Opinion
No. 63308-2-I.
January 10, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-1-07045-6, Mary E. Roberts, J., entered April 6, 2009.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Becker and Schindler, JJ.
Mario Hernandez appeals his convictions for drive-by shooting, first degree assault with a firearm enhancement, and first degree unlawful possession of a firearm. He primarily contends that the drive-by shooting statute, RCW 9A.36.045, is unconstitutionally vague as applied to him. Because Hernandez's conduct falls squarely within the statute's prohibitions and his remaining arguments lack merit, we affirm.
FACTS
On June 14, 2008, Mario Hernandez, Hector Hernandez, Serafin Guiterrez, and Teresa Lasley planned to go to a party in Kent. Mario was picked up by Serafin and sat behind the passenger's seat. Without the knowledge of the others, Mario was carrying a handgun in his waistband when he entered the car. When the group stopped at a gas station-convenience store, he surreptitiously hid the handgun underneath the front seat as the others left the car. Inside the convenience store, Mario bought and ate a hot dog. While standing in line to pay for it, he saw Edwin Sibaja enter the store with a group of people that included Israel Sibaja, Edwin's brother, and Jesus Parada Talamantes. Mario and Edwin greeted each other, the two having met in juvenile detention.
Because some of the people involved in this incident share the same last names, first names will be used for clarity. No disrespect is intended.
After seeing this exchange, Hector threw his gang sign by pulling down his shirt to show the word "Playboy" tattooed on his chest. When Edwin saw Hector displaying his sign, he left the store to avoid confrontation and joined the rest of his friends in the parking lot. Edwin's group included about 15 people. They had arrived in three cars and were on their way to a party in Burien.
Mario, Hector, Serafin, and Teresa then left the store and headed toward Serafin's car. Hector threw another gang sign. One person in Edwin's group, Fabian Moreno, responded with his gang sign. They began insulting each other, and Fabian began walking toward Hector. Serafin then joined in exchanging insults, and Israel also started walking toward Serafin's car. Edwin and others from his group, including Jesus, followed closely behind Israel. At trial, Jesus testified that either Mario, Hector, or Serafin yelled "187," communicating in gang language a death threat that refers to a provision of the California Penal Code.
Jesus believed the threat was directed at him for his participation in the murder of an Eastside Playboy gang member.
A video recording from the convenience store shows Mario getting in Serafin's car and then quickly getting back out. With both sides taunting each other and Edwin's group near Serafin's car, Israel punched Serafin. Serafin punched back, knocking Israel to the ground. At this point, the parties' accounts of the events diverge.
According to Mario and Serafin, someone from Edwin's group said, "Just shoot him." Mario saw Edwin draw a gun from his waist and point it at Serafin's head. Serafin, who was thrown off balance from his punch, also saw Edwin pull out "something" like a gun. Serafin heard a shot fired and felt a bullet graze his head. Mario watched Serafin fall to the ground and then saw Edwin turn the gun on him. Mario responded by pulling out his gun and firing twice at Edwin, who took off running. Mario's gun jammed, so he pulled back the slide to eject the unfired cartridge. He reached out to help Serafin but let him go when he saw Fabian running at him. Mario fired shots into the air until the clip was empty. Mario, Serafin, and Hector then fled, with Serafin driving. The three went to Serafin's home where his mother treated his head wound.
According to Edwin and others in his group, Serafin knocked Israel to the ground, and Edwin tried to intervene. Jesus heard a woman say that someone had a gun. Mario then shot Edwin in the abdomen. After Edwin was shot, people ran from the scene while several other shots were fired. Jesus and two women got into his car and drove away. After driving a short distance on the on ramp to southbound I-5, Jesus pulled over and saw Serafin's car drive past him.
Officers arrived at the scene within three to four minutes and found 15 to 20 Hispanic males and females standing in front of the store. They found Edwin on the ground, holding his stomach. After an officer frisked Edwin for weapons and found none, Edwin was transported to Harborview Medical Center. The officers searched the others at the scene and found no firearms. But they found five .22 shell casings and one unfired .22 cartridge at the scene. At trial, a forensic firearm examiner identified the casings and cartridge as the .22 caliber Remington brand. The examiner explained that when firing a semiautomatic weapon, a jam can occur, requiring the shooter to pull back the slide and eject the unfired cartridge. The examiner opined that all of the ejected casings came from the same gun.
Edwin underwent immediate surgery and spent four to five days in recovery.
The State charged Mario with drive-by shooting, first degree assault with a firearm enhancement, and first degree unlawful possession of a firearm. A jury found him guilty as charged. Mario received a standard range sentence of 129 months, plus a 60-month firearm enhancement.
ANALYSIS
Vagueness Challenge to RCW 9A.36.045
Mario contends that RCW 9A.36.045, the drive-by shooting statute, is unconstitutionally vague as applied to him.
A statute is presumed to be constitutional. The party challenging its constitutionality has the burden of proving this beyond a reasonable doubt. A statute is void for vagueness if it either fails to define a criminal offense with sufficient definiteness so that ordinary people can understand what conduct is prohibited or it does not provide ascertainable standards of guilt to protect against arbitrary enforcement. But "[t]he fact that some terms in a statute are not defined does not mean the enactment is unconstitutionally vague." Moreover, "some measure of vagueness is inherent in the use of language [so] impossible standards of specificity are not required." Rather, "[a] statute is void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its applicability." "A vagueness challenge to a statute not involving First Amendment rights is evaluated as applied, using the facts of the particular case." A defendant whose conduct clearly falls within the prohibitions of the statute lacks standing to challenge the constitutionality of the statute on vagueness grounds.
State v. Thorne, 129 Wn.2d 736, 769-70, 921 P.2d 514 (1996).
State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001).
State v. Lee, 135 Wn.2d 369, 393, 957 P.2d 741 (1998).
City of Seattle v. Abercrombie, 85 Wn. App. 393, 399, 945 P.2d 1132 (1997) (citations omitted).
Lee, 135 Wn.2d at 393.
State v. Russell, 69 Wn. App. 237, 245, 848 P.2d 743 (1993).
Lee, 135 Wn.2d at 393.
Mario was convicted of violating RCW 9A.36.045, which provides, in part,
(1) A person is guilty of drive-by shooting when he or she recklessly discharges a firearm as defined in RCW 9.41.010 in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.
(2) A person who unlawfully discharges a firearm from a moving motor vehicle may be inferred to have engaged in reckless conduct, unless the discharge is shown by evidence satisfactory to the trier of fact to have been made without such recklessness.
Specifically, Mario contends that RCW 9A.36.045 is unconstitutionally vague as applied to him because of the lapse in time between when he first left the vehicle that transported him to the crime scene and when he fired a gun from outside that vehicle several minutes later. As support, he cites State v. Locklear.
105 Wn. App. 555, 20 P.3d 993 (2001).
In Locklear, Division Two of this court held that RCW 9A.36.045 requires "a nexus between the use of a car and the use of a gun." The court described two ways in which RCW 9A.36.045 requires this nexus: "First, it requires that the car be used to transport the shooter or the gun to the `scene' of the shooting. Second, it requires that the gun be fired from inside the car or `from the immediate area' of the car." In footnote eight, the court noted,
Locklear, 105 Wn. App. at 560.
Locklear, 105 Wn. App. at 560.
This nexus is spatial. We note, parenthetically only, that a temporal nexus might also be required. Suppose a person drives his car to a friend's house and parks it for a week while he stays with the friend as an overnight guest. At the end of the week, he recklessly fires a gun into a house while standing next to his parked car. Does RCW 9A.36.045 criminalize his conduct as a drive-by shooting?
Locklear, 105 Wn. App. at 560 n. 8.
The court observed, "Undoubtedly, a person of ordinary intelligence would know without guessing that the required nexus exists when a shooter is transported to the scene in a car, gets out, and fires from within a few feet or yards of the car." The Locklear court added that "the term `immediate area of a motor vehicle' includes, at its core, the area within a few feet or yards of such motor vehicle." Applying these principles, the court determined that RCW 9A.36.045 was unconstitutionally vague as applied to the defendant who had fired shots two blocks away from the location of the car that was used to transport him to the crime.
Locklear, 105 Wn. App. at 560.
Locklear, 105 Wn. App. at 560.
Locklear, 105 Wn. App. at 556. Our Supreme Court in State v. Rodgers, 146 Wn.2d 55, 61-62, 43 P.3d 1 (2002), addressed the "immediate area" issue inLocklear as a sufficiency of the evidence challenge. The Rodgers court held,
If Locklear's culpability could be established merely by showing that he discharged a firearm from the "area" of Ishaq's motor vehicle or from the "area of town" that her vehicle was located in, then it might be said that the evidence supports Locklear's conviction. The drive-by shooting statute is, however, more narrowly drawn and requires the State to produce evidence that the firearm was discharged by the defendant from the "immediate area" of the vehicle which transported the shooter. It seems obvious that one is not in the immediate area of a vehicle that is parked two blocks away from the place where that person discharges a firearm.
Rodgers, 146 Wn.2d at 61-62.
Emphasizing footnote eight, Mario argues thatLocklear stands for the proposition that RCW 9A.36.045 requires both a spatial and temporal component. Without deciding whether the statute requires a temporal nexus, we note that this case does not present the concerns expressed in footnote eight of Locklear. In contrast to the passage of one week between leaving the car and firing of the gun posed in the footnote's hypothetical, Mario concedes that only several minutes passed from the time he first left the car and when he fired the gun. Moreover, he fired the gun immediately after returning to the car and retrieving it from the car he used to transport it to the scene. Mario's argument ignores that "[w]hen assessing vagueness in a case in which First Amendment rights are not involved, a court examines the actual facts rather than hypothetical facts." Mario's actions fall squarely within the conduct clearly prohibited by RCW 9A.36.045.
The report attached to the seconded amended information indicates that about 10 minutes passed.
Locklear, 105 Wn. App. at 559.
For similar reasons we reject Mario's contentions that the statute is vague as applied to him because (1) the "presence of the car was only incidental to the crime" and did not "facilitate the crime"; (2) the term "drive-by shooting" appears in the title and text of the statute and should be given its ordinary meaning, which is "carried out from a moving vehicle"; and (3) certain "drive-by shooting" statutes in other states contain spatial and temporal elements. These contentions fail because they reflect attempts to circumvent the plain, unambiguous language of RCW 9A.36.045. "`Courts may not read into a statute matters that are not in it and may not create legislation under the guise of interpreting a statute.'" The undisputed facts of this case establish the required nexus "between the use of a car and the use of a gun" required byLocklear. Serafin's car was used to transport Mario and the gun to the convenience store. And Mario fired several shots into the air several minutes later while standing in the immediate area of Serafin's car, immediately after retrieving the gun from that car. Because Mario's conduct falls squarely within the statute's prohibitions, RCW 9A.36.045 is not unconstitutionally vague as applied to him.
Cerrillo v. Esparza, 158 Wn.2d 194, 201, 142 P.3d 155 (2006) (quoting Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002)).
See Locklear 105 Wn. App. at 559 ("The statute is not unconstitutionally vague if the `defendant's conduct falls squarely within [its] prohibitions.'" (alteration in original) (quoting State v. Smith, 111 Wn.2d 1, 10, 759 P.2d 372 (1988))).
Firearm Enhancement
Mario argues that the firearm enhancement imposed by the court violates double jeopardy principles because use of a firearm is an element of first degree assault as charged. As Mario concedes in his briefing, State v. Kelley controls. InKelley, our Supreme Court has held that "imposition of a firearm enhancement does not violate double jeopardy when an element of the underlying offense is use of a firearm." Mario's argument fails.
168 Wn.2d 72, 226 P.3d 773 (2010).
Kelley, 168 Wn.2d at 84; see also State v. Aguirre, 168 Wn.2d 350, 367, 229 P.3d 669 (2010) ("Consistent with th[e] holding [in Kelley], adding a deadly weapon enhancement to Aguirre's sentence for second degree assault, an element of which is being armed with a deadly weapon, did not offend double jeopardy.").
Fifth Amendment Privilege
Mario contends that the trial court erred when it excused Hector from testifying, rather than requiring him to assert his Fifth Amendment privilege as to specific questions. Mario claims this deprived him of his constitutional right to compel the testimony of witnesses.
"Both the [S]ixth [A]mendment to the United States Constitution and the Washington Constitution protect a defendant's right to compel the testimony of witnesses." Opposing this right to compel a witness's testimony is the Fifth Amendment privilege prohibiting any person from being "`compelled in any criminal case to be a witness against himself.'" This privilege applies when the witness reasonably apprehends danger resulting from a direct answer.
State v. Levy, 156 Wn.2d 709, 731, 132 P.3d 1076 (2006) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)).
State v. Parker, 79 Wn.2d 326, 331, 485 P.2d 60 (1971); see also Levy, 156 Wn.2d at 731.
Levy, 156 Wn.2d at 731-32.
Generally, a witness may invoke the Fifth Amendment privilege only in response to specific questions. But "[i]f the judge has `specialized knowledge' of the likely testimony and can determine whether the privilege is properly asserted for that witness, the judge may allow the witness to refuse to answer all questions." In other words, "a narrow exception allowing a blanket privilege [exists] where `based on its knowledge of the case and of the testimony expected from the witness, [the trial court] can conclude that the witness could legitimately refuse to answer essentially all relevant questions.'" Determining the scope of the witness's privilege lies within the sound discretion of the trial court. A court abuses its discretion when it bases its decision on untenable grounds or reasons. When a trial court erroneously grants a blanket Fifth Amendment privilege, this court may affirm only if the error was harmless beyond a reasonable doubt.
Levy, 156 Wn.2d at 732.
Levy, 156 Wn.2d at 732 (citing United States v. Moore, 682 F.2d 853, 856 (9th Cir. 1982)).
State v. Delgado, 105 Wn. App. 839, 845, 18 P.3d 1141 (2001) (second alteration in original) (internal quotation marks omitted) (quoting Moore, 682 F.2d at 856).
State v. Lougin, 50 Wn. App. 376, 382, 749 P.2d 173 (1988).
State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Levy, 156 Wn.2d at 732 (citing Moore, 682 F.2d at 858).
Here, defense counsel sought Hector's testimony to support the contention that Mario shot Edwin in self-defense. The State and Hector's attorney pointed out that Hector was facing a felony charge of possession of a stolen firearm in another case with gang implications. They both noted that any evidence of gang involvement on Hector's part could lead to sentence enhancements. Defense counsel suggested limiting the scope of questioning to "what [Hector] saw and what he heard at the time of the incident." The trial court inquired extensively into this possibility, hearing testimony from Detective Joe Gagliardi from the King County Sheriff's Office gang unit, Mario Hernandez, and Edwin Sibaja. Gagliardi and Sibaja also reviewed the video of the incident. The testimony established that (1) Hector had instigated the incident by displaying the Playboy tattoo on his chest while inside the convenience store; (2) Hector continued his harassment outside the store by throwing his gang sign at Fabian, who responded by flashing a gang sign; and (3) either Hector, Mario, or Serafin had yelled the death threat "187."
At the conclusion of the hearing, defense counsel admitted, "I cannot bring in Hector any longer, at least I don't believe I'll be able to bring in Hector any longer, to talk about, well, what was going on." The court later inquired whether Gagliardi had personal knowledge that Hector and Serafin were known gang members, which led to the following exchange:
Defense counsel: I'm not sure about Serafin. I'll take the easy one, and that is Hector, when you have a big tattoo across your chest that says Playboys, to me that's a dead giveaway.
Court: I think that's going to come out.
Defense counsel: Yes, I do too.
The trial court also ruled that, because Gagliardi "lacked the factual foundation for his opinions," he could not testify "about the inner workings of a street gang and the 13 criteria that the King County Sheriff's Office uses to establish that someone is . . . a confirmed gang member." The court decided that Gagliardi would also be precluded from "giving his opinion that this incident was gang motivated." At the same time, the court ruled, "Det. Gagliardi will be able to testify that the persons with the defendant on the date of the incident, Serafin Gutierrez and Hector Hernandez, are confirmed members of the Playboy Surrenos and that Jesus Parada-Talmantes is a confirmed member of the Southside Locos."
In conclusion, the record shows that the court properly excused Hector from testifying under the Fifth Amendment based on its specialized knowledge of the case and of the testimony expected from Hector. The trial court did not abuse its discretion.
Given our resolution of this issue, we deny the State's motion to supplement the record under RAP 9.10 and 9.11 with documents related to Hector's charge of possession of a stolen firearm.
Predicate Offense for Unlawful Possession of a Firearm
Finally, Mario argues that his first degree unlawful possession of a firearm conviction must be reversed because his juvenile adjudication for attempted residential burglary does not qualify as a predicate offense.
Under RCW 9.41.040(1)(a), a person is guilty of the crime of first degree unlawful possession of a firearm "if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere ofany serious offense as defined in this chapter." (Emphasis added.) Within chapter 9.41 RCW, "serious offense" means "any of the following felonies or a felony attempt to commit any of the following felonies, as now existing or hereafter amended: [a]ny crime of violence." In turn, "crime of violence" is defined as
Former RCW 9.41.010(12)(a) (2001) (emphasis added).
[a]ny of the following felonies, as now existing or hereafter amended: Any felony defined under any law as a class A felony or an attempt to commit a class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony, manslaughter in the first degree, manslaughter in the second degree, indecent liberties if committed by forcible compulsion, kidnapping in the second degree, arson in the second degree, assault in the second degree, assault of a child in the second degree, extortion in the first degree, burglary in the second degree, residential burglary, and robbery in the second degree.
Former RCW 9.41.010(11)(a) (2001) (emphasis added).
Under a plain reading of these provisions, attempted residential burglary qualifies as a predicate offense.
Focusing solely on the definition of "crime of violence," Mario argues that this definition lists "only completed crimes that are Class B offenses and inchoate crimes that become Class B offenses because the underlying crime is a Class A offense." He further contends that the statute does not include any attempted crime classified as a Class C offense because the completed crime is a Class B offense (such as the crime ofattempted residential burglary). As discussed above, this argument ignores the plain language of RCW 9.41.040(1)(a) stating that a person is guilty of the crime of first degree unlawful possession of a firearm if he possesses a firearm after being convicted of any serious offense. Because the definition of "serious offense" includes felony attempts to commit any crime of violence and because the definition of "crime of violence" includes residential burglary, the trial court properly determined that Mario's prior attempted residential burglary conviction could serve as the predicate offense for unlawful charge of a firearm.
CONCLUSION
We hold that RCW 9A.36.045 is not unconstitutionally vague as applied to Mario because his conduct falls squarely within the statute's prohibitions. In addition, Mario's challenge to the firearm enhancement imposed by the court fails underKelley. The trial court also properly excused Hector from testifying under the Fifth Amendment based on its knowledge of the case and of the testimony expected from Hector. Finally, a plain reading of the relevant provisions in chapter 9.41 RCW shows that the trial court correctly decided that Mario's prior attempted residential burglary conviction could serve as the predicate offense for unlawful charge of a firearm.
Affirmed.
WE CONCUR: