State v. Fregoso-Guerrero, 30439-6-III

• Decision Date: 20 February 2014
• Docket Number: No. 30439-6-III,30439-6-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. ANGEL A. FREGOSO-GUERRERO, Appellant.

STATE OF WASHINGTON, Respondent, v. ANGEL A. FREGOSO-GUERRERO, Appellant.

No. 30439-6-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

Filed: February 20, 2014

UNPUBLISHED OPINION

SIDDOWAY, A.C.J. — After the trial court entered findings and conclusions on an accomplice's suppression motion, Angel Fregoso-Guerrero stipulated to those findings and conclusions for purposes of his own suppression motion, which was denied. He argues on appeal that the stipulation to findings from a hearing he did not attend violated his right to be present at all critical stages of the proceedings, that no evidence was presented in the hearing on his own suppression motion, and that the court's findings do not support a conclusion that his detention was lawful. The parties' arguments on these issues reveal a probable misunderstanding on everyone's part about the extent and effect of the parties' stipulation.

Supplementally, and with our leave, Mr. Fregoso-Guerrero demonstrates that he never validly waived his right to trial by jury. A new trial will therefore be required.

Because a new trial is required, and in light of what we perceive to be a genuine misunderstanding over the extent and effect of the stipulation to facte and conclusions from another defendant's suppression hearing, we grant Mr. Fregoso-Guerrero's request for a new hearing on his suppression motion.

We reverse and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

The State charged Mr. Fregoso-Guerrero and Enrique Retana Gonzalez with second degree burglary and second degree theft after sheriff's Deputy Lee Risdon found a stolen boat motor in the men's sport utility vehicle (SUV). Both men filed CrR 3.6 motions to suppress. The court ruled on Mr. Retana Gonzalez's motion first, and denied it.

At the hearing on Mr. Fregoso-Guerrero's motion, the State and Mr. Fregoso-Guerrero agreed to adopt the findings and conclusions from Mr. Retana Gonzalez's hearing. An interpreter read the findings and conclusions to Mr. Fregoso-Guerrero and he signed a copy of them.

The trial court's key findings at Mr. Retana Gonzalez's suppression hearing supporting Deputy Risdon's decision to pull over the SUV were of specific facts leading the deputy to "suspect[ ] the driver[, Retana Gonzalez,] might be under the influence ofalcohol based on the erratic driving and the location of the vehicle having been parked along the fog line facing the wrong direction." Clerk's Papers (CP) at 28 (Finding of Fact 10).¹

The trial court's conclusions of law based on its findings addressed only "the suspect," meaning Mr. Retana Gonzalez. It concluded:

1. The court finds the initial interference with the suspect's freedom of movement was justified at its inception. Here, Deputy Risdon's initial contact with the vehicle consisted of the use of his spotlight simply to illuminate the vehicle. There was no interference with the suspect's freedom of movement at that point.

2. When the vehicle and its occupants, acting in a suspicious manner, rapidly accelerated and drove in an erratic manner across the roadway and down Ohme Road, Deputy Risdon possessed reasonable suspicion to stop the vehicle.

3. The court concludes that a traffic stop on this vehicle was a reasonable interference with the suspect's freedom of movement. The vehicle was stopped in the middle of the road with the motor running and the keys in the ignition. The occupants, including the driver, fled the vehicle and it was reasonable for the deputy to make contact with the driver to find out at that point whether the driver was under the influence of intoxicants or exactly what was going on in this situation.

4. The court further concludes that based on the totality of the circumstances, the deputy's interference with the suspect's freedom of movement was reasonably related in scope to the circumstances which justified the interference in the first place. The court considered the deputy's training and experience, the deputy being a 5-year veteran of the Chelan County Sheriff's Office, the location of the stop, the time of the stop (1:10 a.m.), the conduct of the suspect which included his attempted flight, and the erratic driving of the vehicle by the suspect/defendant in determining that reasonable suspicion existed for a detention of the driver.

CP at 30-31 (emphasis added). The court made additional findings in support of the deputy detaining Mr. Retana Gonzalez following the stop, including that he smelled strongly of intoxicants and had bloodshot eyes.

Deputy Risdon had actually chased and captured Mr. Fregoso-Guerrero first, however. The trial court's findings relating to Mr. Fregoso-Guerrero were that after Mr. Retana Gonzalez stopped in the middle of the roadway "[t]hree individuals fled from the vehicle" and Deputy Risdon "caught the driver's side passenger . . . . He was lateridentified as Angel A. Fregoso-Guerrero." CP at 28-29. The officer also later discovered what appeared to be a stolen boat motor in plain view from outside the SUV, but that was after he had already chased, captured, and handcuffed Mr. Fregoso-Guerrero.

Having considered the parties' stipulation to the facts and conclusions, the trial court accepted them and ruled that Deputy Risdon had lawfully seized Mr. Fregoso-Guerrero.

Following the ruling, the prosecutor informed the court that "the second portion of our hearing this morning . . . is actually to do a stipulated facts trial on this case." Report of Proceedings (RP) at 3. The stipulated facts trial consisted in its entirety of the State offering police reports into evidence without objection and the trial court, on the basis of the police reports, finding Mr. Fregoso-Guerrero guilty and sentencing him.

Mr. Fregoso-Guerrero appeals.

ANALYSIS

Mr. Fregoso-Guerrero raises four issues: that (1) the trial court's reliance on the facts and conclusions from Mr. Retana Gonzalez's suppression hearing violated his right to be present at all critical stages of the proceeding, (2) there was no evidence in the record of Mr. Fregoso-Guerrero's case sufficient to sustain the findings, (3) the stipulated findings do not demonstrate reasonable suspicion for chasing and seizing Mr. Fregoso-Guerrero after he fled the SUV, and (4) there is no evidence of a knowing and voluntary waiver by Mr. Fregoso-Guerrero of his right to a jury trial. We first address Mr. Fregoso-Guerrero's argument that he did not validly waive his right to a jury trial. We then consider, collectively, the issues relating to the hearing on his motion to suppress.

I. Does the record demonstrate a knowing and voluntary

waiver of the right to a jury trial?

Mr. Fregoso-Guerrero argues that there is an insufficient showing that he voluntarily and knowingly waived his right to a jury trial.

The federal and state constitutions both guarantee the right to a jury trial. U.S. CONST. amend VI; CONST. art. I, § 21. The right may be waived, but it must be done so voluntarily, knowingly, and intelligently. City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984). The State has the burden to demonstrate that the waiver is valid. State v. Wicke, 91 Wn.2d 638, 645, 591 P.2d 452 (1979). If the record is insufficient to demonstrate that the waiver was valid, the court will make every reasonable presumption against validity. Id. Whether the waiver is valid is an issue of law that we review de novo. State v. Ramirez-Dominguez, 140 Wn. App. 233, 239, 165 P.3d 391 (2007).

The record is sufficient to demonstrate a valid waiver only if it shows that the defendant personally waived the right. State v. Hos, 154 Wn. App. 238, 250, 225 P.3d 389 (2010) (citing Wicke, 91 Wn.2d at 644). Although CrR 6.1 requires a written waiver, a record showing that the defendant orally waived the right may be sufficient to prove a valid waiver for constitutional purposes. Id. However, a statement by defense counsel that the defendant waived the right is insufficient. Id. In Wicke and Hos, defense counselstated that their clients waived the right to a jury trial while their clients stood silently by. Wicke, 91 Wn.2d at 641; Hos, 154 Wn. App. at 244. In both cases, the court reversed because the record did not show that the defendant had personally expressed the waiver. Wicke, 91 Wn.2d at 645; Hos, 154 Wn. App. at 252. Even if waiver was implied by the defendant's conduct, the conduct was not strong enough evidence of waiver to meet constitutional requirements. Wicke, 91 Wn.2d at 645.

Here, the record includes no written or oral waiver of jury trial by Mr. Fregoso-Guerrero, or even a purported waiver by his lawyer—the subject simply never came up.

The State nonetheless argues, based on United States v. Ferreboeuf, 632 F.2d 832 (9th Cir. 1980), that Mr. Fregoso-Guerrero signed a stipulation and, without evidence to the contrary, the trial court was free to assume that he knew about and agreed to its contents. Resp. to Appellant's Suppl. Br. at 3. First of all, the document signed by Mr. Fregoso-Guerrero said nothing about waiving his right to jury trial; the most that can be said for it is that it was prepared for signature by a judge. Secondly, Ferreboeuf did not raise any issue of waiving a jury trial—in fact, the defendant in Ferreboeuf was tried by a jury. The decision dealt instead with whether the court was required to establish that a defendant's stipulation to a critical fact was voluntary (it answered "no"). Since a stipulated facts trial can be presented to a judge or a jury, the mere act of stipulating to facts says nothing about jury waiver.

As pointed out by Mr. Fregoso-Guerrero, the record here is even less adequate than the records in Wicke and Hos to demonstrate a knowing and voluntary waiver of Mr. Fregoso-Guerrero's right to trial by jury. A new trial is required.

II. Should the trial court's denial of Mr. Fregoso-Guerrero's

suppression motion be affirmed?

Mr. Fregoso-Guerrero makes three related arguments challenging the trial court's...