State of Washington v. David Rocael Lopez-Sanchez ( 2018 )

FILED
OCTOBER 18, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36058-0-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
DAVID ROCAEL LOPEZ-SANCHEZ, )
AKA DAVID ROCHEL LOPEZ, DAVID )
ROCHEL SANCHEZ, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — David Rocael Lopez-Sanchez appeals his convictions
for first degree burglary, fourth degree assault, and malicious mischief, all with a
domestic violence enhancement.1 He argues: (1) the trial court erred when denying his
motion for mistrial after the State repeatedly elicited prior bad act evidence, (2) the trial
court violated the real facts doctrine at sentencing, and (3) the evidence is insufficient to
sustain his conviction. We affirm.
1
He does not appeal his bail-jumping conviction, so we do not discuss this charge
or the facts giving rise to it.
No. 36058-0-III
State v. Lopez-Sanchez
FACTS
Lopez-Sanchez and Beatriz Jimenez dated and lived together for several years
before she asked him to move out of her apartment. Months later, Lopez-Sanchez called
Jimenez and asked if he could come to her apartment. She said that she would not be at
her apartment for a while, but she would leave it unlocked so he could let himself in.
When Jimenez returned to her apartment, she saw Lopez-Sanchez in her apartment
drinking. As they were talking, Lopez-Sanchez kept receiving phone calls from his
girlfriend. Jimenez became frustrated and disappointed, and told Lopez-Sanchez to leave.
The two began to argue, and Jimenez became fearful because Lopez-Sanchez had been
drinking and was very upset. Lopez-Sanchez told her he would get his car keys and
leave, but during a search for the keys, the two continued to argue. He could not find his
keys and eventually stepped outside. As he left, Jimenez called him a derogatory term.
She immediately feared that the term she used would cause him to attack her, so she
locked the door.
Shortly after, Lopez-Sanchez began knocking on the door loudly and repeatedly
asked for his keys. After a couple of minutes, he then started to hit the door with great
force and yell for her to let him in. He eventually kicked the locked door open and
2
No. 36058-0-III
State v. Lopez-Sanchez
entered. He ran angrily toward Jimenez and struck her multiple times with his fist and
foot. Jimenez escaped and ran out of her apartment for help.
She approached nearby maintenance workers and sought their help. They called
law enforcement. Law enforcement arrived and investigated, but Lopez-Sanchez had left.
Witnesses described Jimenez as hysterical and upset. The next business day, Jimenez
applied for a protection order. Law enforcement later arrested Lopez-Sanchez.
The State charged Lopez-Sanchez with first degree burglary, fourth degree assault,
and third degree malicious mischief, all with a domestic violence component. Prior to
trial, Lopez-Sanchez moved in limine to exclude evidence of prior bad acts of domestic
violence. The court granted his motion.
Both Lopez-Sanchez and Jimenez are monolingual and used interpreters
throughout trial. The State called Jimenez as a witness. Lopez-Sanchez did not object
when Jimenez testified that he was a “heavy drinker.” Report of Proceedings (RP) at 80.
Shortly after, the State asked if the relationship had any issues, and Jimenez replied,
“[c]onstant aggression against myself.” RP at 81. Lopez-Sanchez did not object.
Jimenez testified that she ended their relationship because “a situation came up where I
thought I won’t tolerate any more abuse or any more aggression, no more.” RP at 82-83.
3
No. 36058-0-III
State v. Lopez-Sanchez
At this point, Lopez-Sanchez asked the court to excuse the jury and objected to the
State eliciting the above evidence. The court noted that eliciting testimony about abuse
and aggression violated its ruling. The State conferred with Jimenez to remind her not to
go into prior acts of abuse or aggression. Lopez-Sanchez asked the court for a curative
instruction for the jury to disregard any answers about abuse or aggression. When the
jury returned, the court stated:
Ladies and gentlemen of the jury, while you were out, there was an
objection to the answer that was provided by [Jimenez], indicating, quote,
“I would not tolerate the abuse any more.” I’m going to provide you what I
refer to as a curative instruction. You are to disregard that reference or
statement by [Jimenez].
It is stricken from the record.
RP at 88-89.
The State’s questions then began to focus on the event giving rise to the charges.
Jimenez explained that Lopez-Sanchez came to her apartment that day to talk, but she
asked him to leave after he kept getting calls from his girlfriend. She testified he began to
get very upset, and that she knew he had been drinking. Jimenez testified that she called
him “a bad word” as she was closing and locking the door, and the moment she called
him the bad word, she knew “his reaction was going to be very aggressive, and I knew
that he would assault me.” RP at 97. Lopez-Sanchez objected based on speculation and
argued that Jimenez could not know his state of mind. The court sustained the objection
4
No. 36058-0-III
State v. Lopez-Sanchez
and struck that part of her testimony. The State then asked Jiminez whether she was
willing to let Lopez-Sanchez back into her apartment. She responded, “Not after I told
him. Not after I told him what I told him because I knew he would hit me.” RP at 100.
Lopez-Sanchez asked the court to excuse the jury and moved for a mistrial based
on the repeated answers that violated the court’s order in limine. The court heard
argument from both parties. The court determined that the statement that Jimenez knew
Lopez-Sanchez would hit her was not in reference to any prior bad act, but was because
of the derogatory term that she had called him. The court therefore did not grant Lopez-
Sanchez’s mistrial request.
Lopez-Sanchez asked the court to give the jury a limiting instruction that the
statement, “I knew he would hit me” referred back to the bad name used by Jimenez.
When the jury returned, the court instructed the jury to consider Jimenez’s statement as
relating only to the fact she had just called him a bad name.
After the parties submitted evidence and gave closing arguments, the jury
deliberated. The jury returned a verdict of guilty on all charges, all with special verdict
findings of domestic violence.
At sentencing, the State asked the court to merge the burglary and assault
convictions, to calculate Lopez-Sanchez’s offender score as 1 with a standard range of 21
5
No. 36058-0-III
State v. Lopez-Sanchez
to 27 months, and to impose a 100-year domestic violence no-contact order protecting
Jimenez. Lopez-Sanchez agreed with the State’s merger analysis and offender score
calculation, and asked for the lowest end of the standard range. He did not object to the
no-contact order.
The court asked the State why Jimenez was not present, and if she had spoken with
the State about Lopez-Sanchez’s sentence. The following discussion occurred:
[THE STATE]: . . . As the Court probably could intuit to some
extent, she was on board with the prosecution. She felt disrespected by the
defendant during times in trial. Apparently he was making faces at her,
shaking his head. I didn’t view any of that.
THE COURT: I didn’t see that myself.
[THE STATE]: So I do know that this was something that was a
great burden on her. And so I do know that she was happy with the result
of this trial. I don’t have her specific information from her as to what
particular type of amount of time she would like to see. I do know that the
no contact order has always been a very important piece for her.
RP at 533.
The court imposed a 21 month sentence as Lopez-Sanchez requested, and a 100
year domestic violence no-contact order.
Lopez-Sanchez timely appealed.
6
No. 36058-0-III
State v. Lopez-Sanchez
ANALYSIS
A. MOTION FOR MISTRIAL
Lopez-Sanchez contends the trial court abused its discretion when it denied his
mistrial motion. He argues Jimenez’s testimony repeatedly violated the order in limine
and amounted to a serious irregularity that requires a new trial. We disagree.
This court reviews a denial of a mistrial motion for abuse of discretion, finding
such abuse only if “‘no reasonable judge would have reached the same conclusion.’”
State v. Emery, 174 Wash. 2d 741, 765, 278 P.3d 653 (2012) (internal quotation marks
omitted) (quoting State v. Hopson, 113 Wash. 2d 273, 284, 778 P.2d 1014 (1989)). When
inadmissible testimony is put before the jury, the trial court should declare a mistrial if the
irregularity, in light of all of the evidence in the trial, so tainted the proceedings that the
defendant was deprived of a fair trial. State v. Weber, 99 Wash. 2d 158, 164, 659 P.2d 1102
(1983). The trial court is in the best position to determine the prejudice of a statement.
State v. Thompson, 90 Wash. App. 41, 45-46, 950 P.2d 977 (1998).
A mistrial is proper if “the defendant has been so prejudiced that nothing short of a
new trial can ensure that the defendant will be fairly tried.” Emery, 174 Wash. 2d at 765. A
trial irregularity prejudices a defendant’s fair trial rights if it poses a “substantial
likelihood” of affecting the jury’s verdict. State v. Gamble, 168 Wash. 2d 161, 177, 225
7
No. 36058-0-III
State v. Lopez-Sanchez
P.3d 973 (2010). This analysis depends on: (1) the seriousness of the irregularity,
(2) whether the statement was cumulative of evidence properly admitted, and (3) whether
the irregularity could be cured by an instruction. State v. Perez-Valdez, 172 Wash. 2d 808,
818, 265 P.3d 853 (2011).
Lopez-Sanchez analogizes his case to State v. Escalona, 49 Wash. App. 251, 742
P.2d 190 (1987). In that case, the defendant was charged with second degree assault with
a deadly weapon, a knife. Id. at 252. He successfully moved in limine to exclude
evidence of a prior conviction of the exact same crime. Id. At trial, the victim violated
the court’s ruling when at one point he testified that he knew the defendant “‘already has
a record and had stabbed someone.’” Id. at 253. The defendant requested a mistrial. Id.
The trial court denied the defendant’s request, and instead chose to instruct the jury to
disregard the victim’s answer. Id. On appeal, Division One of this court analyzed the
mistrial issue and reversed. Id. at 255-57. The court reasoned that the irregularity was
extremely serious because the improper evidence related to the same type of misconduct
as the charged crime. Id. at 255. The court determined that the curative instruction was
ineffective because a jury would be unlikely to disregard testimony that the defendant had
been convicted of the same type of crime. Id. at 256.
8
No. 36058-0-III
State v. Lopez-Sanchez
The State contends the better comparison is State v. Condon, 72 Wash. App. 638,
865 P.2d 521 (1993). In that case, the trial court granted a motion in limine to exclude
references that the defendant, charged with murder, had spent time in jail. Id. at 648. A
witness testified twice that the defendant had either been in jail or called her from jail. Id.
The defense sought a mistrial after the second instance. Id. The court denied the
defendant’s motion, but instructed the jury to disregard the statements. Id. The jury
found the defendant guilty of murder. Id. at 641. On appeal, the defendant cited
Escalona and argued that the trial court erred when it denied his mistrial motion.
Division One disagreed and distinguished Escalona. The court noted that spending time
in jail was much more ambiguous than committing an identical crime, and jail did not
indicate a propensity for murder or even a serious crime. Id. at 649.
Condon is more applicable to this case than Escalona. As noted, Lopez-Sanchez
successfully moved the court to exclude evidence of prior bad acts of prior domestic
violence. Jimenez testified that her relationship with Lopez-Sanchez was marked with
“[c]onstant aggression against myself,” and that she ended their relationship because she
would not tolerate “any more abuse or any more aggression.” These comments, although
improper, were sufficiently vague that they did not necessarily imply prior assaults.
Abuse or aggression can be verbal or emotional.
9
No. 36058-0-III
State v. Lopez-Sanchez
Later in her testimony, Jimenez related that she called Lopez-Sanchez a derogatory
name and shut her door. Jimenez testified that she locked her door because she knew he
would assault her. Lopez-Sanchez objected and argued Jimenez could not know what he
was thinking. The trial court sustained the objection. Soon after, Jimenez testified that
she would not let Lopez-Sanchez inside because she knew he would hit her. These
comments, although arguably improper, are not evidence of prior assaults.
Here, unlike in Escalona, the State submitted objective evidence that corroborated
Jimenez’s version of events. The State introduced photos of Jimenez’s destroyed door
and of her injuries. The jury likely focused on this objective evidence rather than vague
allusions of past behavior. We conclude that the trial court did not abuse its discretion
when it denied Lopez-Sanchez’s mistrial motion.
B. REAL FACTS DOCTRINE
Lopez-Sanchez contends that the real facts doctrine was violated at sentencing. He
argues that the terms of his sentence and no-contact order were improperly influenced by
the prosecutor’s claims that Lopez-Sanchez stared down Jimenez at trial, and that Jimenez
was mostly concerned that an appropriate protective order be entered. We disagree with
these arguments.
10
No. 36058-0-III
State v. Lopez-Sanchez
The real facts doctrine requires a defendant’s sentence to be based on his current
conviction, his criminal history, and the circumstances of the crime. State v. Morreira,
107 Wash. App. 450, 458, 27 P.3d 639 (2001) (quoting State v. Coats, 84 Wash. App. 623,
626, 929 P.2d 507 (1997)).
Here, the trial court did not base its sentence or the term of the no-contact order on
any improper information. The trial court based Lopez-Sanchez’s sentence on his
criminal history and agreed with Lopez-Sanchez’s request to sentence him to the lowest
end of the standard range. The trial court based the term of the no-contact order on the
State’s request and the lack of any contrary request by Lopez-Sanchez. The trial court
simply signed an order that was not opposed.
C. SUFFICIENCY OF THE EVIDENCE
Lopez-Sanchez challenges the sufficiency of the evidence. He claims no evidence
established he was present at Jimenez’s home and the evidence did not establish his entry
was unlawful for the burglary charge. We find his argument frivolous.
In a criminal case, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In evaluating the sufficiency of the
evidence, the court must determine whether, when viewing the evidence in the light most
11
No. 36058-0-III
State v. Lopez-Sanchez
favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt. State v. Pirtle, 127 Wash. 2d 628, 643, 904 P.2d 245 (1995). A claim of
insufficiency admits the truth of the State’s evidence and all reasonable inferences from
that evidence. State v. Kintz, 169 Wash. 2d 537, 551, 238 P.3d 470 (2010). Reviewing
courts also must defer to the trier of fact “on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wash. 2d 821,
874-75, 83 P.3d 970 (2004). This court does not reweigh the evidence and substitute its
judgment for that of the jury. State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980)
(plurality opinion). For sufficiency of evidence claims, circumstantial and direct evidence
carry equal weight. State v. Varga, 151 Wash. 2d 179, 201, 86 P.3d 139 (2004).
Burglary in the first degree is defined in RCW 9A.52.020(1) as follows:
A person is guilty of burglary in the first degree if, with intent to commit a
crime against a person or property therein, he or she enters or remains
unlawfully in a building and if, in entering or while in the building or in
immediate flight therefrom, the actor or another participant in the crime
(a) is armed with a deadly weapon, or (b) assaults any person.
A person “enters or remains unlawfully” when they are “not then licensed, invited, or
otherwise privileged to so enter or remain.” RCW 9A.52.010(2). The State must prove
the identity of a criminal defendant and his presence at the scene of the crime charged
12
No. 36058-0-III
State v. Lopez-Sanchez
beyond a reasonable doubt. State v. Thomson, 70 Wash. App. 200, 211, 852 P .2d 1104
(1993), aff'd, 123 Wash. 2d 877, 872 P.2d 1097 (1994).
Under the proper standard of review, sufficient evidence established that Lopez-
Sanchez went to Jimenez's apartment the day of the crimes. Jimenez testified that he was
present. Although Lopez-Sanchez and his girlfriend testified that they were together all
day, the jury was free to discount these testimonies. Similarly, Jimenez's testimony that
Lopez-Sanchez broke down her locked door ·and beat her is sufficient alone to sustain the
burglary conviction.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Pennell, J.
13