State v. Contreras-Rebollar

• Decision Date: 05 August 2014
• Docket Number: 41672-7-II,40962-3-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. ADRIAN CONTRERAS-REBOLLAR, Appellant IN RE PERSONAL RESTRAINT PETITION OF ADRIAN CONTRERAS-REBOLLAR, Petitioner.

STATE OF WASHINGTON, Respondent, v. ADRIAN CONTRERAS-REBOLLAR, Appellant

IN RE PERSONAL RESTRAINT PETITION OF ADRIAN CONTRERAS-REBOLLAR, Petitioner.

Nos. 40962-3-II, 41672-7-II

Court of Appeals of Washington, Division 2

August 5, 2014

UNPUBLISHED OPINION

Hunt J.

In this supplemental personal restraint petition (PRP), on remand from the Supreme Court, Adrian Contreras-Rebollar challenges his jury convictions for two counts of first degree assault.^[1] He argues that (1) the trial court erred in admitting statements he made to the arresting officer, (2) the State improperly commented on his right to remain silent (3) he received ineffective assistance when counsel failed to propose a jury instruction addressing his statements to the arresting officer, (4) the State engaged in prosecutorial misconduct, and (5) cumulative error deprived him of his right to a fair trial. We deny Contreras-Rebollar's supplemental PRP.

I. FACTS

We set out the background facts in our first, unpublished decision in this case, excerpts of which we provide here:

[T]he evening [of April 11, 2006], Contreras[-Rebollar] [Nicholas] Solis, [Regina] Hernandez, and [Ahria] Kelly left their friend's house and went to a place described as "Wolfie's alley, " so Solis could pick up a vehicle. Report of Proceedings (RP) (Jan. 23, 2007) at 254. Contreras[-Rebollar] and Hernandez left Wolfie's alley to go drive around; Solis and Kelly followed in the car that Solis had just retrieved. Hernandez alleged that Contreras[-Rebollar] flagged Solis to stop, got out of his vehicle, and argued with Solis about a "sack of dope" and a Palm Pilot. RP (Jan. 23, 2007) at 259. According to Hernandez, Contreras[-Rebollar] returned to his vehicle, said, "[T]his mother f[*]cker is getting on my nerves; I'm going to do him in[, ]" and retrieved a gun from the backseat of the car. RP (Jan. 23, 2007) at 261. After going back to Wolfie's alley, Contreras and Hernandez subsequently drove to Yessica Rosas's house. [Hernandez later claimed that, during their second visit to Wolfie's alley, Solis, while wearing a bandana over his face, pointed a gun at Contreras-Rebollar who responded by firing shots in Solis's direction].

[. . .]Rosas and Hernandez were talking in Rosas's bedroom when Contreras[-Rebollar] went outside to his car. Contreras[-Rebollar] returned wearing dark clothes and sunglasses, carrying a gun. Rosas testified that Contreras [-Rebollar] appeared nervous and looked like he was wearing a disguise. Rosas's father, Jose Rosas, heard people talking and he asked Hernandez and Contreras [-Rebollar] to leave. Jose testified that he watched Hernandez and Contreras [-Rebollar] drive away before returning to bed.

Contreras [-Rebollar] sat in the driver's seat and Hernandez sat in the front passenger seat when they left Rosas's house. Hernandez testified that she was looking at CDs [(compact discs)] when she heard Contreras [-Rebollar] say, "[T]here those mother f[*]ckers are." RP (Jan. 23, 2007) at 289. The two were only a short distance from Rosas's house when Contreras [-Rebollar] started shooting at the oncoming vehicle. After Contreras [-Rebollar] finished shooting, Hernandez heard him say, "I just dumped on those fools." RP (Jan. 23, 2007) at 290. Hernandez testified that Contreras [-Rebollar] did not appear afraid; instead, he appeared brave, calm, and cool. Further, Hernandez testified that she had her head down looking at CDs and did not see Solis's vehicle approach; she looked up after Contreras[-Rebollar] started shooting and saw only the taillights of Solis's vehicle. Contreras [-Rebollar], however, relayed a different story at trial. Contreras [-Rebollar] claimed that he saw Solis's vehicle speed up and the headlights turn off. He also claimed to see Solis wearing a bandana and raise the barrel of a gun. Based on this information, Contreras [-Rebollar] believed that Solis was preparing to commit a drive-by shooting. Contreras [-Rebollar] testified that he feared for his life, reached for his gun, ducked, and fired towards Solis's vehicle.

Solis was driving with Kelly in the passenger seat when Contreras[-Rebollar] shot at them. Kelly testified that he yelled "[d]uck" when he saw the flash of a gun firing from the driver's window of a parked vehicle with no, headlights. RP (Jan. 24, 2007) at 501. Solis did not see Contreras[-Rebollar's] vehicle and only remembered seeing gunfire sparks at the time of the shooting. One bullet struck Kelly in the shoulder and at least one bullet struck Solis. As a result of the shooting, Solis is paralyzed from the chest down.

Shortly after the shooting, Kim Say-Ye was returning home when she saw a vehicle parked on the grass in front of her neighbor's house. The vehicle caught her attention because she saw shattered glass and because both the windshield wipers and headlights were on. She thought the driver was drunk and was about to call the police when Officer Timothy Caber showed up.

Caber, who had received the dispatch call for the shooting around 1:00 a.m., briefly spoke to Say-Ye when he arrived at the scene. Caber found the vehicle still running and stopped against landscaping railroad ties on the lawn. He also observed that the windshield wipers and headlights were on. Caber found Solis inside, slumped over; a rifle lay wedged between the driver and passenger seats with the barrel pointing toward the dash.

Edward Robinson, a firearm examiner at the Washington State Patrol Crime Laboratory, determined that the gun was a black powder rifle. Robinson received the rifle without a ram rod and without any wadding, projectiles, and gun powder inside the rifle's chamber or otherwise in a container associated with the rifle. Solis testified that he traded dope for the rifle on the day of the shooting and that he thought the rifle was inoperable.

On April 12, 2006, the police arrested Contreras[-Rebollar] at a Motel 6. The State charged him with two counts of first degree assault, with firearm enhancements, and one count of second degree unlawful possession of a firearm. [.. . ] Contreras pleaded guilty to second degree unlawful possession of a firearm.

[. . .] Both parties focused on credibility throughout the trial [on the two assaults], as many of the witnesses were habitual methamphetamine users who admitted to having a poor memory. On January 23, 2007, Hernandez testified that she did not see the headlights on Solis's vehicle. When the prosecution questioned her, Hernandez acknowledged that her testimony conflicted with a statement she made to police officers shortly after the shooting. However, she claimed that [one of Contreras-Rebollar's counsel] had told her the headlights were off. On direct, Hernandez denied that [defense counsel] told her to say the headlights were off, but on cross-examination she claimed he had. [T]he jury found Contreras [-Rebollar] guilty on both counts of first degree assault and found that he was armed with a firearm during the commission of both crimes.

State v. Contreras-Rebollar, noted at 149 Wn.App. 1001, 2009 WL 448902, at * 1-2 (2009) (some alternations in original) (internal footnotes omitted).^[2]

II. Procedure

Contreras-Rebollar has previously filed two direct appeals. We resolved his first appeal in an unpublished opinion in which we affirmed his convictions but remanded for resentencing. Contreras-Rebollar, 2009 WL 448902, at * 1. Contreras-Rebollar appealed his resentencing— his second appeal. He then filed a PRP, which we consolidated with his pending direct appeal from his resentencing; and we granted his request to supplement his PRP.

In June 2012, in another unpublished opinion, we denied his original PRP as meritless and his supplemental PRP as untimely; and we again remanded for resentencing. State v. Contreras-Rebollar, noted at 169 Wn.App. 1001, 2012 WL 2499369 (2012), review granted, 173 Wn.2d 563 (2013). Contreras-Rebollar petitioned the Supreme Court for review. The Supreme Court granted the petition in part and remanded to us to consider Contreras-Rebollar's supplemental PRP on the merits.^[3] State v. Contreras-Rebollar, 177 Wn.2d 563, 564, 303 P.3d 1062 (2013). It is this supplemental PRP that we now consider.

ANALYSIS

I. PRP Standards

Generally, to be entitled to relief on collateral review, a petitioner must establish "either that he or she was actually and substantially prejudiced by constitutional error or that his or her trial suffered from a fundamental defect of a nonconstitutional nature 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). Contreras-Rebollar fails to sustain this burden here.

II. In-Custody Statements Admissible

Contreras-Rebollar first contends that the trial court erred in admitting his pxe-Miranda^[4]statements to the arresting officer, asserting that they were not spontaneous and voluntary, and instead were coerced.^[5] We disagree.^[6]

A. Standard of Review; Miranda

A trial court's CrR 3.5 findings of fact are verities on appeal if substantial evidence supports the findings. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). Evidence is substantial when it is sufficient to persuade a fair-minded person of the truth of the stated premise. State v. Reid, 98 Wn.App. 152, 156, 988 P.2d 1038 (1999) (citing State v. Thetford, 109 Wn.2d 392, 396, 745 P.2d 496 (1987)). "The legal conclusions flowing from the facts are questions of law, " which we review de novo. State v. Aronhalt, 99 Wn.App. 302, 307, 994 P.2d 248 (citing State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997)), review denied, 141 Wn.2d 1012 (2000).

Under the Fifth Amendment of the United States Constitution "Miranda warnings must be given when a suspect endures (1) custodial (2) interrogation ...