FILED FEBRUARY 2, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 36788-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) EDWIN ESPEJO, ) ) Appellant. )
PENNELL, C.J. — Edwin Espejo appeals his convictions for attempted first degree
murder and unlawful possession of a firearm. We affirm.
FACTS
Law enforcement officers were dispatched to Mr. Espejo’s home in response to
a domestic violence call. When the first officer arrived, he encountered several children
outside. The children were crying and yelling “‘he is hitting her’” while motioning their
fists to their eyes. 4 Report of Proceedings (Feb. 25, 2019) at 612. The children said the
incident was taking place inside the house. The officer called for backup and asked to be
taken into the home. A child took the officer inside to the top of the basement stairs and
told the officer that the assailant, named “Edwin,” was downstairs. The officer waited at
the top of the stairs for backup to arrive. While waiting, the officer could hear the sounds
of children downstairs, whimpering and crying. No. 36788-6-III State v. Espejo
Once backup arrived, the initial officer called for Edwin to come upstairs. He did
not. The officers then headed downstairs. About halfway down the stairs the officers
noticed a child walking back and forth and crying, and helped him to get upstairs. Once in
the basement, officers saw Edwin Espejo sitting on a bed with two young children in his
lap. The children were crying and upset. The officers convinced Mr. Espejo to let the
children go.
As soon as all the children were gone, Mr. Espejo moved his hands to his pants
pockets. The outline of a firearm could be seen in Mr. Espejo’s left pocket. Mr. Espejo
was ordered to show his hands. He did not immediately comply. Instead, he removed a
handgun from his pocket and slid it under a pillow on the bed. Mr. Espejo began to cry
and writhe on the bed while the officers unsuccessfully ordered him to move away from
the gun. Mr. Espejo told the officers to get out of his house. He insisted he was not going
back to jail and kept saying, “‘I am going to grab it; I am going to grab it.’” Id. at 620.
Additional officers arrived and entered the basement area. Several officers drew
firearms, keeping them at a low ready position. At one point, an officer drew a stun gun.
Officers went back and forth with Mr. Espejo for a few minutes, ordering him to
stay away from the gun and to come toward them. At one point, Mr. Espejo picked up the
gun. Officers ordered Mr. Espejo to drop the gun on the bed, which he did. Mr. Espejo
2 No. 36788-6-III State v. Espejo
then clenched his fists and began to stand up while removing his shirt. It appeared to the
officers Mr. Espejo was preparing to fight. The stun gun was deployed on Mr. Espejo in
an effort to get him detained.
The stun gun was only partially effective. After being hit, Mr. Espejo fell onto the
bed and then reached for the gun. Officers told Mr. Espejo, “‘Don’t grab it; don’t grab it;
don’t grab it.’” Id. at 623. Mr. Espejo grabbed the gun and began firing at the officers.
Officers returned fire, hitting Mr. Espejo multiple times. After the shooting, bullet holes
were found in the washing machine and staircase behind the officers. One of the officers
found a bullet hole through his pants.
Mr. Espejo survived the shooting with several injuries. He was taken into custody
and charged with three counts of attempted first degree murder, second degree unlawful
possession of a firearm, fourth degree domestic violence assault, and interfering with the
reporting of domestic violence. Before trial, Mr. Espejo moved under CrR 3.6 to suppress
the evidence collected from his home, arguing the officers unlawfully searched the home
without a warrant. The trial court denied the motion.
At the close of the State’s evidence at trial, Mr. Espejo unsuccessfully moved for a
directed verdict. Mr. Espejo then called one of the officers back as a witness in the
defense case-in-chief. The jury found Mr. Espejo guilty of three counts of attempted first
3 No. 36788-6-III State v. Espejo
degree murder and one count of second degree unlawful possession of a firearm.
Mr. Espejo now appeals.
ANALYSIS
Sufficiency of the evidence
Due process requires the State to prove all elements of a charged crime beyond a
reasonable doubt. State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018). Our review
of whether the State has met its burden requires substantial deference to the jury. When
assessing the sufficiency of the State’s proof, we view the evidence in the light most
favorable to the State. State v. Crowder, 196 Wn. App. 861, 868, 385 P.3d 275 (2016).
“Evidence is sufficient to support a conviction where . . . any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id. 1
Attempted first degree murder requires proof of premediated intent. State v.
Barajas, 143 Wn. App. 24, 36, 177 P.3d 106 (2007). “Premeditation is ‘the deliberate
formation of and reflection upon the intent to take a human life and involves the mental
1 Mr. Espejo contends the trial court should have granted his motion for a directed verdict because the State failed to present sufficient evidence of premeditation during its case-in-chief. However, because Mr. Espejo presented evidence during his case-in-chief, his assignment of error is properly treated as a challenge to the sufficiency of the evidence presented at the entire trial. State v. Allen, 116 Wn. App. 454, 465 n.6, 66 P.3d 653 (2003).
4 No. 36788-6-III State v. Espejo
process of thinking beforehand, deliberation, reflection, weighing or reasoning for a
period of time, however short.’” Id. (quoting State v. Hoffman, 116 Wn.2d 51, 82-83,
804 P.2d 577 (1991)). Factors relevant to premeditation include “[m]otive, procurement
of a weapon, stealth, and the manner of killing.” Id. “The defendant’s statements may
be considered when determining whether the defendant acted with premeditation.” Id.
The evidence here amply supports premeditation. Our focus is not limited to the
moments between when Mr. Espejo was hit with the stun gun and when he fired at the
officers. We take a broader perspective. Testimony from law enforcement showed
Mr. Espejo began thinking of using his gun against the police when he reached into
his pockets and moved his hands around. Throughout the encounter in the basement,
Mr. Espejo refused orders to distance himself from the firearm. Prior to being hit with the
stun gun, Mr. Espejo twice accessed his gun and put it down. During the entire process,
Mr. Espejo was emotional and angry. He told the officers to get out of his house, that he
was going to grab his firearm, and that he would not go back to jail. Viewed in the light
most favorable to the State, Mr. Espejo’s actions and words suggest he was deliberating
Free access — add to your briefcase to read the full text and ask questions with AI
FILED FEBRUARY 2, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 36788-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) EDWIN ESPEJO, ) ) Appellant. )
PENNELL, C.J. — Edwin Espejo appeals his convictions for attempted first degree
murder and unlawful possession of a firearm. We affirm.
FACTS
Law enforcement officers were dispatched to Mr. Espejo’s home in response to
a domestic violence call. When the first officer arrived, he encountered several children
outside. The children were crying and yelling “‘he is hitting her’” while motioning their
fists to their eyes. 4 Report of Proceedings (Feb. 25, 2019) at 612. The children said the
incident was taking place inside the house. The officer called for backup and asked to be
taken into the home. A child took the officer inside to the top of the basement stairs and
told the officer that the assailant, named “Edwin,” was downstairs. The officer waited at
the top of the stairs for backup to arrive. While waiting, the officer could hear the sounds
of children downstairs, whimpering and crying. No. 36788-6-III State v. Espejo
Once backup arrived, the initial officer called for Edwin to come upstairs. He did
not. The officers then headed downstairs. About halfway down the stairs the officers
noticed a child walking back and forth and crying, and helped him to get upstairs. Once in
the basement, officers saw Edwin Espejo sitting on a bed with two young children in his
lap. The children were crying and upset. The officers convinced Mr. Espejo to let the
children go.
As soon as all the children were gone, Mr. Espejo moved his hands to his pants
pockets. The outline of a firearm could be seen in Mr. Espejo’s left pocket. Mr. Espejo
was ordered to show his hands. He did not immediately comply. Instead, he removed a
handgun from his pocket and slid it under a pillow on the bed. Mr. Espejo began to cry
and writhe on the bed while the officers unsuccessfully ordered him to move away from
the gun. Mr. Espejo told the officers to get out of his house. He insisted he was not going
back to jail and kept saying, “‘I am going to grab it; I am going to grab it.’” Id. at 620.
Additional officers arrived and entered the basement area. Several officers drew
firearms, keeping them at a low ready position. At one point, an officer drew a stun gun.
Officers went back and forth with Mr. Espejo for a few minutes, ordering him to
stay away from the gun and to come toward them. At one point, Mr. Espejo picked up the
gun. Officers ordered Mr. Espejo to drop the gun on the bed, which he did. Mr. Espejo
2 No. 36788-6-III State v. Espejo
then clenched his fists and began to stand up while removing his shirt. It appeared to the
officers Mr. Espejo was preparing to fight. The stun gun was deployed on Mr. Espejo in
an effort to get him detained.
The stun gun was only partially effective. After being hit, Mr. Espejo fell onto the
bed and then reached for the gun. Officers told Mr. Espejo, “‘Don’t grab it; don’t grab it;
don’t grab it.’” Id. at 623. Mr. Espejo grabbed the gun and began firing at the officers.
Officers returned fire, hitting Mr. Espejo multiple times. After the shooting, bullet holes
were found in the washing machine and staircase behind the officers. One of the officers
found a bullet hole through his pants.
Mr. Espejo survived the shooting with several injuries. He was taken into custody
and charged with three counts of attempted first degree murder, second degree unlawful
possession of a firearm, fourth degree domestic violence assault, and interfering with the
reporting of domestic violence. Before trial, Mr. Espejo moved under CrR 3.6 to suppress
the evidence collected from his home, arguing the officers unlawfully searched the home
without a warrant. The trial court denied the motion.
At the close of the State’s evidence at trial, Mr. Espejo unsuccessfully moved for a
directed verdict. Mr. Espejo then called one of the officers back as a witness in the
defense case-in-chief. The jury found Mr. Espejo guilty of three counts of attempted first
3 No. 36788-6-III State v. Espejo
degree murder and one count of second degree unlawful possession of a firearm.
Mr. Espejo now appeals.
ANALYSIS
Sufficiency of the evidence
Due process requires the State to prove all elements of a charged crime beyond a
reasonable doubt. State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018). Our review
of whether the State has met its burden requires substantial deference to the jury. When
assessing the sufficiency of the State’s proof, we view the evidence in the light most
favorable to the State. State v. Crowder, 196 Wn. App. 861, 868, 385 P.3d 275 (2016).
“Evidence is sufficient to support a conviction where . . . any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id. 1
Attempted first degree murder requires proof of premediated intent. State v.
Barajas, 143 Wn. App. 24, 36, 177 P.3d 106 (2007). “Premeditation is ‘the deliberate
formation of and reflection upon the intent to take a human life and involves the mental
1 Mr. Espejo contends the trial court should have granted his motion for a directed verdict because the State failed to present sufficient evidence of premeditation during its case-in-chief. However, because Mr. Espejo presented evidence during his case-in-chief, his assignment of error is properly treated as a challenge to the sufficiency of the evidence presented at the entire trial. State v. Allen, 116 Wn. App. 454, 465 n.6, 66 P.3d 653 (2003).
4 No. 36788-6-III State v. Espejo
process of thinking beforehand, deliberation, reflection, weighing or reasoning for a
period of time, however short.’” Id. (quoting State v. Hoffman, 116 Wn.2d 51, 82-83,
804 P.2d 577 (1991)). Factors relevant to premeditation include “[m]otive, procurement
of a weapon, stealth, and the manner of killing.” Id. “The defendant’s statements may
be considered when determining whether the defendant acted with premeditation.” Id.
The evidence here amply supports premeditation. Our focus is not limited to the
moments between when Mr. Espejo was hit with the stun gun and when he fired at the
officers. We take a broader perspective. Testimony from law enforcement showed
Mr. Espejo began thinking of using his gun against the police when he reached into
his pockets and moved his hands around. Throughout the encounter in the basement,
Mr. Espejo refused orders to distance himself from the firearm. Prior to being hit with the
stun gun, Mr. Espejo twice accessed his gun and put it down. During the entire process,
Mr. Espejo was emotional and angry. He told the officers to get out of his house, that he
was going to grab his firearm, and that he would not go back to jail. Viewed in the light
most favorable to the State, Mr. Espejo’s actions and words suggest he was deliberating
on using his gun against the officers in order to create a lethal encounter. Mr. Espejo’s
ultimate objective may have been to get himself killed. Regardless, there was sufficient
evidence to support the jury’s finding of premeditation.
5 No. 36788-6-III State v. Espejo
Suppression motion
In addition to challenging the jury’s verdict, Mr. Espejo appeals the trial court’s
denial of his suppression motion. Because Mr. Espejo has not disputed any of the trial
court’s factual findings, our review is limited to a de novo assessment of the law.
See State v. Griffith, 11 Wn. App. 2d 661, 670, 455 P.3d 152 (2019).
Law enforcement officers generally need a warrant to enter a private residence;
however, an exception exists for emergency actions taken as part of the officers’
community caretaking responsibilities. The community caretaking exception applies when
officers are not acting under an investigative pretext and three factors are met:
(1) the officer[s] subjectively believed that an emergency existed requiring that [they] provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.
State v. Boisselle, 194 Wn.2d 1, 14, 448 P.3d 19 (2019).
The record here supports all components of the community caretaking exception.
There was no evidence of pretext; at the time of entry, the sole objective was to respond
to an ongoing domestic disturbance. In addition: (1) officers made plain their subjective
concern was to protect the individuals in Mr. Espejo’s home from further injuries, (2) this
concern was reasonable, particularly given the dangers posed by domestic violence, and
6 No. 36788-6-III State v. Espejo
(3) it was abundantly clear the ongoing danger was occurring in Mr. Espejo’s basement.
Given the information available to law enforcement, it would have been irresponsible for
officers to ignore the cries and distress of the children and decline entry into Mr. Espejo’s
home. Once inside, the officers appropriately continued their response to the ongoing
emergency. No warrant was necessary under these circumstances. 2
CONCLUSION
The judgment of conviction 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, C.J.
WE CONCUR:
______________________________ _________________________________ Fearing, J. Korsmo, J.P.T. 3
2 Even if the emergency exception did not apply, Mr. Espejo’s arguments would fail because the exclusionary rule does not apply to evidence of an assault against law enforcement officers. State v. Mierz, 127 Wn.2d 460, 473-74, 901 P.2d 286 (1995). 3 Judge Kevin M. Korsmo was a member of the Court of Appeals at the time argument was held on this matter. He is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150.