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
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
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.
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.
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.
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
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.
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.
being read their Miranda 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.
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.
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.
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. All four defendants appeal.
OF TRIAL CLAIMS
Amendment challenge to booking statements
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.
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)).
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.
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.
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. 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.
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.
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
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 ...