                                                                        FILED
                                                                     MARCH 17, 2016
                                                                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. 32735-3-111
                      Appellant,              )
                                              )
       v.                                     )
                                              )
MARCOS A. AVALOS BARRERA,                     )        UNPUBLISHED OPINION
                                              )
                      Respondent.             )

       SIDDOWAY, C.J. -The State charged Marcos Avalos Barrera as an accomplice to

two counts of assault in the first degree based on undisputed evidence showing that Mr.

Avalos Barrera was present at the time of the assaults and that he had threatened the

victims earlier in the day. Yet, upon Mr. Avalos Barrera's Knapstad1 motion, the trial

court dismissed the charges, finding the evidence insufficient to show that Mr. Avalos

Barrera participated in or acted in a manner to encourage the assaults. We agree with the

trial court and affirm.

                                          FACTS

       Marcos Avalos Barrera was a known member of the Marijuanos gang-a gang

that has been feuding with the Munoz family for years. On June 22, 2013, around 7:30

p.m., Mr. Avalos Barrera was 'jumped," outside of a local convenience store, by A.M., a



       1
           State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
No. 32735-3-III
State v. Avalos Barrera


member of the Munoz family. Clerk's Papers (CP) at 18. A.M., who was with his

brother Jessie and his father Juan,2 struck Mr. Avalos Barrera twice, knocking him out.

       After the Munozes left, a police officer arrived at the convenience store and

questioned Mr. Avalos Barrera about the assault. Mr. Avalos Barrera told the officer

"Don't worry about it, I'll take care of it. Street justice." CP at 295.

       Mr. Avalos Barrera left the convenience store and began walking toward the

Davalos home (a known hangout for Marijuanas gang members), which is "kitty comer"

from the Munoz home. CP at 17. On his way, Mr. Avalos Barrera passed the Munoz

home and threatened members of the family who were outside. Specifically, he held his

fingers "like he was pointing a gun" and yelled "none of you will come back a[l]ive

tonight." CP at 162.

       Later that day, Mr. Avalos Barrera sought treatment for his injuries at the hospital.

While there, law enforcement again contacted Mr. Avalos Barrera and he again indicated

that he did not wish to speak with officers, explaining "he would take care of it." CP at

303. He assured the officer "that nothing would happen [that] evening." CP at 314.

       Late that same evening, Humberto Davalos held a barbeque at the Davalos

residence. Shortly after 11 :00 p.m., officers responded to a shooting that occurred on the

comer between the Davalos residence and the Munoz residence.


       2 Because we reference multiple members of the Munoz family, we refer to them
by their first names. No disrespect is intended.

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State v. Avalos Barrera


       Video surveillance recovered from outside of the Davalos house shows Rigoberto

Vasquez standing in front of the house making taunting gestures in the direction of the

Munoz residence just before 11 :00 p.m. 3 The video does not contain audio. The video

also shows Mr. Vasquez lifting his shirt to display a gun as two other individuals, Luis

and Domingo Quintero, join in the front yard. Mr. Vasquez and Luis Quintero can be

seen walking aggressively in the direction of the Munoz residence, while Domingo

Quintero walks in the opposite direction and briefly disappears from the frame. Domingo

Quintero returned to the front yard with Humberto Davalos.

       Simultaneous footage of the back of the Davalos house shows Mr. Avalos Barrera

in the alley. Eventually, Domingo Quintero can be seen running from the front to the

back of the house, where it appears he alerts Mr. Avalos Barrera to the already ongoing

dispute.

       Meanwhile, in the front of the house, footage shows Mr. Davalos pulling a gun

and pointing it in the direction of the Munoz residence.

       Shortly after the weapon is pulled, Mr. Avalos Barrera is observed entering the

front yard for the first time since the altercation began. The video shows Mr. Avalos

Barrera saying something. It is not clear what was said or to whom he was talking. After




       3
       Although the surveillance video only shows the Davalos house, witnesses
confirmed that the gestures were made toward the Munozes home.

                                             3
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State v. Avalos Barrera


approximately 25 seconds on the frame, Mr. Avalos Barrera walks away from the

altercation.

       Weapons were fired. Using shot spotter technology, 4 police determined that the

first shot fired came from the Munoz side. The video surveillance shows Mr. Davalos

being helped to the ground after suffering what appears to be a shot to the leg. After Mr.

Davalos was shot, Mr. Avalos Barrera returned to the front yard to check on him. The

video indicates that within 10 seconds, Mr. Avalos Barrera again left the front yard and

this time returned to the back alley.

       Police responded to the dispute less than two minutes after the first shot was fired.

They investigated the shooting for weeks. Upon submitting a report to the prosecutor's

office, police recommended Mr. Avalos Barrera be charged with felony harassment under

RCW 9A.46.020(2)(b) and riot under RCW 9A.84.010.

       Despite the police recommendation, on August 7, 2013, the State filed an

information charging Mr. Avalos Barrera with two counts of first degree assault through

accomplice liability. The victim listed for count one was A.M. and the victim listed for

count two was Jessie Munoz. The information also charged Mr. Avalos Barrera with two




       4
        "Shot Spotter is an acoustic monitoring device which uses sensors that are placed
in multiple locations in Quincy. Through the use of triangulation and computer software,
Shot Spotter is able to locate where gunshots are fired." CP at 18.

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No. 32735-3-III
State v. Avalos Barrera


counts of felony harassment for the threats made against A.M. and Jessie Munoz earlier

in the evening on June 22, 2013.

       On August 13, 2013, at a probable cause hearing for the issuance of an arrest

warrant, the court concluded that the State did not have probable cause for arrest based on

either of the assault charges. The court did conclude, though, that probable cause

supported the issuance of an arrest warrant based on the two felony harassment charges.

       Mr. Avalos Barrera filed a motion for pretrial dismissal under CrR 8.3(c). After

argument on the motion, the court dismissed the two assault charges, concluding that the

State did not present sufficient evidence to establish prima facie cases for the assault

charges. Later, the State filed a motion for dismissal without prejudice of the two

remaining counts of felony harassment. The court entered an order dismissing the two

counts without prejudice.

       The State appeals the trial court's dismissal of the two counts of assault.

                                        ANALYSIS

       The only issue raised on appeal is whether the trial court erred in granting Mr.

Avalos Barrera's Knapstad motion. Specifically, the State argues that the trial court

erred when it dismissed the counts because there was sufficient evidence that Mr. Avalos

Barrera was ready to assist and was encouraging the gunfight.

       Under Knapstad, a trial court may grant a criminal defendant's pretrial motion to

dismiss if there are no disputed facts, and the undisputed facts are insufficient to support

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State v. Avalos Barrera


a finding of guilt. State v. Knapstad, 107 Wn.2d 346, 356, 729 P.2d 48 (1986). "The

court must decide 'whether the facts which the State relies upon, as a matter of law,

establish a prima facie case of guilt."' State v. Montano, 169 Wn.2d 872, 876, 239 P.3d

360 (2010) (quoting Knapstad, 107 Wn.2d at 356-57). A trial court's pretrial dismissal

of criminal charges pursuant to a Knapstad motion is subject to de novo review. Id.

       Here, because Mr. Avalos Barrera did not contest that the assault took place,

resolution of the Knapstad motion turns on whether evidence supports Mr. Avalos

Barrera's complicity in the assault. Under RCW 9A.08.020(3)(a), a person is an

accomplice if, "[w ]ith knowledge that it will promote or facilitate the commission of the

crime, he or she: (i) Solicits, commands, encourages, or requests such other person to

commit it; or (ii) Aids or agrees to aid such other person in planning or committing it."

       Physical presence and assent alone are insufficient to establish accomplice

liability. In re Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979). However,

evidence of presence at the scene plus indicia that the putative accomplice was "ready to

assist" may be sufficient. Id. An individual is liable as an accomplice if"' he associates

himself with the undertaking, participates in it as in something he desires to bring about,

and seeks by his action to make it succeed."' Id. (quoting State v. J-R Distribs. Inc., 82

Wn.2d 584, 593, 512 P.2d 1049 (1973).

       A criminal defendant charged with assault in the first degree as an accomplice

"' must have known generally that he was facilitating an assault, even if only a simple,

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No. 32735-3-III
State v. Avalos Barrera


misdemeanor level assault, and need not have known that the principal was going to use

deadly force or that the principal was armed.'" State v. McChristian, 158 Wn. App. 392,

401, 241 P.3d 468 (2010) (quoting In re Pers. Restraint Petition of Sarausad, 109 Wn.

App. 824, 836, 39 P.3d 308 (2001)).

       The State argues that Mr. Avalos Barrera "must have known about the pending

firefight," because he is seen on video yelling. Br. of Appellant at 10. It further asserts

that the threats Mr. Avalos Barrera made toward the Munoz family earlier in the evening

indicate his desire to bring about the assault.

       In support of its argument, the State relies on State v. Asaeli, 150 Wn. App. 543,

208 P.3d 1136 (2009), where the court found that because the evidence did not show the

defendant was aware of any plan to assault the victim, the evidence was insufficient to

support a conviction for accomplice liability. The State argues that here, unlike Asaeli,

Mr. Avalos Barrera was aware of the purported plan to assault.

       The State's argument has no merit. If the State had presented the court with

evidence that Mr. Avalos Barrera was a high ranking member in the Marijuanos gang and

that he had the authority to instruct other members how to act, then the State might have

presented sufficient evidence to support a prima facie case of accomplice liability. Here,

though, the State provided no such evidence.

       The evidence presented shows that Mr. Avalos Barrera was not in the front yard

when the confronta,tion began. Evidence does not indicate what Mr. Avalos Barrera said

                                                  7
No. 32735-3-III
State v. Avalos Barrera


when he did enter the front yard. Nor does the evidence suggest that Mr. Avalos Barrera

had any knowledge of an impending gunfight, let alone that his purpose was to bring

about a gunfight that night. In fact, law enforcement reports reveal that to the contrary,

Mr. Avalos Barrera assured officers nothing would happen that night.

       Put simply, there is no evidence that Mr. Avalos Barrera solicited, commanded,

encouraged, or requested another individual to assault the Munozes on the night in

question. Further, there is no evidence that Mr. Avalos Barrera aided or agreed to aid

Humberto Davalos, Luis Quintero, or Rigoberto Vasquez in the commission of the

assault.

       As a result, there is insufficient evidence to support a prima facie case for

accomplice liability to assault in the first degree.

       Affirm.

       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.




WE CONCUR:




K~7                                                    Lawrence-Berrey, J.

                                               8
