State Of Washington v. Bruno Molina

• Court: Court of Appeals of Washington
• Decided: January 19, 2021
• Docket: 80346-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 80346-8-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION BRUNO D. MOLINA,

Appellant.

APPELWICK, J. — Molina appeals his convictions for second degree assault

and fourth degree assault. He argues reversal is required based on ineffective

assistance of counsel, prosecutorial misconduct, and legal financial obligations

assessed in error. We affirm his convictions, but remand to strike certain legal

financial obligations.

FACTS

On January 29, 2018 Bruno Molina, age 20, drove to his friend’s party.

Molina drank a beer with his friend. A.P., N.W., and A.H., all ages 14 to 15 were

also at the party together. The three had been invited and driven there by Israel

Hermosillo-Alvarez. A witness later testified that the three girls Israel brought were

all drunk at the party. A.P. stated she drank five beers. No. 80346-8-I/2

Later in the evening, Israel1 passed out in the backseat of his car due to

intoxication. Emanuel Espana decided to drive Israel’s car to help the young

women and Israel get home. Molina gave A.P. a ride, as there was not room in

Israel’s car. Espana told Molina to meet them at a McDonald’s restaurant parking

lot.

Molina and A.P. arrived at the McDonald’s before Espana, and the two

waited in his car. Molina and A.P.’s stories differed about what happened before

the other group arrived.

Molina testified that A.P. asked him if he had a girlfriend and tried to kiss

him, leading to him getting out of the car. Molina claimed he tried to get A.P. out

of the car because he was concerned A.P. would spill alcohol she had brought

from the party in the car. He claimed she did not want to get out, and she called

him derogatory names.

According to A.P., Molina had asked her to perform oral sex on him, which

she refused. She said he kissed her, and afterward she told him to stop touching

her. According to A.P., he then put his hand down her pants and digitally

penetrated her vagina. She told him to stop, elbowed him, and got out of the car.

As A.P. was exiting Molina’s car, Israel’s car arrived. A.P. approached the

car and gave N.W. and A.H. her account of what happened. Molina told Espana

to calm A.P. down. Espana asked Molina to wait until Israel’s older brother, Josue

1 This case involves two witnesses, brothers Israel Hermosillo-Alvarez and Josue Hermosillo-Alvarez. For clarity, they are each referred to by their first names.

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Hermosillo-Alvarez, came to pick up Israel and his car, because Molina was his

only ride home.

Molina said he then asked A.P., “Could I help you [get] in the car?” He said

A.P. did not want to try to move Israel, so he opened the driver’s side door and

“tried to put her in slowly.” Molina claims he accidentally shut the car door on her

leg. Angered, A.P. got out of the car and began to chase Molina around the two

cars. N.W. later testified that A.P. “was trying to hit him or something like that.”

Molina initially found the situation humorous. He claimed he eventually felt the

need to defend himself. He hit A.P. in the face, causing her to fall to the ground.

Molina recalled A.P. getting back up right after falling. A.P. said she lost

consciousness, which N.W. corroborated.

N.W. exited the car and approached Molina. At trial, witnesses gave

differing accounts of what N.W. said and her demeanor as she approached Molina.

N.W. said she checked on A.P. and then asked Molina why he had punched A.P.

Josue said she ran towards Molina to fight him. Molina then hit her in the face.

Molina claimed this was instinctive, as he believed N.W. was going to try to throw

a punch at him. Molina testified that A.P. and N.W.’s friend then came out of the

car and tried to do the same thing, but Espana got between them and told Molina

to go home. Molina then left the parking lot.

The day after the party, A.P. went to the hospital accompanied by her

mother. She told hospital staff that someone had tried to force her to have oral

sex and had touched her vagina.

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The State charged Molina with third degree rape and second degree assault

of A.P. It also charged Molina with fourth degree assault of N.W.

At trial, the State called Israel’s older brother Josue as a witness. He

testified that he had driven to McDonald’s the night of the incident because he was

alarmed that Israel was intoxicated. Josue testified that he saw Molina punch the

two girls and that A.P. “had fallen and she had gotten back up.”

Molina’s attorney did not ask for a jury instruction on self-defense or argue

self-defense. During closing arguments, Molina’s attorney conceded that Molina

had hit A.P. and N.W., but denied the rape and argued the conduct did not rise to

second degree assault. In arguing the State had failed to prove second degree

assault beyond a reasonable doubt, Molina’s attorney noted, “Josue Hermosillo

testified that he saw [A.P.] get hit and get back up. . . . She did not lose

consciousness.”

During its closing argument, the State said Josue had “corroborated” A.P.’s

story and “saw her getting knocked to the ground.” Molina objected that the State

was arguing facts not in evidence, but was overruled.

The prosecutor also said, “Why would [A.P.] come in here, swear under

oath and tell you a story that she made up?” Molina objected and his objection

was overruled. Twice more the State asked what A.P. would have to gain from

moving forward with the case and testifying. Both times Molina objected and was

again overruled.

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The jury acquitted Molina of the rape charge, but convicted him of second

degree assault and fourth degree assault. At sentencing, the trial court imposed

several fees, including a $100 DNA (deoxyriboneucleic acid) collection fee, a $500

victim penalty assessment for each conviction, and a supervision fee.

Molina appeals.

DISCUSSION

Molina asserts his judgment and sentence must be reversed based on

claims of ineffective assistance of counsel and prosecutorial misconduct. Further,

he asserts remand is necessary to remedy the improper imposition of legal

I. Ineffective Assistance of Counsel

First, Molina asserts his attorney’s failure to argue self-defense and request

a self-defense instruction deprived him of his right to effective assistance of

counsel.

Criminal defendants are guaranteed the right to effective assistance of

counsel under our state and federal constitutions. U.S. CONST. amend. VI; CONST.

art. I, § 22; Strickland v. Washington, 466 U.S. 668, 680, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987).

To prevail on an ineffective assistance of counsel claim, the defendant must show

that counsel’s performance was deficient and that the defendant was prejudiced

by that deficiency. Strickland, 466 U.S. at 687; In re Pers. Restraint of Crace, 174

Wn.2d 835, 840, 280 P.3d 1102 (2012). Scrutiny of counsel’s performance is

highly deferential and we strongly presume reasonableness. In re Pers. Restraint

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of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). To rebut the presumption of

reasonableness, a defendant must establish the absence of any legitimate trial

tactic that would explain counsel’s performance. Id.

Molina argues because force used in self-defense is lawful and the

threshold burden of production for a self-defense instruction is low, failing to ask

for such an instruction constituted deficient performance. Further, he argues “as

the jury was properly instructed to consider each charge separately, there was no

downside in obtaining a self-defense instruction.”

But, given the facts in Molina’s case, deciding not to seek a self-defense

instruction was a legitimate trial tactic. This decision did not constitute ineffective

assistance of counsel.

Molina may have had sufficient evidence to entitle him to a self-defense

instruction. But, to actually establish self-defense, Molina would need to show that

he had a good faith belief in the necessity of force and that that belief was

objectively reasonable. State v. Dyson, 90 Wn. App. 433, 438-39, 952 P.2d 1097

(1997). RCW 9A.16.020(3) provides that the use of force upon another person is

not unlawful when used by a person about to be injured “in preventing or attempting

to prevent an offense against his or her person . . . in case the force is not more

than is necessary.” (Emphasis added.)

Molina’s counsel could have decided a jury would find that Molina’s force

was “more than necessary” given the facts. Id. Molina was larger and heavier

than A.P. A.P. was five feet, four inches tall and weighed 125 pounds. Molina was

five feet, ten inches tall and weighed 155 pounds. A.P. admitted to drinking five

6 No. 80346-8-I/7

beers, and a witness had testified she was drunk at the party. Molina was also 5

to 6 years older than A.P., and testified he knew he was “quite a bit older” at the

time of the incident. When he stop running from A.P., he struck her with such force

that she was knocked down and may have been rendered unconscious. This

suggests the use of more force than was necessary to prevent injury from a

smaller, intoxicated minor.

Molina also testified that he laughed when A.P. began to chase him around

the cars “because [he] thought it was kind of funny that [he was] being chased

around by a girl.” This testimony undercuts the suggestion that he was afraid he

was about to be injured.

Arguing self-defense in these circumstances could have undercut Molina’s

credibility with the jury. He needed credibility with the jury, because the evidence

regarding whether he knocked A.P. unconscious and whether he committed third

degree rape largely came down to his testimony versus that of A.P. It was a

reasonable litigation strategy to concede the assaults occurred and focus on

disputing the degree of the assault and the third degree rape charge.

Further, this strategy allowed Molina to show contrition before the court.

Molina testified that he regretted hitting both A.P. and N.W. He said, in retrospect,

perhaps he should have run away or held A.P. He would not have been able to

demonstrate his regrets had he attempted to argue his actions were justified. At

sentencing, the trial court noted, “I’ve given this one a lot of thought because of

what I saw and heard at trial and because of what I believe to be some measure

of contrition and remorse on Mr. Molina’s part.” The court did not sentence Molina

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at the top end of the sentencing range as requested by the State. So, the decision

not to argue self-defense may have benefitted Molina at sentencing.

We find no ineffective assistance of counsel.

II. Prosecutorial Misconduct

Next, Molina asserts that prosecutorial misconduct during closing argument

deprived Molina of his right to a fair trial.

Allegations of prosecutorial misconduct are reviewed under an abuse of

discretion standard. State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995).

The defendant bears the burden of establishing that the conduct was both

improper and prejudicial. State v. Song Wang, 5 Wn. App. 2d 12, 30, 424 P.3d

1251 (2018). “Any allegedly improper statements should be viewed within the

context of the prosecutor’s entire argument, the issues in the case, the evidence

discussed in the argument, and the jury instructions.” State v. Dhaliwal, 150 Wn.2d

559, 578, 79 P.3d 432, 442 (2003). To establish prejudice, the defendant must

show a substantial likelihood that the error affected the jury verdict. In re Pers.

Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012).

Molina asserts the prosecutor committed misconduct during closing

argument by misrepresenting the evidence about whether Josue’s testimony

corroborated the fact that A.P. was knocked unconscious.

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When asked what happened with the first girl Molina had punched, Josue

stated that she “had fallen and she had gotten back up.” But, during the

prosecutor’s closing argument, the following exchange occurred:

[Prosecutor]: [A.P.] told you that she fell to the ground, that she lost consciousness. Her friends corroborated that too. In fact, even [Josue], whom she doesn’t know very well corroborated that.

[Defense Counsel]: Objection. Arguing facts not [in] evidence, Your Honor.

THE COURT: Overruled.

The prosecutor overstated the degree to which Josue corroborated A.P.’s

testimony. However, Josue corroborated that A.P. was hit and fell to the ground.

He stated that she got back up, but not how long it took her to do so. Any potential

confusion was further ameliorated by defense counsel reaffirming in its own closing

argument after the above exchange that “Josue Hermosillo testified that he saw

her get hit and get back up.” And, the trial court instructed the jurors to disregard

any remarks by the attorneys the evidence did not support. We presume the jurors

followed the court’s instructions. State v. Hopson, 113 Wn.2d 273, 287, 778 P.2d

1014 (1989). To the extent Molina argues the repeated overruling of his objections

“likely gave the jury the impression that the prosecutor’s argument was proper,”

the jurors were also instructed against drawing such conclusions. Nothing

suggests that the remarks affected the jury verdict.

Molina further asserts the prosecutor improperly vouched for the credibility

of A.P. during closing argument. It is improper for a prosecutor personally to vouch

for the credibility of a witness. State v. Sargent, 40 Wn. App. 340, 343-44, 698

9 No. 80346-8-I/10

P.2d 598 (1985). “Vouching may occur in two ways: the prosecution may place

the prestige of the government behind the witness or may indicate that information

not presented to the jury supports the witness’s testimony.” State v. Coleman, 155

Wn. App. 951, 957, 231 P.3d 212 (2010).

But, in closing argument, a prosecutor has wide latitude to draw reasonable

inferences from the evidence and to express such inferences to the jury. State v.

Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). Prejudicial error will not be

found unless it is “clear and unmistakable” that counsel is expressing a personal

opinion. Sargent, 40 Wn. App. at 344.

Molina relies on State v. Jones, 144 Wn. App. 284, 293, 183 P.3d 307

(2008). This case is distinguishable. In Jones, the State argued that a confidential

informant was credible because the police would have discontinued using an

untrustworthy informant. Id. at 293-94. That argument clearly placed the prestige

of the government behind the informant.

Here, the prosecutor did not state that she personally found A.P. to be

credible or indicate that external evidence supported A.P.’s credibility. While a

prosecutor may not vouch for a witness’s credibility, a prosecutor may freely

comment on witness credibility based on evidence. See State v. Lewis, 156 Wn.

App. 230, 240, 233 P.3d 891 (2010).

Molina also argues the prosecutor’s statements “implied to the jury that in

order to find the State had not proved its case beyond a reasonable doubt, the jury

had to find that [A.P.] had lied under oath.” We disagree.

10 No. 80346-8-I/11

Molina focuses on a segment of the prosecutor’s closing where she asked

“Why would [A.P.] come in here, swear under oath and tell you a story that she

made up?” This court has held a prosecutor’s statement that a witness had no

motive to lie was not impermissible vouching. State v. Robinson, 189 Wn. App.

877, 893-94, 359 P.3d 874 (2015). There, the court found the prosecutor’s

comments were argument that the trial evidence demonstrated the witness had no

reason to lie. Id. at 894. Likewise, the rhetorical questions posed by the prosecutor

in Molina’s case drew reasonable inferences from the trial court record about A.P.’s

lack of motivation to lie.

We find the prosecutor did not commit prosecutorial misconduct in closing

argument.

III. Legal Financial Obligations

Finally, Molina asserts that a DNA collection fee, a second $500 victim

penalty assessment, and discretionary supervision fees were each assessed in

error. The State concedes that all three legal financial obligations should be

stricken from the judgment and sentence. We agree.

First, Molina asserts the $100 DNA collection fee should be stricken. RCW

43.43.754 requires the collection of a DNA sample from every adult or juvenile

convicted of a felony. Individuals sentenced for crimes specified in RCW

43.43.754 must pay a $100 DNA collection fee, unless their DNA was previously

collected as a result of a prior conviction. RCW 43.43.7541.

At sentencing, the trial court imposed a $100 DNA collection fee. But,

Molina had two prior felony convictions as a juvenile. The State concedes its

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records show that Molina had submitted a DNA sample prior to sentencing in this

case. The $100 DNA fee should not have been imposed. Striking the fee is

required under Ramirez, consistent with the State’s records indicating Molina’s

DNA had previously been collected. State v. Ramirez, 191 Wn.2d 732, 747, 426

P.3d 714 (2018).

Second, Molina argues the trial court improperly imposed two $500 victim

penalty assessments rather than a single $500 penalty assessment. RCW

7.68.035(1)(a) mandates one $500 victim penalty requirement “for each case or

cause of action that includes one or more convictions of a felony or gross

misdemeanor.” Molina was convicted of two counts of assault under a single

cause number. So, only one $500 penalty should have been assessed. At

sentencing, the court stated with regards to the $500 penalty that its “intention, of

course, is not that it be double collected for the sake of the record.” However, this

statement is not included in the judgment and sentences. The written orders

impose two assessments, one in the felony judgment and sentence on the second

degree assault conviction and a second in the nonfelony judgment and sentence

on the fourth degree assault conviction. Washington is a written order state. State

v. Huckins, 5 Wn. App. 2d 457, 469, 426 P.3d 797 (2018). The written order is

controlling and the trial court’s oral statements at sentencing are no more than a

verbal expression of its informal opinion at the time. Id. One fee must be stricken.

Third, Molina argues that discretionary supervision fees should not have

been imposed due to his indigency. The supervision fees were not imposed at

sentencing. The State conceded that the court intended to waive any

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nonmandatory fees but imposed the supervision fee because of its inclusion on a

stock form. We accept that concession.

We affirm the judgment and sentence, but remand to strike the DNA

collection fee, the second victim penalty assessment, and the discretionary

supervision fees.

WE CONCUR: