State v. Cordero

284 P.3d 773, 170 Wash. App. 351
CourtCourt of Appeals of Washington
DecidedAugust 28, 2012
DocketNo. 29240-1-III
StatusPublished
Cited by37 cases

This text of 284 P.3d 773 (State v. Cordero) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cordero, 284 P.3d 773, 170 Wash. App. 351 (Wash. Ct. App. 2012).

Opinion

Siddoway, J.

¶1 Luis Cordero appeals his conviction of burglary in the first degree, citing overwhelming evidence that the victim prevented him from leaving her home. Nonetheless, because the jury could find that he committed the crime before being detained or that the victim sought only to prevent him from leaving with her 14-year-old daughter, the evidence was sufficient. We also reject his assignment of error to the trial court’s refusal to instruct the jury on a statutory defense to criminal trespass in this burglary prosecution. His challenge to the court’s imposition of gang-related prohibitions during his term of community custody is well grounded, however, as there is no evidence that his was a gang-related offense. We affirm his conviction but remand with instructions to strike the gang-related prohibitions.

FACTS AND PROCEDURAL BACKGROUND

¶2 In March 2010, Priscilla Garcia was living with her daughter, VS, in a residential motel room in Pasco. She had only recently relocated to Pasco from Grandview, leaving her younger children in Grandview with their grandmother, in an effort to get VS away from Luis Cordero, whom she [356]*356learned VS was dating. At the time, VS was 14 years old; Mr. Cordero was 21. Ms. Garcia’s objection to the relationship was known to Mr. Cordero. She had obtained restraining orders against him in the past that had expired. But shortly before the events leading to his arrest she had warned Mr. Cordero over the phone, after interrupting his attempt to speak with VS, that if he came around, she “was gonna call the cops on him.” Report of Proceedings (RP) at 103. On March 27, Ms. Garcia had contacted Officer Ismael Cano of the Pasco Police Department about her concern that Mr. Cordero would not stay away, seeking “information on what she could do in that situation.” RP at 66.

¶3 That weekend, Ms. Garcia’s son, GJ, who was about a year younger than VS, came to Pasco to visit his mother and sister. On Sunday, March 28, Ms. Garcia, VS, and GJ were all present in the motel room when there was a knock at the door, which turned out to be Mr. Cordero. Ms. Garcia’s, VS’s, and GJ’s testimony differs as to the circumstances under which Mr. Cordero entered the motel room and those that prevented him, temporarily, from leaving.

¶4 GJ would later testify that there was a knock at the door, VS opened it, she invited Mr. Cordero in, and he entered. He testified that when his mother heard Mr. Cordero’s voice she initially told him to “get out of here,” but then closed the door and said to him, “you’re gonna stay,” adding that she was going to call the police. RP at 81. GJ testified that Mr. Cordero was trying to leave but that Ms. Garcia blocked him. He testified that eventually Mr. Cordero was able to leave, although only by pushing Ms. Garcia, who was holding onto Mr. Cordero by his hands and shirt in her effort to detain him. Mr. Cordero left with VS. Under focused questioning by attorneys for the State and for the defense, GJ expressed his perception that in trying to leave the motel room, Mr. Cordero was trying to leave with VS, not by himself.

¶5 Ms. Garcia testified that after Mr. Cordero knocked on the door it was she who opened the door, not VS, [357]*357although VS then pushed past her and let Mr. Cordero inside. Ms. Garcia claims that she promptly told him to leave. According to her, he ignored her and walked toward the back of the room, which Ms. Garcia presumed was in order to help VS gather her belongings to leave. As Mr. Cordero walked through the room, Ms. Garcia testified that he pulled a gun out of his pocket. Ms. Garcia used her phone to call 911, moving toward the door to block Mr. Cordero and VS from leaving, because she “knew they were gonna both run off.” RP at 106. Asked at trial to explain why she stood in front of the door to block Mr. Cordero after earlier telling him to leave, she testified:

I stood at the door because at that time and that moment I didn’t care what happened. You know, he was not gonna take my daughter this time.

RP at 105. And later,

I stood in front of the door because I wanted him to get caught. Because I did not want him to leave with my daughter anymore. Like she had, you know, in the past.

RP at 108. Ms. Garcia denied that she had ever grabbed Mr. Cordero by his hands or by his shirt in an effort to prevent him from leaving.

¶6 VS testified that she answered the door, not her mother, and that when she told her mother it was Mr. Cordero at the door her mother told her to invite Mr. Cordero inside. She claims that her mother told Mr. Cordero to sit down and asked him if he had any money. He denied having any. VS testified that other individuals who were waiting for Mr. Cordero then called him by phone and came to the door looking for him. According to VS, Ms. Garcia told the individuals who came to the door that Mr. Cordero was not going anywhere, and they should leave. After Ms. Garcia again pressed Mr. Cordero for money, “or else he wasn’t leaving,” VS claims that she pushed her mother out of the way, her mother fell, Mr. Cordero left, and VS followed. RP [358]*358at 171. She denies that her mother ever told Mr. Cordero to leave the motel room.

¶7 GJ and Ms. Garcia both agree that while in the motel room, Mr. Cordero removed a handgun from his pocket. He did not point the gun at anyone but held it so that they would see it. He then clicked what they believed to be the hammer repeatedly, even after returning the gun to his pocket. GJ testified that for the most part, Mr. Cordero had the gun in his pocket, clicking the hammer within his pocket. He testified that Mr. Cordero’s continual clicking of the gun made him feel “not very safe” “[b]ecause he probably could have shot my mom.” RP at 83.

¶8 A recording of Ms. Garcia’s 911 call was played at trial, in which she told the 911 dispatcher:

There’s a male here that’s not supposed to be here and the cops told me to immediately call them because he had beat up a guy.
And he’s inside my house right now, and you know, I’m not — I’m standing by the door. Because he’s going out with my daughter, my 14-year — my 14-year-old daughter.
And he’s right here trying to push me out of the way.
. . . And he’s got a gun, I believe. And I’m just tired of this boy.
. . . Him and my daughter are both right now trying to push me out of the way.

Ex. 4.

¶9 Officers responded to the 911 call, recognized Mr. Cordero and VS on the street from Ms. Garcia’s description, and arrested both. The police found Mr. Cordero’s unloaded .45 caliber pistol and a small bag of marijuana in nearby bushes.

¶10 Mr. Cordero was initially charged with residential burglary, a class B felony, but the State later amended the [359]*359information to charge him with burglary in the first degree, a class A felony. The original and amended informations both asserted that Mr. Cordero had entered or remained unlawfully in Ms. Garcia’s motel room with the intent to commit assault.

¶11 At trial, the court declined Mr. Cordero’s request that it instruct the jury on a statutory defense to the crime of criminal trespass, namely, that the defendant reasonably believed that the owner or a person empowered to license access to the room would have licensed him to enter or remain.

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Bluebook (online)
284 P.3d 773, 170 Wash. App. 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cordero-washctapp-2012.