State v. Sanchez
| Decision Date | 21 November 2013 |
| Docket Number | No. 30763-8-III,30763-8-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent and Cross-Appellant, v. SALVADOR GARCIA SANCHEZ, Appellant. |
KULIK, J. - Salvador Garcia Sanchez appeals his convictions for intimidating a witness, harassment, second degree assault while armed with a deadly weapon, and riot while armed with a deadly weapon. He contends the trial court exceeded its authority in allowing the jury to consider gang aggravator evidence and that trial counsel was ineffective for failing to timely move to bifurcate the gang enhancement from the trial on the substantive offenses. Additionally, he contends the State failed to prove the witness intimidation charge and that the charging documents and "to convict" instructions were constitutionally deficient for failing to include the "true threat" element. In a pro se statement of additional grounds, he contends insufficient evidence supports hisconvictions for felony riot and second degree assault. Finally, the State cross appeals the trial court's pretrial dismissal of a gang enhancement. We conclude that all of Mr. Garcia Sanchez's contentions are without merit and accordingly affirm the trial court.
The charges in this case arose from four incidents that occurred over a six-month period. The first incident occurred on October 31, 2010, when Salvador Garcia Sanchez, Jose Nieves, Eduardo Cruz, and Luis Enrique Flores Martinez attended a Halloween party in Othello, Washington. Around 11:00 p.m., the four men left together in Mr. Martinez's car to meet up with some young women in Soap Lake. Later, as Mr. Martinez was driving the group back to Othello, a police officer saw him make an illegal U-turn. The police officer attempted to make a traffic stop. However, Mr. Martinez then heard gun shots and saw Mr. Nieves holding a gun. He accelerated and drove down a dead-end street where he stopped the car. Everyone got out of the car and hid for several hours.
The next day, Mr. Martinez went to the police, confessed to the incident, and told them of Mr. Nieves's involvement. After the identification of Mr. Nieves as the shooter, police went to his mother's house and arrested him. The State filed seven felony charges against him.
About two months later, Mr. Martinez and a friend were driving around Royal City. Mr. Garcia Sanchez saw them and ran into the middle of the street to stop them. They slowed down and Mr. Garcia Sanchez ran to the passenger side of the car where Mr. Martinez was sitting and unsuccessfully tried to open the door. He then attempted to break the window, called Mr. Martinez "a snitch," and threatened to kill him. Report of Proceedings (RP) at 351. Mr. Martinez and his friend were able to drive away. About 30 minutes later, Mr. Martinez saw Mr. Garcia Sanchez again as they continued their drive through town. When Mr. Garcia Sanchez saw them, he threw rocks at their car.
On January 14, 2011, Ricardo Coria and his son Mario went to Mr. Coda's nephew's house in Royal City. At some point, he walked out to his ear to recharge his telephone battery. He then saw a group of five or six men walking toward him, including Mr. Garcia Sanchez. Mr. Coria stood between the approaching men and his nephew's house. Mr. Garcia Sanchez then walked up to him and said something about the "south side" and some of the men in the group flashed gang signs. RP at 799. As Mr. Coria looked back at the house to tell his son to go back in the house, he felt something metallic hit him on his forehead. He fell to the ground and Mr. Garcia Sanchez hit him four or five times on the head with the metal object. Mr. Coria's son came out of the house andpushed Mr. Garcia Sanchez off his father. A group fight ensued. The group dispersed when police arrived.
A few months later, Mr. Coria was talking on his telephone in his car in a parking lot. After a few minutes, he noticed a group of four young men, including Mr. Garcia Sanchez, standing about 100 yards away, staring at him and throwing gang signs. The men called out to Mr. Coria to get out of the car, but he ignored them. The men approached his car, knocked on his window, and began calling him a "northerner." RP at 804. He rolled down his window and the men urged him to get out and fight. Mr. Garcia Sanchez then reached through the window and hit Mr. Coria on the head a few times with his fist. Mr. Coria had bruises on his head, but was not seriously hurt. The men ran away when police arrived.
The State charged Salvador Garcia Sanchez with witness intimidation, felony harassment, two counts of first degree assault with deadly weapon enhancements, and two counts of riot with deadly weapon enhancements.1 It also alleged that the crimes were committed to benefit a street gang under RCW 9.94A.535(3)(aa) and to advance gang standing under RCW 9.94A.535(3)(s). Before trial, the court granted Mr. GarciaSanchez's motion to sever the witness intimidation and felony harassment charges from the other charges. Two separate jury trials followed.
Mr. Garcia Sanchez also filed a Knapsta2 motion to dismiss the gang aggravators under RCW 9.94A.535(3)(s) and RCW 9.94A.535(3)(aa). He argued in part that the State could not produce evidence that he was motivated to advance his gang status. The court granted his motion as to the aggravator alleged under RCW 9.94A.535(3)(s), finding there was "no evidence beyond speculation regarding an intent of the defendant to enhance his status within his gang, a status which, according to the state, he already occupied prior to the first of the incidents that is charged, with the incarceration of Mr. Nieves." RP at 34.
At the first trial, the State's theory was that Mr. Garcia Sanchez threatened Mr. Martinez to benefit his gang by discouraging Mr. Martinez from testifying against Mr. Nieves, the jailed leader of the gang. Mr. Martinez testified as detailed above. He explained that he hung out with the "South Side Locos" (SSL) gang and that he believed Mr. Garcia Sanchez had threatened to kill him because he had reported Mr. Nieves to the police. Mr. Martinez believed that if Mr. Garcia Sanchez had been able to open the car door, he would have tried to kill him.
Deputy Ryan Rectenwald, a police officer with the Grant County Sheriff's Office, testified that he was assigned to investigate the Halloween 2010 incident. He stated that Mr. Martinez gave him the information that provided the basis for the search warrant for Mr. Nieves's home and eventually led to Mr. Nieves's arrest. He further testified that he included Mr. Martinez's name in the probable cause statement and police report and that "[d]efendants always read my reports if they're charged with a crime." RP at 143.
To establish the gang enhancement under RCW 9.94A.535(3)(aa),3 the State presented witnesses to testify about the characteristics of criminal street gangs. Officer Korey Judkins, a gang intelligence officer for the Royal City Police Department, testified that he had had anywhere from 15 to 20 contacts with Mr. Garcia Sanchez. He testified that on January 14, 2011, he received a call about a fight in progress. When he arrived at the scene, he saw Mr. Garcia Sanchez with known SSL gang members running from the yard of a rival gang member. Mr. Garcia Sanchez had a bloody face. Officer Judkins also testified that he witnessed Mr. Garcia Sanchez and other SSL members burning a blue bandana in August 2010. When he asked Mr. Garcia Sanchez why they were burning the bandana, Mr. Garcia Sanchez told him that the bandana had fallen on theground and it would "disrespect . . . their colors" if they did not burn it. RP at 203. Officer Judkins also testified that in August 2010, police discovered a large amount of graffiti on police department buildings and other buildings around town. A security video showed SSL gang members spray painting graffiti on the side of one of the police department buildings. The court admitted numerous photographs of the graffiti.
Deputy Joe Harris testified as an expert on street gangs. He explained that people join gangs for a number of reasons, including socioeconomic reasons, a need for protection and community, and a need for respect. Deputy Harris testified that in gang culture RP at 297. According to Deputy Harris, gang members gain respect by "putting in work," which he explained meant "committing crimes to the benefit of the gang, doing things like residential burglaries or vehicle prowls to steal pawnable items that the gang can then go pawn and make money." RP at 298. He elaborated that "putting in work" could also include drive-by shootings, selling drugs, and beating up a rival gang member. RP at 298.
Deputy Harris also explained that gang members identify themselves by wearing certain colors, tattoos, and using hand signals. According to Deputy Harris, the number 13 is indicative of the SSL gang. He explained, "[t]he 13 represents the letter M in thealphabet, it's the 13th letter of the alphabet, the letter M then represents the Mexican mafia which would be kind of the overseer of Sureno gangs." RP at 301. He also explained that a "NK" tattoo on Mr. Garcia Sanchez's leg signified "Norteno killer" and is a very common tattoo among Hispanic street gangs. RP at 302. Deputy Harris also testified that gang members view "snitches" as "[t]he lowest form of existence on the planet." RP at 308.
The State then admitted numerous exhibits depicting Mr. Garcia Sanchez's tattoos, which included the number 13, and dots on another SSL gang member's hands that allegedly represented the number 13. The State also admitted a video that showed a September 2010 fight at a high school between Mr. Garcia Sanchez and his gang members and a rival gang member. The State presented evidence that SSL gang members had a history of criminal activity, including a juvenile court disposition for fourth degree...
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