State of Washington v. Jose Jesus Mancilla , 197 Wash. App. 631 ( 2017 )

FILED
JANUARY 24, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31187-2-111
) (consolidated with
Respondent, ) No. 31188-1-111
) No. 31205-4-111
V. ) No. 31225-9-111)
)
JOSE JESUS MANCILLA, )
)
Appellant. )
)
)
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
ARMANDO LOPEZ, ) PUBLISHED OPINION
)
Appellant. )
)
)
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
JAIME LOPEZ, )
)
Appellant. )
)
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
NICHOLAS JACOB JAMES, )
)
Appellant. )
PENNELL, J. - In the context of a criminal trial, gang evidence is a double-edged
sword. On the one hand, such evidence can help jurors understand relationships between
defendants and how various symbols and terminology suggest motive and intent. But on
the other hand, gang evidence can be problematic. Merely suggesting an accused is a
gang member raises the concern he or she will be judged guilty based on negative
stereotypes as opposed to actual evidence of wrongdoing. Accordingly, the State's use of
gang evidence requires close judicial scrutiny.
The State's gang evidence here largely stands up to our review. The objective
evidence suggested the defendants' crime was gang related, and the State presented
narrowly tailored gang evidence to support its theory of the case. The State did err in
introducing the defendants' booking statements where they admitted gang affiliation.
State v. Juarez Deleon, 185 Wn.2d 478, 374 P.3d 95 (2016). However, with the
2
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
exception of Jaime Lopez, this error was rendered harmless by other independent
evidence of admitted gang affiliation.
Because neither gang related evidence nor other alleged errors impacted the
convictions of Jose Mancilla, Armando Lopez, and Nicholas James, those results are
affirmed. Only Jaime Lopez's conviction was compromised by impermissible gang
evidence. Accordingly, Jaime Lopez's conviction is reversed without prejudice and
remanded for retrial.
BACKGROUND
This case involves a Yakima County drive-by shooting. The facts are strikingly
similar to another Yakima County drive-by shooting recently addressed by the Supreme
Court in Juarez Deleon. The target of this shooting was the Rincon house. Although
several people were inside the house at the time of the shooting, no one was hurt. When
law enforcement arrived to investigate the shooting, blue graffiti could be seen near the
home's entrance. Law enforcement also recovered spent ammunition and a rifle
magazine from the scene.
This was not the first time the Rincon house had been fired upon. It had been
targeted four or five times in the past, presumably because two of the household members
were affiliated with the Nortefios gang.
3
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
On the morning of the shooting, two women were delivering newspapers in the
area. After hearing the shots, they noticed a vehicle coming from the direction of the
Rincon house. The vehicle had its headlights off and turned in front of their car. The
women called the police and identified the vehicle as a gray Mitsubishi Galant.
A responding deputy saw a vehicle matching the women's description stop at an
intersection. The deputy turned to pursue the vehicle, eventually stopping it. He removed
four individuals from the vehicle, driver Armando Lopez, front seat passenger Jose
Mancilla, and back seat passengers Jaime Lopez and Nicolas James. The deputy noted
Armando Lopez had a blue bandana hanging from his neck. No firearms or ammunition
were found inside the vehicle. Suspicious that firearms may have been discarded prior to
the stop, officers went back to the intersection where the deputy first saw the Mitsubishi
Galant. Three firearms were located in the area. A later forensic examination confirmed
the three firearms matched the ammunition and magazine found at the Rincon house.
At the police station, law enforcement took the defendants' photographs.
Armando Lopez is depicted "throwing up a gang sign." Ex. 68; 5 Report of Proceedings
(RP) (Sept. 6, 2012) at 497-98. Law enforcement also took pictures of his many tattoos,
including the number 13. The photograph of Jaime Lopez shows numerous tattoos,
including a forearm tattoo of a zip code and the number 13 tattooed on his shoulders.
4
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
Nicolas James is pictured wearing a blue shirt with a blue belt; his belt buckle
prominently featuring the number 13. Both the color blue and the number 13 are
associated with the Surefios gang.
After being read their Miranda 1 rights and invoking their right to remain silent, the
four defendants were booked into jail. During the booking process, a corrections officer
questioned the defendants about gang affiliation in order to ensure they were safely
housed. In response to that questioning, all four men admitted they were Surefios.
Armando and Jose specifically identified themselves as members of Little Valley Locos
or Lokotes (L VL ), a Surefio clique.
The State charged the four men with seven counts of first degree assault and one
count of drive-by shooting, all carrying gang aggravators. The seven counts of first
degree assault also carried up to three potential firearm enhancements per count. In
addition, the State charged Jose Mancilla, Armando Lopez, and Nicolas James with one
count of first degree unlawful possession of a firearm, also carrying a gang aggravator.
The four defendants were tried together. At trial, the State introduced the
defendants' booking statements acknowledging gang membership. In addition, the State
introduced recorded jail phone calls where Jose Mancilla and Nicolas James implicated
1
Miranda v. Arizona, 384 U.S. 436,444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
themselves as members of LVL. The State also called Officer Jose Ortiz as a gang
expert. Officer Ortiz testified about the meaning of gang terminology and symbols, the
types of criminal activities in which gangs were involved, gang codes of conduct and
discipline of violators, gang interactions with other gangs, the hierarchy of gang
membership, and how to achieve status within a gang. He also testified Armando Lopez
is a member of LVL.
The jury found the defendants guilty as charged. FoUowing a motion to arrest
judgment, the trial court dismissed the gang aggravators. The court sentenced Jose
Mancilla and Nicolas James to consecutive sentences for the seven counts of first degree
assault and imposed the three firearm enhancements per count consecutively, for a total
sentence of 1,956 months. The court sentenced Armando Lopez, a persistent offender, to
life in prison without the possibility of release. The court sentenced Jaime Lopez to
consecutive sentences for the seven counts of first degree assault and imposed the three
firearm enhancements per count consecutively, for a total sentence of 1,929 months. 2 All
four defendants appeal.
2 All sentences imposed for the convictions for the drive-by shooting and first
degree unlawful possession of a firearm ran concurrently to the above-enumerated
sentences.
6
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
ANALYSIS OF TRIAL CLAIMS
Fifth Amendment challenge to booking statements
The trial court erred in admitting the defendants' jail booking statements regarding
gang affiliation. Juarez Deleon, 185 Wn.2d at 487. Because the statements were made
to ensure the defendants' personal safety, they cannot be used as adverse evidence at trial.
Id.While the State committed constitutional error in admitting the defendants'
statements, reversal is not automatic. When faced with a constitutional error, we apply a
harmless error test. Id. The State must prove the erroneously admitted evidence was
harmless beyond a reasonable doubt. Under this level of scrutiny, we examine whether
"' any reasonable jury would have reached the same result, despite the error.'" Id.(quoting State v. Aumick, 126 Wn.2d 422,430, 894 P.2d 1325 (1995)).
Application of the harmless error analysis to this case is guided by the factually
similar case of Juarez Deleon. At trial in Juarez Deleon, the State had presented
substantial gang affiliation evidence, apart from booking statements. The evidence
included gang related clothing and tattoos. Witnesses also testified about the defendants'
past gang affiliations. While this evidence would seem substantial, Juarez Deleon held it
was insufficient to meet the State's burden. As explained by the court, "[t]he strongest
7
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
evidence that a person is a gang member is their own clear admission." Juarez Deleon,
185 Wn.2d at 488. Because the State had no such evidence, apart from the improperly
admitted booking statements, the Juarez Deleon court reversed the defendants'
convictions.
In light of Juarez Deleon, we focus on whether the State presented evidence of the
defendants' admitted gang affiliation, apart from their booking statements. Such
evidence exists for three of the four defendants. With respect to Armando Lopez, the
State introduced a postarrest photo in which Armando Lopez displayed a gang related
hand sign. While not verbal, this was an unambiguous admission of current gang
membership. The State also introduced incriminating jail calls from Jose Mancilla and
Nicholas James. During Jose Mancilla' s recorded call, he identified himself as "Solo"
from the LVL gang. 7 RP (Sept. 10, 2012) at 773, 776. During Nicholas James's call, he
identified himself by the name "Little Rascal." Id. at 774, 777. This testimony was
significant because Armando Lopez's gang name was "Rascal." Id. at 796. According to
the State's gang expert, using the adjective "Little" denotes an individual as a mentee of a
named gang member. 8 RP (Sept. 11, 2012) at 857. Referring to himself as "Little
Rascal" was an acknowledgment by Mr. James of his status as the mentee of Armando
Lopez, whose gang name was "Rascal." While indirect, Mr. James's statement served to
8
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
identify himself as a gang cohort. Admission of this statement to the jury was sufficient
for the State to meet its burden of overcoming Juarez Deleon error.
Our analysis with respect to Jaime Lopez is much different. Other than Jaime
Lopez's booking statements, the State did not present any evidence of admitted gang
affiliation. Jaime Lopez was not involved in any recorded jail calls. He was not
photographed throwing a gang sign or wearing gang related clothing. 3 The only evidence
suggesting Jaime Lopez's gang affiliation was his tattoos. Yet Juarez Deleon held that
gang tattoos, even if accompanied by other indicia of gang membership, is insufficient to
overcome the taint of an inadmissible booking statement. Thus, nothing about Jaime
Lopez's words or appearance is sufficient to take his case outside the holding of Juarez
Deleon.
The only possible distinction between Juarez Deleon and this case is the fact that
the State has been able to meet its harmless error burden as to Jaime Lopez's
codefendants. The question then becomes whether the combination of Jaime Lopez's
tattoos and his presence in a vehicle shortly after a drive-by shooting with three admitted
3
During oral argument, counsel for the State proffered that Jaime Lopez was
wearing a blue "wild west" style bandana. Wash. Court of Appeals oral argument, State
v. Lopez, No. 31188-1-III (Oct. 20, 2016) at 27 min., 35 sec. to 28 min., 20 sec. (on file
with court). However, the record does not bear this out. The testimony at trial was the
"wild west" bandana pertained to Armando Lopez. 5 RP (Sept. 6, 2012) at 470-71.
9
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
gang members is sufficient to overcome the taint of the Juarez DeLeon error. We hold it
is not. The jury was presented with evidence suggesting only three individuals were
involved in the drive-by shooting. Three guns were found near the scene of the crime, not
four. And when Nicholas James discussed his gang affiliated codefendants, he mentioned
only Armando Lopez (Rascal) and Jose Mancilla (Solo). He did not mention Jaime
Lopez. While the State presented significant evidence of Jaime Lopez's involvement, it
was not sufficiently strong to meet the difficult burden of establishing harmless error
beyond a reasonable doubt. Jaime Lopez's convictions are therefore reversed pursuant to
Juarez DeLeon.
Gang expert testimony
The defendants challenge Officer Ortiz's expert testimony regarding gang
affiliation and gang related activity. They argue the evidence constituted improper
propensity evidence under ER 404(b) and was prejudicial under ER 403. They also claim
the testimony did not meet the standards for admission as expert testimony under ER 702.
We review the trial court's evidentiary rulings for abuse of discretion. State v. Asaeli,
150 Wn. App. 543, 573, 208 P.3d 1136 (2009). The defendants bear the burden of proof
in this context. Id.10
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
ER 404(b) prohibits a court from admitting "[ e]vidence of other crimes, wrongs, or
acts ... to prove the character of a person in order to show action in conformity
therewith." Because it is a limitation on "any evidence offered to 'show the character of a
person to prove the person acted in conformity' with that character at the time of a
crime," it encompasses gang affiliation evidence that a jury may perceive as showing a
law breaking character. State v. Foxhoven, 161 Wn.2d 168, 174-75, 163 P.3d 786 (2007)
(quoting State v. Everybodytalksabout, 145 Wn.2d 456,466, 39 P.3d 294 (2002)).
Given the inherent prejudice of gang evidence, the State's decision to introduce
gang expert testimony is a risky one. Id. Generalized expert testimony on gangs,
untethered to the specifics of the case on trial, is impermissible. Juarez Deleon, 185
Wn.2d at 490-91. But gang expert testimony can also be quite helpful. It can assist in
establishing a motive for a crime or showing the defendants were acting in concert. Id. at
490; State v. Scott, 151 Wn. App. 520,527,213 P.3d 71 (2009). It may also help explain
a witness's reluctance to testify. Id. at 528.
This is a case where gang expert testimony was helpful. Officer Ortiz's testimony
supported the State's theory of motive and explained why the defendants, as members of
the Surefio affiliated LVL gang, would seek to target a house affiliated with Nortefios.
The testimony also explained why the jury should believe the four defendants were acting
11
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
in concert as opposed to the possibility that one or more were merely innocent associates.
Finally, the gang testimony explained why certain witnesses from the Rincon household
might fear reprisal and be reluctant to testify.
The relevance of Officer Ortiz's testimony outweighed the risk of undue prejudice.
The State did not present Officer Ortiz's testimony simply in an effort to portray the
defendants as bad people. The objective evidence, including the blue graffiti left on the
Rincon house and the colors worn by the defendants at the time of arrest, provided the
State with ample reason to believe the assault on the Rincon house was gang related.
Officer Ortiz's testimony appropriately supplied the jury with the tools necessary to
interpret this evidence and understand the State's theory of the case.
Nor was Officer Ortiz's testimony overly general. The vast majority of Officer
Ortiz's comments were directly linked to the specifics of the defendants' case. At one
point, Officer Ortiz did testify to general criminal activities by gangs, such as "disorderly
conduct, drinking, vehicle prowls, thefts, robberies, shooting, homicides, assaults." 8 RP
(Sept. 11, 2012) at 855. This testimony might be characterized as general. However, it
was not particularly prejudicial, especially given the testimony by nonlaw enforcement
witnesses that the Rincon house had been the target of numerous drive-by attacks,
including one which resulted in death. The least specific aspect of Officer Ortiz's
12
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
testimony, which involved a discussion of how gang leaders issue orders from prison and
how new members are jumped into a gang, was elicited on cross-examination. Because
this testimony was not elicited by the State, it is not something the defendants can now
challenge on appeal.
Apart from the objections to the relevance of gang expert testimony under ER
404(b) and 403, the defendants also challenge the nature of the State's gang expert
testimony under ER 702. Specifically, the defendants claim Officer Ortiz's testimony
failed to supply any information outside the realm of common knowledge. 4 They contend
it was not a proper subject for presentation to the jury under the guise of an expert
witness.
The defendants' arguments regarding the quality of information supplied by
Officer Ortiz run counter to their claims of prejudice. To the extent Officer Ortiz simply
provided commonly understood information about gangs, it is difficult to understand how
his testimony could be prejudicial. But in any event, we disagree that Officer Ortiz's
4 The defendants also claim Officer Ortiz's testimony constituted an impermissible
comment on the defendants' guilt. However, none of the defendants timely and
specifically objected to Officer Ortiz's testimony on the grounds it constituted an opinion
regarding their guilt. They objected solely on the grounds the proposed testimony was a
matter of common knowledge and constituted propensity evidence. Their failure to
specifically object bars them from claiming error. RAP 2.5(a); State v. Embry, 171 Wn.
App. 714, 741, 287 P.3d 648 (2012).
13
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
testimony was so bland it failed to be useful and meet the criteria for admission under ER
702. While it may be common knowledge that rival gangs engage in violence against
each other, this was not the full extent of Officer Ortiz's testimony. Officer Ortiz
explained the meaning of gang terminology and symbols, the types of criminal activities
in which gangs are involved, gang codes of conduct and discipline of violators, gang
interactions with other gangs, the hierarchy of gang membership, and how a member
achieves status within the gang. This was technical information, important to the State's
theory of the case. It was therefore the proper subject for expert testimony.
Jury instruction challenges
The defendants challenge three of the court's jury instructions: (1) the "to convict"
instruction regarding first degree assault, (2) the transferred intent instruction, and (3) the
accomplice liability instruction. They also argue the State presented insufficient evidence
to meet the terms of the "to convict" instruction. We review the court's jury instructions
de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Instructions are
flawed if, taken as a whole, they fail to properly inform the jury of the applicable law, are
misleading, or prohibit the defendant from arguing their theory of the case. State v. Tili,
139 Wn.2d 107, 126, 985 P.2d 365 (1999). In our review of the defendants' sufficiency
challenge we view the evidence in the light most favorable to the State and ask whether
14
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
any rational trier of fact could have found guilt beyond a reasonable doubt. State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
"To convict" instruction
A "to convict" instruction is an instruction that apprises the jury of the elements of
an offense. In relevant part, the court's "to convict" instruction for first degree assault
states:
To convict the defendant of the crime of First Degree Assault in
Count [x], each of the following elements of the crime must be proved
beyond a reasonable doubt:
( 1) That on or about March 14, 2011, the defendant or an
accomplice assaulted [specific person];
(2) That the assault was committed with a firearm;
(3) That the defendant or an accomplice acted with intent to inflict
great bodily harm; and
(4) That this act occurred in the State of Washington.
Clerk's Papers (CP) at 61. 5 According to the defendants, this instruction was inadequate
because it failed to clarify the State's burden to prove specific intent.
The crime of first degree assault requires proof of four elements-that the
defendant, (1) with intent to inflict great bodily harm, (2) assaulted (3) another (4) with a
5
This instruction mirrors the language of the pattern jury instruction, 11
Washington Practice: Washington Pattern Jury Instructions: Criminal 35.02, at 453 (3d
ed. 2008) (WPIC).
15
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
firearm. State v. Elmi, 166 Wn.2d 209, 214-15, 207 P.3d 439 (2009); see also RCW
9A.36.01 l(l)(a). The nature of the defendant's intent is an important aspect of a court's
instructions on first degree assault. First degree assault requires the State to prove the
defendant intended a specific result; i.e., the infliction of great bodily harm. Elmi, 166
Wn.2d at 216. It is not sufficient merely to prove the defendant intended to act in a way
likely to bring about the specific result. If the jury instructions fail to make this
distinction, they are inadequate. State v. Byrd, 125 Wn.2d 707, 716, 887 P.2d 396 (1995).
Contrary to the defendants' arguments, the instructions here did not misstate the
requisite form of intent. The third prong of the instruction unambiguously required the
State to prove intent to accomplish the result required by statute. There was no
reasonable basis for jury confusion on this point.
The court's instructions were not required to specify that the defendants intended
to harm a specific person or persons. While the State certainly can present proof of intent
to harm a specific person, doing so is unnecessary. All the statute requires is proof the
defendant intended to inflict great bodily harm on someone, even if that someone is
unknown. Elmi, 166 Wn.2d at 218 ("Where a defendant intends to shoot into and to hit
someone occupying a house, a tavern, or a car," a conviction for first degree assault will
stand) (emphasis added). The instructions here met this standard.
16
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
Specific intent matching specific victims
Apart from the legal adequacy of the "to convict" instructions, the defendants
claim the instructions, as worded, required the State to prove intent to assault a specific
person. Because no proof was presented at trial that the defendants knew who was inside
the Rincon house, the defendants claim the State presented insufficient evidence to
support their convictions.
We disagree with the defendants' reading of the instructions. The instructions for
each count did specify different victims. But this was only to ensure separate findings.
This was important because even though a defendant's generalized intent to harm one or
more persons is sufficient to establish the mens rea of first degree assault, proof that an
actual person was in fact assaulted is necessary to complete the crime. See State v.
Abuan, 161 Wn. App. 135, 158-59, 257 P.3d 1 (2011). Without an individual victim,
there is no assault. The instructions here appropriately separated the defendant's intent
from the identity of the victim. Because there was no link between these two
components, the State's failure to prove intent to harm specific victims was
inconsequential.
Sufficiency of the evidence
Our disagreement with the defendants' interpretation of the law and instructions
17
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
disposes of the majority of their claims that the State presented insufficient evidence to
satisfy the terms of the "to convict" instructions. One issue remains: whether the State
produced sufficient evidence for the jury to find the defendants intended to harm someone
as opposed to simply shoot at an empty house. Although proof as to a specific victim is
not required, the defendants are correct that the State must prove the defendants intended
harm to an actual person.
In satisfying its burden of proving intent, the State is entitled to rely on
circumstantial evidence. Relevant factors may include the manner in which an assault is
committed and the nature of any prior relationship between the alleged assailant and
victim. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994).
The evidence here showed the shooting took place at 4:00 a.m. on a Monday.
Several cars were parked outside the Rincons' small, single-wide trailer home. Faced
with these circumstances, the defendants could be expected to know the house they were
shooting at was occupied. In addition, given the home's small size, the defendants would
also know injuries were likely. These circumstances permitted the jury to find the
requisite degree of intent. Cf State v. Ferreira, 69 Wn. App. 465,469, 850 P.2d 541( 1993) (evidence insufficient to support first degree assault when it was only "likely
apparent" that a house was occupied). The State satisfied its burden of proof.
18
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
Transferred intent jury instruction
Apart from the "to convict" instruction, the defendants challenge the court's
transferred intent instruction. The instruction reads as follows:
If a person assaults a particular individual or group of individuals
with a firearm with the intent to inflict great bodily harm and by mistake,
inadvertence, or indifference, the assault with the firearm took effect upon
an unintended individual or individuals, the law provides that the intent to
inflict great bodily harm with a firearm is transferred to the unintended
individual or individuals as well.
CP at 60.
The defendants' primary argument is the transferred intent instruction relieved the
State of its burden to prove mens rea. They argue the use of the words "mistake,
inadvertence, or indifference" suggests the lower mental states of recklessness or
negligence substitute for intent. We disagree. The court's instruction clearly lays out the
intent needed for first degree assault: "the intent to inflict great bodily harm." Id. The
instruction then uses a conjunctive "and" to state intent can be transferred to an
unintended victim by mistakenly, inadvertently, or indifferently assaulting an unintended
person. The words "mistake, inadvertence, or indifference" only apply to the identity of
the victim, not to the intent. The instruction does not conflate mental states and is not
confusing.
19
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
The defendants also argue the transferred intent instruction was unnecessary.
Regardless of whether this is true, relief is unwarranted. The transferred intent instruction
may have been superfluous given the "to convict" instruction. However, inclusion of the
instruction did not negatively impact the defendants, especially where the defense did not
involve intent but rather identity. See State v. Salamanca, 69 Wn. App. 817, 827, 851
P.2d 1242 (1993).
Accomplice liability instruction
The final instructional challenge goes to the court's accomplice liability
instruction, which reads as follows:
A person is an accomplice in the commission of a crime if, with
knowledge that it will promote or facilitate the commission of the crime, he
either:
(I) solicits, commands, encourages, or requests another person to
commit the crime; or
(2) aids or agrees to aid another person in planning or committing
the crime.
The word "aid" means all assistance whether given by words, acts,
encouragement, support, or presence. A person who is present at the scene
and ready to assist by his or her presence is aiding in the commission of the
crime. However, more than mere presence and knowledge of the criminal
activity of another must be shown to establish that a person is an
accomplice.
A person who is an accomplice in the commission of a crime is
guilty of that crime whether present at the scene or not.
20
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla
CP at 2296. 6
The defendants claim this instruction was confusing and included erroneous
language that mere presence was sufficient to give rise to accomplice liability. We find
no error. The instruction unambiguously informed the jury the State was required to
prove more than mere presence. By distinguishing mere presence and requiring proof the
defendant knew his conduct would promote or facilitate the commission of a crime, the
instruction appropriately apprised the jury that the State must prove more than the
defendant was a knowing observer of a crime. No error was committed in issuing the
instruction.
Public trial
Nicolas James contends the trial court violated his right to a public trial by
allowing the trial to continue past 4:00 p.m. on several days when a sign on the
courthouse door indicated the courthouse closed at 4:00 p.m. His argument is foreclosed
by the Washington Supreme Court's decision in State v. Andy, 182 Wn.2d 294, 340 P.3d
840 (2014).
6
This instruction is identical to the language from the Washington Pattern Jury
Instructions. WPIC 10.51, at 217. It is also drawn directly from the accomplice liability
statute, RCW 9A.08.020.
21
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
ANALYSIS OF SENTENCING CLAIMS
Firearm enhancement
Jose Mancilla contends the trial court had no authority to "stack" the three firearm
enhancements. Br. of Appellant at 14. He argues that there should have been a 60-month
enhancement for each count of first degree assault instead of a 180-month enhancement
for each count. The Washington Supreme Court specifically addressed this argument in
State v. DeSantiago, 149 Wn.2d 402, 415-21, 68 P.3d 1065 (2003), holding "the plain
language of [RCW 9.94A.533]7 requires a sentencing judge to impose an enhancement
for each firearm or other deadly weapon that a jury finds was carried during an offense."
Id. at 421 (emphasis added). Here, the jury found Mr. Mancilla carried three separate
firearms for each of the seven counts of assault. Thus, the court properly imposed an
enhancement for each of the three firearms.
Constitutionality of the Persistent Offender Accountability Act
Armando Lopez claims his life sentence under the Persistent Offender
Accountability Act, RCW 9.94A.030 and .570, was imposed in violation of his rights to
due process, equal protection and to a jury trial. His arguments are contrary to our case
7The DeSantiago court analyzed RCW 9.94A.510. The language at issue there
has now been recodified in RCW 9.94A.533.
22
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla
law. State v. Witherspoon, 180 Wn.2d 875, 892-94, 329 P.3d 888 (2014); State v.
Brinkley, 192 Wn. App. 456, 369 P.3d 157, review denied, 185 Wn.2d 1042, 377 P.3d
759 (2016); State v. Williams, 156 Wn. App. 482, 496-98, 234 P.3d 1174 (2010).
CONCLUSION
The judgments and sentences of Jose Mancilla, Armando Lopez, and Nicholas
James are affirmed. Jaime Lopez's conviction is reversed without prejudice, and his case
is remanded for further proceedings, consistent with this opinion.
I
Pennell, J.
WE CONCUR:
7;~w~
oway,J.
I~
j
23