                                                               FILED
                                                            AUGUST 20, 2013 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 30738-7-III
                                              )
                       Respondent,            )
                                              )
              v.                              )         PUBLISHED OPINION
                                              )
SEBASTIAN CORTES AGUILAR,                     )

                                              )

                       Appellant.             )


       KULIK, J. - After confronting his wife about her telephone conversation with

another man, Sebastian Cortes Aguilar l stabbed and killed his wife. Mr. Cortes also cut

his daughter as she attempted to block her father from attacking her mother. Ajury found

Mr. Cortes guilty of fIrst degree murder of his wife and second degree assault of his

daughter. Mr. Cortes appeals. He contends that the evidence was not sufficient to

establish the premeditation element of fIrst degree murder. He also contends that the

evidence was not suffIcient to establish that he intentionally assaulted his daughter.

Finally, Mr. Cortes challenges the condition of community custody that prohibits him


       1 Sebastian   Cortes Aguilar signed his judgment and sentence as "Sebastian
Cortes."
No.30738-7-III
State v. Cortes


from contacting his children for 10 years. We conclude that Mr. Cortes's challenges are

without merit and affirm the trial court in all respects.

                                           FACTS

       In August 2011, Mr. Cortes and his wife, Ortencia Arroyo Alejandre, argued in

their Chelan County home. Mr. Cortes stabbed Ms. Arroyo Alejandre at least five times.

She died at the home from her injuries. The couple's 13-year-old daughter was also cut

during the argument. Wenatchee police arrested Mr. Cortes and charged him with first

degree murder of Ms. Arroyo Alejandre and first degree assault-domestic violence, of

their daughter.

       At trial, Officer Keith Kellogg testified that he interviewed Mr. Cortes regarding

the death of Ms. Arroyo Alejandre. Mr. Cortes told Officer Kellogg that Ms. Arroyo

Alejandre was holding a knife to peel a cucumber when Mr. Cortes voiced his suspicions

about her talking to a man on the telephone. Ms. Arroyo Alej andre became upset and

struck out at Mr. Cortes with the knife, cutting him on the hand. Mr. Cortes told Officer

Kellogg that Ms. Arroyo Alejandre threatened to kill him, so he grabbed the knife and

attacked her to prevent being harmed or killed. Mr. Cortes stated that he intended to stab

Ms. Arroyo Alejandre in the throat, but did not think that he would kill her ifhe stabbed

her in that area. Mr. Cortes said that he acted out because of Ms. Arroyo Alejandre's



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No.30738-7-I1I
State v. Cortes


words and actions. Officer Kellogg testified that he saw cuts to Mr. Cortes's hand and

shoulder, which according to Mr. Cortes, came from Ms. Arroyo Alejandre.

       During the interview, Mr. Cortes also said that he remembered his daughter getting

in the middle of the argument, but did not remember cutting her during that process and

that it must have been an accident. He said everything happened really quickly.

       The daughter witnessed the violent argument between her parents. She testified

that she was listening to the television and could hear her parents arguing in another

room. When she heard a bottle crack, she turned off the television and ran into the living

room. She witnessed her father punching her mother and beating her mother with a belt.

Her father ran into the kitchen, and the daughter attempted to pick up her mother and take

her away from the house. The daughter testified that she knew her father was going to get

a knife because she had observed him do it before.

       The daughter said her father caught up with them and pulled them into a comer.

The daughter positioned herself in front of her mother. Her father then "started, like,

throwing the knife, like, trying to punch her and I was trying to hit him so he would stop."

Report of Proceedings (RP) at 330. The daughter saw her father hit her mother with the

knife. When the daughter turned around, she saw her mother covered in blood. The




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No.30738-7-III
State v. Cortes


daughter's arm was cut during the attack, although she did not realize it at the time. She

did not believe that her father was aiming the knife at her.

       The couple's son also witnessed the argument and testified at trial. He stated that

he was in the kitchen when he heard the bottle crack. He went into the living room and

saw his sister trying to protect his mother. He also saw his father pulling his mother's

hair. When Mr. Cortes went to get a knife, the son called 911. He heard his mother

screaming. When he saw his mother next, she was bleeding from the neck and

unconscious.

       A neighbor testified that he saw a man, covered in blood, come out of the

residence and drive away from the scene in a hurry. He also saw a girl come out and yell,

" 'Daddy, don't leave. '" RP at 313.

       The children's godfather, Jorge Torres Cortes, testified that Mr. Cortes called him

and asked to hide in his garage. Mr. Torres asked what happened, and Mr. Cortes

responded that he killed his wife.

       Officer Jared Reinfeld was the first officer to arrive at the scene. He testified that

the daughter came out of the basement of the home, screaming and soaked in blood.

Officer Reinfeld followed the daughter as she ran back inside. The daughter was holding




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No.30738-7-III
State v. Cortes


her mother in her lap, screaming that her mother was dead. When Officer Reinfeld asked

the daughter who did it, she responded that her dad killed her mom.

       Emergency medical technician, Aaron Jacobs, testified that he was dispatched to

the scene. When he entered the apartment, he saw the daughter clinging to her mother

and crying hysterically. He also noticed that both Ms. Arroyo Alejandre and the daughter

were completely covered in blood, as well as the walls where they were located. Mr.

Jacobs and his team initiated basic life support but were unable to resuscitate Ms. Arroyo

Alejandre. Ms. Arroyo Alejandre was pronounced dead at the scene.

       Dr. Jonathan Kim, an emergency medicine physician, testified that on the date of

the incident, he treated a stab wound on a 13-year-old girl. He stated that she was tearful

and emotional when he observed her. She made a statement that her father had become

drunk and slit her mother's throat because he thought her mother had been cheating on

him. She said she was trying to hold her mother and, at some point in the process, she

was cut. Dr. Kim testified that the girl's wound was deep and serious. He believed that

the wound was caused by a knife.

      Forensic pathologist, Dr. Gina Fino, performed the autopsy of Ms. Arroyo

Alejandre. She testified that multiple sharp force injuries were present on Ms. Arroyo

Alejandre's body. The first wound that Dr. Fino described was a penetrating stab wound


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No.30738-7-II1
State v. Cortes


to the anterior of the neck, caused by a knife. This wound continued under the collarbone

and appeared to end in the right anterior upper lung lobe, making a visible cut mark in the

lung. The wound was about six inches deep.

       The second wound was a two-inch curved penetrating stab wound to the upper

right chest. The wound was six inches deep, punctured the right lung, and left tool marks

on the rib. Dr. Fino also testified to three other upper body stab wounds, ranging from

three to six inches deep. One of the stab wounds that punctured Ms. Arroyo Alejandre's

lung caused blood to accumulate in her chest cavity.

       Dr. Fino testified to other superficial sharp force injuries on Ms. Arroyo

Alejandre's upper chest area. She also testified to an injury to Ms. Arroyo Alejandre's

forehead that went completely through her skin and made a mark on her skull. Dr. Fino

found defensive wounds on Ms. Arroyo Alejandre's hand and arms. She associated these

wounds with Ms. Arroyo Alejandre using parts of her body to block an injury.

       Dr. Fino concluded her testimony by saying that the mechanism of death was

bleeding from the stab wounds. She also recognized damage to the lungs. Her

conclusion was that Ms. Arroyo Alejandre died from multiple stab wounds to the neck

and chest.




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No.30738-7-II1
State v. Cortes


       The State rested. Mr. Cortes moved to dismiss the first degree assault charge. He

argued that the infonnation alleged an intentional assault against his daughter, but the

evidence did not indicate that Mr. Cortes intended to assault his daughter. Mr. Cortes

also argued that his assault ofMs. Arroyo Alejandre was the intended crime, and that

intent could not be transferred to his daughter because the infonnation did not contain

transferred intent language. The trial court agreed with Mr. Cortes's argument.

However, instead of ordering dismissal, the court allowed the State to amend the charge

to second degree assault for the injury to the daughter. The infonnation alleged that Mr.

Cortes, ''with intent to commit a felony, did then and there unlawfully, feloniously, aB:ti

imentioBaUyassaulted [the daughter]." Clerk's Papers (CP) at 31. The amendment was

made without objection.

       Ajury found Mr. Cortes guilty of first degree murder-domestic violence, and

second degree assault-domestic violence. The jury also found by special verdict that

Mr. Cortes was armed with a deadly weapon in commission of the crime and that Mr.

Cortes and Ms. Arroyo Alejandre were members ofthe same household. The trial court

sentenced Mr. Cortes to 371 months of confinement, which included a 24-month weapon

enhancement to the first degree murder conviction. The court also ordered a 1O-year no

contact order for the children.


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No. 30738-7-111
State v. Cortes


       Mr. Cortes appeals. He contends that the evidence does not establish all of the

elements of first degree murder. He also contends that the trial court erred by allowing

the State to amend the information, and that the evidence does not support the second

degree assault conviction against his daughter. Last, he challenges the imposition of the

10-year no contact order between Mr. Cortes and his children.

                                        ANALYSIS

       Sufficient Evidence ofPremeditation. Mr. Cortes contends that his first degree

murder conviction should be reversed because the State failed to prove the premeditated

intent element of the crime.

       The standard of review for a sufficiency of the evidence challenge in a criminal

case is '" whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.'" State v. Bingham, 105 Wn.2d 820,823, 719 P.2d 109

(1986) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979)). A defendant challenging sufficiency of the evidence "admits the truth of the

State's evidence and all inferences that can reasonably be drawn from that evidence."

State v. Gentry, 125 Wn.2d 570,597,888 P.2d 1105 (1995).




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No.30738-7-III
State v. Cortes


       In a criminal prosecution, the Fourteenth Amendment's due process clause

requires the State to prove each essential element of the crime charged beyond a

reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.

Ed. 2d 435 (2000).

       To convict of first degree murder, the State is required to prove that Mr. Cortes

caused the death of the victim, that he intended to cause the death, and that he acted with

premeditated intent. State v. Ortiz, 119 Wn.2d 294, 313, 831 P.2d 1060 (1992).

      Premeditation distinguishes first and second degree murder. State v. Brooks, 97

Wn.2d 873, 876,651 P.2d 217 (1982). "Premeditation" involves a deliberate fonnation

of and reflection upon the intent to take a human life and includes the mental process of

thinking beforehand, deliberation, reflection, and weighing or reasoning for a period of

time, however short. Gentry, 125 Wn.2d at 597-98 (quoting State v. Robtoy, 98 Wn.2d

30,43,653 P.2d 284 (1982); State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987)).

Factors relevant to establish premeditation include motive, procurement of a weapon,

stealth, and method of killing. State v. Pirtle, 127 Wn.2d 628,644, 904 P.2d 245 (1995).

      Both direct and circumstantial evidence can be used to establish premeditation.

Bingham, 105 Wn.2d at 823-24. "Circumstantial evidence can be used where the

inferences drawn by the jury are reasonable and the evidence supporting the jury's verdict


                                             9

No. 30738-7-111
State v. Cortes


is substantial." Id. at 824. A wide range of proven facts will support an inference of

premeditation. State v. Finch, 137 Wn.2d 792,831,975 P.2d 967 (1999).

       In Ortiz, the court found sufficient evidence of premeditation where the killing was

committed with a knife that was procured on the premises, but obtained from another

room. Ortiz, 119 Wn.2d at 312-13. The murder occurred in a bedroom, and not the

kitchen where the knife was found. Id. at 313. Additionally, the victim had multiple

wounds, was struck in the face with something other than the knife, and the defensive

wounds found on the victim provided evidence ofa prolonged struggle. Id. at 312-13.

       Here, sufficient evidence of premeditation can be inferred from the facts. The

evidence establishes that Mr. Cortes had a motive to kill his wife-her possible

involvement with another man. Mr. Cortes said during a police interview that he was

suspicious about Ms. Arroyo Alejandre's telephone conversation with another man, and

Dr. Kim testified that the daughter said the attack occurred because her father thought her

mother had been cheating on him.

       Also, Mr. Cortes had time to reflect on his actions before killing Ms. Arroyo

Alejandre. He began the attack on his wife by hitting her. Then, similar to Ortiz, Mr.

Cortes instituted his plan to kill his wife by leaving the living room to procure a weapon,

a knife, from the kitchen. He returned to the living room with the knife and stopped her


                                             lO
No. 30738-7-111
State v. Cortes


from leaving. Mr. Cortes continued the attack on his wife with the knife, stabbing her

multiple times. The evidence indicates his use of stealth, as Mr. Cortes stabbed his wife

even though his 13-year-old daughter attempted to block the attack by standing between

Mr. Cortes and his wife.

       Last, Mr. Cortes's lengthy and excessive attack provides evidence of

premeditation. Mr. Cortes inflicted five deep wounds and other defensive wounds,

indicating a violent, prolonged struggle. Three of the wounds punctured Ms. Arroyo

Alejandre's lung, a vital organ. He intended to stab her in the throat, although he claims

that he did not expect the stabbing to kill her. After the attack, Mr. Cortes had the

presence of mind to leave his home where the attack took place and to ask for help in

hiding from law enforcement.

       The facts in this case are sufficient for a rational jury to have found beyond a

reasonable doubt that Mr. Cortes considered his actions for the requisite time before

killing Ms. Arroyo Alejandre. The evidence is sufficient to support jury's verdict that Mr.

Cortes's murder of his wife was premeditated.

       Amended Information. Mr. Cortes contends that the trial court erred by allowing

the State to amend the information after it closed its case in chief.




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No.30738-7-II1
State v. Cortes


       The State cannot amend the information to charge a different or greater crime or

add an essential element of a crime once it rests its case in chief. State v. Kirwin, 166

Wn. App. 659, 673, 271 P.3d 310 (2012). However, the State may amend the information

after it rests its case in chief if the amendment is to a lesser degree of the same crime or a

lesser included offense. State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987).

       For the crime of assault, lower degrees of assault are considered lesser degree

offenses of all higher degrees of assault. State v. Foster, 91 Wn.2d 466,471-72,589 P.2d

789 (1979). And the jury can be instructed on lesser included offenses even without an

amendment to the information. Because second degree assault is a lesser degree of first

degree assault, the amendment was not improper.

       Sufficient Evidence ofSecond Degree Assault. Mr. Cortes contends that the State

failed to establish the intent element for second degree assault, specifically that Mr.

Cortes intended to assault his daughter. Mr. Cortes maintains that the doctrine of

transferred intent was not included in the information and, therefore, cannot be used to

transfer Mr. Cortes's intent to harm the victim, Ms. Arroyo Alejandre, to his daughter.

       The second degree assault elements relevant here are (1) an assault and (2) intent

to commit a felony. RCW 9A.36.021 (1)(e). Washington recognizes three definitions of

assault: '" (1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an



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No.30738-7-III
State v. Cortes


unlawful touching with criminal intent; and (3) putting another in apprehension of harm

whether or not the actor intends to inflict or is incapable of inflicting that harm.'" State

v. Aumick, 126 Wn.2d 422,426 n.12, 894 P.2d 1325 (1995) (quoting State v. Walden, 67

Wn. App. 891, 893-94, 841 P.2d 81 (1992)).

       Under the doctrine of transferred intent, once the intent to inflict harm on one

victim is established, the mens rea transfers to any other victim who is actually assaulted.

State v. Clinton, 25 Wn. App. 400, 403, 606 P.2d 1240 (1980). "Moreover, transferred

intent is applicable to second degree assault charges involving an accidental or

unintended victim." State v. Wilson, 113 Wn. App. 122, 131, 52 P.3d 545. (2002).

       In Clinton, Mr. Clinton was intentionally swinging a pipe at Mr. Miller when the

pipe slipped and hit Ms. Miller. Clinton, 25 Wn. App. at 401-02. Mr. Clinton was

charged with and convicted of the second degree assault of Ms. Miller. Id. at 401. The

jury was instructed on the theory of transferred intent. Id. Mr. Clinton contended that the

jury instruction was misleading because it allowed the jury to convict him without finding

that he acted knowingly in his assault of Ms. Miller. Id. at 402. The Court of Appeals

approved the jury instruction and confirmed the conviction, concluding that the

transferred intent instruction allowed the jury to convict Mr. Clinton, "if, with the intent

to assault the victim's husband, he mistakenly, accidentally, or inadvertently struck the



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No.30738-7-III
State v. Cortes


victim instead." Id. at 403.

       Also in Clinton, Mr. Clinton argued that he was not sufficiently advised of the

nature of the charge because he was charged with "knowingly" assaulting Ms. Miller. Id.

at 403-04. The court rejected this contention based in part on the common-law

acceptance of the transferred intent doctrine. Id. at 404. The court concluded that Mr.

Clinton was sufficiently and adequately prepared to defend against the charge. Id.

       In Mr. Cortes's trial, jury instructions defined "assault" as "an intentional

touching, striking, or cutting of another person that is harmful or offensive." CP at 79.

The jury was also given an instruction on transferred intent, stating:

              If a person acts with intent to assault another, but the act harms a
       third person, the actor is also deemed to have acted with intent to assault the
       third person.
              The State is not required to prove that the person actually injured is
       the person whom the defendant intended to injure.

CP at 86.

       We conclude that sufficient evidence supports Mr. Cortes's conviction for second

degree assault against his daughter. Specifically, the evidence is sufficient to establish

the element of intent. As in Clinton, and in light of the jury instructions, the jury was

permitted to conclude that Mr. Cortes's intent to assault Ms. Arroyo Alejandre transferred

to his daughter. Evidence of such intent was presented at trial. According to Officer



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No.30738-7-III
State v. Cortes


Kellogg, Mr. Cortes admitted that he intended to injure Ms. Arroyo Alejandre with a

knife. Mr. Cortes injured his daughter as she tried to block the assault. Therefore, based

on the doctrine of transferred intent, there is sufficient evidence to support the conviction

for second degree assault.

       No Contact Order. Mr. Cortes contends that the no contact order is erroneous

because his children were not victims of the crime .. He also contends that the trial court

failed to make findings or apply a legal standard before entering the no contact order.

       A trial court's decision to impose crime-related prohibitions is reviewed for an

abuse of discretion. In re Pers. Restraint o/Rainey, 168 Wn.2d 367, 374, 229 PJd 686

(2010). Even with this standard, a court will more carefully review a condition that

interferes with a fundamental constitutional right. Id.

       In Washington, a court may impose "crime-related prohibitions" as conditions of a

sentence. RCW 9.94A.505(8). Conditions on a sentence that impose limitations on a

fundamental right must be "sensitively imposed" so that they are "reasonably necessary to

accomplish the essential needs of the State and public order." State v. Warren, 165

Wn.2d 17,32, 195 P.3d 940 (2008).

      Parents have a fundamental Hberty interest in the care, custody, and control of their

children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599


                                             15 

No. 30738-7-111
State v. Cortes


(1982). A court may impose a condition on a criminal sentence that restricts a

fundamental right to parent if the condition is reasonably necessary to prevent harm to a

child. State v. Ancira, 107 Wn. App. 650, 654, 27 P.3d 1246 (2001). "Prevention of

harm to children is a compelling state interest, and the State 'does have an obligation to

intervene and protect a child when a parent's' actions or decisions seriously conflict with

the physical or mental health of the child.'" Id. at 653-54 (quoting In re Sumey, 94

Wn.2d 757, 762, 621 P.2d 108 (1980)).

       Despite Mr. Cortes's contentions, the trial court did address the reason for

imposing the no contact order. Before entering the sentence and no contact order, the'

trial court summarized the crucial evidence and pondered the impact the events would

have on the children. The trial court recounted that witnesses testified to the horrific,

bloody scene where the daughter was found holding her mother. The court recognized

that the children witnessed their father kill their mother. The court pointed out that Mr.

Cortes left the house despite his daughter's pleas to stay and that his first instinct was to

ask a family friend for a place to hide. Additionally, Mr. Cortes stabbed his daughter,

making her a direct victim, too.

       Finally, the trial court acknowledged Mr. Cortes's failure to take responsibility for

the killing. Mr. Cortes told the court during the sentencing hearing that the events were


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No.30738-7-III
State v. Cortes


not his fault because Ms. Arroyo Alejandre was hiding things from him. Mr. Cortes

stated if she had not hidden things, he would not be here today. The trial court noted that

Mr. Cortes's violent attack on his wife was an act of domestic violence, as established by

the jury's findings.

       Based on these facts, the trial court did not abuse its discretion by imposing a 10­

year no contact order between Mr. Cortes and his children. The State had a compelling

interest in protecting the children from reliving the emotional trauma associated with their

mother's death. The court recognized that both children were victims of the crime, either

directly or indirectly, and that the children experienced distress by witnessing the event

and having to testifY against their father. The children are subject to further distress

because Mr. Cortes continues to place blame on the children's mother, and this action

seriously conflicts with the mental health of his children. Furthermore, the la-year length

of the no contact order allows Mr. Cortes to regain contact with his children when the

children are at a more mature age and can address their relationship with their father in

light of the events that occurred. The condition was reasonably necessary to protect the

emotional well being of the children.




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No. 30738-7-111
State v. Cortes


               STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In his statement of additional grounds, Mr. Cortes contends that he received

ineffective assistance of counsel because his attorney did not act on Mr. Cortes's

instructions. He also contends that his attorney, the prosecutor, and the judge acted

inappropriately by conversing in private, that the prosecutor accepted a bribe, and that a

juror was unexpectedly missing on the last day of trial. We find no support in the record

for these contentions. Thus, we find no error.

       We affirm the convictions for first degree murder and second degree assault.




                                          Kulik, J.

WE CONCUR:




~J
Korsmo, C.J.




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