State Of Washington v. Pedro Godinez, Jr. ( 2015 )


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  •                                                                                                  Filed
    Washington State
    Court of Appeals
    Division Two
    December 15, 2015
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,                                                 No. 46153-6-II
    Respondent,
    v.
    PEDRO GODINEZ JR.,                                             UNPUBLISHED OPINION
    Appellant,
    JOANNA KRYSTIN SPEAKS,
    Defendant.
    JOHANSON, C.J. — Pedro Godinez, Jr. appeals his jury trial convictions for first degree
    attempted murder, first degree kidnapping, first degree robbery, first degree unlawful possession
    of a firearm, and his resulting sentence. He argues that the trial court improperly admitted the
    victim’s hearsay statements, erred when it allowed a witness to testify wearing prison attire, and
    committed two sentencing errors. We hold that (1) the trial court did not err when it admitted the
    victim’s excited utterances, (2) no prejudice resulted from the inmate testifying in her prison attire,
    (3) the trial court improperly added one point to Godinez’s offender score, and (4) the trial court
    did not abuse its discretion when it determined that attempted murder and first degree robbery
    were not the same criminal conduct. Finally, we reject Godinez’s assertion in his statement of
    No. 46153-6-II
    additional grounds (SAG) that he was improperly denied the opportunity to fully question certain
    jurors. We affirm Godinez’s convictions, reverse his sentence, and remand for resentencing.
    FACTS
    I. BACKGROUND FACTS
    In November 2012, Freddy Landstrom was at home when Joanna Speaks called him.
    Landstrom agreed to meet Speaks and drove to Speaks’s apartment after midnight. Based on a
    receipt that the police collected, Landstrom stopped at a gas station at 1:56 AM and then continued
    directly to Speaks’s home.
    According to Landstrom, within a minute of his arriving at Speaks’s apartment, Godinez
    entered with his gun pointed at Landstrom. Landstrom initially thought that Godinez was there to
    rob Speaks and him, but soon realized that it was a setup and that Speaks was involved. Still at
    gunpoint, Godinez ordered Landstrom to remove his jacket and to put his valuables on the bed.
    Godinez then told Landstrom to get into Landstrom’s car and to drive around the
    Vancouver area. As Landstrom drove, Godinez sat in the back seat with his gun pointed at
    Landstrom. After what seemed like hours to Landstrom, Godinez told him to pull over on a gravel
    road near a swamp. Godinez ordered Landstrom out of the car and told him to get on his knees,
    facing away from Godinez. Landstrom, who thought Godinez was preparing to shoot him, stood
    up and tried to talk Godinez out of it. Landstrom told Godinez he could keep his car and agreed
    not to report it as stolen until Godinez said it was okay. He also told Godinez he had over $10,000
    in his various accounts and that Godinez could use the cards he had stolen to access that money.
    Because Godinez told Landstrom that he could report his car stolen on Saturday,
    Landstrom thought he had convinced Godinez to spare his life as they walked down the gravel
    2
    No. 46153-6-II
    road. But then Godinez ordered Landstrom to get back on his knees. Godinez shot Landstrom
    from a distance of about four or five feet, but the first bullet just grazed Landstrom’s head.
    Landstrom turned to face Godinez, who shot him again in the chest. Landstrom was shot again in
    the hand and in the arm before he could run away and hide in a nearby swamp. Landstrom waited
    in the swamp for what “seemed like an eternity” and eventually wandered for at least a mile until
    he found someone to call the police. 2A Report of Proceedings (RP) at 466.
    When the police arrived at about 4:30   AM,   Vancouver Police Department Officer John
    Janisch contacted Landstrom. Officer Janisch said that Landstrom was “[v]ery stressed out, in a
    panic, [and] thinking he was going to die.” 2A RP at 361. Minutes later the ambulance arrived
    and Officer Janisch accompanied Landstrom to the hospital to interview Landstrom and to learn
    what happened because he was afraid that Landstrom might not survive. Officer Janisch recorded
    Landstrom’s statements in the ambulance and the State played the 23-minute-long recording at
    trial.
    II. PROCEDURAL FACTS
    The State charged Godinez with attempted first degree murder, first degree kidnapping,
    first degree robbery, first degree unlawful possession of a firearm, and several other charges. At
    trial, the State moved to admit the recorded statement Landstrom gave while in the ambulance.
    The State agreed that the recording was hearsay, but argued that it was admissible as an excited
    utterance: a statement of Landstrom’s then-existing mental, emotional, or physical condition and
    a statement for medical diagnosis or treatment. Godinez argued that “while I concur that if this
    was just statements by the victim that they would be admissible under those exceptions, these are
    3
    No. 46153-6-II
    not just statements, though; this is an actual interview, question-and-answer situation, and
    obviously Defense wasn’t there, wasn’t able to cross-examine.” 2A RP at 327.
    After the State’s offer of proof, the trial court admitted Landstrom’s recorded statement as
    “excited utterance, then existing mental, emotional, or physical condition, and statements for the
    purpose of medical diagnosis or treatment, as well as present sense . . . impression.” 2A RP at
    356-57. Although the trial court did not directly address Godinez’s confrontation clause concerns,
    it found that because Landstrom’s statement did not identify Godinez, there was no prejudice. The
    State played the recording and Godinez made no further objection.
    Landstrom testified to the facts as stated above and also identified Godinez in photographs
    taken from surveillance video at a gas station where Godinez had used Landstrom’s bank cards.
    A forensic scientist testified that Godinez’s deoxyribonucleic acid (DNA) was present on
    Landstrom’s car’s steering wheel. Another police officer testified that Landstrom’s car was
    discovered at a motel where Godinez was staying.
    The State called Speaks to testify. Speaks had already pleaded guilty to first degree robbery
    and witness tampering and was serving her sentence in prison as a result of this incident. Because
    Speaks did not have civilian clothes when she was transported to the courthouse from prison, she
    testified in her prison uniform. Godinez objected, arguing that “the clothing does go to --
    diminishes the veracity of a witness when they’re in jail garb” and requested that she be permitted
    to testify in civilian clothes. 2B RP at 572-73. The State told the trial court it planned to ask
    Speaks about her guilty plea and her role in the incident. The trial court overruled Godinez’s
    objection because there were no civilian clothes available.
    4
    No. 46153-6-II
    Speaks testified that she robbed Landstrom when she pulled a gun on him at her apartment
    and asked him to empty his pockets. She then told Landstrom to leave and did not see him or
    Godinez that night. Speaks claimed that she saw Godinez the next day, told him that Landstrom’s
    credit cards were hers, asked him to use them to withdraw money for her, and did not see him
    again until she was in jail. Later, Speaks’s father testified as an impeachment witness. He testified
    that Speaks told him Godinez had robbed Landstrom at gunpoint, had “removed the victim” with
    a gun from her apartment, and had shot him near a lake or a park. 2B RP at 655. Godinez did not
    testify nor did he call any witnesses in his defense.
    A jury convicted Godinez of attempted first degree murder, first degree kidnapping, first
    degree robbery, and first degree unlawful possession of a firearm, with several enhancements and
    aggravators. At sentencing, the trial court agreed with the State that Godinez’s convictions for
    attempted first degree murder and first degree kidnapping did not constitute the same criminal
    conduct because although the two crimes involved the same victim, murder and kidnapping do not
    require the same criminal intent, and the two crimes did not occur at the same time and place.
    Godinez disagreed. Godinez also objected to the addition of one point to his offender score based
    on “community custody” for a gross misdemeanor, but the trial court agreed with the State and
    added one point to his offender score. 5 RP at 1248.
    Godinez appeals his convictions and sentence.
    5
    No. 46153-6-II
    ANALYSIS
    I. EXCITED UTTERANCE HEARSAY EXCEPTION
    Godinez argues that the trial court abused its discretion because Landstrom’s recorded
    statement is hearsay and no hearsay exceptions apply that permit its admission.1 We disagree.
    Godinez argues that Landstrom’s recorded statement was not an excited utterance. He
    concedes that Landstrom endured a startling event but argues that Landstrom’s recorded statement
    was not an excited utterance primarily because too much time elapsed between when he was
    attacked and when he gave the statement in the ambulance. We disagree.
    We review the trial court’s evidentiary rulings for an abuse of discretion. State v. Garcia,
    
    179 Wash. 2d 828
    , 846, 
    318 P.3d 266
    (2014). The trial court “‘abuses its discretion if its decision is
    manifestly unreasonable or based upon untenable grounds or reasons.’” 
    Garcia, 179 Wash. 2d at 846
    (internal quotation marks omitted) (quoting State v. Lamb, 
    175 Wash. 2d 121
    , 127, 
    285 P.3d 27
    (2012)).
    Hearsay is “a statement, other than one made by the declarant while testifying at the trial
    or hearing, offered in evidence to prove the truth of the matter asserted” in the statement. ER
    801(c). Hearsay statements are inadmissible unless they fall within one of the exceptions in the
    Rules of Evidence. ER 802. One such exception is for the declarant’s “excited utterances,”
    defined as “statement[s] relating to a startling event or condition made while the declarant was
    under the stress of excitement caused by the event or condition.” ER 803(a)(2). To qualify as an
    exited utterance, a statement must meet three conditions: (1) a startling or exciting event must
    1
    We assume, without deciding, that Godinez preserved this issue for appellate review.
    6
    No. 46153-6-II
    have occurred, (2) the declarant’s statement must have been made while he or she was under the
    stress of the startling or exciting event, and (3) the statement must be related to the startling or
    exciting event. State v. Chapin, 
    118 Wash. 2d 681
    , 686, 
    826 P.2d 194
    (1992).
    Godinez argues that over two to three hours elapsed between shortly after 1:56 AM, when
    Landstrom arrived at Speaks’s apartment, and 4:30 AM, when the police responded to the marina.
    Godinez argues this time lapse is evidence that Landstrom’s statement was not spontaneous
    because he had too much time to consider fabricating a story. But Godinez does not understand
    the nature of the startling event that Landstrom experienced. The startling event did not end when
    Godinez fired the last bullet at Landstrom. Instead, Landstrom was still under the stress of the
    evening’s startling events when he dove into the swamp, emerged from the swamp, and happened
    upon the marina because he had not yet arrived at a place of safety. Even minutes later when the
    police arrived and Landstrom was secured in the ambulance, he was still under the stress of the
    evening’s startling events because he had been shot four times, was still bleeding, and thought he
    would die.
    Therefore, Godinez’s argument that too much time elapsed between Landstrom’s arrival at
    Speaks’s apartment and Landstrom’s recorded statement is unpersuasive. We hold that the trial
    court did not abuse its discretion when it determined that the excited utterance exception to the
    hearsay rule permitted the admission of Landstrom’s recorded statement.2
    2
    Because Landstrom’s statement was admissible as an excited utterance, we need not address the
    other hearsay exceptions that Godinez argues the trial court misapplied.
    7
    No. 46153-6-II
    II. SPEAKS’S TESTIMONY IN PRISON ATTIRE
    Godinez argues that the trial court erred when it permitted Speaks to testify in her prison
    attire without conducting a hearing or making findings “justifying [her] appearance.” Br. of
    Appellant at 26. He argues that permitting Speaks to testify in her prison attire damaged her
    credibility. Even if the trial court erred, any error was harmless beyond a reasonable doubt.
    The defendant’s right to appear free from “all bonds or shackles” is grounded in the Sixth
    and Fourteenth Amendments to the United States Constitution and article I, section 22 of the
    Washington State Constitution. State v. Finch, 
    137 Wash. 2d 792
    , 842-43, 
    975 P.2d 967
    (1999).
    These concerns apply to defendants and inmate witnesses similarly. State v. Rodriguez, 
    146 Wash. 2d 260
    , 263-64, 269, 
    45 P.3d 541
    (2002). We review alleged constitutional violations de novo. State
    v. Johnson, 
    180 Wash. 2d 295
    , 300, 
    325 P.3d 135
    (2014).
    “[A]n inmate witness, whether testifying for the defense or the state, should not appear
    before a jury in restraints absent a finding of necessity by the trial court.” 
    Rodriguez, 146 Wash. 2d at 269
    . In making this finding, trial courts should balance the defendant’s right not to be prejudiced
    by his or a witness’s appearance against the trial court’s longstanding right to control security and
    provide order in the courtroom. 
    Rodriguez, 146 Wash. 2d at 265-68
    .
    Assuming the trial court erred, we turn to a harmless error analysis. Godinez argues that a
    constitutional harmless error standard applies and any error was not harmless because testifying in
    prison attire damaged Speaks’s credibility and had the jury believed Speaks’s testimony, it “would
    have completely exonerated” Godinez. Br. of Appellant at 27. We disagree.
    An error of constitutional magnitude is harmless when the reviewing court is “convinced
    beyond a reasonable doubt that any reasonable jury would have reached the same result in the
    8
    No. 46153-6-II
    absence of the error.” State v. Guloy, 
    104 Wash. 2d 412
    , 425, 
    705 P.2d 1182
    (1985). Where there is
    a constitutional error, we presume prejudice and place the burden on the State to prove that the
    error was harmless beyond a reasonable doubt. 
    Guloy, 104 Wash. 2d at 425
    ; State v. Stephens, 
    93 Wash. 2d 186
    , 191, 
    607 P.2d 304
    (1980).
    Because Speaks testified that she was in prison serving a sentence for Landstrom’s robbery,
    there was no prejudice resulting from the jury seeing Speaks in prison attire. Any inferences the
    jury may have made or information it may have gained from seeing Speaks in prison attire was
    merely cumulative of Speaks’s testimony. Speaks’s father also testified as an impeachment
    witness, contradicting her testimony and damaging her credibility much more severely. Further,
    in addition to Speaks’s, her father’s, and Landstrom’s testimony identifying Godinez as his
    attacker, Godinez’s DNA found in Landstrom’s car, and the discovery of Landstrom’s car at the
    motel where Godinez stayed all support the conclusion that the error was harmless. We are
    convinced beyond a reasonable doubt that any reasonable jury would have reached the same result
    if Speaks had not testified in prison attire.
    III. OFFENDER SCORE
    Godinez contends that the trial court improperly added a point to his offender score because
    he was on misdemeanor and not felony community custody.               We agree and remand for
    resentencing.
    A. STANDARD OF REVIEW AND RULES OF LAW
    We review the trial court’s calculation of the defendant’s offender score de novo. State v.
    Olsen, 
    180 Wash. 2d 468
    , 472, 
    325 P.3d 187
    , cert. denied, 
    135 S. Ct. 287
    (2014). We also review
    the sentencing court’s interpretation of the Sentencing Reform Act of 1981 (SRA), ch. 9.94A
    9
    No. 46153-6-II
    RCW, de novo. State v. Jones, 
    172 Wash. 2d 236
    , 242, 
    257 P.3d 616
    (2011). A defendant may raise
    a challenge to his offender score for the first time on appeal because “the sentencing court acts
    without statutory authority when it imposes a sentence based on a miscalculated offender score.”
    State v. Soper, 
    135 Wash. App. 89
    , 104 n.11, 
    143 P.3d 335
    (2006); see also State v. Jones, 
    182 Wash. 2d 1
    , 6-7, 
    338 P.2d 278
    (2014); State v. Ford, 
    137 Wash. 2d 472
    , 477, 
    973 P.2d 452
    (1999). It
    is the State’s burden to prove a convicted defendant’s criminal history to calculate his offender
    score. 
    Ford, 137 Wash. 2d at 480-81
    .
    The SRA requires trial courts to add one point to a convicted defendant’s offender score
    when the “present conviction is for an offense committed while the offender was under community
    custody.” RCW 9.94A.525(19). “Community custody” is defined as “that portion of an offender’s
    sentence of confinement in lieu of earned release time or imposed as part of a sentence under this
    chapter.” RCW 9.94A.030(5) (emphasis added). “This chapter” refers to the SRA and the SRA
    permits sentencing courts to impose punishment, including community custody, on defendants
    convicted of only felonies. RCW 9.94A.505(1). The SRA requires sentencing courts to impose
    punishments on felony offenders consistent with its provisions and its “purpose” is to “make the
    criminal justice system accountable to the public by developing a system for the sentencing of
    felony offenders.” RCW 9.94A.505(1), .010.
    B. ANALYSIS
    Here, the trial court added one point to Godinez’s offender score for his first degree
    attempted murder and unlawful possession of a firearm convictions because he was on
    “community custody” for a misdemeanor. 5 RP at 1241. Godinez’s community custody officer
    testified that Godinez was on active “misdemeanor community custody” on the date of his offenses
    10
    No. 46153-6-II
    for a prior fourth degree assault conviction and that Godinez was not, “[t]o [his] knowledge,” on
    community custody for his prior first degree theft felony conviction.3 5 RP at 1199. Fourth degree
    assault is a gross misdemeanor. RCW 9A.36.041(2). The State also presented no evidence that
    Godinez’s community custody was a “portion of [his] sentence . . . in lieu of earned release time.”
    RCW 9.94A.030(5).
    Because fourth degree assault is a misdemeanor and community custody could not have
    been ordered for that conviction under the SRA, the trial court improperly added one point to
    Godinez’s offender score because he was on community custody. We reverse Godinez’s sentence
    and remand for resentencing.
    IV. SAME CRIMINAL CONDUCT
    Godinez argues that the trial court abused its discretion when it found that his first degree
    attempted murder and first degree kidnapping convictions did not constitute the same criminal
    conduct. We disagree.
    A. STANDARD OF REVIEW AND RULES OF LAW
    We review the trial court’s finding that two crimes did not constitute the same criminal
    conduct for an abuse of discretion or a “misapplication of the law.” State v. Graciano, 
    176 Wash. 2d 531
    , 537, 
    295 P.3d 219
    (2013). Where the record supports only one conclusion regarding the
    defendant’s conduct, the trial court abuses its discretion when it arrives at a contrary result.
    
    Graciano, 176 Wash. 2d at 537-38
    . But if the record before the trial court supports either a conclusion
    3
    It appears from the record that Godinez’s community custody officer testified based on the
    judgment and sentence from his fourth degree assault and first degree theft convictions. But that
    document is not in the record.
    11
    No. 46153-6-II
    that the defendant’s crimes constituted the same criminal conduct or that they did not, the issue
    lies squarely in the trial court’s discretion. 
    Graciano, 176 Wash. 2d at 538
    .
    When a person is convicted of two or more serious violent offenses, the trial court must
    run the sentences for those offenses consecutively unless the trial court finds that the crimes
    constituted the same criminal conduct. RCW 9.94A.589(1)(b). Two crimes constitute the same
    criminal conduct when they “require the same criminal intent, are committed at the same time and
    place, and involve the same victim.” RCW 9.94A.589(1)(a). At sentencing, it is the defendant’s
    burden to demonstrate that his crimes constituted the same criminal conduct. 
    Graciano, 176 Wash. 2d at 540
    . We construe the statute narrowly to “‘disallow most claims that multiple offenses
    constitute the same criminal act.’” 
    Graciano, 176 Wash. 2d at 540
    (quoting State v. Porter, 
    133 Wash. 2d 177
    , 181, 
    942 P.2d 974
    (1997)). The defendant’s failure to establish any element defeats
    his or her claim that his or her crimes amounted to the same criminal conduct. 
    Graciano, 176 Wash. 2d at 540
    .
    B. ANALYSIS
    The issue here is whether the trial court abused its discretion when it determined that the
    first degree attempted murder and first degree kidnapping did not require the same criminal intent
    and did not occur at the same time and place.
    1. SAME CRIMINAL INTENT
    Godinez does not contest the same criminal intent element because he believes that the trial
    court found that his first degree attempted murder and first degree kidnapping crimes had the same
    criminal intent. We disagree and conclude that the trial court did not abuse its discretion when it
    found that Godinez’s two crimes did not require the same criminal intent.
    12
    No. 46153-6-II
    Two crimes require the same criminal intent if, when viewing them objectively, the
    defendant’s criminal intent did not change from one crime to the next. State v. Tili, 
    139 Wash. 2d 107
    , 123, 
    985 P.2d 365
    (1999). This analysis requires us to first “objectively view each underlying
    statute” to determine whether the intents are the same. State v. Price, 
    103 Wash. App. 845
    , 857, 
    14 P.3d 841
    (2000). If the intents are the same, we view the facts available to the trial court at
    sentencing to determine whether the defendant’s intent was different regarding each count. 
    Price, 103 Wash. App. at 857
    .
    Here, the trial court found “some overlap in criminal intent [because kidnapping and
    attempted murder might both involve bodily injury] but [found] that they are not the same criminal
    intent and, as argued by the State, the attempted murder is quite a different intent than that of
    kidnapping.” 5 RP at 1239. Examining the underlying statutes, attempted first degree murder and
    first degree kidnapping do not require the same criminal intent. First degree kidnapping requires
    an intentional abduction with intent to inflict bodily injury. RCW 9A.40.020(1)(c). Attempted
    first degree murder requires specific intent to cause another person’s death. RCW 9A.28.020;
    RCW 9A.32.030.        The required criminal intent is different because although first degree
    kidnapping may be done with intent to inflict bodily injury, intent to inflict bodily injury does not
    equate to a specific intent to cause death. The trial court did not abuse its discretion when it found
    that the attempted first degree murder and first degree kidnapping did not require the same criminal
    intent.
    In addition, the facts here demonstrate that the attempted murder and the first degree
    kidnapping did not require the same criminal intent. As the State suggests, Landstrom almost
    talked Godinez out of shooting him by promising not to report the car theft and by telling him how
    13
    No. 46153-6-II
    much money was available in his accounts. Godinez responded by telling Landstrom he could
    report his car stolen on Saturday, thereby implying Landstrom would be alive on Saturday to do
    so. This demonstrates that Godinez had not conclusively formed the intent to cause Landstrom’s
    death when he kidnapped him because just moments before shooting Landstrom, Godinez
    considered other plans. Apart from the fact that he held Landstrom at gunpoint, no other evidence
    was available to the trial court to suggest that Godinez had planned to kill Landstrom when he
    kidnapped him.
    Therefore, because kidnapping requires proof of intent to cause bodily injury and attempted
    murder requires specific intent to cause death and Godinez had not inexorably formed the intent
    to cause Landstrom’s death when he kidnapped him, it was reasonable for the trial court to
    conclude that Godinez’s crimes did not require the same criminal intent. The trial court did not
    abuse its discretion when it found that, based on this record, the attempted first degree murder and
    first degree kidnapping did not require the same criminal intent.
    2. SAME TIME AND PLACE
    Godinez appears to argue that his two crimes need not have occurred simultaneously to
    occur at the same time and place. We conclude that the trial court did not abuse its discretion when
    it found that Godinez’s crimes did not occur at the same time and place.
    Here, the trial court found that “[t]he kidnapping occurred at gunpoint at the apartment of
    Joanna Speaks in east Clark County; the attempted murder at a remote area of west Clark County.”
    5 RP at 1239. The court also relied on Landstrom’s testimony that “it seemed like hours” passed
    between his arrival at Speaks’s apartment, driving around the Vancouver area in Landstrom’s car
    at gunpoint, and Godinez’s decision to shoot him. 5 RP at 1239.
    14
    No. 46153-6-II
    These findings are supported by the record and lead to only one conclusion—that the two
    crimes did not occur at the same time and place. The record shows that the kidnapping occurred
    over two hours before the attempted murder and that the kidnapping occurred in east Clark County
    and the attempted murder occurred in west Clark County. We defer to the trial court’s discretion.
    See 
    Graciano, 176 Wash. 2d at 538
    .
    The trial court did not abuse its discretion when it concluded that the first degree attempted
    murder and first degree kidnapping convictions did not constitute the same criminal conduct
    because they did not require the same criminal intent and did not occur at the same time and place.
    Godinez’s argument fails.
    V. STATEMENT OF ADDITIONAL GROUNDS
    In his SAG, Godinez also asserts that he was prejudiced by the trial court’s decision not to
    permit questioning of a juror who was uncomfortable having her name announced in open court.
    We disagree.
    Although there are three references to jurors’ discomfort about having their names
    announced in court, the record does not support Godinez’s argument that the trial court denied him
    the opportunity to question jurors about this issue. Godinez’s counsel specifically stated that if he
    had any further concerns about the issue, he would file written motions. The record does not
    support his contention that the trial court denied him an opportunity to question the jurors fully.
    15
    No. 46153-6-II
    We affirm Godinez’s convictions, reverse his sentence, and remand for sentencing.
    A majority of the panel having determined that this opinion will not be printed in the
    Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
    it is so ordered.
    JOHANSON, C.J.
    We concur:
    BJORGEN, J.
    MAXA, J.
    16