State of Washington v. Santiago Alberto Santos ( 2020 )

FILED
APRIL 30, 2020
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. 36069-5-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
SANTIAGO ALBERTO SANTOS, )
)
Appellant. )
FEARING, J. (writing for the majority in all but Section VIII) — We affirm
Santiago Santos’s conviction for first degree manslaughter, but remand to vacate some
financial obligations.
FACTS
Santiago Santos appeals his conviction and sentence for the November 15, 2015,
killing of Manuel Jaime. Santos then lived with his mother in a Grandview house located
on the same street as the residence of Manuel Jaime. In November 2015, Santos worked
the night shift at a Prosser warehouse.
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State v. Santos
Because Santiago Santos claims diminished capacity, we recount some of his
history and characteristics. According to Maria Santos, Santiago’s mother, Santiago
lived a different life. Santiago did not desire company, and he disliked sunlight to the
extent he placed sheets over the home’s windows. Sometimes Maria heard Santiago,
alone in his bedroom, talking and laughing. Santiago occasionally told his mother that
others sought to injure him, he housed a tumor in his head, he suffered internal bleeding,
and he contracted a sexually transmitted disease from his girlfriend.
Medical records introduced as exhibits at trial showed that, in June 2014, Santiago
Santos told medical providers: “‘I think I have contracted a brain tumor. I am having
pain inside my head.’” Ex. 206 at 8 (some capitalization omitted). The treating
physician apparently questioned the self-diagnosis because the physician only diagnosed
a headache and prescribed pain medication. In early July 2014, Santos returned to the
hospital, where he informed medical providers that he engaged in intercourse with a
female without protection and that he wanted treatment for symptoms resulting from
a sexually transmitted disease. Records, however, list no diagnosis of a sexually
transmitted disease. In August 2014, Santos went to the emergency room and complained
of severe pain in his spleen. The emergency room physician diagnosed Santos with
gastritis.
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For two years before his death on November 15, 2014, Manuel Jaime, with a
criminal record, worked for money as a confidential informant for a drug task force.
The task force had recently employed Jaime to conduct a controlled buy of narcotics
from an individual named “Fajardo.” 7 Report of Proceedings (RP) at 623, 646-47.
The buy led to Fajardo’s arrest and prosecution.
We begin the facts of the slaying of Manuel Jaime from the perspective of ear
witness, twelve-year-old Andrew Fernandez, a pseudonym. On November 14, 2014,
Andrew, five siblings, and one cousin enjoyed a sleepover at Andrew’s Grandview home.
Andrew lived at the residence with his mother, grandmother, and uncle, Manuel Jaime.
That evening, Andrew’s mother worked a night shift, and his grandmother visited Texas.
Appellant Santiago Santos had seen, before November 14, 2015, children playing
in Manuel Jaime’s yard. He knew Andrew Fernandez and other children lived in the
home. Santos testified at trial:
They stayed there and lived there. It’s obvious. It’s obvious.
9 RP at 910.
Andrew Fernandez fell asleep around 9:00 p.m. and awoke shortly before
3:00 a.m. Andrew heard a loud thump as if something fell to the ground. He then heard
his uncle, Manuel Jaime, crying. While Jaime sobbed, Andrew heard a voice, which he
recognized as Santiago Santos’s voice, say “you’re dying slowly. I told you I was going
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to do this.” 5 RP at 383. Andrew knew Santos from earlier contact. Santos told Jaime
that Jaime owed him something, while Santos mentioned the name “Fajardo.” 5 RP at
383.
Andrew Fernandez panicked, awoke the other sleeping children in the room, and
tried to open the bedroom window. The window would not open. Minutes later, a
frightened Fernandez retrieved his phone from his backpack and called law enforcement.
Fernandez told the 911 operator that someone was harming his uncle, and he asked for
help.
According to Andrew Fernandez, Santiago Santos used the residence’s restroom
next door to the room in which the children had slept. Santos returned to the room in
which Manuel Jaime lay, and remarked: “I’m going to come back for your family.”
5 RP at 383.
When officers arrived at the Grandview residence, they found Manuel Jaime lying
near the front doorway of the home and bleeding profusely. While fearing the culprit
might flee from the residence, Grandview Police Officer John Arraj circled the house and
observed a man, later identified as Santiago Santos, through a bedroom window. Officer
Arraj illuminated Santos with his flashlight, and Santos immediately drooped to the floor.
Arraj returned to the residence’s doorway, entered the abode, and hurried past a bloody
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State v. Santos
Jaime. Arraj found Santos lying face down with his fingers interlaced behind his head.
Officer Arraj secured Santos in handcuffs and escorted him from the home.
Officer John Arraj swept the house for more victims and found the seven children
inside a bedroom. Officer Arraj instructed the youths to stay inside the bedroom, and he
closed the door. Officer Arraj and other officers then provided medical aid to Manuel
Jaime. Jaime suffered from numerous stab wounds, puncture wounds to his chest, and a
large incision in his abdomen. Officers heard sucking noises. Jaime pled with officers:
“let’s go; let’s go; let’s go.” 5 RP at 448. Officer Arraj concluded that Jaime would
likely die from blood loss, so Arraj asked Jaime who stabbed him. Jaime replied:
“Santiago.” 5 RP at 449. Officer Arraj asked a second time, and Jaime answered again:
“Santiago.” 5 RP at 449. Officer Arraj questioned: “Santiago who’s in the house?”
5 RP at 449. Jaime responded yes. 5 RP at 449. Andrew Fernandez overheard the
officers questioning his uncle Manuel Jaime, and the twelve-year-old heard his uncle say
“Santiago.” 5 RP at 387-88. Medics transported Jaime to the hospital, where he perished
less than one hour later.
Grandview Police Officer Jose Martin assisted at the crime scene. In a bedroom
closet, Officer Martin found a bloody folding knife located on top of a stack of books.
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State v. Santos
Officer John Arraj transported Santiago Santos to the Grandview Police
Department. He collected Santos’s clothing and took photographs of Santos while in his
cell. Santos wore four sets of underwear. Santos bore blood on his hands, clothing, and
boots. Officer Travis Shepard assisted Officer Arraj in evidence gathering and found
blood on Santos’s arms and shoulders. The officers took blood swabs from various parts
of Santos’s body.
After leaving the jail cell, Officer John Arraj realized he mistakenly left the
camera in the jail cell. When Arraj returned to the cell, he found the camera placed in the
cuffing port of the cell. Santiago Santos remarked to Arraj: “you left something behind.”
5 RP at 453. Officer Arraj discovered the camera’s memory card missing and the photos
of Santos deleted. During his contact with Santos, Officer Arraj never smelled
intoxicants.
Police officers took the children sleeping at the Grandview home with Andrew
Fernandez to the Grandview police station. Alma Guillen, Manuel Jaime’s sister and
Andrew Fernandez’s aunt, retrieved her ten-year-old daughter and the six other children
from the station. She found her daughter in tears, distraught, and fearful. According to
Guillen, her daughter, the daughter’s cousins, and Guillen herself thereafter “had
problems” returning to the Grandview home.
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State v. Santos
Later during the morning of November 15, 2014, officers served a warrant on
Santiago Santos in order to swab his mouth for DNA. Detective Mitchell Fairchild audio
and video recorded the interaction. Officers also sought to interview Santos.
Before questioning Santiago Santos, Detective Mitchell Fairchild read Santos
the Miranda warnings. In reply, Santos requested an attorney. Officers ceased all
questioning of Santos and served the warrant. Detective Fairchild read the DNA search
warrant in its entirety to Santos. The warrant read, in part, that the DNA evidence was
“material to the prosecution of homicide the result of the death of Manuel Ezequiel
Jaime.” Ex. 208 at 1. Fairchild asked Santos if Santos understood the warrant. Santos
sat silent. Fairchild requested that Santos swab the inside of a cheek. Santos remained
momentarily quiet. Then Santos commented: “I don’t see no signature of no judge on
this.” Ex. 208 at 2. Detective Fairchild explained that he had garnered the warrant
telephonically. After a colloquy concerning the validity of the warrant, Santos swabbed
his mouth.
Jeffrey Reynolds, a forensic pathologist, performed an autopsy on Manuel Jaime.
Dr. Reynolds counted 59 stab wounds and an unspecified number of smaller superficial
injuries. Nearly all wounds were above the waist, with most being on Jaime’s back and
sides of the chest. A severe wound to Jaime’s abdomen exposed some internal organs.
To his surprise, Reynolds found no defensive wounds. Dr. Reynolds concluded that
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No. 36069-5-III
State v. Santos
Jaime bled to death. The autopsy also revealed that Manuel Jaime had more than one
milligram per liter of ketamine in his system at the time of death.
Law enforcement sent the blood stained knife found in the Grandview residence
to the Washington State Patrol Crime Laboratory, where forensic testing revealed a
fingerprint matching Santiago Santos’s print. The testing also detected the presence of
Manuel Jaime’s blood. The laboratory also confirmed the presence of Manuel Jaime’s
DNA on Santos’s shirt. The laboratory never completed a DNA analysis of the buccal
swabs from Santos’s mouth.
Law enforcement officers interviewed Andrew Fernandez on the day of the
slaying. Officers also interviewed Andrew on another unidentified day. By the time of
the later interview, Andrew had calmed down. Still, a school counselor attended the
interview with Andrew to provide him support.
PROCEDURE
The State of Washington charged Santiago Santos with murder in the first degree
and, in the alternative, murder in the second degree. The trial court ordered a competency
evaluation of Santos and later conducted a competency hearing. The court entered an
order finding Santos competent.
The trial court conducted a CrR 3.5 hearing to determine the admissibility of two
statements made by Santiago Santos while in custody: (1) Santos’s statement to Officer
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No. 36069-5-III
State v. Santos
John Arraj that “you left something behind,” 2 RP at 30, in reference to the camera; and
(2) Santos’s observation to Detective Mitchell Fairchild that “I don’t see no signature of
no judge on this [warrant].” 2 RP at 66; Ex. 208 at 2. The State sought to introduce the
statements only in rebuttal if Santos testified. The State contended that officers did not
solicit the statements and the statements showed Santos’s mental acuity in the event
Santos asserted diminished capacity when attacking Manuel Jaime. Defense counsel
advocated suppression of Santos’s second statement because Santos earlier invoked his
right to an attorney, but law enforcement continued to question him.
The trial court denied suppression of Santiago Santos’s statement about Officer
John Arraj leaving behind the camera because no police questioning prompted Santos’s
remark. The court also denied suppression of the comment of the absence of a judge’s
signature on the warrant because the remark did not respond to any question.
Before trial, the State moved in limine to exclude any reference to homosexual
conduct or advances between Manuel Jaime and Santiago Santos. Because the autopsy
of Jaime found ketamine in his system, defense counsel sought to present testimony that
the gay male population uses ketamine to enhance sexual pleasure. Defense counsel
explained that the evidence would show that the stabbing began in Manuel Jaime’s
bedroom and, according to Andrew Fernandez, Santiago Santos and Jaime were best
friends. Santos’s counsel further explained that a defense expert would testify that a
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No. 36069-5-III
State v. Santos
sexual advance by Jaime may have provoked a violent response by Santos, while in a
delusional state. The trial court granted the State’s motion to exclude reference to
homosexual activity unless the defense presented evidence of homosexual activity related
to the killing of Manuel Jaime.
During trial, then sixteen-year-old Andrew Fernandez testified to what he heard
during the early morning hours on November 15, 2014. Fernandez avowed that he
recognized Santiago Santos’s voice from Santos’s previous visits to the home. Fernandez
also recalled seeing Santos on November 14, 2014 at a Safeway grocery store.
The State played for the jury Andrew Fernandez’s 911 call. Before playing the
audio, the court and the parties discussed the content of the call and determined that a
transcript would also be admitted. The State also played the video of the interaction
between Detective Mitchell Fairchild and Santiago Santos concerning the warrant for the
DNA swab. The trial court admitted the transcript of the duo’s conversation as an exhibit
during the State’s rebuttal.
Forensic Pathologist Jeffrey Reynolds testified about his autopsy on Manuel
Jaime. When the prosecution showed Dr. Reynolds the murder weapon, Reynolds opined
that the injuries he observed on Jaime were consistent with the design of the knife since
the knife had only one sharp edge, lacked any serrations, and lacked a hilt.
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No. 36069-5-III
State v. Santos
During trial, Dr. Jeffrey Reynolds mentioned ketamine’s presence in Manuel
Jaime’s blood. Dr. Reynolds explained that, when a person uses ketamine, his brain and
body do not communicate to each other. Ketamine renders a person’s motor skills
useless. The finding of ketamine explained the lack of defensive wounds because of
Jaime’s inability to react to the stabbing.
Before defense Forensic Toxicologist Chris Johnston took the stand, defense
counsel renewed a request to ask Johnston about the unusual properties of ketamine and
its purported use in the homosexual population to enhance or tolerate sexual activity.
The trial court confirmed its earlier ruling excluding the evidence.
Toxicologist Chris Johnston testified to some of the effects of ketamine on a
person. Medical professionals employ the sedative drug during surgery. Others use
ketamine recreationally for relaxation and hallucinogenic effects. According to Johnston,
the drug severs the connection between the head and the body such that the head does not
register pain from the body.
Santiago Santos testified at trial on his behalf. Santos denied knowledge of who
killed Manuel Jaime or the purpose of Jaime’s murder. Santos claimed a diagnosis of
“acute paranoid schizophrenia.” 9 RP at 881. He characterized the world as a dangerous
place. He rejected a belief that others sought to harm him, but admitted that he carefully
guards his safety. Santos refuted his mother’s testimony that he blanketed the windows at
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No. 36069-5-III
State v. Santos
home to block all light. Santos testified that he blocked the sunlight only after he
contracted a sexually transmitted disease in 2013. When asked about his mother’s
testimony that he sat in his room and talked to himself, Santos explained:
Thinking is different. People would think and just theorize on their
own. It doesn’t mean one’s talking to themselves they’re in a mentally
crazed state. People think all the time. It doesn’t mean that they’re crazy.
It’s just thoughts. It’s no different than talking. It’s just thoughts.
9 RP at 883.
Santiago Santos testified that he once believed he suffered from a brain tumor
because his head felt radioactivity from the sun, but he conceded to his error in the
diagnosis. Santos believed he was bleeding internally because he engaged in violent
fights and had been shot with large rubber bullets.
Santiago Santos testified about his life from childhood to the time of the murder.
In 2012, he moved from California to Grandview and worked in the apple orchards before
working in the wine industry as a forklift operator. Sometimes after finishing a shift,
Santos and his cousin frequented bars, dance places, and casinos.
Santiago Santos testified that, on the night of Manuel Jaime’s death, Santos
imbibed at a bar in Prosser, where he consumed blue-colored Long Island iced teas, eight
beers, and four or five shots of liquor. When asked whether the bar continued serving
him after he consumed all of those drinks, Santos responded:
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No. 36069-5-III
State v. Santos
I’m able to drink a lot before I get really drunk. At the time I was
still consciously aware of how many drinks I was consuming. However, I
didn’t keep count. I just keep drinking and drinking and drinking.
9 RP at 902. Santos did not remember where he went after leaving the tavern.
Nevertheless, he remembered walking past Manuel Jaime’s home and Jaime’s opening of
a side door and inviting him inside. Santos knew Jaime since childhood, and the two
never had a dispute.
Santiago Santos did not remember events that occurred inside Manuel Jaime’s
home. Santos declared:
Something could have happened. I don’t know what that is. It’s a
strange thing. I’m trying to figure out what happened myself.
9 RP at 891.
Santiago Santos testified to being struck in the back of the head. The testimony
did not identify the time or place of the blow, but one might conclude that Santos
believed someone hit him while he was inside Manuel Jaime’s home. Nevertheless,
Santos did not know if Jaime struck the blow. Santos believed someone hit him because
he awoke on some unidentified morning with pain. Santos testified that Jaime did not
owe him anything and he did not know that Jaime used drugs.
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No. 36069-5-III
State v. Santos
Santiago Santos denied knowing a person named “Fajardo,” and he did not recall
ever uttering Fajardo’s name. 9 RP at 906. Santos denied carrying a knife and refuted
that the bloody knife introduced into evidence belonged to him.
Clinical Psychologist Dr. Philip Barnard served as Santiago Santos’s expert in
discerning Santos’s ability to form the intent to commit the crimes charged. Based on
Dr. Barnard’s evaluation of Santos, Barnard diagnosed Santos with delusional disorder
and alcohol/cannabis abuse disorder. Dr. Barnard also diagnosed a mixed personality
disorder with schizoid paranoia and avoidant features. Barnard opined that, as a result
of Santos’s diminished capacity, Santos could not form the intent necessary to commit the
charged offenses. Dr. Barnard avowed:
I believe that he has been afraid of being attacked, followed,
attacked. When he entered the house, Mr. Jamie’s [sic] house, that he was
struck from behind. So it’s like his delusional belief came to fruition and
that it happened.
I think that drove him into a psychotic rage, which was assisted with
the disinhibiting factor of the extreme alcohol use so that he stabbed Mr.
Jamie [sic] several times trying to defend himself.
9 RP at 950.
Dr. Philip Barnard conceded that another act might have provoked Santiago
Santos’s psychotic response. Dr. Barnard noted that Santos wore four pairs of boxer
shorts at the time of his arrest, “which means to my interpretation that there was some
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No. 36069-5-III
State v. Santos
fear of being approached sexually by another individual. He was using [the shorts] as
protective gear.” 9 RP at 964.
The State called Dr. Robert Fanto, a licensed clinical psychologist employed by
the Washington State Office of Forensic Mental Health Services, to rebut the opinions of
Dr. Philip Barnard. Dr. Fanto opined that, based on his testing and interview of Santiago
Santos, and review of the testing materials and the report issued by Dr. Barnard, and the
police reports and medical records, Santos did not suffer from any mental illness at the
time of the murder. Fanto testified:
My opinion was that he had the capacity to form the specific mental
element of the crime charged.
....
Premeditation, intent to kill.
9 RP at 976. Dr. Fanto commented that, on the night of the murder, Santos engaged in
purposeful goal-oriented behavior that suggested he suffered from no major impairments.
Based primarily on Dr. Philip Barnard’s testimony, Santiago Santos requested the
trial court to instruct the jury on his defense of diminished capacity. The court found that
evidence supported instructing the jury on the defense. The trial court gave the following
jury instruction:
Evidence of mental illness or disorder may be taken into
consideration in determining whether the defendant had the capacity to
form the intent to accomplish a result that constitutes a crime.
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State v. Santos
Clerk’s Papers (CP) at 121.
Because the trial court instructed the jury on the defense of diminished capacity,
Santiago Santos also requested a jury instruction that imposed on the State the burden to
disprove beyond a reasonable doubt the defense. Santos argued that any diminished
capacity negated the intent element of murder in the first and second degrees. The trial
court ruled that the State did not bear the burden to disprove the defense, although the
State needed to prove intent. Thus, the court denied Santos’s proposed jury instruction.
The trial court delivered a to-convict instruction on first degree murder:
To convict the defendant of the crime of . . . murder in the first
degree as charged in count 1, each of the following elements of the crime
must be proved beyond a reasonable doubt:
(1) That on or about November 15, 2014 the defendant acted with
the intent to cause the death of Manuel Ezequiel Jaime;
(2) That the intent to cause the death was premeditated;
(3) That Manuel Ezequiel Jaime died as a result of defendant’s acts;
and
(4) 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.
CP at 124.
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State v. Santos
The trial court delivered a to-convict instruction on second degree murder:
To convict the defendant of the crime of murder in the second
degree, each of the following elements of the crime must be proved beyond
a reasonable doubt:
(1) That on or about November 15, 2014 Santiago Santos acted with
intent to cause the death of Manuel Jaime;
(2) That Manuel Jaime died as a result of defendant’s acts; and
(3) That any of these 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.
CP at 127.
Santiago Santos also asked the trial court to instruct the jury on self-defense. The
trial court refused because of a lack of evidence that Santos experienced a reasonable
apprehension of being attacked.
At the State’s request, the trial court asked the jury to consider the presence of two
aggravating factors during the slaying of Manuel Jaime: (1) Santiago Santos engaged in
deliberate cruelty and (2) the killing caused a foreseeable and destructive impact on
persons other than Jaime. Santos objected, based on insufficient evidence, to the giving
of the special verdict forms for the aggravating factors.
The jury convicted Santiago Santos of the lesser offense of first degree
manslaughter, rather than first degree murder. The jury also convicted Santos of second
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No. 36069-5-III
State v. Santos
degree felony murder. The trial court vacated the manslaughter conviction and sentenced
Santiago Santos on the conviction of second degree murder.
The jury returned special verdicts finding that Santiago Santos committed the
crimes while armed with a deadly weapon. The jury also found two aggravating
circumstances: (1) Santos’s conduct manifested deliberate cruelty to the victim, and
(2) the crime involved a destructive and foreseeable impact on persons other than the
victim.
The State of Washington sought an exceptional sentence upward. The trial court
found substantial and compelling reasons to justify an exceptional sentence above the
standard range. The trial court increased Santiago Santos’s sentence by ten years. In
total, the trial court sentenced Santos to 398 months in prison. The trial court found
Santos indigent at the time of sentencing, but the court imposed a $200 criminal filing fee
and a $100 DNA collection fee. The trial court also ordered that interest accrue on all
legal financial obligations. The trial court directed Santos to pay the costs of community
custody. The trial court imposed $11,510.79 in restitution and a $500 crime penalty
assessment.
LAW AND ANALYSIS
This opinion constitutes the majority opinion for all sections of the legal analysis,
except section VIII, which concerns the sufficiency of evidence for the destructive and
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No. 36069-5-III
State v. Santos
foreseeable impact on others aggravator. For the majority opinion on section VIII, please
refer to Section II of the opinion of Chief Judge Pennell.
I.
Diminished Capacity Jury Instruction
Santiago Santos contends that his diminished capacity defense negated the mental
elements in the charged offenses of first degree murder and second degree murder. He
thus argues that the trial court erred when rejecting his request to instruct the jury that the
State must disprove diminished capacity beyond a reasonable doubt. We only need
address this assignment of error with regard to second degree murder, since the jury
acquitted Santos of first degree murder. Based on precedent, we disagree with Santos’s
contention.
Jury instructions, when taken in their entirety, must inform the jury that the State
bears the burden of proving every essential element of the crime charged beyond a
reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970); State v. Pirtle, 127 Wash. 2d 628, 656, 904 P.2d 245 (1995). A court commits
reversible error when it instructs the jury in a manner that would relieve the State of this
burden. State v. Pirtle, 127 Wash. 2d at 656.
Diminished capacity is a mental condition not amounting to insanity, which
prevents an accused from possessing the requisite mens rea necessary to commit the
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No. 36069-5-III
State v. Santos
crime charged. State v. Furman, 122 Wash. 2d 440, 454, 858 P.2d 1092 (1993).
Diminished capacity allows a defendant to undermine a specific element of the offense,
a culpable mental state, by showing that a mental disorder diminished his ability to
entertain that mental state. State v. Gough, 53 Wash. App. 619, 622, 768 P.2d 1028 (1989).
Santiago Santos’s assignment of error requires this court to determine whether
Washington’s “negates analysis” applies to the defense of diminished capacity. On the
one hand, when a defense necessarily negates an element of the crime, the trial court
violates due process by placing the burden of proof of establishing the defense on the
defendant. State v. W.R., Jr., 181 Wash. 2d 757, 765, 336 P.3d 1134 (2014). The trial court
must instead instruct the jury that the State carries the burden to disprove the defense
beyond a reasonable doubt. On the other hand, due process does not require the State to
disprove every possible fact that would mitigate or excuse the defendant’s culpability.
Smith v. United States, 568 U.S. 106, 110, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013). The
court does not violate a defendant’s due process rights when it allocates to the defendant
the burden of proving an affirmative defense when the defense merely excuses conduct
that would otherwise be punishable. Dixon v. United States, 548 U.S. 1, 6, 126 S. Ct.
2437, 165 L. Ed. 2d 299 (2006); State v. W.R., Jr., 181 Wash. 2d at 762.
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The key to whether a defense necessarily negates an element is whether the
completed crime and the defense can coexist. State v. W.R., Jr., 181 Wash. 2d at 765.
If so, the defense merely excuses the conduct, rather than negating the crime. In State v.
W.R., Jr., 181 Wash. 2d 757 (2014), the court applied the negates analysis to the defense of
consent in a rape prosecution because consent necessarily negates forcible compulsion.
Santiago Santos cites no authority that extends the negates analysis to the defense
of diminished capacity. Instead, this court rejected the analysis in State v. James, 47 Wn.
App. 605, 736 P.2d 700 (1987) and State v. Marchi, 158 Wash. App. 823, 243 P.3d 556
(2010). In State v. James, this court reasoned that the trial court need not instruct the jury
that the State has the burden of disproving diminished capacity or intoxication when the
court already instructed that the State must prove the requisite mental state beyond a
reasonable doubt. In State v. Marchi, this court extended the reasoning in James to
diminished capacity due to mental illness defenses. The Marchi court reasoned that
diminished capacity is not a complete defense, but is evidence the jury may consider
when determining whether the accused could form the requisite mental state to commit
the crime. The Marchi court also held that the first degree murder elements instructions
sufficiently informed the jury of the State’s burden of proving the defendant’s intent
beyond a reasonable doubt.
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No. 36069-5-III
State v. Santos
We follow the teaching of State v. Marchi. Santiago Santos’s trial court properly
allocated the State’s burden of proof in the “to convict” elements. The trial court further
properly instructed the jury that it could consider Santiago Santos’s mental illness or
disorder when deciding if the State had proven that he acted with the requisite intent.
Accordingly, the trial court’s jury instructions did not relieve the State of its burden to
prove beyond a reasonable doubt that Santos acted intentionally when he stabbed Manuel
Jaime to death.
II.
Self Defense Jury Instruction
Santiago Santos contends the trial court erred by not instructing the jury on self-
defense. He argues the testimony of Dr. Philip Barnard and his own testimony warranted
the instruction. We disagree.
Our standard of review for a trial court’s refusal to give a jury instruction depends
on the basis of the trial court’s decision. State v. Condon, 182 Wash. 2d 307, 315, 343 P.3d
357 (2015). We review the trial court’s refusal based on a lack of evidence for an abuse
of discretion. State v. Condon, 182 Wash. 2d at 315-16. If the trial court grounds its refusal
on a legal conclusion, we review the refusal de novo. State v. Condon, 182 Wash. 2d at 315-
16. Santiago Santos’s trial court refused to instruct the jury on self-defense because no
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No. 36069-5-III
State v. Santos
factual evidence showed Santiago Santos was under “reasonable apprehension of great
bodily harm.” 11 RP at 1049.
The trial court must instruct the jury on each party’s theory of the case if sufficient
evidence supports that theory. State v. Williams, 132 Wash. 2d 248, 259, 937 P.2d 1052
(1997). Failure to do so is reversible error. State v. Griffin, 100 Wash. 2d 417, 420, 670
P.2d 265 (1983). To properly raise the issue of self-defense in a murder prosecution, the
defendant must produce some evidence demonstrating that (1) the killing occurred in
circumstances amounting to defense of life, and (2) he or she had a reasonable
apprehension of great bodily harm and imminent danger. RCW 9A.16.050; State v.
Walker, 136 Wash. 2d 767, 772, 966 P.2d 883 (1998). A person is justified in using deadly
force in self-defense only if the person reasonably believes he or she is in imminent
danger of death or great personal injury. RCW 9A.16.050(1). Great personal injury is
that which would result in “‘severe pain and suffering.’” State v. Walden, 131 Wash. 2d
469, 477, 932 P.2d 1237 (1997) (quoting 11 WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CRIMINAL 2.04.01, at 22 (2d ed. 1994)).
In determining whether the evidence suffices to support a jury instruction on an
affirmative defense, the court must view the evidence in the light most favorable to the
defendant. State v. O’Dell, 183 Wash. 2d 680, 687-88, 358 P.3d 359 (2015). This standard
has both subjective and objective elements. State v. Walker, 136 Wash. 2d 767, 772 (1998).
23
No. 36069-5-III
State v. Santos
The subjective element requires the trial court to place itself in the shoes of the defendant
and view the defendant’s acts in light of all the facts and circumstances known to the
defendant. State v. Walker, 136 Wash. 2d at 772. The objective element requires the trial
court to determine what a reasonably prudent person similarly situated would have done.
State v. Walker, 136 Wash. 2d at 772.
Santiago Santos contends that the evidence presented satisfied the low threshold
for self-defense instructions. He concedes an incomplete memory of being inside Manuel
Jaime’s residence, but he argues that the trial court could have inferred he subjectively
feared imminent, serious injury due to his delusions.
Santiago Santos produced no evidence demonstrating that he reasonably believed
he was in imminent danger of death or great personal injury, let alone in immediate threat
by conduct of Manuel Jaime. Santos testified he thought someone hit him on the back of
the head, though he did not remember who hit him or any other details. Santos could not
recall whether he and Manuel Jaime were involved in any sort of altercation on the night
of the murder. He simply woke up with pain and claimed he had a lump on the back of
his head.
24
No. 36069-5-III
State v. Santos
III.
Ketamine Evidence
Santiago Santos next assigns error to the trial court’s prohibition of his presenting
evidence that homosexual men imbibe ketamine to enhance sexual pleasure. He argues
that the trial court denied him his due process right to present a complete defense. The
State characterizes any potential evidence of ketamine use as irrelevant, speculative,
salacious, and homophobic.
Santiago Santos asks us to apply a de novo standard of review to the trial court’s
exclusion of testimony regarding ketamine usage among homosexual men because the
trial court’s ruling implicated his constitutional right to present a complete defense. The
State requests that we apply an abuse of discretion standard. We need not address this
dispute since, under either standard, we would affirm the trial court.
The United States Constitution and the Washington State Constitution guarantee
defendants the right to present a defense. U.S CONST. amends. VI, XIV; WASH. CONST.
art. I, § 22; State v. Wittenbarger, 124 Wash. 2d 467, 474, 880 P.2d 517 (1994).
Accordingly, a defendant has a right to present a defense consisting of relevant, not
otherwise inadmissible, evidence. State v. Mee Hui Kim, 134 Wash. App. 27, 41, 139 P.3d
354 (2006).
25
No. 36069-5-III
State v. Santos
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” ER 401. Irrelevant evidence is inadmissible. ER 402.
The trial court may deny introduction of relevant evidence if the State can show the
evidence is “so prejudicial as to disrupt the fairness of the fact-finding process at trial.”
State v. Darden, 145 Wash. 2d 612, 622, 41 P.3d 1189 (2002).
Santiago Santos argued at trial that the excluded testimony would have revealed
ketamine’s reputation for being used recreationally by men engaging in intercourse with
other men. Santos wished to inform the jury that, since Manuel Jaime had ketamine in his
system the night of the murder and because the two men were allegedly in Jaime’s
bedroom, the excluded evidence tended to show a sexual advance by Jaime. Santos
argues evidence that homosexual men use ketamine to enhance or tolerate sex supported
his theory that Jaime’s advance triggered Santos’s psychotic break.
We agree with the trial court that no evidence suggested a connection between
homosexual activity and Manuel Jaime’s murder. Santiago Santos submitted no evidence
suggesting that Manuel Jaime attempted to have intercourse with him. In addition, no
evidence depicted Jaime as a homosexual man.
26
No. 36069-5-III
State v. Santos
IV.
Jail Statements and Video
Hours after Santiago Santos’s arrest, Detective Mitchell Fairchild read Santos his
Miranda warnings at the Grandview police station. Santos then requested to see an
attorney. Detective Mitchell ceased questioning and then served and read a warrant for
DNA to Santos in its entirety. Santos then commented: “I don’t see no signature of no
judge on this.” Ex. 208 at 2.
Santiago Santos assigns error to the trial court’s refusal to suppress the statement
he made to law enforcement about the lack of the signature of a judge, which the State
provided to the jury by transcript and showed to the jury by videotape. Santos
emphasizes that he earlier exercised his right to an attorney. The State responds that,
although Santos invoked his right to counsel, the statement uttered to Detective Mitchell
Fairchild was spontaneous and thus admissible. The State agrees that Santiago Santos sat
in custody when Mitchell Fairchild read him the warrant for the extraction of DNA. We
must answer whether the detective’s reading and execution of a search warrant
constituted interrogation.
This court reviews a trial court’s ruling on a motion to suppress evidence in order
to determine whether substantial evidence supports the trial court’s findings of fact and
whether those findings support the court’s conclusions of law. State v. Cherry, 191 Wash.
27
No. 36069-5-III
State v. Santos
App. 456, 464, 362 P.3d 313 (2015). Santiago Santos’s trial court did not enter written
findings. If a trial court did not enter written findings and conclusions after the hearing as
required by CrR 3.6(b), the court’s oral ruling may still provide sufficient information for
review. State v. Radka, 120 Wash. App. 43, 48, 83 P.3d 1038 (2004). The trial court
denied Santos’s request to exclude his custodial statement because he uttered the
comment without solicitation such that no interrogation occurred.
The federal and state constitutions protect against self-incrimination. U.S. CONST.
amend. V; WASH. CONST. art. I, § 9. To counteract the coercive pressures of a police
dominated atmosphere, the United States Supreme Court adopted the prophylactic rule
that police officers must warn a suspect prior to questioning that he or she has the right to
remain silent and a right to the presence of an attorney. Miranda v. Arizona, 384 U.S.
436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Once the accused expresses his or her
desire to deal with the police only through counsel, law enforcement officers may not
further interrogate the accused until counsel has been made available to them, unless the
accused initiates further communication, exchanges, or conversations with the police.
Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).
In Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297
(1980), the Supreme Court defined interrogation as:
28
No. 36069-5-III
State v. Santos
not only . . . express questioning, but also . . . any words or actions
on the part of the police . . . that the police should know are reasonably
likely to elicit an incriminating response from the suspect. The latter
portion of this definition focuses primarily upon the perceptions of the
suspect, rather than the intent of the police.
(Footnotes omitted.) Nonetheless, not all interaction qualifies as interrogation and law
enforcement officers are not forbidden all contact with a defendant in custody. The
Supreme Court expressly exempted from the definition of “interrogation” routine police
contact “normally attendant to arrest and custody.” Rhode Island v. Innis, 446 U.S. at
301. In addition, incriminating statements not responsive to an officer’s remarks are not
products of interrogation. In re Personal Restraint of Cross, 180 Wash. 2d 664, 685,
327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, 192 Wash. 2d 1,
427 P.3d 621 (2018).
Santiago Santos relies on In re Personal Restraint of Cross, 180 Wash. 2d 664
(2014). Dayva Cross stabbed his wife and the wife’s daughters to death. After reading
Cross his Miranda warnings, one of the officers said to Cross: “Sometimes we do things
we normally wouldn’t do, and we feel bad about it later.” In re Personal Restraint of
Cross, 180 Wash. 2d at 679. Cross responded: “How can you feel good about doing
something like this.” In re Personal Restraint of Cross, 180 Wash. 2d at 679. The Cross
court suppressed Cross’s remark because the officer’s preceding comment was the
“‘functional equivalent’” of interrogation. In re Personal Restraint of Cross, 180 Wash. 2d
29
No. 36069-5-III
State v. Santos
at 686 (internal quotation marks omitted) (quoting Rhode Island v. Innis, 446 U.S. at
301). The court wrote:
an officer’s comment is designed to elicit an incriminating response
when a suspect’s choice of replies to that comment are all potentially
incriminating.
In re Personal Restraint of Cross, 180 Wash. 2d at 686.
Santiago Santos contends the ruling and rationale in Personal Restraint of Cross
applies to his interaction with Detective Mitchell Fairchild. Santos argues that any
response to Fairchild’s reading of the DNA search warrant would have been potentially
incriminating. He reasons that, since the warrant read that the State prosecuted him for
homicide and that Manuel Jaime had died, the detective should have known that reading
the charge to him likely would elicit an incriminating response.
We conclude that the reading of the warrant did not constitute an interrogation.
The presentation and reading of the DNA extraction warrant constituted routine police
contact normally attendant to arrest and custody, not interrogation. The service of a DNA
search warrant is not reasonably likely to elicit an incriminating response. In fact, Santos
never made an incriminating response. He merely stated that he did not see a judge’s
signature on the paper, and the State employed his comment not as a confession of guilt
but to establish his ability to cogitate.
30
No. 36069-5-III
State v. Santos
No Washington decision directly addresses whether a law enforcement officer’s
request to obtain a DNA sample from the accused constitutes interrogation. Other
jurisdictions, however, have ruled that the request does not constitute interrogation, and
these courts have permitted introduction at trial of the accused’s comments uttered in
response to the request. United States v. Bustamante, 493 F.3d 879, 892 (7th Cir. 2007);
Talley v. State, 2010 Ark. 357, at 4, 377 S.W.3d 222, 224-25; Everett v. State, 893 So. 2d
1278, 1286 (Fla. 2004).
V.
Cumulative Error
Santiago Santos argues cumulative error deprived him of a fair trial. The
cumulative error doctrine applies when two or more trial errors, none of which standing
alone warrants reversal, combine to deny the defendant a fair trial. State v. Greiff, 141
Wash. 2d 910, 929, 10 P.3d 390 (2000). Without error, the cumulative error doctrine does
not apply. State v. Clark, 187 Wash. 2d 641, 655, 389 P.3d 462 (2017). Because Santiago
Santos has not demonstrated any trial errors occurred, we refuse application of the
cumulative error doctrine.
31
No. 36069-5-III
State v. Santos
VI.
Constitutionality of Aggravating Factors
The trial court imposed an exceptional sentence based on two aggravating factors
found by the jury: deliberate cruelty by Santiago Santos and a destructive and foreseeable
impact of the crime. On appeal, Santos argues that insufficient evidence supports each
aggravating factor beyond a reasonable doubt. He also contends that the statutory factors
do not survive a constitutional attack because of their vague standards. We address
Santos’s void for vagueness challenge first.
When the defendant’s conduct during the commission of the crime manifests
deliberate cruelty to the victim or entails a destructive and foreseeable impact on others,
the trial court may impose an exceptional sentence. RCW 9.94A.535(3)(a) and (r)
declare:
The court may impose a sentence outside the standard sentence range
for an offense if it finds, considering the purpose of this chapter, that there
are substantial and compelling reasons justifying an exceptional sentence.
Facts supporting aggravated sentences, other than the fact of a prior
conviction, shall be determined pursuant to the provisions of RCW
9.94A.537.
....
(3) Aggravating Circumstances—Considered by a Jury—Imposed by
the Court
Except for circumstances listed in subsection (2) of this section, the
following circumstances are an exclusive list of factors that can support a
sentence above the standard range. Such facts should be determined by
procedures specified in RCW 9.94A.537.
32
No. 36069-5-III
State v. Santos
(a) The defendant’s conduct during the commission of the current
offense manifested deliberate cruelty to the victim.
....
(r) The offense involved a destructive and foreseeable impact on
persons other than the victim.
Santiago Santos emphasizes that the “deliberate cruelty” aggravator permits
arbitrary application because all assaults with a deadly weapon that result in death
arguably constitute deliberate cruelty. He also argues that the destructive and foreseeable
impact aggravator gives the jury an “‘inordinate amount of discretion.’” Br. of Appellant
(Amended) at 63 (quoting State v. Myles, 127 Wash. 2d 807, 812, 903 P.2d 979 (1995)).
The State responds that this court need not decide Santos’s constitutional challenge since
he did not raise the challenge before the trial court.
Santiago Santos did not challenge the constitutionality of the aggravating factors
as void for vagueness in the trial court. Generally, issues not raised in the trial court
may not be raised for the first time on appeal. State v. Nitsch, 100 Wash. App. 512, 519,
997 P.2d 1000 (2000). This rule, however, is not an absolute bar to review. State v.
Nitsch, 100 Wash. App. at 519. Illegal or erroneous sentences may be raised for the first
time on appeal. State v. Nitsch, 100 Wash. App. at 519. Santiago Santos contends that this
constitutional argument is reviewable for the first time on appeal because the contention
concerns a manifest constitutional error. RAP 2.5(a)(3).
33
No. 36069-5-III
State v. Santos
We follow Washington precedent and reject Santiago Santos’s challenge to the
constitutionality of the aggravating sentencing factors because the void for vagueness
doctrine does not apply to sentencing. The Washington Supreme Court, in State v.
Baldwin, 150 Wash. 2d 448, 459, 78 P.3d 1005 (2003), rejected a void for vagueness
challenge to sentencing guidelines statutes because “the due process considerations that
underlie the void-for-vagueness doctrine have no application in the context of sentencing
guidelines.” Sentencing guidelines do not inform the public of the penalties attached to
criminal conduct or allow for arbitrary arrest and prosecution. State v. Baldwin, 150
Wash. 2d at 459. Under Baldwin, a defendant is precluded from challenging the sentencing
aggravators in RCW 9.94A.535(3) on vagueness grounds. State v. Brush, 5 Wash. App. 2d
40, 59, 425 P.3d 545 (2018), review denied, 192 Wash. 2d 1012, 432 P.3d 792 (2019).
Santiago Santos recognizes Baldwin but argues that the decision does not
constitute controlling authority after the United States Supreme Court’s decision in
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The
State argues that due process vagueness challenges are not possible even after Blakely.
This court addressed an identical issue addressing the “destructive and foreseeable
impact” aggravator in State v. DeVore, 2 Wash. App. 2d. 651, 413 P.3d 58 (2018).
Matthew DeVore challenged the statutory aggravating factor on vagueness grounds and
argued that Baldwin was no longer valid after Blakely. This court analogized DeVore’s
34
No. 36069-5-III
State v. Santos
appeal to Beckles v. United States, __U.S. __, 137 S. Ct. 886, 197 L. Ed. 2d 145 (2017).
In Beckles, Travis Beckles challenged for vagueness a provision of the federal sentencing
guidelines. The guidelines include a clause defining a “crime of violence.” Beckles v.
United States, 137 S. Ct. at 890-91. A person convicted of a crime that qualifies as a
crime of violence is eligible for a sentence enhancement under the federal guidelines.
The Beckles court held that vagueness concerns apply to laws that define criminal
offenses and that “fix the permissible range of sentences.” 137 S. Ct. at 892.
Accordingly, the court concluded the guidelines are not subject to a vagueness challenge
under the due process clause.
This court in DeVore considered Matthew DeVore’s appeal akin to Beckles. This
court observed that the destructive impact factor does not increase the permissible
sentence of the offender. The trial court must still sentence the defendant within the
statutory maximum of the crime. Therefore, this court held that challenges to the
destructive impact factor and other aggravating factors under RCW 9.94.A.535(3) do not
merit review under the void for vagueness doctrine. State v. DeVore, 2 Wash. App. 2d at
665.
Santiago Santos acknowledges the implications of both DeVore and Beckles, but
he argues that our state Supreme Court’s recent decision in State v. Allen, 192 Wash. 2d 526,
431 P.3d 117 (2018) held statutory aggravators in RCW 9.94A.535(3) subject to void for
35
No. 36069-5-III
State v. Santos
vagueness challenges. We distinguish Allen. The Allen court addressed whether the
aggravating circumstances listed in RCW 10.95.020 constituted “elements” of the offense
of aggravated first degree murder for purposes of the double jeopardy clause. The court
concluded that those aggravating circumstances under RCW 10.95.020 “increase the
mandatory minimum penalty for first degree murder,” not the standard range as is the
case with the aggravators Santos challenges. State v. Allen, 192 Wash. 2d at 534. Allen
does not change the rule precluding a vagueness challenge to the statutory aggravators set
out in RCW 9.94A.535(3).
VII.
Sufficiency of Evidence for Deliberate Cruelty Aggravator
We now address the sufficiency of evidence of each aggravating factor beginning
with deliberate cruelty by Santiago Santos. Santos argues that insufficient evidence
supports each aggravating factor beyond a reasonable doubt.
In Blakely v. Washington, 542 U.S. 296 (2004), the United States Supreme Court
ruled that, for an exceptional sentence to be constitutional, the State must prove the facts
supporting aggravating factors to a jury beyond a reasonable doubt. See also RCW
9.94A.537(3). This court uses the same standard of review for the sufficiency of the
evidence of an aggravating factor as it uses for the sufficiency of the evidence of the
elements of a crime. State v. Yarbrough, 151 Wash. App. 66, 96, 210 P.3d 1029 (2009).
36
No. 36069-5-III
State v. Santos
Under this standard, this court reviews the evidence in the light most favorable to the
State to determine “whether any rational trier of fact could have found the presence of the
aggravating circumstances beyond a reasonable doubt.” State v. Zigan, 166 Wash. App.
597, 601-02, 270 P.3d 625 (2012). All reasonable inferences from the evidence must be
drawn in favor of the State and interpreted most strongly against the defendant. State v.
Hosier, 157 Wash. 2d 1, 8, 133 P.3d 936 (2006).
When the defendant’s conduct during the commission of the crime manifests
deliberate cruelty to the victim, the trial court may impose an exceptional sentence.
RCW 9.94A.535(3)(a).
Deliberate cruelty consists of gratuitous violence or other conduct
that inflicts physical, psychological, or emotional pain as an end in itself.
To justify an exceptional sentence, the cruelty must go beyond that
normally associated with the commission of the charged offense or inherent
in the elements of the offense—elements of the crime that were already
contemplated by the legislature in establishing the standard range.
State v. Tili, 148 Wash. 2d 350, 369, 60 P.3d 1192 (2003) (internal citations omitted). The
gratuitous infliction of multiple wounds to a murder victim is a basis for an exceptional
sentence based on deliberate cruelty. State v. Ross, 71 Wash. App. 556, 562-63, 861 P.2d
473 (1993) (over 100 separate stab wounds, cuts, and marks); State v. Harmon, 50 Wn.
App. 755, 760-61, 750 P.2d 664 (1988) (64 knife wounds).
37
No. 36069-5-III
State v. Santos
We find State v. Campas, 59 Wash. App. 561, 799 P.2d 744 (1990) helpful. The
Campas court affirmed the deliberate cruelty aggravator because the record supported the
finding that the “defendant killed Thomas in a deliberately cruel manner by repeated
bludgeoning and stabbing, which left her barely alive but in pain and agony until she
died.” State v. Campas, 59 Wash. App. at 566.
Santiago Santos stabbed Manuel Jaime in the chest, the flanks, the back, and the
head 59 times. Santos then taunted Jaime as he helplessly bled to death. Santos left
Jaime barely alive but in pain until he died at the hospital. Thus, the State proved the
existence of “deliberate cruelty” beyond a reasonable doubt.
Santiago Santos argues, without citation to authority, that the State needed to
introduce testimony or documentary evidence setting forth facts of other murder cases
showing other homicides to be significantly less egregious. This court does not review
errors not briefed or supported with citation to authority. RAP 10.3; Valente v. Bailey,
74 Wash. 2d 857, 858, 447 P.2d 589 (1968); Meeks v. Meeks, 61 Wash. 2d 697, 698, 379 P.2d
982 (1963); Avellaneda v. State, 167 Wash. App. 474, 485 n.5, 273 P.3d 477 (2012).
VIII.
Sufficiency of Evidence of Destructive and Foreseeable Impact on Others
This section of the opinion regarding a destructive and foreseeable impact on
others constitutes the minority opinion. The majority on this issue holds that the State
38
No. 36069-5-III
State v. Santos
presented sufficient evidence for this aggravator. I dissent.
RCW 9.94A.535(3)(r) applies when the jury finds “a destructive and foreseeable
impact on persons other than the victim.” An exceptional sentence based on a foreseeable
and destructive impact requires an impact foreseeable to the defendant and of such a
destructive nature that is not normally associated with the commission of the offense in
question. State v. Webb, 162 Wash. App. 195, 206, 252 P.3d 424 (2011).
Santiago Santos argues three points. First, the evidence did not establish
foreseeability by Santos that children were present. Second, the evidence did not
establish the destructive nature of the offense. And last, the trial court improperly
instructed the jury on the destructive and foreseeable impact aggravator. I agree with
Santos’s second contention.
The State contends that, although Santiago Santos challenged the factual basis of
these aggravators in the trial court, he has not explained why this court should consider
this issue for the first time on appeal. Because Santos objected to giving the special
verdict forms based on insufficient evidence, I review this assignment of error.
Reviewing the evidence in the light most favorable to the State, sufficient evidence
supports the foreseeability requirement. A rational trier of fact could have found the
crime to have a foreseeable impact on persons other than Manuel Jaime. Santiago Santos
recalled seeing children playing in the yard of Jaime’s home. He conceded that he knew
39
No. 36069-5-III
State v. Santos
children resided there. The stabbing occurred around 3:00 a.m. If Santos knew children
lived in the house, he likely knew children would be present during the night. Andrew
Fernandez also heard Santos say “I’m going to come back for your family,” which
indicates Santos knew Jaime’s family members were present. 5 RP at 383. Thus, Santos
knew of and should have known that children present would be traumatized by his
actions.
Santiago Santos relies primarily on State v. Webb, 162 Wash. App. 195, 252 P.3d
424 (2011) when arguing the lack of a destructive impact on others, including the
children in the Grandview residence. In State v. Webb, Daniel Webb took his nine-year-
old daughter with him when he robbed a minimart with a phony gun. On appeal, he
argued insufficiency of the evidence to establish that the robbery involved a destructive
and foreseeable impact on his daughter. The court reasoned that the evidence provided
descriptions of the girl and her behavior around the time of the robbery, but failed to
show, beyond a reasonable doubt, a lasting destructive impact. The State provided no
testimony from a relative, school counselor, or other person about any impact left by
witnessing the robbery. The court distinguished its facts from other decisions wherein
evidence revealed a destructive impact observable after the crime occurred. I do not
know for how long after the crime that the impact must remain observable.
40
No. 36069-5-III
State v. Santos
Andrew Fernandez heard Manuel Jaime crying and heard Santiago Santos say,
“you’re dying slowly.” 5 RP at 383. Andrew testified that he was frightened and knew
everyone in the house faced danger. Andrew’s aunt, Alma Guillen, testified that, when
she arrived at the police station to gather her daughter, her daughter was distraught.
Guillen also testified to her and others encountering difficulty returning to the home.
While the trial evidence showed that the killing traumatized Andrew Fernandez
and at least one other child at the time of the slaying, no evidence established, beyond a
reasonable doubt, a lasting destructive impact on Andrew or others. Alma Guillen
testified to difficulty returning to the home, but she did not identify at what time she and
others returned to the home and whether the difficulty continued beyond the day of the
killing. When police later interviewed Andrew Fernandez, a school counselor
accompanied him but, by that time, Andrew had calmed down. The school counselor did
not appear at court to testify to a durable impact. One might expect young children to be
traumatized for years after being near a murder and after being worried about their own
lives, but the State provided no durable and impactful evidence of a destructive impact.
Because I would reverse on the insufficiency of evidence, I do not address
Santiago Santos’s other assertion that the court improperly instructed the jury on the
destructive and foreseeable impact aggravator.
41
No. 36069-5-III
State v. Santos
IX.
Filing Fee
Santiago Santos argues that imposition by the sentencing court of a $200 criminal
filing fee, costs of community custody, and interest on legal financial obligations must be
struck pursuant to State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018). We agree that,
because of Santos’s indigency, the filing fee should be struck. RCW 36.18.020(2)(h). In
addition, the legislature has eliminated interest accrual on the nonrestitution portions of
legal financial obligations. RCW 10.82.090(1). Therefore, the interest accrual provision
must also be struck. Finally, Santos argues that the costs of community custody are
discretionary and are subject to an ability to pay inquiry under State v. Lundstrom, 6 Wn.
App. 2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied, 193 Wash. 2d 1007, 443 P.3d
800 (2019). We agree.
The State concedes these financial obligations, as well as the $100 DNA collection
fee, should be struck, but and asserts this case need not be remanded for the amendment
of the judgment and sentence because the State may file an amended judgment. We
discern no difference between the State filing an amended judgment and our directing the
sentencing court to strike the offending legal financial obligations, particularly because
we rule that Santiago Santos need not be present during any remand hearing. State v.
Ramos, 171 Wash. 2d 46, 48, 246 P.3d 811 (2011). Thus, we remand for the sentencing
42
No. 36069-5-III
State v. Santos
court to strike the criminal filing fee, costs of community custody, the DNA extraction
fee, and interest on legal financial obligations.
X.
Statement of Additional Grounds for Review
Santiago Santos filed a statement of additional grounds for review, but the
statement does not raise any issues beyond issues raised by appellate defense counsel.
Accordingly, we decline entertainment of his statement.
CONCLUSIONS
We affirm Santiago Santos’s conviction for second degree murder. We remand
for the sentencing court to strike the offending financial obligations.
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.
Fearing, J.
I CONCUR as to all but Section VIII:
Siddoway, J.
43
No. 36069-5-III
State v. Santos (Dissent)
No. 36069-5-III
PENNELL, C.J. (writing for the majority and in dissent) — I disagree with the
majority’s aggravating factors analysis. Contrary to the majority and our prior decision in
State v. DeVore, 2 Wash. App. 2d 651, 413 P.3d 58 (2018), I believe Washington’s
sentencing guidelines are theoretically amenable to a vagueness challenge. Nevertheless,
the challenge here fails on the merits. I also believe the State presented sufficient
evidence to justify a sentence aggravator based on “a destructive and foreseeable impact
on persons other than the victim.” RCW 9.94A.535(3)(r). I would therefore affirm the
custody portion of Santiago Santos’s sentence in full and merely remand to strike the
$200 criminal filing fee and $100 DNA (deoxyribonucleic acid) fee.
I.
Aggravating factors are amenable to a vagueness challenge
Due process prohibits depriving an individual of liberty or property based on a
vague law. A law can be vague in two ways: (1) it can fail to provide fair notice and
(2) it can be “so standardless that it invites arbitrary enforcement.” Johnson v. United
States, __ U.S.__, 135 S. Ct. 2551, 2556, 192 L. Ed. 2d 569 (2015). Vagueness principles
apply both to statutes defining elements of crimes” and “to statutes fixing sentences.”
Id. at 2557. A statute that fixes a sentence need not be one that eliminates all judicial
discretion. Instead, it can permit courts to enhance the maximum penalty, the minimum
44
No. 36069-5-III
State v. Santos (Dissent)
penalty, or both. See Beckles v. United States, __ U.S. __, 137 S. Ct. 886, 892, 197 L. Ed.
2d 145 (2017) (explaining “‘statutes fixing sentences’” may “specify the range of
available sentences[,]” but must do so with “‘sufficient clarity’”) (quoting Johnson, 135
S. Ct. at 2557; United States v. Batchelder, 442 U.S. 114, 123, 995 S. Ct. 2198, 60 L. Ed.
2d 755 (1979)); Alleyne v. United States, 570 U.S. 99, 112, 133 S. Ct. 2151, 186 L. Ed. 2d
314 (2013) (“a fact increasing either end of the range produces a new penalty and
constitutes an ingredient of the offense”).
In State v. Baldwin, 150 Wash. 2d 448, 459, 78 P.3d 1005 (2003), our Supreme Court
rejected the possibility of a vagueness challenge to Washington’s sentencing guidelines.
In essence, the court held that factors relevant to calculating the guidelines are not akin to
criminal elements and they do not fix particular sentences. The court emphasized that
Washington’s sentencing guidelines are merely discretionary. “The guidelines are
intended only to structure discretionary decisions affecting sentences; they do not specify
that a particular sentence must be imposed.” Id. at 461. Given this nonbinding nature, the
court reasoned that sentencing guidelines do not “create a constitutionally protected
liberty interest” that can be attacked through a vagueness challenge. Id. at 460.
In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004), the United States Supreme Court upended Baldwin’s understanding of the state
guidelines. Blakely held that Washington’s statutory guideline scheme is not merely
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advisory. Id. at 304. Instead, a defendant has a right to a standard range sentence unless
there are additional facts beyond those necessary for a conviction to justify a sentence
aggravator. Id. Blakely explained that because the facts necessary to justify a sentence
aggravator enhance the “statutory maximum of the standard range,” they must either be
admitted by the defendant or proven to a jury. Id. at 303-04. The upshot of Blakely is that
under Washington law, a sentence aggravator not only fixes a defendant’s maximum
punishment, it is like a criminal element and must be afforded the same protections under
the Sixth Amendment to the United States Constitution. See Alleyne, 570 U.S. at 103
(“Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.”).
Blakley identified two methods states could use to bring their sentencing schemes
into compliance with the Sixth Amendment: (1) adopt an indeterminate sentencing
scheme giving judges broad discretion to impose sentences up to the statutory maxima or
(2) retain nonadvisory sentencing guidelines, but assign juries the responsibility of
determining guideline factors. Blakely, 542 U.S. at 309-10. In 2005, Washington chose
the latter course. See LAWS OF 2005, ch. 68, § 1. As the law now stands, a defendant has a
right to a sentence within the standard range affixed to a particular crime of conviction
unless a jury finds one or more statutory aggravating factors beyond a reasonable doubt.
RCW 9.94A.537(3).
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Our Supreme Court has not revisited Baldwin post-Blakely. 1 As a conceptual
matter, the analysis would seem straightforward. Because it is now clear a defendant does
have a vested right to a standard range sentence unless an aggravator is proved to a jury
beyond a reasonable doubt, due process should require that aggravators presented to a
jury not be vague. This is the approach taken with other statutory enhancements. See State
v. Coria, 120 Wash. 2d 156, 161-62, 839 P.2d 890 (1992) (applying a vagueness analysis to
a school bus enhancement); Johnson, 135 S. Ct. at 2557 (analyzing a federal statutory
enhancement for vagueness). There is no reason why the same approach should not apply
to the guidelines. 2
1
The Supreme Court declined to reach the issue in State v. Duncalf, 177 Wash. 2d
289, 296, 300 P.3d 352 (2013) and instead denied the defendant’s vagueness challenge on
the merits.
2
While application of an aggravating circumstance under RCW 9.94A.535(3) does
not alter a defendant’s minimum sentence or require a specific sentence, it still serves to
fix a defendant’s sentencing range and, as a result, impacts the defendant’s vested
interests. Here, for example, Mr. Santos had a vested interest in the maximum of his
statutory range of 178-278 months unless the State proved an aggravator beyond a
reasonable doubt. Once the aggravator was proven, the sentencing range available to the
court was enhanced to 178 months to life. This is a sentencing enhancement akin to the
enhancements addressed in Coria, 120 Wash. 2d at 166-67 (school bus stop enhancement)
and Johnsons, 135 S. Ct. at 2555-56 (Armed Career Criminal Act enhancement).
Accordingly, due process requires that the aggravating factors used to elevate Mr.
Santos’s maximum term of imprisonment survive a vagueness challenge.
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Despite this conceptual clarity, the Washington Court of Appeals continues to
follow Baldwin. See State v. Brush, 5 Wash. App. 2d 40, 44, 425 P.3d 545 (2018); Devore,
2 Wash. App. 2d at 660-64. Our analysis has largely been based on the United States
Supreme Court’s 2017 decision in Beckles v. United States. This reliance on Beckles is
misguided.
Beckles was decided in the wake of Supreme Court cases such as Johnson,
applying vagueness scrutiny to federal sentencing enhancements. Beckles held a
vagueness challenge is not viable in the unique context of the federal sentencing
guidelines. 137 S. Ct. at 890. The federal guidelines are dissimilar to Washington’s
guidelines in that they are purely advisory. See id. at 894. The federal guidelines serve
merely to guide a judge’s broad sentencing discretion. Id. The guidelines do not need to
be followed. Instead, federal judges have discretion to impose sentences either above or
below the suggested guideline range without any need for jury fact-finding. Id. at 895.
Because the federal guidelines do not set any enforceable minimum or maximum term of
imprisonment, a defendant has no vested interest in a particular sentencing guideline
range. According to Beckles, this means a defendant cannot assert a vagueness challenge
to the factors used to establish the federal range. Id. at 894.
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Because sentencing factors in Washington have the force of law and are
constitutionally akin to elements, Beckles is inapplicable. Instead of Beckles,
Washington’s sentencing statutes should be judged under the vagueness standard
generally applicable to statutory sentencing enhancements.
The aggravating factors are not vague as applied here
Going to the merits, a vagueness challenge must be reviewed according to the
specific circumstances of the defendant’s case. Holder v. Humanitarian Law Project, 561
U.S. 1, 18-19, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010); State v. Schilling, 9 Wash. App.
2d 115, 118-21, 442 P.3d 262 (2019). The question is “whether a person of reasonable
understanding is required to guess” that the defendant’s conduct met the terms of the
statute. State v. Duncalf, 177 Wash. 2d 289, 297, 300 P.3d 352 (2013).
Mr. Santos’s jury found two statutory sentencing aggravators. Each aggravator
must be assessed for vagueness.
1. RCW 9.94A.535(3)(a)
The jury’s first aggravator was under RCW 9.94A.535(3)(a), which applies when
“[t]he defendant’s conduct during the commission of the current offense manifested
deliberate cruelty to the victim.”
The trial court’s instructions to the jury provided the following definition of
deliberate cruelty:
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No. 36069-5-III
State v. Santos (Dissent)
“Deliberate cruelty” means gratuitous violence or other conduct
which inflicts physical, psychological, or emotional pain as an end in itself,
and which goes beyond what is inherent in the elements of the crime or is
normally associated with the commission of the crime.
Clerk’s Papers at 144.
According to Mr. Santos, the foregoing definition did not provide the jury with a
sufficient framework for assessing the applicability of a deliberate cruelty aggravator.
Specifically, the jury was not advised of the types of harm inherent to or typical of
murder. Thus, he claims that the jury’s assessment of the aggravator was standardless and
arbitrary. I disagree. The crime of murder is well understood in American culture. No
guesswork or speculation is required to determine that stabbing someone 59 times is
excessive and therefore more violent or egregious than a standard homicide. Cf. Johnson,
135 S. Ct. at 2557 (holding statute asking courts to determine whether a normally
nonviolent crime nevertheless generally creates a serious risk of injury denies fair notice
and is too standardless to survive a vagueness challenge). As applied to Mr. Santos’s
case, RCW 9.94A.535(3)(a) is not impermissibly vague.
2. RCW 9.94A.535(3)(r)
The jury’s second aggravator was under RCW 9.94A.535(3)(r), which allows for
an enhancement if “[t]he offense involved a destructive and foreseeable impact on
persons other than the victim.”
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No. 36069-5-III
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The trial court did not provide an instruction defining destructive and foreseeable
impact; nevertheless, that factor withstands Mr. Santos’s vagueness challenge. The facts
at trial made clear the jury was asked two things by RCW 9.94A.535(3)(r):
1. Was Mr. Santos on notice that third parties (such as the children who
lived with the victim, Manuel Jaime) might have witnessed his criminal
conduct?
2. Did witnessing the murder cause a third person to suffer a destructive
impact?
These two questions are precise and readily answerable in a nonarbitrary manner. A
person of reasonable understanding would not have to guess that murdering someone in
the presence of a child could result in an enhanced sentence under RCW 9.94A.535(3)(r).
Mr. Santos’s vagueness challenge therefore fails.
II.
The State presented sufficient evidence to justify its aggravators
Separate from his vagueness argument, Mr. Santos contends the State presented
insufficient evidence to justify an impact on others enhancement under RCW
9.94A.535(3)(r). Relying on State v. Webb, 162 Wash. App. 195, 252 P.3d 424 (2011), Mr.
Santos claims the State failed to prove the minimum facts necessary for the enhancement
because there was no evidence of a destructive impact on a third person that was
“observable after the crime occurred.” Id. at 207.
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Webb is inapt because the facts in Webb differ materially from those here. The
defendant in Webb was convicted of first degree robbery and reckless endangerment after
he robbed a minimart in the presence of his nine-year-old daughter. Id. The daughter did
not testify at trial. Id. The only evidence of the crime’s impact on the daughter came from
witnesses who saw her around the time of the offense. Id. at 207-08. Because there was
no evidence of any observations of the daughter after the commission of the crime, this
court determined the State’s proof was insufficient to show a “lasting destructive impact.”
Id. at 208.
Unlike Webb, the jury in Mr. Santos’s case was provided evidence relevant to
whether a third person exhibited an observable destructive impact subsequent to the
commission of the crime. The third party at issue in Mr. Santos’s case—the boy who
observed the murder—testified at trial. The jury was able to observe the boy’s demeanor
during his testimony and discern for itself whether there was a destructive impact.
Although the boy was not asked to articulate his specific feelings of trauma, deference to
the jury’s verdict is nevertheless appropriate.
Because the jury was presented with sufficient evidence that Santiago Santos was
on notice that children lived at Manuel Jaime’s house (and therefore likely would be
present at the time of the murder) and because the murder was witnessed by a third party
who described his observations at trial and subjected his demeanor to the jury’s scrutiny,
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the enhancement under RCW 9.94A.535(3)(r) must be affirmed. We do not address the
wording of the instruction, as that issue has not been preserved. RAP 2.5(a); State v.
Gordon, 172 Wash. 2d 671, 679, 260 P.3d 884 (2011) (failure to provide definitional
instruction on aggravating factor not constitutional error).
____________________________
Pennell, C.J.
I CONCUR as to Section II:
Siddoway, J.
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