State v. Sanchez

• Decision Date: 13 July 2004
• Docket Number: No. 21833-3-III.,21833-3-III.
• Citation: 122 Wash. App. 579,94 P.3d 384,122 Wn. App. 579
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. John Ralph SANCHEZ, Sr., Appellant.

94 P.3d 384

122 Wash. App. 579

122 Wn. App. 579

STATE of Washington, Respondent, v. John Ralph SANCHEZ, Sr., Appellant.

No. 21833-3-III.

Court of Appeals of Washington, Division 3, Panel Three.

July 13, 2004.

William D. Edelblute, Attorney at Law, Spokane, WA, for Appellant.

Kenneth L. Ramm, Deputy Prosecuting Attorney, Yakima, WA, for Respondent.

OPINION PUBLISHED IN PART

BROWN, J.

A jury found John Ralph Sanchez, Sr. guilty of a single count of second degree assault; two counts of assault in violation of a protection order; domestic violence; one count of second degree driving while licensed suspended or revoked; one count of resisting arrest; and attempting to elude a pursuing police vehicle. Although the jury found Mr. Sanchez guilty of assault in violation of a protection order in its general verdict form, it did not find an assault in its special verdict form. Mr. Sanchez appealed alleging (1) the trial court compelled him to wear his jail uniform during trial, (2) the "to convict" instruction for assault in violation of a protection order omitted the essential element of an actual assault, (3) the general verdict and special verdict were inconsistent, (4) the trial court erroneously gave a single "to convict" instruction for two separate counts, (5) the trial court failed to read a specific intent instruction to the jury, (6) there was insufficient evidence of assault in violation of a protection order, (7) counsel was ineffective, and (8) cumulative error warranted reversal. The State concedes that the "to convict" instruction for assault in violation of a protection order was erroneous. The failure to recite an instruction to the jury appears to be an issue of first impression. We reverse the assault convictions on that issue. We also conclude there was insufficient evidence to support the two convictions for assault in violation of protection orders. We affirm all other convictions.

FACTS

The State charged Mr. Sanchez with seven counts: (1) second degree assault; (2) assault in violation of a protection order, domestic violence, willful violation of a protection order in the alternative; (3) assault in violation of a protection order, domestic violence, willful violation of a protection order in the alternative; (4) first degree malicious mischief, domestic violence; (5) second degree driving while license suspended or revoked; (6) resisting arrest; and (7) attempting to elude a pursuing police vehicle. Mr. Sanchez underwent a mental health evaluation at Eastern State Hospital and was found competent to stand trial.

The State agreed to dismiss Count 4, first degree malicious mischief. Trial proceeded on the six remaining counts. On the morning of trial, Mr. Sanchez unsuccessfully requested a new attorney and opined, "[t]here's no use in doing it because it's already a lost cause anyway." Report of Proceedings (RP) (January 28, 2003) at 2. In response to Mr. Sanchez's concerns, defense counsel partly stated:

He's frustrated. He doesn't have his clothes this morning, but he never asked me about that issue and we intend to say that that's part of the package here, that his family has turned on him, essentially, in many ways, and that no one bailed him, no one brought him clothes, no one visited him while he was here, and paint that picture for the jury.

RP (January 28, 2003) at 3.

Elsie Sanchez, Mr. Sanchez's former wife, testified that while she was riding in a car with a friend, Mr. Sanchez blocked the road in front with his car and approached her stopped vehicle while shouting and yelling. Ms. Sanchez said she warned her former husband he was violating a restraining order. Ms. Sanchez and her friend drove away. Mr. Sanchez pursued, throwing a beer can at them. The pursuit ended when Mr. Sanchez damaged his car on a curb. Ms. Sanchez then testified that after filing a report at the police station, Mr. Sanchez, driving another car, tried to cut her off again. Ms. Sanchez pointed out Mr. Sanchez's car to an officer who was following her home.

Yakima police officer Raphael Sanchez testified he talked to Ms. Sanchez at the police station. He confirmed that a no contact order existed between Mr. Sanchez and Ms. Sanchez. The officer then followed Ms. Sanchez home and witnessed the second confrontation where Mr. Sanchez tried to cut off Ms. Sanchez's vehicle. Officer Sanchez followed Mr. Sanchez's vehicle and signaled him to stop. Mr. Sanchez made an obscene gesture and sped off.

Officer Sanchez pursued Mr. Sanchez, who swerved across lanes of traffic at high speed. Twice during the pursuit, Mr. Sanchez slammed on his brakes, forcing the officer to do the same, and then sped off again, one time waiving at the officer to follow. Twice during the chase, Mr. Sanchez did a u-turn and drove toward the officer, once forcing the officer to take evasive action. Mr. Sanchez reached speeds up to 95 and 105 miles an hour. And at one point, Mr. Sanchez drove in the opposite lane of traffic.

Mr. Sanchez and the police vehicle collided when Mr. Sanchez tried to do another u-turn. The officer ordered Mr. Sanchez out of the vehicle at gunpoint. Mr. Sanchez ran around encouraging the officer to shoot him. The officer reholstered his handgun when he determined Mr. Sanchez was not armed.

Mr. Sanchez then fled on foot for about 50 yards until the officer caught up to him. Mr. Sanchez then challenged the officer to fight while the officer tried without success to get him to submit to arrest. Mr. Sanchez finally gave up when other police vehicles arrived. After the arrest, Officer Sanchez discovered Mr. Sanchez had been driving with a suspended license. In cross-examination, Officer Sanchez characterized Mr. Sanchez's behavior "as suicidal" and "[s]uicide by cop." RP (January 28, 2003) at 49.

Yakima Police Detective James Fuehrer testified he was dispatched to help with the vehicle pursuit. Later, Detective Fuehrer drove Mr. Sanchez to the hospital for a pre-booking medical evaluation. After arriving at the hospital, Mr. Sanchez first refused to get out of the patrol car. While they were waiting for the medical examination to begin, Mr. Sanchez spontaneously told the detective "that he wanted to turn his vehicle around in a u-turn and take Officer Sanchez head on in an attempt to take his own life." RP (January 28, 2003) at 64. The detective recalled Mr. Sanchez claiming that he had wanted to take his own life "for about 15 years." RP (January 28, 2003) at 66.

Recalled to the stand, Officer Sanchez testified he took evasive action when Mr. Sanchez drove at him because of personal safety concerns.

Mr. Sanchez took the stand in his own defense and admitted driving with a suspended license, confronting Ms. Sanchez in his car, and yelling at her. Mr. Sanchez said he did not stop for Officer Sanchez because he "didn't care anymore." RP (January 28, 2003) at 77. He admitted doing a u-turn and driving at the patrol car, but insisted he did not mean to hurt the officer, but rather himself. He said he told the officer to shoot him "[b]ecause I was tired." RP (January 28, 2003) at 78. He said he did not wear a seatbelt during the car chase. And he said he told Detective Feuhrer that "ever since I was 15, I've been wanting to die." RP (January 28, 2003) at 78.

In cross-examination, Mr. Sanchez conceded that at the time of his arrest he was subject to a domestic violence no contact order prohibiting any contact with Ms. Sanchez. And he admitted confronting Ms. Sanchez twice on the relevant date.

Mr. Sanchez testified he understood he was supposed to stop when he saw the flashing lights of the police car. And he said he understood that driving his car head on into another car might hurt a person other than himself.

Mr. Sanchez did not challenge any of the proposed jury instructions. Although the State charged Mr. Sanchez with two separate counts of assault in violation of a protection order, the trial court gave the jury a single "to convict" instruction (Instruction No. 20) as follows:

To convict the defendant of the crime of Violation of a Protection order, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about July 28, 2002, the defendant violated the provisions of a protection order that excluded him from the residence, workplace, school or day care or restrain that person from committing acts of domestic violence or having contact with Elsie Sanchez;

(2) That the defendant knew of the existence of the protection order; and

(3) That the acts occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk's Papers (CP) at 52.

When the trial court read the instructions to the jury, it skipped over Instruction No. 5, which defined assault. Instruction No. 5 states:

An assault is an intentional touching or striking of another person, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive.

An assault is also an act done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.

An assault is also an act, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the act did not actually intend to inflict bodily injury.

An act is not an assault, if it is done with the consent of the

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