State of Washington v. Erik R. Carrasco

FILED

FEB 3,2015

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, )
) No. 31298-4-111
Respondent, )
)
v. )
)
ERIK RAMOS CARRASCO, ) UNPUBLISHED OPINION
)
Appellant. )

SIDDOWAY, C.J. -A jury rejected the claim by Erik Carrasco, a member of the

Nortefio gang, that in shooting into a car occupied by five members of the rival Surefio

gang, he was acting in self-defense. He was sentenced to a total term of confmement of

1,126 months for his convictions of one count of second degree murder, five counts of

second degree assault, one count of illegal possession of a firearm and two gang

aggravators.

He argues on appeal that the trial court erred by admitting gang evidence when

there was no nexus between the crimes and gang activity, and by increasing his sentence

for the gang aggravators based on inadmissible gang evidence. He also argues that the

State's evidence was insufficient to support the convictions for second degree murder and

first degree assault.
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State v. Carrasco

We find no error as to those matters or in connection with the several issues raised

by Mr. Carrasco's pro se statement of additional grounds. The State's evidence was

sufficient. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Erik Carrasco is a member of LaRaza, a Nortefio gang. In the early evening of

April 28, 2010, he was walking to the market when he stopped at the home of the Cueva

family on north 4th Street in Yakima to visit with his friend, Ernesto Cueva. The north

side of Yakima is a territory claimed by the Nortefio gang. Mr. Carrasco and Mr. Cueva

were standing in the front yard, having been joined by several other acquaintances, when

a green car passed carrying five passengers, all members of the rival Surefio gangs.

The few eyewitnesses who were able or willing to testify at Mr. Carrasco's

criminal trial had inconsistent and in some cases diametrically different accounts of what

happened next. According to Mr. Carrasco, the Surefios stopped their car at the market,

where they stayed for a few minutes. Mr. Carrasco claims that several people in his

group, himself included, tried to get everyone to go inside the Cueva home "in case

something [did] occur." Report of Proceedings (RP) at 532.

After the Surefios came out of the market and returned to the green car, Mr.

Carrasco claimed that they drove slowly down 4th Street toward the Cueva home; as they

approached, they "did some yelling, screaming their hood, their names": Surefios and

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VSL. 1 RP at 532-33. When the car passed the front yard of the Cueva home, a passenger

threw a beer can, striking Mr. Carrasco in the head. Mr. Carrasco claimed that he then

saw what he believed to be a gun in the hand of one of the passengers; he responded by

shooting his .45 magnum three times, striking one passenger in the head and one in the

left arm. The passenger who was shot in the head later died from the injury.

Mr. Carrasco ran to his nearby home and changed his clothes. He later threw his

gun into the river. He was eventually arrested, however, and agreed to speak with

detectives. In a recorded interview, he initially insisted that he was inside the Cueva

home when he heard gunshots. But later in the interview he admitted that he was the

shooter, claiming he acted in self-defense.

Storm Lopez, who had been sitting in the left rear seat of the green car, was the

only victim willing or able to recount what he had seen and heard. He claimed that he

and his fellow passengers did nothing to precipitate the violence and were unarmed.

According to him, as they were driving on north 4th Street, he heard someone yell "let's

get down," an expression meaning "let's fight," and then heard five or six gunshots.

RP at 166, 174. He claimed that he ducked in response to the gunfire and did not see the

shooter. Id.

I Varrio Surefio Locotes, a Surefio gang.

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Romero Camacho, the passenger shot in the arm and who was sitting in the front

passenger seat of the green car, admitted that he and the other Surefios "were on the

wrong side of the hood," in Nortefio territory, when the shooting occurred. RP at 217-18.

But he claimed he could not remember whether there had been an altercation leading to

the shooting, because he was intoxicated on beer and Xanax2 that day and "we probably

might have got into something while I was in the blackout stage." RP at 217.

Jasmine Johnson, who Mr. Carrasco said was present with him in the Cueva front

yard at the time of the shooting, ultimately claimed not to recall anything about the

evening of the shooting, admitting only that she provided police with a statement in July

2010 that she was in the front yard and saw Mr. Carrasco get hit with a beer can. Ernesto

Cueva proved equally unhelpful, claiming he could not remember much. He would

acknowledge only that maybe he saw a beer can and maybe he saw a gun, but he

maintained that he was inside his home when the gunshots were fired.

The only other eyewitness to the shooting who provided information was Ricardo

Vasquez, who contacted police in July 2010 and offered to tell them what he knew about

the shooting in exchange for having an assault charge dropped. He claimed that he had

driven past the Cueva home twice on the evening of the shooting. The first time, he saw

2 Alprazolam, a prescription drug used to treat anxiety disorders and panic
disorder. See www.nlm.nih.gov/medlineplus/druginfo/meds/a68400 l.html (last visited
Jan. 28, 2015).

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Mr. Carrasco, whom Mr. Vasquez knew from his own former membership in the LaRaza

gang, talking with the Cueva brothers on the sidewalk. When he drove by again a short

time later, he saw people jump into a green car and saw Mr. Carrasco shooting at the car

as it drove away from Mr. Carrasco and toward his southbound van. As the green car

passed by his van, Mr. Vasquez said that he could see that one of its windows was shot

out and the passengers inside looked panicked. He said that he didn't see anyone in the

car with a gun, nor did he see anything thrown from the green car.

Mr. Vasquez also claimed that some time following the crime, he encountered Mr.

Carrasco when they were both serving time in juvenile detention. According to him, one

day as he, Mr. Carrasco and a third detainee were walking in the yard of the juvenile

detention facility, they began to talk about the April 28 shooting. According to Mr.

Vasquez, Mr. Carrasco "told us, you know, that he was happy because he earned his

stripe, his first stripe," which Mr. Vasquez explained was "like points you earn in a gang,

like certain levels," and "the main thing ... to really earn a stripe is to take someone's

life, to kill somebody, a rival gang member." RP at 195-96. He also said that Mr.

Carrasco told the two that he was concerned "some little kid" was opening his mouth and

talking about what had happened, so he had "[told] some other guy ... to check his little

homey." RP at 195. He explained that when a person gets "checked," "everybody will

come ... [to] just beat you up. Then after that you're cool again, 1 guess. That's your

discipline, 1 guess." RP at 197.

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State v. Carrasco

Unpersuaded by Mr. Carrasco's claim of self-defense in light of the evidence, the

State charged him with second degree murder, four counts of first degree assault, and one

count of second degree unlawful possession of a firearm.

Before trial, the State moved in limine to offer generalized evidence from Mr.

Vasquez and Detective Drew Shaw on the importance, in gang culture, of earning and

maintaining "respect," including the importance of avenging disrespect. The State also

identified 13 gang-related facts it would seek to establish in support of its theory that this

was a gang-motivated shooting. After hearing argument, the court ruled that the evidence

identified by the State would be admitted, finding that the gang evidence was not merely

relevant, but was "critical, essential and undeniably probative on the issues of motive and

intent," adding that "you can't excise the gang evidence and testimony from the

circumstances of this particular homicide." RP at 95. The court pointed out that even if

Mr. Carrasco did act in self-defense, "it's still self-defense to the gang-motivated

aggression of the people who he shot at." RP at 96.

The witnesses called at trial included Messrs. Lopez, Camacho, Vasquez and

Cueva; Ms. Johnson; responding law enforcement officers, Detective Shaw, and

numerous neighbors of the Cuevas who had heard shots and seen a young light-skinned

Hispanic man running away from the apparent scene of the shooting.

In the brief defense case, Mr. Carrasco testified that after the beer can struck him

in the head, he thought he saw a gun in the hands of the passenger sitting behind the

No. 31298-4-111
State v. Carrasco

driver and that he was "scared for my life and the life of my friends." RP at 533. He told

the jury he was carrying a gun because of prior occasions when shots had been fired at

him or at his home. According to Mr. Carrasco, in pulling out his gun and shooting three

times at the car, he was "just trying to scare them away. My intents were not to kill

nobody." RP at 544. He stated he did not come forward and admit his involvement at

the time of the shooting because he was "[s]cared, scared that I wouldn't be believed."

RP at 534.

He was not believed by the jury. Rejecting his claim of self-defense, it found Mr.

Carrasco guilty as charged on all counts. It returned special verdicts that he was armed

with a firearm at the time he committed the crimes and committed them with a motive or

intent supporting an exceptional sentence under RCW 9.94A.535(3)(aa) and (s). The

court sentenced Mr. Carrasco to a total term of confinement of 1,126 months. He

appeals.

ANALYSIS

Mr. Carrasco argues that the trial court erred by admitting gang evidence absent a

nexus between the crimes and gang activity and by increasing his sentence for gang

aggravators that depended on inadmissible gang evidence. He also challenges the

sufficiency of the State's evidence to support the convictions for second degree murder

and first degree assault, arguing that the State did not disprove self-defense. We address

his challenges in tum.

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1. The trial court did not err in admitting gang evidence

Mr. Carrasco's first assignment of error complains only of the absence of a nexus

between gang culture and his crime. But the argument section of his brief more broadly

challenges the trial court's conclusion that gang evidence was admissible under ER 404(b).

He argues that "the events could be, and were, explained without any reference to gang

culture," since "the real facts of the matter are that Mr. Carrasco got hit on the head by a

beer can, believed he saw a gun, and acted in self-defense." Br. of Appellant at 7, 9.

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 evidence of gang affiliation that a jury may perceive as showing a

law breaking character. State v. Foxhoven, 161 Wn.2d 168,174-75,163 P.3d 786 (2007)

(quoting State v. Everybodytalksabout, 145 Wn.2d 456, 466,39 P.3d 294 (2002».

Affiliation with a gang is also protected by the First Amendment to the United States

Constitution's right of association and is inadmissible to prove a defendant's beliefs and

associations; because gang evidence is considered prejudicial, there must be a nexus

between the crime and the gang before the affiliation is admitted. State v. Asaeli, 150

Wn. App. 543, 579,208 P.3d 1136 (2009); State v. Scott, 151 Wn. App. 520, 526, 213

P.3d 71 (2009) (citing Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d

No. 31298-4-II1
State v. Carrasco

309 (1992)). A trial court's decision to admit gang evidence under ER 404(b) is

reviewed for abuse of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929

(1995).

Before admitting evidence under ER 404(b), the trial court must (1) find by a

preponderance of the evidence that the misconduct occurred, (2) state the purpose for

which the evidence is sought to be introduced, (3) determine whether the evidence is

relevant to prove an element of the crime charged, and (4) balance the probative value of

the evidence against the danger of unfair prejudice. State v. Kilgore, 147 Wn.2d 288,

292, 53 P.3d 974 (2002). Mr. Carrasco does not contend that the trial court failed to

follow the required procedure. The court found that the gang evidence was critical and

undeniably probative on the issues of motive and intent.

Courts regularly admit gang affiliation evidence where it is relevant to the motive

for a crime or to prove a defendant's intent, both of which are permitted purposes for

offering evidence under ER 404(b). Scott, 151 Wn. App. at 527; State v. Yarbrough,

151 Wn. App. 66, 210 P.3d 1029 (2009) (gang evidence admissible as motive);

State v Campbell, 78 Wn. App. 813, 821, 901 P.2d 1050 (1995) (motive and intent). Mr.

Carrasco's argument that the evidence was not admissible in his case proceeds from a

misguided vantage point: he argues that there was no permissible purpose for the

evidence given his contention that shooting in self-defense was his non-gang related

response to being hit with a projectile and seeing the flash of a gun.

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When considering the admissibility of evidence, we, like the trial court, are

ultimately testing the proponent's explanation for offering the evidence. The opponent

might argue, as Mr. Carrasco does here, that the State's real objective in offering the

evidence was an ulterior one: to put on a trial about gangs. But all relevant evidence is

admissible, except as limited by constitutional requirements or as otherwise provided by

statute, by these rules, or by other rules or regulations applicable in the courts of this

state. ER 402. The State identified a purpose for the evidence that was relevant to its

theory of the case. It was not required to demonstrate that the evidence was relevant to

the defense theory.

The relevance of the evidence to an issue on which prior acts evidence is permitted

under ER 404(b) resolves Mr. Carrasco's contention that there was an insufficient nexus

between the gang evidence and the issues in the case. Only when evidence of gang

membership proves no more than a defendant's abstract beliefs does its admission violate

a defendant's constitutional rights of freedom of association and freedom of speech.

Dawson, 503 U.S. at 165.

Mr. Carrasco fails to demonstrate that the trial court abused its discretion in

admitting the gang evidence.

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State v. Carrasco

II. The trial court did not err in imposing an exceptional sentence

The jury returned special verdicts finding that Mr. Carrasco committed the

crimes with the motive or intent supporting an exceptional sentence under two gang·

related aggravating circumstances provided by RCW 9.94A.535(3)(aa) and RCW

9.94A.535(3)(s) of the Sentencing Reform Act of 1981, ch. 9.94A RCW. Under

subsection (3)(aa), it is an aggravating factor if a defendant commits an offense "with the

intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other

advantage to or for a criminal street gang[,] its reputation, influence, or membership."

Under subsection (s), it is an aggravating factor if the defendant commits an offense "to

obtain or maintain [his] membership or to advance [his] position in the hierarchy of an

organization, association, or identifiable group." The trial court added 20 months to the

sentence for the murder and 20 months to the sentence for each assault based on the

jury's findings of the gang aggravators.

Mr. Carrasco argues that although the jury found the aggravating factors, "there

was nothing to support them in the absence ofthe erroneously admitted gang evidence."

Br. of Appellant at 10 (emphasis added). We have determined that the trial court did not

abuse its discretion in admitting the gang evidence.

Properly admitted evidence supports the jury's special verdict findings. Among the

supporting evidence was Mr. Vasquez's testimony that after the shooting, Mr. Carrasco

stated that he was happy to have earned his first stripe. Mr. Vasquez testified, "If you kill

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"
;
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somebody, you know, that's just like the highest thing you can do in a gang, you know.

That's like the main goal in a gang, you know, is just to earn as much stripes as you can,

you know. So to take out as much rival gang members as you can, it's better for the gang

because that's less of them, you know." RP at 198.

Mr. Carrasco testified similarly when cross-examined:

Q. What does a stripe mean?
A. It's like -- a stripe, the more you get, they're like codes of honor, get
them for respect, to get known by your people in the neighborhood
and just to be known by other people.
Q. If you get a stripe it helps your reputation, correct?
A. It does.
Q. It helps you move up within the gang?
A. It does.

RP at 537.

Mr. Carrasco also admitted in cross-examination that before the shooting, the Surefios

in the green car acted disrespectfully, yelling out their gang name and "fuck you, fuck your

hood." RP at 538. He acknowledged that-being a Nortefio-such disrespectful acts in his

neighborhood made him angry and upset. He admitted that if someone disrespects him that

is "pretty important," and that when someone disrespects him, "action needs to be taken"

action that in his case, he characterized as "self-defense." RP at 540-41. Mr. Carrasco

rationalized his actions by observing that the five Surefio gang members knew they were in

Nortefio territory. He explained:

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State v. Carrasco

[T]hey know what part of Yakima they're at. Whether or not I was wearing my
gang colors or throwing my gang signs or, you know, giving them my gang hood,
they know what they're doing, what they were getting themselves into.

RP at 540.

Based on Mr. Carrasco's own admissions and the testimony of Mr. Vasquez and

Detective Shaw, a reasonable juror could find that Mr. Carrasco fired shots at the passing

Surefios in order to defend Nortefio territory, thereby advancing his own standing and the

interest of his gang.

III. The evidence was sufficient

Mr. Carrasco finally argues that the State failed to meet its burden of disproving

self-defense beyond a reasonable doubt. He contends that the State did nothing to

disprove his claim of self-defense other than to ask the jury to speculate that because Mr.

Carrasco was a gang member, he must have been engaged in gang-on-gang violence.

Evidence is sufficient to support a conviction if a rational trier of fact could find

each element of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,

201, 829 P .2d 1068 (1992). A defendant claiming insufficiency admits the truth of all

the State's evidence. State v. Gentry, 125 Wn.2d 570,597,888 P.2d 1105 (1995).

Questions of credibility are left to the trier of fact and will not be overturned on appeal.

State v. Tocki, 32 Wn. App. 457, 461, 648 P.2d 99 (1982).

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State v. Carrasco

A person acts in self-defense when he reasonably believes that he is about to be

injured and uses no more force than necessary to prevent an offense against his person.

Once a defendant offers some evidence tending to demonstrate self-defense, the burden

shifts to the State to prove the absence of self-defense beyond a reasonable doubt.

State v. Walden, 131 Wn.2d 469,473,932 P.2d 1237 (1997).

The State did not have many cooperative eyewitnesses to the shooting available to

testify in the trial below despite the fact that four passengers in the green car survived

and, according to Mr. Carrasco, at least two individuals in his group had remained

outside the Cueva home. The witnesses that the State did have were enough, however.

Mr. Carrasco fails to address the testimony of Mr. Lopez, one of the Surefio gang

members in the green car, that he and his fellow passengers were unarmed and did

nothing to precipitate Mr. Carrasco's shooting. Mr. Carrasco also fails to address Mr.

Vasquez's testimony that he saw Mr. Carrasco shoot at the back of the green car but saw

none of the passengers throw anything or display anything that looked like a weapon.

The testimony of those witnesses, if believed by the jury, was sufficient to disprove Mr.

Carrasco's claim of self-defense beyond a reasonable doubt.

Beyond that, there was considerable "consciousness of guilt" evidence against Mr.

Carrasco. Many residents of the neighborhood where the shooting took place testified

that a person meeting Mr. Carrasco's description sprinted away after the shots were fired;

Mr. Carrasco failed to come forward and, when questioned by police, initially denied any

No. 31298-4-III
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involvement; he threw the gun away; and there was evidence that he put a "green light"

(a directive to intimidate 3) on two witnesses to the shooting: Ms. Johnson and Israel

Lerma. Mr. Carrasco's credibility was further compromised by several key

inconsistencies in his version of what had occurred.

Finally, Mr. Carrasco's own testimony might have been viewed by the jury as

negating legitimate self-defense, since he admitted on cross-examination that he did not

know ifhe saw a gun, rather he saw a "shine." RP at 546. When asked by the

prosecutor, "On that date, no one ever pointed a gun at you, did they?" Mr. Carrasco

answered, "not to my recollection." RP at 549. The jury had been instructed that to be

lawful, the use of force in self-defense must be used "by a person who reasonably

believes that he is about to be injured in preventing or attempting to prevent an offense

against the person, and when the force is not more than is necessary." Clerk's Papers

(CP) at 294.

Viewing the evidence in the light most favorable to the State, a reasonable juror

could find that the State met its burden of disproving self-defense beyond a reasonable

doubt.

3Mr. Carrasco testified that the term "green light" means to "get that person;" to
"[s]top them from going to court or just try to get rid of them." RP at 551.

15
No. 31298-4-111
State v. Carrasco

STATEMENT OF ADDITIONAL GROUNDS

In a pro se statement of additional grounds for review (SAG), Mr. Carrasco raises

five.

Exceptional sentence. Mr. Carrasco challenges his exceptional sentence as

"not legally justified." SAG at 2. A challenge to the exceptional sentence was

adequately addressed by counsel and is rejected above. It will not be reviewed again.

See RAP 10.1O(a).

Same criminal conduct. Mr. Carrasco contends the trial court erred by finding the

offenses were not the same criminal conduct. A defendant who fails at sentencing to

identify a factual dispute for the trial court's resolution and fails to request an exercise of

the trial court's discretion waives the challenge to his offender score. State v. Naillieux,

158 Wn. App. 630, 642, 241 PJd 1280 (2010) (citing In Re Pers. Restraint o/Shale,

160 Wn.2d 489,495, 158 PJd 588 (2007)). Whether the offenses should be considered

the same criminal conduct was not raised in the trial court. It will not be considered for

the first time on appeal. RAP 2.5(a).

Gang evidence. Mr. Carrasco voices a number of complaints in the third ground

raised in his SAG. Although he is not required to cite to the record in a SAG, he must

inform the court of the "nature and occurrence of alleged errors." RAP 10.10(c). There

is insufficient argument to address the third ground.

16
No. 31298-4-III
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Ineffective assistance ofcounsel. Mr. Carrasco argues he was provided ineffective

assistance of counsel when his trial lawyer failed to seek an exceptional sentence

downward. To succeed on an ineffective assistance of counsel claim, a defendant must

articulate why his lawyer's performance fell below the standard of care and how, but for

his lawyer's ineffective representation, there was a reasonable probability the result of the

proceeding would have been different. Mr. Carrasco appears to argue that his lawyer

should have argued that the multiple offense policy resulted in a clearly excessive

presumptive sentence.

Mr. Carrasco's lawyer did argue for a low-end standard range sentence. See

RP at 50 ("We'd ask the Court to use its leniency and discretion in this matter, Your

Honor, and impose the bottom of the range in Counts 1-5 and Count 6. We'd also ask the

Court that it not impose any additional time for any aggravating factors, any gang factors

that was voted on by the jury.... We'd ask Your Honor, if you'd take that into

consideration and that you impose the bottom ofthe range so he may have possibly some

life still left out of prison."). It does not appear that his trial lawyer's performance was

deficient.

Even if it were, Mr. Carrasco does not show the required prejudice. The court was

asked for leniency and had discretion to impose an exceptional sentence downward

whether it was asked for or not. Instead, it found substantial and compelling reasons to

No. 31298-4-II1
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impose an exceptional sentence upward. Mr. Carrasco fails to explain how his lawyer's

articulation of a different basis for a mitigated sentence would have changed anything.

Offender score. Mr. Carrasco voices a number of complaints in his fifth and final

ground, dealing with his offender score. But he fails to sufficiently identify the trial

court's claimed error. Here again, his argument is insufficient to permit review.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

WE CONCUR:

Brown, J.