State v. Prado
| Decision Date | 08 January 2015 |
| Docket Number | No. 31275-5-III,31275-5-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CESAR SAUL PRADO, Appellant. |
LAWRENCE-BERREY, J. — Cesar Prado appeals his convictions for attempted first and second degree murder and his exceptional sentence based on a gang aggravator. He contends insufficient evidence supports the attempted murder convictions and the criminal street gang sentencing enhancement. He also contends: (1) the trial court erred in admitting the expert gang testimony under ER 404(b) and ER 702, (2) the gang enhancements must be reversed because the gang experts' testimony was based on testimonial hearsay, in violation of his Sixth Amendment right to confrontation (3) the State engaged in prosecutorial misconduct, (4) the trial court erred in giving a missing witness instruction and a lesser included instruction, and (5) he received ineffective assistance of counsel. We disagree with Mr. Prado's contentions and affirm.
Late in the evening on October 18, 2010, Angela Deckard and Brandon Parren, a Sureno gang member, were at a Conoco gas station at 301 North First Street in Yakima, Washington. Ms. Deckard pumped gas while Mr. Parren went into the store. Ms. Deckard noticed three people drive by in a grey car and give her "dirty looks," but she did not recognize them and was not particularly concerned. Report of Proceedings (RP) at 530. As Mr. Parren returned to the car, he was shot in the neck and leg and fell to the ground. Ms. Deckard, who was inside the car, heard the gunshots. As she attempted to exit the car, she was shot in the leg and shoulder. Neither Mr. Parren nor Ms. Deckard could identify the shooter. Officer Eric Walls responded to the call of the shooting and spoke with several witnesses. One witness told him that he had seen a person run from the east side of the building to a car that was at a gas pump, saw the person start shooting, and then run eastward.
Police identified Israel Rivera, a Norteno gang member who was known to drive a grey Kia, as a suspect. Several hours after the shooting, police were informed that a grey Kia had crashed into a barrier and that two Hispanic males were seen running from the car. Police went to Mr. Rivera's house and learned that he had been seen with Cesar Prado earlier in the evening. Police subsequently arrested Mr. Rivera and Mr. Prado.
Mr. Prado, who was 15 years old at the time of the shootings, was originally charged in juvenile court with two counts of first degree assault. After a declination hearing, the juvenile court declined jurisdiction and the State charged him with two counts of attempted first degree murder and one count of first degree unlawful possession of a firearm.
Before trial, Mr. Prado moved to exclude any reference to gangs or gang activity, arguing there was no nexus between his gang affiliation and the charged offenses. The State, in turn, moved for admission of expert gang testimony, contending the evidence was relevant "to establish motive for an otherwise seemingly senseless act of violence." Clerk's Papers (CP) at 23.
As an offer of proof, the State argued the gang evidence provided the res gestate of the case and showed intent, motive, preparation, and lack of mistake under ER 404(b). The State noted that one of the victims, Mr. Parren, has a prominent Sureno tattoo on his face, and that Mr. Prado was aware that Mr. Parren was a rival gang member. The State argued, RP at 27. Without that background, the State argued, "this is just a nonsensical random crime with no purpose and no motive." RP at 27.
Mr. Prado responded that the prejudice of the gang information outweighed any probative value and cautioned the court that it was going to be difficult to "seat an impartial jury given the gang activity in this community." RP at 28.
The trial court granted the motion to admit the gang evidence and denied the motion to exclude, finding the evidence prejudicial, but that "ample" evidence established that "gang association was the reason for this alleged crime." RP at 29. It explained: RP at 40. The court continued, RP at 41.
At trial, Mr. Rivera testified that he and Mr. Prado were childhood friends and that they spent time together every day. The prosecutor asked Mr. Rivera why he testified against Mr. Prado. Mr. Rivera responded, RP at 448.
Mr. Rivera stated that he and Mr. Prado were members of La Raza, a subset of the Norteno gang. He explained that he and Mr. Prado were "soldiers" for La Raza who "put in work" to earn stripes for the gang. RP at 415. The prosecutor questioned Mr. Rivera about how gang members achieve status in the gang:
Mr. Rivera also explained that the older gang members direct the work, and "[o]nce you put in work, then you're respected." RP at 417. According to Mr. Rivera, some La Raza members routinely carried firearms, including Mr. Prado.
Mr. Rivera then described the night of the shootings. According to Mr. Rivera, the north side of Yakima is Norteno territory, and this area encompasses the Conoco stationwhere the shootings occurred. Mr. Rivera stated that on the day in question, he picked up Mr. Prado just before noon. Mr. Prado was wearing a black and white checkered shirt and carrying a semi-automatic gun. They drove around for a while and went to a local park where they picked up Patrick Bcntley, a mutual friend. The three of them then cruised around with the intent to do some car prowling. Mr. Rivera pulled into the Conoco gas station where he saw Mr. Parren, a known rival gang member. Mr. Rivera told Mr. Bentley and Mr. Prado that he had just seen Mr. Parren, which prompted Mr. Prado to ask if he should "light him up." RP at 435. The prosecutor asked:
Mr. Rivera then drove a short distance from the gas station. According to Mr. Rivera, Mr. Prado put a bandana over his face, "[c]ocked [the gun] back, put one in the chamber." and walked back to the Conoco station. RP at 438. Mr. Rivera heard a series of shots, saw Mr. Prado run back to the car, and heard him state he had just shot "the scrap" and a girl. RP at 439. Mr. Rivera told Mr. Prado that he had "earned some stripes" for the gang. RP at 440.
Neither Ms. Deckard nor Mr. Parren were able to identify the shooter. Ms. Deckard stated that she was unable to get a good look at who was shooting. Mr. Parren described the shooter as stocky and about 5' 6." He saw someone wearing a bandana point an object at him, but could not identify the person. Mr. Parren admitted that he was a Sureno, and that even if he could have identified the shooter, he would not have done so because it would have ended his career.
Ms. Deckard and Mr. Parren described their injuries. Ms. Deckard testified that she was shot in the leg and shoulder. She stated that one bullet entered just below her knee, exited, and then went back into her thigh and stopped in her hip. Mr. Parren testified that when he saw the shooter point the object at him, he turned his head away at the last minute to avoid being shot directly in the head. He testified that he was shot in the neck and upper leg and was wheelchair bound for an extended period of time because one bullet had shattered his femur.
William Wilson, MD, testified about the dangers of bullets entering the neck or femoral artery areas. He explained that the neck is an extremely worrisome area because it can involve an injury to the upper spine, which can cause quadriplegia or paralyze the nerves that go to the diaphragm, and can be lethal in a short amount of time. He also testified that an Injury to the airway is immediately life threatening and can result inimminent death.
The State introduced several witnesses to explain gang culture. Detective Joe Salinas, who has worked for the Yakima police department for 22 years and headed the department's gang unit for five of those years, testified that officers in the gang unit receive constant ongoing training, and that he has daily contact with gang members on the street.
Detective Salinas testified that he was one of the first officers to respond to the shooting. When he arrived at the scene, he saw Mr. Parren lying next to a car parked by a gas pump. Me recognized Mr. Parren from his experience on the gang unit. Mr. Parren had a gunshot wound near his head and on the side of his torso. Detective Salinas observed 11 shell casing in the...
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