OPINION PUBLISHED IN PART
Washington law, a drive-by shooting requires a close nexus
between a perpetrator and vehicle. Specifically, the
perpetrator must either be inside a vehicle at the time of
the shooting or within the vehicle's immediate area.
Anthony Vasquez ran 63 feet from his vehicle and around the
corner of a grocery store prior to shooting and killing Juan
Garcia. While Mr. Vasquez's violent conduct fell well
within the definition of first degree murder, it was not a
drive-by shooting. As a result, Mr. Vasquez's drive-by
shooting convictions and sentence aggravator must be
reversed. The remainder of his convictions are affirmed.
Vasquez shot and killed Mr. Garcia as Mr. Garcia was seated
in the front passenger side of a GMC Envoy parked at the
Airport Grocery in Moses Lake, Washington. Mr. Garcia's
girlfriend was in the front driver's seat and her
five-year-old child was in the back seat, behind Mr. Garcia.
Neither Mr. Garcia's girlfriend nor her child were
physically injured during the shooting.
crux of this appeal is the route Mr. Vasquez took to shoot
Mr. Garcia. Figure 1 is an annotated aerial map of the area.
See Ex. P4.
several minutes prior to the shooting, the Envoy was parked
near the Airport Grocery's front entrance. Mr. Vasquez
then arrived at the scene in a Toyota pickup. The Toyota was
parked on the side of the grocery, next to a fenced utility
area, approximately 63 feet away from the Envoy. Once the
Toyota was parked, Mr. Vasquez ran from the pickup and hid
behind the utility fence for nearly a minute. Mr. Vasquez
then rushed around the corner of the grocery, across the
front-side of the Envoy, and over to the area of the front
passenger window of the Envoy. The front window was partially
rolled down, exposing Mr. Garcia to Mr. Vasquez. Mr. Vasquez
shot and killed Mr. Garcia from point-blank range. Mr.
Vasquez then retreated to the Toyota and it sped away.
entire shooting was captured on video by the grocery's
surveillance system. Approximately one minute and 16 seconds
elapsed between the Toyota's initial arrival and ultimate
convicted Mr. Vasquez of first degree murder with a drive-by
shooting aggravator, along with several counts of drive-by
shooting. Mr. Vasquez was sentenced to life
imprisonment without parole for the aggravated first degree
murder conviction. He also received a 60-month firearm
enhancement. Mr. Vasquez appeals. He has also filed a
statement of additional grounds for review.
drive-by shooting statute states, in pertinent part:
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.
RCW 9A.36.045(1) (emphasis added).
Vasquez argues the evidence was insufficient to prove a
drive-by shooting. The question is whether the State's
evidence showed Mr. Vasquez was in the "immediate
area" of the Toyota pickup truck at the time of the
shooting. Viewing the evidence in the light most favorable to
the State, State v. Salinas, 119 Wn.2d 192, 201, 829
P.2d 1068 (1992), we hold the "immediate area"
requirement was not met.
State v. Rodgers, our Supreme Court addressed what
is meant by "immediate area" in the drive-by
shooting context. 146 Wn.2d 55, 43 P.3d 1 (2002). Noting the
drive-by shooting definition is "narrowly drawn, "
id. at 61, Rodgers held a two-block
distance between a shooter and his vehicle does not fall
within the scope of a drive-by shooting. Rodgers
looked to two dictionary definitions of "immediate"
in reaching this conclusion. Id. at 62. The first
defined "immediate" as "'existing without
intervening space or substance . . . being near at hand: not
far apart or distant.'" Id. (quoting
Webster's Third New International Dictionary 1129 (1986))
(alteration in original). The second defined
"immediate" as "'[n]ot separated in
respect to place; not ...