                                                                                                          H UED
                                                                                               Cy t rM
                                                                                                         T OF APPEALS
                                                                                                     DIVI., iGrb IL
                                                                                           2014          R 19
                                                                                                                AUN 8: 4 7
     IN THE COURT OF APPEALS OF THE STATE OF W

                                               DIVISION II

STATE OF WASHINGTON,                                                       No. 430:


                                    Respondent,


        V.




EDUARDO SANDOVAL,                                                         Consolidated with



In the Matter of the Personal Restraint                                    No. 44780 -1 - II
Petition of:




EDUARDO SANDOVAL,
                                                                     UNPUBLISHED OPINION


                                    Petitioner.


            WORSWICK, C. J. —     After a jury trial, Eduardo Sandoval was convicted of first degree

murder, first degree assault, and conspiracy to commit first degree murder. Sandoval appeals,

arguing that the evidence is insufficient to support any of his convictions. We disagree and

affirm. In a pro se personal restraint petition, Sandoval further challenges ( 1) the legality of his

arrest, (   2) the admissibility of his custodial statements, and (3) the State' s authority to prosecute

him. We dismiss the petition.


                                                   FACTS


            Sandoval     was a member of a   gang known   as   the Eastside Lokotes Surenos ( ELS).        Riding

in a stolen van, other ELS members shot the passengers of a car, wounding Joshuah Love and

killing his    sister,   Camille Love.
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         Two days before the Loves' shooting, an unknown person shot an ELS member named

Naitaalii Toleafoa outside a bar in Tacoma. The ELS leader, Juan Zuniga, believed that Toleafoa


had been shot by a member of the Pirus, a rival gang affiliated with the Bloods gang.

         The day after Toleafoa' s shooting, Sandoval and Antonio Gonzalez attended an ELS

meeting.    At the meeting, Zuniga announced that ELS would " retaliate on the people that shot

 Toleafoa]."      16 Verbatim Report of Proceedings ( VRP) at 1924. Zuniga had a stolen van ready

for this purpose.


         The ELS members met for a second meeting the following day. Zuniga assigned

Gonzalez    and   Sandoval to look     out   for   police and   Bloods   on    Tacoma'   s"   Bastside," while three


other ELS members would shoot from the stolen van.


         At the ELS meetings Zuniga did most of the talking, with little input from others.

Gonzalez explained that he was obliged to participate in Zuniga' s plan because " by being part of

the gang, you     have to be involved in      stuff."   16 VRP    at   1925.    Likewise, Sandoval stated that he


did   not challenge   Zuniga    because " it' s    not in my authority to      even go against     his   word."   Ex. 5F


at 7.


         After the second meeting Gonzalez and Sandoval left in Gonzalez' s sport utility vehicle,

with Gonzalez' s children in the back seat. They drove around and stopped at McKinley Park,

where Gonzalez and Sandoval smoked marijuana and where they briefly encountered the three

ELS members in the stolen van. Gonzalez and Sandoval then traveled around the Eastside " just


seeing if there    was   any   cops around and stuff."      16 VRP at 1937. They saw police parked at a

KeyBank near 72nd Street and Portland Avenue, and Sandoval called Zuniga to relay this




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information. After "just driving back and forth" for a time, Gonzalez parked at Boze Elementary

School, where they smoked more marijuana. 16 VRP at 1939 -40. Later, they went to a

McDonald' s drive -thru where they saw police cars with lights and sirens activated on 72nd

Street.


          After receiving .a phone call telling them to leave the area, Gonzalez drove Sandoval

home. The next day, one of the ELS members who had been in the stolen van told Gonzalez that

they had shot the occupants of a red car near 56th Street and Portland Avenue because one of the

occupants threw gang signs. Joshuah Love survived his gunshot wounds, but Camille Love died.

          The investigation of the Loves' February 2010 shooting stalled until May 2010, when

ELS members, with Gonzalez' s assistance, killed Zuniga. Gonzalez pleaded guilty to first

degree murder of Zuniga and promised to testify in both the Zuniga case and the Love case.

          In September 2010, Sandoval' s probation officer arrested him without a warrant at the


Puyallup Fair. After being transferred to the custody of Tacoma police, Sandoval was advised of

his.Miranda' rights. Sandoval then gave a recorded statement that was later published at trial.

          In the recorded statement, Sandoval said that, unlike Zuniga, he believed there was no

basis to conclude that Bloods were responsible for Toleafoa' s shooting. He stated " I would have

never went along" with the plan to retaliate and that on the day of the Loves' shooting the ELS

members     drove   around   just because they   were mad.   Ex. 5F   at   8.   Sandoval further denied telling

Zuniga about the presence of police and said he accompanied Gonzalez because he was sure

 Gonzalez would not have endangered his children.



 1 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).



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       By second amended information, the State charged Sandoval with first degree murder of

Camille Love, first degree assault of Joshuah Love, and conspiracy to commit first degree

murder. The State sought both firearm and gang sentencing enhancements for each count. The

jury found Sandoval guilty on all three counts and further found in special verdicts that the State

had proved facts supporting the sentence enhancements.

        Sandoval appeals. He also filed a petition for a writ of habeas corpus, which the trial

court transferred to us for.consideration as a personal restraint petition. See CrR 7. 8. ,

                                              ANALYSIS


        Sandoval argues that the evidence was insufficient to support his convictions ( 1) under an


accomplice liability theory for first degree murder and first degree assault and (2) for conspiracy

to commit first degree murder. We disagree.


        When a defendant challenges the sufficiency of the evidence supporting his conviction,

we examine the record to decide whether any rational fact finder could have found that the State

proved each element ofthe offense beyond a reasonable doubt. State v. Green,_94 Wn.2d 216;

221, 616 P. 2d 628 ( 1980) (   citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d

560 ( 1979)).   In a sufficiency of the evidence challenge, the defendant admits the truth of all the

State' s evidence; therefore we consider the evidence and all reasonable inferences from it in the

light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).

Further, direct evidence and circumstantial evidence are equally reliable. State v. Delmarter, 94

Wn.2d 634, 638, 618 P. 2d 99 ( 1980).




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A.           Complicity

             Sandoval argues that the evidence is insufficient to show that he was an accomplice to

first degree murder or first degree assault. We disagree.

            A defendant is liable as an accomplice for another person' s crime if the defendant ( 1)

  a] ids or agrees to aid such other person in planning or committing it" and ( 2) has " knowledge

that   it   will promote or    facilitate the   commission of     the   crime."   RCW 9A.08. 020( 3)( a)( ii).


Sandoval appears to claim that the evidence fails to show both ( 1) that he aided or agreed to aid

the planning or commission of the shooting and (2) that he knew his conduct would promote or

facilitate the shooting. We disagree.

             1.   Aiding or Agreeing To Aid the Shooting

             First, Sandoval claims that the evidence fails to show that he " participated in the shooting

in any way."         Br. of Appellant at 15. But this framing distorts the issue. The actus reus of

complicity is not participation but instead aiding or agreeing to aid in the planning or

commission         of the   crime.   RCW 9A.08. 020( 3)(   a)(   H); see State v. Roberts, _
                                                                                           142 Wn.2d 471, 502,

14 P. 3d 713 ( 2000).


             Here, the evidence is sufficient to prove that Sandoval aided and agreed to aid the


planning or commission of the shooting. Given testimony that ELS members unquestioningly

executed Zuniga' s directives, the jury could reasonably infer that Sandoval agreed to aid the

planning of the shooting during the meeting at which Zuniga directed him to look out for police

and Bloods. Further, the jury could find that Sandoval actually aided the commission of the

shooting by accompanying Gonzalez to the Eastside and advising Zuniga that police were



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present. A rational trier of fact could have found, beyond a reasonable doubt, that Sandoval


aided or agreed to aid the planning or commission of the shooting. See RCW

9A. 0 8. 02 0 (3) ( a) (ii) .


          Arguing to the contrary, Sandoval claims that the evidence supports his version of events:

that ( 1) he " did not assent to and had no intent to assist in the shootings" and ( 2) he and Gonzalez

disobeyed Zuniga by smoking marijuana in a parking lot when they were supposed to be acting

as lookouts. Br. of Appellant at 15. But in a sufficiency of the evidence challenge, we consider
                                                                                                 2
the   evidence    in the light   most   favorable to the State. Salinas, 119 Wn.2d   at   201.


          2. Knowledge That His Conduct Would Promote or Facilitate the Crime

          Second, Sandoval appears to assert that the evidence also fails to establish the mens rea-

i.e., that he knew his conduct would promote or facilitate the shooting. This assertion lacks

merit.




          The State elicited testimony that ( 1) Sandoval attended a gang meeting at which Zuniga

announced a plan to retaliate for _ oleafoa' s shooting, and ( 2) the plan called for Sandoval to act
                                  T

as a lookout while other gang members would shoot from a stolen van. Because it is reasonable

to infer that Sandoval knew the plan that Zuniga announced in his presence, a rational fact finder

could find that the State proved beyond a reasonable doubt that Sandoval knew his actions as

lookout would promote or facilitate the planned shooting. See RCW 9A.08. 020( 3)( a); Roberts,

 142 Wn.2d at 513 ( complicity requires merely general knowledge of the principal' s crime, not

2
    Sandoval further asserts that no evidence showed ( 1) he was present at the scene of the
shooting or (2) he was ready to assist in the shooting. But because Sandoval' s complicity is
 shown through other evidence, we do not address these assertions.




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specific   knowledge           of each element).   With respect to his convictions for first degree murder and


first degree assault, Sandoval' s argument fails.

B.         Conspiracy

           Sandoval next argues that the evidence is insufficient to support his conviction for


conspiracy to commit first degree murder. We disagree.

           A defendant is liable for criminal conspiracy " when, with intent that conduct constituting

a crime be performed, he or she agrees with one or more persons to engage in or cause the

performance of such conduct, and any one of them takes a substantial step in pursuance of such
agreement."         RCW 9A.28. 040( 1).       The requisite agreement must be a genuine confederation or


combination of minds. State v. Pacheco, 125 Wn.2d 150, 155, 882 P. 2d 183 ( 1994).

           To prove a conspiracy, the State need not show a formal agreement. State v.

Wappenstein, 67 Wash. 502, 509 -10, 121 P. 989 ( 1912);               State v.. Barnes, 85 Wn. App. 638, 664,

932 P. 2d 669 ( 1997).            Instead, the existence of an agreement may be proven by evidence of a

concert of action in_which,the, parties work together understandingly to accomplish a common

purpose.         State   v.   Casarez- Gastelum, 48 Wn.   App.   112, 116, 738 P. 2d 303 ( 1987) ( quoting


Marino      v.    United States, 91 F. 2d 691, 694 ( 9th Cir. 1937)).     Because an agreement may be

inferred from the parties' declarations and actions, circumstantial evidence may provide proof of


a conspiracy. Barnes, 85 Wn. App. at 664.

           Here, the evidence is sufficient for a rational trier of fact to conclude that Sandoval

agreed to be a lookout. The State elicited testimony that ( 1) Sandoval was an ELS member, (2)




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ELS members unquestioningly executed Zuniga' s orders, and ( 3) Sandoval and Gonzalez

patrolled the Eastside as lookouts, as Zuniga had ordered them to do.

          However, Sandoval claims the evidence is insufficient to prove that he agreed to a plan,


intending to commit murder. We disagree.

          When a defendant is charged with conspiracy to commit first degree murder, the State

must prove that the defendant was a party to an agreement to commit first degree murder. State

v.   Smith, 131 Wn.2d 258, 263, 930 P. 2d 917. (1997). A person commits first degree murder if he


kills another ( a) with premeditated intent, (b) by engaging in conduct creating a grave risk of

death under circumstances manifesting an extreme indifference to human life, or ( c) during

certain forms of felony murder. RCW 9A.32.030( 1).

          Sufficient evidence supports Sandoval' s conviction for conspiracy to commit first degree

murder under circumstances manifesting an extreme indifference to human life. Zuniga' s plan

called for Gonzalez. and Sandoval to act as lookouts while three other ELS members would shoot

at Bloods from a stolen van. Although Sandoval claimed he intended to avoid involvement in

the shooting, the jury was free to disbelieve his claim. State v. Camarillo, 115 Wn.2d 60, 71,
794 P. 2d 850 ( 1990). Thus a rational trier of fact could find that Sandoval agreed to a plan that


 1)   manifested an extreme       indifference to human life, (2) created a grave risk of death, and ( 3)


resulted   in Camille Love'   s   death. See RCW 9A.28. 040( 1);    9A.32. 030( 1)( b).




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          Therefore the evidence is sufficient to support Sandoval' s conviction for conspiracy to
                                                                   3
commit    first degree   murder    by   extreme    indifference.       Sandoval' s sufficiency of the evidence

arguments fail.


                                    PERSONAL RESTRAINT PETITION


          In his personal restraint petition, Sandoval appears to argue that his restraint is unlawful

because ( 1) his   arrest violated      the Fourth Amendment, 4 (        2) his interrogation violated the Fifth

Amendment, and ( 3) the State lacked authority to prosecute him. We disagree.

          We consider the arguments raised in a personal restraint petition under one of two


different standards, depending on whether the argument is based on constitutional or

nonconstitutional grounds. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 671 -72, 101 P. 3d 1

 2004).    A petitioner raising constitutional error must show that the error caused actual and

substantial prejudice. In re Pers. Restraint ofElmore, 162 Wn.2d 236, 251, 172 P. 3d 335

 2007).    In contrast, a petitioner raising nonconstitutional error must show a fundamental defect

resulting in a complete miscarriage of justice. Elmore, 162 Wn.2d at.251.

          Further, a personal restraint petition must state with particularity the factual allegations

underlying the petitioner' s claim of unlawful restraint. In re Pers. Restraint ofRice, 118 Wn.2d



3 Sandoval further argues that the evidence fails to show an agreement to commit premeditated
murder because there was " no agreement as to what, if any, degree of injury would be inflicted
by   the shooting."   Br.   of   Appellant   at   21. But because the evidence is sufficient to prove

conspiracy to commit first degree murder by extreme indifference, we do not address this
argument.


4
    At the CrR 3. 5 hearing, Sandoval argued that his custodial statements were involuntary because
his arrest was unlawful.




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876, 885 -86, 828 P. 2d 1086 ( 1992). Bald assertions and conclusory allegations. are not


sufficient. Rice, 118 Wn.2d at 886.


          First, Sandoval argues that his probation officer violated the Fourth Amendment by

arresting him at the Puyallup Fair without having a warrant or affidavit of probable cause. But at

arraignment, the superior court' s commissioner determined that, based on the prosecutor' s

declaration, probable cause existed at the time of Sandoval' s arrest. This argument fails.

          Second, Sandoval argues that Tacoma police violated his Fifth Amendment rights by ( 1)

    using intimidation, coercion, duress, and deception" during his interrogation and ( 2)

interrogating him     without    advising him              of   his Miranda        rights.      Pet.   at       3. But Sandoval' s claim of


a coercive interrogation is nothing more than a bald assertion, which is insufficient. See Rice,

118 Wn.2d at 886. Further, the trial court determined that Tacoma police advised Sandoval of

his Miranda rights at the start of the interrogation and again at the beginning of the recorded

statement. This argument fails.


          Third, Sandoval challenges the State' s authority to prosecute him on three meritless

grounds.     Specifically,    Sandoval         contends         that ( 1) "    the STATE OF WASHINGTON,


Corporation is just       a name and      does       not   Exist," ( 2) the State " is Bankrupt" and violated the


payment of debts clause in article I, section 10 of the United States Constitution,5 and ( 3) the

State    cannot   bring   a criminal action or appear                in   court.    Pet.   at   3.   But, as a matter of law, each




5
    Sandoval misrepresents       article       I,   section     10   as   declaring, "` All States Shall Pay their debt in
gold and silver coin."'       Pet.   at   3.    In fact,    article       I,   section   10,   clause       1   provides, "   No State shall

       make any Thing but gold and silver. Coin a Tender in Payment of Debts."


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claim    fails: ( 1) the State of Washington has existed since its admission to the Union, ch. 180, 25


Stat. 676, ( 1889),   and   Proclamation No. 8, 26 Stat. 1552 -53 ( Nov. 11, 1889); ( 2) the payment of


debts clause secures private contractual rights and has no apparent relevance to a criminal


prosecution, see    Calder    v.   Bull, 3 U. S. ( 3 Dall.) 386, 390, 1 L. Ed. 648 ( 1798) ( opinion of Chase,


J.); and ( 3) the Washington Constitution requires all criminal prosecutions to be conducted in the


State'   s name and   by   its authority, WASH. CONST.     art.   IV, § 27.


          Sandoval fails to make the required showing of a constitutional error or a fundamental

defect.6 Therefore we dismiss his petition.

          We affirm the convictions and dismiss the petition.


          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.




                                                                              Worswick, CJ




6 Sandoval also asserts that his arrest and interrogation each violated the Eighth Amendment' s
prohibition against cruel and unusual punishment. But because Sandoval fails to state any
factual allegations of cruel and unusual punishment with particularity, we do not consider this
argument. See Rice, 118 Wn.2d at 885 -86.




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