Personal Restraint Petition Of: Isaac Zamora

• Court: Court of Appeals of Washington
• Decided: October 26, 2020
• Docket: 80806-1
• Status: Published

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of: ) No. 80806-1 ) ISAAC L. ZAMORA, ) DIVISION ONE ) Petitioner. ) PUBLISHED OPINION )

ANDRUS, A. C. J. – In 2008, Isaac Zamora stole a number of weapons, killed

six people, and attempted to kill six more. Zamora subsequently pleaded guilty to

eighteen crimes, including four aggravated first-degree murder charges. He

pleaded not guilty by reason of insanity to another two aggravated first-degree

murder charges. In exchange for these pleas, the State agreed not to seek the

death penalty and the court sentenced Zamora to life in prison without the

possibility of parole on the four aggravated first-degree murder charges.

In 2018, the Washington State Supreme Court invalidated the state’s death

penalty in State v. Gregory. 1 In 2019, Zamora filed a motion to withdraw his guilty

pleas, arguing he would not have accepted the plea deal had he known he would

not be at risk of execution. The trial court transferred that motion to this court to

be reviewed as a personal restraint petition. We dismiss Zamora’s petition as time-

barred under RCW 10.73.090(1).

1 192 Wn.2d 1, 427 P.3d 621 (2018) No. 80806-1-I/2

FACTS

This court previously described Zamora’s crimes:

On September 2, 2008, Isaac L. Zamora stole a large knife, rifle, handgun, and ammunition. Zamora shot and killed Chester Rose and Skagit County Sheriff Deputy Anne Jackson. Zamora then shot and killed two construction workers and stole a pickup truck. Zamora drove to a nearby house, crashed into the garage, and shot at property owner Fred Binschus as he ran away. When Julie Binschus arrived home, Zamora shot and killed her.

After Zamora left the Binschus property, he “rammed” into a vehicle and tried to shoot the driver but the gun malfunctioned. Before driving away, Zamora stabbed the man twice in the chest. On the way to Interstate-5 (I- 5), Zamora shot a man riding a motorcycle in the arm.

While driving on I-5, Zamora shot at a car. The bullet passed through the front windows but did not hit the driver or passenger. Zamora then shot through the window of a second vehicle, killing the driver. As Zamora continued to drive south on I-5, he shot at an unmarked Washington State Patrol vehicle. The bullet hit the trooper in the forearm.

Dep’t of Soc. & Health Servs. v. Zamora, 198 Wn. App. 44, 51-52, 392 P.3d 1124

(2017).

On September 29, 2008, the State charged Zamora with six counts of

aggravated murder in the first degree, six counts of attempted murder in the first

degree, three counts of burglary in the first degree, one count each of residential

burglary and robbery in the first degree, two counts of theft of a firearm, and one

count of unlawful possession of a firearm in the second degree.

Zamora was eligible for the death penalty for the aggravated murders under

RCW 10.95.040. Under that provision, the State had thirty days in which to file a

“notice of special sentencing” to indicate whether, after reviewing mitigating

circumstances, it intended to seek the death penalty. RCW 10.95.040(2). The trial

court extended the statutory deadline for filing this notice on several occasions

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because Zamora underwent a competency evaluation at Western State Hospital

(WSH) and was deemed incompetent to stand trial, and later, after competency

restoration, Zamora and his counsel needed more time to prepare a mitigation

package for the State.

On October 19, 2009 the defense provided the State a 155-page mitigation

report. The prosecutors then “extensively discussed the contents of that report”

and “conducted [their] own follow up regarding the defendant’s mental status.”

On November 9, 2009, defense counsel met with the prosecutor to discuss

the case, shortly after which Zamora offered to plead guilty to some of the murder

charges and to plead not guilty by reason of insanity to others. Before the State

received this plea offer, it had not decided whether it would in fact pursue the death

penalty. The State agreed to Zamora’s offer and agreed not to seek the death

penalty “[i]n recognition of the defendant’s acceptance of culpability by entry of the

pleas of guilty in conjunction with those factors considered in the mitigation

package and the opinions of the mental health experts who examined the

defendant.”

On November 17, 2009, the trial court accepted Zamora’s guilty pleas to all

charges except two counts of aggravated first-degree murder, to which he pleaded

not guilty by reason of insanity. On November 30, 2009, Zamora was sentenced

to life without the possibility of release on the four aggravated murder counts, and

received high-range sentences on the remaining fourteen counts. Pursuant to his

acquittals by reason of insanity, Zamora was committed to the custody of the

Department of Social and Health Services (DSHS) and transferred to WSH.

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On October 18, 2018, the Supreme Court held the death penalty was

unconstitutional under Washington’s state constitution. State v. Gregory, 192

Wn.2d 1, 427 P.3d 621 (2018). On April 15, 2019, Zamora filed a hand-written

motion to withdraw his guilty pleas, stating that he had changed his mind about the

pleas due, in part, to the unconstitutionality of the death penalty. The court

appointed counsel, who subsequently filed a motion to withdraw the guilty pleas

under CrR 7.8(b)(1), (3), and (5). In his motion, Zamora asserted that he only

accepted the plea bargain out of fear of the death penalty, which violated the due

process clause of the Fourteenth Amendment to the federal constitution and article

I, section 3 of the Washington State Constitution. He further contended the threat

of the death penalty impermissibly deterred him from exercising his right to a trial

guaranteed by the Sixth Amendment to the federal constitution and article I,

section 21 of the Washington State Constitution.

The trial court concluded Zamora had not made a substantial showing he

was entitled to relief and transferred the motion to this court to be considered as a

personal restraint petition, pursuant to CrR 7.8(c)(2).

ANALYSIS

Zamora contends that his personal restraint petition, although filed more

than ten years after entry of final judgment, is timely under RCW 10.73.100(6). We

disagree.

As a general rule, a defendant may not collaterally attack a judgment more

than one year after the judgment becomes final. RCW 10.73.090(1). This one-

year time limit does not apply where:

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There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.

RCW 10.73.100(6). To fall within the scope of this statutory exception to the time-

bar, a defendant must demonstrate (1) a significant change in the law; (2) material

to his conviction or sentence; (3) which applies retroactively. The parties do not

dispute that Gregory was a significant change in the law or that it applies

retroactively. The only question before us is whether Gregory was material to

Zamora’s conviction or sentence.

Whether a change in the law is material “depends upon the facts and

circumstances of each case.” In re Pers. Restraint of Hartzell, 108 Wn. App. 934,

940, 33 P.3d 1096 (2001). Zamora contends that the invalidation of the death

penalty is material to his conviction and sentence because avoiding the death

penalty was the “controlling consideration” in his decision to plead guilty to the

aggravated first degree murder charges. The State disputes this assertion,

arguing that Zamora had alternative motivations for his pleas. But in focusing on

Zamora’s motivation for pleading guilty, both the State and Zamora misunderstand

the concept of materiality in RCW 10.73.100(6). Zamora’s argument is predicated

on the notion that the availability of the death penalty was material to him in making

the decision to plead guilty. But the case law demonstrates that the controlling

consideration is how the change in law impacts the authority of the courts to convict

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a defendant of a particular crime or to impose a particular sentence. The relevant

inquiry in assessing the materiality of a change in the law is not whether a particular

legal issue was important to Zamora or motivated him into accepting the plea deal,

but whether the change in the law, had it occurred before Zamora’s plea, would

have altered the crimes of which he was convicted or the sentences he received.

Several decisions illustrate this concept of materiality. In some cases,

courts have deemed a change in law to be material, for example, when the change

affected the legal elements of the crime of conviction. In In re Pers. Restraint of

Andress, 147 Wn.2d 602, 610, 56 P.3d 981 (2002), our Supreme Court concluded

that assault could not serve as the predicate felony for felony murder. In Bowman

v. State, 162 Wn.2d 325, 172 P.3d 681 (2007), the defendants contended Andress

was a significant change in the law material to their convictions. The court

disagreed because the defendants were convicted of felony murder with the

predicate crime of drive-by shooting, not assault. 162 Wn.2d at 327. Andress was

deemed immaterial to the defendants’ conviction because that case did not affect

the law applicable to these defendants. Bowman, 162 Wn.2d at 328. Andress did

not affect the substantive law for the crimes of conviction and was therefore not

material.

As in Bowman, the Supreme Court’s ruling in Gregory did not change the

elements of aggravated first degree murder or any of the other crimes to which

Zamora pleaded guilty. Nor did it alter any existing defenses or create any new

defenses to aggravated first degree murder. The Gregory decision did not impact

the substantive law of the crimes with which Zamora was charged or convicted.

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In other cases, courts have held that a change in law may be material if it

impacts the State’s burden of proof at trial. For example, in State v. W.R., 181

Wn.2d 757, 770, 336 P.3d 1134 (2014), the Supreme Court held that instructing

the jury that a defendant bears the burden of establishing a rape victim’s consent

was error. In In re Pers. Restraint of Colbert, 186 Wn.2d 614, 617, 380 P.3d 504

(2016), the court deemed this change in the law to be material to Colbert’s

conviction because the jury at his trial was instructed that he had the burden of

proving consent as a defense to a second degree rape charge 2 W.R. directly

impacted the relevant burden of proof instruction in Colbert’s trial and was thus

material to his conviction.

Zamora’s case is distinguishable from Colbert because Gregory did not alter

any applicable burdens of proof for any of the charges against him. The State’s

burden of proving the elements of aggravated first degree murder remains

untouched following Gregory.

Finally, our Supreme Court recently held that a change in law may be

material if it affects the sentence a trial court actually imposed. In In re Pers.

Restraint of Domingo-Cornelio, No. 97205-2, 3 the court determined that its

decision in State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017)

represented a significant change in the law in the sentencing of minors and the

change was material to the defendant’s sentence. 4 Under Houston-Sconiers, the

2 The petition in that case was deemed time-barred because the court concluded the change in law lacked retroactive application. 186 Wn.2d at 617. 3 Slip op. at http://www.courts.wa.gov/opinions/ pdf/972052.PDF (Sept. 17, 2020) 4 See also In re Pers. Restraint of Ali, No. 95578-6, slip op. at

http://www.courts.wa.gov/opinions/pdf/955786.PDF (Sept. 17, 2020)

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court is required by the Eighth Amendment to the U.S. Constitution to consider the

mitigating circumstances of youth when sentencing juveniles adjudicated as adults

and must have absolute discretion to impose anything less than a standard adult

sentence based on that youth. 188 Wn.2d at 19, 21. In Domingo-Cornelio, the

defendant committed several crimes between the ages of 15 and 17 but, because

of delayed reporting, was not sentenced until he was 20 years old. Slip op. at 2.

The sentencing court did not indicate on the record whether it had considered the

defendant’s youth at the time he committed his crimes but imposed a standard

range adult sentence. Slip op. at 4, 7.

The Domingo-Cornelio court deemed Houston-Sconiers to be material to

this sentence because the change in the law affected all “adult standard range

sentences imposed for crimes the defendant committed as a child.” Slip Op. at 8.

It reasoned that before Houston-Sconiers, the defendant could not have argued

that the court was required to consider his youth at sentencing or that it had to

consider whether his youth justified any exceptional sentence downward. Slip Op.

at 8-9. Materiality in this context turned on whether the sentence could have been

different had the decision issued before sentencing.

Zamora cannot argue that Gregory, had it issued before he was sentenced,

could have led the trial court to impose a different sentence. The State did not

seek, and the trial court did not consider imposing, a death sentence. At

sentencing, Zamora could not have argued that Gregory impacted how the trial

court should evaluate the appropriate sentence or limited the sentencing

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alternatives available to the court. Gregory was therefore not material to Zamora’s

sentence under RCW 10.73.100(6).

Zamora relies on In re Pers. Restraint of Moore, 116 Wn.2d 30, 803 P.2d

300 (1991) to support the proposition that Gregory changed the sentencing law for

aggravated first degree murder. Reliance on Moore, however, is misplaced. In

that case, the defendant pleaded guilty and was sentenced to life without the

possibility of parole, which our Supreme Court subsequently deemed

impermissible under the then-existing statutory scheme. Moore, 116 Wn.2d at 31-

32, 36. The court later granted Moore’s personal restraint petition because the

sentence he received was not authorized by the statute in effect when he was

sentenced. The court deemed this defect, although not constitutional in nature, a

fundamental defect and concluded the failure to correct it “could result in a denial

of petitioner’s due process rights.” Moore, 116 Wn.2d at 33.

Moore is distinguishable from Zamora’s case. First, the Moore court did not

address whether the petition was time-barred under RCW 10.73.100(6), probably

because it was timely under RCW 10.73.100(5) which provides an exception to the

one-year limit when a sentence is imposed “in excess of the court’s jurisdiction.”

Second, Moore actually received an impermissible sentence under State v.

Martin, 94 Wn.2d 1, 614 P.2d 164 (1980). Because Moore pleaded guilty, rather

than go to trial, the court’s sentence exceeded what was permitted by statute at

the time he was sentenced. Zamora, by contrast, did not receive an unlawful

sentence. Zamora’s sentence – life without the possibility of release – did not

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violate the law at the time he received that sentence, nor does it violate the law

today.

Because Gregory did not change the substantive law relating to the crime

of aggravated murder, did not alter the burden of proof in proving that crime, did

not impact the defenses available to Zamora, or change the sentencing laws as to

the sentence actually imposed on Zamora, Gregory is not material to Zamora’s

conviction or sentence. Had the Gregory decision issued before Zamora pleaded

guilty or was sentenced, Zamora still faced six counts of aggravated first degree

murder and sentences of life without the possibility of parole.

We conclude that Zamora’s petition is time-barred and it is hereby

dismissed.

WE CONCUR:

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