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Elizares v. State

2026-07-23

Authorities cited

Opinion

majority opinion

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed

Intermediate Court of Appeals

CAAP-XX-XXXXXXX

23-JUL-2026

07:56 AM

Dkt. 58 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

CALVIN ELIZARES, Petitioner-Appellant, v.

STATE OF HAWAI I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CASE NO. 2CPN-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER

(By: Nakasone, Chief Judge, Leonard and Hiraoka, JJ.)

Petitioner-Appellant Calvin Elizares (Elizares) appeals

from the May 7, 2024 Findings of Fact, Conclusions of Law and

Order Denying Petition to Vacate, Set Aside, or Correct Judgment

or to Release Petitioner From Custody (Order Denying Rule 40

Petition) entered against him by the Circuit Court of the Second

Circuit (Circuit Court).1 At the conclusion of a jury trial,

Elizares was convicted of, inter alia, Attempted Murder in the

First Degree (Attempted Murder).2

1

The Honorable Peter T. Cahill presided.

2

HRS § 705-500 (1993) states:

§ 705-500 Criminal attempt. (1) A person is

guilty of an attempt to commit a crime if the person:

(a) Intentionally engages in conduct which would

constitute the crime if the attendant

circumstances were as the person believes them

to be; or

(continued...)

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Although not properly identified as such, Elizares

appears to raise a single point of error on appeal, contending

that the Circuit Court erred in denying his April 29, 2023

Petition to Vacate, Set Aside, or Correct Judgment or to Release

Petitioner From Custody (Rule 40 Petition) because he received

ineffective assistance of counsel at trial.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we resolve

Elizares's assertion of error as follows:

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(...continued)

(b) Intentionally engages in conduct which, under

the circumstances as the person believes them to

be, constitutes a substantial step in a course

of conduct intended to culminate in the person's

commission of the crime.

(2) When causing a particular result is an element of

the crime, a person is guilty of an attempt to commit the

crime if, acting with the state of mind required to

establish liability with respect to the attendant

circumstances specified in the definition of the crime, the

person intentionally engages in conduct which is a

substantial step in a course of conduct intended or known to

cause such a result.

(3) Conduct shall not be considered a substantial

step under this section unless it is strongly corroborative

of the defendant's criminal intent.

HRS § 707-701 (1993) states:

§ 707-701 Murder in the first degree. (1) A person

commits the offense of murder in the first degree if the

person intentionally or knowingly causes the death of:

(a) More than one person in the same or separate

incident;

(b) A peace officer, judge, or prosecutor arising

out of the performance of official duties;

(c) A person known by the defendant to be a witness

in a criminal prosecution;

(d) A person by a hired killer, in which event both

the person hired and the person responsible for

hiring the killer shall be punished under this

section; or

(e) A person while the defendant was imprisoned.

(2) Murder in the first degree is a felony for which

the defendant shall be sentenced to imprisonment as provided

in section 706-656.

2

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Elizares argues that his trial counsel was ineffective

with respect to his defense to the Attempted Murder charge

because, in closing argument, trial counsel did not argue that

the State's evidence did not show that Elizares had the requisite

mens rea for Attempted Murder. Elizares relatedly argues that,

even though Elizares himself testified he "never even had a gun

. . ., Defense counsel should have argued that even though this

[testimony] is true, the State's evidence, even if believed by

the jury, did not show the requisite intent to kill."

To establish ineffective assistance of counsel in

Hawai i, a defendant must show "1) that there were specific

errors or omissions reflecting counsel's lack of skill, judgment,

or diligence" and "2) that such errors or omissions resulted in

either the withdrawal or substantial impairment of a potentially

meritorious defense." State v. Yuen, 154 Hawai i 434, 444, 555

P.3d 121, 131 (2024). To satisfy the second prong, the defendant

need only show a possible, rather than probable, impairment of a

potentially meritorious defense. Id. However, "Counsel's

assistance need not be errorless nor will it be judged

ineffective solely by hindsight." State v. Antone, 62 Haw. 346,

348, 615 P.2d 101, 104 (1980). "Defense counsel's tactical

decisions at trial generally will not be questioned by a

reviewing court." Id. at 352, 615 P.2d at 106; see also State v.

Adviento, 132 Hawai i 123, 150, 319 P.3d 1131, 1158 (2014)

(observing that, even where trial court has a duty to instruct

the jury on a potential defense, defense counsel has discretion

to determine whether to argue the defense during closing).

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

As recounted in the unchallenged findings of fact set

forth in the Order Denying Rule 40 Petition, the two complaining

witnesses testified, inter alia, that Elizares confronted them

with a hand gun and a shot gun, accused them of betraying him,

ordered them restrained, struck the female witness, and directed

someone to put them in the trunk of a car and take them out to

the pineapple fields. The female complaining witness testified,

inter alia, that Elizares pointed the weapons at them, told them

they were going to die, and this was their last day on earth,

prior to their being tied up with their mouths taped shut and put

in the trunk from which they later escaped. The male complaining

witness testified, inter alia, that Elizares "sort of" told him

he was going to die that night. After they were able to escape

from the trunk of the moving vehicle and the complaining

witnesses ran in different directions, Elizares found the male

and took him back to the shack where the incident began. They

did not catch the female.

Elizares testified at trial that Brian Wong (Wong) was

the one who was "ballistic" and "crazy" during the incident and

had been awake smoking crystal meth for days. He testified that

it was Wong who lifted a pistol, ordered the complaining

witnesses to be tied and taped, and struck the female. Elizares

stated that as Wong was about to drive away with the complaining

witnesses in the trunk, Elizares took his pistol away, emptied

it, placed it under the passenger, and did not know if Wong was

going to kill them or just trying to scare them.

Consistent with Elizares's testimony, trial counsel

argued that the evidence showed it was Wong who was responsible

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

for the incident, that he was "a beast," and "the center of drug

trafficking" in the community. Counsel argued at length that

neither complaining witness should be believed due to the

female's recent drug use, other involvement with drugs, the

male's lies to the police, their motivations to protect Wong, and

attacked their credibility noting, inter alia, their problematic

backgrounds. The defense strategy was clearly to attack the

credibility of the other witnesses and to urge the jury to

believe Elizares's testimony. As Elizares testified that it was

Wong, not him, that pulled a gun, scolded the complaining

witnesses, struck one, ordered them bound and gagged and thrown

in the trunk to be taken out to the pineapple fields, it was

clearly a tactical decision not to then argue, even if you

believe the complaining witnesses instead, the evidence does not

demonstrate the requisite intent to kill them.

We conclude that trial counsel was not ineffective for

not making a contradictory argument that would have undermined

Elizares's main defense theory as well as his credibility. We

will not second guess counsel's strategic choice to present a

single, cohesive argument to the jury. Viewed as a whole,

counsel's closing argument was consistent with Elizares's

testimony and the overarching defense presented throughout the

trial. We cannot conclude that counsel rendered ineffective

assistance by declining to advance an argument premised on facts

the defense otherwise denied.

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

For these reasons, the Circuit Court's May 7, 2024

Order Denying Rule 40 Petition is affirmed.

DATED: Honolulu, Hawai i, July 23, 2026.

On the briefs: /s/ Karen T. Nakasone

Chief Judge

Steven Slavitt,

for Petitioner-Appellant /s/ Katherine G. Leonard

Associate Judge

Gerald K. Enriques,

Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka County of Maui, Associate Judge for Respondent-Appellee

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