State of Washington v. Luis Alberto Anguiano ( 2017 )

FILED
AUGUST 3, 2017
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. 33595-0-111
Respondent, )
)
v. )
)
LUIS ALBERTO ANGUIANO, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. - Luis Anguiano was sentenced to almost 70 years' incarceration
upon conviction for first degree murder with extreme indifference and first degree
assault, with findings that three firearms were used in connection with each crime. On
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appeal, he argues that the trial court erred when it ( 1) admitted prior bad acts evidence,
(2) found sufficient evidence of extreme indifference, (3) imposed multiple firearm
enhancements on each conviction, (4) calculated his offender score without requiring the
State to prove prior convictions, and (5) imposed legal financial obligations (LFOs)
without inquiring into Mr. Anguiano's ability to pay. We decline to address the
unpreserved LFO issue and finding no error or abuse of discretion, affirm.
FACTS AND PROCEDURAL BACKGROUND
On a Saturday morning in January 2014, Charles Burkybile, the caretaker of a
private gun club near Harrah in Yakima County, died after being shot through the door of
his home as he attempted to hold it closed against Luis Anguiano and three others.
Yolauni Hueso, Mr. Burkybile's significant other, who lived with him and their two
young children at the caretaker's residence, would later testify that Mr. Anguiano and the
three others arrived at her and Mr. Burkybile's isolated home unexpectedly, and in a car
they did not recognize. Mr. Burkybile opened the door to speak to the men and she heard
him say, "[T]his is a gun club. We don't do that here," before closing the door and
locking it. He then looked at her and stated, "I don't know who they are. They're just a
bunch of Mexican gangster[s]." Report of Proceedings (RP) 1 at 278.
1
Unless otherwise noted, citations to the report of proceedings are to the April 20,
2015, 1011-page report of trial proceedings.
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Ms. Hueso then heard a shot and the family's German shepherd, which had been
barking at the men outside, yelped. She heard car doors open, someone running toward
the house, and then the sounds of one or more of the men trying to kick in the door. She
retreated with the children to a bedroom, where she called 911 and reported that four men
in a green car were shooting at the home. The 911 operator told her to stay in the room
until the gunfire stopped. When it did, she returned to where her husband had been
barring the door and saw him on the ground, their .22 rifle next to him. He was
conscious but pointed to his chest, where he had been shot. He died from internal
bleeding en route to the hospital.
Seventeen-year-old Carlos Hernandez, the driver of the green car, testified as a
witness for the State in the trial below. He told jurors he had agreed to drive his friend
Martin Alvarez and brothers Jose Davilla and Luis Anguiano to a place where Mr.
Anguiano was going to buy marijuana. He was not familiar with Harrah but followed
directions. As they approached the caretaker's home, which Mr. Hernandez described as
"in the middle of nowhere," he was alarmed to see his three passengers pulling out
handguns. RP at 654-55.
According to Mr. Hernandez, upon arrival, Mr. Anguiano approached the home
but Mr. Burkybile stepped outside before he reached the door. He heard Mr. Anguiano
ask Mr. Burkybile "if he knew anyone that sold weed" and Mr. Burkybile said no and to
"get out of here," and went back in the home, shutting the door. RP at 658. At that point,
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Mr. Hernandez said Mr. Alvarez got out of the car and shot the dog, which had started
barking. Mr. Alvarez and Mr. Anguiano then "tried kicking down the door" but backed
up when Mr. Burkybile pointed a rifle out the door and "all the shooting happened." RP
at 658-59. Mr. Anguiano, Mr. Alvarez and Mr. Davilla all fired at the home. Mr.
Hernandez ducked, at the same time trying to drive away, and Mr. Anguiano, Mr.
Alvarez and Mr. Davilla retreated into Mr. Hernandez's car. Ms. Hueso later estimated
that she heard as many as 14 or 15 shots fired and that the shooting toward the house
continued as the men drove away. Mr. Hernandez testified that Mr. Anguiano fired his
entire clip and that Mr. Alvarez and Mr. Davilla each fired six or seven shots. He agreed
that even as he drove away, his passengers continued shooting.
Officer Raymond Enriquez was driving toward the gun club in response to Ms.
Hueso's 911 call when he saw a green car with Hispanic passengers that met her
description of the shooters. He turned and followed it. Mr. Hernandez was encouraged
by his passengers to "step on it," and attempted to elude the officer but eventually hit a
curb and crashed. RP at 662. Officer Enriquez saw four men flee the scene of the
accident.
Mr. Davilla was later found in the vicinity and on the Monday following the
Saturday shooting, Mr. Hernandez appeared at the Yakima County Sheriffs Department
with a lawyer and turned himself in. He told a detective what had happened and led
detectives to the area where his passengers had thrown their handguns from the car
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during the chase. Officers found two of the firearms. Mr. Hernandez was referred to
juvenile court, agreed to testify against Mr. Anguiano and Mr. Alvarez, and was charged
with eluding the police and criminal assistance.
The State ultimately charged Mr. Anguiano with two alternative counts of first
degree murder (committed in furtherance of a felony, and by extreme indifference),
second degree felony murder, the first degree assault of both Mr. Burkybile and Ms.
Hueso, and attempted first degree burglary. 2 The State asserted that each crime was
committed while armed with three firearms.
Mr. Anguiano's version of events was that he had purchased marijuana from Mr.
Burkybile many times in the past and traveled to the gun club for the sole purpose of
buying marijuana. After Mr. Burkybile closed the door on him, he claimed to have
kicked it only three times, out of anger at Mr. Burkybile's abrupt treatment. He claimed
he shot his gun only in self-defense after Mr. Burkybile fired his rifle at the men from
inside the home.
Before trial, there was discussion of the fact that the State wanted to offer
evidence suggesting that Mr. Anguiano had been involved in a burglary of the
Burkybile/Hueso home two weeks before the shooting, as a result of which he knew that
there was a large amount of marijuana and cash there. Ms. Hueso had a prescription for
2
One count of first degree unlawful possession of a firearm was also charged, but
was dismissed.
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marijuana and it was undisputed that the couple maintained a supply large enough for her
use and to sell to friends. It was the State's theory that knowing this, Mr. Anguiano had
returned with his armed companions to steal drugs and money. The evidence and theory
came up in a pretrial hearing, when motions in limine were being reviewed and defense
counsel stated that for "[ a]ny 404(b) evidence that the [S]tate intends to elicit, I'd like to
have the opportunity to voir dire whatever witness they're trying to get it in through and
object outside the presence of the jury." RP at 17.
On the second day of trial the matter of the prior burglary-related evidence was
raised again, outside the presence of the jury. This time, the trial court stated it would
allow the State to offer the evidence to show the motivation for the crimes charged. Over
defense counsel's objection, it allowed the State to present evidence that when
apprehended, Mr. Anguiano had two items in his possession that Ms. Hueso testified had
been stolen from her home two weeks earlier: a cannabis jar labeled "Girl Scout
Cookies" 3 and a box ofHomady Lever Revolution 30-30 Winchester 160-grain
ammunition that she claimed to have purchased at a Bi-Mart store shortly before
Christmas 2013.
3 Evidently a popular, high potency strain of marijuana. See Girl Scout Cookies,
ALLB uo, https ://www .all bud.com/marijuana-strains/hybrid/girl-scout-cookies
[https://perma.cc/LAP5-DSYE].
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Also over defense counsel's objection, the trial court admitted as a business record
a retail receipt showing a purchase from Bi-Mart of two boxes of the Hornady 30-30
ammunition on December 23, 2013-several weeks before the first burglary. The
Universal Product Code (UPC) on the receipt confirmed that the ammunition found in
Mr. Anguiano's bag was the same type as that purchased from Bi-Mart in December,
although it did not prove that the box found in Mr. Anguiano' s possession was the box
stolen from the Burkybile/Hueso home.
The jury found Mr. Anguiano guilty on all counts, found by special verdict that the
murder of Mr. Burkybile occurred during an attempted first degree robbery and under
circumstances manifesting extreme indifference to human life, and found that Mr.
Anguiano and his accomplices had been armed with three firearms in connection with
each count.
The trial court ruled that the second degree murder, first degree assault on Mr.
Burkybile, and attempted burglary counts merged into the first degree murder count. In
sentencing Mr. Anguiano for the two convictions that remained, it calculated his offender
score as two for the murder conviction and imposed a base sentence of 34 7 months, with
an additional 180 months in firearm enhancements. It calculated the offender score as
zero for the first degree assault conviction and imposed a base sentence of 123 months,
with another 180 months in firearm enhancements. With the sentences on both counts
and the firearm enhancements running consecutively, the total term of confinement
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imposed was 830 months. The court found Mr. Anguiano able to pay costs and imposed
$1,400 in legal financial obligations. Mr. Anguiano did not object.
Mr. Anguiano appeals.
ANALYSIS
Evidentiary rulings
Mr. Anguiano assigns error to two of the trial court's evidentiary rulings. We first
address his contention that the court admitted evidence that he had burglarized the
Birkybile/Hueso home a couple of weeks before Mr. Birkybile was killed, without
complying with the procedure required before admitting evidence under ER 404(b ).
ER 404(b) prohibits the use of"[ e]vidence of other crimes, wrongs, or acts ... to
prove the character of a person in order to show action in conformity therewith." The
same evidence may "be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident," however. ER 404(b).
The proponent of prior bad act evidence bears the burden of establishing that the
act is offered for a proper purpose. State v. Gresham, 173 Wash. 2d 405, 420, 269 P.3d 207
(2012). Before a trial court can admit the evidence, it must '"(l) find by a
preponderance of the evidence that the misconduct occurred, (2) identify the purpose for
which the evidence is sought to be introduced, (3) determine whether the evidence is
relevant to prove an element of the crime charged, and (4) weigh the probative value
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against the prejudicial effect."' State v. Foxhoven, 161 Wash. 2d 168, 175, 163 P.3d 786
(2007) (quoting State v. Thang, 145 Wash. 2d 630, 642, 41 P.3d 1159 (2002)).
Appellate courts "review the trial court's interpretation of ER 404(b) de novo as a
matter of law." State v. Fisher, 165 Wn.2d 727,745,202 P.3d 937 (2009). Where the
trial court correctly interprets the rule, its decision to admit evidence of misconduct is
reviewed for abuse of discretion. Id. "A trial court abuses its discretion where it fails to
abide by the rule's requirements." Id.
The State incorrectly asserts that Mr. Anguiano did not object to the evidence on
ER 404(b) grounds. He identified ER 404(b) as a basis for his objection twice, and the
court ruled outside the presence of the jury that it would admit the evidence on the issue
of motive. Mr. Anguiano is deemed to have a standing objection. State v. Powell, 126
Wash. 2d 244, 256, 893 P .2d 615 ( 1995).
In most cases involving evidence of prior bad acts, the proponent offers equally
strong evidence that ( 1) the bad act occurred and (2) the person against whom the
evidence is offered did it. But ER 404(b) can also apply to cases such as this one where
the stronger evidence is that the bad act occurred, but the identity of who did it is less
clear. State v. Norlin is one such case-a prosecution for assault of an infant, in which
the State offered medical evidence that the infant had suffered earlier, intentionally
inflicted injuries but there was no direct evidence that the defendant, Norlin, inflicted
them. 134 Wash. 2d 570, 951 P.3d 1131 (1998). In such a case, our Supreme Court held,
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the bad acts evidence was admissible to show absence of accident pursuant to ER 404(b)
"only if the State connects the defendant to the prior injuries by a preponderance of the
evidence." Id. at 581. Similarly here, the State had the burden of showing that the prior
burglary occurred connecting Mr. Anguiano to it by a preponderance of the evidence.
A trial court may determine that the State has met its burden of showing the prior
misconduct occurred "based solely on the State's offer of proof." State v. Stein, 140 Wn.
App. 43, 66, 165 P.3d 16 (2007) (citing State v. Kilgore, 147 Wash. 2d 288, 295, 53 P.3d
974 (2002), ajf'd, 167 Wash. 2d 28, 216 P.3d 393 (2009)). "[W]here a trial court rules on
the admissibility of ER 404(b) evidence immediately after both parties have argued the
matter and the court clearly agrees with one side, an appellate court can excuse the trial
court's lack of explicit findings." Stein, 140 Wash. App. at 66 (citing State v. Pirtle, 127
Wn.2d 628,650,904 P.2d 245 (1995)).
Mr. Anguiano is correct that the trial court made no explicit finding that the State
established the prior burglary occurred and connected him to it by a preponderance of the
evidence. However, the trial court found the evidence was admissible immediately after
the State's offer of proof that when arrested, Mr. Anguiano had in his possession the Girl
Scout Cookies cannabis jar and the box of30-30 Homady bullets that Ms. Hueso would
identify as stolen from her home only two weeks before. We can excuse the lack of
explicit findings.
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Mr. Anguiano argues that both the Girl Scout Cookies cannabis and the Homady
bullets are commercially sold and cannot be established as the same items stolen from the
Burkybile/Hueso home. But in Norlin, the State could only prove that the defendant
babysat the injured infant between 40 and 70 hours a week (of the 168 total hours in a
week) during the period the earlier injuries occurred, and that the infant's mother had
seen evidence of injuries from other "accidents" reported by the defendant when the child
was in his care. 134 Wash. 2d at 583. Although the evidence could "only be described as
circumstantial, it was sufficient to connect Norlin to [the] injuries by a preponderance of
the evidence." Id. Here, we are not presented with evidence of items in Mr. Anguiano's
possession so common that they would be found in the possession of many people. Ms.
Hueso testified that the Girl Scout Cookies cannabis was a type she had purchased only
from a small dispensary in Seattle. The items were sufficiently unusual that evidence Mr.
Anguiano possessed them was circumstantial evidence connecting him to the prior
burglary by a preponderance of the evidence.
The trial court also did not weigh the probative value of the evidence against the
risk of unfair prejudice, but the record is sufficient to permit meaningful review of this
basis for exclusion under ER 403. See State v. Barragan, 102 Wash. App. 754, 759, 9 P.3d
942 (2000); State v. Donald, 68 Wn. App. 543,547,844 P.2d 447 (1993); 5 KARLB.
TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE§ 404.32 (6th ed.
2016) (noting that some courts require the trial court to balance probative and prejudicial
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effect on the record, but others do not insist on strict compliance and have even
performed the balancing for the first time on appeal); State v. Hepton, 113 Wash. App. 673,
688, 54 P.3d 233 (2002) ("When the trial court identifies the purpose for which the
evidence is believed to be relevant, the reviewing court can determine whether the
probative value of the evidence outweighs its prejudicial effect.").
Mr. Anguiano argues that admission of the evidence of the earlier burglary
unfairly prejudiced him by undermining his credibility, particularly because the prior act
was similar to the charged crime. Reply Br. at 6. While this may be true, the State did
not rely on the evidence of the earlier burglary to argue to the jury that Mr. Anguiano was
a criminal type or a burglar-it relied on the evidence for the purpose identified to the
court: to explain that Mr. Anguiano traveled with the others to the remote gun club not to
buy marijuana, but because he was aware from the earlier burglary of drugs and cash
likely to be found in the caretaker's home.
The evidence is highly probative. Absent some prior knowledge of the home, why
would Mr. Anguiano have traveled so far, and enlisted others, to burglarize it? Absent
evidence that Mr. Anguiano knew that there was ample marijuana and cash to be found in
the Burkybile/Hueso home, Mr. Anguiano could easily have argued to jurors that a plan
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to travel all the way to Harrah to attempt a burglary or home invasion robbery in broad
daylight made no sense. 4
We would also find any error to be harmless. There was overwhelming untainted
evidence against Mr. Anguiano in the form of Ms. Hueso's and Mr. Hernandez's
consistent testimony; the evidence of Mr. Anguiano's and his accomplices' flight; and the
implausibility of his testimony that the shootout was prompted by his three frustrated
kicks to the door, Mr. Burkybile's overreaction, and the regrettable coincidence that he,
his brother, and Mr. Alvarez all brought handguns to the marijuana buy. We are satisfied
that the result of the trial would have been the same had the trial court sustained Mr.
Anguiano's ER 404(b) objection.
Mr. Anguiano also contends the court erred when it admitted as a business record
a retail receipt reflecting a purchase from Bi-Mart on December 23, 2015, of a box of
ammunition identical to that found in Mr. Anguiano's possession at the time of his arrest.
Hearsay, such as a store receipt offered to prove that a purchase occurred, is inadmissible
under ER 802 unless it falls within an exception. The Uniform Business Records as
4
The State also contends that the earlier burglary helps explain Mr. Burkybile's
hypervigilant behavior on the day he was killed. But for that purpose, only evidence that
the burglary had occurred would be needed; there would have been no need to offer
evidence that Mr. Anguiano was connected with it.
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Evidence Act (UBRA), chapter 5.45.020 RCW, 5 provides such an exception for business
records because they "are presumptively reliable if made in the regular course of business
and there was no apparent motive to falsify." State v. Ziegler, 114 Wash. 2d 533, 538, 789
P.2d 79 (1990). A trial court's decision "in admitting or excluding such records is given
much weight and will not be reversed unless there has been a manifest abuse of
discretion." Cantril/ v. Am. Mail Line, 42 Wash. 2d 590, 608, 257 P.2d 179 (1953).
The State offered the exhibit through Brian Schroeder, who was manager of the
Sunnyside Bi-Mart store at the time of trial but had not been the manager in December
2013. He testified that such receipts are kept in the regular course of business:
Q .... is this document, state's Identification 216, an accurate document
kept in the normal course of business by the Bi-Mart Corporation?
A. On a computer it is. On paper, no.
RP at 726. Though he never testified that such receipts are created at or near the time of
a transaction, his testimony establishes that they are:
A .... [I]s this something that you keep similar records in your store?
Q. My store, no.
A. Okay. And what kind of records do you normally keep? Do you keep
sales entrances?
5
RCW 5.45.020 provides:
A record of an act, condition or event, shall in so far as relevant, be
competent evidence if the custodian or other qualified witness testifies to its
identity and the mode of its preparation, and if it was made in the regular
course of business, at or near the time of the act, condition or event, and if,
in the opinion of the court, the sources of information, method and time of
preparation were such as to justify its admission.
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Q. We keep sales transactions of the current day, the previous day. Other
transactions are kept in Eugene.
RP at 718. Records of a current day's transactions could not be kept at the store if they
were not made on the day of the transaction.
Mr. Anguiano challenges whether Mr. Schroeder was a "custodian" or "other
qualified witness," because at the time of trial he had only worked at the store for three
months, receipts were kept on a hard drive at a store in a different city, and he did not
personally procure the receipt nor verify its contents with company records. Under the
business records statute, however, reviewing courts broadly interpret the statutory terms
"custodian" and "other qualified witness." State v. Smith, 55 Wash. 2d 482, 348 P.2d 417
(1960); State v. Ben-Neth, 34 Wash. App. 600, 603, 663 P.2d 156 (1983); State v. Quincy,
122 Wash. App. 395, 399, 95 P.3d 353 (2004). The statute does not require the person who
created the record to identify it as long as one who has custody of the record as a regular
part of his work can do so. Cantrill, 42 Wash. 2d 590; Ben-Neth, 34 Wash. App. at 603;
Quincy, 122 Wash. App. at 399. "Identification by a custodian may be sufficient even
though the custodian was hired after the record was made." 5C KARL B. TEGLAND,
WASHINGTON PRACTICE: EVIDENCE LA w AND PRACTICE § 803 .41, at 111 (6th ed. 2016)
(citing Cantrill, 42 Wash. 2d 590). Admissibility hinges on the opinion of the court that the
sources of information, method, and time of preparation were such as to justify its
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admission. Quincy, 122 Wash. App. at 401; Ben-Neth, 34 Wash. App. at 603. Computerized
records are treated the same as any other business records. Quincy, 122 Wash. App. at 399.
The store manager testified that he was the custodian of records, despite the fact
that records over two days old are kept electronically in a different city:
THE COURT: ... Are you the custodian of that record ... ? The person
who's in charge of it, is that you or somebody in Eugene?
THE WITNESS: I would believe me.
THE COURT: Okay. So you have access to those records at your store?
THE WITNESS: Yes, sir.
THE COURT: And you're in charge of them?
THE WITNESS: Yes, sir.
THE COURT: But they're not kept at your store?
THE WITNESS: They're not. They're kept in Eugene.
RP at 721. The manager further testified that he had received the receipt from Bi-Mart's
corporate office, and that he assumed the previous store manager had accessed and
printed it, though he could not be sure. The statute does not require more. The trial court
clearly found the evidence sufficiently reliable.
And here again, any error in admitting the receipt was harmless. Because any
error was evidentiary in nature, this court applies "the rule that error is not prejudicial
unless, within reasonable probabilities, the outcome of the trial would have been
materially affected had the error not occurred." State v. Tharp, 96 Wash. 2d 591, 599, 637
P.2d 961 ( 1981 ). Although it was established outside the presence of the jury that Mr.
Schroeder was able to tie the receipt to a cash purchase by Ms. Hueso because she had
purchased a firearm and completed a federal firearm document the same day, the trial
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court excluded testimony about that tie-in because of the State's late receipt and
disclosure of the firearm form. As a result, the Bi-Mart receipt was only evidence that
someone purchased a box of the ammunition on the day in question. As such, it was
cumulative to, and less important than, Ms. Hueso's testimony identifying the
ammunition found in Mr. Anguiano's possession as ammunition she had purchased at Bi-
Mart right before Christmas in December 2013.
Evidence sufficiency
Mr. Anguiano next contends that insufficient evidence supports his conviction for
first degree murder manifesting extreme indifference as provided by RCW
9A.32.030(1)(b). The statute provides that a person is guilty of murder in the first degree
when "[ u]nder circumstances manifesting an extreme indifference to human life, he or
she engages in conduct which creates a grave risk of death to any person, and thereby
causes the death of a person."
To prove that the defendant acted with extreme indifference, "the State must show
that the defendant acted recklessly and with extreme indifference to human life in
'general[],' as opposed to simply endangering the life of a 'particular' victim or victims."
State v. Pettus, 89 Wash. App. 688, 694, 951 P.2d 284 (1998) (alteration in original)
(quoting State v. Berge, 25 Wn. App. 433,437, 607 P.2d 1247 (1980)), abrogated in part
on other grounds by State v. Gamble, 154 Wash. 2d 457, 114 P.3d 646 (2005). For
example, where a defendant fired 30 shots into and around the victim, who was sleeping
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in the defendant's living room, the court found insufficient evidence of extreme
indifference because the "attack was specifically directed at a particular victim." Berge,
25 Wash. App. at 437 (emphasis omitted). Similarly, there was no extreme indifference
where a defendant placed a toddler into a bath of scalding hot water from which she
eventually died because the indifference was directed only toward the murdered
individual. Statev.Anderson,94 Wn.2d 176, 178-79, 186, 192,616P.2d612(1980).
Mr. Anguiano argues that his conduct, and that of his accessories, was similar: they shot
specifically at Mr. Burkybile, did not know or see anyone else in the area, and the
shooting occurred in a rural area.
"' The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found guilt beyond a reasonable doubt.'" State v. Witherspoon, 180 Wn.2d
875,883,329 P.3d 888 (2014) (quoting State v. Salinas, 119 Wn.2d 192,201, 829 P.2d
1068 (1992)). A criminal defendant's claim of insufficient evidence admits the truth of
the State's evidence and "'all inferences that reasonably can be drawn [from it]."' State
v. Condon, 182 Wn.2d 307,314,343 P.3d 357 (2015) (alteration in original) (quoting
Salinas, 119 Wash. 2d at 201 ).
The Anderson and Berge decisions have been distinguished by later cases
"because in each only the life of the victim was endangered." State v. Pastrana, 94 Wn.
App. 463, 473, 972 P.2d 557 (1999) (emphasis added), abrogated in part on other
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grounds by State v. Gamble, 154 Wash. 2d 457, 114 P.3d 646 (2005). In Anderson, no one
else was conceivably endangered by the defendant's actions in bathing the toddler. In
Berge, because the shooting took place in the defendant's home and was held by the court
to be "specifically directed at a particular victim," it can again be inferred that no one else
was conceivably endangered. 25 Wash. App. at 437 (emphasis omitted).
Conversely, a defendant's claim following a road rage incident that he was
"unaware that anyone other than the driver [of an offending vehicle] was in the 'line of
fire"' did not take his crime outside of the operation ofRCW 9A.32.030(l)(b).
Pastrana, 94 Wash. App. at 471. And in State v. Pettus, the court distinguished Berge and
Anderson on the basis that the defendant's shooting in fact placed others in the vicinity at
grave risk of death, not that he "knowingly" did so. 89 Wash. App. at 694. 6
There was no evidence that Mr. Anguiano had a basis for believing that only Mr.
Burkybile was in the home. Ms. Hueso testified that her car and Mr. Burkybile's truck
6
Mr. Anguiano claims Pastrana and Pettus were called into question and arguably
lacked a full understanding of the elements of murder by extreme indifference. Reply Br.
at 8. However, the portions of Pastrana and Pettus that have been abrogated relate to the
definition of "reckless," which has since been narrowed. See Gamble, 154 Wash. 2d at 469
(concluding that first degree manslaughter is not a lesser included offense of second
degree felony murder where the predicate felony is second degree assault); State v.
Henderson, 182 Wash. 2d 734, 741-42, 344 P.3d 1207 (2015) (noting that Pastrana and
Pettus applied a general definition of "reckless" when deciding whether first degree
manslaughter was a lesser included offense of first degree murder by extreme
indifference and that the definition was later narrowed in Gamble, 154 Wash. 2d 457).
There is no indication that either case misunderstood or misapplied the standards of
murder by extreme indifference.
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were both at the home that day. Between Mr. Anguiano, Mr. Alvarez, and Mr. Davilla,
they fired at least 18 shots. An officer testified to four bullet holes in the door on the east
side of the home, another six bullet holes on other portions of the east side of the home,
and more than one bullet hole on the south side of the home. Officers found bullet strikes
in the interior of the home as well, in the laundry room, kitchen, and in the closet and
wall of a back bedroom. Mr. Anguiano and his companions clearly did not limit their fire
to the doorway from which Mr. Burkybile fired. Their actions created a grave risk of
death, in fact, to all four individuals in the home.
Viewed in the light most favorable to the State, this is sufficient evidence for the
jury to have found Mr. Anguiano acted with extreme indifference toward human life in
general.
Double jeopardy
Mr. Anguiano next argues that the trial court violated principles of double
jeopardy when it imposed three firearm enhancements on each of his two convictions.
"The Washington Supreme Court specifically addressed this argument in State v.
DeSantiago, 149 Wash. 2d 402, 415-21, 68 P.3d 1065 (2003), holding 'the plain language
of [RCW 9.94A.533 7] requires a sentencing judge to impose an enhancement for each
firearm or other deadly weapon that a jury finds was carried during an offense.'" State v.
7
The DeSantiago court analyzed RCW 9.94A.510. The language at issue there
has now been recodified in RCW 9.94A.533.
20
No. 33595-0-111
State v. Anguiano
Mancilla, 197 Wn. App. 631,652,391 P.3d 507 (2017) (emphasis omitted) (alteration in
original); see also State v. Ose, 156 Wash. 2d 140, 147, 124 P.3d 635 (2005) (noting the
statute allows a defendant to be punished for each weapon involved). While Mr.
Anguiano argues that the holding in DeSantiago was dicta and "rests on a precarious
foundation," Br. of Appellant at 24, he will have to make that argument to the Supreme
Court. We regard DeSantiago as binding authority. Mancilla, 197 Wash. App. at 652.
Offender score
At sentencing, the State asserted Mr. Anguiano had two prior felony offenses for
delivery of controlled substances. Mr. Anguiano contends the State failed to prove the
existence of the two convictions, resulting in a miscalculated offender score.
In order to establish a defendant's criminal history for sentencing purposes, the
State must prove a defendant's prior convictions by a preponderance of the evidence.
State v. Mendoza, 165 Wn.2d 913,920,205 P.3d 113 (2009). The best evidence of a
prior conviction is a certified copy of the judgment, but the State may offer other
comparable documents of record or transcripts of prior proceedings to establish criminal
history. In re Adolph, 170 Wash. 2d 556, 566, 243 P.3d 540 (2010) (citing State v. Ford,
137 Wn.2d 472,480,973 P.2d 452 (1999)). "[The] burden is 'not overly difficult to
meet' and may be satisfied by evidence that bears some 'minimum indicia of
reliability."' Id. at 569 (quoting Ford, 137 Wash. 2d at 480-81).
21
No. 33595-0-III
State v. Anguiano
The need for the State to produce evidence is obviated where there is "an
affirmative acknowledgment by the defendant offacts and information introduced for the
purposes of sentencing." Mendoza, 165 Wash. 2d at 928. "The mere failure to object to a
prosecutor's assertions of criminal history does not constitute such an acknowledgment."
Id.
The parties dispute whether defense counsel, in arguing for a downward departure
from the standard range, affirmatively acknowledged the criminal history information
offered by the State. Mr. Anguiano emphasizes his lawyer's cautionary reference to "the
State's calculation," while the State emphasizes the lawyer's reference to his client's
"non-violent criminal history of two points":
[DEFENSE COUNSEL:] When we-you know, by the State's calculation,
we end up with-you know, a top end of a range that's 497 months ....
And then 648 months in firearm enhancements. I think that this is a
situation that the legislature simply hasn't dealt with yet with regards to
what kind of merger doctrines we potentially should have when-when
you 're talking about multiple co-defendants, accomplice liability with
regards to the firearm enhancements, and how to-to deal with that
because, you know, we start with a base range on the First Degree Murder
with-with his non-violent criminal history o(two points, at 281 to 374,
and then we jump-you know, we double that just in enhancements alone
because of the multiple offenses. And ... even though it's-it's really one
event, we end up with consecutive, consecutive, consecutive sentences,
consecutive enhancements. So, I don't think the Court has any discretion
with regards to the enhancements at this point in time. I think the only
discretion the Court has is with regards to the permissiveness of the anti-
burglary statute as well as, you know, a potential downward departure to
get him down to something that I think would be a-a fair and just
sentence. 1-1 would ask the Court to consider that.
22
No. 33595-0-III
State v. Anguiano
RP (Oct. 23, 2014) at 341-42 (emphasis added).
The State has the better argument. Counsel's unqualified reference to his client's
"non-violent criminal history of two points" is a sufficient, affirmative acknowledgment.
LFOs
Finally, Mr. Anguiano argues the trial court did not adequately consider his
current and likely future ability to pay LFOs and asks that we remand for the trial court to
conduct the proper inquiry.
Mr. Anguiano made no objection to the finding that he had the present or future
ability to pay the costs imposed and thereby failed to preserve a claim of error. RAP
2.5(a); State v. Blazina, 182 Wn.2d 827,833,344 P.3d 680 (2015) ("[u]npreserved LFO
errors do not command review as a matter of right"). "[A] defendant has the obligation
to properly preserve a claim of error" and "appellate courts normally decline to review
issues raised for the first time on appeal." Id. at 830, 834. The rationale for refusing to
review an issue raised for the first time on appeal is well settled-issue preservation helps
promote judicial economy by ensuring "that the trial court has the opportunity to correct
any errors, thereby avoiding unnecessary appeals." State v. Robinson, 171 Wash. 2d 292,
304-05, 253 P.3d 84 (2011) (citing State v. Scott, 110 Wn.2d 682,685, 757 P.2d 492
( 1988)). A majority of the panel declines to exercise discretion to review the issue for the
first time on appeal.
23
No. 33595-0-III
State v. Anguiano
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.
;j;cltocuCZ5 .fJ=
oway, J.
WE CONCUR:
Fearing, C.J.
24