State v. Martinez, 66658-4-I

• Decision Date: 22 October 2012
• Docket Number: 66674-6-I,66658-4-I
• Court: Court of Appeals of Washington
• Parties: STATE OF WASHINGTON, Respondent, v. PEDRO MARTINEZ and hector M. Veteta-Contreras, Appellants.

STATE OF WASHINGTON, Respondent,
v.
PEDRO MARTINEZ and hector M. Veteta-Contreras, Appellants.

Nos. 66658-4-I, 66674-6-I

Court of Appeals of Washington, Division 1

October 22, 2012

UNPUBLISHED OPINION

Lau, J.

In this consolidated appeal, Hector Veteta-Contreras and Pedro Martinez challenge their convictions for first degree robbery, attempted first degree robbery, and felony harassment. Veteta-Contreras also appeals his conviction for second degree assault. Together they raise numerous arguments. Finding no reversible error, we affirm their convictions.

FACTS ^[1]

Robbery of Flores-Cruz

On Friday nights, China Harbor Restaurant in Seattle hosts a Latin music nightclub. On the night of April 16, 2010, Robin Barrera, Denis Garcia, and Martin Monetti went to China Harbor together. They met Pedro Martinez and Hector Veteta-Contreras in the parking lot. Veteta-Contreras and Martinez told the three men that they were from El Salvador, flashed gang signs, and identified themselves as members of a Salvadoran street gang ("Mara Salvatrucha" or "MS-13"). Veteta-Contreras showed off a machete he was hiding in his pants, and Martinez displayed a revolver that he had tucked into his pants. Barrera testified that both Veteta-Contreras and Martinez appeared to be drunk or on drugs.

That night, Walter Flores-Cruz and his girl friend Teresa Sierra were dancing at China Harbor. Shortly after 1 a.m. on April 17, they left China Harbor and walked to their cars in the parking lot. As they talked outside their cars, four men, including Veteta-Contreras and Martinez, approached them. Speaking in Spanish, Veteta-Contreras demanded $20 from Flores-Cruz. Flores-Cruz, who grew up in El Salvador, recognized Veteta-Contreras's Salvadoran accent.

Flores-Cruz refused to give Veteta-Contreras money but Veteta-Contreras insisted, screaming at Flores-Cruz to give him money. Veteta-Contreras lifted his shirt and pulled out a machete. He said that he was "La Mara, " flashed an MS-13 gang sign, and declared, "[T]he beast is on the loose." Report of Proceedings (RP) (Dec. 14, 2010) at 541.

Flores-Cruz told Sierra to get in her car and as he opened her car door, he felt someone push him. Flores-Cruz pulled out a $20 bill and threw the money toward Veteta-Contreras. Martinez asked, "[W]hat did you throw [the] money for? You know, don't throw the money at him." RP (Dec. 14, 2010) at 540. Martinez told Veteta-Contreras to ask for another $20. Veteta-Contreras complied and Flores-Cruz handed him another $20 bill. Veteta-Contreras hugged Flores-Cruz and thanked him for the money.

The four men called Sierra names and blew her kisses. Veteta-Contreras tried to open her car door as she locked it and drove away. Flores-Cruz drove away in his own car and called the police. He reported that men with machetes and guns robbed him of $40. He later conceded at trial that he never saw a gun. Flores-Cruz testified that during the incident, the other two men were "standing there" in the background and he did not see their faces. RP (Dec. 14, 2010) at 537. Sierra recalled only Veteta-Contreras and Martinez; she did not remember two other men nearby.

Attempted Robbery of Duran-Acosta

Around the same time, Eliezer Duran-Acosta, his girl friend Tuiai Sefau, and his friends Juan Lopez-Pando and Michael Hackshaw were outside China Harbor. Duran-Acosta noticed a group of men, including Veteta-Contreras and Martinez, who appeared to be "look[ing] for a fight with someone else in a red car."^[2] RP (Dec. 15, 2010) at 691. Duran-Acosta testified that Veteta-Contreras, wearing a black shirt and black baseball cap, asked for $5. Duran-Acosta testified that Veteta-Contreras "was acting like he might have been on something" and could have been drunk or drugged. RP (Dec. 15, 2010) at 732. When Duran-Acosta refused, Veteta-Contreras grew more aggressive and Duran-Acosta pushed him away. Three other men approached Duran-Acosta, including a taller man wearing shorts and a white T-shirt who had tattoos on his arm. Duran-Acosta later identified this man as Martinez. Duran-Acosta testified that the men said they were gang members and Veteta-Contreras said, "I'm crazy. I'm Mara Salvatrucha." RP (Dec. 15, 2010) at 696.

Veteta-Contreras pulled out a machete and repeatedly asked Duran-Acosta for money. Duran-Acosta again refused and turned his back to Veteta-Contreras. Veteta-Contreras struck Duran-Acosta's back with the machete, cutting his shirt and bruising his shoulder.^[3] Duran-Acosta turned to face the men, and Martinez flashed a gun at him. Martinez warned Duran-Acosta's friend, Lopez-Pando, not to interfere or he would kill him. Veteta-Contreras punched Duran-Acosta, and Martinez told him to give Veteta-Contreras money.^[4] The China Harbor security guard noticed the altercation and approached the group. Veteta-Contreras and Martinez left, and Seattle police officers arrived shortly after.

Lopez-Pando noted Martinez's and Veteta-Contreras's Salvadoran accents and that all four men appeared to be drunk. He testified at trial that he was "100 percent" sure that Veteta-Contreras was the man who wielded the machete and Martinez was the man who displayed a gun and threatened to kill him.

Police Response

Officer Felix Reyes testified that shortly after 1 a.m. on April 17, 2010, he responded to a police radio call indicating that "[a]t China Harbor [there] was a robbery in progress with a knife."^[5] RP (Dec. 13, 2010) at 328. Officer Reyes and Officer Michael Virgilio arrived at China Harbor just as the bar was closing and people were crowding into the parking lot. Flores-Cruz flagged down the officers and told them he had called the police. Flores-Cruz led the officers to two men in the China Harbor parking lot. Bystanders in the area were yelling that there was "a subject with a gun in a parking lot." RP (Dec. 13, 2010) at 341, 344-44. The officers briefly drew their guns, ^[6]contacted the two men (Martinez and Barrera), and told them to get on their knees and sit down on the ground.^[7] Martinez and Barrera complied and sat near each other on the ground. Officer Reyes testified that Martinez wore a white shirt and Barrera wore what appeared to be a "gray argyle." RP (Dec. 13, 2010) at 339, 343. Officer Reyes searched Martinez and Barrera for weapons and found none.

Martinez and Barrera remained seated on the ground nearby while Officer David Terry questioned Flores-Cruz. Flores-Cruz told Officer Terry he was robbed by four men.^[8] Flores-Cruz looked at Martinez and identified him as one of the men who had robbed him. Flores-Cruz told Officer Terry that another man with a "big ass knife" had claimed to be a gangster and threatened to kill him. RP (Dec. 13, 2010) at 371. Flores-Cruz also looked at Barrera and told Officer Terry that Barrera was present when the other men demanded money, but Barrera did not say or do anything. Officer Terry immediately released Barrera. He then spoke to Martinez, who denied any involvement in the robbery or gangs. Martinez also lifted up his shirt to show Officer Terry he had "nothing." RP (Dec. 13, 2010) at 392-93. Officer Terry questioned Flores-Cruz again and asked him if he was certain Martinez had threatened him. Flores-Cruz responded he was certain, and Officer Terry arrested Martinez. Martinez later told the officer that he was from El Salvador.

Meanwhile, Officer John Schweiger spoke to Duran-Acosta and Lopez-Pando.^[9]Both men described how Martinez and Veteta-Contreras had confronted and threatened them. Duran-Acosta referred to the men as Mexican, but Lopez-Pando corrected him and said they were Salvadoran. Duran-Acosta stated that one man demanded money and hit him with "a piece of cable or a club" when he refused. Lopez-Pando said that the weapon was a machete. Duran-Acosta said the man who demanded money was short and wore a black T-shirt. Duran-Acosta said another man standing next to the first man lifted his shirt and displayed a gun when Duran-Acosta refused to give the first man money. He described the man with the gun as tall, skinny, tattoos on his arms, and dressed in a white shirt.

Officer Schweiger drove Duran-Acosta over to look at Martinez, who had been detained a short distance away. Duran-Acosta identified Martinez as the man with the gun. Officer Schweiger asked him if he was sure, and Duran-Acosta responded, "It looks like him." RP (Dec. 13, 2010) at 468.

Meanwhile, Garcia and Monetti walked back to Garcia's car. Monetti testified that Veteta-Contreras joined them and told them the police were coming. Monetti also testified that Veteta-Contreras "pulled out the machete and put it behind the bumper of a truck." RP (Dec. 15, 2010) at 840.

Officer Chris Hairston saw Garcia, Veteta-Contreras, and Monetti walking together. Because Garcia matched the suspect description, Officer Hairston got out of his patrol car, pulled out his gun, and ordered the three men to the ground. Garcia and Veteta-Contreras complied, but Monetti "threw an object into the bushes and then kind of stood there for a second . . . ."^[10] RP (Dec. 13, 2010) at 483. Monetti finally complied when Officer Hairston threatened to release his police dog. Monetti laughed, appeared drunk, and got up on his elbows as though to flee.

Officer Schweiger drove Duran-Acosta to the scene to identify the three men detained by Officer Hairston. Officers' in-car videos recorded the identification procedure. Duran-Acosta identified Veteta-Contreras as the man who had demanded money and hit him. Duran-Acosta also identified Monetti and told the officers he was not involved in the robbery. Duran-Acosta did not recognize Garcia.

Officers found Monetti's wallet in the bushes and returned it to him after checking his identification. Neither the machete nor the gun was ever recovered. Sergeant Barclay Pierson testified that when Veteta-Contreras and Martinez were booked into jail, Veteta-Contreras had $42.25 in his...