State Of Washington, Respondent V. Jerro Dagraca And Corey Young, Appellants (Majority)

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FILED COURT OF APPEALS DIVISION ii 2014 AUG 26 AN U. 35 SP E WA TON IN THE COURT OF APPEALS OF THE STATE OF WASHING DIVISION II No. 43358 -3 -II STATE OF WASHINGTON Respondent, v. UNPUBLISHED OPINION JERRO DE JON DAGRACA, Appellant. Consolidated with No. 43365 -6 -II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION COREY DUAWAYN YOUNG, Appellant. HUNT, J. Jerro De Jon DaGraca and Corey Duawayn Young appeal their jury convictions and sentences for kidnapping and robbery, for which Young' s sentences include firearm enhancements. Young also appeals his separate conviction and sentence for first degree unlawful possession of a court erred firearm. in ruling that the Both DaGraca and Young ( Defendants) argue that the trial kidnapping was not " incidental to the ongoing 1 armed robbery. " Young separately argues that ( 1) the prosecutor committed misconduct by questioning him about a bullet located in the pocket of a red and black jacket that he wore during the crimes, and ( 2) his counsel was 1 Br. of ineffective in Appellant ( Young) failing at 7. to object to the prosecutor' s questioning. DaGraca separately No. 43358 -3 -II, consolidated with 43365 -6 -II argues that RCW juvenile 13: 04. 030( 1)( court, violates e)( v)( A), under which he was tried in adult court instead of the Eighth Amendment to the United States Constitution. DaGraca also adopts and incorporates the arguments in Young' s initial and supplemental briefing. In a Statement of Additional Grounds ( SAG), Young asserts that the trial court denied him a fair trial, compelled him to testify against himself, violated his time -for -rial rights, and t committed other irregularities warranting reversal. In his SAG, DaGraca asserts that ( 1) his counsel was ineffective for failing to object to jurisdiction and failing to request a remand to the juvenile court, and ( 2) his counsel' s deficient performance denied him a fair trial. We hold that RCW 13. 04. 030( 1)( e)( v)(A) is not unconstitutional, the kidnapping was not incidental to the and the prosecutor' s misconduct during cross -examination was curable by an robbery, instruction.2 We affirm both defendants' convictions and sentences. FACTS I. ROBBERY AND KIDNAPPING Early in the morning on November 19, 2011, Moua Yang was talking on the phone in his car in his apartment parking lot when Corey Duawayn Young and Jerro De Jon DaGraca3 jumped is a bad over the parking lot fence day.... Give and approached me all your money; him. give me One4 pointed a gun at anything you got," him, said, " Today and took Yang' s cell 2 Defendants' other arguments fail. 3 At the time he committed these crime, DaGraca was still a juvenile, approximately one month and two days short of turning 18. The State charged him as an adult. RCW 13. 04. 030( 1)( e)( v)( A). 4 At trial, Yang positively identified both men as his assailants. brief of appellant notes that he was the man with the gun. 2 In discussing this fact, Young' s No. 43358 -3 - II, consolidated with 43365 -6 -II phone and $ to 1 Verbatim Report 117. Yang' s search pockets for credit Electronic Benefit Transfer ( EBT) " Yang' s pocket and of demanded the Proceedings ( VRP) 115. at The other told the first man The first man, the one with the gun, found an cards. Quest "5 food stamp card and a military identification card in identification personal number for the Quest card. Yang gave him a fictional number. Apparently after checking the number on his phone, the man with the gun told Yang, It' s not you' re working; in the face. Yang punched lying," hit Yang in the stomach, put the gun on Yang' s stomach, and 1 VRP at 119. them to a nearby 7- Eleven, saying, " Let' s get money for the gun pointed at Eleven would store. kill us, you' re 1 VRP Several at police slam ... that "[ t] hey while 121. they directed Yang got guns." and money. If you don' t to drive for " about five[- ]seven minutes" to a 7- During the drive, the men said that after they got the money, they so they [ could] have at the in the lake officers, on [ his] get food to 7- Eleven to go 1 VRP at 119. They pulled Yang " back [ into] the car" and kept and " put [ him] Yang quickly," " him dead." Both men then ordered Yang, at gunpoint, to drive standing brakes," 1 VRP at 71. and " 7- Eleven, jump ... the saw car." Yang 1 VRP at 121. pull into the lot " very out and yell" that he was being robbed and DaGraca and Young fled the vehicle, and the police gave chase on foot. According to Officer Christopher Michael Bowl, the man " with a red hat and red and black jacket jumped jump[ ed] the out of the police chased out of the [ p] assenger front rear passenger side of the them through the parking lot car." seat," 1 VRP of an adjacent man in the red hat and red and black jacket shed the jacket. 5 Clerk' s Papers ( CP) ( Young) at 6. and at the other man, " 73. 74. shopping in a black jacket, The two men split up as mall. Bowl observed the No. 43358 -3 -I1, consolidated with 43365 -6 -II The police captured and arrested Young and DaGraca, retraced their steps, and found the discarded hat and jacket. Officer Michael Robert Wulff found a gun on the " front passenger side floorboard "6 of Yang' s car, five . 22 caliber bullets in a magazine in the gun, and a sixth round loaded in the chamber. II. PROCEDURE On November 21, 2011, the State charged DaGraca7 and Young with first degree robbery and first degree kidnapping; the State separately charged Young with first degree unlawful possession of a firearm. The State also alleged special firearm sentencing enhancements for the robbery and kidnapping charges. A. Continuances Forty - ine days into the case, at a January 9, 2012 hearing, DaGraca' s attorney requested n a continuance for time to Young to it. agreed prepare adequately. DaGraca himself objected to this 8 continuance; Because of the " very serious nature of [the] charges and the fact that. Mr. DaGraca and Mr. Young [ would be] likely looking at substantial jail time if they [ would be] convicted," the trial court granted the continuance to February 23. VRP (Jan. 9, 2012) at 4. At the February 23 hearing, the State moved for a continuance; both defendants objected. The trial February 6 court continued 27, the trial the case until court set trial February over to the 27 because next no courtrooms were available. On day. At the February 28 hearing, the trial 1 VRP at 30. 7 The State charged DaGraca in adult court. 8 Although DaGraca objected to all requested continuances, he did not assert CrR 3. 3 time fortrial violations below. Nor does he so assert on appeal. 4 No. 43358 -3 -II, consolidated with 43365 -6 -II court proposed continuing the trial to March 8, finding " good cause" because the trial judge was unavailable to begin on February 29. VRP (Feb. 28, 2012) at 2 -3. the trial court heard another State' s motion to continue because the On March 8, prosecutor was unavailable. cause" to continue the Young agreed, matter one week but DaGraca objected. The trial court found " good VRP ( Mar. 8, 2012) to March 15. at 10. At the March 15 hearing, the trial court again continued the trial, this time to March 20, based on the prosecutor' s absence being " good On March 20, the trial court cause "; found " both defendants objected. VRP (Mar. 15, 2012) at 12. good cause" and continued the trial to March 26 because both defendants courtrooms were unavailable; again, courtrooms were unavailable, the trial objected. court continued the On March 26, again because case one more day. Trial began the next day, on March 27. B. Jury Voir Dire During prospective voir jurors dire about on their the first attitudes trial, Young' s defense counsel asked several toward tattoos. Prospective juror 18, a prison corrections day of officer, responded that he recognized that certain tattoos reflected gang affiliations, but not all tattoos had such a purpose, and he did not have a problem with tattoos. This prospective juror, however, did not serve on the jury that tried the case. C. Trial The described. State presented testimonies from the police officers and Yang, as previously The State also offered as exhibits the items the police had recovered during DaGraca and Young' s flight and the gun from Yang' s car. DaGraca and Young each testified and denied robbing or kidnapping Yang. 5 No. 43358 -3 -II, consolidated with 43365 -6 -II DaGraca testified that he and Young had been celebrating an upcoming music but at the approached nevertheless 149. for looking performance, were someone him to buy and asked " them if he alcohol, were not " wanted to buy [ them] familiar 9 with " some alcohol." Yang, 2 VRP Yang told them to get in his car; with DaGraca sitting behind Yang and Young sitting in front passenger seat, Yang drove to the 7- Eleven. On the way, they asked to use Yang' s phone to arrange a marijuana purchase; Yang allowed them to use his phone and volunteered to drive them to buy marijuana if Yang could try it with them. As they approached the 7- Eleven, Yang drove into the parking lot, where the police were standing, and told the police that he was being robbed. On cross -examination, the prosecutor, asked Young whether he had another .bullet in his jacket, even though there was no evidence in the record that the police found an additional bullet in Young' s jacket. Young did not object to the questioning, but he denied knowledge of any bullet in the jacket. Neither DaGraca nor Young objected to any of the court' s proposed jury instructions. But after the trial court returned from recess, Young' s counsel moved for a mistrial, stating, Apparently, testify]. I I misunderstood what [ thought he said he did Young] want said. to [ testify]." He apparently told me he did not want to 2 VRP at 181. The State objected. The trial court denied the motion for mistrial on grounds that counsel had had ample time to clarify whether Young would testify and that when Young took the stand, he did not express any desire not to testify. 92 VRP at156. 6 No. 43358 -3 - II, consolidated with 43365 -6 -II The jury found DaGraca guilty of first degree robbery and first degree kidnapping; but did it not reach a unanimous decision about whether he had been armed with a firearm during the commission of either offense. robbery, first degree The kidnapping, found jury Young guilty of all and unlawful possession of.a three charges: firearm. first degree By special verdict, the jury also found that Young had been armed with a firearm during the robbery and kidnapping. D. Sentencing At the sentencing hearing, the trial court denied Defendants' motion to merge their kidnapping separate and and robbery thus did Apr. 23, 2012) 4. at convictions, not qualify stating that, although the as " same crimes were " related," criminal conduct under [ they were RCW] 9. 94A. 589." VRP The trial court also ruled that the kidnapping was not incidental to the robbery and, thus, these two crimes must be treated as separate. The trial court sentenced DaGraca to standard range sentences of 68 months of incarceration for kidnapping), to count run I ( first degree robbery) concurrently. and 72 months for count II ( first degree As required by RCW 9. 94A.701, the trial court also imposed 18 months of community custody on count I ( violent offense) and 36 months of community custody on count II (serious violent offense). The trial court sentenced Young to standard range sentences of 87 months on count I first degree robbery), 110 III (first degree months on count unlawful possession of a II (first degree firearm), all to kidnapping), run and 54 months on count concurrently. The trial court added firearm enhancements of 60 months to Young' s base sentences for counts I and II, to run consecutively to each other and to the sentences 7 on the underlying counts. The trial court also No. 43358 -3 -II, consolidated with 43365 -6 -II imposed 18 months of community custody for count I and 36 months of community custody for 0 count II. DaGraca and Young appeal their convictions and sentences. ANALYSIS I. DAGRACA: ADULT COURT JURISDICTION DaGraca argues that RCW 13. 04. 030( 1)( e)( v)( A), under which he was tried as an adult court rather than as a juvenile, violates both the due process clause and the Eighth Amendment to the United States Constitution ( automatically vesting the violent offenses kidnapping), the he cruel and unusual statute charged with He contends that committing ( failed to take into account first degree robbery and first degree his youth. DaGraca' s constitutional challenges fail. As our Washington Supreme Court has recently reiterated: In adopting Washington Constitution article IV, section 6, the people of this state granted the superior courts original jurisdiction ` in all criminal cases felony' amounting to proceedings. grants and in several other enumerated types of cases jurisdiction and In these enumerated categories where the constitution specifically jurisdiction to the of the superior superior courts. in exclusive original jurisdiction over the serious adult superior court was punishment). courts, the legislature cannot restrict the See Blanchard v. Golden Age Brewing Co., 188 Wn. 396, 418, 63 P. 2d 397 ( 1936). Article IV, section 6 also grants the superior courts residual jurisdiction over nonenumerated cases and proceedings, providing that superior courts ` shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court .. . 8 No. 43358 -3 -II, consolidated with 43365 -6 -II State v. statutory juvenile of evolution their 174 Wn. 2d 131, 135 -36, 272 P. 3d 840 ( 2012). Posey, creation of criminal court as a "' division the legislature that "[ jurisdiction the 10 superior could ] not" and " juveniles." over of Posey, The court went on to explain the did court, not" " 174 Wn.2d at not a separate court, "' a divest the superior courts of 140. Thus, "[ t] he juvenile courts are properly understood, jurisdictionally, as a separate division of the superior courts." Posey, 174 Wn.2d at 140 ( emphasis added). When DaGraca committed the charged crimes, he was a juvenile, approximately one month shy expressly of his exclude eighteenth birthday. from juvenile committing first degree robbery court and RCW 13. 04. 030( 1)( e)( v)( A) and ( C), respectively, jurisdiction 16- and 17- year -old minors charged with first degree kidnapping. 11 Thus, the superior adult court had original jurisdiction over DaGraca for these offenses, contrary to DaGraca' s argument that this statute automatically removes jurisdiction from the juvenile court. 10 11 Posey, 174 Wn.2d at 137 ( quoting State v. Werner, 129 Wn.2d 485, 493, 918 P. 2d 916 ( 1996). RCW 13. 04. 030 provides, in part: 1) Except as provided in this section, the juvenile courts in this state shall have exclusive original jurisdiction over all proceedings: to juveniles found to have e) Relating v) The juvenile is sixteen or seventeen years old on the date the alleged offense alleged or committed offenses ... unless: is committed and the alleged offense is: A) A C) serious violent offense as defined in [ former] RCW 9. 94A.030 [( 2011)]; Robbery in the first degree, rape of a child in the first degree, or drive -by shooting, committed on or after July 1, 1997 Emphasis added). Former RCW 9. 94A. 030 ( 2011), in turn, provided, in part: 44) " vi) Serious violent offense" is a subcategory of violent offense and means: Kidnapping in the first degree. Emphasis added). 9 No. 43358 -3 -II, consolidated with 43365 -6 -II DaGraca argues in general that our Supreme Court' s 1996 decision In re Boot, 130 Wn.2d 553, 925 P. 2d 964 ( 1996), upholding the constitutionality of a previous version of the juvenile court decline statute, " is longer no good law." Br. of Appellant ( DaGraca) at 8. He relies primarily on United States Supreme Court cases addressing whether statutes that impose the death penalty or life imprisonment without parole for juveniles violate the Eighth. Amendment. 12 Although DaGraca contends that RCW 13. 04. 030 runs afoul of the Eighth Amendment, he how his never argues sentences were " cruel and unusual." U. S. CONST. amend. On the contrary, the trial court sentenced DaGraca to 68 months of confinement for count I VIII. first degree robbery) 72 and severe punishments" at months for count issue in Graham. 13 II ( first degree kidnapping), far short of the " most Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L. Ed. 2d 825 ( 2010). Furthermore, DaGraca fails to show that his standard range sentences 12 DaGraca cites Graham v. Florida, in which the United States Supreme Court held that the Eighth Amendment to the United States Constitution prohibits a court from imposing a sentence of life age without parole on a is relevant defendants' juvenile offender for to the Eighth Amendment, youthfulness into a nonhomicide crime and stated: " and criminal procedure laws that fail to take without parole be flawed." Graham v. Florida, 560 U. S. 48, account at all would 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 ( 2010). homicide / life context, An offender' s Based on this quote, and ignoring Graham' s essentially asks us to interpret Graham to DaGraca ( 1) mean that any jurisdictional or sentencing statute that automatically treats a juvenile the same as an adult original is unconstitutional; jurisdiction over and ( him 2) contends violated that the superior court' s "` the Eighth Amendment and automatic ' Graham. exercise of Br. of Appellant DaGraca) at 7. As we explain above, we reject DaGraca' s expansive reading of Graham. 13 Nor does DaGraca' s attempted analogy persuade us that his potential maximum sentence of life imprisonment for either offense ( based on his having a previous felony conviction) was unconstitutionally cruel and unusual. RCW 9. 94A.515 ( providing standard sentence ranges); RCW. 9A.20. 021( 1)( a) ( establishing a maximum term of life imprisonment for class A felonies). 10 No. 43358 -3 -II, consolidated with 43365 -6 -II constitute cruel and unusual punishment or otherwise violate the Eighth Amendment. 14 Beginning with the presumption of constitutionality accorded to our legislature' s enactments, we hold that RCW 13. 04. 030( 1)( e)( v)(A) does not violate the Eighth Amendment by treating 16- and 17- year -olds as adults for first degree robbery and first degree kidnapping charges. State v. Jorgenson, 179 Wn.2d 145, 150, 312 P. 3d 960 ( 2013). II. KIDNAPPING AND ROBBERY DaGraca and Young contend that the trial court should have dismissed their kidnapping convictions because their restraint of Yang, a necessary element of kidnapping, was " incidental to the ongoing armed robbery," and they were not separate crimes. 15 The State responds that, when DaGraca and Young took Yang' s money and cards, they completed the robbery and any further restraint thereafter We agree with the State and the trial court that was a separate crime. the kidnapping and robbery were separate crimes. A. Kidnapping not Incidental to Robbery The restraint and movement of a victim that are merely incidental to and not independent of 14 the underlying crime do not constitute Addressing former RCW 13. 04. 030( 1)( kidnapping. e)( v)( A) State v. Green, 94 Wn.2d 216, 227, 616 ( 1999), Division Three of our court held that our state juvenile court automatic decline statute does not violate equal protection and due process rights. in State v. Posey, part on other grounds, address and 643. 130 Wn. App. 262, 269, 122 P. 3d 914 ( 2005), 161 Wn.2d 638, 167 P. 3d 560 ( 2007). left intact Division Three' s holding the statute constitutional. Posey, 161 Wn.2d at For purposes of our analysis here, former RCW 13. 04. 030( 1)( e)( v)( A) does not differ materially from the current version of the statute. 15 rev' d in part, aff'd The Supreme Court did not Br. of Appellant (Young) at 7. 11 No. 43358 -3 - II, consolidated with 43365 -6 -II P. 2d 628 ( 1980). 16 " Although rooted in merger doctrine, courts reviewing kidnapping charges that are arguably merely incidental to another crime frequently borrow a sufficiency of the evidence analysis." Wn.2d 1018 ( 2010). other crimes" the whether State v. Elmore, 154 Wn. App. 885, 901, 228 P. 3d 760, review denied, 169 Thus, in general, whether " kidnapping is incidental to the commission of involves both " facts merge to a specific determination" and a legal determination about fact - support one crime instead of two. Elmore, 154 Wn. App. at 901 citing Green, 94 Wn.2d at 225 -27 and State v. Korum, 120 Wn. App. 686, 707, 86 P. 3d 166 2004), aff'd in part, rev 'd in part on other grounds, 157 Wn.2d 614, 141 P. 3d 13 ( 2006)). Here, we review de novo the trial court' s conclusion of law that the restraint was not incidental to the robbery. In Berg, we held that, as a matter of law, that restraint was the incidental to the ... restraint' s sole purpose, ( robbery when ( 1) facilitating the robbery was 2) the restraint was inherent in the robbery, ( 3) the robbery victims were not transported from their home to a place where they were not likely to be found, ( 4) the restraint did not last substantially longer than necessary to complete the robbery, and ( 5) the restraint did not create a significant independent danger. State v. Berg, 177 Wn. App. 119, 136 -37, 310 P. 3d 866 ( 2013) ( citing Korum, 120 Wn. App. at 707), review granted, 179 Wn.2d 1028 ( 2014). Once DaGraca and Young took the Quest card and the military identification card from Yang' s person by force, they had completed the robbery; further restraint was unnecessary. Thus, DaGraca and Young' s subsequent ordering Yang at gunpoint to drive them to the 7- Eleven 16 See also State v. Elmore, 154 Wn. App. 885, 901, 228 P. 3d 760, review denied, 169 Wn.2d 1018 ( 2010). 12 No. 43358 -3 -II, consolidated with 43365 -6 -1I was neither " rather, it inherent" in was for the integral to [ the] nor " new purpose of of commission" obtaining money from the already completed Quest Yang' s card. 7 robbery;' By restraining Yang at gunpoint and threatening to kill him during the drive to the 7- Eleven18, DaGraca and Young created DaGraca and a new danger Young have robbery " that it not separate shown from the already that the completed kidnapping could not support a separate conviction." robbery. restraint " was so We hold that incidental to" the Elmore, 154 Wn. App. at 903. B. Kidnapping Not " Same Criminal Conduct" as Robbery DaGraca and Young also argue that the trial court abused its discretion in not finding that Yang' s kidnapping Young) at 9; Br. of into the " same criminal conduct" Appellant ( DaGraca) at 18. as his robbery. Br. of Appellant For sentencing purposes, "` [ s] ame criminal means two or more crimes require the same criminal intent, are committed at the conduct' ... same merged time and place, and involve the same victim." RCW 9. 94A.589( 1)( a). 19 Here, the trial court ruled that DaGraca and Young had completed the robbery when they stuck the gun in Mr. Yang' s face and took his wallet. They then formed the intent to try to get some more money from him and formed the intent to abduct him at gunpoint in his car. That is a separate crime. VRP (Apr. 23, 2012) at 4 -5. 17 18 Berg, 177 Wn. App. at 136; Korum, 120 Wn. App. at 703, 707. Yang dead," testified that and in the lake 19 so one of the defendants had Yang they [ could] have that once The legislature obtained amended the the money car." said, " If you don' t get money for us, you' re would] kill [him] and put [ him] for them, " they[ 1 VRP at 119, 121. RCW 9. 94A. 589 in 2014. LAws OF 2014, ch. 101 § 1. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. 13 No. 43358 -3 -II, consolidated with 43365 -6 -II We review 9. 94A. 589( 1)( 2013). a) for a trial court' s abuse of determination of " same criminal conduct" under RCW discretion. State v. Graciano, 176 Wn.2d 531, 533, 295 P. 3d 219 The defendant bears the burden of proving all three statutory elements of "same criminal conduct." Graciano, 176 Wn.2d at 538; see RCW 9. 94A. 589( 1)( a). ""[ T]he statute is generally construed narrowly to disallow most claims that multiple offenses constitute the same criminal act. "' Graciano, 176 Wn.2d at 540 ( quoting State v. Porter, 133 Wn.2d 177, 181, 942 P. 2d 974 1997)). Here, we need not decide whether DaGraca and Young' s objective intents changed after they took Yang' s wallet because the evidence shows that the kidnapping occurred after DaGraca and Young had robbed Yang of his property and continued in Yang' s car when DaGraca and Young forced Yang to drive them to the 7- Eleven. Because the robbery and the kidnapping occurred at different times and in different locations ( stationary car for the robbery and moving car for the kidnapping), the trial court properly ruled that the crimes were not the same criminal conduct for sentencing purposes. III. PROSECUTORIAL MISCONDUCT A. No Prejudice Defendants argue that the prosecutor committed misconduct by repeatedly questioning him about a bullet located in the red and had already testified that they found six black jacket that he bullets with wore the gun. during the crimes. 20 Officers While cross -examining Young, however, the prosecutor asserted that a . 22 caliber bullet had been found in the jacket and asked 20 Young asserts that the prosecutor cross -examined him about a " seventh prosecutor never referred to a " seventh" bullet. Suppl. Br. of Appellant (Young) at 6. Although 14 bullet," the No. 43358 -3 - II, consolidated with 43365 -6 -I1 whether the bullet belonged to Young, even though the State had no evidence that such a bullet 21 existed. Neither defendant knowledge of was objected any bullet in the jacket. improper. to the prosecutor' s questioning, and Young denied We agree with Defendants that this cross -examination Nevertheless, reversal is not required because, as we next explain, Defendants waived any error when they did not object to the misconduct below. A defendant who " fails to object or request a curative instruction at trial" waives his right misconduct22 to challenge instruction unless the conduct was so flagrant and ill intentioned that an " the could not have 326 P. 3d 125 ( 2014). 23 cured the resulting prejudice." State v. Lindsay, 180 Wn.2d 423, 430, Assuming, without deciding, that the prosecutor' s misconduct was flagrant and ill-intentioned, Defendants fail to show how an instruction could not have cured any resulting prejudice if Young had timely objected. Young' s failure to object denied the trial court an opportunity to instruct the jury to disregard the 24 now challenged question. Thus, Defendants' prosecutorial misconduct challenge fails. 21 The State concedes that the record contains no evidence of such additional bullet. 22 The trial court must have the opportunity to correct any alleged error, and the defendant' s failure to 179 Wn. object at App. trial waives his right to challenge 870, 878, 320 P. 3d 142 ( 2014); the remarks on appeal. State v. Hamilton, State v. Fullen, 7 Wn. App. 369, 389, 499 P.2d 893, cent. denied, 411 U. S. 985 ( 1973). 23 24 See also State v. Emery, 174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012). Young pervasive" also that argues that the jury instruction a Appellant ( Young) prosecutor' s could not repeated have cured questioning the resulting was " so cumulative prejudice. and Suppl. Br. of 9. But even if Young could show that the prosecutor' s misconduct was incurable, he fails to show a substantial likelihood that the statements affected the jury' s verdict. Emery, 174 Wn.2d at 760. " In analyzing prejudice, we do not look at the comments in isolation, at but in the context of the total argument, the issues in the case, the evidence, and the instructions given to the jury." Emery, 174 Wn.2d at 764 n.14. 15 No. 43358 -3 -II, consolidated with 43365 -6 -II B. Effective Assistance of Counsel Young also argues that he received ineffective assistance when his trial counsel failed to object to the prosecutor' s cross -examination about the bullet. This argument also fails. To ineffective prove was performance assistance deficient, and ( of counsel, 2) the deficient Young must performance show that ( 1) his counsel' s him. Strickland v. prejudiced Washington, 466 U. S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987). overcome "' a strong presumption that 25 counsel' s performance was reasonable. ,, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011) ( 177 ( 2009)), cert. filed, strategy or A defendant alleging ineffective assistance must State v. Grier, quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d adhered to in part on remand, 168 Wn. App. 635, 278 P. 3d 225 ( 2012), petition for May 27, 2014.. " tactics." Here, the State v. Deficient performance is not shown by matters that go to trial Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996). misconduct was harmless because, " If look[ ing] only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt," we reached the are " convinced beyond a reasonable doubt that any reasonable jury would have in the absence of the error." State v. Guloy, 104 Wn.2d at 412, 426, 425, same result 705 P. 2d ( 1985). Even without the prosecutor' s improper question about the additional bullet, there was ample evidence of other bullets, Young and DaGraca did not present credible stories, and the evidence overwhelmingly supported the conclusion that they robbed and kidnapped Yang. Other evidence linked the firearm to Young and gave the jury a sufficient independent basis on which to convict him of unlawful possession of a firearm. The jury heard Officer Bowl' s testimony that the individual in a " red and black jacket" ( later identified as Young) jumped out of the front passenger seat, 1 VRP at 73; Yang' s testimony that the individual with the gun was in the front passenger seat; and Young' s testimony that he had discarded a " red jacket" while fleeing from the police. 2 VRP at 167. Furthermore, after this cross -examination, the prosecutor never again raised the issue of an additional bullet or otherwise again implied that Young had a bullet in his jacket. 25 We also presume that, under the circumstances, the alleged errors " might be considered sound trial strategy." Strickland, 466 U. S. at 689. 16 No. 43358 -3 -II, consolidated with 43365 -6 -II counsel' s conduct "` deficient. "' To can be characterized as legitimate trial strategy or tactics, performance is not Grier, 171 Wn.2d at 33 ( quoting Kyllo, 166 Wn.2d at 863). show prejudice, the defendant must establish that "' there is a reasonable probability that, but for counsel' s deficient performance, the outcome of the proceedings would have been different.'" Grier, 171 Wn.2d prove either prong meet the of this test his burden here. prosecutor' s at 34 ( quoting Kyllo, 166 Wn.2d ends our inquiry. at 862). A defendant' s failure to Hendrickson, 129 Wn.2d at 78. Young fails to Young cannot show prejudice flowing from counsel' s failure to object to cross -examination of him about the bullet. Even if Young' s counsel had objected and the trial court had responded by precluding the prosecutor' s questions, Young fails to show a substantial likelihood that this cross -examination affected the jury' s verdict because there was ample evidence linking the firearm to Young, supporting the jury' s verdict that he robbed and 2012). kidnapped Yang State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653 at gunpoint. Because Young fails to meet the prejudice prong of the test, he fails to show that he received ineffective assistance counsel. IV. STATEMENTS OF ADDITIONAL GROUNDS A. DaGraca In his SAG, DaGraca asserts that ( 1) his counsel was ineffective for failing to object to the adult superior court' s jurisdiction and for failing to request a remand to the juvenile court, and ( 2) his counsel' s deficient superior court' s exercise of performance denied him a fair trial. jurisdiction under RCW 13. 04. 030( 1)( We have already upheld the e)( v). Thus, counsel did not render deficient or ineffective assistance in failing to object to the juvenile court' s decline of jurisdiction under this statute. 17 No. 43358 -3 - II, consolidated with 43365 -6 -II B. Young Trial court irregularities 1. Young congregate asserts in the that "[ t] he trial court abused its discretion by allowing jurors to sit and hallway during failing to tell the jurors that they could not be in the trial," hallway, and failing to admonish them to disregard anything they might have seen or heard; he contends that these errors tainted the proceedings and violated his right to a fair trial. SAG Young) at 4. We disagree. The " trial court has wide discretionary powers in conducting a trial and dealing with irregularities which State v. Westlund, 13 Wn. App. 460, 472, 536 P. 2d 20, review arise." denied, 85 Wn.2d 1014 ( 1975). number and magnitude must show " actual that And, unless Young shows that " the irregular incidents are of a they are per se unfair, Westlund, 13 Wn. prejudice." that is, App. prejudice at 472. undoubtedly resulted," he Young fails to demonstrate prejudice. During the jurors]" " second day of 87. at prosecutor believed that he had seen " about three in the hallway" and asked the trial court to request the public in the courtroom ( which included the defendants' friends) VRP trial, the 87. The trial Young' s not to " court announced counsel responded, "[ congregate outside that " the jurors the shouldn' courtroom ... t be sitting out in the hallway." there." 1 1 VRP at A] s far as congregating, I think [ the friends of Defendants] have a right to be in the hall as long as they' re quiet, and, as the Court pointed out, the jurors are not supposed admonished to be there." the jury not 1 VRP at to " discuss the 88. case At the next recess later that day, the trial court among [ themselves] 18 or with others." 1 VRP at 102. No. 43358 -3 - II, consolidated with 43365 -6 -II Neither Young nor DaGraca raised any objections to the fairness of the proceedings, and neither asked the trial court to investigate further whether jurors were sitting in the hallway. Nothing in the record shows that there was another similar incident. Neither the State nor Defendants raised a similar concern again the incident prejudiced him in any way. during trial. Furthermore, Young has not shown that Thus, Young has failed to show that the trial court abused its discretion or violated his right to a fair trial. 2. Juror bias Young also asserts that he was denied an impartial jury and a right to a fair trial because one of the jurors was biased against him, contending that the juror believed that Young' s tattoos signified does gang affiliation and not support Young' s the contrary, the juror' s an objection that the juror' assertions: s comments reflected. bias. of the The record, however, Nothing in the record shows that this juror was biased; on statements reflected an to the fairness 26 proceedings. ability to remain impartial. Young never raised Furthermore, prospective juror 18 did not serve on the jury that found Young guilty. Thus, Young' s challenge lacks merit. 26 Apparently Young refers to prospective juror 18, whom counsel questioned during voir dire about signal his attitude gang towards tattoos. affiliations; Juror 18 stated that tattoos could sometimes, but not always, this prospective juror also confirmed problem" for him. Suppl. VRP ( Mar. 27, 2012) at 97. 19 that tattoos would not " cause [ a] No. 43358 - -II, consolidated with 43365 -6 -II 3 3. Prosecutorial misconduct: Referencing clothing and aliases Young further asserts that the prosecutor committed misconduct by referring to his Young' s) colors and aliases clothing to insinuate gang affiliation, which prejudiced him. This assertion also fails. During trial, police officers identified clothing items found at the scene and on the defendants, which 1 VRP jacket." included at 73. a " red bandanna," 1 VRP at 44, " a red hat," and a " red and black The prosecutor cross- examined Young about the clothing that he had worn during the incident, asking whether Young had a jacket, a red bandanna, and a red hat. Young admitted to having a jacket and a red hat, but could not " remember having a bandanna." 2 VRP at The 169. Little Flame' ?" prosecutor then asked, " Is your stage name ` Little Bones'? ... What about 2 VRP at 169 -70. Young denied using either alias. A] prosecutor engages in misconduct when making an argument that appeals to jurors' fear and repudiation of criminal groups or invokes racial, ethnic, or religious prejudice as a reason to convict." State v. Perez- Mejia, 134 Wn. App. 907, 916, 143 P. 3d 838 ( 2006). The prosecutor did not argue or present a case that Young and DaGraca were part of a gang. Young showed gang does not explain how the affiliations or prejudiced prosecutor' s his right to a questions fair trial. about his or aliases Rather the prosecutor' s inquiry about Young' s clothing was relevant to support the State' s evidence connecting Young and DaGraca' s articles of clothing to the persons witnesses had observed committing the charged crimes. 27 28 The prosecutor' s questions about Young' s " 28 were relevant to the veracity stage name " Young did not object to the prosecutor' s questions about his clothes. 2 VRP at 169. 20 No. 43358 -3 -II, consolidated with 43365 -6 -II of Young' s earlier testimony that he was a " music artist" and that, on the evening of the incident, he and DaGraca had been celebrating an upcoming musical performance and looking for someone to buy them alcohol. 2 VRP at 160. Moreover, neither Young nor DaGraca objected to the evidence elicited in this line of questioning; nor did either request a curative instruction. And nothing in the record suggests that the prosecutor' s questions prejudiced the jury. We find no misconduct and no prejudice in the prosecutor' s asking these questions. 4. Ineffective assistance of counsel; testifying on own behalf Young also asserts that he was denied effective assistance of counsel by being " forced to testify." SAG (Young) at 9. Again, the record does not support this assertion. Young and DaGraca both testified at trial. After the defendants rested and the court completed discussions about jury instructions, Young' s counsel moved for a mistrial, stating he had believed that Young had wanted to testify, but apparently had misunderstood that Young did not want to testify. The State objected because Young had never expressed a desire not to testify and Young did not speak up when his counsel called him to the witness stand. The trial court denied the motion for mistrial, noting that, before Young testified, it had held a sidebar to give defense counsel ample opportunity to decide whether Young would testify. The trial court further noted that, when defense counsel said that Young would testify, Young never corrected him, something which defense counsel was unable to explain during his later motion for a mistrial. Young fails to establish that he was forced to testify against his will or that his counsel rendered ineffective assistance in calling him to the witness stand. 21 No. 43358 -3 - II, consolidated with 43365 -6 -II Young additionally asserts that he received ineffective assistance when his counsel failed to object to various statements or evidence presented by the State. Although he references various lines in the report of proceedings, he does not explain why these statements or evidence were prejudicial. See RAP 10. 10( c). Moreover, these assertions of error are either unfounded or cumulative with other assertions of error we have already addressed. Thus, we do not further address these asserted errors. 5. Young asserts next Time for trial and speedy trial rights that the trial court violated his CrR 3. 3 time for tria129, Sixth Amendment, and Fourteenth Amendment rights by failing to bring him to trial in a timely manner. Again, the record does not support this assertion. Instead, the record shows that Young was timely brought to trial as required by law. CrR 3. 3 the time governs defendant " which shall CrR 3. 3( b)( 1), 3. 3( for trial in superior court criminal proceedings. CrR 3. 3 provides that a be brought to trial" within 60 days of the defendant' s commencement date, c)( 1) establishes as the arraignment date, if he or she is detained in jail, CrR or within 90 days of the commencement date if the defendant is not detained in jail, CrR 3. 3( b)( 2). The record does not reveal either defendant' s arraignment date; but this is not necessary to resolve Young' s asserted error. When computing the time for trial, CrR 3. 3( e)( 3) excludes delay for continuances granted in the following circumstances: 29 Although primarily Young raises asserts a violation of arguments under his " speedy trial CrR 3. 3, which Young ( SAG) at 10. 22 are rights," which are constitutional, he procedural " time for trial" court rules. No. 43358 -3 - II, consolidated with 43365 -6 -II 1) Written Agreement. Upon written agreement of the parties ... the court may continue the trial date to a specified date. 2) Motion by the Court or a Party. On motion of the court or a party, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation time for trial has for the of his or her defense. The motion must be made before the The court must state on the record or in writing the expired. The bringing of such motion by or on behalf of any party waives that party' s objection to the requested delay. reasons continuance. CrR 3. 3( f). At the January 9, 2012 continuance hearing, Defendants requested and the trial court the trial ordered February reset to February 23. Because the parties agreed to set the trial over until 1) CrR 3. 3( f)( excluded the period between January 9 and February 23 from the 2) 23, ( new time for trial calculation; and ( 2) thus, at the February 23 hearing, Defendants were only 49 days into their time for trial after the reset time for trial period, end of CrR 3. 3( e)( The subsequent continuances were excluded from the period. 3), and the time for trial would not have expired until 30 days the last excluded period. CrR 3. 3( b)( 5). The record thus shows that, when Defendants' trial began on March 27, 2012, Young was timely brought to trial. Moreover, for Young to be able to raise time for trial violations on appeal, he must have timely objected below to the trial date set by the trial court. CrR 3. 3( d)( 4). If a court sets a trial date outside the time for trial deadlines, CrR 3. 3( d)( 3) requires a defendant to object within 10 days after 3. 3( d)( 4). the court gives notice of the trial date, or the defendant loses the right to object. CrR The record reflects no such objection by Young. Thus, Young' s assertion fails on this ground as well. 23 No. 43358 -3 - II, consolidated with 43365 -6 -II Not only has Young failed to show a CrR 3. 3 time for trial violation, but he also fails to show the how the trial court violated continuances prejudiced his and federa131 constitutional speedy trial rights or how him; thus, his Sixth Amendment 178 Wn.2d 813, 826, 312 P. 3d 1 ( 2013), pet. for cent. filed, claim May fails. 7, 2014. See State v. 011ivier, Nor can we surmise how Young might prevail on a constitutional speedy trial violation where the law and record show that he was timely brought to trial appellate court is not obligated to defendant / appellant' under the applicable court rules. See RAP 10. 10( c) ( " the search the record in support of claims made in a s statement of additional grounds for review. "). Thus, Young' s speedy trial challenges also fail. 6. Firearm sentencing enhancements Lastly, Young asserts that the trial court erred in adding two firearm enhancements to his sentence instead of one. He contends that chapter 9. 94A RCW ( the Sentencing Reform Act) provides that, when sentences run concurrently, the offender should be given only one firearm sentencing enhancement if he has no prior firearm offenses. Young is incorrect. RCW 9. 94A. 533( 3) 32, which governs firearm sentencing enhancements, provides in part: The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm ... and the offender is being sentenced [ for a crime eligible for firearm enhancements]. If the offender is being sentenced for more than one offense, 30 31 32 the WASH. CONST. art firearm . . . enhancements must be added to the total period of I, § 22. U. S. CONST. amend. VI. The legislature amended RCW 9. 94A. 533 numerous times since 2011. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. 24 No. 43358 -3 -II, consolidated with 43365 -6 -II confinement for T] he following additional times shall be added to all offenses. [ the standard sentence range ... : a) Five years for any felony defined under any law as a class A felony . . e) Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements. The jury convicted Young of first degree robbery, first degree kidnapping ( both Class A felonies), and first degree unlawful possession 9A.56. 200( 2), 9A.40. 020( 2), 9. 41. 040( 1)( b) 33. of a firearm ( a Class B felony). See RCW By special verdict form, the jury also found that Young had committed both the robbery and kidnapping while armed with a firearm, thus subjecting him to firearm sentencing imposed ( 1) count end RCW 9. 94A.533( 3). The trial court standard low end sentences for count I, first degree robbery ( 87 months) and for II, first degree sentence enhancements under for kidnapping ( count III, 110 months), both Class A felonies; and ( 2) a standard high unlawful possession of a firearm ( 54 months), a Class B felony. Because both counts I and II were Class A felonies, RCW 9. 94A.533( 3)( a) required the trial 33 The legislature amended RCW 9. 41. 040 in 2014, LAWS OF 2014, ch. 111, § 1. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. 25 No. 43358- 3 -II,.consolidated with 43365 -6 -II court to sentence Young to an additional 60 -month firearm enhancement for each of these two counts, to run consecutively. The trial court did not err in adding firearm enhancements to each of Young' s Class A felony standard range sentences. We affirm. 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. We concur: 26

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