State v. Arredondo

• Decision Date: 17 September 2015
• Docket Number: No. 30411–6–III.,30411–6–III.
• Citation: 360 P.3d 920,190 Wash.App. 512
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Fabian ARREDONDO, Appellant.

190 Wash.App. 512

360 P.3d 920

STATE of Washington, Respondent,

v.Fabian ARREDONDO, Appellant.

No. 30411–6–III.

Court of Appeals of Washington, Division 3.

Publication Ordered Oct. 13, 2015.

Sept. 17, 2015.

David N. Gasch, Gasch Law Office, Spokane, WA, Fabian Arredondo (Appearing Pro Se), Washington State Penitentiary, Walla Walla, WA, for Appellant.

David Brian Trefry, Yakima County Prosecutors Office, Spokane, WA, Joseph Anthony Brusic, Yakima County Prosecutor's Office, Yakima, WA, for Respondent.

Opinion

LAWRENCE–BERREY, J.

¶ 1 A jury found Fabian Arredondo guilty of second degree murder and three counts of first degree assault. Mr. Arredondo appeals, contending that (1) the trial court violated his constitutional public trial right, (2) the trial court abused its discretion in admitting ER 404(b)testimony of an earlier drive-by shooting, (3) the court erred in denying his motion to question a State witness regarding his mental state, (4) insufficient evidence supported the gang enhancement aggravating circumstance, and (5) the court abused its discretion in imposing the costs of incarceration legal financial obligation as part of his sentence. We disagree with Mr. Arrendondo's first four contentions, but reverse the imposition of the per day legal financial obligations and remand for a new hearing in that regard.

FACTS

¶ 2 On the evening of December 5, 2009, three Sureño gang members went to a party together at a house in Toppenish, Washington. Most of the people at the party were members of the rival Norteño gang. Shortly after they arrived, several people exchanged angry words, and a brief fistfight ensued between one of the Sureños and two other people. Fabian Arredondo is a member of the Norteño gang, and he was at the party that evening but was not involved in the fight. Some of the Norteños at the party were carrying guns, but Mr. Arredondo was not seen with a gun.

¶ 3 Most people left the party after the fight. The three Sureños drove off in a white station wagon and picked up a fourth person who was walking along the street. They noticed another car from the party behind them and sped up to get away, but the car continued following them. The car following them was a Honda with tinted windows. Someone in the white station wagon said they saw a gun and yelled to duck. Shots were fired from the Honda, and one of the shots went through the window of the station wagon and hit the driver causing the station wagon to crash into a tree. The driver later died at the hospital. Mr. Arredondo was charged with first degree murder and three counts of first degree assault related to the December 5, 2009 drive-by shooting.

¶ 4 Before trial began, Mr. Arredondo filed a motion in limine to permit cross-examination of State witness, Maurice Simon, regarding Mr. Simon's mental health. Before making its ruling, the trial court allowed questioning of Mr. Simon regarding his mental condition outside the presence of the jury. During that questioning, Mr. Simon revealed that he has problems with depression, concentration, comprehension, anxiety, distrust of other people, hypervigilance, post-traumatic stress disorder

(PTSD), and substance abuse involving both alcohol and methamphetamine. Mr. Simon stated that while his substance abuse might affect his short-term memory, none of these problems affect his long-term memory. After this testimony, the court determined that none of Mr. Simon's issues affect his “ability to accurately recall and to describe the events or alleged events that he is going to be called upon to describe in his testimony.” Report of Proceedings (RP) at 566–67. The court also concluded that the prejudicial effect outweighed the probative value of testimony regarding his mental health. The court barred any inquiry into Mr. Simon's mental state now or in the past, including his substance abuse.

¶ 5 Mr. Simon, who was Mr. Arredondo's cellmate in jail for five to eight days, testified Mr. Arredondo had talked about the December 5, 2009 drive-by shooting with him. Mr. Simon stated Mr. Arredondo had told him he was a member of the Norteño gang. Mr. Arredondo had also told Mr. Simon that the night of the shooting, he and his cousin Rudy had borrowed the keys to a Honda from someone at the house party they were at and chased down another vehicle that had also come from the party. Mr. Arredondo said he was driving with Rudy in the passenger seat, and when the cars were side by side, Rudy had shot somebody in the other ear. Finally, Mr. Arredondo had told him the people in the other car were from the rival Sureño gang.

¶ 6 Before trial, Mr. Arredondo also moved in limine to prohibit the State from introducing evidence of a drive-by shooting that occurred on February 9, 2009, under ER 404(b). The trial court denied the motion finding that the probative value outweighed the prejudicial effect.

¶ 7 During opening statements, the State told the jury it would hear evidence regarding the February 9, 2009 drive-by shooting. The prosecutor stated, “Mr. Arredondo was driving a Mercedes to an area in Yakima, drove past a rival gang's location and fired some shots there.” RP Supp.–2B at 273.

¶ 8 Dustin Dunn, a detective for the Toppenish Police Department, testified he responded to a report of a drive-by shooting on February 9, 2009 in a “high gang area.” RP at 468. The person who reported the shooting said the suspect's vehicle “appeared to be like a Mercedes.” RP at 468. Detective Dunn found a .380 caliber shell casing in the street in front of the residence where the drive-by occurred. Before Detective Dunn's testimony regarding the incident in February 2009, the court gave a limiting instruction, stating,

There's going to be testimony that's offered, I believe starting now, regarding an incident that allegedly occurred on February the 9th of 2009.

That—the testimony regarding that particular incident can be considered by you in only one way. Okay? You can only consider it in regard to the issue of whether—the issues of identity and motive and intent of the Defendant. Okay?

So you cannot consider it as to whether Mr. Arredondo may or may not be a bad person or may or may not have acted in a similar fashion on February the 9th of 2009 to what he's alleged to have done on December the 5th of 2009. You can only consider the testimony regarding the incident of February 9, 2009, only on the issues of motive, intent, and identity.

RP at 466.

¶ 9 Michael Hisey, community corrections officer for the Washington State Department of Corrections (DOC), testified that on February 23, 2009, he and two other officers contacted Mr. Arredondo at an address in Zillah, Washington, based on reports he was selling drugs out of the residence. A silver Mercedes was parked in the area, and Mr. Arredondo had possession of the keys to the Mercedes. The officers searched the vehicle and found a .380 caliber shell casing. Before Corrections Officer Hisey's testimony, the court referenced the limiting instruction given regarding Detective Dunn's testimony and stated that the same instruction applied.

¶ 10 Terry Franklin, a forensic scientist from the Washington State Patrol Crime Laboratory, analyzed both .380 shell casings and found they were fired from the same firearm.

¶ 11 Jaban Brownell, a detective for the Toppenish Police Department, testified that the residence where the February 9, 2009 drive-by shooting occurred is located in an area of Toppenish populated by members of the Sureño gang. Detective Brownell stated that the rival Norteño gang was involved in that shooting. Detective Brownell also testified more generally about the characteristics of street gangs, stating, “[A]s you work up the gang life-style, the more credit you have as far as crimes you've committed, how much you've hustled ... you earn a certain level of prestige and respect amongst the gang members and even rival gang members.” RP at 684.

¶ 12 After the State rested, Mr. Arredondo moved to dismiss the gang enhancement aggravating circumstance, arguing that there was insufficient evidence to support the aggravator. The court denied his motion, finding sufficient evidence in the record to support the gang enhancement allegations.

¶ 13 The jury found Mr. Arredondo guilty of second degree murder and three counts of first degree assault. The jury also found by special verdict that Mr. Arredondo committed the crimes with intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang, its reputation, influence, or membership. The court imposed an exceptional sentence of an additional 60 months' incarceration per count for this aggravating circumstance. The court ordered the sentences for each count to run consecutively. The sentence totaled 1,083 months.

¶ 14 The court also entered a finding, without inquiring on the record, that Mr. Arredondo had the ability to pay legal financial obligations (LFOs). One of the LFOs imposed was the costs of incarceration at a rate of $50 per day, or in excess of $1.6 million.

¶ 15 Mr. Arredondo appeals, contending that (1) the trial court violated his constitutional public trial right by excluding the public from a portion of the jury selection, (2) the trial court abused its discretion in admitting ER 404(b)testimony related to the February 9, 2009 drive-by shooting, (3) the trial court erred in denying his motion to question the State's witness Maurice Simon regarding his mental state, (4) insufficient evidence supported the gang aggravating circumstance, and (5) the trial court abused its discretion in imposing $50 per day costs of incarceration as part of his sentence.

¶ 16 Mr. Arredondo filed a motion on March 6, 2013, to remand the case to the trial court for the taking of additional evidence related to the public trial issue. A commissioner of this court issued a ruling ordering remand on March 7, 2013.

¶ 17 The trial judge presided over the reference hearing held June 27, 2013. Testimony...