State v. Bueno

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

RAMON LUNA BUENO, Petitioner.

No. 1 CA-CR 23-0575 PRPC

FILED 11-07-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2014-149887-001
The Honorable David W. Garbarino, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

Brown & Little PLC, Chandler
By Matthew O. Brown
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Vice Chief Judge Randall M. Howe
joined.

P E R K I N S, Judge:

¶1 Ramon Bueno petitions this Court for review from the
dismissal of his petition for post-conviction relief filed under Arizona Rule
of Criminal Procedure 32. We have considered the petition for review and,
for the reasons stated, grant review and deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 A jury found Bueno guilty of three counts of aggravated
assault, three counts of threatening or intimidating, and one count of drive-
by shooting, based on evidence he shot at three police officers during a
traffic stop. On direct appeal, we vacated and remanded the threatening or
intimidating counts for resentencing but otherwise affirmed. State v. Bueno,
1 CA-CR 20-0085, 2021 WL 1038170 (Ariz. App. Mar. 18, 2021) (mem.
decision).

¶3 Bueno timely requested post-conviction relief, arguing his
trial attorney provided ineffective assistance by not calling a ballistics
expert to testify for the defense. See Ariz. R. Crim. P. 32.1(a).

¶4 The superior court summarily dismissed his petition. We
grant review. See A.R.S. § 13-4239; Ariz. R. Crim. P. 32.16.

DISCUSSION

¶5 We review the dismissal of a petition for post-conviction
relief for an abuse of discretion, “which occurs if the court makes an error
of law or fails to adequately investigate the facts necessary to support its
decision.” State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021). To state a colorable
claim of ineffective assistance of counsel, Bueno “must demonstrate that
counsel’s conduct fell below an objective standard of reasonableness and
that he was prejudiced thereby.” Id. at ¶ 8.

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Decision of the Court

¶6 The trial evidence showed that at the time of the traffic stop,
Bueno and another man were sitting in the back seat of a vehicle driven by
Lauren (a pseudonym). Bueno sat behind Lauren, and his window was
open. As an officer questioned him from that side of the car, Bueno shot the
officer in the face. A shootout then ensued between Bueno and two other
officers before Bueno commanded Lauren to drive away. After police
recovered Lauren’s vehicle, they found a spent .357 Magnum shell casing
in the pocket of the door where Bueno was sitting. Police found unfired
ammunition of the same type in the area where Bueno and the other male
passenger exited the vehicle. The State submitted to jurors that Bueno shot
at the officers with a .357 Magnum caliber weapon. Bueno argued that the
State could not prove he was the shooter and there was strong evidence the
shooter was the other male passenger.

¶7 Before trial, defense counsel retained a ballistics expert to
review evidence and report his conclusions. Counsel identified the expert
as a possible witness but decided not to call him at trial.

¶8 Bueno argues his attorney’s decision not to call the expert was
deficient and prejudicial because the expert would have bolstered his
defense. In support of his argument, Bueno points to the expert’s opinion
that (1) the wounded officer could have been hit by a bullet from a .38
caliber weapon carried by one of the other officers, (2) the nature of the
officer’s injury suggested it was more likely caused by a .38 caliber weapon
than a .357 Magnum caliber weapon, and (3) Lauren’s description of the
gunshot sound was inconsistent with the firing of a .357 Magnum caliber
weapon.

¶9 The superior court did not abuse its discretion by dismissing
Bueno’s petition because Bueno has not established a colorable claim of
ineffective assistance. “Whether or not to call a witness is a strategic
decision” that will not support an ineffective assistance claim unless the
defendant can show the decision “was not a tactical one but, rather,
revealed ineptitude, inexperience or lack of preparation.” State v. Goswick, 142 Ariz. 582, 586 (1984). Bueno argues “it is apparent from the facts
presented at trial here that only an unreasonable investigation into this case
or perhaps pure laziness would result in a lawyer not calling [the ballistics
expert] to testify.” But Bueno does not point to any such facts.

¶10 And defense counsel’s decision not to call the ballistics expert
as a witness, viewed with appropriate deference, see Strickland v.
Washington, 466 U.S. 668, 689–90 (1984), reflects a reasonable tactical choice.
The expert’s theory that the wounded officer was shot by another officer

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would have conflicted with the defense’s chosen strategy to place blame on
the other back-seat passenger. A defense attorney is permitted to abandon
alternative theories of a case. Bigger, 251 Ariz. at 409, ¶ 17. And “strategic
choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.

¶11 Bueno also has not shown “a reasonable probability” that the
outcome at trial would have been different if defense counsel had called the
ballistics expert to testify. See id. at 694; Bigger, 251 Ariz. at 407, ¶ 9.
Witnesses to the shooting consistently testified that the wounded officer
was hit by gunfire coming from the back seat of Lauren’s vehicle, directly
behind the driver. And other testimony established that Bueno occupied
the seat the gunfire came from. Jurors thus rejected Bueno’s argument that
the shooter could have been the other back-seat passenger. On this record,
Bueno has not shown a reasonable probability that jurors would have
credited the expert’s opinion that the wounded officer was shot by another
officer and returned a different verdict. See Strickland, 466 U.S. at 669 (“A
reasonable probability is a probability sufficient to undermine confidence
in the outcome.”).

CONCLUSION

¶12 Although we grant review, we deny relief.

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

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