State v. Licon, 31670-0-III

STATE OF WASHINGTON, Respondent, v. ISIDRO LICON, Appellant.

No. 31670-0-III

Court of Appeals of Washington, Division 3

March 10, 2015

UNPUBLISHED OPINION

Fearing, J.

Isidro Licon appeals his convictions for two counts of second degree assault and one count of second degree unlawful possession of a firearm. He argues that the trial court erroneously admitted gang evidence, erroneously admitted testimonial hearsay, and improperly refused a material witness subpoena. He also argues the trial court erroneously imposed legal financial obligations (LFOs) and imposed community custody conditions on him unrelated to his convictions. We agree that the trial court erroneously admitted testimonial hearsay, but reject Licon's other arguments attacking his convictions. We hold the testimonial hearsay to be harmless error and affirm Licon's three convictions. We decline to address Isidro Licon's assignment of error regarding the entry of legal financial obligations, and we affirm his community custody conditions.

FACTS

Sylvia Guerra and her daughter Selena Cortez are the victims of Isidro Lieon's assaults. Guerra, Cortez, Guerra's fiance Jaime Gutierrez, and Gutierrez's mother lived together in an apartment in Pasco. Isidro Licon lived one block from the Gutierrez home. Guerra spent time in jail during which time Gutierrez's youngest brother Gumarro (Gooma) occupied her room. Guerra was released from jail on February 6, 2012. Because Guerra paid rent and Gooma paid no rent, Jaime Gutierrez ousted his brother from the home to allow the return of Guerra.

Isidro Licon and his acquaintances, Guillermo Tapia, Edgar Arroyos Steven Morfin, and Jaime Gutierrez are all members of the Florencia 13 street gang. Sylvia Guerra was a member of the Mexican Pride Surenos gang, but cut ties with the gang four years earlier. Florencia 13 and Mexican Pride Surenos were once rival gangs. According to Guerra, Licon and she were friends who attended the same barbecues and other gatherings. According to Licon, Guerra and he were more than friends, and she sent him risque" text messages.

Witnesses victims, and perpetrators referred to each other by gang monikers: Isidro Licon is "Traviezo, " Report of Proceedings (RP) at 112^[1]; Guillermo Tapia is "Habit, " RP at 112; Edgar Arroyos is "Nutcase, " RP at 110 116; Steven Morfin is "Smokes, " RP at 110; Jaime Gutierrez is "Smurf, " RP at 186; and Sylvia Guerra is "Naeoe, " or "Mousie." RP at 379.

On February 10, 2012, Guiliermo Tapia drove himself and Isidro Licon around town. Tapia and Licon encountered Gooma Gutierrez, who informed them that he was no longer welcome at his brother's residence.

On the same day, Sylvia Guerra, Selena Cortez, and Jaime Gutierrez lingered at their apartment. Guerra arose to take a shower while Cortez applied her makeup. Edgar Arroyos and Steven Morfin arrived at the apartment. Guerra afforded Arroyos and Morfin entry to the home. Guerra called Gutierrez, so he could speak to them while she showered, Arroyos sat on a couch, while playing with a gun. Guerra was not alarmed, however, because gang members routinely carry guns. Jaime Gutierrez asked Sylvia Guerra to leave the home to purchase beer.

Sylvia Guerra thought it odd that Jaime Gutierrez asked her to purchase beer, yet Gutierrez's look told her she should leave. Guerra went toward her room to retrieve shoes, when Isidro Licon and Guiliermo Tapia approached the home. Guerra then "knew something was up." RP at 110.

According to Sylvia Guerra, Isidro Licon rushed into the house with a gun. Licon lifted his shirt to show Jaime Gutierrez a pistol on his waistband. Licon yelled and argued with Gutierrez. Guerra first wanted to remove herself from an internal squabble among Florencia gang members. She continued to walk to her room when Licon called her a "bitch." RP at 113. Isidro Licon waved his gun and complained to Jaime Gutierrez for removing Gutierrez's brother from the home for the "bitch." RP at 113.

Sylvia Guerra responded to Isidro Licon's importuning. Guerra yelled at Licon; "don't call me a bitch unless you fuck me." RP at 153. Guerra's daughter Selena Cortez joined the argument and told Licon to stop yelling at her mother. According to Guerra and Cortez, Licon pushed Guerra aside, grabbed Cortez, and threw Cortez to the ground. Guerra lunged at Licon. Licon pushed Guerra to the side and Edgar Arroyos and Steven Morfm jumped on top of Guerra.

According to Sylvia Guerra, Selena Cortez armed herself with a kitchen knife. Isidro Licon and Cortez ran at each other and Licon wrestled Cortez onto the couch. Sylvia Guerra instructed Licon to free her daughter, while Licon told Guerra to instruct her daughter to let go of the knife. When Guerra did not respond, Licon pistol whipped Cortez.

According to Sylvia Guerra, she grew angry and threw Steven Morfm and Edgar Arroyos to one side. Isidro Licon yelled to Arroyos to "shoot the bitch." RP at 116. Arroyos did not know how to shoot a gun so he sideswiped Guerra with the gun.

Isidro Licon tells a different story. According to Licon, he knocked before entering Jaime Gutierrez's home. He shook hands with those inside. Licon asked Gutierrez: where is your brother? Gutierrez answered that Gooma is at his aunt's house. Licon asked for a glass of water, and Gutierrez granted the request. Licon walked into the kitchen, retrieved a glass of water, returned to the front room, and placed the glass on a table.

Isidro Licon testified at trial:

As I set it on the table Mousie, Nacoe [Sylvia Guerra] said, I can't get a hug. You can't say hello to me. I asked how come Gumarro isn't here. We referred to him as Gooma. Nacoe says right away that is none of your business. I say, can't you see two grown men are talking.

.....

Mousie [Sylvia Guerra] is just rambling about something. Jaime says something to her and they are rambling on to each other. Then I hear Jaime say well he is just asking a question. Then she again says, well, it's none of his fucking business. I look over and say, are you still on the same subject. It was over, five minutes ago. She starts getting loud. I'm like, whatever. I tell them should we ask Guillermo if he wants to give us a ride. Then by then she gets up and starts basically barking at me like a dog, not in actual bark bark mode but starts yelling. You can see spit coming out of her mouth.

.....

After she kept on, I was like just shut the fuck up, bitch, shut up and drop it,

......

I looked back and here comes Selena. She is coming directly at me. She automatically assumes we are waiting-she automatically wants to come up to me, don't be talking to my fucking mom like that.

RP at 419-22.

According to Isidro Licon, without provocation, Selena Cortez went to the kitchen, armed herself with a knife, and attacked him. Licon testified:

Well, as she is coming like this I see Arroyos, which is close to the kitchen, and stand up and reach over and grabbed her forearm. She automatically turns around real fast like that. As soon as she did that, she didn't have the knife up, she had it like this. When she turned around, she kind of pulled her arm up so she kind of turned around and I jumped back. So I jumped back over the table and grabbed her to where her hand was lower but I had her kind of like here. I grabbed her, went up-went to the couch and body slammed her into the couch.

......

I said we need to bounce. We need to leave. And I'm like I'm going to let her go and she will get up so let's go. Arroyos is close to the door so he walks out first and Morfin is right behind him and then I get off of her and I say we are working our way onto the couch where the cushion[s] are sliding off. You know, change on the back of the couch. I have her like this. I stopped, pulled her fingers off, and grabbed her. I pushed off of her to get up myself. Once I do that, I didn't get my footing right and I stumbled. I got [m]y balance on the dresser close to the door. The door is already opened because she is exiting. I reach for the door, Selena is already on her way up, coming towards me, and I punch her in the face.

RP at 424, 428-29.

Isidro Licon insisted that he acted in self-defense when he struck Selena Cortez. He denied attacking Sylvia Guerra.

At trial, Isidro Licon agreed to a prior conviction that precluded him from carrying a firearm. He testified that he no longer carried a gun. Nevertheless, neither side specifically questioned Licon if he carried a gun to Jaime Gutierrez's apartment on February 10, 2012.

PROCEDURE

The State of Washington charged Isidro Licon with three crimes second degree assault against Sylvia Guerra; second degree assault against Selena Cortez; and unlawful possession of a firearm. For the two assault charges, the State further alleged firearm and gang sentence enhancements. To fulfill the gang enhancement statute, the State alleged that Licon assaulted Guerra and Cortez to obtain or maintain his membership or to advance his position in the "hierarchy of an organization, association, or identifiable group"; or "to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang as defined in RCW 9.94A.030, its reputation, influence, or membership." RCW 9.94A.535(3)(s), (aa); Clerk's Papers (CP) at 207-08.

Before trial, Isidro Licon moved in limine to exclude all gang evidence. Licon argued that the sole impetus for the altercation was Sylvia Guerra's removing Jaime Gutierrez's brother from the apartment. The State argued that Licon retaliated against Guerra because she was a female member of a rival gang who disrespected him. The trial court denied Licon's motion, ruling the evidence conditionally relevant, on the ground that the gang testimony showed motive or...