State v. Leon

1

STATE OF WASHINGTON, Respondent, v. ALEX LOPEZ LEON, Appellant.

No. 56467-0-II

Court of Appeals of Washington, Division 2

August 1, 2023

UNPUBLISHED OPINION

Price J.

Alex Lopez Leon appeals his convictions for one count of first degree murder and one count of second degree murder, both with firearm sentencing enhancements. He argues that (1) the State presented insufficient evidence to sustain his convictions, (2) the State committed race-based misconduct by fragrantly or apparently intentionally appealing to jurors' potential racial biases, (3) he received ineffective assistance of counsel, (4) the trial court erred by admitting evidence concerning the demeanor of the victim's mother, (5) the State committed misconduct by making an improper rebuttal argument, (6) the trial court erred in refusing to investigate alleged juror misconduct during deliberations, (7) cumulative error occurred, (8) the trial court erred in failing to consider an exceptional sentence, (9) the judgment and sentence erroneously included discretionary supervision fees, and (10) remand is necessary to correct a scrivener's error in the judgment. Following oral argument with this court, Lopez Leon filed a supplemental brief to argue that recent legislative changes require remand to strike the victim penalty assessment (VPA) and to consider whether to waive interest on restitution.^[1]

We remand to correct the scrivener's error, to strike the discretionary supervision fees and the VPA, and to consider whether to waive interest on restitution. Otherwise, we affirm.

FACTS

I. May 14, 2018, Murders and Aftermath

Adrian Valencia Cuevas (Adrian) and Wilberth Lopez Alcala (Wilberth) were murdered on May 14, 2018.^[2] Early that morning, law enforcement responded to a 911 call about a double homicide. The driver and front passenger of a white Dodge Charger were dead. The driver was later identified as Wilberth and the passenger was Adrian.

Both men died from gunshot wounds to the head. Shell casings were located inside the car, including one in the area of the front right passenger seat behind Adrian's left shoulder. The fatal shots likely came from a distance of closer than two feet. The medical examiner determined that the bullet that killed Adrian in the front passenger seat entered from the left side of the back of his head before lodging in the right side of his neck, suggesting that the gun was held somewhere in the vicinity of the center rear passenger seat. The bullet that killed the driver, Wilberth, entered from the right side of the head, slightly above the ear, and exited over his left eye. Blood spatter was sprayed on the inside of the driver's door, which also suggests that the shot came from the center area of the back seat. The bullet was recovered from Adrian, but the bullet that killed Wilberth could not be located. No guns were found.

Law enforcement obtained multiple surveillance videos from locations near the crime scene. The car was initially captured on video driving into the neighborhood. Minutes later, "a flash" was seen inside the car immediately after it pulled into a driveway. 8 Verbatim Rep of Proc. (VRP) (Aug. 4, 2021) at 728; Ex. 14-A (0:21-0:36). Shortly thereafter, two people, later identified as Lopez Leon and Javier, climbed out of a passenger window of the car. As Lopez Leon climbed out of the car, he put his hand behind his back in a manner that was later described by the lead detective as consistent with placing a firearm in the back of the waistband or, perhaps, with tucking in his shirt. Later surveillance video showed Lopez Leon's shirt was untucked a few doors down from the car.

Lopez Leon and Javier left the scene together moving quickly. They were then seen walking together four houses from where the car was found before beginning to jog. The time was 4:42 a.m.

Approximately three hours later, Lopez Leon and Javier were seen boarding a bus together, having swapped clothing. Video showed Lopez Leon beckoning Javier to join him as they entered the bus and sat down together. Lopez Leon did not talk to anyone else or attempt to leave Javier, even after Javier fell asleep on the bus. After riding the bus for around 40 minutes, Lopez Leon and Javier exited the bus and walked away together. The time was 8:08 a.m.

In the days following the murders, Lopez Leon searched the internet on his phone with the terms "Sinaloa Cartel Seattle," "Western Washington arrests tied to Mexican drug cartel," "Drug Bust Connected to Mexican Cartel," and "Mexico captures Sinaloa cartel leader."^[3] 9 VRP (Aug. 5, 2021) at 886-87; Ex. 133.

Lopez Leon and Javier also continuously maintained contact during this time period through texting. The texts indicated that Lopez Leon was involved in drug dealing with Javier as numerous texts discussed engaging in drug deals. At one point, Lopez Leon texted Javier, "Honest. As for me like the prisoner says, I don't look, I don't feel, and I don't listen. I just want to make money if possible."^[4] 12 VRP (Aug. 30, 2021) at 1390. Lopez Leon also kept Javier apprised of any news about the on-going homicide investigation by text. But some texts were also about more mundane topics, like the food and beer that Lopez Leon happened to be consuming.

Three weeks after the murders, law enforcement arrested Lopez Leon. At the time of his arrest, Lopez Leon had two cell phones. A few days later, Javier was arrested.

II. Lopez Leon's Police Interview, Phone Search, and Charges

After his arrest, Lopez Leon agreed to an interview with law enforcement and consented to searches of his cell phones.

During the interview with the detectives, which was video recorded, Lopez Leon explained that the evening of the murders started with a party in the apartment complex where he lived. Lopez Leon claimed he met Javier, Wilberth, and Adrian for the first time at the party and previously did not have Javier's phone number. Lopez Leon entered Javier's contact information into his phone that night. After a while, the four of them left the party in the white Dodge Charger to shoot a gun in the air for fun. Wilberth drove with Adrian seated in the front passenger seat. Lopez Leon was seated in the right rear passenger seat and Javier was seated in the left rear passenger seat.

As they drove around conversing, Javier began firing the gun in the air, which Lopez Leon captured on video.^[5] Lopez Leon explained he took a video of Javier firing the shots to later show his friends. Minutes later, Lopez Leon recorded another video of only sound, where a gunshot can be heard nine seconds into the recording. He showed law enforcement both videos.

According to Lopez Leon, the gunshot heard in the second video is Javier shooting Adrian. Lopez Leon claimed that he secretly filmed the second video of the gunshot killing Adrian because he suspected something bad was going to happen, stating that "if I know there's something bad going on, I'm, I'm always gonna . . . do something for myself so that I can, you know, be prepared for anything that happens." Clerk's Papers (CP) at 341. But Lopez Leon denied knowing that Adrian was going to be shot.

After Javier killed Adrian, Lopez Leon explained that Javier pointed the gun at him and Wilberth and ordered Wilberth to drive. Shortly thereafter, according to Lopez Leon, Javier, still sitting in the backseat, shot Wilberth as he drove. Lopez Leon physically demonstrated for the detectives how Javier shot Wilberth from the left side of Wilberth's head by reaching around the headrest with the gun held near the driver side's window.

After Wilberth's murder, Lopez Leon explained that he quickly got out of the car and, contrary to the video evidence, attempted to get as far away from Javier as possible. Lopez Leon claimed he walked home and did not immediately tell anyone what happened.

Lopez Leon was asked by the detectives whether Javier ever said he was part of the Sinaloa Cartel. Lopez Leon responded:

Hmm, not, not like with words saying it, you know, like that specifically. But I know he, I, he mentioned something about working. And when you say work in Spanish, and, I mean, and you're drinking and you have all this coke in your hand, you figure it out pretty much, you know.

CP at 324.

Lopez Leon also told the detectives that he did not understand why Javier did not kill him. He speculated that Javier "probably had something with those particular people [Adrian and Wilberth]," but he could not be certain because he did not "know all their . . . situations." CP at 347.

Lopez Leon also expressed concern about Javier fleeing to Mexico. He explained that he would be "f[*]cked" if Javier fled to Mexico because there was no way he would be able to prove that he did not know Javier beforehand. CP at 312, 327. He said at various times:

You know, because if he's in Mexico and it's all f[*]cked up, there's no way I'm going to be able to prove that I didn't know him beforehand, you know; so I'm pretty much f[*]cked.

CP at 312.

Because if you go and if he's in Mexico, I'm f[*]cked. And I'm already f[*]cked anyway.

CP at 327.

But, but, what I'm scared [of] is that he's probably, what if [he] goes, goes to Mexico and I have to face the music for plates I didn't even break.

CP at 347.

Separate from Lopez Leon's statements in his interview, the search of his phone showed that in the hours before the murders, Lopez Leon repeatedly texted Adrian's brother, Johann, asking where Adrian was and whether Adrian could join them.

Following its investigation, the State charged Lopez Leon with two counts of first degree murder as a principal or as an accomplice for the deaths of Adrian and Wilberth.

The case ultimately proceeded to a lengthy jury trial.

III. Javier's Guilty Plea

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