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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ANGEL CASAREZ TORRES, Appellant.

                             No. 1 CA-CR 15-0840
                               FILED 2-14-2017


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201500399
              The Honorable Lawrence C. Kenworthy, Judge

  CONVICTION MODIFIED; REMANDED FOR RESENTENCING


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
                             STATE v. TORRES
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1           Angel Torres appeals his felony conviction and sentence for
aggravated domestic violence. For the following reasons, we modify
Torres’ conviction to misdemeanor assault per domestic violence and
remand for resentencing.

                FACTS AND PROCEDURAL HISTORY1

¶2            Torres and his girlfriend (“Victim”) attended their child’s
birthday party and later went to a bar. After leaving the bar, Torres began
yelling at Victim in the car and later started hitting her. Victim
surreptitiously dialed 911, believing the operator could track her phone
and hear what was happening. At some point, the 911 call disconnected.
The 911 operator called back, and Victim pretended she was speaking to
her mother. Officers were dispatched to Victim’s home, where they
arrested Torres.

¶3             Torres was charged with one count of aggravated domestic
violence, a class 5 felony. After a three-day trial, the jury returned a guilty
verdict, finding that Torres had two prior domestic violence convictions.
Torres timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 13-4033.

                               DISCUSSION

¶4           Torres contends the State failed to prove the existence of two
prior domestic violence offenses within 84 months of the charged offense.
The State concedes error and also concedes the error is fundamental. We
agree.

1      “We view the facts in the light most favorable to sustaining the
conviction.” State v. Newnom, 208 Ariz. 507, 507, ¶ 2 (App. 2004).




                                      2
                             STATE v. TORRES
                            Decision of the Court

¶5            As charged here, a person is guilty of aggravated domestic
violence if “within a period of eighty-four months [he] commits a third or
subsequent violation of a domestic violence offense.” A.R.S. § 13-
3601.02(A). “The dates of the commission of the offenses are the
determining factor in applying the eighty-four month provision . . . .”
A.R.S. § 13-3601.02(D). Because the offense commission dates are
elements of the charged offense, the jury must hear the evidence “to
decide a defendant’s guilt.” State v. Newnom, 208 Ariz. 507, 508, ¶¶ 4–5
(App. 2004).

¶6            At trial, the State proved only that Torres had two prior
domestic violence convictions within the statutory timeframe. And as the
State concedes, the jury instructions misstated the elements of the charged
offense, which constitutes fundamental error. See State v. Kemper, 229
Ariz. 105, 107, ¶¶ 5–6 (App. 2011) (jury instructions that relieve State of its
burden of proving elements of an offense constitute fundamental error).
The court instructed the jury:

       The crime of aggravated domestic violence requires proof
       that, one, the Defendant intentionally or knowingly caused
       physical injury to another person, and number two, the
       Defendant and the victim have a child in common, or the
       Defendant and the victim resided in the same household at
       that time or previously, and, three, the Defendant has been
       convicted of two or more domestic violence offenses, and,
       number four, two of the prior domestic violence convictions
       occurred within 84 months of the date of the current offense.

(Emphasis added.) By referring to the date of the convictions, rather than
the dates the prior offenses were committed, the jury instruction misstated
the law.

¶7            Both Torres and the State agree we should modify Torres’
conviction from aggravated domestic violence to misdemeanor assault per
domestic violence. We agree. See State v. Gray, 227 Ariz. 424, 429, ¶ 18
(App. 2011) (modifying conviction for tampering with a witness to
attempted tampering with a witness); see also State v. Hunter, 102 Ariz. 472,
477–78 (1967) (modifying conviction to second-degree burglary because
insufficient evidence established elements of first-degree burglary). The
parties disagree about whether Torres should be sentenced as a first-time
offender. We leave resolution of that issue to the superior court on
remand.




                                      3
                          STATE v. TORRES
                         Decision of the Court

                             CONCLUSION

¶8           For the reasons stated, we modify Torres’s conviction from
aggravated domestic violence to misdemeanor assault per domestic
violence pursuant to A.R.S. §§ 13-1203(A)(1) and -3601 and remand to the
superior court for resentencing.




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




                                      4
