State Of Washington, Respondent V Jose Valencia-hernandez, Appellant (Majority)

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7`G i, ILD T APPEP';LG url 11 2014 VIAN 2j 9: 52 11N T0N L( T IN THE COURT OF APPEALS OF THE STATE OF WASHING DIVISION II No. 42897 -1 - II STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION JOSE VALENCIA- HERNANDEZ, aka JAIME JOSE LLAMAS, JAIME LLAMAS HERNANDEZ, I1 HUNT, J. Jose Valencia Hernandez appeals his sentence and jury convictions for first degree arson, possession of methamphetamine with intent to deliver while armed with a firearm, and first degree denied his motion surveillance videos; ( for continuance; ( a qualified expert, his request to testify denied his motion about the overruling his evidence s) request counsel' s objection; ( and ( 10) to sever significance of a statue of to impeach Detective Spencer Harris; ( 6) Hernandez' denied his ( Valencia - the 2) He argues that the trial court erroneously ( 1) counts; ( 3) admitted 4) allowed Detective Bill Sofianos, whom Valencia Hernandez asserts was not arguments; firearm. unlawful possession of a miscalculated is insufficient to to relocate commented custody Jesus Malverde; ( 5) denied on evidence officers; ( presented; ( 7) 8) rolled his eyes when 9) overruled his objection during the State' s closing rebuttal his sentencing support his range. convictions. We Valencia Hernandez also argues that affirm. No. 42897 -1 - II FACTS I. CRIMES A. Arson Just before 5 AM on March 5, 2010, Richard Cox called 911 to report a fire; he called back later to add Proceedings ( RP) that he had at 267. seen a " black SUV" leaving the scene at a high speed. 2 Report of When Deputy Jesse Henschel arrived at the scene, he saw ( 1) a Nissan Altima and a BMW engulfed in flames a few feet from the residence, which appeared to be in danger of catching fire; and ( 2) two men attempting to put out the fire. Henschel and Deputy Justin Messman found two partially melted gas cans and two plastic gas can caps at the scene. Messman later discovered that a nearby 7 -11 convenience store sold gas cans with labels and price tag stickers matching those on the gas can caps found at the scene of the fire. Sergeant Duncan Hoss and Deputy Robin Yakhour followed up by investigating this 7 -11 as a possible source of the fire -starting items. The 7 -11 store clerk, Bahadur Singh, told them he had sold two gas cans that morning, and the store manager, Harpreet Kaur, showed them a surveillance video of two Hispanic males purchasing two one -gallon gas cans, two V8 bottles, and a Bic lighter at 4: 06 AM: One wore a red jacket with white stripes on it and appeared to have a light brown. skin tone; the other wore a black puffy -ype jacket. Kaur later made a copy of this surveillance video, t which Yakhour picked up, marked with the case and victim' s names, and gave to Hoss, who logged it into evidence. Also on March 5, Hoss and Yakhour investigated a nearby AM / M store as another P possible source of the fire starting items. The store manager let Hoss run that store' s surveillance video, which showed ( 1) a dark colored Range Rover pulling into the AM / M store P 2 No. 42897 -1 - II around 4: 12 AM; and ( 2) two men matching the description of the men in the 7 -11 video, carrying one in a red coat with white stripes on it and the other wearing a black, puffy type gas cans: jacket, and boots. Hoss copied the relevant portions of the surveillance video onto a computer thumb drive, which he later copied onto a CD that he entered into evidence. A few days later, Karissa Courtway, who had been at her boyfriend Jonathan TapiaFarias' s the residence, scene the fire, told Yakhour that ( 1) of she used to date Valencia- Hernandez, ( 2) suspected he had caused the fires because one or two months earlier he had told her he wanted to light Tapia Farias' s car on fire, and ( 3) Valencia- Hernandez lived in Meadow Wood Apartments and owned a Range Rover. Hoss went to the Meadow Woods apartment where Valencia- Hernandez allegedly lived and saw a dark- colored Range Rover parked outside the unit, within 1000 feet of a school bus zone. Hoss obtained and executed a search warrant at Valencia- Hernandez' s apartment to collect evidence of the earlier arson. Outside the apartment, the officers found work boots matching those worn by the black-puffy-jacketed suspect in the convenience stores' surveillance videos. Inside the apartment, Hoss found a red jacket matching the red jacket of the man in the surveillance videos, a gun case, a receipt from Portland Tire and Wheels made out to " Jose Valencia "1 at that Meadow Woods Apartment address, a glass bowl containing what appeared to be methamphetamine, methamphetamine test a kit, glass a smoking digital pipe, scale, a ziplock clear bags, plastic packaging bag material, containing a suspected methamphetamine, a statue of Jesus Malverde with a photograph of Valencia Hernandez on the 16RPat885. 3 No. 42897 -1 - II base the of three firearms ( two statue, generally multiple magazines ... of which contained 2 of rifle caliber, " loaded magazines), a bag with another bag containing both handgun and rifle magazines, a temporary identification card bearing the name Jose Valencia Hernandez, and a Costco a picture of card with Hernandez Valencia 3 telephone bill to " Jose Valencia, " addressed on the back. Sofianos later discovered a inside the kitchen, a photograph of Valencia- Hernandez bare -chested with handguns tucked in his belt, and several vacuum sealed packages containing " large 4 shards " of methamphetamine5 in a hole in the ceiling. Hoss, Sofianos, and Detective Steven Fox investigated the Range Rover that had been parked outside a 7 -11 plastic Hernandez' Valencia - two Bic lighters, bag, gasoline / oil mix" s apartment. on the other side. and gas 3 RP at Inside they found two empty V8 juice bottles, can tags that 447. said " gasoline" on one side and A DNA test later found a match between swabs collected from the inside of one of the V8 juice bottles and Valencia Hernandez. B. " Sometime later in March, Tapia Farias called Courtway Courtway from jail Hernandez had kidnapped her Kidnapping" and on wanted went with Hernandez to Oregon. Valencia - When Farias that ValenciaMarch 22, she told Tapia to take her to California. A few months later, Valencia- Hernandez was arrested and booked into Clark County jail on June 10, 2010. 27RPat921. 3 10 RP at 1354. 411 RP at 1368. 5 One package weighed about 1. 8 pounds; another weighed just under 1 pound. A Washington State Patrol Crime Lab later tested these drugs and found them positive for methamphetamine. i No. 42897 -1 - II II. PROCEDURE The State substance with controlled of a possession domestic count Valencia- Hernandez charged first degree arson ( count firearm ( counts 7), 3 - 5), felony intimidating harassment ( possession of a 2), first degree unlawful 6), unlawful imprisonment count a witness ( count 1), ( count methamphetamine intent to deliver violence) ( count 9). with 8), and tampering with a witness Valencia- Hernandez remained in custody throughout his trial. A. Pretrial Motions Having already continued the trial date seven times, the trial court granted ValenciaHernandez' s September 22, 2011 Hernandez filed to a motion request for an October 31 trial date. On October 12, Valencia- sever counts, which the trial court later denied. On October 27, the trial court reminded the parties that the trial would go forward on October 31; and both agreed. Three days before trial, however, Valencia Hernandez objected to the October 31 trial date and again moved to continue, stating he needed the time to complete witness interviews. The trial court denied this motion. Trial commenced on October 31, at which time Valencia Hernandez renewed his motion to continue, which the trial court denied as untimely. Valencia- Hernandez also asked the trial court to reposition the custody officers, arguing that their presence created an aura that ValenciaHernandez " is an extremely dangerous character." 1 RP at 65. The trial court also denied this request. B. Trial The State' s witnesses testified to the facts previously described, with the exception of Courtway, who recanted her earlier kidnapping report to the sheriff' s office and testified instead No. 42897 -1 - II that she had California childhood up the story. made with Courtway Hernandez; ( 2) Valencia - also testified that ( 1) she had agreed to go to on the way to California, they had stayed with his friend Saul Carrillo in Eugene, Oregon; ( 3) she had " freaked 6 out " when they drove through Eugene and asked to be taken home; and ( 4) Valencia- Hernandez had dropped her at a car dealership and given her $ 9500 in cash. 1. Surveillance videos Valencia- Hernandez objected to the State' s offer of the surveillance videos from the 7 -11 and AM / M stores, arguing that they lacked a proper foundation for admission into evidence. P The State then mistrial, presented arguing that ( 1) four witnesses who laid foundations. Valencia- Hernandez moved for a the surveillance videos lacked foundation, and ( 2) the trial judge had appeared to roll [ his] eyes" when Valencia- Hernandez objected to admission of the surveillance videos. 3 RP eyes, asked at 474. The trial judge expressed surprise because he did not recall rolling his Valencia- Hernandez' s counsel to check " the logs, "8 and later instructed everyone in the courtroom, including the jury, to disregard people' s body language. 2. Jesus Malverde statue; attempted impeachment Detectives Harris and Sofianos testified about the relevance of finding the Jesus Malverde statue at Hernandez' Valencia - s apartment. During his years of experience, executing 614 RP at 1681. 7 At the start of trial, out of the jury' s presence, the trial judge had mentioned he had sciatica ( a fidgeting, standing up, and grimacing facial expressions. He later explained to the jury that his grimacing and fidgeting was not a comment on what the pinched nerve) that could lead to attorneys did in court. s 3 RP at 474. on No. 42897 -1 - II search warrants, and extensive training on clues to look for in narcotics trafficking, Sofianos had learned that Jesus Malverde was known as the " patron saint" of drug smugglers in Latino drug sub -culture and that Jesus Malverde was a narcotics trafficking clue. 10 RP at 1225. During recess, Valencia -Hernandez stated his intention to impeach Harris about an IAD "9 investigation that had resulted in his suspension " for failing to deliver certain required 13 RP information to the department." documented actual suspension at for [ Harris' Valencia Hernandez .represented that he had 1628. s] failing to be truthful to the department "; but when the trial court asked for this documentation, Valencia Hernandez responded that he could not prove it up by 13 RP extrinsic evidence." at 1630. The trial court denied the impeachment request. 3. Recorded jail conversation The State played for the jury the recorded jail cell conversation between Courtway and Farias. Tapia - jury that court Because part of the recording appeared unintelligible, the trial court ( 1) told the although the transcript of the had heard, " It' s with you, it' s not a good what you recorded conversation read, " deal," 15 RP heard that' s the at 1835; evidence, it' s and ( not 2) that It' s not a stressed big to the printed page, deal," the trial jury, " I reinforce okay ?" 15 RP at 1835. Valencia- Hernandez did not object. 4. Motion to dismiss; verdict Valencia Hernandez later moved to dismiss the charges of intimidating a witness and tampering with a witness on grounds that the State did not present evidence of his having attempted to change or to influence Courtway' s testimony or of his knowledge that Courtway 9 The record does not state the basis for this acronym. 7 No. 42897 -1 - II would serve motion as a witness. to dismiss the The trial court dismissed the intimidating charge but denied the tampering charge ( count 9). The State withdrew the felony harassment charge ( count 6). The tampering of jury acquitted Hernandez Valencia - with a witness ( count first degree arson ( count intent to deliver 9). 1), unlawful imprisonment ( count 7) and It convicted him of the remaining counts, finding him guilty possession while armed with a of firearm of a controlled substance methamphetamine with and within 1000 feet of a school zone ( count 2), and first degree unlawful possession of a firearm (counts 3, 4, and 5). C. At sentencing, the State degree arson ( count 1), based Sentencing recommended ( 1) 36 to 48 months of incarceration for first on an offender score of three; ( 2) 152 to 184 months for his level three possession of a controlled substance with intent to deliver methamphetamine ( count 2), which recommendation included an additional 60 months for having committed this crime while armed with a firearm and an additional 24 months for having committed this crime within 1, 000. feet of a school zone; and ( 3) 31 -41 months for first degree unlawful possession of a firearm counts 3 to 5), based recommendation distribute is a for on an offender score of count Class B, not a three. possession of methamphetamine with intent to 2, arguing that ( 1) Class A, Valencia-Hernandez objected to the State' s felony; ( 2) thus, the firearm enhancement should be 36, not 60, months; and ( 3) consequently, the sentencing range should be 128 to 160 months. The State also recommended that Valencia Hernandez receive 171 days credit for time served. Hernandez did Valencia - not propose a different credit for time served. No. 42897 -1 - II The trial months for for counts every court count 3, 4, the 5, with Felony sentences concurrent 2 ( including the and portion of imposed special firearm 171 days credit Judgment and for of 48 months in prison for and school zone enhancements), time Sentence." served. count 1, 160 and 41 months Valencia Hernandez now appeals Spindle ( Notice of Appeal). ANALYSIS I. CONTINUANCE Valencia Hernandez argues that the trial court abused its discretion in denying his motion to continue the October 31 trial date because this ruling rendered him unable to complete witness interviews before trial. We disagree. A defendant is App. not " entitled to a continuance as a matter of right." 452, 457 -58, 853 P. 2d 964 ( 1993), review State v. Early, 70 Wn. denied, 123 Wn.2d 1004 ( 1994). Whether to grant continuance is discretionary with the trial court, whose decision we will not overturn unless the trial court abused that discretion. State v. Downing, 151 Wn.2d 265, 272, 87 P. 3d 1169 2004). Valencia- Hernandez concedes that he had eight and a half months to prepare for trial. We further note that ( 1) the trial court had already granted seven continuances; and ( 2) a month before trial, at a September 22 hearing, Valencia Hernandez did not object to the October 31 trial date, did not request an alternate trial date, and pushed the trial court to hear the case sooner. Instead, he waited until only three days before trial to ask for this continuance to interview witnesses. We hold that the trial court did not abuse its discretion in denying this last minute motion for continuance. we No. 42897 -1 - II II. SEVERANCE Valencia- Hernandez next argues that the trial court erred in denying his motion to sever counts because none of the charges shared a single element of proof. Because the evidence for various counts was cross admissible and Valencia- Hernandez fails to show prejudice from their joinder, we hold that the trial court did not abuse its discretion in denying his motion for severance. Washington law does of favor separate trials. State v. Dent, 123 Wn.2d 467, 484, 869 We review a trial court' s decision on a motion for severance for manifest P. 2d 392 ( 1994). abuse not discretion. State v. Bythrow, 114 Wn. 2d 713, 717, 790 P. 2d 154 ( 1990). Defendants seeking severance must show that a trial involving multiple counts would be so manifestly prejudicial as to the outweigh concern for judicial economy. Bythrow, 114 Wn.2d at 718. To determine whether the potential prejudice requires severance, the trial court considers four factors: ( 1) the strength compartmentalize separately, and ( the 4) of evidence, ( the cross State' the 3) s evidence on each count, ( 2) the jury' s ability to the ability to instruct the jury to consider each count admissibility of evidence among various counts. State v. MacDonald, 122 Wn. App. 804, 815, 95 P. 3d 1248 ( 2004). Valencia Hernandez argues that ( 1) other than Valencia- Hernandez' s identity, the remaining counts that went to trial did not share elements of proof; (2) except for the jacket and boots, the evidence was not cross admissible; ( 3) the kidnapping evidence was weak; ( 4) the jury' s exposure to all charges during a single trial prejudiced him; and ( 5) repetition of witnesses hampered judicial economy. We disagree. 10 No. 42897 -1 - II First, Valencia Hernandez cites no authority for the proposition that the charges must share elements other of proof besides his identity. Second, evidence was cross admissible to establish Valencia- Hernandez' s identity and mens rea for multiple counts; and a majority of the same witnesses testified about more than one count, such as Courtway, Sofianos, and Hoss. Third, the trial court properly instructed the jury to compartmentalize the evidence and to decide 1; each count each separately count. for example, You must decide control your verdict on any prejudicial as to show that outweigh instruction 3 count separately. Clerk' other count." Hernandez fails to Valencia - manifestly each jury trying the s stated, " A separate crime is charged in Your verdict on one count should not Papers ( CP) at 405 ( Instruction No. 3). these " three disparate concern 10 cases " for judicial economy. Fourth, together was so We hold that the trial court did not manifestly abuse its discretion in denying the motion to sever. III. CUSTODY OFFICERS IN COURT Valencia-Hernandez also argues that the trial court erred in refusing his request to have his two custody sit officers in location in the a more neutral courtroom." We will not review issues that a party inadequately briefs or treats in passing. State v. Thomas, 150 Wn.2d 821, 86869, 83 P. 3d 970, abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 ( 2004). argument merit judicial contends that ( 1) is insufficient to Passing treatment of an issue or lack of reasoned consideration. State v. Johnson, 119 Wn.2d 167, 171, 10 Br. of Appellant at 22. 11 Valencia Hernandez during his trial, two heavily armed officers wearing bulletproof vests, holding guns and tasers, sat directly behind him, one to each side; and ( 2) this created the impression that he was highly dangerous, protected presumption of innocence. 11 which violated his constitutionally No. 42897 -1 - II 829 P. 2d 1082 ( 1992). and citation Generally we will not review an assignment of error without argument to authority. State v. Cox, 109 Wn. App. 937, 943, 38 P. 3d 371 ( 2002). Contrary to Hernandez fails to support his factual assertions with citation to the RAP 103( a)( 6), Valencia record and fails to support his legal argument with citation to authority in his 12 appellant' s brief. Therefore, we do not further consider this argument. IV. EVIDENCE Hernandez Valencia - the trial next challenges several of court' s evidentiary rulings. The admissibility of evidence is within the sound discretion of the trial court, which decisions we review with great deference under a manifest abuse of discretion standard. State v. Ureen, 143 Such is not the case here. Wn.2d 923, 932, 26 P. 3d 236 ( 2001). A. Surveillance Videos Valencia- Hernandez argues that the trial court erred in admitting the 7 -11 and AM / M P surveillance videos over his objection and without proper foundation. We agree with the State that it properly authenticated both the videos and that the trial court did not abuse its discretion in allowing the videos into evidence. ER 901 requires proper authentication of videos as a condition precedent to admissibility. For authentication purposes, courts treat video tape recordings like photographs, which Washington courts have a policy of liberally admitting. State v. Newman, 4 Wn. App. 588, 593, 484 P. 2d 473, 12 review denied, 79 Wn.2d 1004 ( 1971). To lay a proper foundation for admitting a Valencia Hernandez' s citation to Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct 1340, 89 L. Ed. 2d 525 ( 1986) in his reply brief, ( in response to the State' s citing respondent), comes too late. We do not consider arguments raised for this case in its brief of the first time in a reply brief. See Johnson v. Phoenix Assur. Co. ofNew York, 70 Wn.2d 726, 729, 425 P. 2d 1 ( 1967). 12 No. 42897 -1 - II video tape recording, some witness, not necessarily the photographer, must be able ( 1) to show when, where, and under what circumstances the video tape recording was taken; and ( 2) to testify that the video accurately portrays the subject illustrated. State v. Tatum, 58 Wn.2d 73, 75, 360 P. 2d 754 ( 1961). If these two criteria are met, the video tape recording is admissible at the trial court's discretion. Newman, 4 Wn. App. at 593. 1. 7 -11 video Multiple witnesses testified about the circumstances under which the video recording was taken and that the copy offered at trial accurately portrayed the subject illustrated. Bahadur Singh testified that he was the store clerk in the 7 -11 video who sold two gas cans to two men on. March 5, Store 2010. surveillance videos on a manager daily Harpreet Kaur testified that ( 1) basis in the regular course of this 7 -11 took and kept business, ( 2) she had viewed the surveillance video with Deputy Robin Yakhour and had made a copy for her, and ( 3) the video accurately depicted the front clerk area of the store and what she had viewed with Yakhour. Yakhour testified that she had picked up a copy of the video from the 7 -11, put it in a CD case on which she had handwritten the case name and victim' s name, and given the copy to Sergeant Duncan Hoss. And Hoss testified that he had watched the original 7 -11 surveillance video and that State' s exhibit 134 was an accurate depiction of that video and of the copy Yakhour had given the him 7 - 11 and which video ( he had logged into State' s exhibit evidence. We hold that the State properly authenticated 134) and that the trial court did not abuse its discretion in admitting it into evidence. 13 No. 42897 -1 - II 2. AM / M video P Sergeant Hoss testified that AM/PM run the station; ( on the morning of March 5, 2010, ( 1) he had gone to the 2) the store manager had escorted him to the backroom and shown him how to surveillance video; ( 3) he had personally reviewed the surveillance video and observed two men in the video carrying gas cans, which men matched the general description of the men in the 7 -11 video; ( 4) he had copied this portion of the surveillance onto his thumb drive and later copied his thumb drive onto a CD, which he entered into evidence; and ( 5) State' s exhibit 133 accurately depicted the that the State properly surveillance video authenticated he had the AM/PM viewed at video ( State' P the AM / M s exhibit station. We hold 133) and that the trial court did not abuse its discretion in admitting it into evidence. B. Detective Sofianos' Expert Testimony Valencia Hernandez argues that the trial court erred in allowing Detective Bill Sofianos to testify as an expert about the drug -culture significance of Jesus Malverde because Sofianos admitted on cross -examination that he was not an expert and because his testimony was highly prejudicial. Sofianos did We disagree. At the outset, we note that Valencia- Hernandez misreads the record: not admit on cross that he was not an expert. Thus, we focus our analysis on the prejudice part of Valencia- Hernandez' s argument. We review a trial court' s decision to admit expert testimony for abuse of discretion. Tatum, 58 Wn.2d whether ( 1) at 76. The admissibility of expert testimony under ER 702 depends on the witness qualifies as an expert, ( theory generally accepted helpful to the trier of in the fact. State v. scientific Allery, 2) the opinion is based upon an explanatory community, and ( 3) the expert testimony will be 101 Wn.2d 591, 596, 682 P. 2d 312 ( 1984). 14 To qualify No. 42897 -1 - II as an expert, a witness need not possess academic credentials; practical experience may suffice. Harris by v. Groth, 99 Wn.2d 438, 449, 663 P. 2d 113 ( 1983). virtue of knowledge, skill, experience, training, A witness may qualify as an expert or education. ER 702; Harris, 99 Wn.2d at 449. The trial court must evaluate both the relevance of the testimony and its prejudicial impact, excluding unnecessarily or cumulative unfairly prejudicial testimony. State v. Petrich, 101 Wn.2d 566, 575, 683 P. 2d 173 ( 1984). 13 The record shows that Sofianos possessed the requisite practical experience, knowledge, skill, and training to testify about Jesus Malverde. Sofianos' knowledge of Jesus Malverde stemmed from his experience with Latino drug subculture and extensive training on clues to look for in narcotics trafficking, such as Jesus Malverde. Sofianos testified that he had executed search warrants that were consistent with his training and knowledge of Jesus Malverde. Sofianos had also trained in narcotics investigations through the Drug Enforcement Agency, the El Paso Intelligence Center, " ATF ", and the Coast Guard, to name a few. 11 RP at 1373. Sofianos provided the trial court with supplemental reading material about Jesus Malverde, to which Valencia- Hernandez did not object. We hold that Sofianos qualified as an expert in the significance of Jesus Malverde in narcotics investigations. 13 Abrogated on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P. 2d 105 ( 1988). 15 No. 42897 -1 - II We the trial prejudice, 14 hold that Sofianos' also court testimony was specifically limited the not scope unduly of prejudicial. Sofianos' To minimize testimony about Jesus Malverde to the specific purpose of supporting the identity and intent elements at issue. Consistent with this limitation, the State used the Jesus Malverde shrine evidence sparingly, keeping within limits. the trial court' s The State also proved identification and intent with an array of other evidence, such as surveillance equipment, police scanner, digital scale, packaging materials, bags of methamphetamine, a methamphetamine testing kit, and three functional and loaded firearms, all discovered inside Valencia- Hernandez' s locked bedroom. The bedroom also contained a Washington identification card and a Costeo card bearing Valencia- Hernandez' s name and photograph, and a red jacket that matched the jacket worn by Valencia Hernandez, which also matched the suspect in the 7 -11 and AM / M P surveillance videos. In light of this other evidence and the trial court' s limitations on Sofianos' Jesus Malverde testimony, we hold that this latter testimony did not significantly prejudice or impact the outcome of the case to warrant reversal. 14 Valencia Hernandez also argues that Sofianos' testimony, coupled with information that Jesus was not accepted by " any church," branded Valencia Hernandez as a drug dealer with Malverde for no respect testimony: rather, as the he religion. Br. of Appellant at 24. Valencia- Hernandez mischaracterizes Sofianos' by any church; T]hough not recognized as a saint by any churches, he' s commonly referred to 11 RP at 1384 ( emphasis added). of drug trafficking." Sofianos did not testify that Jesus Malverde said, "[ saint Vol was " not accepted" No. 42897 -1 - II C. Recorded Jailhouse Conversation Valencia Hernandez argues that the trial court violated his constitutional rights and " ER 605( 4) " 15 by impermissibly commenting on the jailhouse recording of the conversation between Courtway and Farias Tapia - by providing his own interpretation of what Courtway said. But Valencia Hernandez makes no reference to the record to support this assertion, contrary to RAP 10. 3( a)( 6); nor does the record before us show what portion of the recorded conversation the trial court played for the jury. Because Valencia- Hernandez neither cites nor provides " those portions the of verbatim contrary to RAP 9. 2( b), the of proceedings report necessary to present the issues raised on 16 review, " we cannot adequately evaluate the context in which the trial court made 17 challenged comment. Accordingly, we do not further consider this argument. V. REQUEST To IMPEACH DETECTIVE HARRIS Valencia- Hernandez next argues that the trial court erred in' denying his request to impeach Detective Harris Appellant at evidence of 24. Br. of his suspension for a breach of Department policy." Br. of This argument fails because Valencia- Hernandez did not proffer foundational Detective Harris' Detective Harris 15 with with Appellant at the " s actual suspension. documented 26. There is no such " When Valencia- Hernandez asked to impeach suspension," ER 605 ( 4) "; the trial court required, " Then bring ER 605 addresses the competency of a judge as a witness at trial. 16 RAP 9.2( b). 17 Similarly, we lack an adequate record on which to decide whether to accept the State' s concession that the trial court improperly commented on the evidence. The State, however, rebuts any presumed prejudice by demonstrating from the record that no prejudice could have resulted. State v. Levy, 156 Wn.2d 709, 723, 132 P. 3d 1076 ( 2006). 17 No. 42897 -1 - II me, bring me the information, and I don' t mean some article from the Columbian, before I' ll let it in." 13 RP Hernandez did I can' t, I can' t at 1630. Despite claiming to have the actual documented suspension, Valencia- not produce such prove it up by documentation; instead, his extrinsic evidence." counsel said, " Well, Judge, I mean, 13 RP at 1630. Admission of extrinsic evidence of a witness' s character may be allowed, in the court' s discretion. ER 608. Here, the trial court asked for documentation of the alleged suspension that Hernandez Valencia - wanted it. to use to impeach Harris. But Valencia- Hernandez did not provide We hold, therefore, that the trial court did not abuse its discretion in denying Valencia- Hernandez' s request to impeach Harris with this unsupported alleged misconduct. VI. MISTRIAL Valencia Hernandez Amendment argues that the trial court denied his Sixth and Fourteenth rights18 by refusing to grant a mistrial after the judge rolled his eyes and gave a look of surprise while ruling on Valencia- Hernandez' s motion to strike the convenience store surveillance videos. to legal authority to consider this But Valencia- Hernandez' s Brief of Appellant cites neither to the record nor support this assertion, contrary to RAP 103( a)( 6). Thus, we do not further 19 argument. 18 U. S. CONST. amends. VI, XIV. 19 Even if we considered the merits of Valencia Hernandez' s argument, he does not show that the trial court abused its broad discretion in refusing to grant a mistrial and instead, electing to instruct the jury (and everyone in the courtroom) to disregard his body language. 18 No. 42897 -1 - II VII. CLOSING ARGUMENT Valencia Hernandez argues that the trial court erred in preventing him from objecting fully during refus[ ing] citation to the State' allow to the s rebuttal him to record to closing make a support this full argument Br. record." argument, and of by " cut[ Appellant ting] him off sharply and at contrary to RAP 10. 3( 29. But he provides no 6). Accordingly, we do a)( not further consider this argument. VIII. SENTENCING Valencia -Hernandez argues that the trial court erred in accepting the State' s proposed sentencing range by ( 1) elevating count 2; possession of methamphetamine with intent to deliver, to a class A felony; and ( 2) failing to give him proper credit for time These arguments served. fail because the trial court properly applied sentencing enhancements and sentenced ValenciaHernandez within the standard range and gave Valencia- Hernandez proper credit for time served. A. Standard /Scope of Review A defendant may appeal a standard range sentence only if the sentence ( 1) fails to comply with the procedural constitutional v. issue. 21 requirements State v. of the " Sentencing 20; Reform Act ( SRA) " or ( 2) raises Osman, 157 Wn.2d 474, 481 -82, 139 P. 3d 334 ( 2006) ( citing Mail, 121 Wn.2d 707, 711 - 13, 854 P. 2d 1042 ( 1993)). a State To appeal under this first criterion, the defendant must show that the sentencing court failed to follow a duty to follow some specific 20 RCW 9. 94A.585. 21 Valencia- Hernandez raises no sentence -related constitutional issues. 19 No. 42897 -1 - II SRA procedure. Absent such a showing, the clear rule of RCW 9. 94A.585 applies and- appeal of a standard range sentence is not allowed. Mail, 121 Wn.2d at 712. B. Possession of Methamphetamine with Intent To Deliver While Armed with Firearm More specifically, Valencia Hernandez argues that the trial court erred in elevating his possession of methamphetamine with intent to distribute to a class A felony, instead of a class B felony, thus, increasing his sentencing range by 48 months. We disagree. RCW 9. 94A.518 felony provides offense under chapter Ammonia with intent to methamphetamine ... 9. 94A. 517' seriousness s" seriousness level " III" drug offenses include: "[ a] ny 69. 50 "; " Possession of Ephedrine, Pseudoephedrine, or Anhydrous manufacture methamphetamine," someone under 18 "; delivery by a person "[ o] ver ufacture of methamphetamine." and "[ m] 18" of RCW Drug Offense Sentencing Grid" provides that an offender score of 3 to 5 with a level 9. 94A. 533( 6) to that 23 sentence range. of "III" has a sentence range of " 68+ to 100 months" of confinement.22 RCW adds an additional school zone enhancement of 24 months to the standard Under RCW 9. 94A.533( 3)( a), committing a felony while armed with a firearm adds five years to the standard sentence range for any Class A felony or a felony with a statutory maximum sentence of at least 20 years. 22 The legislature amended RCW 9. 94A.517 in 2013. LAWS of 2013, ch. 14, § 1. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. 23 The legislature amended RCW 9. 94A. 533 in 2011, 2012 and 2013. LAWS of 2013, ch. 270, § 2; LAWS of 2012, ch. 42, § 3; LAWS of 2011, ch. 293, § 9. The amendments did not alter the statutes in any way relevant to this case; accordingly, we cite the current version of the statute. 20 No. 42897 -1 - II The jury returned special verdicts finding that Valencia Hernandez ( 1) had used a firearm in committing a Violation of the Uniform Controlled Substances Act (VUCSA)24; and ( 2) had VUCSA this committed 1000 feet within violation of a school zone. His conviction for possession of a controlled substance with intent to deliver methamphetamine while armed with a firearm fit 68 within seriousness months to 100 months" level " III". With an offender score of 3, the sentencing range of RCW 9. 94A.517 conformed with and RCW 9. 94A. 518. CP at 542. The school zone and firearm sentencing enhancements added 24 months and 60 months, respectively, to the standard Hernandez' Valencia - s sentence range sentence of range for count 68 - 100 months; 2 totaled 152 -184 with these enhancements, months of confinement. The trial court, therefore, did not err in sentencing Valencia Hernandez to 160 months for count 2. C. Credit for Time Served For the first time on appeal, Valencia- Hernandez challenges the amount of credit the trial court gave him for time appeal unless v. it is served. Generally, a party cannot raise an issue for the first time on a " manifest error Munguia, 107 Wn. App. affecting a constitutional right." 328, 340, 26 P. 3d 1017 ( 2001). RAP 2. 5( a). See also State This exception to the general rule does not automatically mandate review whenever a criminal defendant identifies some below. State v. McFarland, 127 Wn.2d 322, 333 -34, 899 P. 2d constitutional issue 1251 ( 1995). Rather, the appellant must show actual prejudice in order to establish that the error is " 24 manifest." not raised McFarland, 127 Wn.2d at 333. Valencia- Hernandez fails to meet these tests. RCW 69. 50. 401 and RCW 69. 50. 435. The legislature amended RCW 69. 50. 401 in 2013. 19. The amendment did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. LAWS of 2013, ch. 3, § 21 No. 42897 -1 - II Valencia- Hernandez fails to show that the alleged error is " manifest." At the sentencing hearing, the State recommended that Valencia- Hernandez receive 171 days credit for time Not only did Valencia -Hernandez fail to propose a different number of days of credit served. below, but also he fails to establish actual prejudice on appeal in that he fails to show on the record before us that he was to entitled additional credit days. Accordingly, we do not further consider this issue. IX. STATEMENT OF ADDITIONAL GROUNDS In Valencia- Hernandez' State erred in " 25 deviating " s Statement from the of standard Additional Grounds ( SAG), he asserts that the sentencing range because ( 1) the State did not present sufficient evidence to support his convictions, and ( 2) the trial court failed to issue a Stipulated Agreement" to Grounds ( SAG) convict imposed him at 3. outside imposing support an " exceptional sentence." Statement of Additional Valencia- Hernandez' s assertion that the jury lacked sufficient evidence to the [ sentencing] standard range sentence. SAG guidelines" at 3. has no bearing on the correctness of the Thus, we do not further address this point. Similarly, his challenge to an " exceptional sentence" without a " stipulated agreement" is 26 unsupportable. Not only is there no such rule requiring a " stipulated agreement" to justify an exceptional sentence, but also the trial court here did not impose any exceptional sentences. Thus, we do not further consider this point. 25 Statement of Additional Grounds ( SAG) at 3. 26 We first note that Valencia- Hernandez' s sentence was within the standard range, not an exceptional" 9. 94A.480), judgment sentence. which has and sentence SAG no at 3. bearing Second, he cites RCW 9. 94A. 105 ( now recodified as RCW on his document to the " claims: caseload requiring a stipulated agreement. SAG at 3. 22 Instead, this statute addresses delivery of a forecast council "; it has nothing to do with No. 42897 -1 - II We affirm Valencia Hernandez' s convictions and sentences. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. J. 23 I -`/

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