State v. Pastrana, 22467-4-II

• Decision Date: 05 March 1999
• Docket Number: No. 22467-4-II,22467-4-II
• Citation: 972 P.2d 557,94 Wn.App. 463
• Parties: STATE of Washington, Respondent v. Robert Nathaniel PASTRANA, Appellant.
• Court: Washington Court of Appeals

Page 557

94 Wn.App. 463

972 P.2d 557

STATE of Washington, Respondent v. Robert Nathaniel PASTRANA, Appellant.

No. 22467-4-II.

Court of Appeals of Washington,

Division 2.

March 5, 1999.

As Amended May 21, 1999.

Michael Lee Sommerfeld, Barbara Corey-Boulet, Tacoma, for Respondent.

Wayne Clark Fricke, Tacoma, for Appellant.

ARMSTRONG, A.C.J.

Robert Pastrana fired one shot at another car on the freeway, killing one of the three occupants. For this, a jury convicted him of first-degree murder by extreme indifference and two counts of first-degree reckless endangerment. On appeal, Pastrana argues: (1) the trial court erred in failing to instruct the jury on the lesser included offense of manslaughter; (2) the State failed to present sufficient evidence to sustain his conviction for first-degree murder; (3) the first-degree murder statute, RCW 9A.32.030(1)(b), is unconstitutionally vague as applied to him; (4) the double jeopardy clause precludes his convictions of both first-degree murder and reckless endangerment; (5) the convictions of two counts of reckless endangerment merge; and (6) the trial court failed to act impartially in ruling on the prosecutor's alleged misconduct. We affirm.

FACTS

On October 16, 1996, at approximately 7:20 p.m., Jesus Morales was driving northbound on Interstate 5(I-5). With him were Annette Vargas and their 22-month old son, Angel. Although he was in a hurry, Morales did not notice any problems with other cars. Traffic was heavy and "[t]here were a lot of vehicles" on the road. As Morales neared the exit on 38th street, he heard a loud noise. Angel, who was seated in the back in a car seat, began to scream. Annette made a noise as if she were in pain and then leaned against Morales. After exiting on 38th street, Morales pulled into a parking lot to check on Annette. When Annette did not respond, Morales drove her to the hospital, where she was pronounced dead.

An examination of Morales' car revealed a shattered left passenger window, glass shards in the back seat, a bullet hole in the back of the drivers seat, and a copper jacket from a bullet. Glass shards were also found on the westbound ramp from I-5 to 38th street.

The medical examiner testified that Annette died as a result of a gunshot wound that penetrated her chest and injured her lungs and aorta. A bullet was removed from Annette's chest.

At about the same time Morales' car was fired upon, Robert Pastrana was driving northbound on I-5 with his girlfriend, Tasha Deptula. Somewhere on the collector-distributor ramp between 56th and 38th, another vehicle cut in front of Pastrana and nearly ran him off the road. Pastrana swerved onto the shoulder to avoid a collision. In response, Pastrana flashed his lights and honked his horn. But the other driver did not respond. Upset, Pastrana retrieved a gun from behind the seat and told Tasha to sit back. Pastrana then rolled down the passenger window and fired one shot out the window, directly in front of Tasha's face. The other car continued to exit and did not slow or pull off the road.

After he fired the gun, Tasha asked Pastrana what he was thinking. Pastrana replied that he was aiming for a tire. Tasha mentioned that "it's kind of hard to be aiming at anything when you are going down the freeway that fast." Pastrana assured her that he had not hit anyone because he had seen a spark from the side of the car. Pastrana and Tasha continued on to a planned family dinner.

A. Lesser Included Offense Instructions

Pastrana argues that the trial court erred by refusing to instruct the jury on first and second-degree manslaughter as lesser included offenses of first-degree murder.

A defendant is entitled to a lesser included offense instruction if: "(1) each element of the lesser offense is a necessary element of the charged offense (the legal test), and (2) the evidence supports an inference that the defendant committed the lesser offense (the factual test)." State v. Pettus, 89 Wash.App. 688, 697-98, 951 P.2d 284 (citing State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978)), review denied, 136 Wash.2d 1010, 966 P.2d 904 (1998).

A lesser included offense instruction is appropriate only where the evidence supports a finding that the defendant committed the lesser offense. " 'It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.' " State v. Berlin, 133 Wash.2d 541, 546, 947 P.2d 700 (1997) (quoting State v. Fowler, 114 Wash.2d 59, 67, 785 P.2d 808 (1990) (citing State v. Rodriguez, 48 Wash.App. 815, 820, 740 P.2d 904 (1987))).

First-degree manslaughter requires proof that the defendant (1) recklessly (2) caused the death of another. RCW 9A.32.060(1)(a). First-degree murder by extreme indifference to human life requires proof that the defendant acted (1) with extreme indifference, an aggravated form of recklessness, which (2) created a grave risk of death to others, and (3) caused the death of a person. RCW 9A.32.030(1)(b); State v. Dunbar, 117 Wash.2d 587, 593-94, 817 P.2d 1360 (1991). "Because the elements of first degree manslaughter are necessarily included in first degree murder by extreme indifference, the legal prong of the Workman test is satisfied." Pettus, 89 Wash.App. at 700, 951 P.2d 284. Thus, the only remaining issue is whether Pastrana's conduct satisfies the factual prong of the Workman test.

In Pettus, the defendant fired at least four shots from a moving vehicle. The shooting occurred in the middle of the day in a residential neighborhood near a school playground. Pettus, 89 Wash.App. at 700, 951 P.2d 284. The court found no error in the trial court's failure to instruct the jury on manslaughter as a lesser offense of first-degree murder by extreme indifference to human life. "[T]he factual prong is not satisfied because the evidence showed much more than mere reckless conduct--a disregard of a substantial risk of causing a wrongful act. RCW 9A.08.010(1)(c)." Pettus, 89 Wash.App. at 700, 951 P.2d 284.

Pastrana argues that "[u]nlike Pettus, the evidence here is not so extreme as to amount to a directed verdict on murder in the first degree." In support of this position, Pastrana maintains that he was unaware that anyone other than the driver was in the "line of fire." But, indiscriminately shooting a gun from a moving vehicle is precisely the type of conduct proscribed by RCW 9A.32.030(1)(b). Pastrana pursued and fired at another vehicle on a major freeway ramp in heavy traffic. Because it was dark, Pastrana could not see how many people were in the car. Although Pastrana claimed to have aimed at the tire, his girlfriend observed, "it's kind of hard to be aiming at anything when you are going down the freeway that fast." Furthermore, Pastrana disregarded the grave risk inherent in shooting a gun at a moving car on a crowded freeway, even if the shot was aimed at a tire.

As in Pettus, we hold that Pastrana acted with much more that mere recklessness. Rather, he manifested an extreme indifference to human life and created a grave risk of death--conduct which fits only the first-degree murder statute, not manslaughter. See Pettus, 89 Wash.App. at 700, 951 P.2d 284. Thus, the trial court did not err in refusing to give a manslaughter instruction. ¹

B. Sufficiency of the Evidence

Pastrana contends that the evidence was insufficient to find him guilty of first-degree murder beyond a reasonable doubt.

Due process requires the State to prove each element of the crime charged beyond a reasonable doubt. State v. McCullum, 98 Wash.2d 484, 489, 656 P.2d 1064 (1983). The standard of review is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wash.2d 333, 338, 851 P.2d 654 (1993); State v. Rempel, 114 Wash.2d 77, 82-83, 785 P.2d 1134 (1990). A challenge to the sufficiency of the evidence admits the truth of the State's evidence. State v. Barrington, 52 Wash.App. 478, 484, 761 P.2d 632 (1988) (citation omitted). And all reasonable inferences from the evidence must be drawn in favor of the State. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

Pastrana argues that he did not violate RCW 9A.32.030(1)(b) because his conduct was directed at a specific victim, the driver of the other car. And, continues Pastrana, " 'where the act causing a person's death was specifically aimed at and inflicted upon that particular person and none other, the perpetrator of the act cannot properly be convicted of murder in the first degree under sub[section (b) ]....' " State v. Anderson, 94 Wash.2d 176, 186, 616 P.2d 612 (1980) (quoting State v. Mitchell, 29 Wash.2d 468, 484, 188 P.2d 88 (1947)) (emphasis added) (subsection (b) not applicable where defendant immersed two-year-old stepdaughter in tub of scalding water causing death); State v. Berge, 25 Wash.App. 433, 607 P.2d 1247 (1980) (defendant who shot sleeping victim did not exhibit manifest indifference to human life in general).

We recently held that the State could charge a defendant who shot at a moving vehicle containing only one person under RCW 9A.32.030(1)(b). Pettus, 89 Wash.App. at 694, 951 P.2d 284. Pettus, like Pastrana, claimed not to be shooting at a specific victim, but rather at the victims' vehicle. But because the shooting took place in a residential neighborhood and placed many others at grave risk of death, we held that the statute applied. Pettus, 89 Wash.App. at 694, 951 P.2d 284.

Anderson and Berge are distinguishable because in each only the life of the victim was endangered. But here, as in Pettus, the bullet created a grave risk of death to others who were in the vicinity. In fact, Pastrana killed an unintended victim, Vargas. In addition, Pastrana...