State v. Berumen-Carlos

Submitted February 9; in Case No. 18CR42669, convictions on Counts 1 and 2 reversed and remanded, remanded for resentencing, otherwise affirmed; in Case Nos. 17CR51367, 19CR15516, and 18CR06154, affirmed March 10, 2021

STATE OF OREGON,

Plaintiff-Respondent, v.

JOSE LUIS BERUMEN-CARLOS,

Defendant-Appellant.

Washington County Circuit Court

18CR42669, 17CR51367, 18CR06154, 19CR15516; A171533 (Control), A171534, A171535, A171536

482 P3d 818 Ricardo J. Menchaca, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan G. Howe, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

PER CURIAM In Case No. 18CR42669, convictions on Counts 1 and 2 reversed and remanded; remanded for resentencing; other- wise affirmed. In Case Nos. 17CR51367, 19CR15516, and 18CR06154, affirmed.

Cite as 309 Or App 780 (2021) 781

PER CURIAM In this consolidated appeal, defendant appeals the judgments in four cases; however, his assignments of error relate only to Case No. 18CR42669.1 In that case, defendant was convicted after a jury trial of various felonies, including two counts of attempted first-degree assault with a firearm, ORS 163.185 (Counts 1 and 2). He raises six assignments of error on appeal. We write only to address defendant’s first three assignments of error and reject the others without discussion.

In his first three assignments of error, defendant contends that the trial court plainly erred in instructing the jury that it could return a nonunanimous verdict and in entering a conviction on Counts 1 and 2 based on the jury’s nonunanimous verdict. The state concedes that defendant’s convictions on Counts 1 and 2 must be reversed in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). We agree and accept the concession, and we exercise our discretion to correct the error for the reasons set forth in State v. Ulery, 366 Or 500, 464 P3d 1123 (2020).

As to defendant’s argument that the court’s error in instructing the jury was structural error that requires reversal of his other convictions, which were based on unan- imous jury verdicts, we reject that argument for the rea- sons set forth in State v. Flores Ramos, 367 Or 292, 478 P3d 515 (2020), and State v. Kincheloe, 367 Or 335, 478 P3d 507 (2020). Accordingly, we reverse and remand defendant’s con- victions on Counts 1 and 2, remand for resentencing, and otherwise affirm.

In Case No. 18CR42669, convictions on Counts 1 and 2 reversed and remanded; remanded for resentencing; otherwise affirmed. In Case Nos. 17CR51367, 19CR15516, and 18CR06154, affirmed.