FILED
APRIL 4, 2024
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. 39446-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
SEBASTIAN CORTES AGUILAR, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — In 2012, a jury convicted Sebastian Cortes Aguilar of
first degree murder of his wife and second degree assault of his daughter. In 2022, the
trial court denied his motion for postconviction DNA testing of the crime scene for his
own blood. We affirm.
FACTS
In August 2011, Sebastian Cortes Aguilar stabbed his wife to death after
confronting her about telephone conversations with another man. Mr. Cortes Aguilar’s
wife, Ortencia Alejandre, suffered five stab wounds in the attack—one to her neck and
four to her chest, ranging from three inches deep to six inches deep—as well as multiple
defensive wounds on her hands and arms. The couple’s 13-year-old daughter also was
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State v. Cortes Aguilar
injured in the attack. After fleeing the scene, Mr. Cortes Aguilar confessed the killing to
a family friend and asked to hide in that friend’s garage. The State eventually charged
Mr. Cortes Aguilar with first degree murder and first degree assault, before amending the
latter charge to second degree assault.
After his arrest, Mr. Cortes Aguilar claimed he had killed Ms. Alejandre only after
she had brandished the knife at him. Fearing for his safety, he claimed, he had disarmed
his wife before turning the knife on her. Mr. Cortes Aguilar claimed that in the process
of disarming Ms. Alejandre, he had suffered defensive wounds. He remembered his
daughter intervening in the struggle but did not remember injuring her. At trial, Mr.
Cortes Aguilar’s daughter disputed this version of events. She testified that Mr. Cortes
Aguilar had beat Ms. Alejandre with a belt before retrieving a knife from the kitchen and
resuming his attack. She testified that her father during other altercations had retrieved a
knife in this manner.
The jury convicted Mr. Cortes Aguilar of murder and assault. In an unsuccessful
appeal, Mr. Cortes Aguilar challenged his murder conviction on the grounds of
insufficient evidence and deficient counsel. He subsequently petitioned the trial court for
additional DNA testing. Specifically, Mr. Cortes Aguilar asked the court to authorize
initial tests, or additional tests, on 26 items of evidence. The court denied this request,
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along with Mr. Cortes Aguilar’s attendant motion to appoint counsel, on the grounds that
he did not meet the statutory threshold to secure additional testing.
Mr. Cortes Aguilar timely appeals the portion of the trial court’s order denying
additional testing.
ANALYSIS
THRESHOLD FOR ADDITIONAL TESTING
Mr. Cortes Aguilar argues the trial court should have granted him additional
testing because he met both the procedural and substantive requirements under
RCW 10.73.170. Because he cannot establish two of the procedural criteria as well
as the substantive criterion, we affirm.
Standard of review
We review a trial court’s denial of postconviction relief for abuse of discretion.
State v. Riofta, 166 Wn.2d 358, 370, 209 P.3d 467 (2009). A trial court operates within
its discretion when its findings derive from the factual record, its conclusions apply sound
law, and its decisions are not manifestly unreasonable. State v. Dye, 178 Wn.2d 541,
548, 309 P.3d 1192 (2013).
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Threshold for additional testing
To secure additional DNA testing of evidence from trial, an incarcerated defendant
must satisfy three procedural criteria and one substantive criterion. RCW 10.73.170(1)-
(3).
i. Procedural criteria
A petition for additional testing carries its procedural burden if (1) the DNA
testing initially performed was deficient, or else the testing now sought offers higher
accuracy or “would provide significant new information,” (2) the testing now sought is
material to the identity of the perpetrator, and (3) the petition complies with applicable
court rules. RCW 10.73.170(2). Where additional testing might negate the existence of a
crime, as in supporting a theory of lawful self-defense, the testing likewise would negate
the existence of a perpetrator; in that circumstance, the petitioner satisfies criterion (2)
above. State v. Braa, 2 Wn. App. 2d 510, 519, 410 P.3d 1176 (2018).
Here, Mr. Cortes Aguilar satisfies the third procedural criterion because nothing in
the record indicates his petition flouted any applicable rules. However, Mr. Cortes
Aguilar does not satisfy the first and second criteria.
Mr. Cortes Aguilar does not satisfy the first criterion because he merely identifies
what other tests he wishes to conduct, without explaining why the original testing was
flawed or why the new tests would yield meaningful new information. Generally, Mr.
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Cortes Aguilar’s basis for securing additional testing is that the tests would show the
presence of his own blood, supporting a self-defense theory. However, the discovery of
his own blood at the crime scene would not yield “significant new information” because
the jury, when it convicted Mr. Cortes Aguilar, already knew he had sustained lacerations
at the crime scene. RCW 10.73.170(2)(a)(iii). To the extent a jury may be trusted to
know lacerations bleed, the tests Mr. Cortes Aguilar seeks would not illuminate any new
facts.
Mr. Cortes Aguilar also fails the second criterion, as the discovery of his blood at
the crime scene would not suggest any fact that would substantiate a self-defense theory,
thereby negating the existence of a crime and perpetrator.
1. No excusable homicide defense
A defendant is not liable by reason of self-defense when he commits excusable
homicide. State v. Moreno, 26 Wn. App. 2d 681, 692, 529 P.3d 431 (2023). Excusable
homicide arises when, while defending himself, the defendant “causes the victim’s death
‘by accident or misfortune.’” Id. at 693 (quoting RCW 9A.16.030).
Here, Mr. Cortes Aguilar cannot plausibly claim excusable homicide because Ms.
Alejandre suffered a multitude of wounds, each of which necessarily was inflicted
successively. These facts defeat excusable homicide as a matter of law because no
inadvertence exists where a defendant deliberately inflicts an extended sequence of life-
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threatening wounds. This is true notwithstanding any DNA test placing Mr. Cortes
Aguilar’s own blood at the crime scene.
2. No justifiable homicide defense
A defendant is not liable by reason of self-defense when he commits justifiable
homicide. Id. at 692. Justifiable homicide arises when the defendant kills intentionally
while under the reasonable belief that the victim posed “an imminent danger to the
defendant.” Id. at 693 (citing RCW 9A.16.050(1)).
Here, Mr. Cortes Aguilar cannot claim justifiable homicide because there
can be no reasonable belief of “imminent danger” where only one weapon is in
evidence and where the slayer has disarmed the victim prior to the homicide. Id.
(citing RCW 9A.16.050(1)). To the extent Ms. Alejandre posed any threat to Mr. Cortes
Aguilar—and eyewitness testimony suggests she did not—Mr. Cortes Aguilar neutralized
the threat when he secured the knife from Ms. Alejandre. While justifiable homicide
could have occurred during the struggle for the knife, Mr. Cortes Aguilar himself
admitted that the killing occurred after he wrested control of the knife from Ms.
Alejandre. This account is consistent with the defensive wounds Ms. Alejandre sustained
to her hands and arms.
In sum, Mr. Cortes Aguilar does not show why the original DNA testing was
flawed or why additional tests would yield meaningful new information. Moreover, the
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testing he sought could not defeat the existence of a crime, and thus is not material to the
identity of the perpetrator. We conclude that the trial court properly found that Mr.
Cortes Aguilar did not carry his procedural burdens under RCW 10.73.170(2).
ii. Substantive criteria
A petition for additional DNA testing carries its substantive burden when the
defendant shows that additional testing would likely demonstrate his innocence “on a
more probable than not basis.” RCW 10.73.170(3). When considering a petition for
additional testing, the court must extend to the defendant a presumption that further
testing will yield a favorable result. Riofta, 166 Wn.2d at 368-69. Unlike the procedural
criteria, however, the RCW 10.73.170(3) substantive criterion is “onerous.” Id. at 367;
see also State v. Crumpton, 181 Wn.2d 252, 261, 332 P.3d 448 (2014). A defendant will
not secure additional testing unless the presumed favorable result would so offset the
remaining evidence against him that his innocence becomes not merely a possibility, but
a probability. See Riofta, 166 Wn.2d at 369 (“[C]ourts must consider . . . the impact that
an exculpatory DNA test could have in light of [the remaining] evidence.”); see also
Crumpton, 181 Wn.2d at 260 (“[C]ourts should look to whether, considering all the
evidence from trial and assuming an exculpatory DNA test result, it is likely the
individual is innocent on a more probable than not basis.”).
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Here, Mr. Cortes Aguilar fails the substantive criterion because the discovery of
his blood at the crime scene would not furnish any basis on which a jury could acquit
him. Mr. Cortes Aguilar admitted killing Ms. Alejandre. His own account of the killing,
along with Ms. Alejandre’s defensive wounds and the protracted nature of the attack,
proves the killing was intentional and premeditated. Mr. Cortes Aguilar’s own daughter
testified that the killing was deliberate and that Ms. Alejandre posed no threat to Mr.
Cortes Aguilar. For reasons already described, Mr. Cortes Aguilar cannot plausibly raise
an excusable homicide or justifiable homicide defense. All of this is true notwithstanding
any discovery of his blood at the crime scene—especially when such a discovery would
merely duplicate evidence the jury already heard, that Mr. Cortes Aguilar sustained
lacerations during the attack. We conclude the trial court properly found that Mr. Cortes
Aguilar did not carry his substantive burden under RCW 10.73.170(3).
Statements of additional grounds (SAG)
In addition to arguments presented by counsel, Mr. Cortes Aguilar states several
additional grounds for review.
i. Ground 1
Mr. Cortes Aguilar asks this court to consider his case in light of Braa,
2 Wn. App. 2d 510; SAG at 1. The opinion of this court accounts for that case.
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ii. Ground 2
Mr. Cortes Aguilar asks this court to presume a favorable DNA test as described
in Crumpton, 181 Wn.2d 252; SAG at 3. Our opinion presumes that every additional
DNA test Mr. Cortes Aguilar seeks would test positive for his blood.
iii. Ground 3
Mr. Cortes Aguilar argues the trial court erred by not considering his ineffective
assistance claim when considering his petition for additional testing. SAG at 4.
However, ineffective assistance of counsel was not before the court when it considered
Mr. Cortes Aguilar’s petition. The success of an additional testing petition under
RCW 10.73.170 turns on the probability of demonstrating actual innocence, irrespective
of performance of prior counsel. Accordingly, ineffective assistance of counsel likewise
is beyond the scope of this court’s review of the trial court’s order.
iv. Ground 4
Mr. Cortes Aguilar argues the trial court erred by not considering evidence
cumulatively when assessing probability of innocence. SAG at 6. However, for the
reasons described above, no quantity of positive tests for Mr. Cortes Aguilar’s blood at
the crime scene would offset the remaining evidence such as to establish probability of
innocence.
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v. Grounds 5-7
The final three additional grounds allege judicial and prosecutorial misconduct at
trial and do not address Mr. Cortes Aguilar's petition for additional testing. SAG at 8-10
(as translated). Accordingly, these grounds lie outside the scope of Mr. Cortes Aguilar's
current appeal.
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.
Lawrence-Berrey, C.J.
WE CONCUR:
Fearing, J. Cooney, J.
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