State v. Moreno

• Citation: 294 P.3d 812
• Decision Date: 12 February 2013
• Docket Number: No. 29692–0–III.,29692–0–III.
• Parties: STATE of Washington, Respondent, v. Jesse Antonio MORENO, Appellant.
• Court: Court of Appeals of Washington

294 P.3d 812

STATE of Washington, Respondent,

v.Jesse Antonio MORENO, Appellant.

No. 29692–0–III.

Court of Appeals of Washington, Division 3.

Feb. 12, 2013.

Dennis W. Morgan, Attorney at Law, Republic, WA, for Appellant.

James Patrick Hagarty, Yakima County Prosecuting Attorney's Off., Kevin Gregory Eilmes, Prosecuting Attorney's Office, Yakima, WA, for Respondent.

BROWN, J.

¶ 1 Jesse Antonio Moreno appeals his convictions for first degree assault and unlawful possession of a firearm. He mainly contends the trial court erred in denying his motion to suppress evidence found in a car trunk searched pursuant to a search warrant and in sentencing him to an above-range sentence based on a gang-aggravator factor found by the jury. First, while Mr. Moreno argues his arrest was unlawful, we conclude the challenged evidence was in any event seized pursuant to a valid search warrant. Second, based on this record, we conclude the trial court acted within its discretion in ordering Mr. Moreno's above-range sentence because sufficient evidence supports the gang-aggravator determination. Additionally, we reject Mr. Moreno's merger-based offender score argument but agree with his arguments that a domestic violence penalty and a jury fee were incorrectly imposed. Lastly, we find no merit in Mr. Moreno's pro se statement of additional grounds for review. Accordingly, we affirm Mr. Moreno's convictions and exceptional sentence, but remand for sentencing corrections.

FACTS

¶ 2 On October 15, 2009, Yakima Police Sergeant Joe Salinas responded to radio reports of shots fired in the 1500 block of McKinley Avenue and a “male wearing white jacket with dark jacket” seen running in a nearby alley. Report of Proceedings (RP) at 50. The ongoing reports started at 9:49 p.m. and continued with multiple 911 calls. A nearby officer reported shots fired. Rapidly, logged reports added that a house at the scene had been hit by gunfire and a vehicle was seen leaving the scene. Within about two minutes, Sergeant Salinas saw a car driving out of an alley at the scene “moving hurriedly,” considering the unpaved and rutted state of most alleys. RP at 52. Sergeant Salinas blocked the car and turned on his emergency lights to investigate. Before being instructed, one occupant put his hands up. The driver was later identified as Joshua Bojorquez. The front seat passenger was Mr. Moreno. A juvenile occupied the rear seat. The occupants were known by police to have Norteño gang associations.

¶ 3 Sergeant Salinas shined a spotlight into the car and found it odd “the driver's wearing a red shirt.” RP at 57. Sergeant Salinas knew the area had a violent crime history with many Sureño gang members living there who “claim blue” as their gang color. RP at 47–48. The rival Norteño gang claims the color red. Sergeant Salinas explained, “[n]obody wears a red shirt in that neighborhood unless they're asking for trouble, in my experience.” RP at 57. Considering all, he thought “this car is somehow involved or ... they can tell me more about what's happened.” RP at 57. He became more suspicious about the occupants' Norteño ties as he questioned them. He noticed Mr. Moreno had a distinctive haircut associated with the Norteño gang, a “Mongolian” cut that involves a tuft of hair topping the head. RP at 63–64. Suspiciously, Mr. Bojorquez denied he was the brother of Chris Bojorquez, a known Norteño gang member even though the last name is uncommon.

¶ 4 Sergeant Salinas asked the occupants if they had heard any gunshots or were shot at. Although the windows were rolled down, the occupants suspiciously denied hearing shots. He explained “these individuals hadn't heard anything, which leads me to believe there's more to the story.” RP at 66. Additionally suspicious, the occupants said they were smoking marijuana while in the alley but the Sergeant did not smell marijuana, although another officer at some time apparently did smell marijuana on the juvenile passenger. While waiting for other officers to arrive, he removed Mr. Bojorquez before turning to Mr. Moreno to “freeze the scene.” RP at 68. Controlling the scene was required to investigate and secure the shooting scene and partly “so that they don't have the time to communicate with each other and get their stories straight.” RP at 68. Mr. Moreno was identified, frisked, handcuffed, and put in the back of a patrol car apart from the others.

¶ 5 Mr. Bojorquez gave permission to search the car interior, but not the trunk. This raised Sergeant Salinas' suspicion because many people involved in illegal activity know that a trunk or glove compartment cannot be searched without a warrant “and in five years of running the gang unit, that's exactly where they hid all their guns.” RP at 71. He searched the car's passenger compartment, finding no evidence related to a shooting or marijuana use. Meanwhile, a witness approached and told Sergeant Salinas his house had been hit by gunfire. At this point in the investigation, officers were still determining if bullets came from the stopped car or whether they were directed at the car.

¶ 6 Sergeant Erik Hildebrand, gang unit supervisor, responded to the scene shortly after 10:00 and took over the investigation after being advised of the circumstances by Sergeant Salinas. Sergeant Hildebrand questioned Mr. Bojorquez about why he was in the neighborhood. Sergeant Hildebrand explained: “[T]hese guys are all known and documented north side gang members or associates in a well-known south side gang neighborhood.” RP at 177. Mr. Bojorquez and Mr. Moreno basically gave the same explanation of driving around, smoking marijuana, getting lost, and ending up in the alley. The juvenile occupant added he was in the area to spray-paint graffiti. After waiting for a drug recognition expert's arrival, Mr. Bojorquez was arrested for driving offenses.

¶ 7 Sergeant Hildebrand interviewed Edgar Ortiz who repeated his earlier 911 report that he had heard shots, looked through his bedroom window, and saw a man shooting a gun near the corner of McKinley Avenue and Lewis Street who ran south on Lewis toward the alley after firing. Sergeant Hildebrand drove Mr. Ortiz to where Mr. Moreno was being held for a “show-up” identification. RP at 184. Mr. Ortiz tentatively identified Mr. Moreno, believing he had the same hair and build as the shooter, but he could not be sure because the shooter was wearing a hat and it was dark outside.

¶ 8 Officer Ileanna Salinas talked to several witnesses. They told her they had looked in the alley after hearing gunshots and saw the car that police had stopped going east down the alley. She found a black knit glove and a baseball cap in the alley. The glove was later DNA ¹ connected to Mr. Moreno. The hat was later DNA connected to both Mr. Moreno and Mr. Bojorquez. She helped search the vehicle interior and found a sweatshirt she believed could be described as a dark jacket with a white stripe on the sleeve. The glove matched one later found in the car's trunk pursuant to a search warrant. When found, the hat and glove seemed warm and dry even though it had been wet out recently and the ground was muddy.

¶ 9 Based on the developed facts, Sergeant Hildebrand asked Officer Chris Taylor to get a search warrant. Sergeant Hildebrand believed the car's occupants were hiding guns in the trunk. Officer Taylor called Judge Susan Woodard around 10:50 p.m. to get the warrant. He asked to search the trunk for firearms and firearm paraphernalia based on sworn facts detailed in our analysis. Judge Woodard granted the warrant request. Officer Taylor found a sawed-off .12 gauge shotgun, a .357 Magnum revolver with six empty .38 shell casings in the trunk. He later applied for and received a search warrant to search the trunk for clothing, finding, a matching black knit glove and a dark sweatshirt with a white lining. At trial, a ballistics expert opined that tests connected the revolver and casings to slugs collected at the scene.

¶ 10 Around 11:00 p.m., Troy Caoile called the police to report someone had shot at him. Sergeant Hildebrand spoke with him. Mr. Caoile related he had been walking north up Lincoln Avenue when somebody in a blue car yelled something about “south side.” RP at 189. At trial, Mr. Caoile testified it was “South side LVL,” and he believed the blue car he saw stopped at the end of the alley was the same car from which someone yelled “South side LVL.” RP at 1346. “LVL” refers to the Little Valley Locos subset of the Sureños. RP at 1390. Mr. Caoile understood “South side LVL,” to refer to the Sureños gang and said nothing in return. Mr. Caoile had lived in the area and knew “north siders don't go over there, and that's where the Surenos are hanging out at.” RP at 1362. Mr. Caoile kept walking east on the 1500 block of McKinley Avenue until a man jumped out from around the corner at Lewis Street and began shooting at him. He said that the shooter had some facial hair and was wearing a black hooded sweatshirt over a baseball cap. Mr. Caoile first identified Mr. Moreno from a photo montage and later identified Mr. Moreno at trial. Calling out “south side” Sergeant Hildebrand explained at the suppression hearing would be useful for Norteños in identifying a rival gang member as a target.

¶ 11 The State charged Mr. Moreno with first degree assault and unlawful possession of a firearm. Mr. Moreno moved to suppress all of the evidence found in the trunk. The court concluded that the stop and detention of Mr. Moreno was lawful and that evidence in the trunk was obtained as a result of a valid search warrant rather than the arrest of Mr. Moreno.

¶ 12 At trial, the State's theory was a gang related shooting while “putting in work” by Mr. Moreno with Mr. Bojorquez as an accomplice. Mr. Caoile testified as noted above and identified Mr. Moreno as the shooter. Sergeant Salinas, Officer Salinas, and Sergeant Hildebrand testified about particular characteristics of...