State of Washington v. Paulino Flores ( 2024 )

FILED
OCTOBER 29, 2024
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. 39560-0-III
Respondent, )
)
v. )
)
PAULINO FLORES, ) UNPUBLISHED OPINION
)
Appellant. )
COONEY, J. — Paulino Flores was convicted of second degree assault and
attempted second degree kidnapping. The jury returned special verdicts, finding
Mr. Flores was armed with a deadly weapon during the commission of both crimes.
On appeal, Mr. Flores argues one of the deadly weapon enhancements is not
supported by sufficient evidence, and the victim penalty assessment (VPA) was
improperly imposed against him. We conclude sufficient evidence supported the
enhancement but remand for the limited purpose of striking the VPA.
No. 39560-0-III
State v. Flores
BACKGROUND
Mr. Flores was charged with one count of second degree assault and two counts of
attempted second degree kidnapping. The State alleged a weapon enhancement on each
count. The charges arose after Mr. Flores entered a restaurant in Sunnyside, Washington,
owned by Lilian Cazares’ parents. After entering the restaurant, Mr. Flores continued to
a small office inside the building that was occupied by Ms. Cazares and her five-year-old
daughter, Gracie.1 Meanwhile, Ms. Cazares’ parents were outdoors selling food for the
upcoming Cinco de Mayo weekend. Ms. Cazares’ brothers (Ugo Robledo and
Elidro Robledo2), her sister-in-law, her aunt (Veronica Lara), and a dozen or so patrons
were also present outdoors.
Ms. Cazares had entered the office to provide Gracie with video entertainment on
the business computer. While accessing the computer, Ms. Cazares saw a stranger,
Mr. Flores, walk into the office steadily holding a “really sharp object” on his right side.
Rep. of Proc. (RP) at 230. The object was about 18 inches in length, appeared similar to
1
To protect the privacy interests of Ms. Cazares’ child, we use a pseudonym throughout
this opinion. Gen. Order of Division III, In re the Use of Initials or Pseudonyms for
Child Victims or Child Witnesses, (Wash. Ct. App. June 18, 2012),
https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber
=2012_001&div=III.
2
Ugo and Elidro Robledo are referred to by their first names for clarity. No
disrespect is intended.
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No. 39560-0-III
State v. Flores
a crowbar, and “had a sharp edge on the front of it.” RP at 231. The sight of Mr. Flores
with the object scared Ms. Cazares.
Mr. Flores told Ms. Cazares “you’re coming with me.” RP at 231. Ms. Cazares
placed Gracie behind her for Gracie’s protection. As Mr. Flores advanced on
Ms. Cazares and Gracie, he stated in an affirmative tone, “[y]ou’re leaving with me” and
demanded she “start moving.” RP at 232. Feeling scared and vulnerable, Ms. Cazares
took a step forward when Mr. Flores told her to “hurry up.” RP at 234. While exiting the
office, Ms. Cazares saw Ms. Lara through a window and waved her hands as a signal for
help. Ms. Cazares did not yell in an attempt to keep Mr. Flores from turning around. As
they departed the building, Mr. Flores turned and told Ms. Cazares to “hurry up” and
“start walking.” RP at 236. Ms. Cazares noticed Ms. Lara running to tell her brothers
and father that something was wrong. Ugo then approached Mr. Flores, which allowed
Ms. Cazares to reenter the building to be with Gracie.
Ugo asked Mr. Flores, “what are you doing?” RP at 348. In response, Mr. Flores
claimed Ms. Cazares was his wife. Ugo then directed Mr. Flores to leave. Mr. Flores
charged once at Ugo with the steel or aluminum “sharp, pointy object” that was “[b]igger
than a ruler . . . [m]ore than 12 inches” swinging toward Ugo’s abdomen. RP at 349, 352.
In response, Ugo jumped backward, fearing for his life. Mr. Flores swung at Ugo with
the object a second time, causing Ugo to call the police. The third attempt by Mr. Flores
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No. 39560-0-III
State v. Flores
was an aggressive advance without swinging the sharp object. Restaurant patrons
attempted to intervene, some by drawing their firearms.
Mr. Flores fled the area at the sound of approaching sirens. He was later arrested.
When told by law enforcement personnel there had been an attempted abduction,
Mr. Flores responded, “that was my wife … I was trying to get her to go.” RP at 305.
Mr. Flores’ charges were tried to a jury. After the State rested its case, the court
dismissed the charge of attempted second degree kidnapping related to Gracie on
Mr. Flores’ motion. Following deliberations, the jury found Mr. Flores guilty of
second degree assault and attempted second degree kidnapping. The jury also returned
special verdicts, finding Mr. Flores was armed with a deadly weapon during the
commission of both crimes.
Mr. Flores was sentenced to 53 months of incarceration on the assault charge and
a concurrent 46.5 months on the attempted kidnapping charge. The court ordered a
consecutive 6-month deadly weapon enhancement to the assault charge and a consecutive
12-month deadly weapon enhancement to the attempted kidnapping charge. Mr. Flores’
sentence totaled 71 months of incarceration. The court further ordered the then-
mandatory VPA.
Mr. Flores timely appeals.
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No. 39560-0-III
State v. Flores
ANALYSIS
SUFFICIENCY OF EVIDENCE
Mr. Flores argues the deadly weapon enhancement associated with his conviction
for attempted second degree kidnapping is not supported by sufficient evidence.
Specifically, Mr. Flores asserts the evidence failed to establish that the metal object was
employed in a manner that was likely to produce or may easily and readily produce death.
We disagree.
The sufficiency of the evidence is a question of law this court reviews de novo.
State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). In a sufficiency of the evidence
challenge, “we review the evidence in the light most favorable to the State” to determine
whether any rational trier of fact could have found the aggravating factor beyond a
reasonable doubt. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). “A claim of
insufficiency admits the truth of the State’s evidence and all inferences that can
reasonably be drawn from it.” State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748(2003). “[I]nferences based on circumstantial evidence must be reasonable and cannot be
based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013).
To enhance a defendant’s sentence under RCW 9.94A.533(4), the State must
prove the defendant was armed with a deadly weapon. “A person is ‘armed’… if a
weapon is easily accessible and readily available for use, either for offensive or defensive
purposes.” State v. Barnes, 153 Wn.2d 378, 383, 103 P.3d 1219 (2005). However, “[t]he
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No. 39560-0-III
State v. Flores
mere presence of a deadly weapon at the crime scene is insufficient to show that the
defendant is ‘armed.’” Id. Consequently, the State must show a nexus between the
defendant, the crime, and the deadly weapon. Id.A “deadly weapon” is an instrument listed as a deadly weapon in RCW 9.94A.825
or “an implement or instrument which has the capacity to inflict death and from the
manner in which it is used, is likely to produce or may easily and readily produce death.”
RCW 9.94A.825. Here, the court found the instrument was not a deadly weapon per se.
Accordingly, the court instructed the jury that a “deadly weapon means an implement or
instrument which has the capacity to inflict death and from the manner in which it is
used, is likely to produce, or may easily and readily produce, death.” Clerk’s Papers (CP)
at 118.
We conclude there was sufficient evidence to support the jury’s finding that
Mr. Flores was armed with an instrument that had the capacity to inflict death and was
easily and readily available to produce death while committing the crime of attempted
kidnapping.
Ms. Cazares testified that Mr. Flores, standing in close proximity to her while
demanding she leave with him, was armed with a “really sharp object” about “18 inches
long” that he held with the “[t]he sharp edge [ ] out.” RP at 230-31, 233. Mr. Flores’
presence with the object caused Ms. Cazares to feel scared and vulnerable. Ugo’s
perception of the situation mirrored Ms. Cazares’. Ugo testified the object in Mr. Flores’
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No. 39560-0-III
State v. Flores
possession caused him to fear it was a life or death situation. Moreover, a couple of
patrons drew their firearms after witnessing Mr. Flores swing the object twice.
The 18-inch, sharp, metal object Mr. Flores was holding could have easily killed
Ms. Cazares. Further, Mr. Flores was holding it with the sharp edge facing out, toward
Ms. Cazares, and could therefore have easily used the object for “offensive or defensive
purposes,” or to hurt or kill Ms. Cazares, at any time. Barnes, 153 Wn.2d at 383.
In reviewing the evidence in the light most favorable to the State, and accepting
the truth of the State’s evidence and all inferences that can reasonably be drawn from it,
the object Mr. Flores possessed while committing the attempted kidnapping was easily
accessible and readily available for offensive or defensive purposes and had the capacity
to easily and readily produce death. Sufficient evidence supports the jury’s finding that
Mr. Flores was armed with a deadly weapon within the meaning of RCW 9.94A.825
during the commission of the attempted second degree kidnapping.
VICTIM PENALTY ASSESSMENT
Mr. Flores requests we remand his case to have the VPA struck from his judgment
and sentence. The State concedes.
Former RCW 7.68.035(1)(a) (2018) required a VPA be imposed on any individual
found guilty of a crime in superior court. In April 2023, the legislature passed Engrossed
Substitute House Bill 1169 (H.B. 1169), 68th Leg., Reg. Sess. (Wash. 2023), that
amended RCW 7.68.035 to prohibit the imposition of the VPA on indigent defendants.
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No. 39560-0-III
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RCW 7.68.035 (as amended); LAWS OF 2023, ch. 449, § 1. H.B. 1169 took effect on
July 1, 2023. Amendments to statutes that impose costs upon convictions apply
prospectively to cases pending on appeal. See State v. Ramirez, 191 Wn.2d 732, 748-49,
426 P.3d 714 (2018).
Mr. Flores was found to be indigent, and because Mr. Flores’ case is pending on
direct appeal, the amendment applies.
CONCLUSION
Sufficient evidence supports the jury’s deadly weapon finding on Mr. Flores’
conviction for attempted second degree kidnapping. We remand for the limited purpose
of striking the VPA from Mr. Flores’ judgment and sentence.
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.
Cooney, J.
WE CONCUR:
Pennell, J. Staab, A.C.J.
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