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
STATE OF WASHINGTON No. 43358 -3 -II
Respondent,
v.
JERRO DE JON DAGRACA, UNPUBLISHED OPINION
Appellant. STATE OF WASHINGTON, Consolidated with No. 43365 -6 -II
COREY DUAWAYN YOUNG, UNPUBLISHED OPINION
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 firearm. Both DaGraca and Young ( Defendants) argue that the trial 1 court erred in ruling that the kidnapping was not " incidental to the ongoing 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 ineffective in failing to object to the prosecutor' s questioning. DaGraca separately
1 Br. of Appellant ( Young) at 7. No. 43358 -3 -II, consolidated with 43365 -6 -II
argues that RCW 13: 04. 030( 1)( e)( v)( A), under which he was tried in adult court instead of
juvenile court, violates 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
robbery, and the prosecutor' s misconduct during cross -examination was curable by an
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 One4
jumped over the parking lot fence and approached him. pointed a gun at him, said, " Today
is a bad day.... Give me all your money; give me anything you got," 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. In discussing this fact, Young' s brief of appellant notes that he was the man with the gun.
2 No. 43358 -3 - II, consolidated with 43365 -6 -II
phone and $ 117. 1 Verbatim Report of Proceedings ( VRP) at 115. The other told the first man
to search Yang' s pockets for credit cards. The first man, the one with the gun, found an
Electronic Benefit Transfer ( EBT) " Quest "5 food stamp card and a military identification card in
Yang' s pocket and demanded the personal identification 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 working; you' re lying," hit Yang in the stomach, put the gun on Yang' s stomach, and
punched Yang in the face. 1 VRP at 119. Both men then ordered Yang, at gunpoint, to drive
them to a nearby 7- Eleven, saying, " Let' s go to 7- Eleven to get food and money. If you don' t
get money for us, you' re dead." 1 VRP at 119. They pulled Yang " back [ into] the car" and kept
the gun pointed at him while they directed Yang to drive for " about five[- ]seven minutes" to a 7-
Eleven store. 1 VRP at 121. During the drive, the men said that after they got the money, they
would kill Yang and " put [ him] in the lake so they [ could] have the car." 1 VRP at 121.
Several police officers, standing at the 7- Eleven, saw Yang pull into the lot " very
quickly," " slam ... on [ his] brakes," and " jump ... out and yell" that he was being robbed and
that "[ t] hey got guns." 1 VRP at 71. 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 out of the [ p] assenger front seat," and the other man, " in a black jacket,
jump[ ed] out of the rear passenger side of the car." 1 VRP at 73. 74. The two men split up as
the police chased them through the parking lot of an adjacent shopping mall. Bowl observed the
man in the red hat and red and black jacket shed the jacket.
5 Clerk' s Papers ( CP) ( Young) at 6. 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 8 a continuance for time to prepare adequately. DaGraca himself objected to this continuance;
Young agreed to it. 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 court continued the case until February 27 because no courtrooms were available. On
February 27, the trial court set trial over to the next day. At the February 28 hearing, the trial
6 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 - for- trial violations below. Nor does he so assert on appeal.
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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.
On March 8, the trial court heard another State' s motion to continue because the
prosecutor was unavailable. Young agreed, but DaGraca objected. The trial court found " good
cause" to continue the matter one week to March 15. VRP ( Mar. 8, 2012) 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 cause "; both defendants objected. VRP (Mar. 15, 2012) at 12.
On March 20, the trial court found " good cause" and continued the trial to March 26 because
courtrooms were unavailable; again, both defendants objected. On March 26, again because
courtrooms were unavailable, the trial court continued the case one more day. Trial began the
next day, on March 27.
B. Jury Voir Dire
During voir dire on the first day of trial, Young' s defense counsel asked several
prospective jurors about their attitudes toward tattoos. Prospective juror 18, a prison corrections
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 State presented testimonies from the police officers and Yang, as previously
described. 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 9 performance, were looking for someone to buy them alcohol, were not " familiar with " Yang,
but nevertheless approached him and asked " if he wanted to buy [ them] some alcohol." 2 VRP
at 149. Yang told them to get in his car; with DaGraca sitting behind Yang and Young sitting in
the 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, I misunderstood what [ Young] said. He apparently told me he did not want to
testify]. I thought he said he did want to [ testify]." 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.
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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. The jury found Young guilty of all three charges: first degree
robbery, first degree kidnapping, and unlawful possession of.a firearm. 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 and robbery convictions, stating that, although the crimes were " related," they were
separate and thus did not qualify as " same criminal conduct under [ RCW] 9. 94A. 589." VRP
Apr. 23, 2012) at 4. 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 count I ( first degree robbery) and 72 months for count II ( first degree
kidnapping), to run concurrently. 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 months on count II (first degree kidnapping), and 54 months on count
III (first degree unlawful possession of a firearm), all to run 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 on the underlying counts. The trial court also
7 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 ( cruel and unusual punishment). He contends that in
automatically vesting the adult superior court exclusive original jurisdiction over the serious
violent offenses he was charged with committing ( first degree robbery and first degree
kidnapping), the statute failed to take into account 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 amounting to felony' and in several other enumerated types of cases and proceedings. In these enumerated categories where the constitution specifically grants jurisdiction to the superior courts, the legislature cannot restrict the jurisdiction of the superior courts. 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. Posey, 174 Wn. 2d 131, 135 -36, 272 P. 3d 840 ( 2012). The court went on to explain the
10 evolution of juvenile court as a "' division of the superior court, not a separate court, "' a
statutory creation of the legislature that "[ could ] not" and " did not" " divest the superior courts of
their criminal jurisdiction over juveniles." Posey, 174 Wn.2d at 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 of his eighteenth birthday. RCW 13. 04. 030( 1)( e)( v)( A) and ( C), respectively,
expressly exclude from juvenile court jurisdiction 16- and 17- year -old minors charged with
11 committing first degree robbery and first degree kidnapping. 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 Posey, 174 Wn.2d at 137 ( quoting State v. Werner, 129 Wn.2d 485, 493, 918 P. 2d 916 ( 1996). 11 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:
e) Relating to juveniles alleged or found to have committed offenses ... unless:
v) The juvenile is sixteen or seventeen years old on the date the alleged offense is committed and the alleged offense is: A) A serious violent offense as defined in [ former] RCW 9. 94A.030 [( 2011)];
C) 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) " Serious violent offense" is a subcategory of violent offense and means:
vi) 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 no longer 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. 12 Amendment. Although DaGraca contends that RCW 13. 04. 030 runs afoul of the Eighth
Amendment, he never argues how his sentences were " cruel and unusual." U. S. CONST. amend.
VIII. On the contrary, the trial court sentenced DaGraca to 68 months of confinement for count I
first degree robbery) and 72 months for count II ( first degree kidnapping), far short of the " most
severe punishments" at issue in Graham. 13 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 without parole on a juvenile offender for a nonhomicide crime and stated: " An offender' s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U. S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 ( 2010). Based on this quote, and ignoring Graham' s life homicide / without parole context, DaGraca ( 1) essentially asks us to interpret Graham to mean that any jurisdictional or sentencing statute that automatically treats a juvenile the same as an adult is unconstitutional; and ( 2) contends that the superior court' s "` automatic ' exercise of
original jurisdiction over him violated the Eighth Amendment and Graham. 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 was a separate crime. We agree with the State and the trial court that
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 the underlying crime do not constitute kidnapping. State v. Green, 94 Wn.2d 216, 227, 616
14 Addressing former RCW 13. 04. 030( 1)( e)( v)( A) ( 1999), Division Three of our court held that our state juvenile court automatic decline statute does not violate equal protection and due process rights. State v. Posey, 130 Wn. App. 262, 269, 122 P. 3d 914 ( 2005), rev' d in part, aff'd in part on other grounds, 161 Wn.2d 638, 167 P. 3d 560 ( 2007). The Supreme Court did not address and left intact Division Three' s holding the statute constitutional. Posey, 161 Wn.2d at 643. 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 Br. of Appellant (Young) at 7.
11 No. 43358 -3 - II, consolidated with 43365 -6 -II
16 " P. 2d 628 ( 1980). 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." State v. Elmore, 154 Wn. App. 885, 901, 228 P. 3d 760, review denied, 169
Wn.2d 1018 ( 2010). Thus, in general, whether " kidnapping is incidental to the commission of
other crimes" involves both " a fact - specific determination" and a legal determination about
whether the facts merge to 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 incidental to the ... robbery when ( 1) facilitating the robbery was the restraint' s sole purpose, ( 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
7 was neither " inherent" in nor " integral to [ the] commission" of the already completed robbery;'
rather, it was for the new purpose of obtaining money from Yang' s Quest card. By restraining
Yang at gunpoint and threatening to kill him during the drive to the 7- Eleven18, DaGraca and
Young created a new danger separate from the already completed robbery. We hold that
DaGraca and Young have not shown that the kidnapping restraint " was so incidental to" the
robbery " that it could not support a separate conviction." 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 merged into the " same criminal conduct" as his robbery. Br. of Appellant
Young) at 9; Br. of Appellant ( DaGraca) at 18. For sentencing purposes, "` [ s] ame criminal
conduct' ... means two or more crimes require the same criminal intent, are committed at the
same 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 Berg, 177 Wn. App. at 136; Korum, 120 Wn. App. at 703, 707. 18 Yang testified that one of the defendants had said, " If you don' t get money for us, you' re dead," and that once Yang obtained the money for them, " they[ would] kill [him] and put [ him] in the lake so they [ could] have the car." 1 VRP at 119, 121.
19 The legislature amended 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.
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We review a trial court' s determination of " same criminal conduct" under RCW
9. 94A. 589( 1)( a) for abuse of discretion. State v. Graciano, 176 Wn.2d 531, 533, 295 P. 3d 219
2013). 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 20 him about a bullet located in the red and black jacket that he wore during the crimes. Officers
had already testified that they found six bullets with the gun. 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 Although bullet," the prosecutor never referred to a " seventh" bullet. Suppl. Br. of Appellant (Young) at 6.
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whether the bullet belonged to Young, even though the State had no evidence that such a bullet 21 existed. Neither defendant objected to the prosecutor' s questioning, and Young denied
knowledge of any bullet in the jacket. We agree with Defendants that this cross -examination
was improper. 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
unless the conduct was so flagrant and ill intentioned that an misconduct22 "
to challenge the
instruction could not have cured the resulting prejudice." State v. Lindsay, 180 Wn.2d 423, 430, 23 326 P. 3d 125 ( 2014). 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 24 an opportunity to instruct the jury to disregard the 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 object at trial waives his right to challenge the remarks on appeal. State v. Hamilton, 179 Wn. App. 870, 878, 320 P. 3d 142 ( 2014); State v. Fullen, 7 Wn. App. 369, 389, 499 P.2d 893, cent. denied, 411 U. S. 985 ( 1973).
23 See also State v. Emery, 174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012). 24 Young also argues that the prosecutor' s repeated questioning was " so cumulative and
pervasive" that a jury instruction could not have cured the resulting prejudice. Suppl. Br. of Appellant ( Young) 9. But even if Young could show that the prosecutor' s misconduct was at
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, 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.
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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 prove ineffective assistance of counsel, Young must show that ( 1) his counsel' s
performance was deficient, and ( 2) the deficient performance prejudiced him. Strickland v.
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). A defendant alleging ineffective assistance must 25 overcome "' a strong presumption that counsel' s performance was reasonable. ,, State v. Grier,
171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011) ( quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d
177 ( 2009)), adhered to in part on remand, 168 Wn. App. 635, 278 P. 3d 225 ( 2012), petition for
cert. filed, May 27, 2014.. " Deficient performance is not shown by matters that go to trial
strategy or tactics." State v. Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996). If
Here, the misconduct was harmless because, " 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 are " convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." State v. Guloy, 104 Wn.2d at 412, 426, 425, 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.
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counsel' s conduct "` can be characterized as legitimate trial strategy or tactics, performance is not
deficient. "' Grier, 171 Wn.2d at 33 ( quoting Kyllo, 166 Wn.2d at 863).
To 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 at 34 ( quoting Kyllo, 166 Wn.2d at 862). A defendant' s failure to
prove either prong of this test ends our inquiry. Hendrickson, 129 Wn.2d at 78. Young fails to
meet his burden here. Young cannot show prejudice flowing from counsel' s failure to object to
the prosecutor' s 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 kidnapped Yang at gunpoint. State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653
2012). 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 performance denied him a fair trial. We have already upheld the
superior court' s exercise of jurisdiction under RCW 13. 04. 030( 1)( 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.
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B. Young
1. Trial court irregularities
Young asserts that "[ t] he trial court abused its discretion by allowing jurors to sit and
congregate in the hallway during trial," failing to tell the jurors that they could not be in the
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 arise." State v. Westlund, 13 Wn. App. 460, 472, 536 P. 2d 20, review
denied, 85 Wn.2d 1014 ( 1975). And, unless Young shows that " the irregular incidents are of a
number and magnitude that they are per se unfair, that is, prejudice undoubtedly resulted," he
must show " actual prejudice." Westlund, 13 Wn. App. at 472. Young fails to demonstrate
prejudice.
During the second day of trial, the prosecutor believed that he had seen " about three
jurors]" " in the hallway" and asked the trial court to request the public in the courtroom ( which
included the defendants' friends) not to " congregate outside the courtroom ... in the hallway." 1
VRP at 87. The trial court announced that " the jurors shouldn' t be sitting out there." 1 VRP at
87. Young' s counsel responded, "[ 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 to be there." 1 VRP at 88. At the next recess later that day, the trial court
admonished the jury not to " discuss the case among [ themselves] or with others." 1 VRP at 102.
18 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 during trial. Furthermore, Young has not shown that
the incident prejudiced him in any way. 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 26 signified gang affiliation and that the juror' s comments reflected. bias. The record, however,
does not support Young' s assertions: Nothing in the record shows that this juror was biased; on
the contrary, the juror' s statements reflected an ability to remain impartial. Young never raised
an objection to the fairness of the proceedings. 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 his attitude towards tattoos. Juror 18 stated that tattoos could sometimes, but not always, signal gang affiliations; this prospective juror also confirmed that tattoos would not " cause [ a]
problem" for him. Suppl. VRP ( Mar. 27, 2012) at 97.
19 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) clothing colors and aliases 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 included a " red bandanna," 1 VRP at 44, " a red hat," and a " red and black
jacket." 1 VRP at 73. 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 169. The prosecutor then asked, " Is your stage name ` Little Bones'? ... What about
Little Flame' ?" 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 does not explain how the prosecutor' s questions about his or aliases
showed gang affiliations or prejudiced his right to a fair trial. 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. The prosecutor' s questions about Young' s " stage name " 28 were relevant to the veracity
27 Young did not object to the prosecutor' s questions about his clothes. 28 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. Time for trial and speedy trial rights tria129,
Young next asserts that the trial court violated his CrR 3. 3 time for 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 governs the time for trial in superior court criminal proceedings. CrR 3. 3 provides that a
defendant " shall be brought to trial" within 60 days of the defendant' s commencement date,
which CrR 3. 3( c)( 1) establishes as the arraignment date, if he or she is detained in jail, CrR
3. 3( b)( 1), 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 Young asserts a violation of his " speedy trial rights," which are constitutional, he
primarily raises arguments under CrR 3. 3, which are procedural " time for trial" court rules.
Young ( SAG) at 10.
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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 of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the The bringing of such motion by or on behalf of any continuance.
party waives that party' s objection to the requested delay.
CrR 3. 3( f).
At the January 9, 2012 continuance hearing, Defendants requested and the trial court
ordered the trial reset to February 23. Because the parties agreed to set the trial over until
February 23, ( 1) CrR 3. 3( f)( excluded the period between January 9 and February 23 from the 2)
new time for trial calculation; and ( 2) thus, at the February 23 hearing, Defendants were only 49
days into their reset time for trial period. The subsequent continuances were excluded from the
time for trial period, CrR 3. 3( e)( 3), and the time for trial would not have expired until 30 days
after the end of 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 the court gives notice of the trial date, or the defendant loses the right to object. CrR
3. 3( d)( 4). 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 how the trial court violated his and federa131 constitutional speedy trial rights or how
the continuances prejudiced him; thus, his Sixth Amendment claim fails. See State v. 011ivier,
178 Wn.2d 813, 826, 312 P. 3d 1 ( 2013), pet. for cent. filed, May 7, 2014. 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 under the applicable court rules. See RAP 10. 10( c) ( " the
appellate court is not obligated to search the record in support of claims made in a
defendant / appellant' 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. 32, RCW 9. 94A. 533( 3) 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, the firearm . . . enhancements must be added to the total period of
30 WASH. CONST. art I, § 22.
31 U. S. CONST. amend. VI.
32 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 all offenses. [ T] he following additional times shall be added to 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 of a firearm ( a Class B felony). See RCW
33. 9A.56. 200( 2), 9A.40. 020( 2), 9. 41. 040( 1)( b) 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 enhancements under RCW 9. 94A.533( 3). The trial court
imposed ( 1) standard low end sentences for count I, first degree robbery ( 87 months) and for
count II, first degree kidnapping ( 110 months), both Class A felonies; and ( 2) a standard high
end sentence for count III, 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: