to impose a greater-than-presumptive
sentence. But the Court needs to weigh the aggravating
factors that the jury found with the mitigating factors
presented to the Court. The Court has given this a lot of
thought. No matter what I sentence you to, it’s not going to
undo what happened. But there does need to be an
appropriate punishment for your actions. Even standing here
today, I don’t think you recognize that your actions were wrongful
or that you should not have done what you did. The aggravating
factors are basically, even though they were found separately
from -- by the jury, they are fairly inherent in the charges
themselves, although the aggravated assault and all these
charges could have been found without the injury. So the
serious physical injury that was caused the Court finds to be
most significant of the aggravating factors.

With regard to the mitigating factors, your lack of
felony criminal history, your family support, your intention
in trying to defend your brother, your stable employment are
mitigating factors in this case.

So based on the totality of the circumstances and the
recommendation of the probation department, I do think that
the aggravating and mitigating factors basically balance each
other out with a slight lean towards the aggravating factors.

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(Emphasis added.) The court then imposed the following sentences: (1) for
discharging a firearm at a structure, a slightly aggravated sentence of 8
years (7.5 years presumptive); (2) for aggravated assault, a slightly
aggravated sentence of 8 years (7.5 years presumptive); and (3) for
disorderly conduct, the presumptive sentence of 2.25 years. All three
sentences were ordered to run concurrently, with 677 days of presentence
incarceration credit. Nunez timely appealed, and we have jurisdiction
under A.R.S. § 12-120.21(A)(1).

DISCUSSION

¶12 After a careful review of the record, we conclude the trial
court’s consideration in sentencing of Nunez’s failure to admit guilt was
reversible error, but that there was no other error in this proceeding. Clark,
196 Ariz. at 541, ¶ 50. The record reflects Nunez was present and
represented by counsel at all critical stages of the proceedings against him.
The evidence presented supports the convictions, and the sentences
imposed fall within the range permitted by law. Except for the sentencing
error discussed below, as far as the record reveals, these proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure
and Nunez’s constitutional and statutory rights.

¶13 In his supplemental Penson brief, Nunez argues the trial
court’s improper consideration of his failure to admit guilt constitutes
fundamental, prejudicial error and thus resentencing is required. The State
counters that the court only referenced Nunez’s failure to admit guilt “in
passing,” and it was not considered in the sentencing decision, but even if
it was, Nunez has not shown he was prejudiced.

¶14 Because Nunez did not raise this issue with the trial court, we
will not remand for resentencing “unless the court committed error that
was both fundamental and prejudicial.” State v. Escalante, 245 Ariz. 135,
140, ¶ 12 (2018). “A defendant establishes fundamental error by showing
that (1) the error went to the foundation of the case, (2) the error took from
the defendant a right essential to his defense, or (3) the error was so
egregious that he could not possibly have received a fair trial.” Id. at 142,
¶ 21.

¶15 As explained by our supreme court, a “defendant is guilty
when convicted and if he chooses not to publicly admit his guilt, that is
irrelevant to a sentencing determination.” State v. Carriger, 143 Ariz. 142,
162 (1984). However, “[i]f a defendant admits his guilt, [it] can be used as
additional mitigating evidence, provided the defendant is truly remorseful

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for his crime.” Id. A trial court’s reliance on a defendant’s failure to publicly
admit guilt “to aggravate” the sentence imposed “offends the Fifth
Amendment privilege against self-incrimination.” State v. Hardwick, 183
Ariz. 649, 656 (App. 1995).

¶16 Here, the trial court told Nunez that she did not believe he
recognized his “actions were wrongful” or that he “should not have done”
what he did. In doing so, the court considered his failure to admit guilt as
part of her sentencing determination, which constitutes fundamental error.
See State v. Trujillo, 227 Ariz. 314, 318, ¶ 15 (App. 2011) (“considering
[defendant’s] lack of remorse and his failure to admit guilt” at sentencing
“deprived him of a right essential to his defense” and thus constituted
fundamental error). The State suggests the court’s comment was “merely a
passing statement,” recognizing that Nunez seemed sincere in believing he
acted in self-defense. Granted, the trial court’s brief reference to Nunez’s
failure to admit guilt is not like the repeated references in Trujillo. See id.,
at 318, ¶ 14. But Nunez’s right not to be penalized for declining to admit
guilt does not evaporate simply because the court did not repeatedly
discuss it. See State v. Mendoza, 248 Ariz. 6, 20–21, ¶ 34 (App. 2019)
(recognizing that a court’s broad discretion in the sentencing sphere
“cannot override the constitutional imperative that a defendant cannot be
punished ‘because he has done what the law plainly allows him to do’”).

¶17 To establish reversible error, however, Nunez must show that
the error resulted in prejudice. See Escalante, 245 Ariz. at 142, ¶ 21.
Specifically, he must show that a reasonable judge, without considering his
failure to admit guilt, “could have” imposed a lighter sentence. See id. at
144, ¶ 29 (“[The defendant] must show that without this [error], ‘a
reasonable jury . . . could have reached a different [result].’”) (citing State v.
Henderson, 210 Ariz. 561, 569, ¶ 27 (2005)); Trujillo, 227 Ariz. at 318, ¶ 16
(noting that defendant must show that “the court could have reasonably
imposed a lighter sentence” had it not considered defendant’s lack of
remorse) (emphasis added).

¶18 In applying the “could have” inquiry, we must exclude
“imaginative guesswork.” Escalante, 245 Ariz. at 144, ¶ 31. “The standard
is an objective one, and requires a showing that without the error, a
reasonable [judge] could have plausibly and intelligently [imposed a lighter
sentence].” Id. “The showing a defendant must make varies, depending
upon the type of error that occurred and the facts of a particular case.”
Henderson, 210 Ariz. at 568, ¶ 26. In applying the “could have” standard,
we examine the entire sentencing record, including the parties’ arguments.
See Escalante, 245 Ariz. at 144, ¶ 31.

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 STATE v. NUNEZ
Decision of the Court

¶19 The presentence report recommended presumptive
sentences, and the court found that the aggravating and mitigating factors
“basically balance each other out with a slight lean towards the aggravating
factors.” Accordingly, Nunez has met his burden of establishing prejudice
because, without the improper reference to his failure to admit guilt, a
reasonable judge could have plausibly and intelligently imposed a lighter
sentence. See Escalante, 245 Ariz. at 144, ¶ 34; Trujillo, 227 Ariz. at 319, ¶ 21.

CONCLUSION

¶20 We affirm Nunez’s convictions, but we remand for
resentencing. As to the convictions, defense counsel has no further
obligations unless counsel finds an issue that may be appropriately
submitted to the Arizona Supreme Court by petition for review. State v.
Shattuck, 140 Ariz. 582, 584–85 (1984). Nunez has 30 days from the date of
this decision to proceed, if he wishes, with a pro per motion for
reconsideration or petition for review based on our affirmance of his
convictions for discharge of a firearm at a structure, aggravated assault, and
disorderly conduct.

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

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