State v. Berumen-Carlos

                                   780

 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
                                

   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; otherwise affirmed. In Case Nos. 17CR51367, 19CR15516, and
18CR06154, affirmed.
Cite as 

 (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, 

, 

, 

 (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, 

, 

 (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 unanimous jury verdicts, we reject that argument for the reasons set forth in State v. Flores Ramos, 

, 

 (2020), and State v. Kincheloe, 

, 

(2020). Accordingly, we reverse and remand defendant’s convictions 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.




   1
       We, therefore, do not discuss the others.