State v. Ozuna
| Decision Date | 15 July 2014 |
| Docket Number | No. 31208-9-III,31208-9-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ADRIAN BENTURA OZUNA, Appellant. |
BROWN, J. — Adrian Bentura Ozuna appeals his intimidating a witness conviction. He contends (1) the trial court erred in denying his CrR 3.6 motion to suppress, (2) the record lacks sufficient evidence for the jury to find the communication of an actual threat and the presence of gang aggravators, (3) the trial court improperly imposed a domestic violence (DV) assessment and costs of incarceration, and (4) a police officer improperly provided a sentencing statement. In his pro se statement of additional grounds for review (SAG), Mr. Ozuna contends the court erred in admitting gang evidence under ER 404(b). We accept the State's error concession concerning the imposition of the DV assessment, but find no error in Mr. Ozuna's other contentions. Accordingly, we affirm and remand to delete the DV assessment.
While Mr. Ozuna was incarcerated at the Yakima County Jail on June 8, 2010, he was moved from one unit to another unit. Before the move, Mr. Ozuna's belongings were searched. Corrections officers found two letters Mr. Ozuna admits he wrote that were addressed to "Primo" and signed by "Primo." Report of Proceedings (RP) at 318. The Washington State Patrol Crime Lab for Forensic Analysis later determined the handwriting was Mr. Ozuna's. The letters contained threatening language that officers believed were directed at Augustin Jaime Avalos, Mr. Ozuna's fellow gang member, but a witness against him in a previous criminal case. One of the letters states, "bad things come to those that snitch." RP at 279. One letter called the recipient a "fucking trader" and that another gang "can have him." RP at 279. Soon after, Mr. Avalos was attacked in a jail holding cell. He received lacerations to his scalp and his upper lip. David Soto was the inmate who attacked Mr. Avalos. Mr. Ozuna, Mr. Avalos, and Mr. Soto all have ties to a gang known as the Surerlos.
On June 25, 2010, Mr. Ozuna made a telephone call from the jail. The call indicated that he had been written up for witness tampering. He wanted to explain to the judge that he was mad when he wrote the letters.
The State charged Mr. Ozuna with intimidating a witness. The information contained a special allegation that the offense was committed "with intent to directly or indirectly cause any benefit, . . . to or for criminal street gang" and the offense wascommitted to "obtain or maintain . . . membership . . . in ... an organization." Clerks Papers (CP) at 1.
Mr. Ozuna unsuccessfully requested CrR 3.6 suppression of the letters seized from his cell. During the suppression hearing, a corrections officer testified Mr. Ozuna was on a watch mail list and inmates on this list have their mail opened. The court concluded, CP at 210. The court further concluded, "The defendant also did not have a reasonable expectation of privacy because the jail had a legitimate governmental interest in maintaining order and discipline within its confines to preserve the safety of the staff and other individuals in and out of the jail as well as institutional security." CP at 210.
Sunnyside Police Officer, Jose J. Ortiz, testified as a gang expert at trial. He testified that gangs commit various crimes to enhance their personal status and to further group interests; and all gangs have a snitch code. Officer Ortiz indicated that the word "campana," which was contained in one of the letters, means the English word "bell." This referenced the Bel Garden Locos or Lokotes (BGL) gang. Both Mr. Avalos and Mr. Ozuna are members of the BGL. Officer Ortiz further testified that if a gang member snitches on another then retaliation will usually occur.
The jury found Mr. Ozuna guilty as charged. The jury found the crime was committed with the "intent to directly or indirectly cause any benefit, aggrandizement,gain, profit, or other advantage to or for a criminal street gang." CP at 147. And, the jury found Mr, Ozuna committed the crime "to obtain or maintain his membership or to advance his position in the hierarchy of an organization." CP at 148.
During sentencing, Sunnyside Police Detective, Robert Layman, stated, "Intimidation is the biggest key that keeps gangs in power" and officers "would like, I guess, a message shown that that's not going to be tolerated." RP (Oct. 16, 2012) at 5.
The sentencing court imposed restitution costs, including $100 for "Domestic Violence Assessment." CP at 198. The court imposed incarceration costs of "$50.00 per day of incarceration or in the Yakima County Jail at the actual rate of incarceration but not to exceed $100.00 per day of incarceration." CP at 198.
Mr. Ozuna appealed.
The issue is whether the trial court erred by denying Mr. Ozuna's CrR 3.6 motion to suppress the letters. He contends the court erred in concluding he had a lessened expectation of privacy and the jail had a legitimate governmental interest in maintaining order and discipline. We disagree.
"We review a trial court's denial of a CrR 3.6 suppression motion to determine whether substantial evidence supports the trial court's challenged findings of fact and, if so, whether the findings support the trial court's conclusions of law." State v. Cole, 122 Wn. App. 319, 322-23, 93 P.3d 209 (2004). Mr. Ozuna does not assign error to the trialcourt's factual findings, so they are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). We review the court's conclusions of law de novo. State v. Eisfeldt, 163 Wn.2d 628, 634, 185 P.3d 580 (2008).
Although the Supreme Court in Stroud v. United States, 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed. 103 (1919), appears to have authorized inspection of prisoners' mail, most modern decisions recognize that, under Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), "[T]he focus is on whether the authorities violated a justified expectation of privacy." 4 Wayne R. LaFave, Search and Seizure § 10.9(c), at 744 (3d ed. 1996).
Procunier v. Martinez, 416 U.S. 396, 412-14, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989).
Washington courts applied the Procunier reasoning in State v. Copeland, 15 Wn. App. 374, 549 P.2d 26 (1976), where prison officials intercepted and read the contents of a letter written by an inmate who was suspected of being involved in a prison assault. The court held the evidence was admissible in the inmate's assault trial. Id. at 377-78.
Here, the trial court found that Mr. Ozuna, CP 208-09 ( of Fact I). The court further found another letter "was addressed to another gang member and described how that person can redeem himself with the Surenos gang by assaulting a rival gang member." CP at 209 ( of Fact I). Next, the court found CP at 209 ( of Fact I). The court then found that evidence showed "the importance of rules and discipline or internal order within the jail to ensure the safety of the staff and everyone in the jail." CP at 209 ( of Fact II).
These unchallenged findings are sufficient to show Mr. Ozuna had a lessened expectation of privacy based on his prior letters and that there was a legitimate government interest of the jail's to protect other inmates. Accordingly, the trial court did not err in allowing the evidence and denying Mr. Ozuna's CrR 3.6 motion to suppress.
The issue is whether sufficient evidence supports Mr. Ozuna's intimidating a witness conviction and the gang aggravator. He contends first, he did not communicate a threat, and second, no evidence shows the incident was gang related.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it would permit any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d1068 (1992). An insufficiency claim admits the truth of the State's evidence and requires that all reasonable inferences be drawn in the State's favor and interpreted most strongly against the defendant. Id. Circumstantial evidence is equally as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
First, to prove a charge of intimidating a witness, the State must show beyond a reasonable doubt that Mr. Ozuna, by use of threat against a current or prospective witness, attempted to influence the testimony of that person or to convince the person to absent himself or herself from proceedings. RCW 9A.72.110. "Threat" as used in RCW 9A.72.110 means, "To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or . . . as defined in RCW 9A.04.110(27)."1 RCW 9A.72.110(3)(a)(i), (ii). Under RCW 9A.04.110(28)(a), "threat" means to communicate, directly or...
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