(:'..... . SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, )
) No. 92389-2
V. )
)
FABIAN ARREDONDO, ) EN BANC
)
Petitioner. )
)
and ) FILED MAY O4 2017
)
RUDY MADRIGAL, )
)
Defendant. )
________ )
FAIRHURST, C.J.-Fabian Arredondo appeals his accomplice liability
convictions of one count of second degree murder and three counts of first degree
assault. A jury found beyond a reasonable doubt that Arredondo, a Nortefio gang
member, drove a vehicle from which his cousin and fellow Nortefio, Rudy Madrigal,
fired gunshots into a vehicle occupied by alleged Surefio gang members. One shot
State v. Arredondo, No. 92389-2
struck the driver, Ladislado Avila, in the head, and he later died at the hospital as a
result of his gunshot wound.
The Court of Appeals affirmed. State v. Arredondo, 190 Wn. App. 512, 360
P.3d 920 (2015). We granted Arredondo's petition for review on only two issues,
both of which were trial court rulings on motions in limine. State v. Arredondo, 185
Wn.2d 1024, 369 P.3d 502 (2016). First, the trial court allowed the State to introduce
ER 404(b) evidence linking Arredondo to an uncharged February 9, 2009 drive-by
shooting. Second, the trial court barred Arredondo from cross-examining the State's
key witness, Maurice Simon, about Simon's past mental health diagnoses, as well as
past alcohol and drug use. Simon would later testify that Arredondo admitted his
role in the shooting to him while they shared a jail cell.
In neither instance did the trial court commit reversible error. We affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual background
Late in the evening of December 4, 2009, Arredondo and Madrigal attended
a party in Toppenish along with other Nortefios. Surefios Miguel Vasquez, Avila,
and Gabriel Rodarte attended the party as well. The local Nortefio and Surefio gangs
have a history of bad blood. A fistfight ensued shortly after the Surefios arrived.
Vasquez was involved and appeared to get the worst of it. Once the fistfight ended,
party goers dispersed. Rodarte, Vasquez, and Avila left together, along with
2
State v. Arredondo, No. 92389-2
Maximina Castillo, to whom they offered a ride as they were leaving. Of these four,
only Rodarte and Castillo testified at trial. 1
Shortly after leaving the party, Avila and his passengers noticed a blue Honda
with tinted windows headed in the opposite direction of their car. The Honda made
a U-turn and began to follow them. This eventually led to a high speed chase. The
chase terminated when someone in the Honda fired shots into Avila's car. The
Toppenish Police Department received a shots fired call at 1: 10 a.m. on December
5, 2009. One of the shots struck Avila in the head. He lost control of the vehicle and
crashed into a tree. Avila later died at the hospital from his gunshot wound. His
passengers were not seriously injured. Neither Rodarte nor Castillo could identify
the Honda's occupants, other than to say they looked like two males.
On December 12, 2009, the Toppenish police recovered a vehicle matching
the Honda used in the shooting. It was parked between two businesses on a gravel
drive in Wapato and had been wiped clean of all incriminating evidence. The police
were unable to recover fingerprint, deoxyribonucleic acid, or any other physical
evidence from the vehicle.
Arredondo was arrested that same day based on statements from others who
attended the party. They indicated Arredondo drove the Honda during the shooting.
In the days following his arrest, Arredondo shared a cell with Simon in the Yakima
1
Avila was killed in the events to follow, and Vasquez was not available to testify.
3
State v. Arredondo, No. 92389-2
County jail. Simon later claimed that during their time in the cell, Arredondo
admitted his role in the shooting.
B. Motions in limine
Prior to the trial, Arredondo made a motion in limine to bar evidence the State
sought to introduce pursuant to ER 404(b) of Arredondo' s involvement in a previous
drive-by shooting with suspected Nortefio/Surefio gang ties. He was never charged
in the incident. Following offers of proof, the trial court ruled the State could present
testimony from Detectives Dustin Dunn and Jaban Brownell relating to this incident
for noncharacter purposes. It did so after finding that the evidence had probative
value and that the "probative value outweighs the prejudicial effect." Suppl. to Oct.
10, 2011 Verbatim Report of Proceedings (SVRP) at 26-27.
Arredondo also made a motion in limine for the trial court to determine what
scope limitations would apply to his cross-examination of Simon regarding Simon's
previous mental health diagnoses and past drug and alcohol use. This motion
followed a pretrial interview in which Simon indicated that he had previously been
diagnosed with posttraumatic stress disorder (PTSD) and other mental health
limitations. Simon also indicated in the interview that he had been an alcoholic and
drug abuser in the past.
The court said it would withhold its ruling on the motion until it had a chance
to "listen to [Simon] outside the presence of the jury." SVRP at 9. When that
4
State v. Arredondo, No. 92389-2
occurred, Simon described his past mental health diagnoses, short-term memory
limitations, and previous drug and alcohol use. Simon also indicated that none of
these issues would affect his testimony regarding Arredondo' s admission. He further
indicated that he had not used drugs or alcohol in the prior six to eight months. The
court then barred inquiries during cross-examination into Simon's mental health or
his past substance abuse because Simon did not appear currently impaired and
evidence associated with previous limitations would be irrelevant, not probative, and
highly prejudicial.
C. Arredondo's trial
Arredondo testified in his own defense and indicated he had no role in the
December 5, 2009 shooting. He claimed he left the party with his friend Gabriel
Limone in a white Chevrolet Impala and that they went directly to his uncle's house
from the party. Limone was not available to testify to confirm this account. Effrain
Arredondo, Arredondo's uncle, was available. He testified that his nephew arrived
at his house between 12:00 and 12:15 a.m. the morning of December 5, 2009 and
did not leave again until 9:30 a.m. that same morning.
The State presented little evidence directly linking Arredondo to the shooting.
As the trial court noted, the case had a "strong undercurrent of intimidation . . . .
Many of the witnesses are -- are visibly afraid to be here and to be testifying." 3
Verbatim Report of Proceedings (VRP) (Oct. 13, 2011) at 405. For example,
5
State v. Arredondo, No. 92389-2
Arredondo refused to say who at the party had firearms because it would be
dangerous for him to "talk against another Norteno." 6 VRP (Oct. 19, 2011) at 789-
90, 793.
Maria Marquez Vevallos was one of the only people to testify who had
attended the party. She indicated that her brother, Alberto Marquez, owned a blue
Honda Accord and he indicated that night that he lent it to some "homeys." 4 VRP
(Oct. 17, 2011) at 544-45. She believed Arredondo was the "homey" her brother
referenced. Id. at 548. She also indicated she had not seen the vehicle since the party.
Her brother was not available to testify.
Consistent with an offer of proof previously provided by the State, Detectives
Dunn and Brownell testified that on February 9, 2009, they were dispatched to the
scene of a drive-by shooting in a known Surefio gang neighborhood. The victim
claimed the shooting came from a vehicle resembling a Mercedes. Dunn located a
.38 caliber spent shell casing at the scene. Two weeks later, Community Corrections
Officer (CCO) Michael Hisey and Probation Officer Jim Stine visited Arredondo at
his home regarding an unrelated matter. Upon arriving, they noticed a silver
Mercedes. They located keys to the vehicle in Arredondo' s pocket and, upon
searching the vehicle, found a .3 8 caliber spent shell casing in the car. The
Washington State Patrol Crime Laboratory confirmed that the shell casing in the
6
State v. Arredondo, No. 92389-2
Mercedes matched the one that Dunn recovered at the scene of the February 9, 2009
shooting and that both casings were fired from the same weapon.
Before Officer Dunn's testimony on the February 9, 2009 shooting, the trial
court instructed the jury that his testimony could be used only for purposes of"issues
of identity and motive and intent" and could not be used to determine if Arredondo
"acted in a similar fashion on February the 9th of 2009 to what he's alleged to have
done on December the 5th of 2009." 4 VRP at 466. Similarly, prior to CCO Hisey's
testimony, the court instructed the jury to "consider testimony relating to that alleged
event [as] appl[ying] equally to this witness's testimony." Id. at 479. Finally,
following the trial, the court issued written jury instructions to consider this evidence
only for purposes of defendant's "alleged intent, motive and/or identity" and not for
any other purpose. Clerk's Papers (CP) at 63. The trial court asked whether
Arredondo had any objections to this written jury instruction on multiple occasions.
Arredondo indicated he had none.
Simon told the jury that he and Arredondo shared time in a cell together and
during that time, Arredondo admitted his role in the December 5, 2009 drive-by
shooting. Simon's testimony included details he would not otherwise have reason to
know, including the fact that Arredondo used a Honda Accord that he wiped down
before ditching, that his uncle would provide him an alibi for that evening, and that
"he wouldn't have been in there if it weren't for his stupid cousin who had ran his
7
State v. Arredondo, No. 92389-2
mouth in front of a couple people who ended up reporting it." 5 VRP (Oct. 18, 2011)
at 573. Simon also testified that Arredondo disclosed the names of some of the
victims and others present at the party who Arredondo was concerned may implicate
him in the shooting. Both Simon and Detective Brownell confirmed that Simon
approached law enforcement with this information. They did not seek him out.
The jury returned a guilty verdict on all charges: Avila's second degree
murder count and the first degree assault count on Vasquez, Rodarte, and Castillo.
The trial court issued a judgment and sentence consistent with this verdict.
D. Subsequent procedural history
Arredondo appealed several rulings to the Court of Appeals, including
whether the trial court's holding allowing introduction of evidence of the prior drive-
by shooting was reversible error and whether the trial court's ruling barring cross-
examination into Simon's mental health and past drug use was a violation of
Arredondo's confrontation right. See CONST. amend VI. In a published decision, the
Court of Appeals upheld the trial court on all counts. Arredondo, 190 Wn. App. at
512. We granted review on only the ER 404(b) and cross-examination issues. Order,
State v. Arredondo, No. 92389-2 (Wash. Apr. 29, 2016).
8
State v. Arredondo, No. 92389-2
II. ISSUES 2
A. Did the trial court abuse its discretion in allowing the State to introduce
evidence of Arredondo's involvement in the February 9, 2009 drive-by shooting?
B. Did the trial court abuse its discretion when it barred inquiry into
Simon's mental state during cross-examination?
III. ANALYSIS
The trial court did not abuse its discretion and, therefore, did not commit error
when admitting evidence of the February 9, 2009 drive-by shooting. It reasonably
applied the relevant standard under ER 404(b) in admitting such evidence. Nor did
the trial court abuse its discretion and thereby violate Arredondo's confrontation
right under the Sixth Amendment to the federal constitution when barring questions
into Simon's mental state. It reasonably held the evidence irrelevant, not probative,
and highly prejudicial, consistent with the standards this court articulated in State v.
Darden, 145 Wn.2d 612, 41 P.3d 1189 (2002).
A. The trial court did not abuse its discretion in admitting evidence of
Arredondo's involvement in the February 9, 2009 drive-by shooting
1. Standard of review
The interpretation of an evidentiary rule is a question of law that we review
de novo. Diaz v. State, 175 Wn.2d 457, 461-62, 285 P.3d 873 (2012) (citing State v.
2
Arredondo, in his supplemental brief, raises cumulative error for the first time. This is
improper and in any event is without merit.
9
State v. Arredondo, No. 92389-2
Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)). So long as the trial court
interpreted the rule correctly, we will review its decision to admit or exclude
evidence under ER 404(b) for "an abuse of discretion." State v. Gresham, 173 Wn.2d
405, 419, 263 P.3d 207 (2012) (citing Foxhoven, 161 Wn.2d at 174). "Abuse of
discretion" means "no reasonable judge would have ruled as the trial court did."
State v. Mason, 160 Wn.2d 910,934, 162 P.3d 396 (2007) (citing State v. Vy Thang,
145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). Put another way, to reverse we must
find the decision is '"unreasonable or is based on untenable reasons or grounds."'
Id. at 922 (quoting State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)).
2. The trial court reasonably applied ER 404(b)
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
ER 404(b).
In order for a trial court to admit evidence of past wrongs, ER 404(b) requires
the trial court to
"( 1) find by a preponderance of the evidence that the misconduct
occurred, (2) identify the [permissible] 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) weigh the
probative value against the prejudicial effect."
10
State v. Arredondo, No. 92389-2
Gresham, 173 Wn.2d at 421 (quoting Vy Thang, 145 Wn.2d at 642). This analysis
must be conducted on the record, and if the evidence is admitted, a limiting
instruction is required. Foxhoven, 161 Wn.2d at 175. The trial court reasonably
applied each prong on the record and issued appropriate limiting instructions.
Therefore, it did not abuse its discretion.
a. First prong: the trial court reasonably determined that the State
met the preponderance of the evidence standard
"The preponderance of the evidence standard requires that the evidence
establish the proposition at issue is more probably true than not true." Mohr v. Grant,
153 Wn.2d 812, 822, 108 P.3d 768 (2005) (citing In re Welfare of Sego, 82 Wn.2d
736, 738 n.2, 513 P.2d 831 (1973)). As with all other prongs, we review the trial
court's first-prong assessment for an abuse of discretion. Gresham, 173 Wn.2d at
419. 3
Before presenting evidence to the jury, the State presented a proffer to the trial
court that two weeks after a drive-by shooting, a shell casing was found in a
Mercedes in Arredondo' s control matching a casing found in front of a home
targeted in an earlier shooting, the targeted home is in a known Surefio
neighborhood, witnesses indicated a Mercedes-like vehicle was responsible for the
3
The relevant standard of review for this or any other prong is not in dispute. Arredondo
concedes it is the "abuse of the court's discretion" standard. Pet. for Review at 13. See State v.
Ashley, 186 Wn.2d 32, 40, 375 P.3d 673 (2016) (unanimous decision applying the abuse of
discretion standard to review of a trial court's finding on the first prong of an ER 404(b) claim).
11
State v. Arredondo, No. 92389-2
earlier shooting, and Arredondo is an admitted Nortefio. Based on these facts, it
would be reasonable for a court to conclude that Arredondo was more "probably"
than not involved in the incident. Mohr, 153 Wn.2d at 822.
Mere evidence of gang affiliation is not sufficient to meet the State's burden.
State v. Asaeli, 150 Wn. App. 543, 578, 208 P.3d 1136 (2009); State v. Acosta, 123
Wn. App. 424,434, 98 P.3d 503 (2004); United States v. Bradley, 5 F.3d 1317, 1320
(9th Cir. 1993). But the State presented evidence far beyond gang affiliations and
other similarly inconclusive evidence. The State presented significant evidence
unequivocally tying Arredondo's vehicle to the prior shooting directed at Surefios. 4
Therefore, it was reasonable for the trial court to find this evidence sufficient to meet
the preponderance standard. 5
4
The dissent asserts the State offered no more than "meager evidence that Arredondo or
another member of his alleged gang could have been" involved in the prior shooting. Dissent at 5.
I disagree. Witnesses to the first shooting indicated the perpetrator used a vehicle "like a
Mercedes." 4 VRP at 468. Arredondo' s uncle testified on direct that he "knows [Arredondo] drives
a Mercedes." 5 VRP at 711. When officers arrived at Arredondo's home, they discovered a
Mercedes in Arredondo' s possession. Upon searching the vehicle, they discovered a spent shell
casing that, according to the Washington State Patrol Crime Laboratory, was fired from the same
weapon as a casing recovered at the scene of the prior shooting. Finally, the prior shooting was in
a known Surefio neighborhood and Arredondo is a self-avowed Nortefio.
5
Given the two-week gap between the February 9, 2009 shooting and the subsequent
recovery of the matching shell casing in Arredondo's Mercedes, it may be unreasonable for a court
to find this evidence meets an evidentiary standard higher than preponderance. But it is not
unreasonable to conclude that it is more likely than not that Arredondo's vehicle, and by
implication Arredondo, was involved in the shooting.
12
State v. Arredondo, No. 92389-2
Although the trial court never specifically referenced the preponderance of the
evidence standard when it weighed the State's proffered evidence, a trial court need
not explicitly do so when performing an ER 404(b) analysis, so long as a finding
that the standard has been met can be implied from a record clearly demonstrating
as much. State v. Stein, 140 Wn. App. 43, 66, 165 P.3d 16 (2007); Asaeli, 150 Wn.
App. at 576 n.34. The trial court record meets this benchmark.
b. Second and third prongs: the trial court reasonably identified the
relevant noncharacter purpose(s) for which the evidence was to
be admitted
We must guard against using "motive and intent as 'magic passwords whose
mere incantation will open wide the courtroom doors to whatever evidence may be
offered in their names.'" State v. Saltarelli, 98 Wn.2d 358, 364, 655 P .2d 697 (1982)
(quoting United States v. Goodwin, 492 F.2d 1141, 1155 (5th Cir. 1974)). Here, the
trial court did no such thing. It held that the prior incident could be used for motive
and intent because it spoke to "Arredondo's animosity towards people who are of
the Sureno persuasion." SVRP at 26-27. Such evidence would have been particularly
relevant here, where witnesses were unwilling to speak freely. A jury would need to
glean motive and intent through other means.
Arredondo asserts such evidence is irrelevant to show motive because "the
gang nature of the [December shooting] was never in dispute." Pet'r's Suppl. Br. at
11. This assertion misconstrues what makes evidence relevant. Evidence is
13
State v. Arredondo, No. 92389-2
"relevant" if it makes the existence of a fact of consequence more or less probable
to be true than without the evidence. State v. Lough, 125 Wn.2d 847, 861-62, 889
P.2d 487 (1995) (citing ER 401).
As the trial court noted, evidence of a prior drive-by shooting is relevant to
assess Arredondo' s culpability in the December shooting because it demonstrates
Arredondo's particular motive in reacting violently toward Avila, Vasquez, Rodarte,
and Castillo for the simple offense of being Surefios at a Nortefio party-i.e., a deep-
seated animosity toward Surefios. This animosity goes beyond the routine friction
between gangs, or even the "history of bad blood" between these particular gangs. 2
VRP (Oct. 12, 2011) at 86.
Arredondo cites Saltarelli to support his relevancy argument. 98 Wn.2d at
358. But the case is inapposite. In Saltarelli, the State sought to introduce evidence
of a previous rape in order to show motive for a current rape. Id. at 359. As we
pointed out at the time, "[i]t is by no means clear how an assault on a woman could
be a motive or inducement for defendant's rape of a different woman almost 5 years
later." Id. at 365. Therefore, we reasoned that "the evidence seems to achieve no
more than to show a general propensity to rape." Id. But the evidence of the February
9, 2009 shooting was used here to demonstrate Arredondo' s motive and intent in the
later shooting, not Arredondo's propensity to engage in drive-by shootings.
14
State v. Arredondo, No. 92389-2
While the dissent is correct that evidence of a prior shooting directed at, rather
than by, Arredondo would provide a motive for Arredondo to later target Surefio
gang members, the opposite is also true. Evidence of a past attack by a defendant
toward a victim is admissible pursuant to ER 404(b) if the evidence demonstrates an
ill feeling between the two. State v. Powell, 126 Wn.2d 244, 260-61, 893 P.2d 615
(1995); see State v. Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997) ("evidence
of quarrels and ill-feeling may be admissible to show motive, and evidence of prior
threats is also admissible to show motive or malice if the evidence is of consequence
to the action." (citing Powell, 126 Wn.2d at 260)). 6 Arredondo's involvement in the
prior shooting demonstrates the highly strained and toxic relationship between local
Nortefio and Surefio gang members and the level of Arredondo's animosity toward
Surefios.
Arredondo targeted different individuals in the February 9 and December 4,
2009 shootings. But this is of no matter. All victims shared a key common trait-
Surefio gang membership. The level of Arredondo's animosity toward a group of
people, rather than an individual, is equally relevant in establishing motive. See,
6
Other jurisdictions have reached similar holdings. See, e.g., Bacchus v. United States, 970
A.2d 269, 274 (D.C. 2009) (defendant's past assault of current victim was admissible to show
defendant's motive or intent in current assault); People v. Dorm, 12 N.Y.3d 16, 19, 903 N.E.2d
263 (2009) (same); United States v. Howard, 692 F.3d 697, 704-05 (7th Cir. 2012) (defendant's
past threat toward current victim was permissible under Federal Rule of Evidence 404(b) to show
motive for attempted murder of victim).
15
State v. Arredondo, No. 92389-2
e.g., State v. Peerson, 62 Wn. App. 755, 776, 816 P.2d 43 (1991) (evidence of
defendant's earlier assaults on marijuana growers was admissible pursuant to ER
404(b) to demonstrate motive for defendant's later assault and murder of other
marijuana growers), review denied, 118 Wn.2d 1012, 824 P.2d 491 (1992); United
States v. Woodlee, 136 F.3d 1399, 1409-10 (10th Cir. 1998) (evidence of defendant's
past refusal to attend an event when he learned persons of '"mixed race' would also
attend" was admissible pursuant to Federal Rule of Evidence 404(b) to demonstrate
defendant's motive in later attacking three African-American men); United States v.
Franklin, 704 F.2d 1183, 1188-89 (10th Cir. 1983) (evidence of defendant's
previous attack on an interracial couple similarly admissible); State v. Davis, 6 Idaho
159, 171-72, 53 P. 678, 682 (1898) (evidence of defendant cattleman's previous
threats and attacks toward sheepherders was admissible to prove motive for alleged
subsequent murder of a sheepherder).
In addition to motive and intent, the trial court indicated the prior shooting
"goes to show identity" of the perpetrator of the current shooting. SVRP at 27. But
the two incidents do not share a unique modus operandi and are not sufficiently
similar to prove identity. See State v. Smith, 106 Wn.2d 772, 777, 725 P.2d 951
(1986) ('"The method employed ... must be so unique that mere proof that an
accused committed one ... creates high probability that he also committed the act
charged.'" (emphasis omitted) (quoting State v. Laureano, 101 Wn.2d 745,764,682
16
State v. Arredondo, No. 92389-2
P.2d 889 (1984))); see also Foxhoven, 161 Wn.2d at 175-77 (evidence of past acts
of graffiti could be used to prove identity of the perpetrator in the current crime even
though the mediums employed, the styles applied, and the fonts used varied, but only
because all instances contained a unique "tag," or identifier). Nevertheless, the trial
court's reliance on identity is irrelevant. Motive and intent were a sufficient basis to
support introduction of this evidence, and the trial court reasonably concluded that
the prior incident demonstrated both. Arredondo had a deep-seated animosity toward
Surefios. Based on this motive, he acted with the intent to inflict great bodily harm
and/or kill Avila and the occupants of his vehicle. 7 The trial court's finding was not
unreasonable.
Arredondo argued for the first time during oral argument to this court that the
trial court committed error when it instructed the jury that evidence of the earlier
shooting could be used for both a permissible purpose-motive and intent-and an
impermissible purpose-identity. But Arredondo provides no citation to support this
argument. See State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978) (if a party
does not provide a citation to support an asserted proposition, courts may "'assume
that counsel, after diligent search, has found [no supporting authority]"' (quoting
7 Motive and intent are often used interchangeably. They have different meanings.
"Motive" speaks to the "cause or reason that moves the will," Tharp, 96 Wn.2d at 597, in other
words, what prompted a defendant to take criminal action (e.g., attack a victim). "Intent" speaks
to the "state of mind with which the act is done," Powell, 126 Wn.2d at 261, in other words, what
the defendant hopes to accomplish when motivated to take action (e.g., inflict great bodily harm
or death). The trial court held Arredondo's deep-seated animosity toward Suref'ios relevant to both.
17
State v. Arredondo, No. 92389-2
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)); see
also RAP 10.3(a)(6) (arguments made must include supporting "citations to legal
authority").
Even if this argument has merit, the issue is not properly before us. See State
v. Duncan, 185 Wn.2d 430, 435 n.2, 374 P.3d 83 (2016) (we generally decline to
consider arguments not properly before us). Arredondo did not raise the issue in his
prior appeal, his petition for review, or his supplemental briefing. See State v. Brown,
113 Wn.2d 520, 528-29, 782 P.2d 1013 (1989) (declining to decide whether a jury
instruction containing both a permissible and impermissible purpose under ER
404(b) was a basis for reversal when the issue was not properly argued on appeal);
see also In re Pers. Restraint of Coats, 173 Wn.2d 123, 136 n.8, 267 P.3d 324 (2011)
(we generally decline consideration of arguments not briefed); State v. Chamberlin,
161 Wn.2d 30, 36 n.3, 162 P.3d 389 (2007) (same).
Most importantly, Arredondo failed to object to the jury instruction when
proposed by the trial court, even though he was given multiple opportunities to do
so. See 6 VRP at 811-13 (Arredondo failed to raise the issue when the trial court
asked, after reviewing the jury instructions, "[A]ny objection to instructions given
or not given" or if there were "any further exceptions?"). "An established rule of
appellate review in Washington is that a party generally waives the right to appeal
18
State v. Arredondo, No. 92389-2
an error unless there is an objection at trial." State v. Kalebaugh, 183 Wn.2d 578,
582, 355 P.3d 253 (2015).
The trial court identified a permissible purpose under ER 404(b) for evidence
associated with the February shooting to be presented to the jury-motive and
intent-and then considered its relevancy in demonstrating Arredondo' s mens rea in
the December shooting. This is a reasonable application of the second and third
prongs of the required ER 404(b) analysis.
c. Fourth prong: the trial court reasonably weighed the probative
value versus the substantial prejudicial effect of evidence of the
prior shooting
Evidence of Arredondo's participation in a prior drive-by shooting would
have been highly prejudicial. To properly admit such evidence, the trial court had to
reasonably determine that the probative value of the allegation was similarly high.
See Lough, 125 Wn.2d at 863 ("Because substantial prejudicial effect is inherent in
ER 404(b) evidence, uncharged offenses are admissible only if they have substantial
probative value."). The court found that the prior shooting had "probative value in
identifying [motive and intent] .... So, under the circumstances, I believe that the
probative value outweighs the prejudicial effect." SVRP at 26-27. Given the
apparent code of silence between the witnesses, perpetrators, and victims, the
probative value of evidence demonstrating Arredondo's motive to attack Avila and
his passengers with an intent to kill or inflict great bodily harm would be particularly
19
State v. Arredondo, No. 92389-2
high here. See Old Chief v. United States, 519 U.S. 172, 185, 117 S. Ct. 644, 136 L.
Ed. 2d 574 (1997) ('"The probative worth of any particular bit of evidence is
obviously affected by the scarcity or abundance of other evidence on the same
point.'" (quoting CHARLES ALAN WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND
PROCEDURE § 5250, at 546-47 (1978))); Dale A. Nance, Conditional Probative
Value and the Reconstruction of the Federal Rules of Evidence, 94 MICH. L. REV.
419, 423 (1995) ("the probative value of every piece of evidence is conditional upon
other evidence").
Arredondo counters that the prejudicial effect from evidence of past
unconvicted crimes is impermissibly high because the current jury may "feel that the
defendant should be punished somehow, for a broad swath of general criminal
wrongdoing." Pet'r' s Suppl. Br. at 13 (citing United States v. Bradley, 5 F.3d 1317,
1321 (9th Cir. 1993)). But the court gave repeated limiting instructions-both oral
instructions before each officer testified as to their findings on the February incident
and written instructions following the presentation of all evidence-that the past
crime cannot be used to show a propensity to commit the current crime. This
instruction mitigated the prejudicial effect of the evidence of the prior shooting.
Lough, 125 Wn.2d at 864. Juries are presumed to follow the court's instructions,
absent evidence to the contrary. State v. Dye, 178 Wn.2d 541, 556, 309 P.3d 1192
(2013). Arredondo provides no such evidence.
20
State v. Arredondo, No. 92389-2
The trial court reasonably balanced the substantial prejudicial effect of the
February shooting against its substantial probative value. Absent substituting our
own judgment, we cannot find the trial court's decision unreasonable.
Because the trial court reasonably applied the four prongs articulated above,
it did not abuse its discretion. We affirm on the ER 404(b) issue.
B. The trial court did not abuse its discretion when it barred cross-examination
into Simon's mental state
1. Standard of review
We review a cross-examination scope limitation for a manifest abuse of
discretion. 8 State v. Garcia, 179 Wn.2d 828,844,318 P.3d 266 (2014); Darden, 145
Wn.2d at 619. A manifest abuse of discretion arises when "the trial court's exercise
of discretion is 'manifestly unreasonable or based upon untenable grounds or
reasons.'" Darden, 145 Wn.2d at 619 (quoting Powell, 126 Wn.2d at 258).
2. The right of confrontation
The confrontation clause of the Sixth Amendment (applicable to the State via
the Fourteenth Amendment) guarantees the right of a criminal defendant "to be
confronted with the witnesses against him." U.S. CONST. amends. VI, XIV.
Similarly, article I, section 22 of the Washington Constitution guarantees the right
8
For a ruling barring cross-examination entirely, we apply a de novo standard. State v.
Jones, 168 Wn.2d 713,719,230 P.3d 576 (2010).
21
State v. Arredondo, No. 92389-2
of a defendant to "meet the witnesses against him face to face." 9 Cross-examination
is the "principal means by which the believability of a witness and the truth of his
testimony are tested." Davis v. Alaska, 415 U.S. 308,316, 94 S. Ct. 1105, 39 L. Ed.
2d 347 (1974). "Whenever the right to confront is denied, the ultimate integrity of
this fact-finding process is called into question .... As such, the right to confront
must be zealously guarded." Darden, 145 Wn.2d at 620.
This right is not absolute. "The scope of such cross examination is within the
discretion· of the trial court." State v. Russell, 125 Wn.2d 24, 92, 882 P.2d 747
(1994); see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed.
2d 674 (1986) (Trial courts "retain wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things . . . prejudice . . . or only marginal[]
relevan[ce]."). Darden provides a three-step process to determine whether a cross-
examination limitation violates the right of confrontation. 145 Wn.2d at 622.
Darden, in tum, is an evolution of a similar two-part test put forth in State v. Hudlow,
99 Wn.2d 1, 15,659 P.2d 514 (1983). In order for a cross-examination limitation to
violate the confrontation clause, the testimony sought by the defendant, but excluded
by the trial court, must (1) be minimally relevant and (2) not be so prejudicial as to
9
Neither party argues that article I, section 22 of our constitution provides different
confrontation right protections from the Sixth Amendment, so our focus is the Sixth Amendment.
22
State v. Arredondo, No. 92389-2
disrupt the fairness of the fact-finding process at trial, and (3) the defendant's need
for relevant but prejudicial information must outweigh the State's interest in
withholding that information from the finder of fact. State v. Jones, 168 Wn.2d 713,
720-21, 230 P.3d 576 (2010) (quoting Darden, 145 Wn.2d at 622). No State interest
is sufficiently compelling to preclude evidence with highly probative value. Id.
3. Simon's cross-examination
Based on testimony Simon provided to the trial court outside the presence of
the jury, the court determined Simon's past mental health diagnoses as well as his
admitted previous drug and alcohol use could be excluded from cross-examination
because such information was irrelevant, not probative, and highly prejudicial. For
the reasons discussed below, these were reasonable findings. Further, Arredondo
does not demonstrate that his need for the evidence outweighed the State's interest
in withholding it, given the impeachment evidence the trial court did allow him to
use during trial. Therefore, the trial court did not abuse its discretion in barring this
line of questioning.
a. Mental health evidence
In United States v. Love, the Eighth Circuit Court of Appeals held that a trial
court should apply the following factors to assess whether past mental health issues
are permissible on cross-examination: "1) the nature of the psychological problems;
2) whether the witness suffered from the condition at the time of the events to which
23
State v. Arredondo, No. 92389-2
the witness will testify; [and] 3) the temporal recency or remoteness of the
condition." 329 F.3d 981,984 (8th Cir. 2003) (citing Boggs v. Collins, 226 F.3d 728,
742 (6th Cir. 2000)); see United States v. Robinson, 583 F.3d 1265, 1274-75 (10th
Cir. 2009) (trial court's failure to engage in such searching analysis prior to barring
cross-examination was not harmless error); see also United States v. Sasso, 59 F.3d
341, 347-48 (2d Cir. 1995) (trial court's searching analysis was sufficient to bar
cross-examination implicating mental health issues). These factors provide trial
courts an effective means to consider the relevancy, probative value, and prejudicial
effect from the disclosure of a witness' mental health limitations. We adopt these
factors and apply them here.
Simon admitted during a pretrial defense interview, in response to the
question of whether he had ever taken a polygraph exam before, that he had, but he
added he failed the exam due to "PTSD, anxiety disorder and depression with
intersensitive personality-- interpersonality sensitivities." CP at 166. In order to later
assess whether those admitted mental health limitations were a permissible area of
inquiry on cross-examination, the trial court elicited testimony from Simon outside
the presence of the jury.
Simon confirmed during this testimony that on an application for general
assistance unemployment he admitted to having been diagnosed with "depression,
problems with concentration and anxiety, PTSD, does not trust people, hypervigilant
24
State v. Arredondo, No. 92389-2
due to being homeless, tends to be superficial and distant ... [, and] [p ]roblems with
concentration and anxiety." 5 VRP at 561. He also admitted to short-term memory
problems resulting from his past drug use. But Simon also claimed,
[M]y memory is fine. I could tell you what you wore the day we had
the interview. I could tell you how many words you said if I really had
to count, but you really didn't say that much .... Right now as I sit
here in this court chair after recollecting over the things I've heard in
the few days I was in the cell with Mr. Arredondo, I have no problems
remembering.
Id. at561-62.
Based on this testimony, the court concluded Simon's past mental health
diagnoses had "nothing to do with Mr. Simon's ability to accurately recall and to
describe the events ... that he is going to be called upon to describe in his testimony."
Id. at 566-67. Nor did the court "see how short-term memory is implicated here
because [Arredondo's disputed confession] isn't something that occurred earlier this
morning or last night or something like that. This is something weeks and months
ago." Id. at 566. The trial court also concluded that "the probative value of inquiry
into those is negligible[, yet] [t]he prejudicial effect, on the other hand, is enormous.
You could label him as a mental case ... so that the jury would disbelieve anything
he had to say because he has some type of a psychiatric disorder." Id. at 567. The
trial court then barred "inquiry into Mr. Simon's mental state now or in the past." Id.
The trial court's analysis is consistent with the factors described in Love.
Further, it accurately reflects Darden's first two steps-a reasonable assessment of
25
State v. Arredondo, No. 92389-2
relevancy and a reasonable comparison of the probative value versus the prejudicial
effect of the testimony. 10 Based on this analysis, the court then concluded the mental
health evidence was completely irrelevant, nominally probative, and highly
prejudicial. These findings and the court's resulting ruling were neither "'manifestly
unreasonable [n]or based upon untenable grounds.'" Darden, 145 Wn.2d at 619
(quoting Powell, 126 Wn.2d at 258).
The Court of Appeals, in affirming the trial court's ruling barring cross-
examination into Simon's mental health, contrasted the actions of the trial court with
those of the trial courts in State v. Peterson, 2 Wn. App. 464, 466, 469 P.2d 980
(1970), and State v. Froehlich, 96 Wn.2d 301, 306, 635 P.2d 127 (1981). In those
cases, the trial courts abused their discretion by not allowing cross-examination of
witnesses' mental states because those witnesses' mental limitations were clearly
apparent on the stand. Id. Our decision in Froehlich should not be interpreted to
mean that so long as a witness' mental limitations are not readily apparent from the
witness' behavior on the stand, cross-examination regarding his or her mental health
10
Arredondo argues that the trial court improperly based its ruling on Simon's risk of
embarrassment rather than the risk of prejudicial effect to the jury from such testimony. This
argument is not supported by the record. The trial court's concern over the jury labeling Simon a
"mental case" was rooted in the court's fear that such a cross-examination would elicit "an
emotional response [rather] than a rational decision by the jury," Lockwood v. AC&S, 109 Wn.2d
235, 257, 744 P.2d 605 (1987) and, as a result, "the jury would disbelieve anything he had to say,"
5 VRP at 567.
26
State v. Arredondo, No. 92389-2
is solely at the discretion of the trial court. Given the complexities of mental health
limitations, a deeper analysis, as described above, is required.
b. Evidence of drug and alcohol use
If a witness' past use of intoxicants has not been shown to produce ongoing
mental deficiencies, such use is relevant only if the cross-examining party can
demonstrate that the witness was under the influence either at the time the witness
observed the events at issue or when the witness is called on to testify. See, e.g.,
State v. Thomas, 150 Wn.2d 821, 863, 83 P.3d 970 (2004); Russell, 125 Wn.2d at
83-84; State v. Benn, 120 Wn.2d 631,651,845 P.2d 289 (1993).
While Simon did admit to short-term memory loss due to past drug and
alcohol use, the trial court, as described above, concluded such issues would not
affect his testimony regarding Arredondo' s admission, which had occurred many
months prior. Nor was any evidence presented indicating that Simon was impaired
at the time of Arredondo' s purported admission to Simon. Indeed, Arredondo failed
to mention, when testifying to the jury on his own behalf, that Simon appeared
impaired to him when they previously shared a cell. Nor did Arredondo's counsel,
after Simon testified to the court outside of the presence of the jury, argue to the trial
court that Simon appeared impaired the day of his testimony.
Only on appeal does Arredondo assert Simon's drug and alcohol use could
have impaired his testimony and therefore be a relevant line of inquiry. No evidence
27
State v. Arredondo, No. 92389-2
supports this assertion, other than Simon's admission during a pretrial interview, and
again to the court outside the presence of the jury, that he had previously abused
drugs and alcohol. But following Simon's admission to the court, he also indicated
that he had not abused drugs or alcohol in the prior six to eight months.
Given the lack of evidence supporting a finding of impairment, the trial
court's ruling barring inquiry into Simon's past drug and alcohol use was neither
"'manifestly unreasonable [n]or based upon untenable grounds."' Darden, 145
Wn.2d at 619 (quoting Powell, 126 Wn.2d at 258).
c. Arredondo's need to introduce the evidence of Simon's past
mental health limitations and drug use was insignificant
Even if the evidence of Simon's past drug use and possible mental health
limitations had been marginally relevant, which the court reasonably concluded they
were not, Arredondo fails to show that his need to present this prejudicial
information to the jury outweighed the State's interest in withholding it. The trial
court did not limit Arredondo' s attempts to impeach Simon with questions during
cross-examination about the terms of Simon's assistance agreement; his prior
criminal history, including multiple convictions for crimes of dishonesty; Simon's
admission while testifying that he has a "problem staying focused and
comprehending sometimes when things run on," 5 VRP at 605-06; and
inconsistencies between Simon's testimony on direct examination and the
statements he made during his pretrial interview.
28
State v. Arredondo, No. 92389-2
From this evidence, Arredondo argued at closing that Simon has "a history of
felony convictions for crimes of dishonesty," including possession of stolen
property, third degree theft, residential burglary, and possession of controlled
substances; that he "expects to receive a favorable recommendation" on his current
sentence based on his testimony in Arredondo' s case; and that he has problems with
his "memory." 6 VRP at 843-44. Arredondo also cautioned the jury it "should be
concerned about [Simon's] credibility, his intent, his desire to receive favorable
treatment, and his memory." Id. at 844. Given the arguments Simon made at closing,
Arredondo' s need to present further impeachment evidence appears negligible.
Therefore, he fails to demonstrate satisfaction of Darden's third step.
The trial court reasonably applied Darden's requirements when it barred
cross-examination into Simon's mental health and past drug use. It did not abuse its
discretion and, as a result, did not violate Arredondo' s right of confrontation. We
affirm on the confrontation clause issue.
IV. CONCLUSION
The trial court did not abuse its discretion and thereby did not commit
reversible error in admitting evidence for a noncharacter purpose of a previous
shooting in which Arredondo was implicated in accordance with ER 404(b ). Nor did
it abuse its discretion and thereby violate Arredondo' s confrontation clause right in
29
State v. Arredondo, No. 92389-2
barring cross-examination into Simon's prior mental health diagnoses and substance
abuse. We affirm.
30
State v. Arredondo, No. 92389-2
WE CONCUR:
31
State v. Arredondo
No. 92389-2
GONZALEZ, J. (dissenting)-Fundamental to our system of justice is the
principle that an individual will be tried for the crime he or she is accused of
committing, not for crimes allegedly committed in the past. WASH. CONST. art. I, §
22; State v. Goebel, 36 Wn.2d 367, 368, 218 P.2d 300 (1950); Williams v. New
York, 337 U.S. 241,246, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949) ("the issue is
whether a defendant is guilty of having engaged in certain criminal conduct of
which he [or she] has been specifically accused"). In criminal trials, we generally
do not judge people or their acts by their character or past conduct. IA JOHN
HENRYWIGMORE,EVIDENCEINTRIALSATCOMMONLAW § 54.1, at 1156 (Tillers
rev. 1983); United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980) (this
precept is "fundamental to American jurisprudence"); United States v. Myers, 550
F.2d 1036, 1044 (5th Cir. 1977) ("concomitant of the presumption of innocence is
that a defendant must be tried for what he [or she] did, not for who he [or she] is").
Evidence of a person's character, offered to prove the person acted in
conformity with that character on a particular occasion, is forbidden. ER 404(b );
State v. Everybodytalksabout, 145 Wn.2d 456, 465-66, 39 P.3d 294 (2002); State v.
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
Mee, 168 Wn. App. 144, 153-54, 275 P.3d 1192 (2012). Our law does not
discriminate between the good and the bad in its safeguards. "The protection of
the law is due alike to the righteous and the unrighteous. The sun of justice shines
alike 'for the evil and the good, the just and the unjust.' Crime must be proved, not
presumed." People v. White, 24 Wend. 570, 574 (N.Y. 1840). For this reason, we
have adopted rules prohibiting the introduction of character evidence because it
incites the "deep tendency of human nature to punish" a defendant simply because
he or she is a bad person, WIGMORE, supra, § 57, at 1185, a "criminal-type"
deserving of conviction. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786
(2007).
These ideals have been enshrined in our jurisprudence for centuries. See
generally McKinney v. Rees, 993 F.2d 1378, 1381 & n.2 (9th Cir. 1993)
(explaining the rule precluding prior bad act evidence has "persisted since at least
1684 to the present"). I invoke these ideals because this case presents an
opportunity to correct a wrong that wounds the very heart of our criminal justice
system: the conviction of an individual, in part, for appearing to be a bad person.
Unfortunately, that is what has happened here.
Fabian Arredondo, though entitled to these protections before the law, was
denied them here. On the night of December '5, 2009, three Surefio gang members
were injured in a drive-by shooting. One young man died. Arredondo, a known
2
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
member of the rival Nortefio gang, was charged with and convicted of first degree
murder and assault in relation to this incident. The trial court allowed, over
defense objection, evidence of an unrelated and uncharged February 2009 drive-by
shooting as evidence of Arredondo' s "animosity towards people ... of the Sureno
persuasion." 1 Verbatim Report of Proceedings (VRP) (Oct. 10, 2011) at 26-27.
According to the trial court, this animosity illustrated identity, motive, and intent.
The majority accepts the trial court's reasoning even though the facts are
insufficient to support these conclusions. Because I disagree with the majority that
the evidence of a prior drive-by shooting in which Arredondo was a suspect falls
within the exception to ER 404(b ), I respectfully dissent.
In the law of evidence, as in the search for justice, truth matters. 1 KENNETH
S. BROUN ET AL., McCORMICK ON EVIDENCE§ 184, at 993 (7th ed. 2013). The
purpose of our evidentiary rules is to ensure fairness and unearth truth. Under ER
404(b ), evidence of a defendant's prior bad acts is presumptively inadmissible.
State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). ER 404(b) explains
that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
3
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
This rule forbids the State from suggesting that a defendant is guilty merely
because he or she appears to be a criminal who would likely commit the charged
crime. Everbodytalksabout, 145 Wn.2d at 466; Mee, 168 Wn. App. at 154. Guilt
by appearance "contradicts 'the fundamental American criminal law belief in
innocence until proven guilty, a concept that confines the fact-finder to the merits
of the current case in judging a person's guilt or innocence."' State v. Embry, 171
Wn. App. 714, 771, 287 P.3d 648 (2012) (Armstrong, J. Pro Tern., dissenting)
(quoting State v. Wade, 98 Wn. App. 328,336, 989 P.2d 576 (1999)); see also
State v. DeLeon, 185 Wn.2d 478,489,374 P.3d 95 (2016) (possessing music from
a prominent Latin American band is not evidence of gang membership).
To determine admissibility of evidence under ER 404(b ), the trial court must
conduct a four-part analysis. The court must (1) find by a preponderance of the
evidence that the uncharged act probably occurred, (2) identify the purpose for
which the evidence is admitted, (3) find it relevant to that purpose, and (4) balance
the probative value against its prejudicial effect. State v. Vy Thang, 145 Wn.2d
630, 642, 41 P.3d 1159 (2002) (citing State v. Lough, 125 Wn.2d 847, 853, 889
P.2d 487 (1995)). Doubtful cases should be resolved in the defendant's favor.
State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986) (quoting State v. Bennett,
36 Wn. App. 176, 180, 672 P.2d 772 (1983)). We review a trial court's ruling for
abuse of discretion, which occurs when a decision is manifestly unreasonable or
4
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
based on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893
P.2d 615 (1995).
Here, the State failed to establish Arredondo's probable involvement in the
February 2009 drive-by shooting. Nothing in the record indicates that he was the
shooter, the driver, or even in the car at the time of the incident. I recognize that
keys to a vehicle similar to the one suspected in the February shooting were found
in Arredondo' s pocket when police questioned him two weeks after the incident,
and a spent shell casing was discovered in the vehicle. This evidence establishes
that Arredondo had access to a vehicle that may have been involved in a crime two
weeks earlier. No evidence was presented that Arredondo had access to or even
constructive possession of the suspected car on the date of the shooting. See State
v. George, 146 Wn. App. 906, 919-20, 193 P.3d 693 (2008) (citing State v.
Callahan, 77 Wn.2d 27, 29,459 P.2d 400 (1969)) ("constructive possession"
defined). 1 The gun involved in the prior shooting was never located, and
Arredondo was never charged or convicted of any crime related to that shooting.
The meager evidence that Arredondo or another member of his alleged gang could
1
The record indicates that Arredondo may have had control of the vehicle at some point during
February 2009. 4 VRP (Oct. 17, 2011) at 481. A community corrections officer testified that the
silver Mercedes had been "previously searched," and the officer asserted, without explanation,
that the search established Arredondo' s "control" of the vehicle. Id. at 480-81. The officer did
not identify the date when this search occurred, nor did he provide additional details of the
search.
5
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
have been an accessory or principal in the drive-by shooting does not demonstrate
that Arredondo probably was. Such evidence falls far short of meeting the
preponderance standard to justify admissibility. Therefore, the February shooting
should have been excluded on this basis alone.
Even if we assume there was sufficient evidence to prove Arredondo' s
involvement in the earlier shooting, the February shooting does not show identity,
intent, or motive sufficient to fall within the permissible exceptions of ER 404(b ).
I agree with the majority that the earlier shooting was not sufficiently distinctive to
prove identity because it does not establish a unique modus operandi. An earlier
Nortefio versus Surefio drive-by shooting alone does not have any distinctive
characteristics to mark a later Nortefio versus Surefio shooting as handiwork of the
accused; it is not "so 'unusual and distinctive as to be like a signature."'
Foxhoven, 161 Wn.2d at 176-77 (internal quotation marks omitted) (quoting State
v. Coe, 101 Wn.2d, 777, 684 P.2d 668 (1984)). Sadly, it may not have been
unusual at all. See, e.g., State v. Weatherwax, 193 Wn. App. 667, 671-73, 376 P.3d
1150, rev 'd, 2017 WL 1292624; State v. Moreno, 173 Wn. App. 479, 489-90, 294
P.3d 812 (2013); State v. Rodriguez, 163 Wn. App. 215, 221-22, 259 P.3d 1145
(2011 ). In addition, different gang members were involved and different vehicles
were used. Compare 4 VRP (Oct. 17, 2011) at 467-68 (noting a Mercedes-like
vehicle suspected in the February shooting in a Surefio gang area), with id. at 469-
6
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
70 (discussing a Honda Accord suspected in the December shooting). That the
prior drive-by act occurred in the same general location as the charged crime does
not come close to establishing identity.
The inference of intent is similarly unavailing. To offer evidence of a prior
act to reveal intent, there must be a logical theory other than propensity that
demonstrates how the prior act connects to the intent required to commit the
charged offense. Wigmore explains this inference as a three-step process because
'"an act is not evidential of another act;"' an intermediate step is required. Wade,
98 Wn. App. at 335 (quoting WIGMORE, supra,§ 192, at 1857). It cannot be
argued that because a defendant did an act last year-or in this case, 10 months
prior-he probably did the act now charged. Id.
Using a prior drive-by shooting in which Arredondo's involvement was not
proved to illustrate current criminal intent invites the inference that because
Arredondo had the intent to kill or inflict great bodily harm against certain gang
members previously, he must possess the same intent against different gang
members now. As I emphasized regarding identity, the facts of the December
shooting differ from the February shooting. Different gang members were
involved, and different vehicles were used. The fact that both shootings occurred
in the same general location does not support an inference of intent.
7
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
Similarly, animosity among gangs is, by itself: insufficient to show motive.
"Motive" is a "'[c]ause or reason that moves the will[;] ... [a]n inducement, or
that which leads or temps the mind to indulge in a criminal act.'" State v. Tharp,
96 Wn.2d 591,597,637 P.2d 961 (1981) (quoting BLACK'S LAW DICTIONARY
1164 (4th ed. rev. 1968)). Motive is distinguishable from "intent," which is the
purpose or design with which the act is done. Powell, 126 Wn.2d at 260 (quoting
BLACK'S LAW DICTIONARY 1014 (6th ed. 1990)). Evidence of past quarrels and ill
feelings between individuals can show motive, but it is the facts of that relationship
and not the ,propensity of the actor that generate the permissible inference under
ER 404(b ). Id.
Here, the existence of an earlier shooting where Norte.no members harmed
Sure.no members fails to show motive for a later shooting by Norte.no members
against Sure.no members. The prior shooting establishes only that certain Norte.nos
had reasons to harm certain Sure.nos in February and that those Sure.nos may have
reason to harm those Norte.nos after that altercation. The February shooting may
establish motive for a retaliatory response by Sure.no gang members, but not the
other way around. While animosity or hostility may be "paradigmatic motive for
committing a crime," United States v. Russell, 971 F.2d 1098, 1106-07 (4th Cir.
1992), the fact of a prior shooting against one individual does not evince specific
animosity to commit a subsequent crime against a different individual. See State v.
8
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
Stenson, 132 Wn.2d 668, 702-03, 940 P.2d 1239 (1997) (evidence of prior hostile
actions between defendant and victim indicate motive for later crime involving the
same parties). Something more is required to show motive. See, e.g., Embry, 171
Wn. App. at 733-34 (lingering animosity for a rival gang member about an earlier
fight); State v. Mancilla, 197 Wn. App. 631, 644, 391 P.3d 507 (2017) (gang
members' reasons to target a rival gang member's house); see also State v. Gates,
28 Wash. 689, 698, 69 P. 358 (1902) (prior threats); State v. Campbell, 78 Wn.
App. 813,822,901 P.2d 1050 (1995) (status challenges and invasions into
defendant's drug sales territory by rival drug dealer); Powell, 126 Wn.2d at 260
(past fights, physical altercations, financial gain); State v. Boot, 89 Wn. App. 780,
789, 950 P.2d 964 (1998) (prior threat by gunpoint). 2
2
According to the majority, targeting different individuals in different drive-by shootings "is of
no matter" because here the victims of both events were Surefio gang members. Majority at 15.
In support, the majority cites State v. Peerson, 62 Wn. App. 755,816 P.2d 43 (1991), United
States v. Franklin, 704 F.2d 1183 (10th Cir. 1983), and State v. Davis, 6 Idaho 159, 53 P. 678
(1898). In so doing, the majority ignores critical and distinguishing factual differences between
these authorities and the instant case. In Peerson, the defendant assaulted and killed four
marijuana growers. 62 Wn. App. at 758-59. The trial court admitted evidence of the defendant's
earlier assault on other growers, with one victim in common between the two events. Id. at 775-
78. Notably, the prior assault occurred in response to the marijuana growers' actions against the
defendant-they refused to sell marijuana to him. Id. at 759. The later assault was retribution
and retaliation for cutting off the defendant's drug supply. Id. at 776. The Franklin case is
inapposite. In Frankl in, the court found evidence of a defendant's previous attack on an
interracial couple admissible under the Federal Rule of Evidence 404(b) because the attack
showed motive and intent for a later murder of two African American men. 704 F.2d at 1187-88.
This case is profoundly disturbing and profoundly irrelevant to the analysis at hand. The
Franklin defendant committed multiple racially motivated crimes against multiple individuals.
Id. Here, it is far from established that the same individual committed a gang-related crime in
the first instance. The Davis opinion is similarly inapposite. In that case, the court found
evidence of a defendant's past threats and attacks against sheepherders "clearly admissible" to
9
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
Thus, the implication that a prior shooting can demonstrate motive for a later
shooting is premised on the assumption that because Arredondo was probably
involved in the same type of crime (a drive-by shooting) inFebruary, he was
predisposed to have the same intent and motive to commit a drive-by shooting in
December. Animosity was little more than a euphemism for propensity. And
propensity is not a permissible ground to admit prior bad act evidence.
More significantly, any probative value the prior shooting had to prove
motive or intent was substantially outweighed by its prejudicial effect. Gang
rivalry, to the extent it was relevant, could have been demonstrated in less
prejudicial ways. Indeed, it was conceded at trial. Evidence of a prior gang-on-
gang shooting is extremely prejudicial in a case involving a gang-on-gang shooting
because it invited thejury to make the "forbidden inference" underlying ER
404(b ). It allowed jurors to surmise that Arredondo had a propensity to commit
drive-by shootings regardless of the paucity of evidence tying him to that earlier
shooting or the strength of the State's evidence tying him to the later shooting. In
other words-once a criminal, always a criminal.
show motive for the later murders of other sheepherders. 6 Idaho at 172. But the court in Davis
provides no analysis or authority for why this evidence is "clearly admissible." Id. at 682. One
court characterized Davis as holding that hostile threats against a class of persons manifest a
hostile state of mind against each person of that class and are admissible for that purpose. See
State v. Hanlon, 38 Mont. 557, 557-78, 100 P.1035 (1909). Such an interpretation would mean
that the Nortefio animosity for Surefios could be reasonably used not only against Arredondo but
against any Nortefio suspected in the December or February 2009 shooting.
10
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
The reluctance of witnesses to testify at trial does not lower the standard of
proof necessary to satisfy ER 404(b ). A trial court must still weigh the probative
value of prior acts evidence against its prejudicial effect, regardless of the "code of
silence" between gang members, witnesses, or victims. See Old Chief v. United
States, 519 U.S. 172, 174, 179-80, 190, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) (a
defendant's prior assault conviction was unnecessary to prove later firearm
possession and assault charges, and the prior crime was found to be highly
prejudicial, as it was similar to the defendant's pending assault charge). Any
probative value the prior shooting had to show intent or motive through animus
between the rival gangs was satisfied by the defense's concession that the gangs
were rivals and that Arredondo was a member of that rival gang. In contrast, the
likelihood the jury would consider the evidence for the impermissible purpose of
criminal propensity was significantly high. See State v. Saltarelli, 98 Wn.2d 358,
365-66, 655 P.2d 697 (1982) (earlier attempted rape extremely prejudicial); Mee,
168 Wn. App. at 159 (gang evidence unfairly prejudicial); State v. Asaeli, 150 Wn.
App. 543, 579, 208 P.3d 1136 (2009) (noting "the inflammatory nature of gang
evidence generally"). In light of this concession, the balance struck by ER 404(b)
weighs heavily in favor of the defendant, and the trial court abused its discretion in
admitting it. Smith, 106 Wn.2d at 775 (relevant evidence must be excluded if
probative value substantially outweighed by unfair prejudice).
11
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
Further, the erroneous limiting instruction that allowed the jury to consider
the February shooting for proper (intent and motive) and improper (identity)
purposes was insufficient to overcome the prejudicial nature of the evidence. It is
debatable whether a limiting instruction would ever be sufficient to undermine the
deep tendency of human nature to punish a defendant simply because he or she is a
bad person. See State v. Miles, 73 Wn.2d 67, 71,436 P.2d 198 (1968) (limiting
instruction could not erase inherently prejudicial evidence); Krulewitch v. United
States, 336 U.S. 440,453, 69 S. Ct. 716, 93 L. Ed. 790 (1949) (Jackson, J.,
concurring) ("The naive assumption that prejudicial effects can be overcome by
instructions to the jury ... all practicing lawyers know to be unmitigated fiction.").
In this case, Arredondo' s rights, though '" declared in words"' were '" lost in
reality,"' See Olmstead v. United States, 277 U.S. 438,473, 48 S. Ct. 564, 72 L,
Ed. 944 (1928) (Brandeis, J., dissenting) (quoting Weems v. United States, 217
U.S. 349,373, 30 S. Ct. 544, 54 L. Ed. 793 (1910)).
Arredondo's conviction was unjustly obtained. He was convicted not
simply because the State had evidence beyond a reasonable doubt that he
corpmitted the December 2009 drive-by shooting, but, in part, because the jury was
told he was a violent gang member who went unpunished for a similar crime in the
past. State v. Kilgore, 147 Wn.2d 288, 296, 53 P.3d 974 (2002) (Chambers, J.
concurring) ("A.fair trial is denied when the jury is permitted to conclude the
12
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)
accused deserves punishment because of other bad acts.") Though this may be a
textbook case of gang violence, it is also a textbook case of improper propensity
evidence used to distract the jury from the State's tenuous case against Fabian
Arredondo. See, e.g., People v. Golochowicz, 413 Mich. 298, 324-27, 319 N.W.2d
518 (1982) (a defendant's unrelated, similar crime may distract the jury from weak
evidence and tempt it to ignore other elements).
The trial court abused its discretion in failing to reasonably apply ER 404(b)
and improperly admitting the February 2009 evidence for untenable reasons. The
evidence against Arredondo was not overwhelming. The erroneous admission of
the prior shooting evidence was not harmless. State v. Cunningham, 93 Wn.2d
823, 831, 613 P .2d 113 9 ( 1980) ( applying harmless error standard to erroneous
admission of evidence). I would reverse and remand for a new trial. In affirming
Arredondo's conviction as the majority does, a conviction brought about by
improper evidence, we are violating the principle that the prosecution may land
"hard blows," but it may not land "low ones." Caro v. Smith, 59 Cal. App. 4th
725, 739, 69 Cal. Rptr. 2d 306 (1997).
I respectfully dissent.
13
State v. Arredondo, No. 92389-2 (Gonzalez 1 J., dissenting)
14