                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                           June 30, 2020



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 51589-0-II

                               Respondent,

        v.                                                   UNPUBLISHED OPINION

 ALBERTO COLT SARMIENTO,

                               Appellant.



       MAXA, J. – Alberto Colt Sarmiento appeals his convictions of second degree murder, two

counts of first degree assault, and second degree unlawful possession of a firearm. The

convictions arose from a shooting that occurred at the time and location that Sarmiento, a Varrio

Sureño Lokotes (VSL) gang member, had arranged a fistfight with Eddie Contreras, who

claimed to represent another Sureño gang. Sarmiento was present at the location along with his

friends Juan Zuniga and Trino Martinez. When Contreras and two others arrived at the fight

location, Sarmiento stood by his truck while Zuniga ran out from some bushes toward Contreras

and the others and fired multiple gunshots at them. One of the men with Contreras died of a

gunshot wound at the scene and the other sustained a serious gunshot wound.

       We hold that (1) any error regarding the issuance of various search warrants that

Sarmiento challenges was harmless because the untainted evidence of Sarmiento’s guilt on all

charges was overwhelming; (2) Sarmiento’s trial counsel was not ineffective for failing to
No. 51589-0-II


request a “defense of others” jury instruction because there was a legitimate strategic reason for

not wanting that instruction; (3) the cumulative error doctrine is inapplicable because any error

was harmless; (4) the evidence was sufficient to sustain Sarmiento’s conviction of second degree

unlawful possession of a firearm; and (5) Sarmiento’s assertions in a statement of additional

grounds (SAG) lack merit. Accordingly, we affirm Sarmiento’s convictions.

                                               FACTS

Background

       Sarmiento and Contreras met in September 2015 when they engaged in a fistfight. The

two shook hands after the ﬁght, exchanged names, and spoke briefly. Sarmiento introduced

himself as “Taxer” and said that he was a member of the VSL gang. Contreras told Sarmiento he

was a member of the 18th Street, another Sureño gang.

       A week or two after the ﬁght, Sarmiento sent Contreras a friend request on Facebook,

which Contreras accepted. Sarmiento initiated conversations with Contreras via Facebook

Messenger, which were friendly at first but became more adversarial after Sarmiento began to

suspect that Contreras was not really a member of the 18th Street gang. Sarmiento and Contreras

exchanged messages that each regarded as disrespectful and insulting. Sarmiento complained to

others on Facebook about Contreras’s insult.

       On November 1, Sarmiento sent Contreras a message challenging him to another ﬁght,

and Contreras accepted. Sarmiento messaged Contreras again on November 2, and the two men

agreed to meet that night for a fistfight without weapons.

November 2, 2015 Shooting

       Just before the scheduled fight on November 2, Sarmiento, Zuniga, and Martinez

gathered at Steven Gamez’s residence. Gamez, Zuniga, and Martinez were all gang members




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No. 51589-0-II


afﬁliated with the Southside Criminals, another Sureño gang. Martinez displayed a gun and

passed it to Zuniga, who also handled it. Sarmiento was there and saw the gun. Sarmiento

discussed his anger at a person who was posing as an 18th Street gang member and had

disrespected Sarmiento. Sarmiento, Zuniga, and Martinez talked about doing work for the gang.

       Sarmiento, Zuniga, and Martinez left Gamez’s residence in Sarmiento’s truck with the

gun. Martinez gave Zuniga the gun after they made a brief stop. They then drove to the location

of the planned fistfight.

       Contreras brought his friends Elijah Crawford and Isaac Fogalele to the planned ﬁght to

provide backup if necessary. When they arrived at the fight location, Sarmiento was standing

outside his parked truck. Contreras, Crawford, and Fogalele got out of Contreras’s vehicle, and

as Contreras started walking Sarmiento said, “You talking shit, huh?” 9 Report of Proceedings

(RP) at 892. Sarmiento signaled to Zuniga, who was in the bushes nearby, by calling his

nickname “Mobster.”

       Zuniga, who was wearing a bandana over his face, came running out of some bushes

toward Contreras, Crawford, and Fogalele with a gun and started shooting at them. Sarmiento

stood there without ducking to take cover, and Contreras stated that it was as if “he knew what

was going on.” 9 RP at 911. Crawford was shot in the back and died at the scene. Fogalele was

injured by a bullet. Contreras was uninjured but heard bullets flying by him as he ran away.

After the shooting, Sarmiento, Zuniga, and Martinez left the scene in Sarmiento’s truck.

Investigation and Charges

       Contreras spoke with detectives later that night and showed them his Facebook

communications with “Taxer.” Contreras identified Sarmiento through photos posted on

Facebook. Police subsequently issued a warrant for his arrest.




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No. 51589-0-II


       On November 5, 2015, police obtained a search warrant for Sarmiento’s Facebook

account. On November 5 and 9, they obtained search warrants for the records relating to four

phone numbers that Sarmiento previously had used. On November 12 and 17, police obtained

search warrants for the Facebook accounts of Martinez and Jose Salinas. Salinas was a person

with whom Sarmiento exchanged gang-related messages publicly on Facebook.

       After the shooting, Sarmiento ﬂed the area and stayed with his uncle Raymundo Gomez

in Centralia. Gomez subsequently learned of the warrant for Sarmiento’s arrest. When Gomez

confronted Sarmiento, he admitted to Gomez that he planned the shooting with his friends.

Gomez called police a few days later and reported Sarmiento’s location.

       Police arrested Sarmiento on November 16. Two cell phones were recovered from the

scene, one (referred to as the HTC phone) in a freezer wrapped in aluminum foil and another

(referred to as the LG phone) located in the storage area where Sarmiento was found hiding. On

November 17, police obtained search warrants for the HTC and LG phones.

       Zuniga became a person of interest after police saw a Facebook message from Zuniga to

Sarmiento after the shooting saying Zuniga had left his backpack in Sarmiento’s truck.

       The State charged Sarmiento with one count of first degree murder (count I), one count of

second degree murder (count II), two counts of first degree assault (counts III and IV), and one

count of second degree unlawful possession of a firearm (count V). Sarmiento was charged as

an accomplice as to counts I through IV. Counts I through IV also included ﬁrearm sentencing

enhancements, and all ﬁve counts included a gang aggravator.

       Zuniga and Martinez also were charged with multiple counts. Zuniga pleaded guilty to

first degree murder and two counts of attempted first degree murder. Martinez was scheduled to

be tried jointly with Sarmiento, but Martinez later also pleaded guilty.




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No. 51589-0-II


Motion to Suppress Evidence

       Sarmiento moved to suppress evidence derived from the search warrants issued for the

HTC and LG phones, his phone records, his Facebook account, and Martinez’s and Salinas’s

Facebook accounts. The trial court reviewed the challenged search warrants and accompanying

afﬁdavits and denied Sarmiento’s motions.

Evidence at Trial

       The State argued that Sarmiento planned an ambush shooting in retaliation for perceived

disrespect from Contreras. The State presented evidence regarding the events leading up to the

shooting and the shooting itself as described above. The trial court admitted exhibits containing

information discovered in the searches of the two phones, Sarmiento’s Facebook account, and

Martinez’s Facebook account. No evidence obtained from Sarmiento’s phone records or

Salinas’s Facebook account was admitted at trial.

       Sarmiento did not testify at trial. Zuniga testified for the defense. He testified that he,

Sarmiento, and Martinez left Gamez’s house in Sarmiento’s truck with the gun that they had

been handling. Martinez gave the gun to Zuniga when they made a stop while Sarmiento stood

on the other side of the truck. Martinez told Zuniga it was time to “earn your stripes.” 14 RP at

1857. Sarmiento told Zuniga “Don’t be worried,” “Don’t be afraid,” and “Be ready.” 14 RP at

1913. When they left, Zuniga sat next to the window while Martinez sat between him and

Sarmiento. Martinez gave Zuniga the gun “just in case” because Zuniga was “riding shotgun.”

14 RP at 1816. Zuniga said that Sarmiento saw him with the gun sometime that night.

       Zuniga testified that he, Sarmiento, and Martinez then drove to the ﬁght location and

Zuniga went into the bushes and put a bandana over his face. After Contreras’s vehicle pulled up

and three individuals got out, Sarmiento signaled to Zuniga, who opened ﬁre. Zuniga claimed he




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No. 51589-0-II


thought the three individuals were rival gang members and he panicked. He also claimed it was

not a planned shooting.

          Defense counsel did not request a “defense of others” jury instruction. Sarmiento argued

in his opening statement and closing argument that he planned only a fistfight and that he had no

knowledge of or involvement in Zuniga’s shooting.

Verdict

          The jury convicted Sarmiento of first degree manslaughter as a lesser offense to first

degree murder, second degree murder, two counts of first degree assault, and second degree

unlawful possession of a firearm. The jury also found by special verdict that Sarmiento was

armed with a firearm for counts I through IV and that the gang aggravator applied for all counts.

The trial court vacated the manslaughter conviction to avoid double jeopardy.

          Sarmiento appeals his convictions.

                                               ANALYSIS

A.        VALIDITY OF SEARCH WARRANTS

          Sarmiento argues that the trial court erred in denying his motion to suppress the evidence

seized pursuant to search warrants for his HTC and LG phones, his phone records, his Facebook

accounts, and Martinez’s and Salinas’s Facebook accounts. He claims that the warrants lacked

probable cause and violated the particularity requirement of the Fourth Amendment. We

conclude that even if the trial court erred in denying his motion to suppress one or more of the

search warrants, any error was harmless.

          1.   Legal Principles

          The Fourth Amendment to the United States Constitution and article I, section 7 of the

Washington Constitution impose two requirements for search warrants. State v. Higgs, 177 Wn.




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No. 51589-0-II


App. 414, 425, 311 P.3d 1266 (2013). First, a warrant can be issued only if supported by

probable cause. State v. Lyons, 174 Wn.2d 354, 359, 275 P.3d 314 (2012). Second, a search

warrant must be sufficiently particular so that the officer executing the warrant can reasonably

ascertain and identify the property authorized to be seized. State v. Besola, 184 Wn.2d 605, 610,

359 P.3d 799 (2015). “Warrants for materials protected by the First Amendment require a

heightened degree of particularity.” Id. at 611.

          In determining whether probable cause supports challenged warrants, we can consider the

search warrant affidavits presented to the judge issuing the warrants. See Lyons, 174 Wn.2d at

363 (“We cannot defer to the magistrate where the affidavit does not provide a substantial basis

for determining probable cause”). However, in assessing the particularity requirement, we may

only consider search warrant affidavits if they are attached to or incorporated by reference by the

warrant itself. State v. Riley, 121 Wn.2d 22, 29, 846 P.2d 1365 (1993).

          2.   Harmless Error

          We apply a harmless error analysis when the trial court admits evidence that is a product

of an invalid warrant. State v. Keodara, 191 Wn. App. 305, 317-18, 364 P.3d 777 (2015).

Admission of evidence obtained through a warrant that violates constitutional requirements is an

error of constitutional magnitude. Id. at 317. An error of constitutional magnitude is harmless

“if, in light of the entire trial record, we are convinced that the [factfinder] would have reached

the same verdict absent the error.” State v. Romero-Ochoa, 193 Wn.2d 341, 348, 440 P.3d 994

(2019).

          The State bears the burden of showing beyond a reasonable doubt that the error did not

contribute to the verdict. Keodara, 191 Wn. App. at 317-18. One way to establish harmless

error is to show that the untainted evidence is so overwhelming that it necessarily leads to a




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No. 51589-0-II


finding of guilt. Id. at 318. We also can look to the “overall significance of the erroneously

admitted or excluded evidence in this context (e.g., whether it was cumulative or corroborated, or

consistent with the defense theory).” Romero-Ochoa, 193 Wn.2d at 348.

       3.   Analysis

       We do not address the merits of Sarmiento’s challenges to various search warrants.

Instead, we assume without deciding that the trial court erred in denying Sarmiento’s motion to

suppress. We conclude that even if the warrants were invalid, any error in admitting evidence

relating to the warrants was harmless because overwhelming untainted evidence supported

Sarmiento’s murder and assault convictions and the firearm and gang special verdicts.

            a.   Immaterial Warrants

       Initially, the trial court did not admit any evidence that was derived from the search

warrants for Sarmiento’s phone records or Salinas’s Facebook account. Therefore, any error

relating to these warrants necessarily could not have affected the outcome of the trial.

            b.    Murder and Assault Convictions

       Undisputed evidence established that Zuniga shot and killed Crawford and assaulted

Contreras and Fogalele with a ﬁrearm. Fogalele was struck by a bullet and Contreras heard

bullets ﬂying by as he ran. Zuniga pleaded guilty to murder and two counts of attempted murder

and admitted at trial that he fired the shots. The issue here is whether there was overwhelming

untainted evidence at trial that Sarmiento acted as Zuniga’s accomplice.

       The evidence showed that just before the scheduled fight between Sarmiento and

Contreras, Sarmiento expressed his anger at a person – presumably Contreras – who was posing

as an 18th Street gang member and had made disrespectful comments regarding Sarmiento.

Sarmiento, Martinez, and Zuniga talked about doing work for the gang.




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No. 51589-0-II


       Sarmiento, Zuniga, and Martinez drove in Sarmiento’s truck to the fight location with

Martinez in possession of a gun. When Martinez gave Zuniga the gun during a stop, he told

Zuniga it was time to “earn your stripes.” 14 RP at 1857. Sarmiento told Zuniga “Don’t be

worried,” “Don’t be afraid,” and “Be ready.” 14 RP at 1913. Martinez gave Zuniga the gun

“just in case” because Zuniga was “riding shotgun.” 14 RP at 1816.

       When they arrived at the fight location, Sarmiento stood next to his truck while Zuniga

went out of sight. Zuniga put a bandana over his face. Zuniga testified that as Contreras

confronted Sarmiento, Sarmiento gave Zuniga a signal. Zuniga immediately came running out

of the bushes and started ﬁring multiple shots at Contreras and his companions. Sarmiento stood

next to his truck without ducking to take cover, according to Contreras as if “he knew what was

going on.” 9 RP at 911.

       After the shooting, Sarmiento told his uncle that he had planned the shooting with his

friends.

       We conclude that overwhelming untainted evidence established that Sarmiento was an

accomplice to second degree murder and two first degree assaults.

       c.   Second Degree Unlawful Possession of a Firearm

       The State argued at trial and argues on appeal that Sarmiento constructively possessed the

firearm that Zuniga used because the gun was in the truck that he was driving. None of the

evidence introduced at trial that derived from the search warrants related to Sarmiento’s

possession of the gun on the night of the shooting. Therefore, we conclude that the jury would

have convicted Sarmiento of unlawful possession of a firearm absent any error. See Romero-

Ochoa, 193 Wn.2d at 348.




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No. 51589-0-II


             d.     Gang Aggravator

        The jury was instructed that to find the charged gang aggravator, it had to determine

“[w]hether the defendant committed the offense with the intent to directly or indirectly cause any

benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang, its

reputation, influence, or membership.” Clerk’s Papers (CP) at 243. The gang aggravator related

to all five charges.

        Sarmiento did not contest at trial that he was a member of the VSL gang. He introduced

himself to Contreras as “Taxer” and said that he was a member of the VSL gang. Others knew

Sarmiento to be a VSL gang member. Contreras told Sarmiento he represented 18th Street,

another Sureño gang. Sarmiento’s Facebook Messenger conversations with Contreras became

more adversarial after Sarmiento began to suspect that Contreras was not really a member of the

18th Street gang.

        Gamez, Zuniga, and Martinez were all gang members afﬁliated with the Southside

Criminals, another Sureño gang. At Gamez’s house on the night of the shooting, Sarmiento,

Martinez, and Zuniga talked about doing work for the gang. Zuniga wanted to elevate his status

within the gang. When Martinez handed Zuniga the gun, Martinez told him to “earn your

stripes.” 14 RP at 1857. Zuniga felt that he earned his stripes by ﬁring the gun. As noted above,

there was extensive evidence at trial to establish that Sarmiento was an accomplice to Zuniga’s

actions.

        We conclude that overwhelming untainted evidence established that Sarmiento or an

accomplice committed the charged offenses with the intent to directly or indirectly cause any

beneﬁt, aggrandizement, gain, proﬁt, or other advantage to or for a criminal street gang, its

reputation, inﬂuence, or membership.




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No. 51589-0-II


B.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Sarmiento argues that his defense counsel was ineffective because he failed to request a

“defense of others” jury instruction based on the theory that Zuniga acted in defense of

Sarmiento when Zuniga shot at Contreras, Crawford, and Fogalele. We disagree.

       1.    Legal Principles

       Both the Sixth Amendment to the United States Constitution and article I, section 22 of

the Washington Constitution guarantee criminal defendants the right to effective assistance of

counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). We review de novo an

ineffective assistance of counsel claim. Id.

       To prevail on an ineffective assistance claim, the defendant must show both that (1)

defense counsel’s representation was deficient and (2) the deficient representation prejudiced

him or her. Id. at 457-58. Representation is deficient if, after considering all the circumstances,

it falls below an objective standard of reasonableness. Id. at 458. Prejudice exists if there is a

reasonable probability that, except for counsel’s error, the result of the proceeding would have

been different. Id. It is not enough that ineffective assistance conceivably impacted the case’s

outcome; the defendant must affirmatively show prejudice. Id.

       We begin our analysis with a strong presumption that defense counsel’s performance was

reasonable. Id. Defense counsel’s conduct is not deficient if it can be characterized as legitimate

trial strategy or tactics. Id. To rebut the strong presumption that counsel’s performance was

effective, “the defendant bears the burden of establishing the absence of any ‘conceivable

legitimate tactic explaining counsel’s performance.’ ” State v. Grier, 171 Wn.2d 17, 42, 246

P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).




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No. 51589-0-II


          Where counsel’s failure to request a particular jury instruction is the basis for a claim of

ineffective assistance, the defendant must show that he or she “was entitled to the instruction,

counsel’s performance was deficient in failing to request it, and the failure to request the

instruction caused prejudice.” State v. Classen, 4 Wn. App. 2d 520, 539-40, 422 P.3d 489

(2018).

          2.   Legitimate Trial Strategy

          Even if Sarmiento was entitled to a defense of others instruction, the question here is

whether defense counsel’s failure to request such an instruction can be characterized as a

legitimate trial strategy or tactic. See Grier, 171 Wn.2d at 42.

          When a defendant is charged as an accomplice to a shooting, the primary defense often is

that the defendant had no knowledge that a shooting would occur. Defense counsel proffered

this defense. The theory was that Zuniga, a young, aggressive, and undisciplined gang member,

had acted on his own during the shooting because he was eager to elevate his status within the

gang. Defense counsel argued that Zuniga was high and intoxicated at the time of the shooting.

Defense counsel also argued that Sarmiento was not an accomplice to Zuniga’s actions because

there was no plan between them to shoot anyone and that Zuniga acted purely on his own.

          If defense counsel had requested a defense of others instruction, the jury might have

inferred that Zuniga was acting at Sarmiento’s request to defend him. Therefore, the instruction

could have undermined Sarmiento’s theory that Zuniga had acted alone and that Sarmiento had

nothing to do with Zuniga’s decision to shoot the victims. Given the strong presumption that

defense counsel’s performance was effective, we conclude that the decision not to request a

defense of other instruction was a legitimate trial strategy.




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No. 51589-0-II


        Because Sarmiento cannot demonstrate that defense counsel’s performance was deficient,

we hold that Sarmiento’s ineffective assistance of counsel claim on this basis fails.

C.      CUMULATIVE ERROR

        Sarmiento argues that cumulative error denied him a fair trial. Under the cumulative

error doctrine, the defendant must show that the combined effect of multiple errors requires a

new trial. State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017).

        Here, we have held that even if the trial court erred in denying Sarmiento’s suppression

motion, any error was harmless. Therefore, the cumulative error doctrine is inapplicable. See

State v. Yarbrough, 151 Wn. App. 66, 98, 210 P.3d 1029 (2009).

D.      SUFFICIENCY OF THE EVIDENCE – POSSESSION OF FIREARM

        Sarmiento argues that the State failed to present sufficient evidence of second degree

unlawful possession of a firearm because it failed to establish that he had actual or constructive

possession of a firearm. We disagree.

        1.      Legal Principles

        The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).

In a sufficiency of the evidence claim, the defendant admits the truth of the evidence and the

court views the evidence and all reasonable inferences drawn from that evidence in the light

most favorable to the State. Id. at 265-66. Credibility determinations are made by the trier of

fact and are not subject to review. Id. at 266. Circumstantial and direct evidence are equally

reliable. Id.




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No. 51589-0-II


       A person is guilty of unlawful possession of a ﬁrearm in the second degree if he

knowingly has a firearm in his possession or control and he has previously been adjudicated

guilty of a felony. RCW 9.41.040(2)(a); State v. Anderson, 141 Wn.2d 357, 360, 5 P.3d 1247

(2000). The trial court’s to-convict instruction included these elements. Sarmiento stipulated

that he previously had been adjudicated guilty as a juvenile of a felony offense and was not

permitted by law to possess a ﬁrearm.

       A person can have actual possession or constructive possession of an item. State v.

Reichert, 158 Wn. App. 374, 390, 242 P.3d 44 (2010). Actual possession requires physical

custody of the item. Id. Constructive possession occurs when a person has “dominion and

control” over an item. Id. Although the defendant’s ability to immediately take actual

possession of an item can show dominion and control, mere proximity to the item by itself is

insufficient. State v. Davis, 182 Wn.2d 222, 234, 340 P.3d 820 (2014). A person can have

possession without exclusive control; more than one person can be in possession of the same

item. State v. George, 146 Wn. App. 906, 920, 193 P.3d 693 (2008).

       Whether sufficient evidence establishes that a defendant had dominion and control over

an item depends on the totality of the circumstances. State v. Lakotiy, 151 Wn. App. 699, 714,

214 P.3d 181 (2009). Aspects of dominion and control include whether the defendant could

immediately convert the item to his or her actual possession, State v. Jones, 146 Wn.2d 328, 333,

45 P.3d 1062 (2002); the defendant’s physical proximity to the item, State v. Chouinard, 169

Wn. App. 895, 899, 282 P.3d 117 (2012); and whether the defendant had dominion and control

over the premises where the item was located. Reichert, 158 Wn. App. at 390.

       When a defendant has dominion and control of the premises, a rebuttable presumption

arises that the defendant also has dominion and control over items within the premises. Reichert,




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No. 51589-0-II


158 Wn. App. at 390. Courts have found sufficient evidence that a defendant had dominion and

control an item in a vehicle when the defendant was driving a vehicle that he or she owns. State

v. Bowen, 157 Wn. App. 821, 828, 239 P.3d 1114 (2010); State v. Turner, 103 Wn. App. 515,

524, 13 P.3d 234 (2000).

       In Bowen, the defendant was the owner, driver, and sole occupant of a truck in which a

firearm was located. 157 Wn. App. at 828. This court stated, “An individual’s sole occupancy

and possession of a vehicle’s keys sufficiently supports a finding that the defendant had

dominion and control over the vehicle’s contents.” Id. In Turner, the defendant was driving his

truck with one passenger and a rifle was in the back seat. 103 Wn. App. at 521. The court noted

that the defendant was “in close proximity to the rifle, knew of its presence, was able to reduce it

to his possession, and had been driving the truck in which the rifle was found.” Id. He also

“knew that he was transporting the firearm and did nothing to remove it from his presence.” Id.

at 524. The court stated, “[W]here there is control of a vehicle and knowledge of a firearm

inside it, there is a reasonable basis for knowing constructive possession, and there is sufficient

evidence to go to the jury.” Id.

       2.    Analysis

       Consistent with the law stated above, the trial court instructed the jury as follows

regarding the definition of “possession”:

       Possession means having a firearm in one’s custody or control. It may be either
       actual or constructive. Actual possession occurs when the item is in the actual
       physical custody of the person charged with possession. Constructive possession
       occurs when there is no actual physical possession but there is dominion and control
       over the item.

       Proximity alone without proof of dominion and control is insufficient to establish
       constructive possession. Dominion and control need not be exclusive to support a
       finding of constructive possession.




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No. 51589-0-II


       In deciding whether the defendant had dominion and control over an item, you are
       to consider all the relevant circumstances in the case. Factors that you may
       consider, among others, include whether the defendant had the immediate ability to
       take actual possession of the item, whether the defendant had the capacity to
       exclude others from possession of the item, and whether the defendant had
       dominion and control over the premises where the item was located. No single one
       of these factors necessarily controls your decision.

CP at 239. In addition, the to-convict instruction required that the jury find that Sarmiento had

possession of a firearm on November 2, the day of the shooting.

       The State argues that Sarmiento had constructive possession because the gun that Zuniga

shot was in Sarmiento’s truck, which he was driving, and he did nothing to remove it. Sarmiento

argues that the State could not show that he had dominion and control over the firearm while it

was in the truck because there was no evidence that Sarmiento knew Zuniga had the gun inside

the truck or knew that Martinez brought the gun into the truck in the first place.

       An essential element of the crime of unlawful possession of a firearm is knowing

possession. State v. Hartzell, 156 Wn. App. 918, 944, 237 P.3d 928 (2010). But knowledge may

be inferred when the defendant’s conduct indicates the requisite knowledge is logically probable.

State v. Warfield, 119 Wn. App. 871, 884, 80 P.3d 625 (2003).

       Here, Sarmiento saw the gun at Gamez’s house, regardless of whether he touched it.

Zuniga testified that he, Sarmiento, and Martinez left Gamez’s house with the gun in Sarmiento’s

truck. When Martinez gave Zuniga the gun at a stop, Sarmiento told Zuniga “Don’t be worried,”

“Don’t be afraid,” and “Be ready.” 14 RP at 1913. Zuniga testified that Sarmiento saw him with

the gun in his hands sometime that night. This evidence supports a reasonable inference that

Sarmiento knew that the gun was in his truck.

       Sarmiento points out that the cases that find sufficient evidence of possession based on a

defendant driving a vehicle in which a firearm was located all involved situations where the




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No. 51589-0-II


firearm was not in anyone’s actual possession. Bowen, 157 Wn. App. at 828 (firearm in bag next

to driver’s seat); Turner, 103 Wn. App. at 518 (firearm in back seat). Here, the gun was not

simply loose in the truck; it was actually possessed by Martinez and then Zuniga. But as the

court instructed the jury here, “whether the defendant had dominion and control over the

premises where the item was located” was a factor that the jury could consider and “[d]ominion

and control need not be exclusive to support a finding of constructive possession.” CP at 239.

The instruction did not state that a third party’s actual possession of the gun precluded a finding

of constructive possession.

       We hold that the evidence was sufficient to prove that Sarmiento had constructive

possession of the firearm.

E.     SAG CLAIMS

       1.   Challenges to Warrants

       Sarmiento asserts that the use of the term “co-conspirators” in the HTC and LG phone

warrant was overbroad because RCW 9A.32.030 (the first degree murder statute) does not

contain the term “co-conspirator” and the term allowed law enforcement to broaden their search

to items for which there was no probable cause. He also asserts that the temporal limitations on

some of the search warrants did not cure the warrants’ overbreadth because the date limitations

were not relevant to the crimes under investigation.

       But we held above that even if the warrants were invalid, any error was harmless.

Therefore, we reject these assertions.

       2.   Double Jeopardy

       Sarmiento asserts that his convictions for second degree felony murder and first degree

manslaughter violate the Fifth Amendment’s prohibition on double jeopardy.




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        However, at sentencing the trial court vacated the first degree manslaughter conviction.

Sarmiento’s judgment and sentence states that he was convicted of only one count of second

degree murder under RCW 9A.32.050(1)(b). Therefore, we conclude that there was no violation

of double jeopardy.

                                          CONCLUSION

        We affirm Sarmiento’s convictions.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, J.


 We concur:



 LEE, C.J.




 CRUSER, J.




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