State Of Washington v. Francisco Javier Escobedo

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 78310-6-I
V.
UNPUBLISHED OPINION
FRANCISCO JAVIER ESCOBEDO,
Appellant. FILED: December23, 2019
DWYER, J. — Francisco Escobedo was charged with murder in the second
degree and unlawful possession of a firearm in the second degree. A jury found
him guilty on the first count; he waived his right to a jury trial on the second count
and was found guilty by the trial court. He appeals both convictions. As to the
first count, he contends that the trial court abused its discretion by not giving a
jury instruction on justifiable homicide. As to the second count, he avers that an
out-of-state conviction that served as the predicate offense for the charge of
unlawful firearm possession is not comparable to any Washington felony.
Finally, in a statement of additional grounds, he assigns error to an evidentiary
ruling at his murder trial.1 Finding no error, we affirm.
In his opening brief, Escobedo challenged the imposition of a filing fee and a
deoxyribonucleic acid (DNA) test collection fee. However, in his reply brief, he concedes that the
filing fee was never imposed and that he has no basis to challenge the DNA fee, thus abandoning
the claims.
No. 78310-6-1/2
Francisco Escobedo hosted Alize Gonzalez, Teyanna Palms, and Justin
Cunningham at his apartment in Auburn on the night of November 9, 2015. They
smoked methamphetamine. Gonzalez was also smoking heroin. Upon the
exhaustion of her heroin supply, and her failure to reach her dealer in the early
hours of November 10, Gonzalez became upset with Escobedo and began
arguing with him.
Gonzalez made a phone call to some unknown individuals, inviting them
to rob Escobedo’s apartment. After the call she told Escobedo that the people
she had invited over could kill him. Gonzalez did not make any subsequent
phone calls. Escobedo then insisted that he would take the three of them home,
but Gonzalez refused to leave. After further argument between Escobedo and
Gonzalez, she indicated that she would leave, at which point Escobedo said,
“No, you ain’t going nowhere.” When Escobedo again told Gonzalez she could
not leave, she pushed him. Escobedo immediately produced a semi-automatic
handgun from his pants pocket and racked the gun’s slide.
This prompted Gonzalez, who was about seven inches shorter and 80
pounds lighter than Escobedo, to call him a “bitch” for threatening her with a gun.
She approached Escobedo and attempted to strike his face. It is not clear
whether she succeeded in doing so before Escobedo raised his weapon, pointed
the barrel at Gonzalez from mere inches away, and pulled the trigger. Gonzalez
was killed instantly; the force of the projectile not only severed her spinal cord but
threw her head back against a wall before her body collapsed to the floor.
2
No. 78310-6-1/3
Escobedo stood over Gonzalez’s lifeless body, repeating a phrase to the
effect of ‘see what you made me do,” as Cunningham entered the room.
Cunningham attempted to talk Escobedo out of his anger and told him to dispose
of the firearm, but Escobedo, undeterred and unaware that Gonzalez had
perished, mused that Gonzalez would “snitch” if he left. Eventually, Cunningham
convinced Escobedo to leave. Cunningham and Palms then fled the apartment,
leaving Gonzalez’s body inside.
Later, Escobedo returned to his apartment and, around 3:00 am., moved
Gonzalez’s body into the trunk of his vehicle for a drive to Kent, where he
discarded the body in a residential alleyway. Later that day, around 2:00 p.m.,
Palms telephoned Auburn police to report the killing. Gonzalez’s body was
discovered by passersby around 4:00 p.m. After speaking with Palms, police
obtained a warrant and searched Escobedo’s apartment. Escobedo was
arrested the following morning upon arriving to work his shift at a Burger King
restaurant. He was charged with murder in the second degree.
The information was subsequently amended to add a charge of unlawful
possession of a firearm in the second degree based on Escobedo’s 2004 felony
conviction in California. Escobedo had then pled guilty to “unlawful taking or
driving of a vehicle,” proscribed by California Vehicle Code § 10851(a). The trial
court ruled that this offense was comparable to the Washington felony of taking
of a motor vehicle without permission in the second degree, as set out in RCW
9A.56.075. Escobedo waived his right to a jury trial on this count. The court
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No. 78310-6-1/4
found beyond a reasonable doubt that the California conviction was Escobedo’s,
rendering his possession of a firearm unlawful, and entered a finding of guilt.
At the jury trial on the count of murder in the second degree, Escobedo
testified in his own defense. He insisted that he was never afraid of the
unarmed, 19-year-old Gonzalez but, rather, that he was afraid that the individuals
she purportedly invited over might rob or kill him. As he stated during his direct
examination:
Q. [By defense counsel]: Why did you draw that gun?
A. [Defendant]: I drew it because I was scared somebody was going
to rob me.
Q. Were you scared that Alize herself was going to rob you?
A. No.
Q. Who was it that you were afraid was going to rob you?
A. The other people that were on the other side of the phone call.
Q. The other people—no one eventually showed up, as it turned
out?
A. No.
Q. Are you afraid that Alize herself was going to kill you?
A. No.
Q. Are you afraid that she’s going to seriously injure you?
A. No.
Q. Are you afraid that someone might seriously injure you?
A. Yes.
Q. And that’s the people coming up the stairs?
A. Yes.
Escobedo also insisted that he did not intend to shoot Gonzalez—rather,
he claimed that he pointed the weapon toward the door in anticipation of a
robbery and that it discharged when he pushed Gonzalez’s hand away and her
hand touched the trigger:
Q. [By defense counsel] Are you trying to pull that arm back, the
arm with the gun that she’s grabbing?
A. [Defendant] Yes.
Q. So are you just pulling back with your arm or also pulling your
body to one side or the other?
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No. 78310-6-1/5
A. I’m pushing her off. At the same time when I felt my hand
coming forward, I tried pulling it back too.
Q. Just pulling your hand back, or are you also leaning back or
twisting or anything like that?
A. I’m not really sure how to describe that. I know I’m pushing her
off. At the same time the hand is going forward, but at the same
time I’m pushing her off and trying to pull the gun back.
Q. You can sit down, Mr. Escobedo. Thank you. So you
intentionally shoot her through the neck?
A. No.
Q. Do you intentionally shoot next to her to try to scare her off?
A. No.
Q. Thegungoesoff?
A. Yes.
Q. She falls to the ground?
A. Yes.
Q. Do you think she’s dead right at that moment?
A. Not at the moment.
Q. Why?
A. I wasn’t sure if she got hit or not.
Q. How can you not be sure that she got hit?
A. Because I wasn’t pointing the gun at her.
The State requested the following jury instruction regarding the definition
of murder in the second degree:
A person commits the crime of murder in the second degree
when he commits or attempts to commit Assault in the Second
Degree and in the course of and in furtherance of such crime he or
she causes the death of a person other than one of the participants.
This proposed instruction was identical to that which was given to the jury.
The State’s proposed instructions defining assault included a self-defense
definition, acknowledging that there was some evidence Escobedo drew the
weapon in fear. These instructions, when given by the trial court to the jury, read
as follows:
An assault is an intentional shooting of another person that
is harmful or offensive regardless of whether any physical injury is
done to the person. A shooting is offensive if the shooting would
offend an ordinary person who is not unduly sensitive.
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No. 78310-6-1/6
Instruction 17.
An assault is also an act, with unlawful force, done with the
intent to create in another apprehension and fear of bodily injury,
and which in fact creates in another a reasonable apprehension
and imminent fear of bodily injury even though the actor did not
actually intend to inflict bodily injury.
Instruction 19.
It is a defense to Assault in the Second Degree, when the
assault with a deadly weapon was committed in the manner defined
in instruction 19, that the force used, attempted or offered to be
used was lawful as defined in this instruction.
The use of, attempt to use or offer to use force upon or
toward the person of another is lawful when used, attempted or
offered, by a person who reasonably believes that he is about to be
injured in preventing or attempting to prevent an offense against the
person, and when the force is not more than is necessary.
The person using or offering to use the force may employ
such force and means as a reasonably prudent person would use
under the same or similar conditions as they appeared to the
person, taking into consideration all of the facts and circumstances
known to the person at the time of and prior to the incident.
The State has the burden of proving beyond a reasonable
doubt that the force used, attempted, or offered to be used by the
defendant was not lawful. If you find that the State has not proved
the absence of this defense beyond a reasonable doubt, it will be
your duty to return a verdict of not guilty.
Instruction 20.
As it pertains to instructions 19 and 20, necessary means
that, under the circumstances as they reasonably appeared to the
actor at the time, (1) no reasonably effective alternative to the use
of force appeared to exist and (2) the amount of force used was
reasonable to effect the lawful purpose intended.
A person is entitled to act on appearances in defending
himself, if he believes in good faith and on reasonable grounds that
he is in actual danger of injury, although it afterwards might develop
that the person was mistaken as to the extent of the danger. Actual
danger is not necessary for the use of force to be lawful.
It is lawful for a person who is in a place where that person
has a right to be and who has reasonable grounds for believing that
he is being attacked to stand his ground and defend against such
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No. 78310-6-1/7
attack by the use of lawful force. Notwithstanding the requirement
that lawful force be “not more than is necessary,” the law does not
impose a duty to retreat. Retreat should not be considered by you
as a “reasonably effective alternative.”
Instruction 21.
The court declined to give Escobedo’s proposed justifiable homicide
instruction, stating:
In this Court’s opinion, given all of the evidence, there is no
legitimate evidence of an intentional shooting that would support [a]
justifiable [homicide] defense. I do not believe it is a legitimate
defense based on the evidence. And as such, this Court is not
going to present it to the jury for consideration.
The jury found Escobedo guilty of murder in the second degree, and the
court imposed a term of 270 months of confinement to be followed by 36 months
of community custody. Escobedo appeals.
Escobedo first contends that the trial court erred when it declined to give a
jury instruction on the defense of justifiable homicide. This decision, he avers,
was an abuse of discretion that compromised his ability to present his theory of
the case, thus denying him a fair trial. To the contrary, because a justifiable
homicide instruction was not supported by the evidence and because Escobedo
was not actually prevented from arguing his theory of the case under the
instructions given, there was no abuse of discretion and no error.
“Jury instructions satisfy the defendant’s Sixth Amendment right to a fair
trial if, taken as a whole, they accurately inform the jury of the relevant law and
permit each party to argue their theory of the case.” State v. Henderson, 192
Wn.2d 508, 512, 430 P.3d 637 (2018). A trial court’s refusal to issue a requested
7
No. 7831 0-6-1/8
instruction, when based on the evidence in the case, is reviewed for abuse of
discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trial
court abuses its discretion only when its decision is “manifestly unreasonable or
based upon untenable grounds or reasons.” State v. Powell, 126 Wn.2d 244,
258, 893 P.2d 615 (1995). If any element of such an instruction is not supported
by the evidence, the defendant cannot present the theory to the jury. State v.
Griffith, 91 Wn.2d 572, 575, 589 P.2d 799 (1979).
A defendant is entitled to an instruction on justifiable homicide only when
evidence is introduced that the killing occurred in circumstances amounting to a
justifiable homicide. State v. Briqhtman, 155 Wn.2d 506, 520, 122 P.3d 150(2005). Washington law defines justifiable homicide, when committed in
resistance to an attempted felony, as follows:
Homicide is. . . justifiable when committed . .
(1) In the lawful defense of the slayer, or his or her husband,
wife, parent, child, brother, or sister, or of any other person in his or
her presence or company, when there is reasonable ground to
apprehend a design on the part of the person slain to commit a
felony or to do some great personal injury to the slayer or to any
such person, and there is imminent danger of such design being
accomplished; or
(2) In the actual resistance of an attempt to commit a felony
upon the slayer.
RCW 9A.16.050.
Under either subsection, a justifiable homicide instruction “requires a jury
to find that the defendant reasonably believed the person slain (or others who the
defendant reasonably believed were acting in concert with the person slain)
8
No. 78310-6-119
intended to commit a felony or to inflict death or great personal injury.”
Henderson, 192 Wn.2d at 513. As the Supreme Court stated in Briqhtman:
RCW 9A.16.050(1) contemplates justifiable homicide where the
defendant reasonably fears the person slain is about to commit a
felony upon the slayer or inflict death or great personal injury, and
there is imminent danger that the felony or injury will be
accomplished. [RCW] 9A.16.050(1). In contrast, RCW
.~
9A.16.050(2) considers a homicide justifiable where the defendant
acted in actual resistance against an attempt to commit a felony on
the slayer. . Thus, RCW 9A.16.050(2) addresses situations in
. .
which a felony or attempted felony is already in progress.
155 Wn.2d at 520-21.
As to the imminent danger requirement of RCW 9A.16.050(1),
“[ijmminence does not require an actual physical assault. A threat, or its
equivalent, can support self-defense when there is a reasonable belief that the
threat will be carried out.” State v. Janes, 121 Wn.2d 220, 241, 850 P.2d 495(1993) (citation omitted).
There is some evidence in the record supporting Escobedo’s fear that
Gonzalez had solicited others who might rob or kill him—Gonzalez told him as
much. In Escobedo’s own testimony he claimed that he saw his apartment door
open and heard Gonzalez giving an apartment entry code to Escobedo’s would-
be attackers. Escobedo testified that he was not fearful of Gonzalez herself but
only of the people she purportedly solicited to rob his apartment. Escobedo also
testified to being wary of Gonzalez’s gang connections. Although Escobedo
testified that the shooting was accidental, undercutting the notion of an
intentional killing in self-defense, Palms and Cunningham both testified that
Escobedo deliberately aimed the gun at Gonzalez and fired.
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No. 78310-6-1/10
However, even viewed in the light most favorable to Escobedo, this
evidence does not support the notion that Escobedo held an objectively
reasonable belief that there was an imminent danger of a felony assault that
necessitated intentionally killing Gonzalez. Escobedo repeatedly testified that he
was not afraid of Gonzalez but of her friends. She was not armed, she was
much smaller than Escobedo, and she was not on the phone with the would-be
attackers when her final argument with Escobedo took place. Even if a scheme
existed, there is simply no evidence that killing Gonzalez was necessary to
prevent her from carrying it out. Escobedo, in fact, never argued as such—his
theory of the case was always that the shooting was not intentional.
Thus, the trial court’s ruling was based on tenable reasoning—the
instruction sought was not warranted by the evidence adduced. The self-defense
instruction that was given adequately and properly informed the jury of the
applicable law regarding when assault is justifiable as a matter of self-defense.
The instructions given allowed Escobedo to argue his theory of the case.
In his closing argument, Escobedo’s attorney stated that “even actually if he
pointed the gun, he is entitled to do that in self-defense” because of Gonzalez’s
threats, and that “if somebody is going to kill you, you’re allowed to do that.” His
attorney also reiterated Escobedo’s contention that the gun discharged
accidentally due to Gonzalez making contact with him. Had the jury believed that
Escobedo acted in fear for his life, and that Gonzalez’s sudden movement
caused the gun to discharge, it could not have convicted him under the
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No. 78310-6-I/Il
instructions given. The trial court did not err by declining to give a justifiable
homicide instruction.
Ill
Escobedo next contends that the predicate offense for his conviction of
unlawful possession of a firearm, his 2004 felony conviction in California for the
unlawful taking of a motor vehicle, was not comparable to the Washington felony
of taking a motor vehicle without permission. This is so, he asserts, because
California’s statute has a broader definition of the crime than does Washington’s.
Because the California statute in fact defines the crime more narrowly than
Washington’s comparable statute, Escobedo’s argument fails.
Pursuant to Washington law, a person commits unlawful possession of a
firearm in the second degree
if the person does not qualify. for the crime of unlawful
. .
possession of a firearm in the first degree and the person owns,
has in his or her possession, or has in his or her control any
firearm:
(i) After having previously been convicted . in this state or
. .
elsewhere of any felony not specifically listed as prohibiting firearm
possession under subsection (I) of this section.
RCW 9.41 .040(2)(a).
Typically, in reviewing an out of state conviction, the trial court conducts a
comparability analysis in which “[o]ut-of-state convictions are classified according
to the comparable offense definitions and sentences provided in Washington
law.” State v. Stevens, 137 Wn. App. 460, 465, 153 P.3d 903 (2007) (citing
RCW 9.94A.525(3)). The comparability analysis for the predicate “serious
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No. 78310-6-1112
offense” element for unlawful possession of a firearm is the same comparability
analysis as is used for classifying prior out-of-state convictions in determining a
defendant’s offender score at sentencing. RCW 9.94A.525(3); see Stevens, 137
Wn. App. at 465 (unlawful possession of a firearm); see also State v. Arndt, 179
Wn. App. 373, 378-79, 320 P.3d 104 (2014) (offender score).
The principal inquiry for determining the comparability of an out-of-state
conviction is whether the defendant could have been convicted under a
Washington statute for the same conduct. State v. Thiefault, 160 Wn.2d 409,
414-15, 158 P.3d 580 (2007) (classifying out-of-state convictions for purposes of
persistent offender sentencing). A comparability analysis covers (1) ‘legal
comparability,” and (2) “factual comparability.” Arndt, 179 Wn. App. at 378-79.
For “legal comparability,” the court compares the elements of the out-of-state
crime to those of the relevant Washington crime to determine if they are
“substantially similar.” Thiefault, 160 Wn.2d at 415. Only if legal comparability is
not established do we reach the question of factual comparability. See Arndt,
179 Wn. App. at 379.
“If the foreign conviction is identical to or narrower than the Washington
statute and thus contains all the most serious elements of the Washington
statute, then the foreign conviction counts toward the offender score as if it were
the Washington offense.” State v. Olsen, 180 Wn.2d 468, 472-73, 325 P.3d 187(2014). “If the elements of the foreign offense are broader than the Washington
counterpart, the sentencing court must then determine whether the offense is
factually comparable—that is, whether the conduct underlying the foreign offense
12
No. 78310-6-1/13
would have violated the comparable Washington statute.” Thiefault, 160 Wn.2d
at 415.
A statute is narrower than another if it contains an additional essential
element that the other statute does not. See In re Pers. Restraint of Lavery, 154
Wn.2d 249, 255-56, 111 P.3d 837 (2005) (holding Washington robbery statute to
be narrower than federal statute because former required specific intent to steal
while latter did not). At the time of Escobedo’s 2004 conviction, California
Vehicle Code § 10851 (a) stated:
Any person who drives or takes a vehicle not his or her own,
without the consent of the owner thereof, and with intent either to
permanently or temporarily deprive the owner thereof of his or her
title to or possession of the vehicle, whether with or without intent to
steal the vehicle, or any person who is a party or an accessory to or
an accomplice in the driving or unauthorized taking or stealing, is
guilty of a public offense and, upon conviction thereof, shall be
punished by imprisonment in the state prison for 16 months or two
or three years or a fine of not more than ten thousand dollars
($10,000), or both, or by imprisonment in the county jail not to
exceed one year or a fine of not more than one thousand dollars
($1,000), or both.
At that time Washington’s RCW 9A.56.075 stated:
(1) A person is guilty of taking a motor vehicle without
permission in the second degree if he or she, without the
permission of the owner or person entitled to possession,
intentionally takes or drives away any automobile or motor vehicle,
whether propelled by steam, electricity, or internal combustion
engine, that is the property of another, or he or she voluntarily rides
in or upon the automobile or motor vehicle with knowledge of the
fact that the automobile or motor vehicle was unlawfully taken.
(2) Taking a motor vehicle without permission in the second
degree is a class C felony.
Thus, California’s statute required that the perpetrator intend to deprive
the owner of “title to or possession of the vehicle,” while Washington’s did not.
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No. 78310-6-1/14
“[T]he [Washingtonj statute simply requires that the defendant (1) intentionally
take the vehicle of another (2) without permission.” State v. Walters, 162 Wn.
App. 74, 86, 255 P.3d 835 (2011) (citing ROW 9A.56.075(1)).
Escobedo avers that California defines the offense more broadly because,
under its statute, the defendant may act with intent “either to permanently or
temporarily deprive” the owner of title to or possession of the vehicle, while
Washington does not require any such intent. This argument is meritless. The
existence of an additional element in the California statute, however qualified that
element may be, renders the California statute narrower than Washington’s. The
State of California was required to prove beyond a reasonable doubt that
Escobedo (1) drove or took a vehicle (2) without consent of the owner and (3)
with intent to deprive. Were Escobedo to have been charged in Washington,
only the first two elements needed to be proved.
The California statute is narrower and, thus, is legally comparable to the
Washington statute. Therefore, we need not reach the question of factual
comparability of the offenses. Arndt, 179 Wn. App. at 378-79. The California
conviction was a sufficient predicate felony to support Escobedo’s conviction of
unlawful possession of a firearm in the second degree.
Iv
In a statement of additional grounds, Escobedo faults the trial court’s
decision to allow questioning as to his familiarity with gang culture. That decision
constituted reversible error, Escobedo avers, because this evidence was not
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No. 78310-6-1/15
relevant and because it constituted character evidence forbidden by ER 404(b).
However, Escobedo opened the door to such evidence with his own testimony.
The decision to admit or exclude evidence is within the sound discretion of
the trial court; such a decision should not be reversed absent a manifest abuse of
that discretion. State v. Iverson, 126 Wn. App. 329, 336, 108 P.3d 799 (2005). A
trial court abuses its discretion when its decision is manifestly unreasonable or
based on untenable grounds or untenable reasons. Powell, 126 Wn.2d at 258.
A court’s decision is manifestly unreasonable if it adopts a view “that no
reasonable person would take,” given the facts and applicable legal standard.
State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v.
Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)). It is based on untenable
grounds or reasons if the court applies the wrong standard or relies on
unsupported facts. State v. Depaz, 165 Wn.2d 842, 852, 204 P.3d 217 (2009).
To be admissible, evidence must be relevant. ER 402. Evidence is
relevant when it has any tendency to make the existence of any consequential
fact more probable or less probable than it would be without the evidence. ER
401. Facts that tend to establish a party’s theory or disprove or rebut an
opponent’s theory or evidence are relevant. Fenimore v. Donald M. Drake
Constr. Co., 87 Wn.2d 85, 89, 549 P.2d 483 (1976). Yet ER 404(b) categorically
bars the admission of evidence of prior misconduct or actions “for the purpose of
proving a person’s character and showing that the person acted in conformity
with that character.” State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207(2012).
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No. 78310-6-1/16
Exceptions to this rule exist.
Evidence of prior misconduct may be admissible if a party has
“opened the door” to the subject. . Using the open door refers to
. .
the practice of using evidence that would otherwise be inadmissible
to contradict evidence that probably should not have been admitted
when offered by the opposing party. The latter practice has been
aptly called “fighting fire with fire.”
The prosecution has often been allowed to cross-examine the
defendant about other crimes or misconduct, or has been allowed
to prove them by extrinsic evidence, on the theory that the
defendant’s testimony or other evidence “opened the door” to
evidence offered by the State.
5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE § 404.31 (6th ed. 2018).
Put more simply, “‘[tjhe long-standing rule in this state is that a criminal
defendant who places his character in issue by testifying as to his own past good
behavior, may be cross-examined as to specific acts of misconduct unrelated to
the crime charged.” State v. Warren, 134 Wn. App. 44, 64-65, 138 P.3d 1081(2006) (quoting State v. Brush, 32 Wn. App. 445, 448, 648 P.2d 897 (1 982)),
affd, 165 Wn.2d 17, 195 P.3d 940 (2008).
Such was the case here. Escobedo’s purported wariness of street gangs
and drug culture, and his association of Gonzalez, Cunningham, and Gonzalez’s
would-be accomplices with these phenomena was a significant component of his
theory of the case. He alluded to this several times during his direct examination:
Cunningham was a “to-go-to guy” for a drug dealer who would “take care of”
people who owed money to the dealer and gave Escobedo a “weird vibe,”
Escobedo owed money to that drug dealer, and Gonzalez was connected to a
gang and in contact with said dealer.
16
No. 78310-6-1117
The State sought to rebut the notion that Escobedo was fearful of gang
members by eliciting testimony about his past in the Logan Heights gang both in
San Diego and in Washington. Overruling Escobedo’s objection to eliciting this
testimony, the trial court stated:
Mr. Escobedo is claiming self-defense, which does put in
issue his subjective mindset, if you will, on the date in question in
terms of whether or not he was sufficiently in fear, if you will, to
explain or justify pulling out a semi-automatic handgun.
Recognizing that there is a theory that even though he did that, Ms.
Gonzalez grabbed the gun, therefore, it went off accidentally.
In listening to Mr. Escobedo’s testimony as it relates to the
issue of fear, his testimony suggests that Ms. Gonzalez may have
been a member of a gang. She certainly was an addict and was
using drugs, as were all of the people on the night or early morning
in question.
There was some testimony, and I’m not going to address it
specifically, but generally speaking, suggesting that Mr.
Cunningham had a reputation, the reputation being for gangs.
Talking about Jairo being a drug dealer. Casper involved in drugs.
Ms. Gonzalez getting on the phone and calling people to come over
and rob Mr. Escobedo.
Same type of person, if you will: Gang related, drug dealers,
people of the community, people who have a tendency towards
violence. And that he wakes up and he’s afraid.
I concur that Mr. Escobedo’s testimony certainly suggests
that he has minimal, if really any, involvement in gangs. Doesn’t
know much about them, if you will. And as a result, I do believe the
door has opened to some very limited things.
Subsequently, on Escobedo’s cross-examination, the State elicited
testimony as to Escobedo’s own membership in San Diego’s Logan Heights
gang. This included testimony that Escobedo considered fellow associates to be
his ‘family,” that he was familiar with street gangs’ violent methods of dispute
resolution, that he recruited younger members of his community into the gang,
and that the reason for his departure from the gang was not his distaste for the
lifestyle but his drug addiction.
17
No. 78310-6-1/18
From the record, it is clear that the trial court’s reasoning for allowing this
evidence—that Escobedo had opened the door to its admission—was tenable.
Escobedo’s testimony indicated discomfort with gangs and drug dealers, and the
State sought to rebut the notion put forth that he was innocent of or naïve about
gangs. Allowing this evidence was not an abuse of discretion. Thus, there was
no error.
Affirmed.
oij
WE CONCUR:
- -
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