State v. DeSantiago

CourtCourt of Appeals of Washington
Citation33 P.3d 394,108 Wash.App. 855
Docket Number No. 18743-8-III, No. 18759-4-III, No. 18747-1-III, No. 18776-4-III, No. 18809-4-III.
PartiesSTATE of Washington, Respondent, v. Armando Mayorga DeSANTIAGO, Enrigue DeSantiago, Pedro Mendoza Caranza, Victor Carrillo Diaz, Elpidio Ramirez Reyes, Appellants. State of Washington, Appellant, v. Armando Mayorga DeSantiago, Respondent.
Decision Date03 July 2001

Antonio Salazar, Russell Abrutyn, Seattle, for Appellants in No. 18743-8-III and Respondents in No. 19063-3-III.

John D. Knodell, III, Pros. Atty., Ephrata, for Respondents in No. 18743-8-III and Appellants in No. 19063-3-III.

KURTZ, Chief Judge.

After two trials, Armando DeSantiago, Enrigue DeSantiago, Pedro Caranza, Victor Diaz, and Elpidio Reyes were convicted of first degree kidnapping. The jury returned special verdicts finding that the defendants were armed with a deadly weapon and a firearm at the time of the kidnapping. Three issues are raised in this consolidated appeal. First, did the court err by admitting the prior testimony of three witnesses based on their unavailability at the time of the second trial? Second, did the court err in allowing additional charges to be filed shortly before the second trial? Third, did the court improperly sentence four of the defendants to consecutive firearm and deadly weapon enhancements when there was only one predicate offense?

We conclude that the court properly admitted the prior testimony of the three witnesses under ER 804(b)(1). We further conclude that the trial court did not abuse its discretion by allowing the amendment of the criminal information to add additional criminal charges because the amendments did not prejudice the substantial rights of the defendants. Finally, we conclude that the court erred by imposing sentence enhancements for both the deadly weapon and the firearm.

FACTS

Armando DeSantiago, Enrigue DeSantiago, Victor Diaz, Pedro Caranza, and Elpidio Reyes were charged with first degree kidnapping based on events occurring between February 19-22, 1999. The first trial ended in a mistrial. Prior to the second trial, additional charges were filed, including charges of first degree burglary. Days before the start of the second trial, the State informed the court that it was unable to locate three witnesses and that the State would seek to offer their testimony from the first trial pursuant to ER 804. At a hearing on this issue, the court determined that the witnesses were unavailable and admitted the former testimony.

The following testimony—consisting of former testimony—was introduced at the second trial from the three witnesses who were found to be unavailable.

Testimony of Eduardo Sanchez. Mr. Sanchez testified that at the time of the incident, he lived in a trailer in Othello, Washington, with his wife, Reina Serrano, and their infant son. Silviano Ruiz was also staying with them and had moved into the trailer two weeks before. On the evening of February 19, 1999, Mr. Sanchez was home with his wife and child. Shortly after midnight, the family left the trailer to get some medicine for Ms. Serrano, who was having a headache. When they returned to the trailer, they observed a man in a parked car. As they approached their trailer, they were confronted by three other men. One man told Mr. Sanchez to get out of the car. When Mr. Sanchez refused, three men took him out of the car and put a pistol and a knife to him. Mr. Sanchez was placed in the other vehicle while his wife remained in his car. Mr. Sanchez was then taken to a motel room where he was held for two days and two nights.

Mr. Sanchez identified the four men who took him as Mr. Reyes, Mr. Caranza, Mr. Diaz, and Enrigue DeSantiago. The men told Mr. Sanchez that they were looking for Silviano Ruiz because he owed them money. Mr. Sanchez was told he would be killed or hurt if he tried to escape. Mr. Sanchez stated that his kidnappers were armed with a gun and a knife. He further stated that, at different times, Armando DeSantiago, Enrigue DeSantiago, and Mr. Caranza held the gun. Mr. Reyes was the one who had the knife. The men made several telephone calls and allowed Mr. Sanchez to tell his family that he was fine. The men spoke to Ms. Serrano. Mr. Sanchez heard the men ask for money during some of the telephone calls.

After two days and two nights, the five men drove Mr. Sanchez to Moses Lake and parked near a Burger King. On the way, one of the men called Mr. Sanchez's father, Jose Sanchez, on a cell phone. While parked at the Burger King, Jose Sanchez appeared and came toward the car. Eduardo Sanchez was allowed to get out of the car and was later taken to the police station.

Testimony of Reina Serrano. Ms. Serrano corroborated Mr. Sanchez's story concerning the events outside their trailer shortly after midnight on February 20. Ms. Serrano testified that a number of men came around the trailer and pulled Mr. Sanchez out of the car; one of the men put a pistol to her husband's neck. But, Ms. Serrano saw no weapons other than the gun. When Ms. Serrano went back in the trailer, she noticed damage that was not there before, including some cut telephone wires and some pictures that had fallen down; there were also open cans of soda in the kitchen. Ms. Serrano spoke to police and later received a telephone call from her husband in which he told her that he was okay. Ms. Serrano stated that she continued to live with Jose Sanchez until the time of the (first) trial. Testimony of Jose Sanchez. Jose Sanchez testified that Ms. Serrano came to his house on the day that his son was kidnapped. Once she arrived, she continued to stay at his house. According to Jose Sanchez, the police contacted him at his house and his son called to say that he was okay. Jose Sanchez later received a telephone call informing him that his son had been taken because Mr. Silviano owed money to the men. At first, Jose Sanchez was told that the men wanted 23 pesos which he interpreted to mean $23,000. In later calls, he was told to try to get $11,000 and the rest he could pay later. The police told Jose Sanchez to tell the men to come and get the money in Moses Lake. The men agreed to meet in Othello and said they wanted $11,000 before they would hand over Mr. Sanchez. Later, it was agreed that they would meet on the outskirts of Moses Lake.

Jose Sanchez went to the agreed-upon location, turned over the money, and his son was released. On cross-examination, Jose Sanchez admitted that he did not know who was talking on the telephone and could not identify the person or persons by name. He also could not identify any of the men he saw at the Moses Lake exchange location as being one of the defendants.

The following testimony was obtained from witnesses who testified at the second trial.

Testimony of Silviano Ruiz. Mr. Ruiz testified that prior to this incident, he knew all of the defendants except for Mr. Caranza and Mr. Reyes. Mr. Ruiz stated that he worked as a driver for the DeSantiagos and Mr. Diaz, and was paid $1,000 on each occasion that he delivered a car to Pasco from California. Mr. Ruiz did not know what was in the cars but on one occasion he saw Armando DeSantiago, Enrigue DeSantiago, and Mr. Diaz put the car in the garage and start taking off the doors. Mr. Ruiz was given a car to drive from California in January 1999, but the car broke down near Weed, California. Mr. Ruiz left the car on the side of the road and called the DeSantiagos. They told him to go back to the car. When he refused, they told him things would go badly for him if he did not go back. Mr. Ruiz returned to California because he was afraid to go back to the car. He stayed in California for one or two weeks, but returned to Washington and moved in with Eduardo Sanchez and Reina Serrano after being introduced to the family by his cousin.

Mr. Ruiz also testified as to his contacts with police after Mr. Sanchez's abduction. At one point, Mr. Ruiz spoke to Mr. Diaz and Armando DeSantiago and was told they wanted money.

Testimony of Police Officers. Police were contacted immediately after the alleged abduction. Several officers testified as to their involvement in the investigation, the interception and recording of telephone conversations, the steps to obtain the pre-recorded "buy money," the surveillance activities at the exchange location, and the felony stops of the defendants' cars after Mr. Sanchez was released. Felony stops were conducted on two cars, a white Caprice and a Honda, and the five defendants were taken into custody. A Colt .45 caliber pistol was recovered from the rear seat of the Honda. The pre-recorded police buy money was recovered from a sack on the right front passenger floor of the Honda. A thin-bladed knife was removed from Mr. Reyes.

Testimony of Enrigue DeSantiago. Mr. DeSantiago testified that he met Eduardo Sanchez in December 1998. Mr. DeSantiago next saw Mr. Sanchez on the night of February 19, 1999, when Mr. DeSantiago gave Victor Diaz, Elpidio Reyes, and Pedro Caranza a ride to Moses Lake and they went to the Sanchez trailer. Mr. Diaz knocked at the door but returned to the car when no one answered. A short time later, another car drove up and Mr. Diaz got out of his car, walked over and talked to what appeared to be friends of his. Mr. Diaz returned to the car and brought Mr. Sanchez with him; Mr. Diaz stated that Mr. Sanchez was going to help them look for his brother, Jorge Sanchez. They stopped and got beer and gas before returning to the Tri Cities. In the Tri Cities, Mr. Diaz suggested that they get a hotel room where they talked and drank beer until 2:30 A.M.

Mr. DeSantiago returned to the hotel the next day; everyone was talking, drinking, and watching television. He returned to the hotel room a second day, Sunday, February 21. During this time, he let Mr. Diaz use his cell phone. Mr. DeSantiago returned to the hotel room Sunday...

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6 cases
  • State v. DeSantiago, 71918-7.
    • United States
    • United States State Supreme Court of Washington
    • May 15, 2003
    ...enhancement. The Court of Appeals affirmed the convictions but held for the defendants on the sentencing issue. State v. DeSantiago, 108 Wash.App. 855, 881, 33 P.3d 394 (2001). (1) Was the former testimony admissible under the confrontation clause of the Sixth Amendment and ER 804? (2) Do b......
  • State v. Skylstad, 20944-0-III.
    • United States
    • Court of Appeals of Washington
    • October 7, 2003
    ...than one underlying offense, it clearly could do so.' Spandel, 107 Wn. App. at 358-59. Mr. Skylstad argues that State v. DeSantiago, 108 Wn. App. 855, 33 P.3d 394 (2001), aff'd in part, rev'd in part, 149 Wn.2d 402, 68 P.3d 1065 (2003) is controlling. In DeSantiago, five defendants were con......
  • People v. Williams, 93573.
    • United States
    • Supreme Court of Illinois
    • April 3, 2003
    ...would also prevent the improper use of the speedy-trial statute as a sword instead of a shield. See, e.g., State v. DeSantiago, 108 Wash. App. 855, 874-75, 33 P.3d 394, 402-03 (2001) (speedy-trial period begins to run with the earliest-filed charge in a compulsory-joinder setting and delays......
  • State v. Thompson, 70235-1-I
    • United States
    • Court of Appeals of Washington
    • November 17, 2014
    ...Morrow. However, a subpoena would be pointless without any knowledge of Morrow's whereabouts. State v. DeSantiago, 108 Wn.App. 855, 33 P.3d 394 (2001) (witness who could not be located held unavailable), aff'd in part, rev'd in part on other grounds, 149 Wn.2d 402, 68 P.3d 1065 (2003). The ......
  • Request a trial to view additional results

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