 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                           DIVISION ONE
                           Respondent,
                                                           No. 78310-6-I
                 V.
                                                           UNPUBLISHED OPINION
 FRANCISCO JAVIER ESCOBEDO,

                          Appellant.                       FILED: December23, 2019



        DWYER, J.     —   Francisco Escobedo was charged with murder in the second

degree and unlawful possession of a firearm in the second degree. A jury found

him guilty on the first count; he waived his right to a jury trial on the second count

and was found guilty by the trial court. He appeals both convictions. As to the

first count, he contends that the trial court abused its discretion by not giving a

jury instruction on justifiable homicide. As to the second count, he avers that an

out-of-state conviction that served as the predicate offense for the charge of

unlawful firearm possession is not comparable to any Washington felony.

Finally, in a statement of additional grounds, he assigns error to an evidentiary

ruling at his murder trial.1 Finding no error, we affirm.




           In his opening brief, Escobedo challenged the imposition of a filing fee and a
deoxyribonucleic acid (DNA) test collection fee. However, in his reply brief, he concedes that the
filing fee was never imposed and that he has no basis to challenge the DNA fee, thus abandoning
the claims.
No. 78310-6-1/2



       Francisco Escobedo hosted Alize Gonzalez, Teyanna Palms, and Justin

Cunningham at his apartment in Auburn on the night of November 9, 2015. They

smoked methamphetamine. Gonzalez was also smoking heroin. Upon the

exhaustion of her heroin supply, and her failure to reach her dealer in the early

hours of November 10, Gonzalez became upset with Escobedo and began

arguing with him.

       Gonzalez made a phone call to some unknown individuals, inviting them

to rob Escobedo’s apartment. After the call she told Escobedo that the people

she had invited over could kill him. Gonzalez did not make any subsequent

phone calls. Escobedo then insisted that he would take the three of them home,

but Gonzalez refused to leave. After further argument between Escobedo and

Gonzalez, she indicated that she would leave, at which point Escobedo said,

“No, you ain’t going nowhere.” When Escobedo again told Gonzalez she could

not leave, she pushed him. Escobedo immediately produced a semi-automatic

handgun from his pants pocket and racked the gun’s slide.

       This prompted Gonzalez, who was about seven inches shorter and 80

pounds lighter than Escobedo, to call him a “bitch” for threatening her with a gun.

She approached Escobedo and attempted to strike his face. It is not clear

whether she succeeded in doing so before Escobedo raised his weapon, pointed

the barrel at Gonzalez from mere inches away, and pulled the trigger. Gonzalez

was killed instantly; the force of the projectile not only severed her spinal cord but

threw her head back against a wall before her body collapsed to the floor.



                                          2
No. 78310-6-1/3

       Escobedo stood over Gonzalez’s lifeless body, repeating a phrase to the

effect of ‘see what you made me do,” as Cunningham entered the room.

Cunningham attempted to talk Escobedo out of his anger and told him to dispose

of the firearm, but Escobedo, undeterred and unaware that Gonzalez had

perished, mused that Gonzalez would “snitch” if he left. Eventually, Cunningham

convinced Escobedo to leave. Cunningham and Palms then fled the apartment,

leaving Gonzalez’s body inside.

       Later, Escobedo returned to his apartment and, around 3:00 am., moved

Gonzalez’s body into the trunk of his vehicle for a drive to Kent, where he

discarded the body in a residential alleyway. Later that day, around 2:00 p.m.,

Palms telephoned Auburn police to report the killing. Gonzalez’s body was

discovered by passersby around 4:00 p.m. After speaking with Palms, police

obtained a warrant and searched Escobedo’s apartment. Escobedo was

arrested the following morning upon arriving to work his shift at a Burger King

restaurant. He was charged with murder in the second degree.

      The information was subsequently amended to add a charge of unlawful

possession of a firearm in the second degree based on Escobedo’s 2004 felony

conviction in California. Escobedo had then pled guilty to “unlawful taking or

driving of a vehicle,” proscribed by California Vehicle Code   § 10851(a). The trial
court ruled that this offense was comparable to the Washington felony of taking

of a motor vehicle without permission in the second degree, as set out in RCW

9A.56.075. Escobedo waived his right to a jury trial on this count. The court




                                         3
No. 78310-6-1/4

found beyond a reasonable doubt that the California conviction was Escobedo’s,

rendering his possession of a firearm unlawful, and entered a finding of guilt.

       At the jury trial on the count of murder in the second degree, Escobedo

testified in his own defense. He insisted that he was never afraid of the

unarmed, 19-year-old Gonzalez but, rather, that he was afraid that the individuals

she purportedly invited over might rob or kill him. As he stated during his direct

examination:

      Q. [By defense counsel]: Why did you draw that gun?
      A. [Defendant]: I drew it because I was scared somebody was going
      to rob me.
      Q. Were you scared that Alize herself was going to rob you?
      A. No.
      Q. Who was it that you were afraid was going to rob you?
      A. The other people that were on the other side of the phone call.
      Q. The other people—no one eventually showed up, as it turned
      out?
      A. No.
      Q. Are you afraid that Alize herself was going to kill you?
      A. No.
      Q. Are you afraid that she’s going to seriously injure you?
      A. No.
      Q. Are you afraid that someone might seriously injure you?
      A. Yes.
      Q. And that’s the people coming up the stairs?
      A. Yes.

      Escobedo also insisted that he did not intend to shoot Gonzalez—rather,

he claimed that he pointed the weapon toward the door in anticipation of a

robbery and that it discharged when he pushed Gonzalez’s hand away and her

hand touched the trigger:

      Q. [By defense counsel] Are you trying to pull that arm back, the
      arm with the gun that she’s grabbing?
      A. [Defendant] Yes.
      Q. So are you just pulling back with your arm or also pulling your
      body to one side or the other?


                                        4
No. 78310-6-1/5

       A. I’m pushing her off. At the same time when I felt my hand
       coming forward, I tried pulling it back too.
       Q. Just pulling your hand back, or are you also leaning back or
       twisting or anything like that?
       A. I’m not really sure how to describe that. I know I’m pushing her
       off. At the same time the hand is going forward, but at the same
       time I’m pushing her off and trying to pull the gun back.
       Q. You can sit down, Mr. Escobedo. Thank you. So you
       intentionally shoot her through the neck?
       A. No.
       Q. Do you intentionally shoot next to her to try to scare her off?
       A. No.
       Q. Thegungoesoff?
       A. Yes.
       Q. She falls to the ground?
       A. Yes.
       Q. Do you think she’s dead right at that moment?
       A. Not at the moment.
       Q. Why?
       A. I wasn’t sure if she got hit or not.
       Q. How can you not be sure that she got hit?
       A. Because I wasn’t pointing the gun at her.

       The State requested the following jury instruction regarding the definition

of murder in the second degree:

             A person commits the crime of murder in the second degree
       when he commits or attempts to commit Assault in the Second
       Degree and in the course of and in furtherance of such crime he or
       she causes the death of a person other than one of the participants.

This proposed instruction was identical to that which was given to the jury.

       The State’s proposed instructions defining assault included a self-defense

definition, acknowledging that there was some evidence Escobedo drew the

weapon in fear. These instructions, when given by the trial court to the jury, read

as follows:

              An assault is an intentional shooting of another person that
       is harmful or offensive regardless of whether any physical injury is
       done to the person. A shooting is offensive if the shooting would
       offend an ordinary person who is not unduly sensitive.


                                         5
No. 78310-6-1/6


Instruction 17.

               An assault is also an act, with unlawful force, done with the
       intent to create in another apprehension and fear of bodily injury,
       and which in fact creates in another a reasonable apprehension
       and imminent fear of bodily injury even though the actor did not
       actually intend to inflict bodily injury.

Instruction 19.

                It is a defense to Assault in the Second Degree, when the
        assault with a deadly weapon was committed in the manner defined
        in instruction 19, that the force used, attempted or offered to be
        used was lawful as defined in this instruction.
                The use of, attempt to use or offer to use force upon or
       toward the person of another is lawful when used, attempted or
       offered, by a person who reasonably believes that he is about to be
       injured in preventing or attempting to prevent an offense against the
       person, and when the force is not more than is necessary.
                The person using or offering to use the force may employ
       such force and means as a reasonably prudent person would use
       under the same or similar conditions as they appeared to the
       person, taking into consideration all of the facts and circumstances
       known to the person at the time of and prior to the incident.
                The State has the burden of proving beyond a reasonable
       doubt that the force used, attempted, or offered to be used by the
       defendant was not lawful. If you find that the State has not proved
       the absence of this defense beyond a reasonable doubt, it will be
       your duty to return a verdict of not guilty.

Instruction 20.

               As it pertains to instructions 19 and 20, necessary means
       that, under the circumstances as they reasonably appeared to the
       actor at the time, (1) no reasonably effective alternative to the use
       of force appeared to exist and (2) the amount of force used was
       reasonable to effect the lawful purpose intended.
               A person is entitled to act on appearances in defending
       himself, if he believes in good faith and on reasonable grounds that
       he is in actual danger of injury, although it afterwards might develop
       that the person was mistaken as to the extent of the danger. Actual
       danger is not necessary for the use of force to be lawful.
               It is lawful for a person who is in a place where that person
       has a right to be and who has reasonable grounds for believing that
       he is being attacked to stand his ground and defend against such


                                         6
No. 78310-6-1/7

       attack by the use of lawful force. Notwithstanding the requirement
       that lawful force be “not more than is necessary,” the law does not
       impose a duty to retreat. Retreat should not be considered by you
       as a “reasonably effective alternative.”

Instruction 21.

       The court declined to give Escobedo’s proposed justifiable homicide

instruction, stating:

                In this Court’s opinion, given all of the evidence, there is no
        legitimate evidence of an intentional shooting that would support [a]
       justifiable [homicide] defense. I do not believe it is a legitimate
       defense based on the evidence. And as such, this Court is not
       going to present it to the jury for consideration.

       The jury found Escobedo guilty of murder in the second degree, and the

court imposed a term of 270 months of confinement to be followed by 36 months

of community custody. Escobedo appeals.



       Escobedo first contends that the trial court erred when it declined to give a

jury instruction on the defense of justifiable homicide. This decision, he avers,

was an abuse of discretion that compromised his ability to present his theory of

the case, thus denying him a fair trial. To the contrary, because a justifiable

homicide instruction was not supported by the evidence and because Escobedo

was not actually prevented from arguing his theory of the case under the

instructions given, there was no abuse of discretion and no error.

       “Jury instructions satisfy the defendant’s Sixth Amendment right to a fair

trial if, taken as a whole, they accurately inform the jury of the relevant law and

permit each party to argue their theory of the case.” State v. Henderson, 192

Wn.2d 508, 512, 430 P.3d 637 (2018). A trial court’s refusal to issue a requested


                                          7
No. 7831 0-6-1/8

instruction, when based on the evidence in the case, is reviewed for abuse of

discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trial

court abuses its discretion only when its decision is “manifestly unreasonable or

based upon untenable grounds or reasons.” State v. Powell, 126 Wn.2d 244,

258, 893 P.2d 615 (1995). If any element of such an instruction is not supported

by the evidence, the defendant cannot present the theory to the jury. State v.

Griffith, 91 Wn.2d 572, 575, 589 P.2d 799 (1979).

       A defendant is entitled to an instruction on justifiable homicide only when

evidence is introduced that the killing occurred in circumstances amounting to a

justifiable homicide. State v. Briqhtman, 155 Wn.2d 506, 520, 122 P.3d 150

(2005). Washington law defines justifiable homicide, when committed in

resistance to an attempted felony, as follows:

       Homicide is.   .   .   justifiable when committed   .   .




             (1) In the lawful defense of the slayer, or his or her husband,
      wife, parent, child, brother, or sister, or of any other person in his or
      her presence or company, when there is reasonable ground to
      apprehend a design on the part of the person slain to commit a
      felony or to do some great personal injury to the slayer or to any
      such person, and there is imminent danger of such design being
      accomplished; or

              (2) In the actual resistance of an attempt to commit a felony
       upon the slayer.

RCW 9A.16.050.

       Under either subsection, a justifiable homicide instruction “requires a jury

to find that the defendant reasonably believed the person slain (or others who the

defendant reasonably believed were acting in concert with the person slain)




                                              8
No. 78310-6-119

intended to commit a felony or to inflict death or great personal injury.”

Henderson, 192 Wn.2d at 513. As the Supreme Court stated in Briqhtman:

       RCW 9A.16.050(1) contemplates justifiable homicide where the
       defendant reasonably fears the person slain is about to commit a
       felony upon the slayer or inflict death or great personal injury, and
       there is imminent danger that the felony or injury will be
       accomplished.         [RCW] 9A.16.050(1). In contrast, RCW
                               .~


       9A.16.050(2) considers a homicide justifiable where the defendant
       acted in actual resistance against an attempt to commit a felony on
       the slayer. .  Thus, RCW 9A.16.050(2) addresses situations in
                       .   .


       which a felony or attempted felony is already in progress.

155 Wn.2d at 520-21.

       As to the imminent danger requirement of RCW 9A.16.050(1),

“[ijmminence does not require an actual physical assault. A threat, or its

equivalent, can support self-defense when there is a reasonable belief that the

threat will be carried out.” State v. Janes, 121 Wn.2d 220, 241, 850 P.2d 495

(1993) (citation omitted).

       There is some evidence in the record supporting Escobedo’s fear that

Gonzalez had solicited others who might rob or kill him—Gonzalez told him as

much. In Escobedo’s own testimony he claimed that he saw his apartment door

open and heard Gonzalez giving an apartment entry code to Escobedo’s would-

be attackers. Escobedo testified that he was not fearful of Gonzalez herself but

only of the people she purportedly solicited to rob his apartment. Escobedo also

testified to being wary of Gonzalez’s gang connections. Although Escobedo

testified that the shooting was accidental, undercutting the notion of an

intentional killing in self-defense, Palms and Cunningham both testified that

Escobedo deliberately aimed the gun at Gonzalez and fired.



                                         9
No. 78310-6-1/10

       However, even viewed in the light most favorable to Escobedo, this

evidence does not support the notion that Escobedo held an objectively

reasonable belief that there was an imminent danger of a felony assault that

necessitated intentionally killing Gonzalez. Escobedo repeatedly testified that he

was not afraid of Gonzalez but of her friends. She was not armed, she was

much smaller than Escobedo, and she was not on the phone with the would-be

attackers when her final argument with Escobedo took place. Even if a scheme

existed, there is simply no evidence that killing Gonzalez was necessary to

prevent her from carrying it out. Escobedo, in fact, never argued as such—his

theory of the case was always that the shooting was not intentional.

       Thus, the trial court’s ruling was based on tenable reasoning—the

instruction sought was not warranted by the evidence adduced. The self-defense

instruction that was given adequately and properly informed the jury of the

applicable law regarding when assault is justifiable as a matter of self-defense.

       The instructions given allowed Escobedo to argue his theory of the case.

In his closing argument, Escobedo’s attorney stated that “even actually if he

pointed the gun, he is entitled to do that in self-defense” because of Gonzalez’s

threats, and that “if somebody is going to kill you, you’re allowed to do that.” His

attorney also reiterated Escobedo’s contention that the gun discharged

accidentally due to Gonzalez making contact with him. Had the jury believed that

Escobedo acted in fear for his life, and that Gonzalez’s sudden movement

caused the gun to discharge, it could not have convicted him under the




                                         10
No. 78310-6-I/Il

instructions given. The trial court did not err by declining to give a justifiable

homicide instruction.

                                                Ill

       Escobedo next contends that the predicate offense for his conviction of

unlawful possession of a firearm, his 2004 felony conviction in California for the

unlawful taking of a motor vehicle, was not comparable to the Washington felony

of taking a motor vehicle without permission. This is so, he asserts, because

California’s statute has a broader definition of the crime than does Washington’s.

Because the California statute in fact defines the crime more narrowly than

Washington’s comparable statute, Escobedo’s argument fails.

       Pursuant to Washington law, a person commits unlawful possession of a

firearm in the second degree

      if the person does not qualify. for the crime of unlawful
                                        .   .


      possession of a firearm in the first degree and the person owns,
      has in his or her possession, or has in his or her control any
      firearm:

             (i) After having previously been convicted     . in this state or
                                                                .   .


       elsewhere of any felony not specifically listed as prohibiting firearm
       possession under subsection (I) of this section.

RCW 9.41 .040(2)(a).

      Typically, in reviewing an out of state conviction, the trial court conducts a

comparability analysis in which “[o]ut-of-state convictions are classified according

to the comparable offense definitions and sentences provided in Washington

law.” State v. Stevens, 137 Wn. App. 460, 465, 153 P.3d 903 (2007) (citing

RCW 9.94A.525(3)). The comparability analysis for the predicate “serious



                                                11
No. 78310-6-1112

offense” element for unlawful possession of a firearm is the same comparability

analysis as is used for classifying prior out-of-state convictions in determining a

defendant’s offender score at sentencing. RCW 9.94A.525(3); see Stevens, 137

Wn. App. at 465 (unlawful possession of a firearm); see also State v. Arndt, 179

Wn. App. 373, 378-79, 320 P.3d 104 (2014) (offender score).

       The principal inquiry for determining the comparability of an out-of-state

conviction is whether the defendant could have been convicted under a

Washington statute for the same conduct. State v. Thiefault, 160 Wn.2d 409,

414-15, 158 P.3d 580 (2007) (classifying out-of-state convictions for purposes of

persistent offender sentencing). A comparability analysis covers (1) ‘legal

comparability,” and (2) “factual comparability.” Arndt, 179 Wn. App. at 378-79.

For “legal comparability,” the court compares the elements of the out-of-state

crime to those of the relevant Washington crime to determine if they are

“substantially similar.” Thiefault, 160 Wn.2d at 415. Only if legal comparability is

not established do we reach the question of factual comparability. See Arndt,

179 Wn. App. at 379.

       “If the foreign conviction is identical to or narrower than the Washington

statute and thus contains all the most serious elements of the Washington

statute, then the foreign conviction counts toward the offender score as if it were

the Washington offense.” State v. Olsen, 180 Wn.2d 468, 472-73, 325 P.3d 187

(2014). “If the elements of the foreign offense are broader than the Washington

counterpart, the sentencing court must then determine whether the offense is

factually comparable—that is, whether the conduct underlying the foreign offense



                                         12
No. 78310-6-1/13

would have violated the comparable Washington statute.” Thiefault, 160 Wn.2d

at 415.

          A statute is narrower than another if it contains an additional essential

element that the other statute does not. See In re Pers. Restraint of Lavery, 154

Wn.2d 249, 255-56, 111 P.3d 837 (2005) (holding Washington robbery statute to

be narrower than federal statute because former required specific intent to steal

while latter did not). At the time of Escobedo’s 2004 conviction, California

Vehicle Code     § 10851 (a) stated:
       Any person who drives or takes a vehicle not his or her own,
       without the consent of the owner thereof, and with intent either to
       permanently or temporarily deprive the owner thereof of his or her
       title to or possession of the vehicle, whether with or without intent to
       steal the vehicle, or any person who is a party or an accessory to or
       an accomplice in the driving or unauthorized taking or stealing, is
       guilty of a public offense and, upon conviction thereof, shall be
       punished by imprisonment in the state prison for 16 months or two
       or three years or a fine of not more than ten thousand dollars
       ($10,000), or both, or by imprisonment in the county jail not to
       exceed one year or a fine of not more than one thousand dollars
       ($1,000), or both.

       At that time Washington’s RCW 9A.56.075 stated:

               (1) A person is guilty of taking a motor vehicle without
       permission in the second degree if he or she, without the
       permission of the owner or person entitled to possession,
       intentionally takes or drives away any automobile or motor vehicle,
       whether propelled by steam, electricity, or internal combustion
       engine, that is the property of another, or he or she voluntarily rides
       in or upon the automobile or motor vehicle with knowledge of the
       fact that the automobile or motor vehicle was unlawfully taken.

             (2) Taking a motor vehicle without permission in the second
       degree is a class C felony.

       Thus, California’s statute required that the perpetrator intend to deprive

the owner of “title to or possession of the vehicle,” while Washington’s did not.


                                           13
No. 78310-6-1/14

“[T]he [Washingtonj statute simply requires that the defendant (1) intentionally

take the vehicle of another (2) without permission.” State v. Walters, 162 Wn.

App. 74, 86, 255 P.3d 835 (2011) (citing ROW 9A.56.075(1)).

       Escobedo avers that California defines the offense more broadly because,

under its statute, the defendant may act with intent “either to permanently or

temporarily deprive” the owner of title to or possession of the vehicle, while

Washington does not require any such intent. This argument is meritless. The

existence of an additional element in the California statute, however qualified that

element may be, renders the California statute narrower than Washington’s. The

State of California was required to prove beyond a reasonable doubt that

Escobedo (1) drove or took a vehicle (2) without consent of the owner and (3)

with intent to deprive. Were Escobedo to have been charged in Washington,

only the first two elements needed to be proved.

       The California statute is narrower and, thus, is legally comparable to the

Washington statute. Therefore, we need not reach the question of factual

comparability of the offenses. Arndt, 179 Wn. App. at 378-79. The California

conviction was a sufficient predicate felony to support Escobedo’s conviction of

unlawful possession of a firearm in the second degree.

                                         Iv
       In a statement of additional grounds, Escobedo faults the trial court’s

decision to allow questioning as to his familiarity with gang culture. That decision

constituted reversible error, Escobedo avers, because this evidence was not




                                         14
No. 78310-6-1/15

relevant and because it constituted character evidence forbidden by ER 404(b).

However, Escobedo opened the door to such evidence with his own testimony.

          The decision to admit or exclude evidence is within the sound discretion of

the trial court; such a decision should not be reversed absent a manifest abuse of

that discretion. State v. Iverson, 126 Wn. App. 329, 336, 108 P.3d 799 (2005). A

trial court abuses its discretion when its decision is manifestly unreasonable or

based on untenable grounds or untenable reasons. Powell, 126 Wn.2d at 258.

A court’s decision is manifestly unreasonable if it adopts a view “that no

reasonable person would take,” given the facts and applicable legal standard.

State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v.

Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)). It is based on untenable

grounds or reasons if the court applies the wrong standard or relies on

unsupported facts. State v. Depaz, 165 Wn.2d 842, 852, 204 P.3d 217 (2009).

          To be admissible, evidence must be relevant. ER 402. Evidence is

relevant when it has any tendency to make the existence of any consequential

fact more probable or less probable than it would be without the evidence. ER

401. Facts that tend to establish a party’s theory or disprove or rebut an

opponent’s theory or evidence are relevant. Fenimore v. Donald M. Drake

Constr. Co., 87 Wn.2d 85, 89, 549 P.2d 483 (1976). Yet ER 404(b) categorically

bars the admission of evidence of prior misconduct or actions “for the purpose of

proving a person’s character and showing that the person acted in conformity

with that character.” State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207

(2012).



                                          15
No. 78310-6-1/16

       Exceptions to this rule exist.

       Evidence of prior misconduct may be admissible if a party has
       “opened the door” to the subject.   .   Using the open door refers to
                                               .   .


       the practice of using evidence that would otherwise be inadmissible
       to contradict evidence that probably should not have been admitted
       when offered by the opposing party. The latter practice has been
       aptly called “fighting fire with fire.”



       The prosecution has often been allowed to cross-examine the
       defendant about other crimes or misconduct, or has been allowed
       to prove them by extrinsic evidence, on the theory that the
       defendant’s testimony or other evidence “opened the door” to
       evidence offered by the State.

5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE         § 404.31 (6th ed. 2018).
       Put more simply, “‘[tjhe long-standing rule in this state is that a criminal

defendant who places his character in issue by testifying as to his own past good

behavior, may be cross-examined as to specific acts of misconduct unrelated to

the crime charged.” State v. Warren, 134 Wn. App. 44, 64-65, 138 P.3d 1081

(2006) (quoting State v. Brush, 32 Wn. App. 445, 448, 648 P.2d 897 (1 982)),

affd, 165 Wn.2d 17, 195 P.3d 940 (2008).

       Such was the case here. Escobedo’s purported wariness of street gangs

and drug culture, and his association of Gonzalez, Cunningham, and Gonzalez’s

would-be accomplices with these phenomena was a significant component of his

theory of the case. He alluded to this several times during his direct examination:

Cunningham was a “to-go-to guy” for a drug dealer who would “take care of”

people who owed money to the dealer and gave Escobedo a “weird vibe,”

Escobedo owed money to that drug dealer, and Gonzalez was connected to a

gang and in contact with said dealer.


                                         16
No. 78310-6-1117

        The State sought to rebut the notion that Escobedo was fearful of gang

members by eliciting testimony about his past in the Logan Heights gang both in

San Diego and in Washington. Overruling Escobedo’s objection to eliciting this

testimony, the trial court stated:

                Mr. Escobedo is claiming self-defense, which does put in
        issue his subjective mindset, if you will, on the date in question in
        terms of whether or not he was sufficiently in fear, if you will, to
        explain or justify pulling out a semi-automatic handgun.
        Recognizing that there is a theory that even though he did that, Ms.
        Gonzalez grabbed the gun, therefore, it went off accidentally.
                In listening to Mr. Escobedo’s testimony as it relates to the
        issue of fear, his testimony suggests that Ms. Gonzalez may have
        been a member of a gang. She certainly was an addict and was
        using drugs, as were all of the people on the night or early morning
        in question.
               There was some testimony, and I’m not going to address it
       specifically, but generally speaking, suggesting that Mr.
       Cunningham had a reputation, the reputation being for gangs.
       Talking about Jairo being a drug dealer. Casper involved in drugs.
       Ms. Gonzalez getting on the phone and calling people to come over
       and rob Mr. Escobedo.
               Same type of person, if you will: Gang related, drug dealers,
       people of the community, people who have a tendency towards
       violence. And that he wakes up and he’s afraid.
               I concur that Mr. Escobedo’s testimony certainly suggests
       that he has minimal, if really any, involvement in gangs. Doesn’t
       know much about them, if you will. And as a result, I do believe the
       door has opened to some very limited things.

       Subsequently, on Escobedo’s cross-examination, the State elicited

testimony as to Escobedo’s own membership in San Diego’s Logan Heights

gang. This included testimony that Escobedo considered fellow associates to be

his ‘family,” that he was familiar with street gangs’ violent methods of dispute

resolution, that he recruited younger members of his community into the gang,

and that the reason for his departure from the gang was not his distaste for the

lifestyle but his drug addiction.


                                         17
No. 78310-6-1/18

       From the record, it is clear that the trial court’s reasoning for allowing this

evidence—that Escobedo had opened the door to its admission—was tenable.

Escobedo’s testimony indicated discomfort with gangs and drug dealers, and the

State sought to rebut the notion put forth that he was innocent of or naïve about

gangs. Allowing this evidence was not an abuse of discretion. Thus, there was

no error.

       Affirmed.



                                                                oij
WE CONCUR:



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