    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE
 STATE OF WASHINGTON,
                                                   No. 77004-7-1
                      Respondent,
                                              ORDER DENYING MOTION FOR
               V.                             RECONSIDERATION AND
                                              WITHDRAWING AND
 DIEGO TAVARES,                               SUBSTITUTING OPINION

                      Appellant.


       The appellant, Diego Tavares, has filed a motion for reconsideration of the opinion

filed on June 17, 2019, and the State has filed a response. The court has determined

that the motion should be denied, but the opinion should be withdrawn, and a substitute

opinion filed; now, therefore, it is hereby

       ORDERED that the motion for reconsideration is denied; and it is further

       ORDERED that the opinion filed on June 17, 2019 is withdrawn; and it is further

       ORDERED that a substitute unpublished opinion shall be filed.
 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                    No. 77004-7-1
                       Respondent,
                                                    DIVISION ONE
               V.
                                                    UNPUBLISHED OPINION
 DIEGO TAVARES,

                      Appellant.                    FILED: August 26, 2019


       APPELWICK, C.J. — Tavares appeals his conviction for first degree murder

of Camacho Vergara.        He argues that the State failed to prove beyond a

reasonable doubt that he had premeditated intent to kill Camacho Vergara. He

further asserts that the trial court erred in not instructing the jury on second degree

manslaughter, excluding certain evidence under ER 404(b), and improperly

commenting on the evidence through a jury instruction. He also argues that

cumulative error deprived him of his right to a fair trial. Finally, he challenges the

trial court's imposition of certain legal financial obligations. We affirm Tavares's

conviction, but remand to the trial court to strike the criminal filing fee and

reconsider the imposition of the DNA collection fee.

                                       FACTS

       On December 11, 2015, Gloria Hernandez hosted a party at her house in

Everett. She lived there with her husband, daughter-in-law, granddaughter, and

five children, including her son, Iseiah Hernandez. About 10 of Iseiah's1 friends


       1 We refer to Iseiah Hernandez by his first name for clarity.
No. 77004-7-1/2


attended the party. Some of the people who attended the party were associated

with two allied gangs,"Wet Back Pride"(WBP)and "Los Angeles Crazies"(LAC).

Those people included Jose Silva-Padilla, the "shot caller2 of WBP.

      Anthony Camacho Vergara was one of lseiah's friends at the party. In the

early morning hours of December 12, Camacho Vergara, lseiah, and a few other

people went from the house to the garage to smoke marijuana. After Camacho

Vergara smoked marijuana, he decided to go outside and "take a breather." About

45 seconds later, the people in the garage heard three pounding noises. They

went outside and found Camacho Vergara laying in front of Iseiah's truck. He was

unresponsive and had blood on his forehead.

      Partygoers placed Camacho Vergara in a car and drove him to the hospital,

where he died. The Snohomish County Chief Medical Examiner determined that

his cause of death was a penetrating gunshot wound to the head.

      Earlier on December 11, Edgar Calixto, a member of the "Sur Town

Rascals"(STR) gang, was driving around Everett with two other people, Christian

Guzman and Irvin Martinez-Lopez. The three had been smoking marijuana and

methamphetamine, and later met up with Guillermo Padilla, a member of the

"Desmadrosos"(DSM) gang. The STR and DSM gangs were friendly with one

another. Padilla told them about a party on Casino Road that WBP might attend.

Casino Road used to be WBP and LAC's area, and STR and DSM were trying to

take it over. WBP and LAC were rivals of STR and DSM.



      2 The "shot caller" is   the person in charge.

                                              2
No. 77004-7-1/3


      After meeting with Padilla, Calixto was driving with Guzman and Martinez-

Lopez when he saw Diego Tavares, another STR member. Tavares and another

person then got in Calixto's car. They eventually headed to the Casino Road party

at the Parkridge Apartments. Calixto and Padilla both testified that they went there

to cause trouble. Padilla testified, "Well, all of us had guns and we went to find

rivals. If we found them, shoot at them." When they arrived at the party, they

walked behind the apartment where the party was, and everyone ran out. They

chased the people who ran out, thinking they were WBP members. They then ran

back to the car when they heard a siren, and Padilla dropped Tavares and Guzman

off at a McDonald's.

       Later, around 11:00 p.m., Calixto and Martinez-Lopez were smoking

methamphetamine together in a parking lot when Calixto got a Facebook call from

Tavares. Tavares told him that he had just been chased by WBP and LAC

members,they had a gun, and they were trying to shoot him. Calixto told Martinez-

Lopez to call Padilla, because Padilla had another gun. Calixto already had a gun

with him. They picked up Padilla, who brought his gun. They picked up Tavares

next. Martinez-Lopez testified that Tavares "looked high" and appeared angry. He

testified that Tavares mentioned something about a house party at Iseiah's, which

he had seen on Facebook. According to Calixto, Tavares said, "I'm trying to go

get these fools."

       They drove to the party, and, according to Martinez-Lopez, drove by ISeiah's

backyard. Martinez-Lopez, Calixto, and Padilla all testified that Tavares saw

people in the backyard, or on the back porch. According to Padilla, Tavares said


                                            3
No. 77004-7-1/4


"that's them" when he saw people on the back porch, and told them to turn back.

Calixto then pulled his car into the next street.

       Martinez-Lopez, Calixto, and Padilla all testified that, once they parked,

Tavares asked Calixto for his gun. Calixto would not give him his gun and told

Tavares to take Padilla's gun. According to Martinez-Lopez and Calixto, Tavares

then asked Padilla for his gun, and Padilla gave it to him. Calixto testified that

Padilla told Tavares the gun was already "cocked back" and "on safety," and to

click the safety off when he wanted to shoot. Padilla denied telling Tavares how

the gun worked. He testified that Tavares grabbed his gun and got out of the car.

       Martinez-Lopez and Calixto testified that, once Tavares got out of the car,

he walked in the direction of lseiah's house. Then, Martinez-Lopez, Calixto, and

Padilla heard gunshots, and saw Tavares running back to the car.3 Once Tavares

got back in the car, Calixto drove away. According to Calixto, Tavares told him

that "he saw a spark when he shot the bullet," and "[w]hen he hit the garage door,

he saw a spark." According to Martinez-Lopez and Padilla, Tavares also said he

"saw a body drop."

       Calixto testified that he later met up with Padilla, who told him that everyone

on Facebook was saying Camacho Vergara got shot. Calixto knew who Camacho

Vergara was, and had heard he was a member of WBP or LAC at the time.




                              that he heard three gunshots, Calixto testified that
       3 Martinez-Lopez testified
he heard two to three gunshots, and Padilla testified that he heard three to four
gunshots.

                                              4
No. 77004-7-1/5


       The day of the shooting, Tavares spoke with his sister. She testified that

he. told her someone had been following him the night before. He told her that

someone had been trying to shoot at him, and that he then went after them and

tried shooting at them.

       Tavares spoke with his father the day after the shooting. He testified that

Tavares told him about an incident where he was shot at and chased by two or

three cars. He told him that the people chasing him seemed like they were from

Casino Road, and that he hid until they left. Tavares also told him that, after hiding,

he contacted his friends through Facebook and asked them to pick him up, which

they did.

       The State charged Tavares with first degree murder of Camacho Vergara,

and second degree unlawful possession of a firearm. The State also charged

Calixto and Padilla with first degree murder. Calixto and Padilla pleaded guilty to

second degree murder, and agreed to testify at trial.

       Prior to trial, Tavares sought to admit evidence of prior bad acts by Calixto

and Padilla, arguing that the evidence was admissible to prove motive, intent,

preparation, and plan under ER 404(b). The State sought to exclude that evidence

as inadmissible propensity evidence under ER 404(a).

       The court excluded evidence that Padilla (1) received the nickname

"Triggerz" because he was known for shooting at other people,(2) went to a fall

2015 party attended by WBP members with the intention of shooting at rival gang

members, kicked open the door, and fired several rounds inside, (3) shot at a car

occupied by rival gang members in 2015, resulting in the car crashing, and (4)shot


                                              5
No. 77004-7-1/6


at a rival gang member or members on at least one other occasion. The trial court

also excluded evidence that Calixto (1) shot at people to prove himself for

admission to STR,(2)shot at a car leaving a party attended by rival gang members

in Shoreline, and (3) once shot a weapon into the air to scare rival gang members.

       At trial, the court instructed the jury on the lesser included offenses of

second degree murder and first degree manslaughter, but did not instruct the jury

on second degree manslaughter. Tavares took exception to the court's failure to

give a second degree manslaughter instruction.

       The jury found Tavares guilty of first degree murder, but not guilty of second

degree unlawful possession of a firearm. The trial court sentenced him to 25 years

in prison. The court also imposed legal financial obligations, including a $200

criminal filing fee and a $100 biological sample fee. Tavares appeals.

                                   DISCUSSION

       Tavares makes six arguments. First, he argues that the evidence was not

sufficient to prove that he or an accomplice had premeditated intent to kill

Camacho Vergara. Second, he argues that the trial court erred in not instructing

the jury on second degree manslaughter. Third, he argues that the court's

exclusion of certain evidence under ER 404(b) deprived him of his right to present

a complete defense. Fourth, he argues that the court improperly commented on

the evidence. Fifth, he argues that cumulative error deprived him of his right to a

fair trial.   And, sixth, he argues that his criminal filing fee and DNA

(deoxyriboneucleic acid) collection fee should be stricken.




                                             6
No. 77004-7-1/7


  I.   Sufficiency of Evidence

       Tavares argues first that the State failed to prove that he committed first

degree murder. He asserts that the jury instructions required proof of premeditated

intent to cause the death of Camacho Vergara specifically, not the death of

"another person." He further asserts that, whether the jury found him guilty as a

principal or an accomplice, the evidence did not prove liability under the jury

instructions.

       The sufficiency of the evidence is a question of constitutional law that we

review de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).

Evidence is sufficient to support a conviction if, viewed in the light most favorable

to the prosecution, it permits any rational trier of fact to find the essential elements

of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,

829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's

evidence and all inferences that reasonably can be drawn therefrom."                 Id.

Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94

Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. See State v. Johnston, 156 Wn.2d 355, 365-66, 127 P.3d 707(2006).

       Premeditation must "involve more than a moment in point of time." RCW

9A.32.020(1). To establish premeditation, the State must show "the deliberate

formation of and reflection upon the intent to take a human life," which "involves

the mental process of thinking beforehand, deliberation, reflection, weighing or

reasoning for a period of time, however short." State v. Hoffman, 116 Wn.2d 51,


                                               7
No. 77004-7-1/8


82-83, 804 P.2d 577 (1991). "Premeditation can be proved by circumstantial

evidence where the inferences drawn by the jury are reasonable and the evidence

supporting the jury's verdict is substantial." Id. at 83.

       Here, the jury instructions provide,

             To convict the defendant of the crime of murder in the first
       degree as charged in Count 1, each of the following elements of the
       crime must be proved beyond a reasonable doubt:

             (1) That on or about the 12th day of December, 2015, the
       defendant, or a person to whom the defendant was an accomplice,
       acted with intent to cause the death of Anthony Camacho Vergara;

              (2) That the intent to cause the death was premeditated;

             (3) That Anthony Camacho Vergara died as a result of the
       defendant's acts or the acts of an accomplice to the defendant; and

            (4) That any of these acts occurred in the State of
       Washington.

       The first degree murder statute, RCW 9A.32.030, does not require the

defendant to have acted with premeditated intent to cause the death of a named

person. See RCW 9A.32.030(1)(a). Rather, it requires the defendant to have

acted with premeditated intent to cause the death of "another person." RCW

9A.32.030(1)(a).

       Here, the "to convict" instruction required the State to prove that either

Tavares or an accomplice acted with intent to cause the death of Camacho

Vergara, and that the intent was premeditated. The State did not object to the

instruction. Under the law of the case doctrine, jury instructions not objected to

become the law of the case. State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d

900(1998). "In criminal cases, the State assumes the burden of proving otherwise



                                               8
No. 77004-7-1/9


unnecessary elements of the offense when such added elements are included

without objection in the 'to convict' instruction." Id. at 102. As a result, Tavares

argues that the State took on the added burden of proving premeditated intent to

cause the death of Camacho Vergara, not simply the death of "another person."

      The State argues that, under the jury instructions, it was not necessary for

Tavares to know the identity of the specific person that he killed. Relying on State

v. Tyler, 191 Wn.2d 205, 422 P.3d 436 (2018), it asserts that the to convict

instruction allowed it to prove that Tavares had premeditated intent to cause the

death of either Camacho Vergara or another person.

       In Tyler, the to • convict instruction required the State to prove that "the

defendant knowingly received, retained, possessed, concealed, disposed of a

stolen motor vehicle." 191 Wn.2d at 209. A separate definitional instruction

inserted the word "or" before "disposed of a motor vehicle." Id. at 216. On

appeal, Tyler argued that the instruction required the jury to find he committed all

the acts that constituted possession: "received, retained, possessed, concealed,

[and] disposed of a motor vehicle." Id. The State Supreme Court rejected his

argument. Id. Viewing the instructions as a whole, it found that the definitional

instruction set forth clarifying language, using the disjunctive "or." Id. at 217. And,

it noted that Tyler's argument would require the court to read the word "and" into

the instruction. Id. at 218.

       The to convict instruction here does not contain an ambiguity in need of

clarification. Rather, the State's argument would require us to strike specific




                                              9
No. 77004-7-1110


language from the to convict instruction which would broaden the meaning of the

instruction. Tyler does not control, Hickman does. See 135 Wn.2d at 102.

      Tavares argues that the evidence is insufficient to prove he had

premeditated intent to cause Camacho Vergara's death.          He contends that

evidence that he had premeditated intent to kill rival gang members does not prove

he had premeditated intent to kill Camacho Vergara specifically.

      Padilla testified that LAC members shot at Tavares before the shooting.

Calixto testified that Tavares said something about "trying to go get them."

Martinez-Lopez testified that Tavares mentioned something about a house party

at lseiah's. And, Martinez-Lopez, Calixto, and Padilla all testified that Tavares

walked towards lseiah's house with a gun, they heard gunshots, and Tavares

came running back.

      But, importantly, both Calixto and Tavares knew Camacho Vergara. When

asked if he knew Camacho Vergara to be in a gang, Calixto testified that he "heard

he was in a gang around that time." He also testified that he knew who Camacho

Vergara was, and that he had known him since middle school. Specifically, he

testified that he had heard Camacho Vergara was from WBP, and that somebody

else told him he was from LAC. Tavares and Calixto were members of STR, and

Padilla was a member of DSM. STR and DSM were rivals of WBP and LAC.

      There is also testimony that Tavares knew Camacho Vergara, and that they

were friends. Oscar Barrientos Maciel, Tavares's cousin, testified that Tavares

and Camacho Vergara were "pretty good friends" when Barrientos Maciel was in




                                           10
No. 77004-7-1/11


high school with Camacho Vergara. Barrientos Maciel did not know if the two had

any problems around the time Camacho Vergara was shot.

       Viewing this evidence in a light most favorable to the State, a reasonable

jury could find that Tavares had premeditated intent to kill Camacho Vergara

specifically.

       Tavares argues next that the verdicts establish the jury rejected the theory

that he was the principal who shot Camacho Vergara. He points out that although

the jury convicted him of first degree murder, it found him not guilty of unlawful

possession of a firearm. Therefore, he argues that this court cannot affirm on a

theory that the evidence proved principal liability under the instructions. He states

that the "validity of the conviction turns on accomplice liability."




        4 Relying on State v. Dreewes, 2 Wn. App. 2d 297, 409 P.3d 1170 (2018),
reversed in part, 192 Wn.2d 812, 432 P.3d 795 (2019), Tavares also argues that
the evidence was insufficient to convict him as an accomplice because he did not
have actual knowledge of the crime as set out in the to convict instruction.
However, Dreewes does not control. In Dreewes, the issue was whether the State
had to prove that Dreewes had actual knowledge that she was promoting or
facilitating assault in the second degree against the named victim to establish
accomplice liability. Id. at 323-24. The court found that it did, and determined that
the evidence was insufficient to support that Dreewes acted with actual knowledge
that she was promoting or facilitating an assault against the victim. Id. at 324. The
State Supreme Court reversed the Court of Appeals on this issue, holding that it
was enough that Dreewes had general knowledge of her coparticipant's
substantive crime. Dreewes, 192 Wn.2d at 825-26, 831. Here, the State had the
burden of proving that either Tavares or someone to whom he was an accomplice
had premeditated intent to cause Camacho Vergara's death. The State met its
burden of proving that Tavares had premeditated intent.

                                              11
No. 77004-7-1/12


       In the context of premeditated first degree murder by accomplices,"the law

of accomplice liability allows the jury to reach a conviction by splitting the elements

of premeditated first degree murder between accomplices." State v. Walker, 182

Wn.2d 463, 483, 341 P.3d 976 (2015).

      A conviction based on split elements may be affirmed "[s]o long as
      the State proved beyond a reasonable doubt to the satisfaction of all
      of the jurors that at least one of the participants [had the requisite
      intent] and at least one but not necessarily that same participant
      [committed the criminal act]."

Id. (alteration in original)(quoting State v. Haack, 88 Wn. App. 423, 429, 958 P.2d

1001 (1997)).

       In a special verdict form that asked whether Tavares was armed with a

firearm at the time of the murder, the jury answered "no." The to convict instruction

required the jury to find that Camacho Vergara died "as a result of the defendant's

acts or the acts of an accomplice to the defendant." It also required the jury to find

that Tavares, or someone to whom he was an accomplice, acted with premeditated

intent to cause the death of Camacho Vergara. Thus, regardless of whether

Tavares was the shooter, the jury still had to find that either he or another

participant had premeditated intent to kill Camacho Vergara.

       The State first points to Padilla's testimony that, before the shooting, LAC

members shot at Tavares. Calixto testified that Tavares said something about

"trying to go get them," and specifically said, "I'm trying to go get these fools."

Martinez-Lopez testified that Tavares mentioned a house party at lseiah's that he

had seen on Facebook.




                                             12
No. 77004-7-1/13


        The State next points to Padilla's testimony that, while driving, Tavares saw

people and said "that's them." According to Martinez-Lopez, Calixto, and Padilla,

Tavares then walked away from the car with a gun, they heard gunshots, and

Tavares came running back. Tavares's sister testified that later, he told her that

people had tried shooting at him, and that he went after them and tried shooting at

them.

        The State last points to Calixto's testimony that he heard Camacho Vergara

was in a gang around that time. As established above, Calixto knew who Camacho

Vergara was, and knew he was from WBP or LAC. And, Barrientos Maciel testified

that Tavares and Camacho Vergara knew each other and were friends.

        Viewing this evidence in a light most favorable to the State, a reasonable

jury could find that Tavares and Calixto knew Camacho Vergara's identity, knew

that he was a member of LAC or WBP, and knew LAC and WBP members would

be at the party. It could find that Tavares, Calixto, and Padilla planned to shoot

LAC and WBP members in retaliation for shooting at Tavares. Specifically, it could

find that they went to Isaiah's home intending to shoot members of those gangs,

that one or more of them spotted LAC or WBP members outside the house, and

that one or more of them left the car armed, spotted Camacho Vergara, and shot

him. Among the participants, all of the elements of the crime are supported by

substantial evidence. Under Walker, even though the jury found that Tavares was

not armed during the murder, it could properly find that Tavares was an accomplice

to the premeditated murder of Vergara.




                                             13
No. 77004-7-1/14


       The evidence is sufficient to allow a jury to conclude that Tavares was an

accomplice and that he or another accomplice had premeditated intent to cause

Camacho Vergara's death.

 II.   Lesser Included Offense Instruction

       Tavares argues second that the trial court erred in not instructing the jury

on the lesser included offense of second degree manslaughter. At trial, Tavares

took exception to the court's failure to give a second degree manslaughter

instruction.

       When a defendant is charged with an offense, the jury may find the

defendant guilty of an offense that is necessarily included within that with which he

or she is charged. RCW 10.61.006. Under State v. Workman, a defendant is

entitled to an instruction on a lesser included offense if two elements are met. 90

Wn.2d 443, 447, 584 P.2d 382 (1978). First, each of the elements of the lesser

offense must be an element of the offense charged. Id. at 447-48. Second, the

evidence must support an inference that the lesser crime was committed. Id. at

448. Second degree manslaughter is a lesser included offense of first degree

murder. See State v. Collins, 30 Wn. App. 1, 15, 632 P.2d 68 (1981)("[M]urder

would include manslaughter in the first and second degrees; they are not

inconsistent mental states."). Thus, the outcome of this issue turns on the second,

factual prong.

       When substantial evidence in the record supports a rational inference that

the defendant committed only the lesser included or inferior degree offense to the

exclusion of the greater offense, the factual component of the test for entitlement


                                             14
No. 77004-7-1/15


to an inferior degree offense instruction is satisfied. State v. Fernandez-Medina,

141 Wn.2d 448, 461, 6 P.3d 1150 (2000). The evidence must be viewed in the

light most favorable to the party requesting the instruction. Id. at 455-56. To satisfy

the factual prong, the evidence must affirmatively establish the defendant's theory

of the case—it is not enough that the jury might disbelieve the evidence pointing

to guilt. Id. at 456. We review the decision not to give a lesser included offense

instruction for an abuse of discretion. See State v. Picard, 90 Wn. App. 890, 902,

954 P.2d 336 (1998).

       The trial court instructed the jury on first degree manslaughter, which is

committed by recklessly causing the death of another person.                     RCW

9A.32.060(1)(a). "Recklessness" requires that a person "know() of and disregard()

a substantial risk that a wrongful act may occur and his or her disregard of such

substantial risk is a gross deviation from conduct that a reasonable person would

exercise in the same situation." RCW 9A.08.010(1)(c).

       A person is guilty of second degree manslaughter "when, with criminal

negligence, he or she causes the death of another person." RCW 9A.32.070(1).

A person acts with criminal negligence when "he or she fails to be aware of a

substantial risk that a wrongful act may occur and his or her failure to be aware of

such substantial risk constitutes a gross deviation from the standard of care that a

reasonable person would exercise in the same situation." RCW 9A.08.010(1)(d).

       Tavares argues that there was evidence indicating the shooter did not see

Camacho Vergara, and that Camacho Vergara was at an unexpected place when

the shooting happened. He also argues that the evidence showed that Tavares,


                                             15
No. 77004-7-1/16


Calixto, Martinez-Lopez, and Padilla were high at the time of the shooting. Viewing

the evidence together, Tavares contends that a jury could have rationally

concluded that he was unaware of a substantial risk of causing the death of a

person by firing at vehicles or a garage 25 feet away from the house. He relies on

State v. Warden, 80 Wn. App. 448, 909 P.2d 941 (1996), aff'd, 133 Wn.2d 559,

947 P.2d 708 (1997).

      In Warden, this court determined that evidence of Warden's diminished

capacity due to a dissociative episode supported an inference that she acted either

recklessly or negligently. 80 Wn. App. at 455-56. At trial, a psychiatrist had

testified about Warden's history as a victim of abuse, and offered his opinion that

Warden lacked the mental capacity to formulate the intent to kill. Id. at 451-52.

The trial court instructed the jury that it could take evidence of Warden's mental

condition into account in determining whether she had intent to kill. Id. at 452.

      This court found that evidence that a defendant lacks the intent to cause

death is sufficient, under Workman's factual prong, to support an inference that the

defendant committed manslaughter. Id. at 455. Therefore, it held that the trial

court should have instructed the jury on both first and second degree

manslaughter. Id. at 456. In doing so, the court relied on two cases where

evidence of intoxication supported an inference that the defendant acted

recklessly, State v. Jones,95 Wn.2d 616,628 P.2d 472(1981), and State v. Berge,

25 Wn. App. 433,607 P.2d 1247 (1980). Id. at 455.




                                            16
No. 77004-7-1/17


       In Jones, the victim was stabbed several times after a struggle ensued

between him and the defendant. 95 Wn.2d at 618. Jones testified at trial that he

had drunk 9 or 11 beers before the incident, and a witness who talked to him after

the incident "'thought possibly he had been drinking." Id. at 622. Another witness

who talked to Jones before the incident noticed that the whites of his eyes were

red and his speech was slurred. Id. And,soon after the crime, police placed Jones

in the "'drunk tank" at the police station. Id.

       In Berge, the defendant shot and killed the victim as he slept in Berge's

living room. 25 Wn. App. at 434. At trial, Berge testified that, before the shooting,

he had voluntarily ingested cocaine.        Id.    And, three defense psychiatrists

concluded that Berge suffered from a toxic paranoid psychosis at the time of the

shooting. Id. at 434-35. In both Jones and Berge, the trial court instructed the jury

that it could consider the defendant's intoxication. Jones, 95 Wn.2d at 622; Berge,

25 Wn. App. at 439.

       Warden, Jones, and Berge are distinguishable. The only evidence of

Tavares's intoxication at the time of the shooting was testimony by Martinez-

Lopez, Calixto, and Padilla that he appeared high. No evidence established a

factual basis for intoxication or an alleged diminished mental capacity. No expert

testimony was presented. This is not substantial evidence that Tavares was

incapable of appreciating the substantial risk that firing a gun would cause the

death of another person. And, unlike each case cited, the trial court was not asked

to give and did not give an instruction permitting the jury to consider alleged




                                              17
No. 77004-7-1/18


intoxication or diminished mental capacity. The trial court did not abuse its

discretion in failing to instruct the jury on second degree manslaughter.

       Even if the trial court had erred in not providing a second degree

manslaughter instruction, the error would be harmless. Tavares cites State v.

Condon, 182 Wn.2d 307, 343 P.3d 357 (2015), for the proposition that the

erroneous denial of a defendant's request for the jury to be instructed on a lesser

offense requires reversal. The Condon court relied on State v. Parker, 102 Wn.2d

161, 683 P.2d 189 (1984), for that proposition. 182 Wn.2d at 326.

       In Parker, the State Supreme Court held that the trial court committed

prejudicial error in failing to instruct on the lesser included offense of reckless

driving. 102 Wn.2d at 166. The jury had been instructed on felony flight, and no

lesser included offense. Id. at, 163, 166. The Court of Appeals had presumed

from the jury's guilty verdict that the jury rejected Parker's intoxication defense,

and that a retrial would not produce a different result. Id. But, the State Supreme

Court found that "the jury had no way of using the intoxication evidence short of

outright acquitting Parker, because they were never told that the option of the

lesser-included offense existed." Id. It clarified, "This court . . . has never held

that, where there is evidence to support a lesser included offense instruction,

failure to give such an instruction may be harmless." Id. at 164.

       Unlike Parker, the jury here was not presented with an all or nothing choice.

The trial court instructed the jury on intermediate offenses, the lesser crimes of

second degree murder and first degree manslaughter. The jury verdict finding

premeditated intent necessarily rejected a finding of intent without premeditation


                                            18
No. 77004-7-1/19


or a finding of recklessness. Had the jury believed that Tavares was less culpable

because he was intoxicated, logically it would have returned a verdict on the lesser

offenses of second degree murder or first degree manslaughter. See State v.

Hansen, 46 Wn. App. 292, 298, 730 P.2d 706, 737 P.2d 670(1986). "Any error in

failing to instruct on a lesser included offense does not require reversal if the factual

question posed by the omitted instruction was necessarily resolved adversely to

the defendant under other, properly given instructions." Id. at 297. Such is the

case here. Any error was harmless.

 III.   Other Suspect Evidence and ER 404(b)

        Tavares argues third that the trial court's exclusion of other suspect

evidence deprived him of his right to present a complete defense. He asserts that

evidence of Calixto and Padilla's prior bad acts was relevant to show that they had

the motive, intent, and ability to commit the offense, pursuant to ER 404(b).5



        5The State argues that Tavares has not preserved this issue for appeal.
Before trial, the State asked the court to clarify that certain evidence regarding
Calixto and Padilla was inadmissible. At that time, Tavares renewed his motion to
admit evidence of their prior bad acts. The court ruled that the evidence of prior
bad acts was inadmissible. Next, the court addressed certain character and
reputation evidence that the State moved to exclude. The court ruled, "So at this
point I'm granting the State's motion, but if the defense feels that the door has been
opened or it's appropriate given the evidence, then we'll take that up outside the
presence of the jury." The State argues that this ruling was tentative and Tavares
should have renewed his request to admit the evidence. "[The purpose of a
motion in limine is to avoid the requirement that counsel object to contested
evidence when it is offered during trial." State v. Powell, 126 Wn.2d 244, 256, 893
P.3d 615 (1995). Unless the court indicates that further objections are required,
the losing party is deemed to have a standing objection where a judge has made
a final ruling on the motion. Id. The court's ruling addressed character and
reputation evidence, not evidence of prior bad acts. And, the court did not indicate
that Tavares would have to renew his motion to preserve the issue. Tavares
preserved the issue for appeal.

                                               19
No. 77004-7-1/20


      As to Padilla, the trial court found that evidence that he kicked open a door

and fired shots into a party with WBP members did not show motive in this case.

It stated,"[The evidence] is not indicative of a generalized plan to shoot rival gang

members without any particular provocation and did not particularly show motive

or intent." The court found that evidence that Padilla shot at a car with rival gang

members inside did not show motive here. It also found that evidence that he shot

at rival gang members another time was inadmissible propensity evidence. And,

it found that evidence that he got his nickname because he was known for shooting

at people was inadmissible propensity evidence.

       As to Calixto, the trial court found that evidence that he shot at people to

prove himself for admission into STR was inadmissible propensity evidence, and

did not show motive or intent. It found that evidence that he shot at a car leaving

a party attended by rival gang members was "pretty vague." It stated, "I don't know

when that was supposed to have occurred and, again, it doesn't, to me, seem to

present any motive or intent." The court reached the same conclusion regarding

evidence that Calixto once shot a weapon in the air to scare rival gang members.

       Relying primarily on State v. Arredondo, 188 Wn.2d 244, 394 P.3d 348

(2017), Tavares argues that this evidence was "highly probative on the issue of

motive and intent." There, the State Supreme Court held that the trial court

properly admitted evidence under ER 404(b)that Arredondo, a gang member, was

involved in a previous drive by shooting with a particular rival gang. 188 Wn.2d at

249, 251-52, 263. The trial court held that the incident could be used for motive

and intent. Id. at 259. The victim in the case died from a gunshot wound, and was


                                            20
No. 77004-7-1/21


a member of the same rival gang. Id. at 250-51. The court stated that the evidence

was particularly relevant because the witnesses were unwilling to speak freely. Id.

at 259. It stated, "A jury would need to glean motive and intent through other

means." Id.

       Arredondo argued that the evidence was irrelevant to show motive because

the gang nature of the shooting was never in dispute. j.çj. But, the court noted)

      [E]vidence of a prior drive-by shooting is relevant to assess
      Arredondo's culpability in the December shooting because it
      demonstrates Arredondo's particular motive in reacting violently i
      toward Avila, Vasquez, Rodarte, and Castillo for the simple offense
      of being Surefios at a Nortelio party—i.e., a deep-seated animosity
      toward Suretios. This animosity goes beyond the routine friction
      between gangs, or even the "history of bad blood" between these
      particular gangs.

Id. The court clarified that "[e]vidence is 'relevant' if it makes the existence of a

fact of consequence more or less probable to be true than without the evidence."

Id.

       The court also found that the trial court reasonably balanced the substantial

prejudicial effect of evidence of the drive by shooting against its substantial

probative value. Id. at 264-65. It determined that, "[Oven the apparent code of

silence between the witnesses, perpetrators, and victims, the probative value of

evidence demonstrating Arredondo's motive to attack Avila and his passengers

with an intent to kill or inflict great bodily harm would be particularly high here." Id.

at 264.




                                              21
No. 77004-7-1/22


       Like Arredondo, Tavares argues that evidence that Padilla once shot into

an apartment where WBP members were partying shows a deep-seated animosity

between his gang, DSM, and WBP. But, here, Padilla's motives were not in

dispute. There was overwhelming untainted evidence of Calixto's and Padilla's

motives. They both testified about their rivalry with WBP and LAC, their intent to

cause trouble at a WBP party the night of the shooting, and Padilla's intent to shoot

at rival gang members.

       The remainder of the excluded evidence did not identify which rival gangs

were involved. Thus, the evidence did not go to motive and intent in this case,

where Tavares told Calixto that he had been chased and shot at by WBP and LAC

members specifically. The trial court did not abuse its discretion in excluding

evidence of Calixto and Padilla's prior bad acts.6




        6 On reconsideration, Tavares argues that that this court overlooked his
claim that the trial court violated his Sixth Amendment right to present a complete
defense. We did not. He contends that just because the trial court did not abuse
its discretion under ER 404(b) does not mean that there was no violation of his
constitutional right. Under the Sixth Amendment, no state interest can be
compelling enough to preclude the introduction of evidence of high probative value.
State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). But, we necessarily
concluded that the evidence is not of high probative value when we held that the
trial court properly balanced the substantial prejudicial effect of the evidence at
issue against its low probative value. If the evidence is not of high probative value,
the trial court proceeds with the balancing test. And, because the trial court did
not abuse its discretion applying the balancing test, there is no constitutional
violation. See State v. Blair, 3 Wn.App. 2d 343, 353,415 P.3d 1232(2018)("When
a defendant argues that an adverse evidentiary ruling violates the right to a fair
trial or the right to confrontation, it does not change the standard of review. If the
trial court did not abuse its discretion, the inquiry ends. There is no error.").

                                             22
No. 77004-7-1/23


IV.    Accomplice Testimony Instruction

       Tavares argues fourth that the trial court improperly commented on the

evidence through a jury instruction on accomplice testimony. He asserts that the

instruction told the jury that Calixto and Padilla were accomplices of Tavares,

which was a contested factual issue.

       Under article IV, section 16 of the Washington State Constitution, "Judges

shall not charge juries with respect to matters of fact, nor comment thereon, but

shall declare the law." This provision prohibits a judge from "conveying to the jury

his or her personal attitudes toward the merits of the case" or instructing a jury that

"matters of fact have been established as a matter of law." State v. Becker, 132

Wn.2d 54, 64, 935 P.2d 1321 (1997). We review jury instructions de novo. State

v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).

       The challenged instruction provides,

             Testimony of an accomplice, given on behalf of the State,
       should be subjected to careful examination in the light of other
       evidence in the case, and should be acted upon with great caution.
       You should not find the defendant guilty upon such testimony alone
       unless, after carefully considering the testimony, you are satisfied
       beyond a reasonable doubt of its truth.
       Tavares concedes that this is the language offered by 11 Washington

Practice: Washington Pattern Jury Instructions: Criminal 6.05, at 197 (4th ed.

2016). He also acknowledges that the instruction has been approved by the State

Supreme Court in State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974). But,

he asserts that "whether an instruction is a comment on the evidence depends on

the facts and circumstances of each case." Relying on State v. Painter, 27 Wn.



                                             23
No. 77004-7-1/24


App. 708, 620 P.2d 1001 (1980), he argues that the instruction should have used

the language "alleged accomplice" or "codefendant".

       In Painter, the trial court instructed the jury that m[h]omicide is justifiable

when . . . the slayer has reasonable ground to believe that the person slain intends

to inflict death or great bodily harm." Id. at 711. The instructions defined "great

bodily harm" as "an injury of a more serious nature than an ordinary striking with

the hands or fists. It must be an injury of such nature as to produce severe pain

and suffering." Id. The State Supreme Court had previously found that a similar

definition of "great bodily harm" was not a comment on the evidence. See id. at

714. But, in Painter, the only evidence from which "the jury could find a justifiable

homicide was a threatened striking with hands or fists." Id. The State Supreme

Court determined that by restricting the definition as it did, "the trial court clearly

indicated to the jury that the evidence presented at trial was insufficient to support

the theory of self-defense."7 Id. Thus, it held that the instruction constituted an

impermissible comment on the evidence. Id.

       Painter is distinguishable. The challenged instruction here did not indicate

to the jury that the evidence at trial was insufficient to support Tavares's theory of

the case. In contrast, it instructed the jury that the testimony of "an accomplice"

offered by the State "should be subjected to careful examination in the light of other

evidence in the case, and should be acted upon with great caution." The

instruction did not identify Calixto and Padilla as accomplices. And, Tavares does


       7 The court also determined that the instruction defining "great bodily harm"
did not accurately state the law. Id.

                                             24
No. 77004-7-1/25


not argue that the instruction was an inaccurate statement of the law. He does not

cite other authority to support that the instruction did not "make the law of

accomplice liability manifestly clear," or that it "effectively told the jurors that Mr.

Padilla and Calixto were accomplices of Mr. Tavares."

         The trial court did not improperly comment on the evidence.

 V.      Cumulative Error

         Tavares argues fifth that that cumulative error deprived him of his right to a

fair trial.

         The cumulative error doctrine applies "when a combination of trial errors

denies the accused a fair trial, even when any one of the errors taken individually

would be harmless." State v. Salas, 1 Wn. App. 2d 931, 952,408 P.3d 383, review

denied, 190 Wn.2d 1016, 415 P.3d 1200 (2018). "The test to determine whether

cumulative errors require reversal of a defendant's conviction is whether the totality

of circumstances substantially prejudiced the defendant and denied him a fair trial."

In re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014),

abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621

(2018). If the evidence is overwhelming against a defendant, there is no prejudicial

error. Id. at 691.

         Tavares has not shown any error. Therefore, the cumulative error doctrine

does not apply.




                                              25
No. 77004-7-1/26


VI.    Legal Financial Obligations

       Tavares argues last that his $200 criminal filing fee and $100 DNA collection

fee should be stricken. Relying on House Bill 17838 and State v. Ramirez, 191

Wn.2d 732, 426 P.3d 714 (2018), he argues that the criminal filing fee cannot be

imposed on indigent defendants. He further contends that it is improper to impose

the DNA collection fee if the defendant's DNA has been collected as a result of a

prior conviction.

       In Ramirez, the State Supreme Court held that House Bill 1783 applies

prospectively to cases on appeal. 191 Wn.2d at 747. House Bill 1783 amends

RCW 36.18.020(2)(h) and prohibits courts from imposing the $200 filing fee on

defendants who are indigent at the time of sentencing. See LAWS OF 2018, ch.

269, § 17(2)(h). It also amends RCW 43.43.7541, providing that the $100 DNA

collection fee is not mandatory where "the state has previously collected the

offender's DNA as a result of a prior conviction." Id. § 18.

       The State concedes that the $200 filing fee should be stricken. At Tavares's

sentencing, the trial court suspended the crime lab fee due to his indigency. But,

because the record fails to indicate whether Tavares's DNA had already been

taken, it argues that the $100 DNA fee remains mandatory. It relies on State v.

Thibodeaux, 6 Wn. App. 2d 223, 430 P.3d 700 (2018), review denied, 192 Wn.2d

1029, 435 P.3d 278 (2019).




     8 ENGROSSED SUBSTITUTE H.B. 1783, §§ 17(2)(h), 18, 65th Leg., Reg. Sess.
(Wash. 2018)(House Bill 1783).

                                            26
No. 77004-7-1/27


       In Thibodeaux, the record did not establish that the State had already

collected Thibodeaux's DNA. Id. at 230. As a result, this court found that

Thibodeaux failed to demonstrate that it was impermissible to impose the collection

fee, and rejected his request to strike the DNA fee in light of Ramirez. Id.

       Here, Tavares points to a document attached to his judgment and sentence

that lists his criminal history. The document, dated May 16, 2017, states that

Tavares's DNA was taken. However, it is unclear whether his DNA was taken as

a result of his prior convictions, or in relation to the current case. The date of his

most recent prior conviction was March 6, 2015. A document dated December 15,

2015 states that Tavares's DNA had not been taken. Accordingly, we remand to

the trial court to determine whether Tavares's DNA was taken as a result of his

prior conviction.

       We affirm Tavares's conviction, but remand to the trial court to strike the

criminal filing fee and reconsider the imposition of the DNA collection fee.




WE CONCUR:




                                             27
