408 P.3d 675 (Wash. 2018), 92412-1, In re Sandoval
|Citation:||408 P.3d 675|
|Opinion Judge:||MADSEN, J.|
|Party Name:||In the MATTER OF the Personal Restraint of Eduardo SANDOVAL, Petitioner.|
|Attorney:||Katharine Tylee Herz, Christine Hawkins, Davis Wright Tremaine, for Petitioner Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, Thomas Charles Roberts, Attorney at Law, for Respondent Suzanne Lee Elliott, Attorney at Law, Amicus Curiae on behalf of Washington Association of...|
|Judge Panel:||WE CONCUR: Johnson, J., Owens, J., Wiggins, J., Yu, J. FAIRHURST, C.J. (concurring in part/dissenting in part) Stephens, J. GORDON McCLOUD, J. (concurring in part/dissenting in part) Gonzlez, J.|
|Case Date:||January 18, 2018|
|Court:||Supreme Court of Washington|
Petitioner Eduardo Sandoval was a member of the Tacoma-based Eastside Lokotes Surefios (ELS) gang. In a stolen van, ELS members pulled up to a car and fired no less than 12 gunshots from at least two firearms into the passenger door. The driver, Camilla Love, was hit three times and died from her injuries. The passenger, Joshua Love, was hit two times but survived. The van occupants targeted the... (see full summary)
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Appeal from Pierce County Superior Court, Docket No: 10-1-04055-4, Honorable Linda CJ Lee
Katharine Tylee Herz, Christine Hawkins, Davis Wright Tremaine, for Petitioner
Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, Thomas Charles Roberts, Attorney at Law, for Respondent
Suzanne Lee Elliott, Attorney at Law, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers
[¶ 1] In this personal restraint petition (PRP) concerning complicity charges based on murder by extreme indifference, we reject petitioner Eduardo Sandovals contentions that accomplice liability for murder by extreme indifference and conspiracy to commit murder by extreme indifference are not cognizable offenses. We further hold that the trial court erred in failing to give a requested lesser included instruction on manslaughter, and on this limited basis we grant the PRP and remand for further proceedings consistent with this opinion.
[¶ 2] Sandoval is a member of the Eastside Lokotes Sureños (ELS) gang in Tacoma. On February 7, 2010, ELS members, in a stolen van, pulled up to a car and fired no less than 12 gunshots from at least two firearms into the passenger door of the car. The driver, Camilla Love, was hit three times and died from her injuries. The passenger, Joshua Love, was hit two times but survived. The van occupants targeted the Loves on the mistaken belief that Joshua Love was a Pirus gang member. At the time, the van occupants were seeking out rival Pirus members to retaliate for a February 5, 2010 drive-by shooting targeting ELS members, including Sandoval. The ELSs leader, Juan Zuniga, believed Pirus members were responsible for the earlier attack.
[¶ 3] On February 6, 2010, Zuniga held a meeting with fellow ELS members to plan retribution for the February 5, 2010 shooting. The plan was for ELS members to use a van stolen by ELS associates to attack Pirus members and then destroy the van. ELS members not in the van would patrol designated areas in separate vehicles in search of Pirus members, and be on the lookout for police. Sandoval attended the meeting.
[¶ 4] The next day, on February 7, 2010, ELS members worked out the plan particulars and roles (e.g., shooters, van driver, and patrol/lookout) and converged that evening to carry out the plan. Sandoval and Antonio Gonzales were present at this later meeting, as was the van, which was stolen the prior evening by other ELS associates.
[¶ 5] Sandoval rode to the February 7, 2010, meeting with Gonzales, who was assigned to patrol the ELSs southernmost territorial boundary. Sandoval volunteered to go with Gonzales, who brought his two young children with him. By riding with Gonzales, Sandoval purportedly could appear to cooperate in the plan without taking an active role. Gonzales also testified that he did not intend to complete his assigned task.
[¶ 6] When the group left this final meeting, Gonzales and Sandoval first drove to a park outside of their patrol area, put on a video for Gonzales children, and smoked marijuana. After 30 minutes, the occupants of the stolen van spotted them and advised them to carry out their assigned task. The pair then proceeded to the lookout area. They spotted a police car parked at a bank and communicated the police location to the van occupants.
[¶ 7] Later that evening, Zuniga called to instruct them to go home, as the shooting had since transpired. Two weeks later, at Zunigas instruction, Sandoval and another ELS member took the alleged van driver, Jarod Messer, to Mexico because someone matching his description had been identified as a possible suspect in the shooting.
[¶ 8] Loves shooting went unsolved for several months. Then, in May 2010, Gonzales and two other ELS members murdered ELS leader Zuniga. When arrested for Zunigas murder, these three ELS members volunteered information about Loves killing. That information led to the arrest of Sandoval and other ELS members involved in the Love shooting.1 The ELS members involved in the Zuniga killing also agreed to testify on behalf of the State against the four ELS members and associates arrested and charged in Loves killing in exchange for significant sentence reductions in the Zuniga killing and no murder charges in Loves shooting.
[¶ 9] Sandoval was arrested in September 2010. The State ultimately charged Sandoval with three counts: first degree murder (by extreme indifference) of Camilla Love (count I), first degree assault of Joshua Love (count 2), and conspiracy to commit first degree murder (count 3). The other ELS members involved in the shooting2 were similarly charged. They were tried along with Sandoval in the same proceeding, but pleaded guilty after the prosecution rested in exchange for reduced charges. Only Sandoval took his case to the jury.
[¶ 10] Following closing arguments, Sandovals counsel sought to include jury instructions for the lesser included charges of accomplice to first degree and second degree manslaughter if, " after full and careful deliberation on [the count I murder] charge, you are not satisfied beyond a reasonable doubt that the defendant is guilty." Clerks Papers (CP) at 254 (Instr. 5). The court denied the request.3
[¶ 11] During deliberations, the jury asked the court whether it could use the instruction defining first degree murder (as conduct creating a grave risk of death and causing death under circumstances manifesting an extreme indifference to human life) when considering the instruction defining conspiracy. After conferring with counsel, the court answered affirmatively. The jury ultimately convicted Sandoval as charged. The court then entered a judgment and sentence consistent with the second amended information.
[¶ 12] The State recommended Sandoval receive a total sentence of 724 months for all three crimes. The court sentenced Sandoval to a total sentence of 904 months of confinement.4 The ELS members who pleaded guilty received reduced charges.5
[¶ 13] Sandoval appealed, arguing that the evidence presented at trial was insufficient to support his convictions. With his direct appeal, Sandoval also filed a pro se petition for a writ of habeas corpus, which was transferred to the Court of Appeals for consideration as a PRP.6 The Court of Appeals consolidated Sandovals direct review with his PRP and issued an unpublished decision on March 18, 2014, affirming the trial courts judgment and sentence and dismissing Sandovals
initial PRP.7 Sandoval did not petition for review of Division Twos decision, and the Court of Appeals mandated the case on May 16, 2014.
[¶ 14] On April 17, 2015, Sandoval filed his current PRP with the Court of Appeals, which transferred the PRP to this court.8 We retained the petition for consideration on the merits.
A. Standard of Review
[¶ 15] An unlawfully restrained petitioner may file a PRP. RAP 16.4. Restraint is unlawful when, among other things, " [t]he conviction was obtained or the sentence or other order ... was imposed or entered in violation of the Constitution of the United States or the Constitution or laws of the State of Washington." RAP 16.4(c)(2). Successive petitions based on similar grounds or raising a new issue will not be heard without a showing of good cause. In re Pers. Restraint of VanDelft, 158 Wn.2d 731, 738, 147 P.3d 573 (2006), overruled on other grounds as recognized in State v. Vance, 168 Wn.2d 754, 762-63, 230 P.3d 1055 (2010). And while the Court of Appeals is barred from hearing successive PRPs on new grounds unless the petitioner can show good cause why he or she failed to raise the issues previously, this court is not so barred.9 RCW 10.73.140; In re Pers. Restraint of Martinez, 171 Wn.2d 354, 362-63, 256 P.3d 277 (2011).
[¶ 16] Further, a PRP is not timely if filed " more than one year after the judgment becomes final." RCW 10.73.090(1). A judgment becomes final, among other things, when " an appellate court issues its mandate disposing of a timely direct appeal from the conviction." RCW 10.73.090(3)(b). The Court of Appeals mandated its decision on Sandovals direct appeal on May 16, 2014, and Sandoval filed the current PRP April 17, 2015. Accordingly, his current PRP is timely.
[¶ 17] Also, frivolous PRPs need not be considered. RAP 16.11(b). A PRP " is frivolous where it fails to present an arguable basis for collateral relief either in law or in fact, given the constraints of the [PRP] vehicle." In re Pers. Restraint of Khan, 184 Wn.2d 679, 686-87, 363 P.3d 577 (2015) (plurality opinion). Sandovals PRP is not frivolous. He provides an arguable basis in law for at least one of his claims, as discussed infra.
[¶ 18] PRPs must demonstrate error and, if the error is constitutional, that the petitioner is " actually and substantially prejudiced." In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). If not constitutional, the PRP must show the error represents a " fundamental defect ... that inherently resulted in a complete miscarriage of justice." In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013). This heightened standard of review applies to all issues for which a petitioner had a previous opportunity for judicial review and is designed to promote finality. Coats, 173 Wn.2d at 132, 267 P.3d 324.
B. Instruction on Lesser Included Offense of Manslaughter
[¶ 19] Relying on State v....
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