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State v. Mancilla

Court of Appeals of Washington, Division 3

January 24, 2017

STATE OF WASHINGTON, Respondent,
v.
JOSE JESUS MANCILLA, Appellant. STATE OF WASHINGTON, Respondent,
v.
ARMANDO LOPEZ, Appellant. STATE OF WASHINGTON, Respondent,
v.
JAIME LOPEZ, Appellant. STATE OF WASHINGTON, Respondent,
v.
NICHOLAS JACOB JAMES, Appellant.

          PENNELL, J.

         In the context of a criminal trial, gang evidence is a double-edged sword. On the one hand, such evidence can help jurors understand relationships between defendants and how various symbols and terminology suggest motive and intent. But on the other hand, gang evidence can be problematic. Merely suggesting an accused is a gang member raises the concern he or she will be judged guilty based on negative stereotypes as opposed to actual evidence of wrongdoing. Accordingly, the State's use of gang evidence requires close judicial scrutiny.

         The State's gang evidence here largely stands up to our review. The objective evidence suggested the defendants' crime was gang related, and the State presented narrowly tailored gang evidence to support its theory of the case. The State did err in introducing the defendants' booking statements where they admitted gang affiliation. State v. Juarez DeLeon, 185 Wn.2d 478, 374 P.3d 95 (2016). However, with the exception of Jaime Lopez, this error was rendered harmless by other independent evidence of admitted gang affiliation.

         Because neither gang related evidence nor other alleged errors impacted the convictions of Jose Mancilla, Armando Lopez, and Nicholas James, those results are affirmed. Only Jaime Lopez's conviction was compromised by impermissible gang evidence. Accordingly, Jaime Lopez's conviction is reversed without prejudice and remanded for retrial.

         BACKGROUND

         This case involves a Yakima County drive-by shooting. The facts are strikingly similar to another Yakima County drive-by shooting recently addressed by the Supreme Court in Juarez DeLeon. The target of this shooting was the Rincon house. Although several people were inside the house at the time of the shooting, no one was hurt. When law enforcement arrived to investigate the shooting, blue graffiti could be seen near the home's entrance. Law enforcement also recovered spent ammunition and a rifle magazine from the scene.

         This was not the first time the Rincon house had been fired upon. It had been targeted four or five times in the past, presumably because two of the household members were affiliated with the Nortefios gang.

         On the morning of the shooting, two women were delivering newspapers in the area. After hearing the shots, they noticed a vehicle coming from the direction of the Rincon house. The vehicle had its headlights off and turned in front of their car. The women called the police and identified the vehicle as a gray Mitsubishi Galant.

         A responding deputy saw a vehicle matching the women's description stop at an intersection. The deputy turned to pursue the vehicle, eventually stopping it. He removed four individuals from the vehicle, driver Armando Lopez, front seat passenger Jose Mancilla, and back seat passengers Jaime Lopez and Nicolas James. The deputy noted Armando Lopez had a blue bandana hanging from his neck. No firearms or ammunition were found inside the vehicle. Suspicious that firearms may have been discarded prior to the stop, officers went back to the intersection where the deputy first saw the Mitsubishi Galant. Three firearms were located in the area. A later forensic examination confirmed the three firearms matched the ammunition and magazine found at the Rincon house.

         At the police station, law enforcement took the defendants' photographs. Armando Lopez is depicted "throwing up a gang sign." Ex. 68; 5 Report of Proceedings (RP) (Sept. 6, 2012) at 497-98. Law enforcement also took pictures of his many tattoos, including the number 13. The photograph of Jaime Lopez shows numerous tattoos, including a forearm tattoo of a zip code and the number 13 tattooed on his shoulders. Nicolas James is pictured wearing a blue shirt with a blue belt; his belt buckle prominently featuring the number 13. Both the color blue and the number 13 are associated with the Surenos gang.

         After being read their Miranda[1] rights and invoking their right to remain silent, the four defendants were booked into jail. During the booking process, a corrections officer questioned the defendants about gang affiliation in order to ensure they were safely housed. In response to that questioning, all four men admitted they were Surenos. Armando and Jose specifically identified themselves as members of Little Valley Locos or Lokotes (LVL), a Sureno clique.

         The State charged the four men with seven counts of first degree assault and one count of drive-by shooting, all carrying gang aggravators. The seven counts of first degree assault also carried up to three potential firearm enhancements per count. In addition, the State charged Jose Mancilla, Armando Lopez, and Nicolas James with one count of first degree unlawful possession of a firearm, also carrying a gang aggravator.

         The four defendants were tried together. At trial, the State introduced the defendants' booking statements acknowledging gang membership. In addition, the State introduced recorded jail phone calls where Jose Mancilla and Nicolas James implicated themselves as members of LVL. The State also called Officer Jose Ortiz as a gang expert. Officer Ortiz testified about the meaning of gang terminology and symbols, the types of criminal activities in which gangs were involved, gang codes of conduct and discipline of violators, gang interactions with other gangs, the hierarchy of gang membership, and how to achieve status within a gang. He also testified Armando Lopez is a member of LVL.

         The jury found the defendants guilty as charged. Following a motion to arrest judgment, the trial court dismissed the gang aggravators. The court sentenced Jose Mancilla and Nicolas James to consecutive sentences for the seven counts of first degree assault and imposed the three firearm enhancements per count consecutively, for a total sentence of 1, 956 months. The court sentenced Armando Lopez, a persistent offender, to life in prison without the possibility of release. The court sentenced Jaime Lopez to consecutive sentences for the seven counts of first degree assault and imposed the three firearm enhancements per count consecutively, for a total sentence of 1, 929 months.[2] All four defendants appeal.

         ANALYSIS OF TRIAL CLAIMS

         Fifth Amendment challenge to booking statements

         The trial court erred in admitting the defendants' jail booking statements regarding gang affiliation. Juarez DeLeon, 185 Wn.2d at 487. Because the statements were made to ensure the defendants' personal safety, they cannot be used as adverse evidence at trial. Id.

         While the State committed constitutional error in admitting the defendants' statements, reversal is not automatic. When faced with a constitutional error, we apply a harmless error test. Id. The State must prove the erroneously admitted evidence was harmless beyond a reasonable doubt. Under this level of scrutiny, we examine whether "'any reasonable jury would have reached the same result, despite the error.'" Id. (quoting State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995)).

         Application of the harmless error analysis to this case is guided by the factually similar case of Juarez DeLeon. At trial in Juarez DeLeon, the State had presented substantial gang affiliation evidence, apart from booking statements. The evidence included gang related clothing and tattoos. Witnesses also testified about the defendants' past gang affiliations. While this evidence would seem substantial, Juarez DeLeon held it was insufficient to meet the State's burden. As explained by the court, "[t]he strongest evidence that a person is a gang member is their own clear admission." Juarez DeLeon, 185 Wn.2d at 488. Because the State had no such evidence, apart from the improperly admitted booking statements, the Juarez DeLeon court reversed the defendants' convictions.

         In light of Juarez DeLeon, we focus on whether the State presented evidence of the defendants' admitted gang affiliation, apart from their booking statements. Such evidence exists for three of the four defendants. With respect to Armando Lopez, the State introduced a postarrest photo in which Armando Lopez displayed a gang related hand sign. While not verbal, this was an unambiguous admission of current gang membership. The State also introduced incriminating jail calls from Jose Mancilla and Nicholas James. During Jose Mancilla's recorded call, he identified himself as "Solo" from the LVL gang. 7 RP (Sept. 10, 2012) at 773, 776. During Nicholas James's call, he identified himself by the name "Little Rascal." Id. at 774, 777. This testimony was significant because Armando Lopez's gang name was "Rascal." Id. at 796. According to the State's gang expert, using the adjective "Little" denotes an individual as a mentee of a named gang member. 8 RP (Sept. 11, 2012) at 857. Referring to himself as "Little Rascal" was an acknowledgment by Mr. James of his status as the mentee of Armando Lopez, whose gang name was "Rascal." While indirect, Mr. James's statement served to identify himself as a gang cohort. Admission of this statement to the jury was sufficient for the State to meet its burden of overcoming Juarez DeLeon error.

         Our analysis with respect to Jaime Lopez is much different. Other than Jaime Lopez's booking statements, the State did not present any evidence of admitted gang affiliation. Jaime Lopez was not involved in any recorded jail calls. He was not photographed throwing a gang sign or wearing gang related clothing.[3] The only evidence suggesting Jaime Lopez's gang affiliation was his tattoos. Yet Juarez DeLeon held that gang tattoos, even if accompanied by other indicia of gang membership, is insufficient to overcome the taint of an inadmissible booking statement. Thus, nothing about Jaime Lopez's words or appearance is sufficient to take his case outside the holding of Juarez DeLeon.

         The only possible distinction between Juarez DeLeon and this case is the fact that the State has been able to meet its harmless error burden as to Jaime Lopez's codefendants. The question then becomes whether the combination of Jaime Lopez's tattoos and his presence in a vehicle shortly after a drive-by shooting with three admitted gang members is sufficient to overcome the taint of the Juarez DeLeon error. We hold it is not. The jury was presented with evidence suggesting only three individuals were involved in the drive-by shooting. Three guns were found near the scene of the crime, not four. And when Nicholas James discussed his gang affiliated codefendants, he mentioned only Armando Lopez (Rascal) and Jose Mancilla (Solo). He did not mention Jaime Lopez. While the State presented significant evidence of Jaime Lopez's involvement, it was not sufficiently strong to meet the difficult burden of establishing harmless error beyond a reasonable doubt. Jaime Lopez's convictions are therefore reversed pursuant to Juarez DeLeon.

         Gang expert testimony

         The defendants challenge Officer Ortiz's expert testimony regarding gang affiliation and gang related activity. They argue the evidence constituted improper propensity evidence under ER 404(b) and was prejudicial under ER 403. They also claim the testimony did not meet the standards for admission as expert testimony under ER 702. We review the trial court's evidentiary rulings for abuse of discretion. State v. Asaeli, 150 Wn.App. 543, 573, 208 P.3d 1136 (2009). The defendants bear the burden of proof in this context. Id.

          ER 404(b) prohibits a court from admitting "[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith." Because it is a limitation on "any evidence offered to 'show the character of a person to prove the person acted in conformity' with that character at the time of a crime, " it encompasses gang affiliation evidence that a jury may perceive as showing a law breaking character. State v. Foxhoven,161 ...


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