FILED FEBRUARY 7, 2019 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OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 34761-3-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOSE ABILIO AGUILAR AGUILAR, ) ) Appellant. ) LAWRENCE-BERREY, C.J. — Jose Abilio Aguilar Aguilar appeals his convictions for first degree murder with one of two aggravating factors found by the jury and second degree assault with a firearm. The trial court concluded that sufficient evidence supported the egregious lack of remorse aggravator, but not the deliberate cruelty aggravator, and imposed an exceptional sentence of 472 months. Mr. Aguilar contends: (1) insufficient evidence supported a finding of premeditation, a necessary element of first degree murder, (2) the State committed governmental misconduct by delaying discovery and amending the charges multiple times, improperly forcing him to choose between his constitutional speedy trial right and his right to effective counsel, (3) the prosecutor committed misconduct, and No. 34761-3-III State v. Aguilar (4) cumulative error requires reversal of his convictions. Mr. Aguilar also submitted a statement of additional grounds for review in which he contends: (1) the trial court erred by failing to provide a Petrich1 instruction for the aggravating factors, and (2) the trial court violated the real facts doctrine where it based its finding of egregious lack of remorse on facts the State only argued supported the deliberate cruelty aggravator. We affirm. FACTS A. Background Facts On October 16, 2012, a hunter discovered the body of Carmelita Lopez Santos in a secluded wooded area approximately 100 yards from the Buckshot Wildlife Area parking lot in Grant County, Washington. Ms. Lopez had been shot multiple times in her face, neck, and torso. The medical examiner concluded that Ms. Lopez had suffered four pre- mortem wounds: one to her left arm, one to her right cheek, one to her neck, and one that penetrated her chest and exited her back. She further concluded that any of the latter three wounds could have caused Ms. Lopez’s death. The examiner also concluded that Ms. Lopez suffered multiple post-mortem wounds. Detectives found 12 spent shell 1 State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 406 n.1, 756 P.2d 105 (1988), abrogated in part on other grounds by In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 2 No. 34761-3-III State v. Aguilar casings in the Buckshot parking lot and 5 more by Ms. Lopez’s body. A gate at the parking lot cut off vehicle access to a north-running service road, bordered to the west by a barbed wire fence. It had rained the night before October 16, and detectives found fresh shoe prints at the gate as well as a black spiked heel shoe. They discovered a matching shoe in sagebrush further down the dirt service road. The shoe prints continued from the gate and ...
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