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OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 37557-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) FERNANDO MARCOS GUTIERREZ, ) ) Appellant.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,” …
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