                                                                        FILED
                                                                    OCTOBER 18, 2018
                                                                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. 32919-4-III
                      Respondent,             )
                                              )
       v.                                     )
                                              )
LUIS GOMEZ-MONGES,                            )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       SIDDOWAY, J. — Luis Gomez-Monges appeals his conviction for the first degree

murder of Vern Holbrook, challenging the sufficiency of the evidence, the trial court’s

refusal to dismiss the charge against him despite finding prosecutorial misconduct, and

the imposition of discretionary legal financial obligations (LFOs) without a sufficient

inquiry into his ability to pay.

       The trial court’s refusal to dismiss murder charges on account of prosecutorial

misconduct was addressed in this court’s decision in the appeal of Daniel Blizzard,

another individual convicted of Mr. Holbrook’s murder. The refusal to dismiss the

murder charges was upheld because while prosecutorial misconduct was demonstrated,

deprivation of Mr. Blizzard’s right to a fair trial before a fair tribunal was not. The same
No. 32919-4-III
State v. Gomez-Monges


is true here. For that reason, and because the evidence was sufficient, we affirm the

conviction. We remand the judgment and sentence with directions to strike the LFOs.

                         FACTS AND PROCEDURAL BACKGROUND

         Vernon Holbrook owned and served as the real estate broker for Aspen Real

Estate in Yakima. On May 25, 2013, he was found beaten and with his throat cut, lying

in a pool of blood in a vacant house he had arranged to show to a couple earlier that day.

Mr. Holbrook later died of his injuries.

         Mr. Holbrook was known by co-workers to “[do] everything with his cellphone,”

but on the night he was found injured, his phone was not at the crime scene or in his

truck, which was found parked outside. Report of Proceedings (RP)1 at 1522. Yakima

County Sheriff’s Detective Sam Perrault made an exigent circumstances request to the

telephone carrier within hours of Mr. Holbrook being found and determined that Mr.

Holbrook’s phone was no longer active. By the next day, the detective had been able to

obtain Mr. Holbrook’s call records and determine that the last call to connect with his

phone had been made at 11:15 a.m. on May 25, from a phone owned by Adriana Mendez.

On May 27, 2013, detectives met with Ms. Mendez and were provided with the names of

Luis Gomez-Monges, Daniel Blizzard, and Jill Taylor.



         1
             Unless otherwise noted, all report of proceedings citations refer to RP (Jan. 10,
2014).


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No. 32919-4-III
State v. Gomez-Monges


       Concluding that Mr. Gomez-Monges had been the hit man in a murder for hire

scheme, the State charged him with attempted first degree murder and first degree

assault. Ms. Mendez, Ms. Taylor, and Mr. Blizzard were also charged in connection with

the crime. Mr. Blizzard had done the hiring; he was Mr. Holbrook’s former business

partner and the beneficiary of a $1.58 million keyman life insurance policy acquired

before the two men had a falling out. Before the May 25 attack, Mr. Blizzard had tried to

recruit others to kill Mr. Holbrook. His relationship with his sometimes-girlfriend, Ms.

Taylor, led him to Ms. Taylor’s roommate, Ms. Mendez, and Ms. Mendez led him to her

boyfriend, Mr. Gomez-Monges.

       During the pretrial phase of the cases against the four defendants, the trial judge

received a copy of a letter, critical of her, that had been directed to the presiding judge by

the county’s elected prosecutor.2 This court’s opinion in Mr. Blizzard’s appeal of his

murder conviction describes the court’s handling of the letter:

       In the letter,[3] the prosecutor alleged the trial judge had “a bias and
       prejudice against the Yakima County Prosecuting Attorney’s Office.” He
       criticized the trial judge’s handling of Mr. Blizzard’s case as well as others.
       The prosecutor claimed the trial judge personally disliked several
       prosecutors and “bent over backwards” to favor the defense. He alleged the
       trial judge’s bias made it “impossible for the State to get a fair trial.”
       Ultimately, the prosecutor requested the trial judge recuse herself or be
       removed by the presiding judge.



       2
           The elected prosecutor who wrote the letter no longer holds office.
       3
           The letter appears at pages 338-41 of the clerk’s papers in this appeal.

                                                3
No. 32919-4-III
State v. Gomez-Monges


               The trial judge brought the letter to the parties’ attention. The judge
       noted she had consulted with the state’s judicial ethics advisory committee.
       She expressed concern that the letter was improper ex parte contact and
       constituted an attempt to intimidate the court. The trial judge provided the
       State with a deadline for filing a formal recusal motion and set a briefing
       schedule.
               The State never filed a formal motion for recusal. Instead, the
       State’s lead deputy prosecutor assigned to this case filed a notice of
       abandonment, disavowing the recusal request. Mr. Blizzard, in turn, filed a
       motion to dismiss under CrR 8.3(b) for prosecutorial misconduct based on
       the letter. The trial court denied Mr. Blizzard’s motion and continued to
       hear the case.

State v. Blizzard, 195 Wn. App. 717, 723-24, 381 P.3d 1241 (2016) (citations omitted),

review denied, 187 Wn.2d 1012, 388 P.3d 485 (2017).

       Mr. Gomez-Monges filed his own motion to dismiss the charges against him under

CrR 8.3(b) based on the prosecutor’s letter, which he, too, characterized as prosecutorial

misconduct. The trial court heard argument of dismissal motions in all four pending

prosecutions at the same time and denied all of them. It proceeded to preside at the two

trials that eventually took place. Ms. Mendez and Ms. Taylor were offered plea deals and

turned State’s evidence.

       At Mr. Gomez-Monges’s trial, Ms. Mendez testified that in February 2013 she

learned from Ms. Taylor that Mr. Blizzard was willing to pay $10,000 to have a man

killed, shared the information with Mr. Gomez-Monges, and the two of them approached

Mr. Blizzard about the offer. Through Ms. Mendez, who acted as translator (Mr. Gomez-




                                              4
No. 32919-4-III
State v. Gomez-Monges


Monges’s primary language is Spanish4), Mr. Gomez-Monges told Mr. Blizzard “that he

was going to do it.” RP at 2058.

      A couple of weeks before the assault, Mr. Blizzard suggested that Ms. Mendez and

Mr. Gomez-Monges carry out the crime by pretending to be in the market to buy a home

and arranging to have Mr. Holbrook show them some properties. Ms. Mendez testified

that as May 25 approached, Mr. Gomez-Monges told her “[t]o go ahead and set up the

appointment.” RP at 2066.

      On May 25, Mr. Gomez-Monges borrowed his mother’s car and drove Ms.

Mendez and her three children to a house in Tieton where Ms. Mendez had arranged for

the couple to meet Mr. Holbrook. They met Mr. Holbrook at the house around noon. He

showed them that house and another house nearby. According to Ms. Mendez, the

children waited in the car both times as she and Mr. Gomez-Monges looked at the homes.

      Ms. Mendez testified that during the tour of the second home, “[o]ut of the corner

of my eye I see Luis getting ready to hit Holbrook.” RP at 2078. She saw Mr. Gomez-

Monges’s left hand pull back, saw him starting to swing at Mr. Holbrook, and then she

walked out of the room. She testified that, “As I walk I see him—I felt Holbrook hit the

floor.” RP at 2079. After that, she turned around and saw Mr. Gomez-Monges lean over

Mr. Holbrook and hit him. She described Mr. Gomez-Monges as hitting Mr. Holbrook


      4
         According to Ms. Mendez, Mr. Gomez-Monges understands English and can
speak it some, but struggles with conversation.

                                            5
No. 32919-4-III
State v. Gomez-Monges


“on his head,” with his fist, “four, five times.” RP at 2081. When Ms. Mendez saw

blood flowing from underneath Mr. Holbrook, she walked outside. She said she “didn’t

want to see more.” RP at 2083. She waited outside, and Mr. Gomez-Monges came out

of the house a few minutes later. They took Mr. Holbrook’s cellphone, which they broke

and discarded. At Mr. Gomez-Monges’s suggestion, she sent a text message to Mr.

Blizzard to let him know the job was done. She and Mr. Gomez-Monges then drove back

to Yakima together.

       Two days after the assault, on May 27, Ms. Mendez received $12,000 from Mr.

Blizzard that she claimed to have given to Mr. Gomez-Monges the same afternoon. By

that time, Detective Perrault had contacted her to ask about the call placed from her

phone to Mr. Holbrook. She agreed that the detective could pick her up for questioning

and told Mr. Gomez-Monges that it would not be a good idea for him to be present when

the detective arrived. According to her, Mr. Gomez-Monges said not to worry because

she “didn’t do anything.” RP at 2147.

       Mr. Gomez-Monges testified at trial and accused Ms. Mendez of the murder. He

claimed to have known nothing about a plan to kill someone for money. According to

Mr. Gomez-Monges, he had cleaned up and repaired a trailer that his mother wanted to

sell, and on the day Mr. Holbrook was assaulted, Ms. Mendez told him they were going

to meet with a man who was interested in the trailer. At Ms. Mendez’s direction, Mr.

Gomez-Monges drove to the house in Tieton where they met Mr. Holbrook, whom they

                                             6
No. 32919-4-III
State v. Gomez-Monges


followed to a second home. At the second home, Mr. Gomez-Monges claimed Ms.

Mendez sent him outside to roll down the car windows for the waiting children, and as he

was walking back to the house, he heard a sound “like when you break a coconut with

something.” RP (Oct. 9, 2014) at 154. Rushing in, he encountered Ms. Mendez

“screaming and . . . standing there and the man was laying between her legs and she was

hitting him, it was with a rock, like a big rock.” RP (Oct. 9, 2014) at 155. He claims to

have pulled her off of Mr. Holbrook and taken the rock. She refused to tell him what was

going on and insisted that they leave. He testified that Ms. Mendez threw the rock and

Mr. Holbrook’s cell phone out the car window as they drove back to Yakima and that she

never gave him $12,000.

       Four medical experts testified at trial: Robert Padilla, M.D., the emergency room

physician who attended to Mr. Holbrook at Yakima Valley Memorial Hospital the night

of the assault; Ronald Pauldine, M.D., an anesthesiologist intensivist who attended to Mr.

Holbrook after he was transferred to Harborview Medical Center; Jeffrey Reynolds,

M.D., the forensic pathologist who performed the autopsy of Mr. Holbrook; and Carl

Wigren, M.D., a forensic pathologist engaged by the defense. Mr. Holbrook had

remained in a chronic vegetative state until passing away on January 26, 2014, so the

autopsy was performed 8 months after the assault.

       The two pathologists agreed that the cause of Mr. Holbrook’s death was severe

blunt force trauma to his head and that he had three injuries to his skull. They agreed that

                                             7
No. 32919-4-III
State v. Gomez-Monges


the injuries were not caused by blows with a fist. Dr. Reynolds testified that blows with a

fist “would leave a different kind of tear in the skin,” and given the force with which the

injuries were delivered, such a blow “would fracture every bone in your hand.” RP at

2338. He surmised that the injury was inflicted by something with a slightly rounded

edge. He testified that someone stomping on the head was a “possible” cause of the

injuries. Id.

       The defense expert, Dr. Carl Wigren, did not dispute that stomping on Mr.

Holbrook’s head was consistent with the severity of the blows if it had been done by

someone wearing a “really hard-edged sole,” but testified that it would ordinarily leave a

patterned abrasion and “a surgeon would probably remark on that and a forensic nurse

examiner would probably photograph that.” RP at 2370-71. When cross-examined, he

agreed it was “possible” that a victim’s head could be stomped on without leaving a

visible patterned abrasion. RP at 2380.

       Mr. Holbrook had also sustained a large cut across the front part of his neck that

extended into his larynx but had not injured his carotid arteries. A box cutter with

reddish brown stains on its blade was found in the trunk of the car Mr. Gomez-Monges

drove on the day of the assault, but there was insufficient DNA5 evidence on the handle

or blade to compare it to DNA samples from Mr. Gomez-Monges, Ms. Mendez and Mr.



       5
           Deoxyribonucleic acid.

                                             8
No. 32919-4-III
State v. Gomez-Monges


Holbrook. The box cutter was the only item found by law enforcement that might have

been used as a weapon in the assault.

       Dr. Wigren, when questioned whether the box cutter could have caused the neck

injury, expressed the view that if the blade had been extended far enough to account for

the depth of the wound, the blade would have broken off. The three other medical

experts expressed their view that a box cutter or utility knife could have caused the

injury, however.

       The jury found Mr. Gomez-Monges guilty of first degree murder but answered

“no” to three special verdicts, including one asking if Mr. Gomez-Monges had been

armed with a deadly weapon at the time of the assault.6 Clerk’s Papers (CP) at 1864.

The trial court sentenced him to 320 months’ confinement and imposed $20,860.50 in

LFOs, $19,210.50 of which was restitution. After briefly discussing Mr. Gomez-

Monges’s ability to pay the court imposed fines of $600.00 for his court appointed

attorney and $500.00 for the cost of incarceration. Mr. Gomez-Monges did not object.

       Mr. Gomez-Monges appeals.




       6
        The others asked whether the defendant manifested deliberate cruelty to the
victim or knew Mr. Holbrook was particularly vulnerable.

                                             9
No. 32919-4-III
State v. Gomez-Monges


                                       ANALYSIS

I.     SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTION

       Mr. Gomez-Monges concedes that “[t]he State provided evidence ad nauseum of a

plan by Mr. Blizzard to kill Mr. Holbrook” and had “proved that Mr. Gomez-Monges had

knowledge of th[e] plan[ and] was present when Mr. Holbrook was killed.” Br. of

Appellant at 15. But emphasizing the jurors’ special verdict finding that Mr. Gomez-

Monges was not armed with a deadly weapon and the pathologists’ agreement that the

head injuries could not have been inflicted by blows with a fist, Mr. Gomez-Monges

argues that “there was no evidence that Mr. Gomez-Monges killed Mr. Holbrook.” Id.

       A defendant’s challenge to the sufficiency of the evidence requires us to view the

evidence in the light most favorable to the State and determine “whether any rational trier

of fact could have found the elements of the charged crime beyond a reasonable doubt.”

State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). “A claim of insufficiency

admits the truth of the State’s evidence and all inferences that reasonably can be drawn

therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Substantial

evidence means evidence in the record of a sufficient quantity to persuade a fair-minded,

rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d

313 (1994).

       Mr. Gomez-Monges is wrong when he argues that the State failed to prove its case

because it presented no evidence of a weapon used to strike the head blows. When


                                            10
No. 32919-4-III
State v. Gomez-Monges


conducting substantial evidence review, “circumstantial evidence is not to be considered

any less reliable than direct evidence.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d

99 (1980). In an analogous case, State v. Slaughter, 70 Wn.2d 935, 425 P.2d 876 (1967),

our Supreme Court affirmed a conviction for assault with a deadly weapon even though

no deadly weapon was seen by the victim or by the witness to the immediate aftermath of

the crime, and no deadly weapon was ever found. As the court explained,

       In addition to the circumstantial evidence, we have the testimony of Mr.
       McFerrian that defendant struck him, knocked him down, and, although he
       did not see the weapon which produced them, the blows inflicted the
       wounds which required suturing and medical care. The sight of a blade in
       defendant’s hand would have added little to the direct evidence that he
       struck his victim, knocked him down, and in so doing inflicted two cutting
       wounds. Viewed in the light of the argument between Mrs. Ruiz and
       defendant, followed immediately with her leaving the two men alone in the
       hallway, and the complete absence of any other evidence explaining or
       implying that the wounds could have been inflicted by another person, or
       by accident, we have proof of circumstances rivaling in persuasiveness
       direct evidence that the victim saw a weapon in defendant’s hand when the
       blow was struck.

Id. at 938.

       He overstates Dr. Wigren’s refutation of the possibility that Mr. Gomez-Monges

produced the injuries by stomping on Mr. Holbrook’s head, a possibility consistent with

Ms. Mendez’s testimony that when she walked outside Mr. Gomez-Monges was standing

over Mr. Holbrook, who was on the floor. We disagree with Mr. Gomez-Monges’s

argument that because only the pathologists had the benefit of the close examination that

can be done post-mortem, the jurors should have accepted their opinions over that of a

                                           11
No. 32919-4-III
State v. Gomez-Monges


treating physician, Dr. Padilla, who testified that the head injuries could “[p]erhaps” have

been inflicted by “a very hard [blow] with a fist, elbow, [or] knee.” RP at 1458. (He

believed another object was more likely.) As the jurors were instructed, they were

“not . . . required to accept” the opinion of any expert witness. CP at 1845 (Jury

Instruction 7).

       We disagree that the jurors’ answer to the deadly weapon special verdict belies a

finding of guilt beyond a reasonable doubt. Mr. Gomez-Monges was charged with

premeditated first degree murder, not murder with a deadly weapon. The deadly weapon

instruction was relevant to only the aggravating circumstance charged by the State.

Jurors could have concluded that no deadly weapon was used or might have answered

“no” because they inferred that one was used but were reluctant to make the finding

absent direct evidence. In other words, the special verdict might not be inconsistent or it

might be; either way, it is not a basis for rejecting a verdict that is otherwise supported by

substantial evidence. State v. Goins, 151 Wn.2d 728, 734, 92 P.3d 181 (2004). “Juries

return inconsistent verdicts for various reasons, including mistake, compromise, and

lenity.” Id. at 733 (citing Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76

L. Ed. 356 (1932)); see also State v. Holmes, 106 Wn. App. 775, 780, 24 P.3d 1118

(2001) (holding that a jury could reasonably conclude that a utility knife was not likely to

or to easily produce death).



                                             12
No. 32919-4-III
State v. Gomez-Monges


       Finally, Mr. Gomez-Monges was charged as an accomplice, and jurors, or some of

them, might have believed his testimony that Ms. Mendez inflicted the fatal injuries with

a rock but disbelieved his claim that assistance he provided before and after the crime

was without the intent to assist.7 “[A] jury is not required to determine which participant

acted as a principal and which participant acted as an accomplice.” In re Pers. Restraint

of Hegney, 138 Wn. App. 511, 524, 158 P.3d 1193 (2007).

       The evidence was sufficient.

II.    THE TRIAL COURT DID NOT ERR IN DENYING MR. GOMEZ-MONGES’S MOTION TO
       DISMISS THE CHARGE AGAINST HIM

       Mr. Gomez-Monges next argues that the Yakima County prosecutor’s letter

complaining about the trial judge and asking that she be removed from the case violated

separation of powers and constituted outrageous government misconduct, violating Mr.

Gomez-Monges’s rights to due process and a fair tribunal. The same arguments were

made in Mr. Blizzard’s earlier appeal and were rejected. Blizzard, 195 Wn. App. at

724-29. Mr. Gomez-Monges has identified no difference between the letter’s impact on

Mr. Blizzard’s trial and his own; instead, he implies that we should reconsider the

decision in Blizzard. We stand by the reasoning of Blizzard. The trial court did not err in

denying the motion to dismiss the charge.



       7
        Jurors inquired during their deliberations as to whether Mr. Gomez-Monges was
the perpetrator or an accomplice.

                                            13
No. 32919-4-III
State v. Gomez-Monges


III.   IMPOSITION OF LFOS WITHOUT A SUFFICIENT BLAZINA 8 INQUIRY

       Finally, Mr. Gomez-Monges argues that the trial court erred when it imposed

discretionary LFOs without conducting the individualized inquiry into his ability to pay

required by RCW 10.01.160(3) and Blazina.

       In response, the State informs the court that "in the interest of judicial economy,

the State agrees to waive both discretionary costs if the Court allows the issue to be

considered for the first time on appeal." Br. of Resp't at 37. A majority of the panel

would consider the issue for the first time on appeal, so we accept the State's waiver of

discretionary costs. We remand with directions to strike them.

       Affirmed and remanded with directions to strike both discretionary LFOs.

       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.


                                                     7}7dMw~,~
                                                   Siddoway, J.

WE CONCUR:




Lawrence-Berrey, C.J.                              Fearing, J.


       8
           State v. Blazina, 182 Wn.2d 827, 344 P .3d 680 (2015).

                                              14
