State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0255

State of Minnesota,
Respondent,

vs.

Angel Daniel Ramirez,
Appellant.

Filed January 8, 2018
Affirmed
Peterson, Judge

Washington County District Court
File No. 82-CR-14-4091

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, C hief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal challenging his sentence for second-degree murder, appellant argues
that the district court erred by imposing a 432-month prison sentence, a greater-than-double

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upward departure, because the sentence was based on conduct from separate behavioral
incidents and on evidence relating to first -degree murder charges that were dismissed as
part of the plea agreement. We affirm.
FACTS
Appellant Angel Daniel Ramirez was charged with one count of unintentional
felony murder in the death of his one-year-old daughter A.A.R. After further investigation
resulted in the discovery of evidence that Ramirez had engaged in a past pattern of child
abuse against A.A.R. and that he committed the murder under circumstances manifesting
an extreme indifference to human life, a grand jury indicted him on two counts of first-
degree murder. Ramirez pleaded guilty to unintentional felony murder.
In the morning on March 15, 2014, A.A.R.’s mother, B.A.A., called 911 when she
checked on A.A.R. and realized that A.A.R. was not breathing. Responding officers and
paramedics were unable to revive A.A.R. A.A.R. had bruising around her left eye and
petechiae in her eye from an injury that occurred on March 12, 2014, when Ramirez was
alone with A.A.R. Ramirez initially claimed that the injury occurred when A.A.R., who
was learning to walk, fell and hit her head on a wooden door frame.
At the plea hearing, Ramirez testified that the injury to A.A.R.’s eye occurred when
he threw a sippy cup at her. Ramirez threw the cup because A.A.R. was crying, and he
became frustrated. The i njury became worse over the next two days, and, on March 14,
2014, B.A.A. and Ramirez’s grandmother brought A.A.R. to urgent care. The urgent-care
doctor recommended that they bring A.A.R. to the hospital to have the eye evaluated, but
they brought her ho me without doing so. B.A.A. wanted to bring A.A.R. to the hospital,

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but Ramirez did not think it was necessary. They got into an argument over it, and A.A.R.
did not go to the hospital.
A.A.R., B.A.A., and Ramirez all slept in the same room. At about 9 :00 p.m. on
March 14, Ramirez was awakened by A.A.R. crying. B.A.A. was not in the room. Ramirez
went over to A.A.R.’s crib and tried to rock her to sleep, but A.A.R. continued crying.
Ramirez, still frustrated over his argument with B.A.A., hit A.A.R. in the stomach. A.A.R.
continued crying, and Ramirez knew that he had injured her.
Ramirez tried to go back to sleep. Within 20 minutes, Ramirez again became
frustrated with A.A.R.’s crying, and he walked over to the crib and hit A.A.R. in the back
of the head. A.A.R. continued crying, and Ramirez gave her a bottle. Ramirez then went
back to sleep and did not check on A.A.R. during the rest of the night. In the morning,
Ramirez got up and went to work without checking on A.A.R.
An autopsy indicated that the cause of A.A.R.’s death was multiple blunt -force
traumatic injuries and that the manner of death was homicide. She had significant bruising
on all sides of her head and swelling of the brain. She had a scratch on her neck and bruises
on her trunk, arms, and both sides of her jaw. She did not have bruises on her hands, knees,
shins, or elbows consistent with falling. There was internal bleeding in the small bowel
and inner part of the stomach.
As part of the plea agreement, the parties agreed that Ramirez would receive an
executed 432 -month prison term, which was 2.4 times longer than the presumptive
sentence. Ramirez admitted that A.A.R. was particularly vulnerable due to her young age
and his abuse of her over an extended period. He also ad mitted that he acted with

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particularly cruelty by continuing to abuse her when he knew that she was already injured.
The district court sentenced Ramirez to the agreed -on term of 432 months and found that
the departure was justified by A.A.R.’s particular vulnerability and Ramirez’s particular
cruelty.
The district court stated:
[A.A.R.] was 13 months old. She was a baby. Just learning
how to walk . . . . Probably just learning how to speak a few
words. There was a relationship here, a father/daught er
relationship. A relationship that made her particularly
vulnerable to the egregious and terrible acts of a father who
would beat his own child.

There was a relationship of trust, of accessibility, and
vulnerability. There was a relationship of compl ete
dependence. This was a child who couldn’t fight back. A child
who couldn’t even alert someone else that in the quiet of time
with just her father, that her father was treating her in such an
egregious fashion.

That made her particularly vulnerabl e, and that
particular vulnerability, because of her age, because of her
dependence, because of your accessibility to her in times when
no one else is there, and because of her particular vulnerability
due to her age, it is a severe factor, and that has be en proven
beyond a reasonable doubt.

I am also going to find that there was particular
cruelty. . . . Th is child wasn’t just struck once in anger or
something out of frustration. This child was beaten to death.
Multiple times, this child was struck in the head on multiple
occasions. The bruises that are revealed when the scalp is
retracted back account of t hat. The swelling of her brain
accounts for that. The bruises around her body, it’s not just
one. There’s multiple bruises. The bruises that were in her
abdomen where she hemorrhaged internally because she was
struck so hard . . . by Mr. Ramirez’s fist.

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Mr. Ramirez, you prevented her from even getting care
so that she could possibly be seen by a doctor. Just left her
there to die after inflicting severe injuries on her.

The district court issued a written order reiterating its statements at the sen tencing
hearing. The court also stated:
12. When [Ramirez] put [A.A.R.] to bed that night, he
was angry. He was angry because [A.A.R.’s] mother wanted
to take her to the hospital. He reacted by punching [A.A.R.] in
the stomach, causing her extreme pain and injury, and making
it difficult for her to breathe.

13. He admitted to law enforcement and to this Court
that he used his knuckles when he punched her in the stomach.
We now know, from the evidence that has been presented, that
he hit [A.A.R.] with such force that he caused internal injuries.

14. A short while later, [A.A.R.] woke up and began to
cry. [Ramirez] turned her over, and punched her in the back of
the head. This, too, caused her extreme pain and injury. We
now know that he hit [A.A.R.] so hard that he caused traumatic
injury to her brain. [A.A.R.] was already in a diminished state
due to the earlier punch in the stomach that she had received
from [Ramirez]. This gratuitous infliction of pain and injury
makes [Ramirez’s] actions against [A.A.R.] severe.

. . . .

16. Those bruises to [A.A.R.’s] scalp were not
superficial. When the first layer of [A.A.R.’s] scalp was bent
back during the autopsy, it showed more bruising, deeper
bruising on the underside of her scalp, and that bruising went
all the way through a couple of spots in her brain. This
demonstrates the degree of force with which [Ramirez] hit
[A.A.R.] . . .

17. After [Ramirez] hit [A.A.R.] on the night she died,
he simply left her there in her crib. He didn’t go back to check
on her – not that night, nor in the morning before he went to
work. He walked out the door that morning without

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demonstrating even the slightest concern as to whether his
daughter was injured, or in pain, or even still alive.

This appeal followed sentencing.
D E C I S I O N
This court reviews a more -than-double sentencing departure for an abuse of
discretion. Dillon v. State, 781 N.W.2d 588, 598 (Minn. App. 2010), review denied (Minn.
July 20, 2010). In doing so, this court reviews de novo “whether a valid reason to depart
exists” and “whether the valid departure reasons are severe, so as to justify a sentence that
runs longer than twice the presumptive sentence.” Id. “A district court abuses its discretion
if it relies on invalid bases either to depart or to extend the sentence beyond double its
presumptive length.” Id. Appellate review of a sentence longer than twice the presumptive
sentence is “less deferential” than the “great deference” acco rded a sentence up to twice
the presumptive length. Id.
The district court relied on particular vulnerability and particular cruelty to support
the sentencing departure. The first aggravating factor exists when the victim is
“particularly vulnerable due to age, infirmity, or reduced physical or mental capacity,
which was known or should have been known to the offender .” Minn. Sent. Guidelines
2.D.2.b.(1) (2012). As the district court found, A.A.R. was particularly vulnerable due to
her age and the father/daughter relationship between her and Ramirez.
The second aggravating factor exists when “[t]he victim was treated with particular
cruelty for which the individual offender should be held responsible.” Minn. Sent.
Guidelines 2.D.2.b.(2) (2012). “Particular cruelty involves the gratuitous infliction of pain

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and cruelty of a kind not usually associated with the commission of the offense in
question.” Tucker v. State, 799 N.W.2d 583, 586 (Minn. 2011) (quotation omitted). The
nature and e xtent of a victim’s injuries may indicate that the offender treated her with
particular cruelty. Dillon, 781 N.W.2d at 600-01.
As the district court found, Ramirez repeatedly hit A.A.R., and he hit her with such
force that he caused a traumatic brain inj ury and extreme pain and internal injuries to her
stomach. Knowing that she was injured, he hit her in the back of the head when she woke
up and began to cry. He failed to get her medical attention, left her in the crib after hitting
her, and did not check on her in the morning.
Ramirez argues that the district court improperly relied on prior uncharged incidents
of child abuse and on Ramirez’s commission of the dismissed first -degree-murder charge
to support the sentencing departure. Facts underlying a separate uncharged incident cannot
support an upward departure. State v. Edwards , 774 N.W.2d 596, 602 (Minn. 2009).
Ramirez argues that the district court erred in basing its particular -cruelty finding in part
on assaults that occurred before March 14, 2014. The district court relied in part on the
assault that occurred on March 12, 2014, when Ramirez hit A.A.R. in the eye with a sippy
cup. That assault was part of the sequence of events that led to the unintentional -murder
charge. On March 14, A.A.R. was in a weakened condition from the sippy-cup injury, and
Ramirez’s refusal to allow her to go to the hospital led to the argument between him and
B.A.A., which was part of the reason Ramirez was upset. The consequences of the sippy-
cup incident were part of the reason that Ramirez was angry and assaulted A.A.R. on March

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14. The district court, therefore, properly relied on the sippy -cup incident as support for
the departure.
The district court also referred to assaults that occurred when Ramirez pulled the
hair in A.A.R.’s ponytail out of her head and threw her on a bed when angry. Minn. Stat.
§ 244.10, subd. 5a(b) (2012), states: “Notwithstanding section 609.04 or 609.035, or other
law to the contrary, when a court sentences an offender for a felony c onviction, the court
may order an aggravated sentence beyond the range specified in the sentencing guidelines
grid based on any aggravating factor arising from the same course of conduct.” In
interpreting this statute, the supreme court stated that a dist rict court may “consider the
entirety of a defendant’s conduct in determining whether the defendant committed the
sentenced offense in a manner that is significantly more serious than that typically involved
in the commission of the sentenced offense.” State v. Fleming , 883 N.W.2d 790, 797
(Minn. 2016). A court may base an upward departure on “ any aggravating factor, even if
the aggravating factor relates [to], or arises in connection with another offense committed
during the same course of conduct.” Id. But “where a defendant pleads guilty to a lesser
offense, the [district] court ordinarily may not base an upward durational departure on
evidence indicating that in fact the defendant could have been convicted of a greater
offense.” State v. Kisch, 346 N.W.2d 130, 132-33 (Minn. 1984). Because the hair-pulling
and throwing -on-the-bed incidents were not part of the unintentional -murder course of
conduct and were evidence indicating that Ramirez could have been convicted of first -
degree murder, the district court should not have relied on them.

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“If the reasons given [for a departure] are improper or inadequate, but there is
sufficient evidence in the record to justify departure, the departure will be affirmed.”
Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). When a district court relies on both
proper and improper bases for aggravating factors, an appellate court “must determine
whether the district court would have imposed the same sentence absent reliance upon the
improper aggravating factor[s].” State v. Mohamed , 779 N.W.2d 93, 100 (Minn. App.
2010) (quotation omitted), review denied (Minn. May 18, 2010). This court considers “the
weight given to the invalid factor[s] and whether any remaining factors found by the court
independently justify the departure.” Id. (quotation omitted). The district court mentioned
the hair -pulling and throwing -on-the-bed incidents only briefly and emphasized the
particular cruelty with which Ramirez committed the assaults that caused A.A.R.’s death
and the particular vulnerability of A.A.R. The record shows that the district court would
have imposed the same sentence even without the hair -pulling and throwing -on-the-bed
incidents.
Ramirez also argues that, even if there were severe aggravating circumstances, the
432-month sentence was excessive. The district court was permitted to impose a sentence
up to the statutory maximum of 480 months. Minn. Stat. § 609.19, subd. 2 (2012). T he
432-month sentence was not excessive when a 13 -month-old child was beaten to death as
a result of Ramirez’s uncontrolled anger at the child’s mother. Even though the death was
unintentional, the severity of the assault was likely to severely harm the extremely
vulnerable victim, and committing the assault demonstrated extreme indiff erence to the
obvious possibility of causing the victim’s death. The 432-month sentence was supported

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by severe aggravating circumstances and was not excessive. The district court did not
abuse its discretion.
Affirmed.