                                                                       FILED
                                                                  SEPTEMBER 22, 2016
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




                  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

    STATE OF WASHINGTON,                            )         No. 33154-7-111
                                                    )
                           Respondent,              )
                                                    )
             V.                                     )         UNPUBLISHED OPINION
                                                    )
    ALDO MIGUEL GUTIERREZ,                          )
                                                    )
                           Appellant.               )

             PENNELL, J. -Aldo Miguel Gutierrez appeals his juvenile adjudication for assault

    in the second degree by strangulation. Because sufficient evidence supports the trial

I
l
    court's findings, we affirm.

                                               FACTS

             Mr. Gutierrez was involved in a fight with another student, J.P., during a class

    taught by Dale Mapes at Stanton Academy in Yakima. The incident was captured on

    video.

             The confrontation between Mr. Gutierrez and J.P. started with a heated verbal

    exchange in Spanish. Mr. Gutierrez then removed his shirt and attacked J.P. by tackling

    him and pushing him to the ground. Mr. Mapes intervened, and the students separated for
No. 33154-7-III
State v. Gutierrez


a short time. At that point, no one appeared injured. But unfortunately the incident was

not over. The facts most relevant to this appeal pertain to what happened next.

       While Mr. Mapes was present, the two students got to their feet. Mr. Mapes heard

Mr. Gutierrez tell J.P. in English that he had won and he would do it again. The two

students then returned to arguing in Spanish. At one point, the students chest-bumped

each other. Mr. Gutierrez also pushed J.P., at which point Mr. Mapes again separated

them and Mr. Gutierrez stepped a few feet away. Mr. Gutierrez pointed at J.P. several

times while still arguing in Spanish.

       While the two were separated, Mr. Gutierrez put his shirt back on and Mr. Mapes

looked away to ask another student to go find security. J.P. then picked up an electronic

device of Mr. Gutierrez's off the table and threw it on the floor. Mr. Gutierrez initially

walked toward the device but then turned and walked toward his chair while Mr. Mapes

talked to J.P. Mr. Gutierrez turned around again, removed his shirt, and walked back

toward Mr. Mapes and J.P. Mr. Mapes turned to talk to Mr. Gutierrez. J.P. turned back

to his chair, removed his shirt, and charged at Mr. Gutierrez. J.P. attempted to strike Mr.

Gutierrez, but Mr. Gutierrez wrapped his arms around J.P. and picked him up. Both

students ended up on the ground.




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No. 33154-7-III
State v. Gutierrez


       While struggling on the ground, Mr. Gutierrez had his arm around J.P.'s neck in a

maneuver experts testified was a rear naked choke. 1 School officials subsequently

removed Mr. Gutierrez from J.P. Initially, J.P. appeared to be unconscious. He opened

his eyes after about 10-15 seconds. The entire incident between Mr. Gutierrez and J.P.

lasted approximately three and a half minutes.

       The State charged Mr. Gutierrez with assault in the second degree by

strangulation. After a bench trial, the court found Mr. Gutierrez guilty as charged. The

court stated in its oral ruling that Mr. Gutierrez forfeited his ability to assert self-defense

under the initial aggressor doctrine. The court further explained that due to Mr.

Gutierrez's actions during the lull in the fistfight, it could not find:

       [Mr. Gutierrez] in good faith withdrew from combat in a time and in a
       manner to let [J.P.] know that you were in good faith intending to withdraw
       from further aggressive action. It was a continuity of aggressive actions
       and words. I understand that words alone aren't sufficient under the law.
       And I agree with that premise, but here we had a chest bump, two pushes
       with your arms, a hand in his face, and a movement initially away by about
       four or five feet and then back towards him with the taking your shirt off
       which is again an action that would be interpreted by your own expert as
       aggressive.


       1
         A rear naked choke is a specific blood restriction restraint in which blood flow to
the brain is reduced. In a naked choke hold, there is nothing between the restraint and the
area being restrained. Whether somebody is rendered unconscious by the restraint
depends on a number of factors, including the person's level of conditioning and whether
the person is under the influence of any chemicals.

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No. 33154-7-III
State v. Gutierrez


Report of Proceedings (Feb. 2, 2015) at 168-69. The court also issued written findings of

fact and conclusions of law, which incorporated its oral ruling where not inconsistent.

Mr. Gutierrez appeals.

                                          ANALYSIS

       Mr. Gutierrez admits he initiated the physical confrontation between himself and

J.P. Nevertheless, he argues he did not forfeit the right of self-defense because there were

actually two fights that day. According to Mr. Gutierrez, he withdrew from the initial

fight after Mr. Mapes intervened. It was J.P. who started a second fight, and it was only

during this second fight that J.P. was injured. Because Mr. Gutierrez was merely

defending himself from J.P.' s attack, he claims there was insufficient evidence to find

him guilty of assault by strangulation.

       To raise self-defense, "a defendant bears the initial burden of producing some

evidence that his or her actions occurred in circumstances amounting to self-defense, i.e.,

the statutory elements of reasonable apprehension of great bodily harm and imminent

danger." State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). Generally, the theory

of self-defense presumes that the defendant is not the initial aggressor. State v. Craig, 82

Wn.2d 777, 783, 514 P.2d 151 (1973). Only the theory of revived self-defense allows an




                                             4
No. 33154-7-111
State v. Gutierrez


initial aggressor the right of self-defense once he or she has withdrawn from the conflict.

Id.

       Here, the parties agree Mr. Gutierrez was the initial aggressor. Accordingly, it was

his burden to produce sufficient evidence that "he in good faith had first withdrawn from

the combat at such a time and in such a manner as to have clearly apprised his adversary

that he in good faith was desisting, or intended to desist, from further aggressive action."

State v. Wilson, 26 Wn.2d 468,480, 174 P.2d 553 (1946); see also Craig, 82 Wn.2d at

783. Only after this burden of production has been met is the State obliged to prove the

absence of self-defense beyond a reasonable doubt. State v. Walden, 131 Wn.2d 469,

473, 932 P.2d 1237 (1997).

       Interpreting the evidence in the light most favorable to the State, Mr. Gutierrez did

not meet his burden. He not only failed to communicate an intent to desist his acts of

aggression, he also continued his aggressive conduct toward J.P. when ( 1) he persisted

speaking in an aggressive tone with J.P. and told J.P. that he had won and would do it

again,2 (2) he chest-bumped with J.P., (3) he pushed J.P., (4) he pointed or gestured at J.P.



       2
          The trial court stated in its findings of fact that it found Mr. Mapes, who had
testified about the heated conversation between the two students, to be a credible witness.
This court defers to the trial court's credibility determinations. State v. Hill, 123 Wn.2d
641, 646, 870 P .2d 313 (1994 ).

                                             5

                                                                                                I
                                                                                                I
No. 33154-7-III
State v. Gutierrez


several times throughout the conversation, and (5) he removed his shirt as he had done

immediately preceding his starting the initial altercation. In sum, Mr. Gutierrez failed to

establish that there were two fights, as opposed to just one ongoing confrontation. As a

result, the burden never shifted to the State to disprove self-defense, and the trial court

was never tasked with determining whether or how Mr. Gutierrez instigated a second

fight.

                                       CONCLUSION

         Substantial evidence supports the trial court's finding that Mr. Gutierrez

committed the offense of second degree assault by strangulation. The disposition order is

affirmed.

         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.


                                            Pennell, J.
WE CONCUR:



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                                            Siddoway, J.
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