State Of Washington, Respondent V Kirk Hernandez, Jr., Appellant (Majority)

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FILED COURT OP APPEALS DIVISION II 2014 C1=C 16 MIS 8: 33 IN THE COURT OF APPEALS OF THE STATE OF WASHMT S N F \ 45111, BY DIVISION II No. 44771 -1 - II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION KIRK MICHAEL HERNANDEZ, JR., Appellant. LEE, J. — robbery. on A jury found Kirk Michael Hernandez, Jr. guilty of attempted first degree Hernandez appeals arguing that ( 1) the trial court erred by refusing to instruct the jury the lawful constitutionally use of force in defense overbroad, ( 3) the " of others, ( 2) the accomplice liability instruction is substantial step" jury instruction relieved the State of its burden of proof, and ( 4) the trial court erred by imposing legal financial obligations without determining Hernandez' s ability to pay. The trial court did not err by refusing to give the lawful use of force in defense of others instruction because lawful use of force in defense of others is not a defense to attempted robbery. Hernandez' s challenges to the accomplice liability statute and substantial step" jury instruction lack merit. And, we decline to address Hernandez' s challenge to his legal financial obligations. Finally, in his statement of additional grounds ( SAG) 1 Hernandez alleges that he received ineffective counsel claim fails. We affirm. 1 RAP 10. 10. assistance of counsel. Hernandez' s ineffective assistance of TON No. 44771 -1 - II FACTS In September 2012, Patrick Wade was drinking at the Hideaway in Vancouver, WA. He- was paying for all his drinks in cash because he had recently cashed his paycheck. When he was outside smoking, two Hispanic males, later identified as Hernandez and Rene Castillo, approached him and showed him a bag of methamphetamine. Wade told them he would think about it, but he did not purchase any methamphetamine at that time. A short time later, a Hispanic woman, later identified as Hernandez' s girlfriend Stephanie Torres, approached Wade. Torres stated that she was associated with Hernandez and Castillo, and she could sell him some methamphetamine. Wade agreed to buy $20 of methamphetamine from Torres. Wade and Torres left the Hideaway and walked across the street to perform the drug transaction. over a Hernandez punched Wade in the head, and Torres demanded that Wade nearby fence. empty his turned After the drug transaction was complete, Wade saw Hernandez and Castillo jump pockets. and walked But, Wade started backing away and then Hernandez, Castillo, and Torres away. Wade called 911 and reported the incident. Hernandez' s punch left a mark that hurt for a few days after the incident. The State charged Hernandez with one count of attempted first degree robbery as both a principle and an accomplice. At trial, Wade testified to the facts stated above. Torres also testified at trial. Her testimony was consistent with Wade' s up to the point she and Wade crossed the street. Torres testified that after she and Wade crossed the street, Hernandez and Castillo walked up and joined them. When the drug deal was complete, Wade reached out and groped her breast. When Hernandez saw Wade grope her breast, he shoved that she took any money from Wade' s pockets. 2 Wade back away from Torres. Torres denied No. 44771 - 1 - II Hernandez testified at trial. His testimony was also consistent with Wade' s up to the point when Wade left the bar street because he Wade grope with wanted Torres' s to Torres. keep He testified that he followed Wade and Torres across the an eye on of Proceedings ( RP) After the drug deal was completed, he saw Hernandez testified that when he saw Wade grope Torres he felt breast. disrespected, told Wade to " What the —keep Report Torres. at 239. your hand off my bitch," and then he hit Wade. 1B He denied attempting to take money from Wade and denied that Torres told Wade to empty his pockets. Hernandez requested that the trial court instruct the jury on the lawful use of force in defense of others. The trial court declined to give Hernandez' s proposed instruction. The trial court instructed the jury that: To convict the defendant of the crime of Attempted Robbery in the First Degree, each of the following elements of the crime must be proved beyond a reasonable doubt: 1) That between September 20, 2012 and September 21, 2012, the defendant or an accomplice did an act that was a substantial step toward the commission of Robbery in the First Degree; 2) That the act was done with the intent to commit Robbery in the First Degree; and 3) That the act occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. Suppl. Clerk' s Papers ( SCP) that strongly indicates Hernandez did at 45. The jury instructions defined " substantial step" as " conduct a criminal purpose and not object to either instruction. that is more than mere preparation." SCP at 43. No. 44771 -1 - II The jury found Hernandez guilty of attempted first degree robbery. The trial court imposed a standard range sentence. 1, 500 for "[ flees for The trial court also imposed legal financial obligations, including court appointed attorney and trial per diem." Clerk' s Papers ( CP) at 10. The trial court found that " the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein." . CP at 8. Hernandez did not object to either the legal financial obligations or the trial court' s finding that he had the present or likely future ability to pay legal financial obligations. Hernandez appeals. ANALYSIS LAWFUL USE OF FORCE IN DEFENSE OF OTHERS JURY INSTRUCTION A. Hernandez argues that the trial court erred by refusing to instruct the jury on the lawful use of force in defense 891 ( 2010), of others. We disagree. In State v. Lewis, 156 Wn. App. 230, 239, 233 P. 3d we held that the lawful use of force in self defense is not a defense to robbery because robbery does not require an intent to inflict bodily harm that can be negated by the lawful use of force. Hernandez seems to argue that, because he was charged with attempted first degree robbery, rather than a completed first degree robbery, there is an intent element that can be negated by the lawful use of force. Hernandez is mistaken. Attempted first degree robbery requires that the State prove that.Hernandez acted with the intent to are ( commit first degree robbery. RCW 9A.28. 020( 1). 1) the defendant committed the robbery and ( 2) in the The elements of first degree robbery course of the robbery the defendant No. 44771 - 1 - II inflicts bodily injury. RCW 9A.56. 200.2 Based on the reasoning that this court employed in Lewis, we see no reason to degree robbery does address attempted not require robbery any differently than robbery. that the defendant intend to inflict An attempted first bodily injury. Rather, the defendant had to intend to commit robbery and in the course of intending to commit robbery cause bodily injury. Like in Lewis, attempted first degree robbery does not require the specific intent to inflict bodily injury; therefore, there is no intent element that can be negated by a claim of lawful use of force. 156 Wn. App. at 239. And, to the extent Hernandez argues the defense of others is distinguishable from self defense, inflict we disagree. The purpose of the defense of lawful use of forceto negate the intent to bodily harm —does not change based on whether the force was used in defense of self or in defense of others. See RCW 9A. 16. 020( 3). Accordingly, we reject Hernandez' s claim that the trial court erred by refusing to instruct the jury on the lawful use of force in defense of others. 2 Robbery is defined as: A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear. RCW 9A.56. 190. 5 No. 44771 - 1 - II ACCOMPLICE LIABILITY STATUTE B. Hernandez argues that the accomplice liability statute is unconstitutional because it is overbroad and punishes protected speech. We have considered, and rejected, the argument that the accomplice liability statute is overly broad. In State v. Coleman, 155 Wn. App. 951, 960 -61, 231 P. 3d 212 ( 2010), the liability accomplice Division One' review denied, 170 Wn.2d 1016 ( 2011), Division One of this court held that instruction holding in State s v. was not unconstitutionally broad. And we explicitly adopted Ferguson, 164 Wn. App. 370, 376, 264 P. 3d 575 ( 2011), review denied, 173 Wn.2d 1035 ( 2012). Hernandez also argues that Coleman and Ferguson were wrongly decided because they did not apply the appropriate standard that the United States Supreme Court articulated in Brandenberg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 ( 1969). We disagree.3 We reject Hernandez' s argument and follow this court' s established precedent holding that the accomplice liability statute is not unconstitutionally broad. C. " SUBSTANTIAL STEP" INSTRUCTION Hernandez argues that the trial court' s instruction on the definition of "substantial step" relieved the State of its burden to prove all elements of the crime beyond a reasonable doubt. The trial court gave the jury the following instruction regarding a " substantial step ": A substantial step is conduct that strongly indicates a criminal purpose and that is more than mere preparation. 3 In Ferguson, we explicitly held that the accomplice liability statute is not unconstitutional because " it does not forbid the mere advocacy of law violation that is protected under the holding of Brandenburg." 164 Wn. App. at 376. 6 No. 44771 - 1 - II SCP at 43. Hernandez argues that the jury instruction relieved the State of its burden to prove, all elements of the crime corroborate[ s]," and beyond a reasonable because it uses doubt because it the term " criminal uses the term " indicate[ s]" rather than purpose" instead of "the crime." Br. of Appellant at 19 -20. As an initial matter, Hernandez failed to object to the " substantial step" jury instruction. Generally, a party may not raise an issue for the first time on appeal. RAP 2. 5( a). However, an appellant may raise an issue for the first time on appeal if the error is a " manifest error affecting a constitutional right." RAP 2. 5( a)( 3). An alleged error to a jury instruction may be a manifest error affecting a constitutional right that may be raised for the first time on appeal. State v. Stearns, 119 Wn.2d 247, 250, 830 P. 2d 355 ( 1992). But, "[ a] s long as the instructions properly inform the jury of the elements of the charged crime, any error in further defining terms used in the elements is not of constitutional magnitude." a definitional instruction — it Stearns, 119 Wn.2d at 250. Here, the challenged instruction is further defines the element of substantial step. Therefore, Hernandez may not raise a challenge to the " substantial step" jury instruction for the first time on appeal.4 D. LEGAL FINANCIAL OBLIGATIONS Hernandez claims that the trial court erred by imposing costs for his court- appointed attorney without making a finding that Hernandez has the present or future ability to pay. 4 Even if we were to address Hernandez' s claim on the merits, his claim would fail under our recent decision in State v. Davis, 174 Wn. App. 623, 635 -38, 300 P. 3d 465, review denied, 178 Wn.2d 1012 ( 2013). In Davis, we explicitly considered and rejected both of Hernandez' s arguments; requires specifically, Hernandez' s assertion that Workman, 90 Wn. 2d 443, 584 P. 2d 382 ( 1978), indicate" and that Roberts, 142 the jury instruction to use the word " corroborate" rather than " Wn.2d 471, 14 P. 3d 713 ( 2000), rather than criminal purpose. requires the jury instruction to state with particularity the crime App. at 636 -37'. Hernandez does not offer any argument 174 Wn. that we did not consider and reject in Davis. 7 No. 44771 - 1 - II Hernandez attempts to frame this issue as a violation of his right to counsel, but his argument belies this assertion. Hernandez is correct that the trial court may not impose court- appointed attorney costs unless it finds that the defendant has the present or future ability to pay. Fuller v. Oregon, 417 U. S. 40, 45, 94 S. Ct. 2116, 40 L. Ed. 2d 642 ( 1974); RCW 10. 01. 160( 3). But the trial court did find that Hernandez had the present or future ability to pay. Hernandez appears to argue that the trial court' s finding is not supported by substantial evidence. However, under State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492, review granted, 178 Wn.2d 1010 ( 2013), Hernandez may not raise a challenge to the trial court' s finding that he has the present or future ability to pay for the first time on appeal. And, as we explained in State v. Lundy, until 176 Wn. the State App. 96, 108, 308 P. 3d 755 ( 2013), Hernandez' s claim is not ripe for review attempts to collect the ordered legal financial obligations. Accordingly, Hernandez' s claim that the trial court erred by imposing court- appointed attorney costs is not properly before us, and we decline to consider it. E. SAG- INEFFECTIVE ASSISTANCE OF COUNSEL Hernandez alleges that he received ineffective assistance of counsel because his defense counsel breached the terms of his contract agreement with Clark County. Specifically, Hernandez argues that, under the contract, his defense counsel was not qualified to represent him on charges which are considered a " strike offense" under the Persistent Offender Accountability Act POAA).5 SAG at 13 - 14. Hernandez also alleges that his defense counsel had a conflict of interest 5 RCW 9. 94A.570, 030( 37). 8 No. 44771 -1 - II because, under the terms of his contract, his defense counsel would have been required to repay collected fees paid for handling a case for which his defense counsel was unqualified. Assuming, without deciding, that Hernandez' s contentions regarding trial counsel' s contract are correct, Hernandez' s claim lacks merit because his case is not a POAA case. Under RCW 9. 94A.570 " a persistent offender shall be sentenced to a term of total confinement for life without the possibility of release." A "persistent offender" is an offender who: a)( i) Has been convicted in this state of any felony considered a most serious offense; and ii) Has, before the commission of the offense under ( a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9. 94A.525; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted; or b)( i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; ( B) any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, assault of a child in the second degree, or burglary in the first degree; or (C) an attempt to commit any crime listed in this subsection ( 37)( b)( i); ii) Has, before the and commission of the offense under ( b)( i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)( i) of this subsection or any federal or out -of state offense or offense under prior Washington law that is comparable to the offenses listed in ( b)( i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under ( b)( i) of this subsection only when the offender was sixteen years of age or older when the offender committed the offense. A conviction for rape of a child in the second degree constitutes a conviction under (b)( i) of this subsection only when the offender was eighteen years of age or older when the offender committed the offense. 9 No. 44771 -1 - II RCW 9. 94A. 030( 37). persistent offender if A POAA case is a case in which the offender will be sentenced as a convicted of the offense charged. Here, Hernandez was not sentenced as a persistent offender; therefore, his case was not a POAA case. Hernandez' s ineffective assistance of counsel claim is predicated on the mistaken assertion that his case is a POAA case; therefore, his ineffective assistance of counsel claim fails. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will instead be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: 10

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