State of Washington v. Fernando Francisco

FILED
APRIL 24, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34781-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
FERNANDO FRANCISCO, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Fernando Francisco appeals after his convictions for
third degree malicious mischief—domestic violence, fourth degree assault—domestic
violence, and three counts of reckless endangerment—domestic violence. He argues
(1) insufficient evidence to sustain the three reckless endangerment charges,
(2) prosecutorial misconduct, (3) sentencing error when setting the length of the no-
contact order (NCO) beyond the maximum term of confinement, and (4) error in
assessing discretionary legal financial obligations (LFOs). We reject his arguments and
affirm.
No. 34781-8-III
State v. Francisco
FACTS
In April 2016, Monica Salazar Mendoza was driving her car with her husband,
appellant Fernando Francisco, in the passenger seat. The couple’s three young children
were in the backseat. The couple began to argue after Francisco received a telephone call
and would not tell his wife who was calling. Ms. Mendoza eventually pulled to the side
of the road. Francisco hit Mendoza in the face. Mendoza pulled back on the highway
and headed to Francisco’s mother’s house.
After arriving there, Mendoza received a text message. Francisco took the
cellphone from his wife and again struck her in the face. Francisco then exited the car,
climbed on its hood, and broke his wife’s cellphone and front window by repeatedly
smashing the former against the latter. Mendoza, still in her car, rocked it back and forth
and successfully dislodged her husband from the top of it.
Francisco then grabbed a metal bar and broke the rear window of Mendoza’s car
where his three children still sat. The children screamed as they were showered by pieces
of broken glass. Mendoza got out of her car and the two continued arguing. Francisco
then punched his wife several times in the head and face with a closed fist. Mendoza’s
face was bloodied by these blows. Francisco eventually pinned Mendoza to the ground.
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State v. Francisco
Around this time, Francisco’s mother assisted the terrified children into her house.
Francisco’s mother did not see her son hit Mendoza or see what caused Mendoza’s face
to become bloodied. She later noticed a mark on her son’s back. Although she did not
know what caused the mark, she speculated at trial that it could have been caused by a
stick. According to Francisco’s mother, the two were arguing because her son wanted to
leave in his car but Mendoza would not give her son his car keys. Between her son
pinning Mendoza and her own efforts, she pried her son’s keys out of Mendoza’s hand.
Francisco then fled in his car. Mendoza retrieved her children and then drove her
car to a nearby house and called 911. Police arrived soon thereafter and observed a
bloodied Mendoza.
The State charged Francisco with second degree malicious mischief, a class C
felony. That charge was based on the aggregate damage to Mendoza’s windshield and
cellphone. The State also charged Francisco with various other offenses, including fourth
degree assault—domestic violence against Mendoza, and three counts of reckless
endangerment—domestic violence against his three children.
At trial, Francisco asserted a claim of self-defense. He also introduced evidence
that the back car window was composed of safety glass, arguing that when safety glass
breaks the pieces are not sharp like regular broken glass.
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No. 34781-8-III
State v. Francisco
In closing argument, the prosecutor acknowledged that the State had the burden to
disprove self-defense beyond a reasonable doubt. He then stated that to find self-defense,
a jury must find that the defendant reasonably believed he was about to be injured. He
went on to say, “There’s no evidence about what [Francisco] believed. No evidence at all
about what he believed.” Report of Proceedings (RP) (Sept. 22, 2016 & Oct. 4, 2016) at
41.
A jury found Francisco guilty of five misdemeanors: third degree malicious
mischief—domestic violence, fourth degree assault—domestic violence, and three counts
of reckless endangerment—domestic violence. The court sentenced Francisco to 364
days with 94 days suspended.1 The court also imposed a two-year NCO with respect to
Mendoza. Francisco did not object to the term of the NCO.
The court also inquired into Francisco’s ability to pay LFOs. The court asked
Francisco about his employment history, whether he would regain employment following
release from jail, his income, his assets, his number of dependents, and his child support
obligations. Francisco stated that he believed he would be taken back by his employer
when released from jail and that he earned approximately $2,000 to $2,500 per month.
1
The court did not specify the term or conditions of the suspended sentence.
Neither party has raised this as an issue for review.
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State v. Francisco
The court reduced Francisco’s obligation to pay for his wife’s medical bills and capped
Francisco’s total per diem incarceration fees at $500. The court also required Francisco
to pay $300 toward his court-appointed attorney fees, and $250 for the jury fee.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Francisco argues that the evidence was insufficient to support the three convictions
of reckless endangerment with respect to his children. He claims that because the
window was made of safety glass, the evidence did not support that his act of breaking
the rear window created a considerable risk of death or serious physical pain or injury to
his children.
In a criminal case, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When a defendant challenges the
sufficiency of the evidence, the proper inquiry 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. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068
(1992). “[A]ll reasonable inferences from the evidence must be drawn in favor of the
State and interpreted most strongly against the defendant.” Id. Furthermore, “[a] claim of
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No. 34781-8-III
State v. Francisco
insufficiency admits the truth of the State’s evidence and all inferences that reasonably
can be drawn therefrom.” Id. In a challenge to the sufficiency of the evidence,
circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150
Wash. 2d 774, 781, 83 P.3d 410 (2004). This court’s role is not to reweigh the evidence and
substitute its judgment for that of the jury. State v. Green, 94 Wash. 2d 216, 221, 616 P.2d
628 (1980) (plurality opinion). There is sufficient evidence to support a conviction
“when viewed in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” State v. Aguilar,
153 Wash. App. 265, 275-76, 223 P.3d 1158 (2009).
Under RCW 9A.36.050(1), “[a] person is guilty of reckless endangerment when he
or she recklessly engages in conduct not amounting to drive-by shooting but that creates a
substantial risk of death or serious physical injury to another person.” Francisco asserts
that the substantial risk of death or serious physical injury is not supported by substantial
evidence. We disagree.
Here, there was sufficient evidence for a rational trier of fact to find a substantial
risk of serious physical injury beyond a reasonable doubt. In at least two ways, each of
the children sitting in the back seat of the car could have been seriously injured when
Francisco shattered the back window with the metal bar. First, a piece of flying glass
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No. 34781-8-III
State v. Francisco
easily could have gone into a child’s eyes, causing permanent eye damage. Second, the
metal bar easily could have pierced the glass and struck a child in the head, causing
severe injury. For these reasons, we hold that sufficient evidence supports the
convictions for the crime of reckless endangerment—domestic violence.
B. NO PROSECUTORIAL MISCONDUCT
Francisco first argues that the prosecutor committed misconduct by shifting the
burden of proof on his claim of self-defense.
“To prevail on a claim of prosecutorial misconduct, the defendant must establish
that the prosecutor’s conduct was both improper and prejudicial in the context of the
entire record and the circumstances at trial.” State v. Thorgerson, 172 Wash. 2d 438, 442,
258 P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164
Wash. 2d 174, 191, 189 P.3d 126 (2008)).
In closing, the prosecutor argued:
[T]his is self-defense. . . . I’ve got to disprove this beyond a reasonable
doubt, . . . that there’s self-defense. . . . The use of force is okay if it’s used
by a person who reasonably believes he’s about to be injured. . . . [A]nd
they can’t use any more force than necessary. Okay, here’s one thing we
have no evidence about and that is that for there to be self-defense, you
have to be able to find that—that he believed he’s about to be injured.
What’s the evidence of that? There’s no evidence about what he believed.
No evidence at all about what he believed. I would suggest that you stop
right there. You know, if you want to go—if you want to go a step
further—and there’s no reason why you should. I think you’d just have to
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State v. Francisco
speculate. I would argue to you you’d just have to speculate in order to—to
say that he believed he was about to be injured because we don’t know what
he believed. No evidence about that whatsoever about what he really
actually believed—what was in his mind at that time.
RP (Sept. 22, 2016 & Oct. 4, 2016) at 41-42. Later, in rebuttal, the prosecutor argued:
And once again, no evidence that he actually believed that he was going to
be harmed. No evidence of that at all. It’s just a distraction I would suggest
to you. It’s a—you’d have to speculate to be able—to find self-defense in
this case.
RP (Sept. 22, 2016 & Oct. 4, 2016) at 57.
To obtain a jury instruction on self-defense, the defendant must produce some
evidence demonstrating self-defense. State v. Walden, 131 Wash. 2d 469, 473, 932 P.2d
1237 (1997). Once the defendant produces some evidence, the burden shifts to the State
to disprove self-defense beyond a reasonable doubt. Id. “The mere mention that defense
evidence is lacking does not constitute prosecutorial misconduct or shift the burden of
proof to the defense.” State v. Jackson, 150 Wash. App. 877, 885-86, 209 P.3d 553 (2009).
In the context of the entire record, the prosecutor’s statements in closing did not
improperly shift the burden of proof to the defendant. Here, the prosecutor explicitly
acknowledged that the State carried the burden to disprove the claim of self-defense
beyond a reasonable doubt.
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No. 34781-8-III
State v. Francisco
Francisco relies on State v. Toth, 152 Wash. App. 610, 217 P.3d 377 (2009). There,
we held that the State improperly shifted the burden to the defendant in a felony driving
under the influence trial by stating that the defendant should have produced corroborating
evidence by calling a specific witness to testify. Id. at 615. Contrary to the State’s
comments in Toth, here the prosecutor commented that the defendant’s evidence of self-
defense was lacking.
Francisco next argues that the prosecutor committed misconduct by commenting
on his Fifth Amendment right not to testify at trial.
The test to determine if a defendant’s Fifth Amendment to the United States
Constitution right has been violated is whether the prosecutor’s statement was of such
character that the jury would naturally and necessarily accept it as a comment on the
defendant’s failure to testify. State v. Ramirez, 49 Wash. App. 332, 336, 742 P.2d 726
(1987). “The prosecutor may state that certain testimony is undenied, without reference
to who could have denied it.” Id. Furthermore, the prosecutor may comment that the
evidence is undisputed when the comments are so brief and subtle that they do not
emphasize the defendant’s silence. Id.
When the defendant fails to object to the prosecutor’s conduct at trial, it will only
constitute prosecutorial misconduct if the remark is “so flagrant and ill-intentioned that it
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No. 34781-8-III
State v. Francisco
evinces an enduring and resulting prejudice that could not have been neutralized by an
admonition to the jury.” State v. Stenson, 132 Wash. 2d 668, 726-27, 940 P.2d 1239 (1997).
Here, an argument can be made that the prosecutor’s statements are sufficiently
flagrant and ill-intentioned to meet this high standard. Five times the prosecutor
emphasized that there was no evidence of what Francisco actually believed. Only
Francisco could testify what he believed. The State does not explain how the trial court
could have admonished the jury to sufficiently neutralize these improper and repeated
statements. On the other hand, an argument can be made that the defense itself required
testimony from the defendant. Viewed in this context, the prosecutor’s repeated
statements were proper.
Even if we assume the statements were improper, we conclude that Francisco has
failed to establish that the prosecutor’s statements were prejudicial. Here, there simply
was no evidence that Francisco struck Mendoza multiple times in the face because he
reasonably feared for his own safety. Contrary to Francisco’s arguments, there is no
evidence that he hit Mendoza because Mendoza had rocked him off the car, or because
Mendoza had pushed Francisco’s mother, or because Mendoza was armed with a baseball
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No. 34781-8-III
State v. Francisco
bat.2 Instead, the evidence shows that Francisco struck Mendoza in the face multiple
times because he wanted Mendoza to give him the car keys so he could flee. In the
context of the entire record, we cannot conclude that the prosecutor’s arguably improper
statements were prejudicial.
C. THE TWO-YEAR NCO WAS AUTHORIZED BY RCW 3.66.068
Citing State v. Armendariz, 160 Wash. 2d 106, 120, 156 P.3d 201 (2007), Francisco
argues that the trial court erred when it imposed an NCO beyond one year, the maximum
term of his sentence.3 Armendariz is inapposite. The holding there was based on the
court’s construction of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.
Here, the trial court did not sentence Francisco under the SRA. Francisco’s convictions
all involved nonfelonies.
RCW 3.66.068(1) provides, in relevant part:
A court has continuing jurisdiction and authority to suspend the execution
of all or any part of its sentence upon stated terms . . . for a period not to
exceed:
2
Francisco’s mother testified that after her son fled, Mendoza “grabbed [her] and
pushed [her].” RP (Sept. 19-21, 2016) at 138. She also testified that her son told her
Mendoza “wanted to hit [his] car with [a] bat.” RP (Sept. 19-21, 2016) at 143. She did
not testify that Mendoza hit her son or threatened to hit her son with a bat.
3
The State contends that Francisco may not raise this claim of error for the first
time on appeal. We disagree. Illegal or erroneous sentences can be challenged for the
first time on appeal. State v. Bahl, 164 Wash. 2d 739, 744, 193 P.3d 678 (2008).
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No. 34781-8-III
State v. Francisco
(a) Five years after imposition of sentence for a defendant sentenced
for a domestic violence offense . . . .
RCW 3.66.068(5) defines “domestic violence offense” as a “crime listed in
RCW 10.99.020 that is not a felony offense.” RCW 10.99.020(5) provides:
“Domestic violence” includes . . . the following crimes when committed by
one family or household member against another:
....
(d) Assault in the fourth degree.
Chapter 3.66 RCW concerns the jurisdiction and venue of district courts. It is
therefore fair to construe RCW 3.66.068 as applying specifically to district courts.
Construed in this manner, RCW 3.66.068 gives district courts authority to suspend, upon
stated terms, the sentence of a person convicted of a nonfelony domestic violence offense
for up to five years. A common term or condition of suspension is for the defendant to
comply with an NCO. In this manner, a district court has authority to enter an NCO for
up to five years to protect victims of domestic violence.
We can think of no reason for a superior court to have less authority than a district
court relative to sentencing defendants convicted of nonfelony offenses. We note that
RCW 2.08.010 empowers superior courts with original jurisdiction over several matters,
including “all cases of misdemeanor not otherwise provided for by law.” Here, the
superior court had original jurisdiction over the misdemeanor offenses because they were
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No. 34781-8-III
State v. Francisco
charged with a felony offense, thus elevating the prosecution of all offenses to superior
court. Given the authority granted in RCW 2.08.010, we construe RCW 3.66.068(1)(a) as
giving superior courts the same authority as district courts when imposing nonfelony
sentences.
Although the superior court had authority to suspend a portion of the sentence and
retain jurisdiction for up to five years, it is unclear whether the trial court retained
jurisdiction to enforce the NCO here. Compare RCW 9.95.210(1)(a) with State v.
Granath, 200 Wash. App. 26, 401 P.3d 405, review granted, 189 Wash. 2d 1009, 402 P.3d
823 (2017). That question is not before us, and we decline to address it.
D. DECLINE REVIEW OF THIS UNPRESERVED CLAIM OF LFO ERROR
Francisco contends the trial court conducted an insufficient inquiry into his ability
to pay discretionary LFOs because the inquiry failed to disclose that he had over $15,000
in prior LFOs.
Francisco failed to object to the trial court’s imposition of discretionary LFOs. In
State v. Blazina, 182 Wash. 2d 827, 832, 344 P.3d 680 (2015), the court recognized that a
defendant who makes no objection to the imposition of discretionary LFOs at sentencing
is not automatically entitled to review. One purpose for requiring an objection is to
inform the trial court of legal error at a time when the error might be corrected. Id. at
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No. 34781-8-III
State v. Francisco
832-33. Each court must exercise its discretion whether to review an unpreserved claim
of LFO error. Id. at 835.
Here, the trial court asked Francisco about his financial status, including his
employment history, whether he could return to his job following release from jail, his
income, his assets, the number of his dependents, and his child support obligations.
Francisco told the trial court that he thought he could return to his previous job when
released from jail and that he earned approximately $2,000 to $2,500 per month. The trial
court then thoughtfully reduced various obligations and limited others. We do not fault
the trial court for failing to ask more extensive questions. After these initial questions, we
believe it was incumbent on Francisco to speak up. Because the trial court conducted a
reasonable inquiry and made thoughtful reductions to the LFOs proposed by the State, we
exercise our discretion and decline to review this unpreserved claim of LFO error.
APPELLATE COSTS
Francisco requests that we deny the State an award of appellate costs in the event
the State substantially prevails. The State represents it will not seek costs. We hold it to
its representation.
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No. 34781-8-III
State v. Francisco
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.
Lawrence-B~rrey, C.J.'
c..~.
WE CONCUR:
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No. 34781-8-III
State v. Francisco
No. 34 781-8-III
SIDDOWAY, J. (concurring in the result)- I believe the prosecutor committed
misconduct by making statements that jurors could reasonably understand as meaning
that direct evidence of Mr. Francisco's state of mind-evidence only he could provide-
was required and missing in his case. But it cannot reasonably be argued that the
prosecutor's statements were sufficiently flagrant and ill-intentioned to meet the
heightened standard of review that applies when there was no objection at trial.
This is not a case in which "no curative instruction would have obviated any
prejudicial effect on the jury." State v. Thorgerson, 172 Wash. 2d 438, 455, 258 P.3d 43
(2011 ). Jurors had received instruction that Mr. Francisco was "not required to testify"
and they "may not use the fact that [he] has not testified to infer guilt or to prejudice him
in any way." Clerk's Papers (CP) at 100 (Jury Instruction 5). They had been instructed
on the difference between direct and circumstantial evidence and that one was not
necessarily more or less valuable than the other. CP at 98 (Jury Instruction 3). Had Mr.
Francisco's lawyer objected, the trial court could have reminded jurors or clarified the
fact that the State was required to disprove self-defense from the evidence presented-not
as an inference from the fact that Mr. Francisco did not personally testify to his state of
mind. For these reasons, I concur in the result.
1