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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38500

STATE OF IDAHO,

Plaintiff-Respondent,

v.

MICHAEL ALFARO aka MICHAEL 

ALFANO, MICHAEL ALFARA,

Defendant-Appellant.

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2013 Unpublished Opinion No. 681

Filed: September 25, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, 

Canyon County. Hon. Thomas J. Ryan, District Judge. 

Judgment of conviction and sentences for aiding and abetting first degree murder, 

two counts of aiding and abetting aggravated assault, and aiding and abetting 

unlawful discharge of a firearm at a dwelling, and sentence enhancement for 

infliction of great bodily injury, affirmed.

Robyn Fyffe of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy 

Attorney General, Boise, for respondent. Daphne J. Huang argued.

________________________________________________

PERRY, Judge Pro Tem

Michael Alfaro appeals from his judgment of conviction and sentences for aiding and 

abetting first degree murder, two counts of aiding and abetting aggravated assault, and aiding and 

abetting unlawful discharge of a firearm at a dwelling, and his sentence enhancement for 

infliction of great bodily injury. For the reasons set forth below, we affirm. 

I.

FACTS AND PROCEDURE

In the summer of 2004, Caldwell experienced a spate of drive-by shootings between rival 

gangs. One shooting occurred at approximately 3:30 a.m. on August 14, 2004, while Javier 

“Harvey” Rodriguez, Sael Castillo, Jason Alverado and Carlos Chavez, all associated with the 

“Westside Lomas” (Westside) gang, were at Rodriguez’s house. A vehicle drove by, and two of 
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its passengers began shooting at the house, resulting in Chavez being killed. It was the third 

shooting investigated by Caldwell police that night alone.

When police arrived on the scene they found various bullet casings in the area, but the 

bullet that killed Chavez could not be tied to a particular weapon. One neighbor reported seeing 

a blue car speed away after the shooting, while another described a light tan car with three 

occupants. Rodriguez told the police he arrived at the house mere moments before the shooting 

and that Castillo and Alverado were outside in front of the house and Chavez was inside at the 

time. He could not describe the vehicle from which the shots had been fired and was generally 

uncooperative in aiding the investigation. After interviewing over 100 people in relation to 

Chavez’s death, the police never recovered a weapon, never identified the vehicle, and had no 

suspects.

In June 2005, Evan Musquiz, a teenager associated with the “Eastside Locos” (Eastside)

gang, who was thirteen years old at the time of Chavez’s shooting, told police he had been in a 

light blue four-door car with other Eastsiders, Arandu Maceda, Richard Alaniz, and a person he 

only knew as “Mike” who was driving. Musquiz stated the four had driven around for a while

and then drove by a residence where Maceda and Alaniz opened fire, shooting at the house and 

the men in front of the house. Musquiz was shown a six person photo lineup, in which Alfaro 

was number three, and indicated “Mike” was either two or three. Musquiz could not identify the 

time of year or the time of day the shooting had taken place, other than to say it was dark. When 

police provided Musquiz with the location of Rodriguez’s house and asked whether it was the 

location of the shooting, Musquiz said yes. Following Musquiz’s interview, Alaniz denied any 

involvement in the shooting.

In June 2009, another Eastside gang member, Mario Flores, was charged with multiple 

felonies, including recruiting gang members, supplying firearms, and witness intimidation. 

Police questioned him as to whether he had any knowledge pertaining to Chavez’s death, which 

he had denied possessing when interviewed shortly after the shooting. This time, Flores told 

police he had observed Maceda and Musquiz getting into a black Cadillac with Alfaro and 

Alaniz on the night of August 14, 2004. In exchange for his cooperation, all charges against 

Flores were dismissed. 

On August 6, 2009, a grand jury indicted Alfaro for charges stemming from the

August 2004 shooting that caused Chavez’s death. An amended indictment charged Alfaro with 
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aiding and abetting first degree murder, Idaho Code §§ 18-4001, 18-4002, 18-4003, or 

alternatively, involuntary manslaughter, I.C. §§ 18-4006(2), 18-4007, 18-204; two counts of 

aiding and abetting aggravated assault, I.C. §§ 18-901(a), 18-905(a), 18-204; aiding and abetting 

unlawful discharge of a firearm at a dwelling, I.C. §§ 18-3317, 18-204; and a sentence

enhancement for inflicting great bodily injury, I.C. § 19-2520B. 

A five-day jury trial commenced on October 12, 2010. Musquiz, Flores, Alaniz, 

Rodriguez, and Castillo all testified, providing accounts of the shooting that often conflicted with 

each other.

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 Musquiz and Alaniz identified Alfaro as the driver. The jury found Alfaro guilty of 

aiding and abetting first degree murder, both counts of aiding and abetting aggravated assault, 

and aiding and abetting unlawful discharge of a firearm at a dwelling; the district court found the 

sentence enhancement for infliction of great bodily injury applicable. The district court entered a 

judgment of conviction and sentenced Alfaro to a unified term of life, with twenty years 

determinate, for the murder conviction and five years determinate for each remaining count, with 

all sentences to run concurrently. Alfaro now appeals his judgment of conviction and sentences. 

II.

ANALYSIS

A. Prosecutorial Misconduct

Alfaro contends the prosecutor committed misconduct during closing argument, violating

his right to a fair trial. Specifically, he argues the prosecutor’s statement during rebuttal 

referring to the defense’s closing argument as a “red herring fishing trip,” disparaged the 

defense’s arguments to a degree amounting to prejudicial misconduct. 

Although our system of criminal justice is adversarial in nature, and the prosecutor is 

expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and 

required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in 

reviewing allegations of prosecutorial misconduct, we must keep in mind the realities of trial. Id. 

A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous 

objection we determine factually if there was prosecutorial misconduct, then we determine 

whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055 

(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). A conviction will 

 

1 Macedo was called to the stand, but refused to testify. 
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not be set aside for small errors or defects that have little, if any, likelihood of having changed 

the results of the trial. State v. Pecor, 132 Idaho 359, 367-68, 972 P.2d 737, 745-46 (Ct. App. 

1998). 

The prosecutor’s statement occurred during the State’s rebuttal, where the following 

exchange occurred:

[Prosecutor]: [Defense counsel] in the opening told you they weren’t contesting 

the shooting and the death of Carlos Chavez. [Defense counsel] stood up 

here and told you they weren’t contesting the shooting of Carlos Chavez. 

The only issue is [is Alfaro] the driver. Yet [defense counsel] spent the 

last hour contesting the details of the shooting. That’s what his closing 

was doing.

[Defense counsel]: Judge, for the record, I’ll object to the characterization and as 

to the court’s rulings previously.

[Prosecutor]: We just went on an hour-long red herring fishing trip.

[Defense counsel]: Same objection, Judge.

[The Court]: You’re allowed a continuing objection.

On appeal, Alfaro contends the prosecutor’s characterization of defense counsel’s “entire closing 

argument as a red-herring fishing trip, went beyond asking the jury to return a verdict based on 

evidence, instructions and permissible inferences.” Rather, Alfaro contends, the prosecutor’s 

argument “disparaged defense counsel and ridiculed Mr. Alfaro’s entire defense thereby 

depriving him of his due process right to a fair trial.” 

We do not agree that the prosecutor’s statement amounted to misconduct. We addressed 

a similar issue in State v. Norton, 151 Idaho 176, 187-89, 254 P.3d 77, 88-90 (Ct. App. 2011). 

There, Norton argued the prosecutor committed misconduct in his rebuttal closing argument by 

referring to the defense arguments as “red herrings and smoke and mirrors.” Id. at 188, 254 P.3d 

at 89. This Court noted the prosecutor’s comments were not directed at defense counsel 

personally, but rather were comments on the defense theories and therefore concluded the 

prosecutor’s remark did not constitute misconduct. Id. at 189, 254 P.3d at 90. Although Alfaro 

argues otherwise, Norton is indistinguishable in any dispositive respect from this case. Like in 

Norton, the prosecutor’s statement here was directed at the defense theories and arguments and 

did not amount to misconduct. 

B. Judgment of Acquittal

Alfaro contends there was insufficient evidence to support the jury’s verdict that he was 

the driver of the vehicle involved in the drive-by shooting resulting in Chavez’s death. 
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Specifically, he contends that even viewing the evidence in the light most favorable to the 

prosecution, there was not sufficient evidence. Alfaro concedes the jury could have reasonably 

concluded that, at some point in time, Alfaro drove a vehicle carrying Alaniz, Maceda and 

Musquiz into Westside territory where Alaniz and Maceda shot at Rodriguez’s residence and the 

men outside. However, he argues that given the “undisputed testimony concerning the number 

of drive-by shootings during that time period, along with inconsistencies in the witnesses’ 

testimony,” there was not sufficient evidence to conclude that Alfaro was involved in the specific

drive-by shooting that resulted in Chavez’s death. 

Alfaro filed motions for a judgment of acquittal after the close of the State’s case and 

after the jury returned a guilty verdict. The district court denied both motions. On review of the 

denial of a motion for judgment of acquittal, we determine whether there is substantial evidence 

to support the challenged conviction. State v. Hoyle, 140 Idaho 679, 683, 99 P.3d 1069, 1073

(2004); State v. Merwin, 131 Idaho 642, 644, 962 P.2d 1026, 1028 (1998). Substantial evidence 

to support the challenged conviction is present when a reasonable mind could conclude that the 

defendant’s guilt of the offense was proven beyond a reasonable doubt by such material 

evidence. Hoyle, 140 Idaho at 684, 99 P.3d at 1074; State v. Kuzmichev, 132 Idaho 536, 545, 

976 P.2d 462, 471 (1999). Where there is competent although conflicting evidence to sustain the 

verdict, this court cannot reweigh that evidence or disturb the verdict. Hoyle, 140 Idaho at 684, 

99 P.3d at 1074; Merwin, 131 Idaho at 644-45, 962 P.2d at 1028-29. In reviewing a motion for 

judgment of acquittal, all reasonable inferences on appeal are taken in favor of the prosecution.

Hoyle, 140 Idaho at 684, 99 P.3d at 1074; Kuzmichev, 132 Idaho at 545, 976 P.2d at 471.

At trial, Musquiz testified that on the night of the shooting, he and Maceda arrived at 

Flores’ house as it was getting dark. They hung out drinking beer and smoking marijuana. 

Alaniz and Alfaro arrived in a vehicle with Alfaro driving. Musquiz was unable to explain how 

he knew Alfaro or whether he had met him before that night. Musquiz testified he and Maceda 

joined the two men in the car and they drove around for a bit, eventually ending up in Westside 

“territory” where they drove past a house Musquiz did not recognize. Musquiz testified there 

were two people standing in the front yard and that once the car turned around and headed back 

toward the house, Maceda and Alaniz opened fire, shooting at the house and the men in front of 

the house. He testified Alfaro drove the four to a Flying J truck stop where he, Maceda, and 

Alaniz were picked up by Alaniz’s girlfriend.
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Flores testified he was having a party on the evening of August 14, 2004, and Musquiz 

and Maceda had arrived at approximately 9 or 10 p.m. when it was getting dark. About an hour 

later, Alfaro and Alaniz arrived with Alfaro driving a black, two-door Monte Carlo. Flores 

testified Maceda and Musquiz left with Alfaro and Alaniz and approximately ten to thirty 

minutes later, Flores heard gun shots. He also testified that on August 14, 2004, at 12:35 a.m., a 

bullet grazed his leg during a shooting outside his house. He testified that this shooting 

happened on a different night than the night Alfaro and Alaniz picked up Macedo and Musquiz at 

Flores’s home.

At trial, Alaniz testified2 that on the evening of August 13, 2004, he and Alfaro drank 

some beers and discussed that Alaniz’s house had been shot at by some Westsiders. The two 

then went to Flores’s house, with Alfaro driving a four-door sedan, where they picked up 

Macedo and Musquiz. Alaniz testified he had a Glock .40 gun and Macedo was armed as well. 

Alaniz stated that the four drove to Rodriguez’s house, noticed two people outside, and Alfaro 

turned off the headlights. Alaniz stated he heard gunfire, got out his gun, and started shooting at 

the house. The four then drove to a Flying J truck stop to fix a flat tire, where a girlfriend picked 

up him, Macedo, and Musquiz, leaving Alfaro with the vehicle. 

Rodriguez testified that in the early morning hours of August 14, 2004, he was at home 

drinking beer with Castillo, Alverado, and Chavez. After Chavez went inside the house, with the 

three others remaining outside, Rodriguez noticed a white car drove by his house several times at 

a high rate of speed. Shortly thereafter, another darker car drove down the street with its lights 

out, going very slowly. He heard gunshots coming from the car and somehow came to have a 

gun in his hand (he denied having a firearm before the shooting and testified he did not know 

where the gun had come from or what happened to it after the shooting) with which he began 

shooting back. He ran inside to find Chavez shot in the neck. 

Castillo also testified he was at Rodriguez’s house with Alverado and Chavez on 

August 14, 2004. He did not see the white car Rodriguez mentioned, but testified he saw a car 

 

2 In order to testify at trial, Alaniz was transported from a federal prison where he was 

serving time for distribution of methamphetamine. On the evening before his testimony, he 

entered a binding plea agreement, agreeing to plead guilty to voluntary manslaughter for 

Chavez’s death and to testify against Alfaro in exchange for a unified sentence of twenty-one 

years, with six years determinate, to run concurrently with his federal sentence. 
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drive down the street, turn around, and drive back towards the house. Castillo testified the car 

was traveling fast for a neighborhood and he did not recall the headlights being turned off. 

In arguing there was insufficient evidence to support the jury’s verdict--because there 

was insufficient evidence to establish that Alfaro had been involved in the specific shooting on 

August 14 that killed Chavez--Alfaro focuses on the contradictions in the testimony of these 

witnesses. He argues that none of the Westsiders’ testimony competently linked a vehicle driven 

by Alfaro with the vehicle used in the shooting. He points out that although Rodriguez testified 

the vehicle whose occupants shot at his house only drove by once and did not turn around,

Castillo testified the vehicle drove by once and then returned. Additionally, Rodriguez indicated 

the vehicle’s lights were turned off, whereas Castillo could not remember and Castillo testified 

the car was going fast, whereas Rodriguez testified it was going slowly. Finally, Musquiz and 

Alaniz testified they drove by a house in Westside territory with two, not three, people outside.

Alfaro also contends none of the Eastside gang members competently testified that any 

shooting Alfaro was involved in took place in the early morning hours of August 14. Flores 

testified he observed Musquiz and Macedo leave with Alfaro and Alaniz on a different night than 

when Flores stated he was shot at in another incident. Additionally, Flores testified that Musquiz 

and Macedo arrived at his house around 9 or 10 p.m. and left with Alfaro and Alaniz about an 

hour later. Alaniz and Musquiz testified they only drove around for a short period of time before 

driving to Rodriguez’s house, which Alfaro contends places them at the scene of the shooting 

much earlier than 3:30 a.m. when Chavez was killed. Flores also testified he held the party 

attended by Musquiz and Macedo beginning on the evening of August 14, which, if Flores was 

believed, means the shooting that occurred in the early morning hours of August 14 happened 

before the party. Alfaro also discounts Musquiz’s testimony that the shooting occurred on 

August 14 because “it is apparent that his testimony concerning the date was not based on 

personal knowledge.” When first discussing the incident with police in 2005, Musquiz said he

did not know what time of year or what time of day the incident occurred. Thus, Alfaro argues, 

it is an “inescapable conclusion” that Flores observed Macedo and Musquiz get into a vehicle 

with Alfaro and Alaniz on a different night than the one on which Chavez died. 

Alfaro contends that these inconsistencies and a lack of substantial evidence tying the 

shooting described by Musquiz, Flores, and Alaniz with the shooting that killed Chavez, in 

combination with the fact it was undisputed there were many drive-by shootings in Caldwell that 
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summer, including three reported at Rodriguez’s house in August alone, resulted in insufficient

evidence to establish beyond a reasonable doubt that Alfaro participated in the shooting that 

resulted in Chavez’s death. Alfaro’s argument is unavailing. There were certainly 

contradictions in the witnesses’ testimonies regarding the details of the incident; however, it is 

well-settled that absent a showing that evidence lacks competence, conflicts are an inadequate 

basis upon which to disturb a jury’s factual finding. Hoyle, 140 Idaho at 684, 99 P.3d at 1074. 

All of the witnesses testified the incident took place at night and Alaniz and Musquiz both 

testified they had participated in a drive-by shooting in the early morning hours of 

August 14, 2004, in which Alfaro was the driver. Alaniz testified they shot at Rodriguez’s house

and Musquiz identified Rodriguez’s house as the target of the shooting that occurred when 

Alfaro was the driver. As the State points out, those testimonies were consistent with the 

testimony of the detective who responded to the call immediately following the shooting on 

August 14. In addition, a Caldwell police officer testified, consistent with his report at the time,

that the drive-by shooting that occurred near Flores’ house and resulted in a bullet passing near 

Flores’ leg, occurred in the early morning hours of August 14, approximately three hours before 

Chavez was shot. Further, as the State points out, the inconsistencies between the testimonies of 

the various gang members is largely unremarkable given that the shooting had occurred 

approximately six years before trial and most, if not all, of the witnesses had been intoxicated 

and at least some had smoked marijuana on the night of the shooting. 

Alfaro concedes there was sufficient evidence for the jury to reasonably conclude that he 

participated in a drive-by shooting of Rodriguez’s house with Alaniz, Maceda, and Musquiz. 

The inconsistencies in the testimony did not defeat the sufficient competent evidence presented 

that this shooting occurred in the early morning hours of August 14 and resulted in Chavez’s 

death. The district court did not err in denying Alfaro’s motions for acquittal. 

C. Sentence Review

Alfaro also argues the district court abused its discretion and violated his constitutional 

rights to a jury trial and due process by sentencing him more harshly because he exercised his 

right to trial. Because there was apparently no objection before the trial court, we must review 

Alfaro’s claim of a vindictive sentence, brought for the first time on appeal, for fundamental 

error. State v. Robbins, 123 Idaho 527, 529-30, 850 P.2d 176, 178-79 (1993); State v. Baker, 153 

Idaho 692, 695, 290 P.3d 1284, 1287 (Ct. App. 2012); State v. Grist, 152 Idaho 786, 791, 275 
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P.3d 12, 17 (Ct. App. 2012). To establish fundamental error, the defendant must show the 

alleged error violates one or more of the defendant’s unwaived constitutional rights, plainly 

exists without the need of additional information not contained within the appellate record, and 

affected the outcome of the proceedings. State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 

(2010). 

Alfaro’s assertion fails because he has not shown the error is clear in the record. A 

sentencing court may not impose a harsher sentence on a defendant for putting the state to its 

burden of proof and exercising the right to trial. State v. Kellis, 148 Idaho 812, 814, 229 P.3d 

1174, 1176 (Ct. App. 2010); Stedtfeld v. State, 114 Idaho 273, 276, 755 P.2d 1311, 1314 (Ct. 

App. 1988); State v. Regester, 106 Idaho 296, 299, 678 P.2d 88, 91 (Ct. App. 1984). A 

defendant must prove actual vindictiveness. Robbins, 123 Idaho at 532, 850 P.2d at 181; Baker, 

153 Idaho at 695, 290 P.3d at 1287. We look to the totality of the circumstances when reviewing 

a record for whether a sentence was imposed vindictively. Baker, 153 Idaho at 695, 290 P.3d at 

1287; State v. Brown, 131 Idaho 61, 72, 951 P.2d 1288, 1299 (Ct. App. 1998). Our scope of 

review under the totality of the circumstances is narrowly defined:

[W]e do not view the “totality of circumstances” rule as an invitation for an 

appellate court to weigh the sentence against the entire record and to treat the 

vindictiveness issue as merely a question of abuse of sentencing discretion. 

Rather, we recognize that vindictiveness is a more subtle, narrow question. It 

focuses upon the sentencing judge’s view of the defendant’s decision to plead not 

guilty. That view cannot be determined upon a single remark removed from 

context. The judge’s words and actions must be considered as a whole.

Regester, 106 Idaho at 300, 678 P.2d at 92. A disparity in sentencing among co-defendants in 

the same criminal activity does not make the harsher sentence per se excessive or an abuse of 

discretion. Stedtfeld, 114 Idaho at 276, 755 P.2d at 1314. 

As noted above, Alfaro was sentenced to a unified term of life, with twenty years 

determinate, on the murder conviction and five years determinate for each remaining count, with 

all sentences to run concurrently. In arguing the district court imposed a longer sentence in 

retaliation for his decision to go to trial, Alfaro focuses on the fact that Alaniz, who actually fired 

a weapon at the residence, only received a unified term of fifteen years, with six years

determinate. The “sole distinction,” between Alfaro and Alaniz, Alfaro contends, is that Alaniz 

elected to plead guilty and testify against Alfaro. He points out that in sentencing him, the 

district court opined that the plea bargained sentence of Alaniz and the other perpetrators did not 
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serve justice, but that the State had been forced into those agreements because Alfaro had 

exercised his right to a jury trial. Alfaro argues that none of the district court’s other rationales, 

including deterrence, justified the imposed sentence, and therefore, he asserts the district court 

sentenced him more harshly because he exercised his right to trial. 

Alfaro’s conclusion--that the district court imposed his sentence to punish him for 

exercising his right to trial--is not supported by the record. The disparity between Alaniz’s and 

Alfaro’s sentences was the result of the negotiated sentence reduction for Alaniz’s cooperation 

with the State in pleading guilty. It does not follow that the court’s intention in imposing 

sentence was to punish Alfaro for proceeding to trial. The district court explicitly recognized the 

disparity and expressed concern about how to reconcile it, but ultimately determined, based on 

the requisite sentencing objectives, that a twenty-year determinate sentence was appropriate for 

the murder conviction. Specifically, the court noted the protection of society was an overarching 

concern, deterrence required a longer sentence because a “message” needed to be sent to 

individuals in the community that such actions could not be tolerated, and it was a “heinous” 

crime that deserved significant retribution. Accord Baker, 153 Idaho at 696, 290 P.3d at 1288 

(holding Baker could not show plain error because the record did not demonstrate the district 

court based its sentence on Baker’s entry of an Alford3 plea; rather the court gave consideration 

to Baker’s broader failure to accept responsibility and callous attitude toward his offenses, which 

made him a danger to the public). The sentences imposed were based on proper statutory

considerations, not on a desire to punish Alfaro for proceeding to trial, and therefore, Alfaro has 

failed to show the district court committed fundamental error in imposing sentence. 

D. Cumulative Error

Finally, Alfaro contends that even if harmless individually, the errors alleged 

cumulatively deprived him of his due process right to a fair trial. In order to find cumulative 

error, this Court must conclude there is merit to more than one of the alleged errors and then 

conclude that these errors, when aggregated, denied the defendant a fair trial. Dunlap v. State, 

141 Idaho 50, 66, 106 P.3d 376, 392 (2004). Here, we did not find that any error occurred; thus,

the cumulative error doctrine is not applicable.

 

3 See North Carolina v. Alford, 400 U.S. 25 (1970). 
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III.

CONCLUSION

Alfaro has not shown the prosecutor committed misconduct in closing arguments. Nor 

has he shown the district court erred in denying his motions for a judgment of acquittal as there 

was sufficient evidence presented at trial for a reasonable jury to conclude beyond a reasonable 

doubt that Alfaro was the driver of the vehicle involved in the drive-by shooting that resulting in 

Chavez’s death. Alfaro has also not shown that the district court committed fundamental error 

by imposing a vindictive sentence; the district court based its sentence on the requisite statutory 

factors and not on Alfaro’s decision to proceed to trial. Alfaro’s judgment of conviction and 

sentences for aiding and abetting first degree murder, two counts of aiding and abetting 

aggravated assault, and aiding and abetting unlawful discharge of a firearm at a dwelling and his

sentence enhancement for infliction of great bodily injury are affirmed. 

Judge LANSING and Judge GRATTON CONCUR.