State v. Gallegos

• Decision Date: 23 June 2020
• Docket Number: 36387-2-III
• Parties: STATE OF WASHINGTON, Respondent, v. ELI GALLEGOS, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. ELI GALLEGOS, Appellant.

No. 36387-2-III

Court of Appeals of Washington, Division 3

June 23, 2020

UNPUBLISHED OPINION

Fearing, J.

Eli Gallegos appeals convictions for possession of a controlled substance and criminal trespass. He asks that we vacate the first conviction and dismiss the charges because strict liability for possession of a controlled substance violates due process. He asks that we vacate his second conviction because a jury instruction misstated an element of the crime of criminal trespass. We deny his first request and grant his second request.

FACTS

The prosecution of Eli Gallegos stems from his visit to Elizabeth Sauer's residence on March 4, 2018. The facts begin years before. Gallegos and Elizabeth Sauer's adult daughter previously maintained a romantic relationship. After the relationship ended, Elizabeth Sauer told Gallegos at least fifteen times he was no longer welcome at her home. All of these comments occurred before 2017. Sauer never expressly stated to Gallegos how long her disinvitation lasted.

On February 24, 2017, Eli Gallegos went to Elizabeth Sauer's home despite Sauer's instruction to stay away. Sauer told Gallegos to leave her premises, but Gallegos refused. Sauer called 911 to report a trespass. Gallegos then left in his car. Whitman County Sheriff Deputy Dan Brown responded to Sauer's call and, on the way to the home, passed Gallegos' vehicle. Deputy Brown stopped Gallegos' car and spoke to Gallegos during the traffic stop. Brown told Gallegos he lacked permission to return to Sauer's home and he would be arrested for trespassing if he did so. Brown handed Gallegos no paperwork. Brown did not tell Gallegos for how long he could not return to the Sauer house or that the trespass warning was permanent.

On March 4, 2018, Eli Gallegos went again to Elizabeth Sauer's home. Gallegos once again wished to see Sauer's adult daughter, who was recently released from jail. Gallegos wished to offer her money. On Gallegos' arrival at Sauer's residence, Sauer instructed him to leave, and, when he refused, Sauer called the police. Because she returned inside the residence to call, Sauer does not know how long Gallegos remained on her property.

Whitman County Sheriff Sergeant Michael Jordan responded to the March 4, 2018 call from Elizabeth Sauer. Sergeant Jordan went to Eli Gallegos' home, where Gallegos admitted to earlier being at Sauer's property. Sergeant Jordan placed Gallegos under arrest, but did not then handcuff Gallegos. Jordan asked Gallegos questions about events at Sauer's home. Gallegos walked toward the kitchen. A struggle between Jordan and Gallegos, partially captured by Sergeant Jordan's body camera video, ensued.

Eli Gallegos and Sergeant Michael Jordan disagree as to what occurred when Gallegos went to the kitchen, and the video does not resolve the discrepancies. Sergeant Jordan testified that Gallegos placed his hand in his right front pant pocket as he turned to the kitchen. Jordan grabbed Gallegos to stop him from entering the kitchen, and the small struggle ensued. Throughout the struggle, Jordan could see Gallegos' hands and saw him trying to hide something in a kitchen drawer. Coins fell from Gallegos' right hand, but Gallegos' kept a firm grasp on a small bag. Content in the bag later tested as methamphetamine. According to Sergeant Jordan Gallegos' hand never entered his jacket pocket.

Eli Gallegos testified that the small bag was in the pocket of a jacket, located in the kitchen, which jacket he went to retrieve after Sergeant Michael Jordan told him he was under arrest. Gallegos donned the jacket, went to take money from the pocket, and placed the money in his couch. Gallegos claimed a neighbor, who was in the process of moving, owned the jacket, and Gallegos disclaimed knowledge of a bag being inside the pocket of the jacket. Gallegos averred that he wished to purchase a washer and dryer, so he went to the neighbor's home to view appliances. The neighbor informed Gallegos that he had a leak in his sink, and Gallegos offered to help fix the leak. While repairing the sink, Gallegos dampened his shirt. The neighbor handed Gallegos his jacket and a watch as payment, because the neighbor lacked funds to pay. Unbeknownst to Gallegos, the jacket pocket contained a package of methamphetamine.

After being placed in handcuffs, Eli Gallegos, in response to further questioning, revealed that he remembered being told a year earlier, by Deputy Dan Brown, not to return to the Sauer residence.

PROCEDURE

The State of Washington charged Eli Gallegos with a felony possession of a controlled substance, methamphetamine, and with a misdemeanor, criminal trespass in the second degree. Before trial, the trial court conducted a CrR 3.5 hearing during which it ruled to admit as trial evidence statements made by Eli Gallegos to Deputy Dan Brown and Sergeant Jordan Michael.

We relate some of the testimony at trial because of its importance in determining whether to reverse the conviction for criminal trespass. Whitman County Sheriff's Sergeant Michael Jordan testified:

Q Did you ask Mr. Gallegos [when you arrested him on March 4 2018] if he recalled the contact with Sgt. Jordan about being trespassed?

A With Sgt. Brown?

Q Sorry. With Sgt. Brown.

A Yes, I did.

Q Okay. And did he recall that-interaction?

A Yes, he did.

Q Okay.

Report of Proceedings (RP) at 86.

Eli Gallegos testified during trial:

Q And so, -how was it that this baggie that we saw here today, how did that come to be on you?

A Well, I-I didn't even know-the-the-got the jacket, it was hanging by the wall. I didn't know what-was in it. But when he came-I was eating tacos, with no shirt, and he told me that was me arrested by trespassing, so I asked him-I didn't know (inaudible) trespassing but- put-jacket on, put it on-before we had to go had to pat-(inaudible), and I was-I was trying to look for my-my money to get-to put it in the couch, and he searched the jacket (inaudible) was a little baggie inside the jacket, which I didn't even know. And that's-So I told-I told-

. . . .

And-officers came in saying that-I was not-I was arrested because I was-(inaudible) supposed to be, which I didn't even know-

RP at 105, 107 (emphasis added).

The trial court delivered two jury instructions relevant to this appeal. First, jury instruction 10, which declared in its entirety:

To convict the defendant of the crime of criminal trespass in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about 4th day of March, 2018, the defendant knowingly entered or remained in or upon the premises of another;

(2) That the defendant knew that the entry or remaining was unlawful; and

(3) That this act occurred in the Whitman County.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk's Papers (CP) at 28 (emphasis added). Jury instruction 11 read:

A person knows or acts knowingly or with knowledge with respect to a fact when he is aware of that fact. It is not necessary that the person know that the fact is defined by law as being unlawful or an element of a crime.

If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he acted with knowledge of that fact.

When acting knowingly as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally as to that fact.

CP at 29 (emphasis added).

The State's closing argument echoed jury instruction 11 and asked the jury to consider what a reasonable person would know:

Now a-jury instruction, No. 11, like to draw your attention to that second paragraph, there. If a person has information that would lead a reasonable person in the same situation to believe that a fact exists the jury is permitted but not required to find that he acted with knowledge of that fact.

Well a reasonable person would know after being informed by law enforcement that if they return they're going to be arrested, that they're trespassed from the property. A reasonable person would know that they are not supposed to go back to that property, that it would be unlawful for them to go back to that property. And a reasonable person would know, if a property owner told them 15 to 20 times that they are not welcome, that they are not to be here, a reasonable person would know that it would not be lawful for them to go to that property. And a reasonable person would know, after being told to leave, and that they were going to call the police, that they need to leave and that they are not there lawfully.

Mr. Gallegos knew he was not supposed to be there, and he went to the property anyway, and he stayed at the property anyway.

RP at 126-27 (emphasis added).

The jury found Gallegos guilty on the charges of possession of a controlled substance and criminal trespass.

At sentencing, the superior court clerk's file contained a financial information completed by Eli Gallegos. Gallegos, on this form, requested appointment of an attorney for the superior court trial at public expense. Gallegos averred he received income of $1, 000 monthly and owned no assets. He marked the form's box that disclosed he received income from social security.

At the beginning of the sentencing hearing, Eli Gallegos' attorney submitted paperwork requesting that Gallegos be...