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State of Washington v. Gonzales

September 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
JUAN R. GONZALES A/K/A/ ROBERTO HERNANDEZ, AND DEFENDANT, VICTOR F. VALENZUELA, AND EACH OF THEM, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-04149-1. Date filed: 10/24/94. Judge signing: Hon. Donald Haley.

Authored by H. Joseph Coleman. Concurring: Faye C. Kennedy, Ronald E. Cox. WE Concur

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- Victor Valenzuela appeals his conviction for delivering cocaine. We find that the trial court conducted a proper Alexis *fn1 analysis before admitting Valenzuela's prior convictions for delivery and possession of cocaine as unnamed felonies under ER 609(a)(1). We affirm.

Valenzuela was charged with one count of delivering cocaine based on the testimony of Seattle police officers who conducted an undercover narcotics operation near Pike Place Market on June 27, 1994. The officers testified as to the following interaction between Valenzuela and Officer Fields, the undercover buyer. Officer Fields made eye contact with Valenzuela and asked if he had any "white," a street term for powder cocaine. Valenzuela asked Officer Fields how much he wanted, and the officer indicated $40 worth. Valenzuela said he would get it, entered the Turf Restaurant, and motioned to someone. A man later identified as Roberto Hernandez approached and spoke to Valenzuela. Hernandez handed Valenzuela two small pink items as the two men walked toward the officer.

Refusing to consummate the deal inside the restaurant like they wanted him to do, Officer Fields walked away. Valenzuela followed him to the Newmark Building. Valenzuela gave the officer two pink balloon bindles containing cocaine in exchange for the money. After the transaction was completed, Valenzuela handed Hernandez some money. Valenzuela and Hernandez were arrested after Officer Fields gave the prearranged "good buy" signal. The arresting officers found the buy money on Hernandez.

Prior to trial, the State moved to admit Valenzuela's 1989 convictions for delivery and possession of cocaine. The trial court reserved its ruling, noting that the prior convictions had "some impeachment value" but expressing concern over the similarity between the prior crimes and the current charge. The court further stated that, if the prior convictions were admitted, it would consider whether they should be named or unnamed.

Valenzuela testified that he was not in the Turf restaurant that day, did not know Hernandez, and was not involved in the narcotics transaction.

The State sought to impeach Valenzuela with his prior convictions. The trial court considered each of the Alexis factors and admitted the prior convictions as unnamed felonies. On cross examination, Valenzuela stated that he knew what cocaine was and knew from reading the paper that some people sold cocaine to earn money but that he did not personally know anyone who sold it. He also acknowledged that he had been convicted of "felony crimes" in 1989.

The jury found Valenzuela guilty as charged, and he received a standard range sentence.

Under ER 609, evidence of prior convictions may be admitted in certain circumstances to impeach a witness. The rule creates two categories of prior convictions. Those involving dishonesty or false statement are admissible per se under ER 609(a)(2). The offenses for which Valenzuela had been convicted do not fall within this category. Under ER 609(a)(1), a prior conviction not included in the first category may be admitted, within the trial court's discretion, after the prejudicial impact of the prior conviction has been weighed against its probative value. To conduct this balancing, the trial court must consider the following factors on the record:

(1) the length of the defendant's criminal record;

(2) the remoteness of the prior conviction;

(3) the nature of the prior crime;

(4) the defendant's age and circumstances at time of the prior offense;

(5) the centrality of credibility at the current trial; and

(6) the impeachment value of the prior crime at the current trial.

State v. Alexis, 95 Wash. 2d 15, 19, 621 P.2d 1269 (1980). See also State v. Jones, 101 Wash. 2d 113, 121-122, 677 P.2d 131 (1984) (enumerating six analogous factors), overruled on other grounds by State v. Brown, 111 Wash. 2d 124, 761 P.2d 588 (1988), adhered to on reh'g, 113 Wash. 2d 520, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R. 4th 989 (1989).

The trial court in the present case concluded that neither the length of Valenzuela's criminal history nor his age and the circumstances at the time of his prior convictions weighed in favor of excluding the evidence.

The remoteness factor did not favor either admission or exclusion, the court found, because Valenzuela's prior convictions were both five years old, half of the ten-year limit under ER 609(b). Valenzuela does not challenge the court's analysis of these three factors.

The centrality of credibility factor, which Valenzuela concedes could be a neutral factor in the present case, reflects the underlying concern that the prospect of having a defendant's criminal history listed for the jury might deter him or her from testifying. Jones, 101 Wash. 2d at ...


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