Filed Washington State Court of Appeals Division Two
June 30, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 51589-0-II
Respondent,
v. UNPUBLISHED OPINION
ALBERTO COLT SARMIENTO,
Appellant.
MAXA, J. – Alberto Colt Sarmiento appeals his convictions of second degree murder, two
counts of first degree assault, and second degree unlawful possession of a firearm. The
convictions arose from a shooting that occurred at the time and location that Sarmiento, a Varrio
Sureño Lokotes (VSL) gang member, had arranged a fistfight with Eddie Contreras, who
claimed to represent another Sureño gang. Sarmiento was present at the location along with his
friends Juan Zuniga and Trino Martinez. When Contreras and two others arrived at the fight
location, Sarmiento stood by his truck while Zuniga ran out from some bushes toward Contreras
and the others and fired multiple gunshots at them. One of the men with Contreras died of a
gunshot wound at the scene and the other sustained a serious gunshot wound.
We hold that (1) any error regarding the issuance of various search warrants that
Sarmiento challenges was harmless because the untainted evidence of Sarmiento’s guilt on all
charges was overwhelming; (2) Sarmiento’s trial counsel was not ineffective for failing to No. 51589-0-II
request a “defense of others” jury instruction because there was a legitimate strategic reason for
not wanting that instruction; (3) the cumulative error doctrine is inapplicable because any error
was harmless; (4) the evidence was sufficient to sustain Sarmiento’s conviction of second degree
unlawful possession of a firearm; and (5) Sarmiento’s assertions in a statement of additional
grounds (SAG) lack merit. Accordingly, we affirm Sarmiento’s convictions.
FACTS
Background
Sarmiento and Contreras met in September 2015 when they engaged in a fistfight. The
two shook hands after the fight, exchanged names, and spoke briefly. Sarmiento introduced
himself as “Taxer” and said that he was a member of the VSL gang. Contreras told Sarmiento he
was a member of the 18th Street, another Sureño gang.
A week or two after the fight, Sarmiento sent Contreras a friend request on Facebook,
which Contreras accepted. Sarmiento initiated conversations with Contreras via Facebook
Messenger, which were friendly at first but became more adversarial after Sarmiento began to
suspect that Contreras was not really a member of the 18th Street gang. Sarmiento and Contreras
exchanged messages that each regarded as disrespectful and insulting. Sarmiento complained to
others on Facebook about Contreras’s insult.
On November 1, Sarmiento sent Contreras a message challenging him to another fight,
and Contreras accepted. Sarmiento messaged Contreras again on November 2, and the two men
agreed to meet that night for a fistfight without weapons.
November 2, 2015 Shooting
Just before the scheduled fight on November 2, Sarmiento, Zuniga, and Martinez
gathered at Steven Gamez’s residence. Gamez, Zuniga, and Martinez were all gang members
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affiliated with the Southside Criminals, another Sureño gang. Martinez displayed a gun and
passed it to Zuniga, who also handled it. Sarmiento was there and saw the gun. Sarmiento
discussed his anger at a person who was posing as an 18th Street gang member and had
disrespected Sarmiento. Sarmiento, Zuniga, and Martinez talked about doing work for the gang.
Sarmiento, Zuniga, and Martinez left Gamez’s residence in Sarmiento’s truck with the
gun. Martinez gave Zuniga the gun after they made a brief stop. They then drove to the location
of the planned fistfight.
Contreras brought his friends Elijah Crawford and Isaac Fogalele to the planned fight to
provide backup if necessary. When they arrived at the fight location, Sarmiento was standing
outside his parked truck. Contreras, Crawford, and Fogalele got out of Contreras’s vehicle, and
as Contreras started walking Sarmiento said, “You talking shit, huh?” 9 Report of Proceedings
(RP) at 892. Sarmiento signaled to Zuniga, who was in the bushes nearby, by calling his
nickname “Mobster.”
Zuniga, who was wearing a bandana over his face, came running out of some bushes
toward Contreras, Crawford, and Fogalele with a gun and started shooting at them. Sarmiento
stood there without ducking to take cover, and Contreras stated that it was as if “he knew what
was going on.” 9 RP at 911. Crawford was shot in the back and died at the scene. Fogalele was
injured by a bullet. Contreras was uninjured but heard bullets flying by him as he ran away.
After the shooting, Sarmiento, Zuniga, and Martinez left the scene in Sarmiento’s truck.
Investigation and Charges
Contreras spoke with detectives later that night and showed them his Facebook
communications with “Taxer.” Contreras identified Sarmiento through photos posted on
Facebook. Police subsequently issued a warrant for his arrest.
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On November 5, 2015, police obtained a search warrant for Sarmiento’s Facebook
account. On November 5 and 9, they obtained search warrants for the records relating to four
phone numbers that Sarmiento previously had used. On November 12 and 17, police obtained
search warrants for the Facebook accounts of Martinez and Jose Salinas. Salinas was a person
with whom Sarmiento exchanged gang-related messages publicly on Facebook.
After the shooting, Sarmiento fled the area and stayed with his uncle Raymundo Gomez
in Centralia. Gomez subsequently learned of the warrant for Sarmiento’s arrest. When Gomez
confronted Sarmiento, he admitted to Gomez that he planned the shooting with his friends.
Gomez called police a few days later and reported Sarmiento’s location.
Police arrested Sarmiento on November 16. Two cell phones were recovered from the
scene, one (referred to as the HTC phone) in a freezer wrapped in aluminum foil and another
(referred to as the LG phone) located in the storage area where Sarmiento was found hiding. On
November 17, police obtained search warrants for the HTC and LG phones.
Zuniga became a person of interest after police saw a Facebook message from Zuniga to
Sarmiento after the shooting saying Zuniga had left his backpack in Sarmiento’s truck.
The State charged Sarmiento with one count of first degree murder (count I), one count of
second degree murder (count II), two counts of first degree assault (counts III and IV), and one
count of second degree unlawful possession of a firearm (count V). Sarmiento was charged as
an accomplice as to counts I through IV. Counts I through IV also included firearm sentencing
enhancements, and all five counts included a gang aggravator.
Zuniga and Martinez also were charged with multiple counts. Zuniga pleaded guilty to
first degree murder and two counts of attempted first degree murder. Martinez was scheduled to
be tried jointly with Sarmiento, but Martinez later also pleaded guilty.
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Motion to Suppress Evidence
Sarmiento moved to suppress evidence derived from the search warrants issued for the
HTC and LG phones, his phone records, his Facebook account, and Martinez’s and Salinas’s
Facebook accounts. The trial court reviewed the challenged search warrants and accompanying
affidavits and denied Sarmiento’s motions.
Evidence at Trial
The State argued that Sarmiento planned an ambush shooting in retaliation for perceived
disrespect from Contreras. The State presented evidence regarding the events leading up to the
shooting and the shooting itself as described above. The trial court admitted exhibits containing
information discovered in the searches of the two phones, Sarmiento’s Facebook account, and
Martinez’s Facebook account. No evidence obtained from Sarmiento’s phone records or
Salinas’s Facebook account was admitted at trial.
Sarmiento did not testify at trial. Zuniga testified for the defense. He testified that he,
Sarmiento, and Martinez left Gamez’s house in Sarmiento’s truck with the gun that they had
been handling. Martinez gave the gun to Zuniga when they made a stop while Sarmiento stood
on the other side of the truck. Martinez told Zuniga it was time to “earn your stripes.” 14 RP at
1857. Sarmiento told Zuniga “Don’t be worried,” “Don’t be afraid,” and “Be ready.” 14 RP at
1913. When they left, Zuniga sat next to the window while Martinez sat between him and
Sarmiento. Martinez gave Zuniga the gun “just in case” because Zuniga was “riding shotgun.”
14 RP at 1816. Zuniga said that Sarmiento saw him with the gun sometime that night.
Zuniga testified that he, Sarmiento, and Martinez then drove to the fight location and
Zuniga went into the bushes and put a bandana over his face. After Contreras’s vehicle pulled up
and three individuals got out, Sarmiento signaled to Zuniga, who opened fire. Zuniga claimed he
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thought the three individuals were rival gang members and he panicked. He also claimed it was
not a planned shooting.
Defense counsel did not request a “defense of others” jury instruction. Sarmiento argued
in his opening statement and closing argument that he planned only a fistfight and that he had no
knowledge of or involvement in Zuniga’s shooting.
Verdict
The jury convicted Sarmiento of first degree manslaughter as a lesser offense to first
degree murder, second degree murder, two counts of first degree assault, and second degree
unlawful possession of a firearm. The jury also found by special verdict that Sarmiento was
armed with a firearm for counts I through IV and that the gang aggravator applied for all counts.
The trial court vacated the manslaughter conviction to avoid double jeopardy.
Sarmiento appeals his convictions.
ANALYSIS
A. VALIDITY OF SEARCH WARRANTS
Sarmiento argues that the trial court erred in denying his motion to suppress the evidence
seized pursuant to search warrants for his HTC and LG phones, his phone records, his Facebook
accounts, and Martinez’s and Salinas’s Facebook accounts. He claims that the warrants lacked
probable cause and violated the particularity requirement of the Fourth Amendment. We
conclude that even if the trial court erred in denying his motion to suppress one or more of the
search warrants, any error was harmless.
1. Legal Principles
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution impose two requirements for search warrants. State v. Higgs, 177 Wn.
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App. 414, 425, 311 P.3d 1266 (2013). First, a warrant can be issued only if supported by
probable cause. State v. Lyons, 174 Wn.2d 354, 359, 275 P.3d 314 (2012). Second, a search
warrant must be sufficiently particular so that the officer executing the warrant can reasonably
ascertain and identify the property authorized to be seized. State v. Besola, 184 Wn.2d 605, 610,
359 P.3d 799 (2015). “Warrants for materials protected by the First Amendment require a
heightened degree of particularity.” Id. at 611.
In determining whether probable cause supports challenged warrants, we can consider the
search warrant affidavits presented to the judge issuing the warrants. See Lyons, 174 Wn.2d at
363 (“We cannot defer to the magistrate where the affidavit does not provide a substantial basis
for determining probable cause”). However, in assessing the particularity requirement, we may
only consider search warrant affidavits if they are attached to or incorporated by reference by the
warrant itself. State v. Riley, 121 Wn.2d 22, 29, 846 P.2d 1365 (1993).
2. Harmless Error
We apply a harmless error analysis when the trial court admits evidence that is a product
of an invalid warrant. State v. Keodara, 191 Wn. App. 305, 317-18, 364 P.3d 777 (2015).
Admission of evidence obtained through a warrant that violates constitutional requirements is an
error of constitutional magnitude. Id. at 317. An error of constitutional magnitude is harmless
“if, in light of the entire trial record, we are convinced that the [factfinder] would have reached
the same verdict absent the error.” State v. Romero-Ochoa, 193 Wn.2d 341, 348, 440 P.3d 994
(2019).
The State bears the burden of showing beyond a reasonable doubt that the error did not
contribute to the verdict. Keodara, 191 Wn. App. at 317-18. One way to establish harmless
error is to show that the untainted evidence is so overwhelming that it necessarily leads to a
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finding of guilt. Id. at 318. We also can look to the “overall significance of the erroneously
admitted or excluded evidence in this context (e.g., whether it was cumulative or corroborated, or
consistent with the defense theory).” Romero-Ochoa, 193 Wn.2d at 348.
3. Analysis
We do not address the merits of Sarmiento’s challenges to various search warrants.
Instead, we assume without deciding that the trial court erred in denying Sarmiento’s motion to
suppress. We conclude that even if the warrants were invalid, any error in admitting evidence
relating to the warrants was harmless because overwhelming untainted evidence supported
Sarmiento’s murder and assault convictions and the firearm and gang special verdicts.
a. Immaterial Warrants
Initially, the trial court did not admit any evidence that was derived from the search
warrants for Sarmiento’s phone records or Salinas’s Facebook account. Therefore, any error
relating to these warrants necessarily could not have affected the outcome of the trial.
b. Murder and Assault Convictions
Undisputed evidence established that Zuniga shot and killed Crawford and assaulted
Contreras and Fogalele with a firearm. Fogalele was struck by a bullet and Contreras heard
bullets flying by as he ran. Zuniga pleaded guilty to murder and two counts of attempted murder
and admitted at trial that he fired the shots. The issue here is whether there was overwhelming
untainted evidence at trial that Sarmiento acted as Zuniga’s accomplice.
The evidence showed that just before the scheduled fight between Sarmiento and
Contreras, Sarmiento expressed his anger at a person – presumably Contreras – who was posing
as an 18th Street gang member and had made disrespectful comments regarding Sarmiento.
Sarmiento, Martinez, and Zuniga talked about doing work for the gang.
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Sarmiento, Zuniga, and Martinez drove in Sarmiento’s truck to the fight location with
Martinez in possession of a gun. When Martinez gave Zuniga the gun during a stop, he told
Zuniga it was time to “earn your stripes.” 14 RP at 1857. Sarmiento told Zuniga “Don’t be
worried,” “Don’t be afraid,” and “Be ready.” 14 RP at 1913. Martinez gave Zuniga the gun
“just in case” because Zuniga was “riding shotgun.” 14 RP at 1816.
When they arrived at the fight location, Sarmiento stood next to his truck while Zuniga
went out of sight. Zuniga put a bandana over his face. Zuniga testified that as Contreras
confronted Sarmiento, Sarmiento gave Zuniga a signal. Zuniga immediately came running out
of the bushes and started firing multiple shots at Contreras and his companions. Sarmiento stood
next to his truck without ducking to take cover, according to Contreras as if “he knew what was
going on.” 9 RP at 911.
After the shooting, Sarmiento told his uncle that he had planned the shooting with his
friends.
We conclude that overwhelming untainted evidence established that Sarmiento was an
accomplice to second degree murder and two first degree assaults.
c. Second Degree Unlawful Possession of a Firearm
The State argued at trial and argues on appeal that Sarmiento constructively possessed the
firearm that Zuniga used because the gun was in the truck that he was driving. None of the
evidence introduced at trial that derived from the search warrants related to Sarmiento’s
possession of the gun on the night of the shooting. Therefore, we conclude that the jury would
have convicted Sarmiento of unlawful possession of a firearm absent any error. See Romero-
Ochoa, 193 Wn.2d at 348.
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d. Gang Aggravator
The jury was instructed that to find the charged gang aggravator, it had to determine
“[w]hether the defendant committed the offense with the intent to directly or indirectly cause any
benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang, its
reputation, influence, or membership.” Clerk’s Papers (CP) at 243. The gang aggravator related
to all five charges.
Sarmiento did not contest at trial that he was a member of the VSL gang. He introduced
himself to Contreras as “Taxer” and said that he was a member of the VSL gang. Others knew
Sarmiento to be a VSL gang member. Contreras told Sarmiento he represented 18th Street,
another Sureño gang. Sarmiento’s Facebook Messenger conversations with Contreras became
more adversarial after Sarmiento began to suspect that Contreras was not really a member of the
18th Street gang.
Gamez, Zuniga, and Martinez were all gang members affiliated with the Southside
Criminals, another Sureño gang. At Gamez’s house on the night of the shooting, Sarmiento,
Martinez, and Zuniga talked about doing work for the gang. Zuniga wanted to elevate his status
within the gang. When Martinez handed Zuniga the gun, Martinez told him to “earn your
stripes.” 14 RP at 1857. Zuniga felt that he earned his stripes by firing the gun. As noted above,
there was extensive evidence at trial to establish that Sarmiento was an accomplice to Zuniga’s
actions.
We conclude that overwhelming untainted evidence established that Sarmiento or an
accomplice committed the charged offenses with the intent to directly or indirectly cause any
benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang, its
reputation, influence, or membership.
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B. INEFFECTIVE ASSISTANCE OF COUNSEL
Sarmiento argues that his defense counsel was ineffective because he failed to request a
“defense of others” jury instruction based on the theory that Zuniga acted in defense of
Sarmiento when Zuniga shot at Contreras, Crawford, and Fogalele. We disagree.
Both the Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution guarantee criminal defendants the right to effective assistance of
counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). We review de novo an
ineffective assistance of counsel claim. Id.
To prevail on an ineffective assistance claim, the defendant must show both that (1)
defense counsel’s representation was deficient and (2) the deficient representation prejudiced
him or her. Id. at 457-58. Representation is deficient if, after considering all the circumstances,
it falls below an objective standard of reasonableness. Id. at 458. Prejudice exists if there is a
reasonable probability that, except for counsel’s error, the result of the proceeding would have
been different. Id. It is not enough that ineffective assistance conceivably impacted the case’s
outcome; the defendant must affirmatively show prejudice. Id.
We begin our analysis with a strong presumption that defense counsel’s performance was
reasonable. Id. Defense counsel’s conduct is not deficient if it can be characterized as legitimate
trial strategy or tactics. Id. To rebut the strong presumption that counsel’s performance was
effective, “the defendant bears the burden of establishing the absence of any ‘conceivable
legitimate tactic explaining counsel’s performance.’ ” State v. Grier, 171 Wn.2d 17, 42, 246
P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
11 No. 51589-0-II
Where counsel’s failure to request a particular jury instruction is the basis for a claim of
ineffective assistance, the defendant must show that he or she “was entitled to the instruction,
counsel’s performance was deficient in failing to request it, and the failure to request the
instruction caused prejudice.” State v. Classen, 4 Wn. App. 2d 520, 539-40, 422 P.3d 489
(2018).
2. Legitimate Trial Strategy
Even if Sarmiento was entitled to a defense of others instruction, the question here is
whether defense counsel’s failure to request such an instruction can be characterized as a
legitimate trial strategy or tactic. See Grier, 171 Wn.2d at 42.
When a defendant is charged as an accomplice to a shooting, the primary defense often is
that the defendant had no knowledge that a shooting would occur. Defense counsel proffered
this defense. The theory was that Zuniga, a young, aggressive, and undisciplined gang member,
had acted on his own during the shooting because he was eager to elevate his status within the
gang. Defense counsel argued that Zuniga was high and intoxicated at the time of the shooting.
Defense counsel also argued that Sarmiento was not an accomplice to Zuniga’s actions because
there was no plan between them to shoot anyone and that Zuniga acted purely on his own.
If defense counsel had requested a defense of others instruction, the jury might have
inferred that Zuniga was acting at Sarmiento’s request to defend him. Therefore, the instruction
could have undermined Sarmiento’s theory that Zuniga had acted alone and that Sarmiento had
nothing to do with Zuniga’s decision to shoot the victims. Given the strong presumption that
defense counsel’s performance was effective, we conclude that the decision not to request a
defense of other instruction was a legitimate trial strategy.
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Because Sarmiento cannot demonstrate that defense counsel’s performance was deficient,
we hold that Sarmiento’s ineffective assistance of counsel claim on this basis fails.
C. CUMULATIVE ERROR
Sarmiento argues that cumulative error denied him a fair trial. Under the cumulative
error doctrine, the defendant must show that the combined effect of multiple errors requires a
new trial. State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017).
Here, we have held that even if the trial court erred in denying Sarmiento’s suppression
motion, any error was harmless. Therefore, the cumulative error doctrine is inapplicable. See
State v. Yarbrough, 151 Wn. App. 66, 98, 210 P.3d 1029 (2009).
D. SUFFICIENCY OF THE EVIDENCE – POSSESSION OF FIREARM
Sarmiento argues that the State failed to present sufficient evidence of second degree
unlawful possession of a firearm because it failed to establish that he had actual or constructive
possession of a firearm. We disagree.
The test for determining sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).
In a sufficiency of the evidence claim, the defendant admits the truth of the evidence and the
court views the evidence and all reasonable inferences drawn from that evidence in the light
most favorable to the State. Id. at 265-66. Credibility determinations are made by the trier of
fact and are not subject to review. Id. at 266. Circumstantial and direct evidence are equally
reliable. Id.
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A person is guilty of unlawful possession of a firearm in the second degree if he
knowingly has a firearm in his possession or control and he has previously been adjudicated
guilty of a felony. RCW 9.41.040(2)(a); State v. Anderson, 141 Wn.2d 357, 360, 5 P.3d 1247
(2000). The trial court’s to-convict instruction included these elements. Sarmiento stipulated
that he previously had been adjudicated guilty as a juvenile of a felony offense and was not
permitted by law to possess a firearm.
A person can have actual possession or constructive possession of an item. State v.
Reichert, 158 Wn. App. 374, 390, 242 P.3d 44 (2010). Actual possession requires physical
custody of the item. Id. Constructive possession occurs when a person has “dominion and
control” over an item. Id. Although the defendant’s ability to immediately take actual
possession of an item can show dominion and control, mere proximity to the item by itself is
insufficient. State v. Davis, 182 Wn.2d 222, 234, 340 P.3d 820 (2014). A person can have
possession without exclusive control; more than one person can be in possession of the same
item. State v. George, 146 Wn. App. 906, 920, 193 P.3d 693 (2008).
Whether sufficient evidence establishes that a defendant had dominion and control over
an item depends on the totality of the circumstances. State v. Lakotiy, 151 Wn. App. 699, 714,
214 P.3d 181 (2009). Aspects of dominion and control include whether the defendant could
immediately convert the item to his or her actual possession, State v. Jones, 146 Wn.2d 328, 333,
45 P.3d 1062 (2002); the defendant’s physical proximity to the item, State v. Chouinard, 169
Wn. App. 895, 899, 282 P.3d 117 (2012); and whether the defendant had dominion and control
over the premises where the item was located. Reichert, 158 Wn. App. at 390.
When a defendant has dominion and control of the premises, a rebuttable presumption
arises that the defendant also has dominion and control over items within the premises. Reichert,
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158 Wn. App. at 390. Courts have found sufficient evidence that a defendant had dominion and
control an item in a vehicle when the defendant was driving a vehicle that he or she owns. State
v. Bowen, 157 Wn. App. 821, 828, 239 P.3d 1114 (2010); State v. Turner, 103 Wn. App. 515,
524, 13 P.3d 234 (2000).
In Bowen, the defendant was the owner, driver, and sole occupant of a truck in which a
firearm was located. 157 Wn. App. at 828. This court stated, “An individual’s sole occupancy
and possession of a vehicle’s keys sufficiently supports a finding that the defendant had
dominion and control over the vehicle’s contents.” Id. In Turner, the defendant was driving his
truck with one passenger and a rifle was in the back seat. 103 Wn. App. at 521. The court noted
that the defendant was “in close proximity to the rifle, knew of its presence, was able to reduce it
to his possession, and had been driving the truck in which the rifle was found.” Id. He also
“knew that he was transporting the firearm and did nothing to remove it from his presence.” Id.
at 524. The court stated, “[W]here there is control of a vehicle and knowledge of a firearm
inside it, there is a reasonable basis for knowing constructive possession, and there is sufficient
evidence to go to the jury.” Id.
2. Analysis
Consistent with the law stated above, the trial court instructed the jury as follows
regarding the definition of “possession”:
Possession means having a firearm in one’s custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the item.
Proximity alone without proof of dominion and control is insufficient to establish constructive possession. Dominion and control need not be exclusive to support a finding of constructive possession.
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In deciding whether the defendant had dominion and control over an item, you are to consider all the relevant circumstances in the case. Factors that you may consider, among others, include whether the defendant had the immediate ability to take actual possession of the item, whether the defendant had the capacity to exclude others from possession of the item, and whether the defendant had dominion and control over the premises where the item was located. No single one of these factors necessarily controls your decision.
CP at 239. In addition, the to-convict instruction required that the jury find that Sarmiento had
possession of a firearm on November 2, the day of the shooting.
The State argues that Sarmiento had constructive possession because the gun that Zuniga
shot was in Sarmiento’s truck, which he was driving, and he did nothing to remove it. Sarmiento
argues that the State could not show that he had dominion and control over the firearm while it
was in the truck because there was no evidence that Sarmiento knew Zuniga had the gun inside
the truck or knew that Martinez brought the gun into the truck in the first place.
An essential element of the crime of unlawful possession of a firearm is knowing
possession. State v. Hartzell, 156 Wn. App. 918, 944, 237 P.3d 928 (2010). But knowledge may
be inferred when the defendant’s conduct indicates the requisite knowledge is logically probable.
State v. Warfield, 119 Wn. App. 871, 884, 80 P.3d 625 (2003).
Here, Sarmiento saw the gun at Gamez’s house, regardless of whether he touched it.
Zuniga testified that he, Sarmiento, and Martinez left Gamez’s house with the gun in Sarmiento’s
truck. When Martinez gave Zuniga the gun at a stop, Sarmiento told Zuniga “Don’t be worried,”
“Don’t be afraid,” and “Be ready.” 14 RP at 1913. Zuniga testified that Sarmiento saw him with
the gun in his hands sometime that night. This evidence supports a reasonable inference that
Sarmiento knew that the gun was in his truck.
Sarmiento points out that the cases that find sufficient evidence of possession based on a
defendant driving a vehicle in which a firearm was located all involved situations where the
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firearm was not in anyone’s actual possession. Bowen, 157 Wn. App. at 828 (firearm in bag next
to driver’s seat); Turner, 103 Wn. App. at 518 (firearm in back seat). Here, the gun was not
simply loose in the truck; it was actually possessed by Martinez and then Zuniga. But as the
court instructed the jury here, “whether the defendant had dominion and control over the
premises where the item was located” was a factor that the jury could consider and “[d]ominion
and control need not be exclusive to support a finding of constructive possession.” CP at 239.
The instruction did not state that a third party’s actual possession of the gun precluded a finding
of constructive possession.
We hold that the evidence was sufficient to prove that Sarmiento had constructive
possession of the firearm.
E. SAG CLAIMS
1. Challenges to Warrants
Sarmiento asserts that the use of the term “co-conspirators” in the HTC and LG phone
warrant was overbroad because RCW 9A.32.030 (the first degree murder statute) does not
contain the term “co-conspirator” and the term allowed law enforcement to broaden their search
to items for which there was no probable cause. He also asserts that the temporal limitations on
some of the search warrants did not cure the warrants’ overbreadth because the date limitations
were not relevant to the crimes under investigation.
But we held above that even if the warrants were invalid, any error was harmless.
Therefore, we reject these assertions.
2. Double Jeopardy
Sarmiento asserts that his convictions for second degree felony murder and first degree
manslaughter violate the Fifth Amendment’s prohibition on double jeopardy.
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However, at sentencing the trial court vacated the first degree manslaughter conviction.
Sarmiento’s judgment and sentence states that he was convicted of only one count of second
degree murder under RCW 9A.32.050(1)(b). Therefore, we conclude that there was no violation
of double jeopardy.
CONCLUSION
We affirm Sarmiento’s convictions.
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.
MAXA, J.
We concur:
LEE, C.J.
CRUSER, J.