NOTE: An earlier version of this story mistakenly said Antemio Fregoso Guerrero had been awarded a new trial. His case is still before the Washington Court of Appeals.
SPOKANE — The Washington Court of Appeals overturned a burglary conviction handed down by a Chelan County judge, saying the crime didn’t match the state’s definition of the charge.
Enrique Retana Gonzalez, now 31, of Mattawa was found with a stolen outboard motor in his car in an August 2011 DUI stop north of Wenatchee by Chelan County sheriff’s deputies. He was captured after running from the car along with his two passengers, and accused of acting as driver and lookout in the theft.
In a bench trial conducted by former Superior Court Judge John Bridges that October, he was found guilty of second-degree burglary and DUI and sentenced to 90 days in jail.
In his appeal, Gonzalez argued that because the motor was taken from a boat in a partly fenced storage yard rather than a structure, it wasn’t a burglary. The higher court agreed, saying state law requires “proof that the defendant entered or remained unlawfully in a building other than a vehicle.”
The term “building” under law includes a fenced area, but as Chief Appellate Judge Kevin Korsmo wrote in the opinion issued Tuesday, “… The storage facility in this case does not meet the definition of ‘fenced area’ because only three sides of the facility were fenced in.” The finding ran counter to Bridges’s definition of a fenced yard in the original trial.
Gonzalez’s DUI conviction was allowed to stand.
The burglary conviction was the second from the motor theft to be appealed. Gonzalez’s passenger Antemio A. Fregoso Guerrero, now 24, of Royal City was convicted of second-degree theft by Bridges in November 2011, but asked for a new trial last April.
Fregoso’s attorney argues Sheriff’s Deputy Lee Risdon had “no independent basis” for chasing down and arresting Fregoso at that point, since Gonzalez was the driver and the target of the DUI stop. The stolen motor was only found after the arrests and a search of the car, and Fregoso’s motion to suppress that evidence was denied.
That appellate case is still pending.
Jefferson Robbins: 664-7123