In the Matter of the Personal Restraint of EDUARDO SANDOVAL, Petitioner.
personal restraint petition (PRP) concerning complicity
charges based on murder by extreme indifference, we reject
petitioner Eduardo Sandoval's contentions that accomplice
liability for murder by extreme indifference and conspiracy
to commit murder by extreme indifference are not cognizable
offenses. We further hold that the trial court erred in
failing to give a requested lesser included instruction on
manslaughter, and on this limited basis we grant the PRP and
remand for further proceedings consistent with this opinion.
is a member of the Eastside Lokotes Surenos (ELS) gang in
Tacoma. On February 7, 2010, ELS members, in a stolen van,
pulled up to a car and fired no less than 12 gunshots from at
least two firearms into the passenger door of the car. The
driver, Camilla Love, was hit three times and died from her
injuries. The passenger, Joshua Love, was hit two times but
survived. The van occupants targeted the Loves on the
mistaken belief that Joshua Love was a Pirus gang member. At
the time, the van occupants were seeking out rival Pirus
members to retaliate for a February 5, 2010 drive-by shooting
targeting ELS members, including Sandoval. The ELS's
leader, Juan Zuniga, believed Pirus members were responsible
for the earlier attack.
February 6, 2010, Zuniga held a meeting with fellow ELS
members to plan retribution for the February 5, 2010
shooting. The plan was for ELS members to use a van stolen by
ELS associates to attack Pirus members and then destroy the
van. ELS members not in the van would patrol designated areas
in separate vehicles in search of Pirus members, and be on
the lookout for police. Sandoval attended the meeting.
next day, on February 7, 2010, ELS members worked out the
plan particulars and roles (e.g., shooters, van driver, and
patrol/lookout) and converged that evening to carry out the
plan. Sandoval and Antonio Gonzales were present at this
later meeting, as was the van, which was stolen the prior
evening by other ELS associates.
rode to the February 7, 2010, meeting with Gonzales, who was
assigned to patrol the ELS's southernmost territorial
boundary. Sandoval volunteered to go with Gonzales, who
brought his two young children with him. By riding with
Gonzales, Sandoval purportedly could appear to cooperate in
the plan without taking an active role. Gonzales also
testified that he did not intend to complete his assigned
the group left this final meeting, Gonzales and Sandoval
first drove to a park outside of their patrol area, put on a
video for Gonzales' children, and smoked marijuana. After
30 minutes, the occupants of the stolen van spotted them and
advised them to carry out their assigned task. The pair then
proceeded to the lookout area. They spotted a police car
parked at a bank and communicated the police location to the
that evening, Zuniga called to instruct them to go home, as
the shooting had since transpired. Two weeks later, at
Zuniga's instruction, Sandoval and another ELS member
took the alleged van driver, Jarod Messer, to Mexico because
someone matching his description had been identified as a
possible suspect in the shooting.
shooting went unsolved for several months. Then, in May 2010,
Gonzales and two other ELS members murdered ELS leader
Zuniga. When arrested for Zuniga's murder, these three
ELS members volunteered information about Love's killing.
That information led to the arrest of Sandoval and other ELS
members involved in the Love shooting. The ELS members
involved in the Zuniga killing also agreed to testify on
behalf of the State against the four ELS members and
associates arrested and charged in Love's killing in
exchange for significant sentence reductions in the Zuniga
killing and no murder charges in Love's shooting.
was arrested in September 2010. The State ultimately charged
Sandoval with three counts: first degree murder (by extreme
indifference) of Camilla Love (count I), first degree assault
of Joshua Love (count 2), and conspiracy to commit first
degree murder (count 3). The other ELS members involved in
the shooting were similarly charged. They were tried
along with Sandoval in the same proceeding, but pleaded
guilty after the prosecution rested in exchange for reduced
charges. Only Sandoval took his case to the jury.
closing arguments, Sandoval's counsel sought to include
jury instructions for the lesser included charges of
accomplice to first degree and second degree manslaughter if,
"after full and careful deliberation on [the count I
murder] charge, you are not satisfied beyond a reasonable
doubt that the defendant is guilty." Clerk's Papers
(CP) at 254 (Instr. 5). The court denied the
deliberations, the jury asked the court whether it could use
the instruction defining first degree murder (as conduct
creating a grave risk of death and causing death under
circumstances manifesting an extreme indifference to human
life) when considering the instruction defining conspiracy.
After conferring with counsel, the court answered
affirmatively. The jury ultimately convicted Sandoval as
charged. The court then entered a judgment and sentence
consistent with the second amended information.
State recommended Sandoval receive a total sentence of 724
months for all three crimes. The court sentenced Sandoval to
a total sentence of 904 months of confinement. The ELS members
who pleaded guilty received reduced charges.
appealed, arguing that the evidence presented at trial was
insufficient to support his convictions. With his direct
appeal, Sandoval also filed a pro se petition for a writ of
habeas corpus, which was transferred to the Court of Appeals
for consideration as a PRP. The Court of Appeals consolidated
Sandoval's direct review with his PRP and issued an
unpublished decision on March 18, 2014, affirming the trial
court's judgment and sentence and dismissing
Sandoval's initial PRP. Sandoval did not petition for
review of Division Two's decision, and the Court of
Appeals mandated the case on May 16, 2014.
April 17, 2015, Sandoval filed his current PRP with the Court
of Appeals, which transferred the PRP to this
court. We retained the petition for consideration
on the merits.
Standard of Review
unlawfully restrained petitioner may file a PRP. RAP 16.4.
Restraint is unlawful when, among other things, "[t]he
conviction was obtained or the sentence or other order . . .
was imposed or entered in violation of the Constitution of
the United States or the Constitution or laws of the State of
Washington." RAP 16.4(c)(2). Successive petitions based
on similar grounds or raising a new issue will not be heard
without a showing of good cause. In re Pers. Restraint of
VanDelft, 158 Wn.2d 731, 738, 147 P.3d 573 (2006),
overruled on other grounds as recognized in State v.
Vance, 168 Wn.2d 754, 762-63, 230 P.3d 1055 (2010). And
while the Court of Appeals is barred from hearing successive
PRPs on new grounds, unless the petitioner can show good
cause why he or she failed to raise the issues previously,
this court is not so barred. RCW 10.73.140; In re Pers.
Restraint of Martinez, 171 Wn.2d 354, 362-63, 256 P.3d
a PRP is not timely if filed "more than one year after
the judgment becomes final." RCW 10.73.090(1). A
judgment becomes final, among other things, when "an
appellate court issues its mandate disposing of a timely
direct appeal from the conviction." RCW 10.73.090(3)(b).
The Court of Appeals mandated its decision on Sandoval's
direct appeal on May 16, 2014, and Sandoval filed the current
PRP April 17, 2015. Accordingly, his current PRP is timely.
frivolous PRPs need not be considered. RAP 16.11(b). A PRP
"is frivolous where it fails to present an arguable
basis for collateral relief either in law or in fact, given
the constraints of the [PRP] vehicle." In re Pers.
Restraint of Khan, 184 Wn.2d 679, 686-87, 363 P.3d 577
(2015) (plurality opinion). Sandoval's PRP is not
frivolous. He provides an arguable basis in law for at least
one of his claims, as discussed infra.
must demonstrate error and, if the error is constitutional,
that the petitioner is "actually and substantially
prejudiced." In re Pers. Restraint of Coats,
173 Wn.2d 123, 132, 267 P.3d 324 (2011). If not
constitutional, the PRP must show the error represents a
"fundamental defect. . . that inherently resulted in a
complete miscarriage of justice." In re Pers.
Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450
(2013). This heightened standard of review applies to all
issues for which a petitioner had a previous opportunity for
judicial review and is designed to promote finality.
Coats, 173 Wn.2d at 132.
Instruction on Lesser Included Offense of
on State v. Henderson, 182 Wn.2d 734, 344 P.3d 1207
(2015), Sandoval contends that the trial court improperly
denied his request for a jury instruction on the lesser
included offense of manslaughter. We agree.
controls this issue. "A defendant is entitled to an
instruction on a lesser included offense when (1) each of the
elements of the lesser offense is a necessary element of the
charged offense and (2) the evidence in the case supports an
inference that . the lesser crime was committed."
Id. at 742 (citing State v. Workman, 90
Wn.2d 443, 447-48, 584 P.2d 382 (1978)). As in
Henderson, "the first prong of the
Workman rule is met" here because "the
elements of first degree manslaughter are necessary elements
of first degree murder by extreme indifference."
Id. Thus, as in Henderson, the only issue
in the present case is "whether the evidence supports an
inference that the lesser crime was committed rather than the
greater crime." Id.
Henderson, we reiterated that "[a] jury must be
allowed to consider a lesser included offense if the
evidence, when viewed in the light most favorable to the
defendant, raises an inference that the defendant committed
the lesser crime instead of the greater crime."
Id. at 736 (citing State v.
Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150
(2000)). "If a jury could rationally find a defendant
guilty of the lesser offense and not the greater offense, the
jury must be instructed on the lesser offense."
Id. (citing Fernandez-Medina, 141 Wn.2d at
facts in Henderson are analogous to the facts at
issue here. In Henderson, a defendant was charged
with murder by extreme indifference based on evidence that he
fired a gun repeatedly (six times) at an occupied dwelling
where people were standing outside. Id. at 739. In
the present case, a defendant was charged with murder by
extreme indifference based on evidence that he fired a gun
repeatedly (12 times) into an occupied car.
Henderson, we held that the trial court erred in
denying the defendant his requested instruction on the lesser
included offense of first degree manslaughter. Despite the
great similarity between the charged crime of murder by
extreme indifference and homicide by (reckless) manslaughter,
it was still possible to say the evidence supported an
inference that the defendant committed only the lesser
(reckless) offense to the exclusion of the greater (extreme
indifference) offence. Id. at 744. "Viewing
this evidence in the light most favorable to Henderson, a
jury could have rationally concluded that Henderson acted
with disregard for a substantial risk of homicide rather than
an extreme indifference that caused a grave risk of
death." Id. at 745. Noting that the court
"must view the evidence in the light most favorable to
[the defendant requesting the instruction], " we opined
that "[i]n that light, we certainly cannot say that
no jury could rationally find first degree
manslaughter instead of first degree murder by extreme
indifference." Id. at 746. Accordingly, the
defendant was "entitled to a jury instruction on first
degree manslaughter." Id.
the facts of the Henderson homicide are comparable
in all relevant respects to the facts of the homicide in the
present case: the shooter aimed a gun toward an occupied
structure, fired repeatedly, and unsurprisingly someone was
killed. Further, the victim in Henderson was
standing outside the house and thus was more vulnerable than
the victim in the present case, who was inside the car.
Accordingly, the manslaughter instruction is available in
Sandoval's case because gross negligence is even more
plausible here. Similarly, the fact that Henderson was
charged as a principal, reflecting that he was physically at
the scene, personally pulled the trigger, and was thus more
overtly personally culpable than Sandoval, who was not
present at the shooting but was charged as an absent
accomplice, additionally persuades that the manslaughter
instruction should be available here. Restated,
Sandoval's accomplice status makes his personal, direct
culpability for the greater crime even more attenuated than
was the defendant's culpability as a principal for the
greater crime in Henderson. Following
Henderson, we hold that Sandoval was entitled to an
instruction on the lesser included offense of first degree
manslaughter. We grant Sandoval's PRP on this issue,
reverse his conviction on count I, and remand for further
proceedings consistent with this opinion. We find
Sandoval's remaining contentions unavailing.
Cautionary Jury Instruction on ...