FILED FEBRUARY 22, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
STATE OF WASHINGTON, No. 37557-9-III
Respondent, ORDER GRANTING IN PART RESPONDENT’S MOTION FOR v. RECONSIDERATION
FERNANDO MARCOS GUTIERREZ,
Appellant.
THE COURT has considered respondent State of Washington’s motion for
reconsideration of the opinion filed February 8, 2022. Appellant Fernando Marcos
Gutierrez has filed an answer. The panel has considered the motion and the answer
and has determined the motion should be granted in part and this matter should be
remanded to the trial court for further proceedings consistent with State v.
Westwood, 2 Wn.3d 157, 534 P.3d 1162 (2023), and the 2023 statutory
amendments to RCW 7.68.035 and RCW 43.43.7541, and to reconsider restitution
interest in light of the 2022 statutory amendment to RCW 10.82.090. Therefore, No. 37557-9-III State v. Gutierrez
IT IS ORDERED, the motion for reconsideration of this court’s decision of
February 8, 2022, is hereby granted in part;
IT IS FURTHER ORDERED, this matter is remanded to the trial court (1)
for further same criminal conduct proceedings consistent with the Supreme Court’s
clarification in Westwood, 2 Wn.3d 157, (2) to strike the victim penalty assessment
and DNA fees in light of the 2023 statutory amendments to RCW 7.68.035 and
RCW 43.43.7541, and (3) to reconsider restitution interest in light of the 2022
statutory amendment to RCW 10.82.090.
_______________________________ GEORGE FEARING CHIEF JUDGE
2 FILED FEBRUARY 8, 2022 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STATE OF WASHINGTON, ) No. 37557-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) FERNANDO MARCOS GUTIERREZ, ) ) Appellant. )
LAWRENCE-BERREY, J. — Fernando Marcos Gutierrez appeals after a jury found
him guilty as an accomplice of the aggravated first degree murder of Arturo Sosa and the
first degree kidnapping and first degree assault of Jose Cano Barrientos. We affirm
Gutierrez’s convictions, but remand for the trial court to apply the correct same criminal
conduct test to the kidnapping and assault convictions.
FACTS
Eustolia Campuzano had been in a relationship with Arturo Sosa for almost three
years before breaking up with him in November 2016. Campuzano moved out of the
home they shared together and into Paula Rodriguez’s home.
Ms. Rodriguez informed Campuzano that she knew some people who could scare
Sosa. Ms. Rodriguez took Campuzano to see these people: Fernando Marcos Gutierrez
and Gustavo Tapia Rodriguez. Campuzano told these men about Sosa and how she
wanted to scare him. No. 37557-9-III State v. Fernando Marcos Gutierrez
Gutierrez and others developed a plan. Gutierrez told Julio Albarran Varona that
he, Albarran Varona, Tapia Rodriguez, and Ambrosio Villanueva were going to beat up
Sosa for hitting Campuzano and causing two screws to be placed into her jaw. On the
evening of December 8, 2016, these four men and Salvador Gomez armed themselves
with guns and went to Ms. Rodriguez’s home. Gutierrez had a .40 caliber handgun.
Tapia Rodriguez had a .45 caliber handgun.
Tapia Rodriguez told Campuzano they were going to scare Sosa. Most of them
drank alcohol and consumed crystal methamphetamine throughout the night.
In the early morning hours of December 9, 2016, Tapia Rodriguez, Gutierrez,
Villanueva, Albarran Varona, and Campuzano got into Tapia Rodriguez’s GMC Yukon
and drove to Sosa’s house. They parked on the side of the road near the house until Sosa
and a second person, Jose Cano Barrientos, left the house in Cano Barrientos’s Ford
Explorer. Tapia Rodriguez and his crew followed in the Yukon.
After they reached the highway, Tapia Rodriguez began flashing his lights on and
off until Cano Barrientos pulled over to see if something was wrong. Tapia Rodriguez
parked his Yukon behind Cano Barrientos’s Explorer.
Three or four men got out of the Yukon, all armed with firearms equipped with
silencers. Tapia Rodriguez and Gutierrez approached Cano Barrientos’s vehicle with
2 No. 37557-9-III State v. Fernando Marcos Gutierrez
guns drawn; Tapia Rodriguez went to the driver’s side and Gutierrez went to the front
passenger side. They ordered Cano Barrientos and Sosa out of the Explorer at gunpoint.
Deoxyribonucleic acid (DNA) taken from the outside front passenger door handle of
Cano Barrientos’s vehicle matched Gutierrez’s DNA.
Tapia Rodriguez and Gutierrez ordered Cano Barrientos and Sosa to kneel
between the two vehicles. They told Cano Barrientos and Sosa, “te voy matar,” which
means, “I’m going to kill you.” Report of Proceedings (RP)1 at 1198. They cocked their
guns and pointed them at the heads of Cano Barrientos and Sosa.
By this time, the plan to beat up Sosa had changed to killing both men. Tapia
Rodriguez later remarked to Albarran Varona, “[S]ometimes when things don’t work out
the right way, people have to die.” RP at 926.
Realizing that both men were about to be killed, Albarran Varona warned Tapia
Rodriguez that there was traffic on the highway. The armed men then loaded Cano
Barrientos and Sosa into the back seat of Cano Barrientos’s Explorer.
Cano Barrientos sat in the back driver’s-side seat, Sosa sat in the back center seat,
and Tapia Rodriguez sat in the back passenger-side seat next to Sosa, pointing a gun at
1 “RP” references are to the verbatim report of proceedings of the trial unless otherwise indicated.
3 No. 37557-9-III State v. Fernando Marcos Gutierrez
him and Cano Barrientos. Albarran Varona was in the driver’s seat, holding a pistol with
a chambered round. Gutierrez, Villanueva, and Campuzano were in Tapia Rodriguez’s
Yukon, the lead vehicle, while Albarran Varona followed in Cano Barrientos’s Explorer.
About one mile down the road, Sosa and Cano Barrientos tried to wrestle the gun
from Tapia Rodriguez. While driving, Albarran Varona pointed his pistol at Sosa. Cano
Barrientos then began choking Albarran Varona so he would not shoot Sosa. Albarran
Varona fired his gun and the bullet hit Cano Barrientos in his upper chest, near his
collarbone, causing him to collapse between the two front seats. Once Albarran Varona
regained control of the car, he looked back and saw Tapia Rodriguez put his gun to
Sosa’s head and shoot three times.
With Gutierrez’s help, the men got their guns, some shell casings, and a magazine
and left in Tapia Rodriguez’s Yukon. Before leaving, Gutierrez made Campuzano look at
Sosa’s body and threatened to kill her if she said anything.
Cano Barrientos survived. Sosa died.
Charges
The State filed a consolidated information against Gutierrez and Tapia Rodriguez.
For Sosa’s killing, the State charged both men with murder in the first degree and
murder in the second degree, and alleged various special allegations, including
4 No. 37557-9-III State v. Fernando Marcos Gutierrez
allegations that would support a sentence of aggravated first degree murder under
RCW 10.95.020(11)(d). For Cano Barrientos’s abduction, the State charged both men
with first degree kidnapping and first degree assault and alleged various special
allegations.
Albarran Varona was not charged but agreed to testify against Tapia Rodriguez
and Gutierrez in exchange for a plea deal in a different murder case.
Jury Voir Dire
During voir dire, venire juror 16 expressed his opinion, that, as an immigrant from
Russia, he experienced prejudice and hostility from others. He admitted he had racist
thoughts when he was younger but his feelings changed because he kept an open mind
and became more educated and aware. When jurors were asked whether anyone was
going to hold Tapia Rodriguez’s Mexican name or heritage against him, no one, including
juror 16, answered affirmatively. However, when asked if everyone felt comfortable not
delving into immigration issues because they lacked relevance to the case, juror 16 said,
“Given that I came to this country legally, I think it will bother me.” RP at 507. “It
would influence my decision, I would think.” Id. Following up on juror 16’s comments,
counsel for Tapia Rodriguez clarified that his client’s immigration status is irrelevant to
both the facts and the charges. Juror 16 responded, “Sure, I think that thought would still
5 No. 37557-9-III State v. Fernando Marcos Gutierrez
linger in the back of my mind.” Id. at 508. When defense counsel asked, “Would you
hold that against him,” juror 16 answered, “Yes.” Id. Juror 16 then said, “[i]t might be”
problematic for him even if the judge instructed him to ignore it. Id. Juror 16 explained
why it was difficult for him to set aside his opinion on illegal immigration:
JUROR [16]: . . . [Me] and my family came here legally, and it was very hard to do so. We followed the proper channels to get to this country legally. And so when you see somebody do it illegally, it doesn’t matter what skin color they are, they’re coming from Canada, it doesn’t matter. If they’re doing something illegally, they’re breaking the law, they’re breaking the law in this country.
Id. at 508-09. He acknowledged that there are justifications—such as genocide or gang
infestation—for fleeing a dangerous country and such justifications would possibly
change his mind. Yet, even knowing there is a possibility that Tapia Rodriguez fled a
dangerous country, he would hold it against him. Finally, when counsel for Tapia
Rodriguez asked, “[I]s there anything we could convince you or say to you, even with the
judge’s instruction, say, you shouldn’t hold that, that shouldn’t be a factor,” juror 16 said,
“I’m ready to listen.” Id. at 510. He admitted he had already judged Tapia Rodriguez
“[t]o some degree,” but repeated, “Like I said, I’m willing to listen.” Id.
Counsel for the State and the codefendants challenged several jurors for cause, but
none challenged juror 16 for cause. Counsel also exercised their peremptory challenges,
6 No. 37557-9-III State v. Fernando Marcos Gutierrez
but none exercised a peremptory challenge to remove juror 16. Each attorney confirmed
that the jury ultimately empaneled, which included juror 16, was the jury he selected.
Pretrial Motions in Limine
In pretrial proceedings, Tapia Rodriguez moved to prohibit attorney Smitty
Hagopian, Albarran Varona’s former defense attorney, from testifying based on
relevance, impermissible bolstering and vouching for Albarran Varona. The State
intended to ask Hagopian about his research into protection for people who cooperate
with the State and to establish that Albarran Varona had not received the State’s
investigatory records before his free talk with law enforcement. The court identified
Albarran Varona’s credibility as the central issue and found the expected testimony was
factual and not improper bolstering or vouching. Based on its findings, the court denied
Tapia Rodriguez’s motion in limine.
During trial, defense counsel elicited testimony from Albarran Varona that
Hagopian had prepared him for a free talk with law enforcement and went through the
facts of this case.
Hagopian testified he had previously represented Albarran Varona in a murder
case and worked out a plea agreement with the State. Part of the agreement required
Albarran Varona to tell the State everything he knew about any crimes of which he was
7 No. 37557-9-III State v. Fernando Marcos Gutierrez
aware. Hagopian had no discovery from the State related to the present case, so he had no
evidence to share with his client before the free talk with law enforcement. Hagopian sat
in on the free talk and heard Albarran Varona reiterate what he had previously heard from
his client.
Jury Instructions
The State proposed a set of instructions, including a modified Washington Pattern
Jury Instruction accomplice liability instruction. The modification added the following
language to the standard instruction: “If the defendant is an accomplice to the crime of
assault in any degree, he is deemed to be an accomplice in any other degree of assault.”
CP at 246. Counsel for Gutierrez proposed additional instructions that contained similar
modification language, but, instead of discussing “assault,” the modifications discussed
“murder” and “kidnapping.” CP at 46-47. The parties agreed to consolidate the
modifications into an agreed accomplice liability instruction.
Counsel for Gutierrez explained:
I filed some instructions earlier last week. . . . There are not too many. Since you haven’t read them, I’ll make it a little quicker. The first two I’ve cited, which are relying on WPIC 10.51, [the accomplice liability instruction]. [The prosecutor] and I agreed to incorporate that in what’s now one of the state’s supplemental instructions. Which explains why they did that. So their Supplemental Instruction 10.51, I’m satisfied with, because it incorporates what wasn’t incorporated in their original set of instructions. Which is what I wrote. . . .
8 No. 37557-9-III State v. Fernando Marcos Gutierrez
RP at 2617.
The trial court gave the agreed accomplice liability instruction, which read:
A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable. A person is legally accountable for the conduct of another person when he or she is an accomplice of such other person in the commission of the crime. A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either: (1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing the crime. The word “aid” means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice. A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not. If the defendant is an accomplice to the crime of murder in any degree, he is deemed to be an accomplice in any other degree of murder. If the defendant is an accomplice to the crime of assault in any degree, he is deemed to be an accomplice in any other degree of assault. If the defendant is an accomplice to the crime of kidnapping in any degree, he is deemed to be an accomplice in any other degree of kidnapping.
CP at 63 (italics added to show the two sentences Gutierrez requested; underlining added
to assist the reader in an issue raised on appeal).
9 No. 37557-9-III State v. Fernando Marcos Gutierrez
State’s Closing Argument
During closing arguments, the State referred to the court’s accomplice liability
instruction several times. The prosecutor argued that accomplice liability means: “[I]f
you’re helping somebody commit a crime with the knowledge that they’re committing a
crime, you’re guilty of that crime. That’s what the law says.” RP at 2720. He explained
to the jury, “[Y]ou and your buddy go up to fight somebody” and “your buddy pulls out a
gun and shoots them, you’re responsible for that shooting, because you committed a
lower level of assault, and your buddy raised it up to the next level.” RP at 2721. He
concluded that these same “rules” apply to kidnapping and murder. RP at 2722.
Jury Verdict
After deliberating, the jury returned verdicts finding Gutierrez and his codefendant
guilty of all charges, and answered “yes” as to all enhancements, including the
enhancement supporting the sentence of aggravated first degree murder.
Sentencing
Gutierrez, citing State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237 (1987), and
other authorities, argued that his convictions of first degree assault and first degree
kidnapping against Cano Barrientos should be considered the same criminal conduct for
purposes of calculating his offender score and running the convictions concurrently. The
10 No. 37557-9-III State v. Fernando Marcos Gutierrez
trial court, however, applied the statutory intent analysis in State v. Chenoweth, 185
Wn.2d 218, 370 P.3d 6 (2016), to conclude that the crimes were not the same criminal
conduct, consistent with the most recently published Court of Appeals opinion in State v.
Johnson, 12 Wn. App. 2d 201, 460 P.3d 1091 (2020), aff’d, 197 Wn.2d 740, 487 P.3d 893
(2021). Concluding that “the most recent published case law appears to apply this
statutory element analysis versus the objective factual analysis that was done previously,”
the trial court found that the assault and kidnapping offenses did not “match statutorily.”
RP (Apr. 20, 2020) at 126-27. The trial court reasoned:
So, the—the element that is different here is the intent to inflict “great bodily harm”, which is an element that is separate and apart from the other charge. And when you do that objective statutory element review then, because there is a difference it does not appear [that they] can be considered the same conduct, same criminal conduct. So, at this point I am going to make a decision in favor of the State on this issue and we’ll count those separately.
Id. at 127.
The trial court sentenced Gutierrez to life without parole for aggravated first
degree murder, 210 months for first degree assault, and 144 months for first degree
kidnapping. All sentences were ordered to run consecutively.
11 No. 37557-9-III State v. Fernando Marcos Gutierrez
ANALYSIS
A. SUFFICIENT EVIDENCE SUPPORTS THE AGGRAVATED MURDER CONVICTION
Gutierrez contends the State failed to produce sufficient evidence that he was a
major participant in the aggravating circumstances of Sosa’s murder.
When a defendant challenges the sufficiency of the evidence, the proper inquiry is
whether, after viewing the evidence in the light most favorable to the State, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “[A]ll reasonable
inferences from the evidence must be drawn in favor of the State and interpreted most
strongly against the defendant.” Id. This court’s role is not to reweigh the evidence or to
substitute its judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P.2d
628 (1980) (plurality opinion). Instead, because the jurors observed testimony firsthand,
this court defers to the jury’s decision regarding the persuasiveness of and the appropriate
weight to be given to the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d
970 (2004).
Accomplice liability can apply to any crime, including aggravated first degree
murder. State v. Mak, 105 Wn.2d 692, 739-40, 744, 718 P.2d 407 (1986). Generally, to
be an accomplice, the defendant must either (1) solicit, command, encourage, or request
12 No. 37557-9-III State v. Fernando Marcos Gutierrez
that the principal commit the crime, or (2) aid or agree to aid the principal in planning or
committing it. RCW 9A.08.020(3)(a)(i),(ii). These acts must be done with the
knowledge that they will promote or facilitate the commission of the crime. Id.
“[B]ecause only general knowledge is required, even if the charged crime is aggravated,
premeditated first degree murder . . . ‘the crime’ for purposes of accomplice liability is
murder, regardless of degree.” In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 835,
39 P.3d 308 (2001). In other words, to prove accomplice liability for Sosa’s first degree
murder, the State had to prove that Gutierrez generally knew that he was facilitating
Sosa’s murder. Additionally, to prove accomplice liability to support an aggravated
murder sentence, the State also had to prove that Gutierrez was a “major participant” in
the acts giving rise to Sosa’s murder, which depends on his conduct, not the principal’s
conduct. See State v. Roberts, 142 Wn.2d 471, 502-03, 14 P.3d 713 (2000); In re Pers.
Restraint of Howerton, 109 Wn. App. 494, 503-04, 36 P.3d 565 (2001).
There is ample evidence that Gutierrez was a major participant in the events that
led to Sosa’s murder: Gutierrez was armed with a firearm—a .40-caliber handgun. He
was a passenger in the Yukon that followed Cano Barrientos’s Explorer on the highway.
Once the vehicles pulled over on the side of the highway, Gutierrez got out of the Yukon
armed with his firearm, approached the Explorer’s front passenger window with his gun
13 No. 37557-9-III State v. Fernando Marcos Gutierrez
drawn, and ordered Sosa out of the vehicle. DNA taken from the outside front passenger
door handle of Cano Barrientos’s Explorer matched Gutierrez’s DNA. Gutierrez and
Tapia Rodriguez ordered Sosa and Cano Barrientos to kneel, said they were going to kill
them, and pointed their guns at the men’s heads.
The State’s theory at trial was the plan to beat up Sosa had changed by the time
Gutierrez and Tapia Rodriguez had the two men kneel between the parked vehicles. The
State asked Albarran Varona if he knew why the plan had changed. He answered that he
did not know at the time, but later Tapia Rodriguez told him, “[S]ometimes when things
don’t work out the right way, people have to die.” RP at 926. The evidence, construed in
the light most favorable to the State, shows that Gutierrez and Tapia Rodriguez were
about to execute the two men when Albarran Varona warned them of approaching traffic.
At that point, the decision was made to drive the two men somewhere else.
The evidence, construed in the light most favorable to the State, shows Gutierrez
was not merely present and did not simply encourage or aid Tapia Rodriguez in
kidnapping and murdering Sosa. Gutierrez, himself, initiated Sosa’s abduction by
ordering Sosa out of the Explorer at gunpoint. Gutierrez, himself, was about to kill Sosa
on the side of the road. Thus, the record shows that Gutierrez was a major participant in
the murder of Sosa.
14 No. 37557-9-III State v. Fernando Marcos Gutierrez
B. WE DECLINE TO REVIEW AN UNPRESERVED CLAIM OF INSTRUCTIONAL ERROR
For the first time on appeal, Gutierrez assigns error to the jury instruction defining
accomplice liability. He argues the accomplice liability instruction was erroneous and
deprived him of his constitutional right to a fair trial because it told the jury it was
required to find accomplice liability under circumstances where the law only allows the
jury to find accomplice liability.2 Gutierrez focuses on the word “deemed,” which
appears three times toward the bottom of the instruction fully quoted earlier. The State
responds that this court should decline to review this issue because Gutierrez invited the
alleged error. We agree.
The invited error doctrine prohibits a party from complaining of an error when that
party materially contributes to it. In re Estate of Reugh, 10 Wn. App. 2d 20, 62, 447 P.3d
544 (2019). The doctrine applies when the party “takes affirmative and voluntary action
that induces the trial court to take an action that party later challenges on appeal.”
Lavigne v. Chase, Haskell, Hayes & Kalamon, PS, 112 Wn. App. 677, 681, 50 P.3d 306
2 Gutierrez also argues the instruction was constitutionally erroneous by diminishing the State’s burden of proof because it allowed the State to argue Gutierrez was an accomplice to the crime because he was promoting a crime. We disagree that the instruction permitted this argument. But to the extent the prosecutor ineloquently made that argument, Gutierrez fails to raise or sufficiently analyze a prosecutorial misconduct claim.
15 No. 37557-9-III State v. Fernando Marcos Gutierrez
(2002). Invited error of “whatever kind”—even constitutional error—may not be
complained of on appeal by the party inviting the error. State v. Studd, 137 Wn.2d 533,
546, 973 P.2d 1049 (1999) (invited error doctrine applied to requested Washington
Pattern Jury Instruction subsequently ruled unconstitutional; recognizing strictness of
rule, but refusing to apply a more flexible approach).
Here, Gutierrez proposed two of the three sentences of which he now complains.
In addition, he told the trial court he approved the entire instruction. These affirmative
acts induced the trial court to give the modified accomplice liability instruction. We
conclude that the invited error doctrine precludes review of this claim of error.
C. WE DECLINE TO REVIEW THE CLAIM OF ERROR RELATED TO HAGOPIAN’S TESTIMONY
Gutierrez argues the trial court erroneously allowed Albarran Varona’s former
defense attorney turned deputy prosecutor, Smitty Hagopian, to testify at trial. Gutierrez
contends that Hagopian’s testimony was more prejudicial than probative, constituted
vouching and witness bolstering, and failed to satisfy ER 801’s prior consistent statement
standard.
Gutierrez did not object to Hagopian’s testimony, either in a pretrial motion in
limine or during trial. His defense counsel instead said that he was not counsel in a
previous unrelated murder trial involving Gutierrez and was at a substantial disadvantage
16 No. 37557-9-III State v. Fernando Marcos Gutierrez
when discussing what occurred during that case. This statement was not couched as an
objection and it garnered no ruling from the trial court. Instead, Gutierrez’s codefendant
filed a motion in limine to exclude Hagopian’s testimony as irrelevant and improper
vouching or bolstering.
“Without an objection, an evidentiary error is not preserved for appeal. Appellant
cannot rely upon the objection of a codefendant’s counsel to preserve an evidentiary error
on appeal.” State v. Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000) (footnote omitted).
We therefore decline to review this claim of error.
D. SENTENCING ERROR
Gutierrez contends the trial court abused its discretion by applying the wrong legal
standard when it determined his assault and kidnapping convictions were not the same
criminal conduct. He asks that we apply the correct legal standard, conclude the two
convictions are the same criminal conduct, score them as one offense, and remand for
resentencing. We agree in part with Gutierrez’s arguments.
Whenever a person is convicted of two or more current offenses that constitute the
same criminal conduct, the offenses are counted as one crime. RCW 9.94A.589(1)(a).
“Same criminal conduct” “means two or more crimes that require the same criminal
intent, are committed at the same time and place, and involve the same victim.” Id.
17 No. 37557-9-III State v. Fernando Marcos Gutierrez
The parties accurately note that appellate courts have applied different tests in
analyzing same criminal conduct. The inconsistency arises because of two arguably
irreconcilable Supreme Court cases. Both cases apply different same criminal conduct
tests.
In Dunaway, the court held that the same criminal conduct test turns on whether
the defendant’s objective criminal intent changed from one crime to the next. 109 Wn.2d
at 214-15. Years later, in Chenoweth, the court held that rape and incest charges arising
from the same incident are not the same criminal conduct because the legislature had
adopted distinct mens rea for each of the two offenses. 185 Wn.2d at 221. More
succinctly, Dunaway views the same criminal conduct test as an inquiry into the
defendant’s intent, while Chenoweth views the same criminal conduct test as an inquiry
into the statutory mens rea.
We recently reconciled both cases in State v. Westwood, No. 37750-4-III, (Wash.
Ct. App. Dec. 16, 2021), http://www.courts.wa.gov/opinions/pdf/377504_pub.pdf.
There, we noted that the Supreme Court has continued to follow Dunaway and that
Chenoweth did not explicitly overrule Dunaway and its progeny. Westwood, slip op. at
10. We therefore limited Chenoweth to cases involving rape and incest. Id. at 10-11.
The trial court did not have the benefit of Westwood prior to sentencing. It
18 No. 37557-9-III State v. Fernando Marcos Gutierrez
understandably applied the Chenoweth test, reasoning that the most recent Court of
Appeals authority controlled. In doing so, it erred.
We nevertheless decline Gutierrez’s invitation to be the court that applies the
Dunaway test. The Dunaway test must be conducted by the trial court. The trial court
heard the evidence, is better equipped to conduct a hearing, and is the appropriate tribunal
for the necessary factual findings.
We remand for the trial court to determine whether Gutierrez’s convictions for first
degree kidnapping and first degree assault are the same criminal conduct. In making this
determination, it should apply the Dunaway test, as more fully explained in Westwood. If
the trial court determines that Gutierrez’s kidnapping conviction and assault conviction
arise out of the same criminal conduct, these two offenses must be scored as one
conviction.3
E. CONSTITUTIONAL RIGHT TO A FAIR TRIAL
By supplemental brief, Gutierrez contends his constitutional right to a fair trial was
denied when the trial court allowed a venire juror to be seated even though the juror was
biased against persons who are in the United States illegally. He asserts the trial court
3 We further note that a party, at resentencing, may submit issues not raised on appeal to ensure the trial court enters the appropriate sentence. State v. Davenport, 140 Wn. App. 925, 932, 167 P.3d 1221 (2007).
19 No. 37557-9-III State v. Fernando Marcos Gutierrez
was required to remove the venire juror sua sponte. We disagree. Gutierrez’s argument
assumes the trial court knew Gutierrez was in the United States illegally.
A defendant has a constitutional right to an unbiased jury trial. State v. Demery,
144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (plurality opinion); City of Cheney v.
Grunewald, 55 Wn. App. 807, 810, 780 P.2d 1332 (1989). The presence of a biased juror
cannot be harmless and allowing a biased juror to serve on a jury requires a new trial
without a showing of prejudice. State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103
(2015). If the juror demonstrates actual bias, empaneling the biased juror is a manifest
error. Id.
A trial judge is obligated to excuse a biased juror even if no party challenges the
juror. State v. Guevara Diaz, 11 Wn. App. 2d 843, 855, 456 P.3d 869, review denied, 195
Wn.2d 1025, 466 P.3d 772 (2020). A trial court’s erroneous failure to remove a biased
juror requires a new trial without demonstrating prejudice. Id.
Venire juror 16 expressed bias against individuals, regardless of their country of
origin, who enter the United States illegally. He said he would listen to the evidence, but
he also admitted he might have prejudged Tapia Rodriguez to some degree even though
he did not know his immigration status.
20 No. 37557-9-III State v. Fernando Marcos Gutierrez
There is nothing in the record that shows the trial court knew, at the time of jury
selection, Gutierrez was in the United States illegally.4 Defense counsel actively
challenged jurors for cause but failed to challenge juror 16. This permitted the trial court
to infer that defense counsel would produce evidence that their clients were legal
residents. Had Gutierrez requested to admit such evidence, the trial court would have
allowed it.5
Because the trial court did not know that Gutierrez was in the United States
illegally, only conjecture supported juror 16’s removal. A trial court should be reluctant
to interfere with a defendant’s constitutional right to present their defense, including
strategic decisions made during voir dire. State v. Lawler, 194 Wn. App. 275, 285, 374
P.3d 278 (2016) (citing State v. Coristine, 177 Wn.2d 370, 374-76, 300 P.3d 400 (2013)).
The trial court exercised proper restraint here.
4 The trial court knew that Gutierrez had once been picked up and released the same day by Immigration and Customs Enforcement. This brief detention even warrants the belief that Gutierrez was in the United States legally. 5 Toward the end of trial, Tapia Rodriguez sought to admit evidence that he was born in Texas and was a United States resident. The trial court commented that it would have allowed the evidence but for the State convincing it that the evidence was fraudulent.
21 No. 37557-9-III State v. Fernando Marcos Gutierrez
Affirmed, but remanded for resentencing.
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 pursua nt to
RCW 2.06.040.
Lawrence-Berrey, J. j WE CONCUR:
Staab, J.