State v. DeLeon

• Decision Date: 23 December 2014
• Docket Number: 29679–2–III,Nos. 29657–I–III,29691–1–III.,s. 29657–I–III
• Citation: 341 P.3d 315,185 Wash.App. 171
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent and Cross Appellant, v. Ricardo Juarez DeLEON, Appellant and Cross Respondent, and Octa Vio Robledo, and Anthony DeLeon, Appellants.

185 Wash.App. 171

341 P.3d 315

STATE of Washington, Respondent and Cross Appellant

v. Ricardo Juarez DeLEON, Appellant and Cross RespondentandOcta Vio Robledo, and Anthony DeLeon, Appellants.

Nos. 29657–I–III

29679–2–III

29691–1–III.

Court of Appeals of Washington, Division 3.

Dec. 23, 2014.

Kenneth H. Kato, Attorney at Law, Spokane, WA, Dennis W. Morgan, Attorney at Law, Republic, WA, for Appellant.

Tamara Ann Hanlon, Yakima County Prosecuting Attorney's Office, Yakima, WA, for Respondent.

Janet G. Gemberling, Janet Gemberling PS, Spokane, WA, for Appellant/Cross–Respondent.

Ricardo Juarez DeLeon Connell, WA, Appearing Pro Se.

James Patrick Hagarty, Tamara Ann Hanlon, Yakima County Prosecuting Attorney's Office, Yakima, WA, for Respondent/Cross–Appellant.

SIDDOWAY, C.J.

¶ 1 Ricardo Juarez DeLeon, Octavio Robledo, and Anthony DeLeon appeal their convictions and aggravated exceptional sentences arising from a gang-related shooting at a home in Sunnyside and a high speed chase thereafter, in which Anthony DeLeon attempted to elude responding officers. Over a dozen issues are raised by one or more of the appellants in these consolidated appeals, many involving the admission at trial of gang evidence.

¶ 2 We conclude that gang information that the three were required to give to Sunnyside jail officers at booking as a condition of receiving safe housing was not a voluntary statement for purposes of the Fifth Amendment and should not have been admitted at trial, but that its admission was harmless except as to the gang aggravator that the jury found against Ricardo DeLeon. In the published portion of this opinion, we find additional errors in the admission of gang evidence but conclude that they were harmless, conclude that sufficient evidence supported the jury's verdicts on the gang aggravator, and find no abuse of discretion by the trial court in denying a motion for a new trial based on a juror's misconduct in communicating to Twitter¹ followers during trial and deliberations.

¶ 3 In the unpublished portion of the opinion, we reject the appellants' claims of ineffective assistance of counsel, instructional error, and the dozens of issues raised in the appellants' pro se statements of additional grounds.

¶ 4 We reverse the exceptional sentence imposed on Ricardo DeLeon based on the gang aggravator and remand for further proceedings. We otherwise affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 5 At around 11 p.m. on May 9, 2009, Ignacio Cardenas and Miguel Acevedo were standing on the sidewalk outside Mr. Cardenas's residence in Sunnyside waiting for Mr. Cardenas's two cousins and a friend, Jose Barajas, who were coming to the home to bring them passes to a quinceañera. Acevedo and Cardenas were both members of the Lower Valley Lokotes “LVL” gang, which claims the color blue. The Cardenas home was a known LVL hangout. Seeing what he thought were friends in a passing Taurus automobile, Mr. Acevedo flashed a “friendly” LVL sign. He was mistaken; the occupants of the Taurus were not his friends. The driver of the car made a U-turn and one of the occupants yelled something to the effect that they would shoot.

¶ 6 The car passed the home, made a second U-turn, slowed down, and gunfire erupted from the passenger side. Mr. Acevedo ducked behind the tire of a parked car. His and Mr. Cardenas's friend, Angelo Lopez, who had just emerged from the house and was coming down the steps when the gunfire started, “hit the ground.” Report of Proceedings (RP) at 1353. Mr. Cardenas sustained a near-fatal bullet wound

to the abdomen and ultimately lost a kidney. It was dark outside and none of the three men could identify the persons inside the car.

¶ 7 Jose Barajas had just reached the Cardenas residence in his track with passengers Monica Mendoza and Griselda Mendoza when the shooting started. Monica² saw people inside the Taurus wearing red bandannas over their faces but could not identify them at that time. Griselda also noticed that someone in the Taurus was wearing red. Monica estimated that nine gunshots were fired from the front passenger side.

¶ 8 Mr. Barajas followed the Taurus as it fled the area. He temporarily lost sight of it in a housing development, but saw it again near the intersection of Allen Road and Mabton–Sunnyside Highway. There, all three truck occupants saw someone in the Taurus point a gun at them. Monica no longer saw the red bandannas and was able, this time, to identify two of the car's occupants—Anthony DeLeon (a friend of her baby's father, known to her as “Monkey”) and Octavio Robledo, whom she knew from school. Everyone in the Barajas track was certain this was the same Taurus that was involved in the shooting at the Cardenas home.

¶ 9 Mr. Barajas called 911 on his cell phone and reported he was following a silver Taurus that had been involved in a shooting. He chased the car onto Interstate 82. Sunnyside Police Officer Skip Lemmon joined the pursuit, as did several Grandview and Prosser police officers. At one point, Officer Lemmon observed an object that he thought might be a gun fly by the mirror on the passenger side of his car. Later in the chase, Prosser Police Officer Shane Hellyer observed one of the Taurus passengers throw an object out the window that sparked when it hit a bridge railing over the Yakima River, although no evidence was found in a later search of the rough and rocky terrain in that area. After a several—mile chase at speeds reaching 110 mph, the Taurus was finally stopped by spike strips. Its occupants Anthony DeLeon, front seat passenger Octavio Robledo, and rear passenger Ricardo DeLeon, were arrested.

¶ 10 Ricardo DeLeon gave Sunnyside police detectives permission to search his Taurus automobile. Officers seized a red cooler, two Budweiser beer cans, two red bandannas, a pair of red dice, a digital scale, a bong, a plastic bag of marijuana inside a beer can, and a cell phone with Anthony DeLeon's name on the wallpaper.

¶ 11 The three suspects were taken to the Sunnyside police station where Detective Jose Ortiz administered Miranda³ warnings: first to Ricardo DeLeon at 2:30 a.m. on the morning of May 10; to Anthony DeLeon several hours later, at 7:03 a.m.; and to Octavio Robledo at 7:42 a.m. Each waived their rights and agreed to answer questions. All denied any involvement in the shooting at the Cardenas home.

¶ 12 All three defendants were ultimately charged by amended information with three counts of first degree assault while armed with a firearm and, as a sentencing aggravator, with intent to benefit a criminal street gang. Anthony DeLeon was additionally charged with attempting to elude a pursuing police vehicle.

¶ 13 Considerable time was devoted before trial to the State's wish to offer evidence of the defendants' alleged affiliation with the Norteño gang and evidence of gang culture, including expert testimony from Detective Ortiz of the Sunnyside Police Department, to show that the shooting was gang motivated. The defendants raised multiple objections to the State's introduction of such evidence. The court ultimately admitted evidence of the defendants' alleged affiliation with the Norteños, including to allow Detective Ortiz to testify as an expert on gang culture, over a standing defense objection. The court explicitly cautioned that the detective's expert testimony would be prejudicial and must be “carefully crafted” to avoid the impression that the defendants “must have done [the crime] because that's what the culture mandates.” RP at 581.

¶ 14 The defendants' theory of the case was misidentification. They suggested it was someone else's car from which the gunshots were fired and they were never at the Cardenas residence on the night of the shooting. They pointed to the fact that Mr. Barajas and the Mendoza sisters temporarily lost sight of the perpetrators' car during the chase, that Mr. Barajas had not been certain of the Taurus's color, that no guns or ammunition were found in the car or in the areas where police theorized guns had been discarded, and that the State failed to test any of the defendants' hands for gunshot residue. Although none of the defendants testified at trial, they asserted through other witnesses and argument that they had been drinking all day at a barbecue and were dropping Anthony off at his girl friend's residence when they randomly met up with the Barajas truck, whose occupants mistook Anthony's Taurus for the car involved in the shooting. They claimed they were intoxicated and only fled the police because there was marijuana and drag paraphernalia in their car. The defense also insinuated that the May 9 shooting was retaliation by an individual from a Sureño sect, the (VGLs).

¶ 15 The court denied a defense request to bifurcate trial of the gang aggravator and refused the defendants' proposed lesser included instruction for drive-by shooting. Although it denied defense motions to exclude all of the defendants' recorded statements and booking forms as testimonial hearsay of nontestifying defendants, it instructed the jury that it could consider a given defendant's out-of-court statements “as evidence against that defendant, but not as evidence against another defendant.” Robledo Clerk's Papers (CP) at 188. Over defense objection, the court also gave the following instruction on transferred intent:

If a person acts with intent to assault another, but assaults a third person, the actor is deemed to have acted with intent to assault the third person. The unintended victims do not need to be physically injured and the defendant need not know of their presence[.]

Anthony DeLeon CP at 627.

¶ 16 At the close of the State's case, the court denied defense motions to dismiss the assault counts and gang aggravators for insufficient evidence. It also denied a motion by Anthony DeLeon to dismiss the eluding charge based upon improper venue as untimely or waived.

¶ 17 At the end of jury deliberations but before the verdict was delivered to the court and read, it came to light...