Opinion
1 CA-CR 10-0710
02-28-2012
STATE OF ARIZONA, Appellee, v. RAFAEL ANGEL JARAMILLO, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Adriana M. Zick, Assistant Attorney General Attorneys for Appellee Phoenix Maricopa County Public Defender By Karen M. Noble, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR-2008-030698-001SE
The Honorable Glenn M. Davis, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Adriana M. Zick, Assistant Attorney General
Attorneys for Appellee
Phoenix
Maricopa County Public Defender
By Karen M. Noble, Deputy Public Defender
Attorneys for Appellant
Phoenix THOMPSON, Presiding Judge
¶1 Rafael Angel Jaramillo (defendant) appeals his sentence to twelve years' imprisonment for misconduct involving weapons. Defendant contends the trial court erred when it enhanced his sentence with a second prior felony conviction. For the reasons set forth below, we affirm defendant's sentence.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 A grand jury indicted defendant for misconduct involving weapons, a class 4 felony; unlawful discharge of a firearm, a class 6 felony; theft, a class 6 felony; and criminal damage, a class 2 misdemeanor. The state amended the indictment to allege three historical prior felony convictions and that defendant committed the present offenses while released on bond. Following a three-day trial, the jury found defendant guilty of misconduct involving weapons and criminal damage. During trial, the state proved one prior historical felony conviction. Defendant admitted to the court that he was on release status in a 2007 felony offense and waived a jury finding on that issue. The state then raised the issue of the prior convictions, and the following conversation occurred:
Because defendant challenges only the enhancement of his sentence with the second prior felony conviction, we confine our discussion to the facts and proceedings relevant to that issue.
STATE: On that note, this is the third trial we have been through. Judge Contes did the first two. So, we already have proven the priors to her. Would you take judicial notice of her findings, or do we need to reprove them? We have proved one through DOC Pac-Nev (phonetic). She did a second trial in addition to the first trial . . . .
Would you take judicial notice of her finding, or do we need to prove those two trial verdicts to this trial as well?
THE COURT: I would have to look at the findings.
STATE: Okay.
THE COURT: If they are as to that particular offense in that case or very specific, I probably would have to have them make a separate findings in this case, unless there is a stipulation. Generally, if they are generally found there were prior convictions or prior dates, there will be no reason to have a further hearing on them. We will just take notice of those findings.
¶3 At sentencing, the trial court took judicial notice of two prior historical felony offenses based upon the findings in an August 13, 2010 sentencing minute entry in CR 2008-031235. The minute entry states:
Pursuant to A.R.S. § 13-604, the Court finds that the Defendant has been convicted of the following prior felony offenses:
Armed Robbery, a class 2 non-dangerous felony committed on 07/14/2001 and convicted on 2/15/2002 in CR2001-094509, Maricopa County.
Misconduct Involving Weapons with One Prior Felony Conviction, a class 4 non-dangerous felony committed on 05/27/2007 and convicted on 08/13/2010 in CR2007-134222-001, Maricopa County.
¶4 The court sentenced defendant to concurrent sentences of four months in jail for criminal damage and twelve years imprisonment for weapons misconduct, pursuant to Arizona Revised Statutes (A.R.S.) section 13-703(J) (prescribing presumptive sentences for persons with two or more prior historical felony convictions) and § 13-708(D) (adding two years for committing a felony while on bond). Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-120.21 (2010).
DISCUSSION
¶5 Defendant asserts that the trial court committed error and violated his due process rights by taking judicial notice of his second historical prior felony conviction. Because defendant failed to object, our review is for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶6 Absent an objection, the trial court can take judicial notice of its own records from another case. State v. Rushing, 156 Ariz. 1, 4, 749 P.2d 910, 913 (1988); State v. Valenzuela, 109 Ariz. 109, 110, 506 P.2d 240, 241 (1973); In re Sabino R., 198 Ariz. 424, 425, ¶ 4, 10 P.3d 1211, 1212 (App. 2000) ("It is proper for a court to take judicial notice of its own records or those of another action tried in the same court"). A court may take judicial notice of a fact that is not subject to reasonable dispute because it is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Ariz. R. Evid. 201(b). Therefore, the signed minute entry in CR 2008-031235 was sufficient to prove the existence of defendant's second historical prior felony conviction.
¶7 The CR 2008-031235 minute entry contained detailed information about each prior, including the offense committed, the class designation, cause number, and the dates of commission and conviction. The minute entry constituted the evidence presented against defendant at his hearing; he acquiesced in the evidence, presenting neither objection to the records from the proceedings before Judge Contes, nor presenting argument to controvert such evidence. Defendant complains that the minute entry does not detail exactly how the trial court found the prior convictions or what evidence was presented. The minute entry does not indicate whether defendant admitted the priors nor whether he was advised of the consequences of such admission. However, we presume the regularity of criminal proceedings regarding prior convictions. State v. McCann, 200 Ariz. 27, 31, ¶ 15, 21 P.3d 845, 849 (2001). The state was not required to prove the regularity of the proceedings before Judge Contes, in the absence of evidence showing deficiency.
¶8 Defendant further argues that the state failed to submit positive identification establishing that defendant was the same person who was previously convicted. We hold the CR 2008-031235 minute entry sufficiently identified defendant. Defendant's full name and date of birth in the minute entry match the name and date of birth in the sentencing minute entry in this case. Additionally, defense counsel asked the court to run defendant's conviction in this case concurrently to his sentence in CR 2008-031235, thus acknowledging that defendant was the same person. Defendant then addressed the court stating: "I agree with my attorney. What he said pretty much summed it up." With this sentencing taking place just ten days after that of CR 2008-031235, we find defense counsel's and defendant's acknowledgement dispositive as to his identity. Therefore, we find no fundamental error here.
¶9 Furthermore, defendant would be unable to establish prejudice, even if there were error, because he does not suggest that he was not convicted of the felonies at issue or that the state would have been unable to produce the needed documentary evidence if he had timely objected to the form of evidence presented. State v. Miller, 215 Ariz. 40, 44, ¶ 13, 156 P.3d 1145, 1149 (App. 2007); see State v. Richards, 166 Ariz. 576, 579 n.1, 804 P.2d 109, 112 n.1 (App. 1990) (on remand, court can consider new evidence in resentencing hearing). Thus, defendant has not shown any prejudice from the presumed error.
CONCLUSION
¶10 For the foregoing reasons, we affirm defendant's conviction and sentence.
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JON W. THOMPSON, Presiding Judge
CONCURRING:
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MAURICE PORTLEY, Judge
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JOHN C. GEMMILL, Judge