State v. Alvarez, 54284-6-II

• Court: Court of Appeals of Washington
• Writing for the Court: Glasgow, A.C.J.
• Parties: STATE OF WASHINGTON, Respondent, v. ADRIAN ALVAREZ, Appellant.
• Decision Date: 29 March 2022
• Docket Number: 54284-6-II

STATE OF WASHINGTON, Respondent,
v.
ADRIAN ALVAREZ, Appellant.

No. 54284-6-II

Court of Appeals of Washington, Division 2

March 29, 2022

UNPUBLISHED OPINION

Glasgow, A.C.J.

Jayden Montgomery-Fisher, Joshua Soria, and Adrian Alvarez drove up next to another car occupied by Robert Doss II and Auzhane Evans one night in 2018. The person in the back seat of Montgomery-Fisher's car fired shots killing Doss and injuring Evans. All three men in Montgomery-Fisher's car were charged with murder.

Montgomery-Fisher and Soria pleaded guilty and testified for the State at Alvarez's trial. They said that Alvarez shot Doss and Evans from the back seat. Evans testified that the shooter was wearing a hooded sweatshirt and was in the back seat. A jury convicted Alvarez of first degree murder for killing Doss, first degree attempted murder for injuring Evans, and drive-by shooting.

Alvarez first asserts that his counsel made a racially derogatory remark directed at him, and the trial court abused its discretion by denying him substitute counsel. Alvarez also contends that defense counsel should have sought, and the trial court should have given the jury, a cautionary instruction regarding accomplice testimony. He argues the to convict jury instructions lacked an essential element, the prosecutor committed misconduct, his drive-by shooting conviction violated double jeopardy, and the trial court erred by not considering Alvarez's youth at sentencing. Alvarez

1

further argues, and the State concedes, that the trial court improperly failed to enter written findings of fact to support an exceptional sentence and two legal financial obligations (LFOs) should be stricken. Finally, Alvarez filed a statement of additional grounds for review (SAG).

We affirm Alvarez's convictions. We remand for the trial court to enter written findings to support Alvarez's exceptional sentence upward, strike the community custody supervision fee from his judgment and sentence, and investigate the DNA collection fee. We otherwise affirm Alvarez's sentence. Alvarez is not entitled to resentencing at this time.

FACTS

I. Background

Doss shot Arnelle Anderson, a member of a rival gang, in May 2018. Anderson survived the shooting, but he did not seek police assistance or cooperate with law enforcement, and Doss was never prosecuted.

Montgomery-Fisher, Soria, and Alvarez were in the same gang as Anderson. Two months later, the three men were driving around Tacoma. Montgomery-Fisher was in the driver's seat, Soria was in the front passenger seat, and Alvarez was in the back seat. They stopped their car to ask two men in a 7-Eleven and a pedestrian about their gang affiliation. Both encounters ended peacefully.

Then the three men pulled up alongside a car with Doss in the passenger seat and Evans in the driver's seat. Montgomery-Fisher asked Doss where he was from. Doss replied by identifying his gang. Montgomery-Fisher drove his vehicle forward as the back window rolled down, and several shots were fired from the rear passenger window into Evans's car. The shots killed Doss and wounded Evans's hand.

2

Detective Steven Shank was the lead investigator on the shooting. Between Evans's recollections and security camera footage from businesses in the area, police traced the vehicle to Montgomery-Fisher. When interviewed, Montgomery-Fisher admitted that he, Soria, and Alvarez had been seeking to attack rival gang members as revenge for Anderson, and they stumbled across Doss as a coincidence.

Montgomery-Fisher and Soria both pleaded guilty. In exchange for their testimony at Alvarez's trial identifying Alvarez as the shooter, the State agreed to recommend for Montgomery-Fisher a sentence of 16.5 years instead of more than 50 years, and for Soria a sentence of 32.5 years instead of life.

Alvarez was charged with both premeditated and extreme indifference first degree murder and second degree murder for killing Doss. He was also charged with first degree attempted murder and first degree assault for wounding Evans, drive-by shooting, and first degree unlawful possession of a firearm. All of the charges except the drive-by shooting and unlawful possession of a firearm carried firearm enhancements, and every charge except the firearm possession carried a gang aggravator.

II. Pretrial

A. Motion for Substitution of Counsel

In July 2019, Alvarez filed a bar complaint against his attorney and sought to have him replaced with new counsel. When the trial court asked Alvarez "what do you want me to know?" Alvarez stated,

I would like to have [my attorney] withdraw from my case due to his derogatory terms that he used against me, calling me a wetback, and that I should rot in prison with the rest of my kind

3

I would like him to withdraw from my case. We have a communication meltdown. We never been on the same page.

Verbatim Report of Proceedings (VRP) (July 1, 2019) at 12. The trial court asked if the attorney wished to respond, and counsel denied making such comments:

I did not make those statements, Your Honor. The only thing close I would say was when I asked him about where he was born, if he was a [U.S.] citizen, as I do on every case. And probably [I] would then make a few remarks about saying I only ask this because I need to know if you are because [it] can [a]ffect your . . . case . . . which is one of the first things you're supposed to do.

But we've never had any remarks - I never said anything like that.

Id. at 13. The judge noted that the attorney had been appearing in front of her for 20 years and that the comments did not "sound to me like something I've ever heard [him] do, and he's an excellent lawyer." Id. Alvarez stated, "He can be one way towards you but in another time - like, when we

... are face to face, he can be a different person. So people can put a different persona on for different people so you don't know if he said that to me or not." Id. at 14. The trial court explained that Alvarez had not presented a sufficient legal basis to discharge his attorney, especially where the case was already 300 days old. The trial court denied Alvarez's request.

B. Motions Regarding Impeachment of Accomplices

Defense counsel sought permission to impeach Montgomery-Fisher and Soria by asking them about their plea deals and the potential reduction in the State's recommended sentences, including that Soria was facing a possible life sentence because he was on his third strike offense. The State agreed that defense counsel could ask them about the total number of years that they were facing, contrasted with the deal they would receive for testifying for the State in Alvarez's case. But the State opposed mentioning Soria's third strike because discussing prior strikes would

4

reveal criminal history to the jury, information that would normally be excluded. The trial court ruled that in addition to facing a life sentence, defense counsel could say that Soria was avoiding a strike offense by pleading guilty, but not that he was avoiding his third strike. The trial court stated, "I don't think it's relevant that he had two other strike offenses prior to that." 5 VRP at 495.

Defense counsel also sought permission to impeach Montgomery-Fisher with several juvenile convictions-a third degree theft from 2014, another third degree theft and a false statement to a public servant from 2012, and two third degree thefts from 2010. The trial court allowed defense counsel to raise the 2014 theft and the 2012 false statement and theft. The trial court stated that it would allow those convictions to be raised because they were "recent in history" and "necessary for a fair determination of the issues of guilt or innocence in light of [the] seriousness of the charges." 9 VRP at 1171. "I think the rest of the thefts are cumulative . . . [b]ut the false statement I think is also germane." Id. at 1171-72.

Defense counsel also requested permission to impeach Soria with a third degree theft from 2010, a possession of a stolen vehicle from 2009, and a second degree robbery from 2008. The trial court stated, "You can use the 2010 theft in the third. The others are too remote." 10 VRP at 1434.

III. Trial

A. Testimony and Closing Argument

At trial, witnesses testified that Alvarez and Montgomery-Fisher both lived on property in Graham around the time of the shooting. On the night of the shooting, Alvarez, Montgomery-Fisher, and Soria left the Graham property to purchase cigarettes and marijuana. They left in Montgomery-Fisher's white Kia Sorento, the vehicle used in the shooting. They were gone for

5

several hours. Montgomery-Fisher's then-girlfriend became concerned about the length of time and began calling Soria and Montgomery-Fisher repeatedly. They told her that the car had overheated and they had stopped to put water in the engine.

The State sought to establish the route the men took in the white Kia the night of the shooting. Data from Soria's mobile phone indicated that he had been near a 7-Eleven around 10:30 p.m., close to the location of the shooting at 10:48 p.m., and near a McDonalds at 11:18 p.m.

Footage from the 7-Eleven showed Montgomery-Fisher, Soria, and Alvarez enter the store at approximately 10:32 p.m. In the video, Montgomery-Fisher, the only white member of the group, was wearing a black shirt; Soria was wearing a white shirt; and Alvarez was wearing a black hooded sweatshirt. Montgomery-Fisher approached two men within the 7-Eleven, asked for their gang affiliation, and left after receiving their answer. The white Kia left the 7-Eleven parking lot at roughly 10:34 p.m. After leaving the 7-Eleven, the men approached a pedestrian on the side of the road to ask where he was from. The pedestrian answered that he was from California, so the men left him alone. The first 911 call reporting the shooting was placed at approximately...