STATE OF WASHINGTON, Respondent, v. ANTHONY RENE VASQUEZ, Appellant.
No. 34107-1-III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
MARCH 1, 2018
PENNELL, J.
OPINION PUBLISHED IN PART
PENNELL, J. — Under Washington law, a drive-by shooting requires a close nexus between a perpetrator and vehicle. Specifically, the perpetrator must either bе inside a vehicle at the time of the shooting or within the vehicle‘s immediate area. Anthony Vasquez ran 63 feet from his vehicle and around the corner of a grocery store prior to shоoting and killing Juan Garcia. While Mr. Vasquez‘s violent conduct fell well within the definition of first degree murder, it was not a drive-by shooting. As a result, Mr. Vasquez‘s drive-by shooting convictions and sentence aggravator must bе reversed. The remainder of his convictions are affirmed.
FACTS
Mr. Vasquez shot and killed Mr. Garcia as Mr. Garcia was seated in the front passenger side of a GMC Envoy parked at the Airport Grocery in Moses Lake, Washington. Mr. Garcia‘s girlfriend was in the front driver‘s seat and her five-year-old child was in the back seat, behind Mr. Garcia. Neither Mr. Garcia‘s girlfriend nor her child were physically injured during the shоoting.
At the crux of this appeal is the route Mr. Vasquez took to shoot Mr. Garcia. Figure 1 is an annotated aerial map of the area. See Ex. P4.
The entire shooting was cаptured on video by the grocery‘s surveillance system. Approximately one minute and 16 seconds elapsed between the Toyota‘s initial arrival and ultimate departure.
A jury convicted Mr. Vasquez of first degree murder with a drive-by shooting aggravator, along with several counts of drive-by shooting.1 Mr. Vasquez was sentenced to life imprisonment without parole for the aggravated first degree murder conviction. He also received a 60-month firearm enhancement. Mr. Vasquez appeals. He has also filed a statement of additional grounds for review.
ANALYSIS
Washington‘s drive-by shoоting statute states, in pertinent part:
A person is guilty of drive-by shooting when he or she recklessly discharges a firearm as defined in
RCW 9.41.010 in a manner which creates a substantial risk ofdeath or serious physical injury to another person and the dischаrge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.
Mr. Vasquez argues the evidence was insufficient to prove a drive-by shooting. The question is whether the State‘s evidence showed Mr. Vasquez was in the “immediate area” of the Toyota pickup truck at the time of the shooting. Viewing the evidence in the light most favorable to the State, State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992), we hold the “immediate area” requirement was not met.
In State v. Rodgers, our Supreme Court addressed what is meant by “immediate area” in the drive-by shooting context. 146 Wn.2d 55, 43 P.3d 1 (2002). Noting the drive-by shooting definition is “narrowly drawn,” id. at 61, Rodgers held a two-block distance between a shooter and his vehicle does not fall within the scope of a drive-by shooting. Rodgers looked to two dictionаry definitions of “immediate” in reaching this conclusion. Id. at 62. The first defined “immediate” as “‘existing without intervening space or substance . . . being near at hand: not far apart or distant.‘” Id. (quoting WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1129 (1986)) (alteration in original). The second defined “immediate” as “‘[n]ot separated in respect to place; not separated by the intervention of any intermediate object.‘” Id. (quoting BLACK‘S LAW DICTIONARY 749 (6th ed. 1990)) (alteration in оriginal).
While the 63-foot distance at issue here is less than the two blocks discussed in Rodgers, the outcome is the same. A drive-by shooting is commonly understood to involve shots fired from inside a vehicle, or from “within а few feet or yards” of the vehicle. State v. Locklear, 105 Wn. App. 555, 561 & n.11, 20 P.3d 993 (2001), aff‘d sub nom. Rodgers, 146 Wn.2d 55. In other words, the crime contemplates a shooter who is either inside a vehicle or within easy reach of the vehicle. Rodgers, 146 Wn.2d at 62 (immediate means “nеar at hand“). Mr. Vasquez‘s offense did not fall within either circumstance. Mr. Vasquez was far from reach of the Toyota at the time he shot Mr. Garcia. In fact, Mr. Vasquez had to traverse several intervening obstacles in order to get a clear shot at his victim. Although Mr. Vasquez was in the immediate area of Mr. Garcia‘s Envoy at the time of the shooting, he was not in the immediate area of the Toyota that had transported him to the scene. Mr. Vasquez‘s offense therefore does not qualify as a drive-by shooting.
Because Mr. Vasquez was neither inside the Toyota nor within immediate reach of the Toyota at the time of the shooting, the State failed to present sufficient evidence justifying Mr. Vasquez‘s convictions for drive-by shooting as well as the drive-by shooting aggravator tо Mr. Vasquez‘s first degree murder conviction. The drive-by shooting convictions and aggravator must therefore be reversed.
A majority of the panel having determined that only the foregoing portiоn of this opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuant to
Our disposition of thе drive-by shooting issue resolves the issues raised by Mr. Vasquez in his appeal. Without proof of a drive-by shooting, counts four, five, and six (all of which charged drive-by shooting) must be dismissed. In addition, Mr. Vasquez‘s sentencе for aggravated first degree murder must be reversed, with instructions to strike the drive-by shooting aggravator. On remand, Mr. Vasquez must be sentenced for nonaggravated first degree murder, which is a term sentence. See
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Vasquez raises a number of issues in his statement of additional grounds for review (SAG). None of them warrant further relief from his judgment and sеntence. We briefly address those of Mr. Vasquez‘s claims not rendered academic by our resolution of his drive-by shooting claims and the trial court‘s dismissal of his second degree felony murder cоnviction.3
Mr. Vasquez attacks the sufficiency of the State‘s evidence by arguing witnesses were not credible or engaged in misconduct. See SAG (1)(A). These arguments fail because they do not cоnstrue the evidence in the light most favorable to the State, as required by the applicable standard of review. Salinas, 119 Wn.2d at 201.
Similarly, Mr. Vasquez claims the court erroneously denied defense counsel‘s motion to exclude introduction of the firearm associated with the shooting into evidence. See SAG 2(C). The trial court correctly ruled that Mr. Vasquez‘s arguments went to the weight of the evidenсe, not admissibility.
Mr. Vasquez claims the prosecutor engaged in misconduct during opening statement, witness questioning, and summation. See SAG 2(A), 4. To the extent the record permits review of Mr. Vasquez‘s claims, we find no misconduct. The prosecutor obtained prior approval to play the 911 call to the jury during opening statement. None of the prosecutor‘s questions to witnesses were inappropriate or sought inadmissible evidence. The prosecutor‘s closing argument was fair, given the nature of the evidence, including Mr. Vasquez‘s own stipulations. None of the prosecutor‘s comments undermined the State‘s burden of proof or amounted to witness vouching.
In addition to challenging the prosecutor‘s performance, Mr. Vasquez argues his trial counsel failed to provide effective assistance. See SAG 5. To the extent the record permits our review of his claims, Mr. Vasquez has failed to show that any problems with trial counsel‘s conduct were рrejudicial. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Mr. Vasquez also argues the jury should have been instructed on lesser included offenses. See SAG 3. He did not request any such instructions from the trial court. Mr. Vasquez may not raise that issue for the first timе on appeal. See State v. Mounsey, 31 Wn. App. 511, 518, 643 P.2d 892 (1982).
Finally, Mr. Vasquez raises claims regarding improper use of a video and photograph during the prosecutor‘s opening statement (SAG 4), denial of his motion for nеw counsel (SAG 2(B)), and trial counsel‘s failure to share evidence prior to trial (SAG 5(D)). These arguments rest on facts outside the appellate record. The appropriate forum fоr resolution is a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
CONCLUSION
Mr. Vasquez‘s convictions for drive-by shooting are reversed with prejudice. The drive-by shooting aggravator attached to Mr. Vasquez‘s first degree murder conviction is stricken. Mr. Vasquez‘s sentence is reversed and this matter is remanded for resentencing, consistent with the terms of this opinion.
Pennell, J.
WE CONCUR:
Fearing, C.J.
Lawrence-Berrey, J.