State v. Pena

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PEDRO HUMBERTO PENA, Appellant.

No. 1 CA-CR 26-0016
FILED 10-13-2026

Appeal from the Superior Court in Maricopa County
No. CR2024-006725-001
The Honorable Kevin B. Wein, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph E. Begun
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant

STATE v. PENA
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Andrew M. Jacobs and Chief Judge Randall M. Howe joined.

K I L E Y, Judge:

¶1 After a jury found Pedro Humberto Pena guilty of aggravated
assault, the superior court sentenced him to an enhanced 11.25-year prison
term, and granted an injunction barring him from ever having contact with
the victim. Pena challenges both the enhanced sentence and the lifetime
injunction. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On appeal, we view the evidence in the light most favorable
to sustaining the jury’s verdict. State v. Thompson, 252 Ariz. 279, 287, ¶ 2 n. 3
(2022) (citation omitted).

¶3 In July 2022, Pena was driving his truck westbound on East
6th Avenue in Mesa when, after stopping at a stop sign, he entered the
intersection at Stapley Road into the path of a southbound motorcycle. The
motorcycle hit the side of Pena’s truck. Its rider was catapulted into the
truck bed, suffering extensive injuries.

¶4 Police responding to the scene spoke to Pena and noticed that
he was “fidgety,” “constantly moving,” and “speaking very rapidly.”
Suspecting that he was under the influence of some drug, they
administered field sobriety tests, which indicated that Pena was impaired.
The officers then arrested Pena. The blood sample they later obtained from
Pena tested positive for methamphetamine.

¶5 A grand jury charged Pena with one count of aggravated
assault, a class 3 felony. The indictment included the allegation that “the
offense charged . . . is a dangerous [offense] because [it] involved the
discharge, use, or threatening exhibition of a motor vehicle, a deadly
weapon or dangerous instrument, in violation of A.R.S. §§ 13–105 and
13–704.” Pena was held without bond based on the State’s allegation that
he committed the charged offense while on pretrial release for an unrelated
drug charge.

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¶6 Pena’s trial began in early December 2025. On the fourth day
of the trial, the State filed an allegation, for sentencing enhancement
purposes, that Pena had six prior felony convictions. The State did not
dispute that the allegation was not timely filed under applicable court rules,
but asserted that the untimely filing did not prejudice Pena. Over Pena’s
objection, the court ruled that it would allow the State to present Pena’s
prior convictions to the jury for sentencing enhancement purposes.

¶7 The jury found Pena guilty of aggravated assault. At the
aggravation phase of the trial, the State presented certified copies of
documents (the “Conviction Records”) to prove four of the six prior
convictions it had alleged. The State presented Arizona Department of
Transportation, Motor Vehicle Division (“MVD”) records that included
Pena’s photograph and reflected his first, last, and middle names, date of
birth, and hair and eye color. The State also presented a “pen pack” from
the Arizona Department of Corrections, Rehabilitation, and Reentry
(“DCRR”).1 The pen pack—which listed Pena’s first, last, and middle
names, date of birth, and hair and eye color—also included documents
reflecting, for each conviction, the nature and date of the offense, the court
case number, the sentence imposed, and the sentencing date. The State then
introduced certified minute entries from the Maricopa County Superior
Court reflecting that a person with Pena’s first name, last name, and middle
name or middle initial was convicted of felonies in four cases with case
numbers, dates of offense, and dates of conviction that corresponded to
convictions listed in the pen pack. Minute entries from two of the cases also
included Pena’s date of birth.

¶8 The jury found that the State had proven Pena’s four prior
convictions. At the sentencing hearing, the court sentenced Pena as a
“category three” repetitive offender to the presumptive term of 11.25 years.
See A.R.S. § 13–703(I), (J). Concluding that the aggravated assault offense
was dangerous, the court also allowed the State to serve Pena with a lifetime
injunction against contacting the victim. A.R.S. § 13–719(A)(1) (“At the time
of sentencing, on the request of the victim or the prosecutor, the superior
court shall issue an injunction that prohibits the defendant from contacting

1 “‘Pen pack’ refers to records kept in compliance with [A.R.S. § 31–221],”

State v. Trujillo, 227 Ariz. 314, 320, ¶ 22 n. 7 (App. 2011), which requires
“[t]he state department of corrections to maintain a master record file” on
each inmate that includes, inter alia, “[a]ll information from the committing
court.” A.R.S. § 31–221(A).

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the victim if the defendant is convicted of,” inter alia, “[a] dangerous offense
as defined in [S]ection 13–105 that is a felony”).

¶9 Pena timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12–120.21, 13–
4031, and 13–4033(A).

DISCUSSION

I. Untimely allegation of prior convictions

¶10 Pena argues that the court erred in sentencing him as a
repetitive offender under Section 13–703. We review the legality of a
sentence de novo. State v. Johnson, 210 Ariz. 438, 440, ¶ 8 (App. 2005) (citation
omitted).

¶11 After convicting Pena of a class 3 felony, the jury found that
he had four prior convictions. The effect of this finding was to significantly
increase his sentencing exposure. Had he been sentenced as a first-time
non-dangerous offender, Pena would have been probation-eligible. See
A.R.S. § 13–703(O). If the court sentenced him to prison, he faced a
minimum, mitigated sentence of 2 years, a maximum, aggravated sentence
of 8.75 years, and a presumptive sentence of 3.5 years. See A.R.S.
§ 13–703(H). Because he was sentenced as a repetitive offender with two or
more prior felony convictions, however, Pena was not probation-eligible
and instead faced a mandatory prison sentence ranging from a minimum,
mitigated term of 7.5 years, a maximum, aggravated term of 25 years, and
a presumptive term—which the court ultimately imposed—of 11.25 years.
A.R.S. § 13–703(J).

¶12 Citing State v. Guytan, 192 Ariz. 514 (App. 1998), Pena argues
that by imposing an enhanced sentence based on an allegation that was not
filed until the trial was underway, the court violated his right “to know
before trial the full extent of the potential punishment that he faced.” Id. at
523, ¶37. In response, the State concedes that the allegation was not timely
filed but contends that the untimely filing entitles Pena to no relief because
he suffered no prejudice as a result.

¶13 Section 13–703(N) generally requires that an allegation of
prior convictions be filed at least “twenty days before the case is actually
tried.” But “strict compliance with [Section] 13-703(N) is not required[.]”
State v. Meza, No. 1 CA–CR 20–0287, 2021 WL 1578151, at *2, ¶ 8 (Ariz. App.
Apr. 22, 2021) (mem. decision) (citing State v. Williams, 144 Ariz. 433, 442
(1985)). If the State files the allegation “fewer than twenty days before the

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case is actually tried,” the prior convictions may still be considered for
sentencing purposes “unless . . . the court finds . . . that the person was in
fact prejudiced by the untimely filing and states the reasons for these
findings.” A.R.S. § 13–703(N).

¶14 A defendant is not prejudiced by the untimely filing of a
sentence-enhancement allegation “provided he is on notice before trial that
the prosecution intends to seek the enhanced punishment provisions of the
statute.” Williams, 144 Ariz. at 442.2 The notice requirement is satisfied if
“[i]t is unmistakable from the record that the [defendant] was aware of the
allegation of prior conviction and its consequences before trial.” State v. Jobe, 157 Ariz. 328, 330 (App. 1988).

¶15 As the State correctly points out, the joint pretrial statement,
which was signed by counsel for both Pena and the State and filed fifty days
before trial, identified the applicable sentencing range as a minimum,
mitigated prison term of 9.5 years, a maximum, aggravated term of 27
years, and a presumptive sentence of 13.25 years. This range corresponds
to the sentencing range applicable to a repetitive offender with two or more
prior convictions, plus an additional two years for committing a felony
while on release for another felony. See A.R.S. §§ 13–703(J), –708(D). The
pretrial statement thus reflects Pena’s awareness of the enhanced
sentencing range he faced if he were convicted at trial and the prior
convictions were proven. See Meza, 2021 WL 1578151, at *3, ¶¶ 11-13
(rejecting defendant’s claim that he was illegally sentenced as a category
three offender due to error in sentencing allegation, and noting that the
sentencing range reflected in the parties’ joint pretrial statement established
that the defendant “knew,” before trial, “he would face sentencing as a
category-three repetitive offender”).

¶16 Because the joint pretrial statement establishes Pena was on
notice of the applicable sentencing range more than a month and a half
before trial, the court did not err by finding he suffered no prejudice from
the untimely filing and therefore allowing the State to rely on the allegation.
A.R.S. § 13–703(N); Jobe, 157 Ariz. at 330.

2 Former A.R.S. § 13-604(K), which was considered by the court
in Williams, was later amended and renumbered as A.R.S. § 13-
703(N). See 2008 Ariz. Sess. Laws, ch. 301, § 28.

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II. Proof of prior convictions

¶17 Pena next argues that the court improperly imposed an
enhanced sentence because the State did not provide sufficient proof of his
prior convictions. We review sufficiency of the evidence claims de novo,
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011), “view[ing] the facts in the light
most favorable to the jury’s verdict[,]” State v. George, 206 Ariz. 436, 440, ¶ 3
(App. 2003). When reviewing claims of insufficient evidence, the court
considers only “whether substantial evidence supports the jury’s
verdict[.]” State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007). “Substantial evidence
has been described as ‘more than a mere scintilla’ of evidence; but it
nonetheless must be evidence that ‘reasonable persons could accept as
sufficient to support a guilty verdict beyond a reasonable doubt.’ ” State v.
Stroud, 209 Ariz. 410, 411-12, ¶ 6 (2005) (quoting State v. Hughes, 189 Ariz.
62, 73 (1997)).

¶18 A defendant convicted of a felony faces an enhanced sentence
if the State proves that a person was previously convicted of a felony and
that the person “convicted in the prior case” and “the defendant in the
present case . . . are the same individual.” State ex rel. Neely v. Sherrill in and
for County of Pima, 168 Ariz. 469, 473 n. 3 (1991); see also State v. Cons, 208
Ariz. 409, 415, ¶ 16 (App. 2004) (“[T]he state must submit positive
identification establishing that the accused is the same person who
previously was convicted [.]”).

¶19 Pena does not dispute that the State proved the fact of the
prior convictions, but claims the State failed to “prove he was the person”
who was convicted in those prior cases.

¶20 To prove Pena’s prior convictions, the State presented
certified MVD records, a DCRR pen pack, and superior court minute
entries. The court admitted all of this documentary evidence. Pena does not
challenge the admissibility of any of these documents. He argues, however,
that the documents were insufficient to establish his prior convictions
because the State presented “[n]o witness [] called to identify [him] as the
same person listed in the certified records[.]”

¶21 At trial, Pena did not argue that the State was required to
present a testifying witness to authenticate or provide foundation for
documentary evidence offered to prove a defendant’s prior convictions.
Accordingly, we review this claim only for fundamental error. State v.
Robles, 213 Ariz. 268, 272, ¶ 12 (App. 2006). Under this standard, we will
grant relief only if the appellant demonstrates that error occurred at trial,

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that the error was fundamental, and that he suffered prejudice as a
result. State v. Riley, 248 Ariz. 154, 170, ¶ 24 (2020). Error is fundamental if
it “went to the foundation of the case,” “took from the defendant a right
essential to his defense,” or “was so egregious that [the defendant] could
not possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142,
¶ 21 (2018).

¶22 Pena offers no authority for his contention that documentary
evidence must be supported by an in-person identification or live testimony
to prove a defendant’s prior convictions. Case law holds to the contrary. See
State v. Solis, 236 Ariz. 242, 248, ¶ 21 (App. 2014) (rejecting challenge to
sufficiency of evidence of prior convictions based on lack of testimonial
evidence and noting that “documentary evidence of prior convictions is
sufficient.” (citation omitted)); State v. Trujillo, 227 Ariz. 314, 320, ¶ 29 (App.
2011) (“[A] pen pack by itself may be sufficient to establish prior
convictions.”); cf. Robles, 213 Ariz. at 269, ¶ 16 (“Although the preferred
method of proving prior convictions for sentence-enhancement purposes is
submission of certified conviction documents bearing the defendant’s
fingerprints, courts may consider other kinds of evidence as well.”).

¶23 In State v. Kinney, 225 Ariz. 550 (App. 2010), Kinney was
charged with weapons misconduct based on the allegation that he
possessed a firearm which, as a convicted felon, he was not allowed to have.
Id. at 553, 557, ¶¶ 4, 22. At trial, the State proved his prior felony by
presenting “a document from federal court in Tucson showing that a person
with Kinney’s name and date of birth had been . . . convicted” of armed
robbery, as well as evidence that Kinney admitted the prior conviction to
the officer who initially detained him. Id. at 557, ¶ 23. Following his
conviction, Kinney challenged, on appeal, the sufficiency of the evidence
presented to establish his status as a convicted felon. Id. The Court agreed
with Kinney that his admission to the officer was inadmissible because it
was the product of an unduly prolonged, and therefore unconstitutional,
detention. Id. at 556-57, ¶¶ 18-19. The Court rejected Kinney’s argument,
however, that his conviction for weapons misconduct should be vacated
because the federal court document, “standing alone, was insufficient
evidence of his conviction.” Id. at 557-58, ¶¶ 23, 26. Citing case law from
other jurisdictions holding that “a name and date of birth are sufficient
evidence to prove identity,” the Kinney court held that “[i]n the absence of
any evidence casting doubt on the identification,” the fact that the federal
court document “contained Kinney’s name and birth date” was sufficient
evidence from which the jury could find that he was a convicted felon. Id.
at 558, ¶¶ 25-26; accord State v. Eaton, No. 1 CA-CR 16-0799, 2017 WL
4365969, at *4, ¶ 17 (Ariz. App. Oct. 3, 2017) (mem. decision) (rejecting

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defendant’s challenge to sufficiency of evidence used to prove prior
convictions because (1) documents reflecting prior convictions contained
defendant’s name and date of birth, (2) some of the documents contained a
Social Security number that matched the defendant’s Social Security
number as shown in court file, and (3) the defendant “never claimed . . .
that he is not the person in the documents”).

¶24 Here, the State presented evidence that established Pena’s full
name and date of birth, along with evidence showing that a person with
Pena’s full name and date of birth was convicted of felonies for which he
was sentenced to prison. The Conviction Records showed, for example, that
on December 9, 1985, “Pedro H. Pena,” whose date of birth matches Pena’s,
was convicted in Maricopa County Superior Court Case No. CR 150633 of
driving while intoxicated (“D.W.I.”) with two prior D.W.I. convictions, a
class 5 felony in violation of former A.R.S. § 28–692(A) (now renumbered
A.R.S. § 28–1381(A)(1)), and was sentenced to a 2.5-year prison term.
Likewise, the Conviction Records showed that on February 15, 1994, “Pedro
H. Pena”, whose date of birth matches Pena’s, was convicted in Maricopa
County Superior Court Case No. CR 94-90067 of aggravated driving or
actual physical control while under the influence of intoxicating liquor or
drugs, a class 4 felony in violation of former A.R.S. § 28–692(A)(1) (now
A.R.S. § 28–1383(A)(1)), and was sentenced to a 5-year prison term. These
two prior felony convictions alone were enough to expose Pena to the
sentencing range applicable to a category three offender. See A.R.S. § 13–
703(C) (providing that a category three repetitive offender is one who, inter
alia, “has two or more historical prior felony convictions”). And nothing in
the record indicates Pena has ever claimed that he is not the person who
was convicted in those prior cases. Pursuant to Kinney, we hold that the
documentary evidence presented was sufficient to establish at least two of
Pena’s prior convictions, and therefore that the court did not commit
fundamental error by sentencing him as a category three offender. See
Kinney, 225 Ariz. at 558, ¶ 26.

III. Dangerousness

¶25 Pena argues that the court erred in issuing a lifetime
injunction against contact with the victim under A.R.S. § 13–719(A)(1)
because the jury made no finding that the offense was dangerous under
A.R.S. § 13–105. Because Pena did not raise this objection in the superior
court, we review only for fundamental error. Robles, 213 Ariz. at 271, ¶ 12.

¶26 As relevant here, a “dangerous offense” is “an offense
involving the discharge, use or threatening exhibition of a deadly weapon

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or dangerous instrument[.]” A.R.S. § 13-105(13). “Generally, an allegation
of dangerousness must be found by a jury.” State v. Larin, 233 Ariz. 202, 212,
¶ 38 (App. 2013). However, a jury need not make a separate finding of
dangerousness when the finding is “inherent in the crime.” State v. Gatliff, 209 Ariz. 362, 366, ¶ 18 (App. 2004).

¶27 Here, “dangerousness” was inherent in the charged offense.
The jurors were instructed that to find Pena guilty of aggravated assault,
they must find that Pena “cause[d] a physical injury to [the victim]” while
“using a motor vehicle” as a “deadly weapon or dangerous instrument.”
See A.R.S. § 13–1204(A)(2). By convicting Pena, the jurors necessarily found
that he had committed an offense “involving the . . . use . . . of a deadly
weapon or dangerous instrument[.]” A.R.S. § 13–105(13); see also State v.
Suniga, 145 Ariz. 389, 396 (App. 1985) (finding of dangerousness “implicit”
in aggravated assault conviction when “[t]he jury was instructed that the
use of a deadly weapon or dangerous instrument was one of the elements
of aggravated assault”).

¶28 The court did not err in imposing a lifetime injunction against
contacting the victim based on its determination that the crime of which
Pena was convicted was a dangerous offense under A.R.S. § 13–105.

CONCLUSION

¶29 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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