                                                                  FILED 

                                                             FEBRUARY 12, 2015 

                                                          In the Office or the Clerk or Court 

                                                        WA State Court or Appeals, Division III 



           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                          )        No. 31441-3-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
BENJAMIN LOPEZ, JR.,                          )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. -       A jury found Benjamin Lopez guilty of second degree

murder and drive-by shooting after a member of a rival gang was shot and killed.

Benjamin l appeals. He raises three issues. First, he contends that the court's to-convict

jury instructions violated due process by misstating the reasonable doubt standard, which

allowed the jury to convict even if reasonable doubt existed. Second, he contends that the

evidence was not sufficient to prove that he acted as an accomplice to the crimes. Last,

he contends that the prosecutor committed misconduct during closing argument, and the

cumulative error of the misconduct warrants reversal. We disagree with these contentions


       To avoid confusion between Abraham Lopez Torres and his brother Benjamin
       I
Lopez, we refer to the men by their first names.
No. 31441-3-II1
State v. Lopez


and affinn.

                                        FACTS

       On April 22, 2011, Adan Beltran was shot and killed outside of his home in

Quincy, Washington. Four men were associated with the shooting-Abraham Lopez

Torres, Benjamin Lopez, Alexis Hernandez, and Roberto Murillo.

       Abraham, Benjamin, and Mr. Hernandez are members of the Marijuanos 13 street

gang, while Mr. Murillo is a member of a Surenos gang. The victim, Mr. Beltran, was a

member of the West Side 18th Street gang. The Marijuanos 13 gang and West Side 18th

gang are rivals and have physically fought with each other. Rumors circulated that the

West Side 18th Street gang was responsible for the death of Marijuanos 13 member

Edwin "Chow" Davalos, with Mr. Beltran being the shooter. Mr. Davalos and Benjamin

were close friends.

       Benjamin was charged with first degree premeditated murder, second degree

murder, and drive-by shooting. Several aggravating circumstances were also charged,

including a gang aggravator. Brothers Abraham and Benjamin were tried together. The

State gave Mr. Hernandez immunity for his involvement with the crime in return for his

testimony at Abraham's and Benjamin's trial. Mr. Murillo pleaded guilty to second

degree murder and did not testifY.


                                            2
No. 31441-3-II1
State v. Lopez


      At the Lopez brothers' trial, Mr. Hernandez testified that he went to Quincy on

April 22 to meet with Benjamin and Abraham at the house of Marcos Avalos. Upon

arriving at the house, Mr. Hernandez saw Benjamin sitting in the front passenger seat of a

car, Abraham sitting in the driver's side passenger seat, and Robert Murillo driving the

car. Mr. Hernandez got into the rear passenger's side seat. Benjamin wanted to buy

marijuana. Benjamin gave driving directions to Mr. Murillo.

      Eventually, the car turned down an alley. Mr. Hernandez observed Abraham

putting on a pair of gloves. The car stopped in the alley between two houses. Abraham

got out of the car and left. Shortly after, Mr. Hernandez heard multiple gun shots. He

then saw Abraham running back to the car. The bandana Abraham was wearing covered

the bottom half of his face and his sweatshirt hood was on with the strings cinched. Only

his eyes were visible. Abraham got back into the vehicle and it sped off. Mr. Hernandez

noticed a .357 caliber handgun on the seat next to him. Benjamin gave driving directions

to Mr. Murillo on how to get out of town.

      The men parked by a canal to smoke some spice. Then, as they drove toward

Wenatchee, a police chase ensued. Abraham attempted to give guns to Mr. Hernandez

but Mr. Hernandez refused to get involved. Mr. Hernandez believed that Benjamin took




                                            3

No. 31441-3-II1
State v. Lopez


the guns. As the vehicle stopped, Mr. Hernandez saw Benjamin throw something out of

the window.

        Benjamin testified to a different account of the crime. He said that he was at Mr.

Avalos's house with Abraham and Mr. Hernandez for a barbeque. When Mr. Murillo

arrived at the party, they all got into his car to buy marijuana from a dealer that Benjamin

knew.

        On the way to the dealer's house, someone saw Mr. Beltran in front of his home.

The men discussed that Mr. Beltran had been deported. Benjamin could not see well and

doubted that the man was Mr. Beltran because of the deportation. Benjamin noticed that

Mr. Hernandez and Mr. Murillo were tense.

        Mr. Murillo turned down an alley in the trailer park. Benjamin heard a gun cock

behind him where Mr. Hernandez was sitting. Mr. Hernandez handed something up to

Mr. Murillo. Benjamin did not see the object, but believed it was a gun. The men

stopped at a trailer. Mr. Murillo said "let's go" and got out of the car with Mr. Hernandez

and Abraham. 10 Report of Proceedings (RP) at 199. Benjamin stayed inside and told

Abraham to get back into the car because he sensed something was going on. Abraham

walked a few feet and got back into the car. Mr. Murillo and Mr. Hernandez went around

the trailer and out of sight of Benjamin. Benjamin heard two or three gunshots and then


                                             4

No. 31441-3-II1
State v. Lopez


saw Mr. Murillo and Mr. Hernandez jogging back to the car. The men took their same

seats and sped off. As they left, they almost hit another car.

       As they parked by the canal to smoke spice, Benjamin asked Mr. Murillo what

happened. Mr. Murillo said nothing, and to shut up and kick back. The men were

apprehended after being chased by police. Benjamin testified that Mr. Murillo and Mr.

Hernandez told him not to talk to the police.

       Four members of the Garces family saw the shooting and testified at trial. Alexia

Garces witnessed the shooting as she was riding in her mother's vehicle. She testified

that she saw a man with a gun shoot another man who was running away. She said the

shooter was wearing dark gloves, dark pants and hoodie with the hood up. The shooter

quickly got into a car and left down the alley.

       Alexia's father and brother were traveling behind Alexia and her mother. Three of

the family members stated that they saw the shooter get back into the rear driver's sidepf

a blue four-door sedan. Two of the family members testified that this same vehicle nearly

collided with them as it attempted to flee the scene. All four family members said that the

occupants of the vehicle were Hispanic males.

       Mr. Beltran was dead by the time emergency personnel responded to the scene of

the shooting. The Washington State Crime Lab determined that the bullet found in Mr.



                                                5

No. 31441-3-II1
State v. Lopez


Beltran's body was fired out of a .25 caliber semi-automatic. The gun was found next to

the front passenger side door of the suspect's car, the location where Benjamin was

sitting.

           DNA2 analysis was performed on items involved in the crime, including a blue knit

glove found inside the vehicle. The investigator found that Abraham was a substantial

contributor to the DNA found on the blue knit glove, with one in 42,000 persons

matching the profile.

           The State introduced testimony and exhibits regarding gang culture in the area.

Deputy Joe Harris, a Grant County police officer with specialized gang training,

explained that it was his job to keep track of gangs in the area and gear members toward

resources that would help them change their lifestyle. Deputy Harris said that a member

is expected to benefitthe gang by "putting in work." 7 RP at 41. Work includes

assaulting rival gang members, and it is expected that members will do something to

disrespect a rival gang member when paths cross, such as throwing gang signs, trying to

instigate a fight, or attacking immediately. A gang member earns respect by putting in

work. Deputy Harris also said that killing a rival gang member suspected of killing a

member of your gang would be "putting in work." 7 RP at 63.


       2 Deoxyribonucleic acid.

                                                6

No. 31441-3-III
State v. Lopez


       Deputy Harris testified that the Marijuanos 13 gang and West Side 18th Street

gang are rivals. He identified signature graffiti from both gangs, noted that an "x" drawn

over the gang graffiti is a sign of disrespect, and stated that West Side 18th Street gang

graffiti in Quincy had been marked in this way.

       Mr. Hernandez and Benjamin testified to the rivalry between the gangs. Mr.

Hernandez said that the Marijuanos had x-ed out 18th Street graffiti and that the

Marijuanos fought with the 18th Street gang more than 20 times. Mr. Hernandez said that

he was shot at by the 18th Street gang three times. Benj amin said that he had been

involved in armed fights with the 18th Street gang, and that killing an 18th Streeter would

benefit his gang.

       Mr. Hernandez said he participated in gang activities with Abraham and Benjamin.

He said the murder of Mr. Davalos angered Benjamin and Abraham, as well as himself.

He confirmed that Marijuanos rumors alleged Mr. Beltran murdered Mr. Davalos. Mr.

Hernandez said that when Mr. Davalos died, one of the brothers said "[0]h, they fucked

up." 7 RP at 210. In remembrance, Benjamin tattooed RIP Chow Loco on his arm for

Mr. Davalos.

       Mr. Hernandez said that committing murder would raise a person's standing in

Marijuanos 13. On the other hand, Mr. Hernandez said that a Marijuanos 13 gang rule



                                             7

No. 31441-3-111
State v. Lopez


prohibits testifying against a fellow gang member, and the penalty for violating the rule is

that they try to kill you or they do kill you.

       When Mr. Hernandez was initially questioned by police, he told them that he knew

nothing about the shooting. He also told police that he was scared to testify against

Benjamin and Abraham. A few days later, Mr. Hernandez spoke to police again and gave

his account of the shooting.

       Abraham's attorney drew attention to the fact that Mr. Hernandez entered into a

deal with the prosecutor and was given absolute immunity in exchange for his testimony.

Defense counsel asked Mr. Hernandez whether his testimony needed to be consistent with

what he previously told law enforcement to benefit from the deal. Mr. Hernandez

responded that he was to testify to the truth. When defense counsel pointed out that the

prosecutor would decide if Mr. Hernandez met the conditions of his agreement to testify,

Mr. Hernandez repeated his obligation was to cooperate. A third time Mr. Hernandez

stated, "I'm just trying to say the truth." 7 RP at 198.

       Benjamin's ,attorney asked Mr. Hernandez whether he ever thought about his

option to lie to police. Mr. Hernandez responded that during his initial interview with

police, he did not want to tell police what happened because he was scared. Counsel

pressed the point, asking, "Well, you did not only not want to tell them what happened, in



                                                 8

No. 31441-3-111
State v. Lopez


fact, you took door number three, didn't you?" 8 RP at 49. Mr. Hernandez responded,

"yes," and that door number three was to "lie." 8 RP at 49. When defense counsel

repeated "[y]ou lied," Mr. Hernandez responded, "I didn't lie-what I'm saying now is

not a lie. What I testified to yesterday and today is not a lie. What I told the officer, I

told him I didn't know what happened, which I did know." 8 RP at 49.

       Defense counsel asked Mr. Hernandez whether the prosecutor told him to

repeatedly say that he was telling the truth and whether he practiced that phrase as part of

a script. Mr. Hernandez responded, "He's told me to tell the truth, to do what's right."

8 RP at 64. Defense counsel then questioned Mr. Hernandez about inconsistencies in his

testimony. Later, defense counsel again questioned Mr. Hernandez about his deal with

the State, stating, "And the exchange [with the State] was this: You testify against them

and you will have your murder charges dismissed." 8 RP at 114. Mr. Hernandez replied,

"Incorrect. The deal was I cooperate and testify truthfully." 8 RP at 114.

       At the conclusion of the State's case, the court dismissed some of the aggravators,

but left all charges in place. Abraham and Benjamin stipulated that they were members

of the Marijuanos 13 criminal street gang.

       The trial court prepared draft jury instructions for the parties to review. The

reasonable doubt standard in the trial court's to-convict instructions informed the jury that


                                              9

No.3l44l-3-III
State v. Lopez


"if, after weighing all of the evidence, you have a reasonable doubt as to anyone of these

elements[,] then you should return a verdict of not guilty." Clerk's Papers (CP) at 143

(emphasis added). A jury instruction conference was held. After receiving comments,

the court invited counsel to prepare proposals to incorporate requested modifications into

the instructions.

       Benjamin's counsel proposed to-convict jury instructions for first and second

degree murder that incorporated accomplice liability. Benjamin's proposed instructions

also used the phrase "should return [a] verdict of not guilty." CP at 128-29 (emphasis

added).

       After the trial court distributed a third draft of proposed jury instructions, the State

alerted the trial court to erroneous wording of the reasonable doubt standard. The State

argued that instructing a jury that it "should" return a verdict of not guilty is improper.

Instead, the State urged the court to instruct the jury according to the Washington Pattern

Jury Instructions, informing the jury of their "duty" to return a verdict of guilty or not

guilty based on the evidence. The State said it was involved in an appeal on the very

same issue and the argument is that "should" is somewhat optional; not a must. The State
          ,
posed the question, "Basically is should mandatory enough or can the jury disregard it or

do what they want? Basically jury nullification either way." 11 RP at 72.



                                              10 

No. 31441-3-III
State v. Lopez


       The trial court stated that it had used the "should" language before and the purpose

of the language was to allow for jury nullification. The court and the State discussed jury

nulli-fication in the presence of the defense. The State took the position that jury

nullification and a corresponding instruction was not supported by law.

       The court asked for the defense's position on the,matter. Abraham's counsel

answered, "The court is not-the proposed instruction does not tell the jury that they can

nUllifY their verdict. That's all." 11 RP at 74. When asked by the court if counsel had

any objection to the use of the word "should" as opposed to "duty," Abraham's counsel

answered "[n]one." 11 RP at 74. The court clarified that the "should" language went

"[bJoth directions." 11 RP at 74. Counsel again answered that he had no objection. The

trial court then asked Benjamin's counsel ifhe had any objections. Counsel replied, "We

have-we don't take exception to any of the instructions as proposed." 11 RP at 74.

       The trial court stated that it was interested in the outcome of the pending appeal on

the issue, "[bJut in this case, since neither defendant-since each defendant waives any

objection, then I think I will not make that change and the jury will be instructed as set

forth in the third draft." 11 RP at 75. The to-convict instructions informed the jury that it

"should return a verdict of not guilty," mirroring the language first suggested by the court

and included in Benjamin's proposed jury instruction. CP at 192, 196,201.



                                             11 

No. 31441-3-111
State v. Lopez


       A jury found Benjamin gUilty of second degree felony murder and guilty of drive-

by shooting. The jury found Benjamin not guilty of first degree murder and acquitted him

of multiple charged aggravating circumstances.

       Benjamin appeals. He assigns error to the to-convict jury instructions. Also, he

contends that the evidence was insufficient to convict him of accomplice liability and that

the prosecutor committed misconduct during closing arguments.

                                         ANALYSIS

       The Trial Court's To-Convict Instructions. For the first time on appeal, Benjamin

contends that the to-convict jury instructions violated his right to due process because

they failed to accurately convey the reasonable doubt standard to the jury. He identifies

the reasonable doubt portion of the instruction that states, if, after weighing all of the

evidence, you have a reasonable doubt as to anyone of these elements, "then you should

return a verdict of not guilty." CP at 192, 196,201 (emphasis added). This language

changes the reasonable doubt standard in 11 Washington Practice: Washington Pattern

Jury Instructions: Criminal 27.04 at 381 (3d ed. 2008) (WPIC) that states "it will be your

duty to return a verdict of not guilty." (Emphasis added.)

       Benjamin maintains that by replacing "your duty" with "should," the trial court's

instruction did not impose a mandatory duty on the jury to acquit if reasonable doubt


                                              12 

No. 31441-3-III
State v. Lopez


existed. This instruction confused the jury and allowed them to return a guilty verdict

even if they had a reasonable doubt as to Benjamin's guilt. Thus, the court relieved the

State of the burden of proof beyond a reasonable doubt, thereby violating due process and

constituting manifest constitutional error. We agree with Benjamin. See State v. Smith,

174 Wn. App. 359, 366, 298 PJd 785, review denied, 178 Wn.2d 1008,308 PJd 643

(2013).

       In a criminal trial, due process conveys the burden on the State to prove every

element ofa crime beyond a reasonable doubt. Victor v. Nebraska, 511 U.S. 1,5, 114 S.

Ct. 1239, 127 L. Ed. 2d 583 (1994). "A corollary of the due process requirement that a

jury find proof beyond a reasonable doubt in order to return a verdict of guilty is that it

must return a verdict of not guilty if the State does not carry its burden .... It is

reversible error to instruct the jury in a manner relieving the State of its burden." Smith,

174 Wn. App. at 366. We apply de novo review to a challenged jury instruction. State v.

Bennett, 161 Wn.2d 303,307,165 PJd 1241 (2007). "The jury instructions, read as a

whole, 'must make the relevant legal standard manifestly apparent to the average juror.'''

State v. Kyllo, 166 Wn.2d 856, 864, 215 PJd 177 (2009) (quoting State v. Walden, 131

Wn.2d 469,473,932 P.2d 1237 (1997)).




                                              13 

No. 31441·3·III
State v. Lopez


       In Smith, the trial court prepared jury instructions that differed from the WPIC.

Smith, 174 Wn. App. at 362. Of importance, the court instructed the jury that '" if, after

weighing all the evidence, you have reasonable doubt[,] you should return a verdict of not

guilty.'" Id. at 363 (some alterations in original). On appeal, Mr. Smith argued that the

instruction relieved the State of its burden of proof because the instruction left the jury

with the impression that it ought to acquit if it possessed reasonable doubt, but acquittal

was not mandatory. Id. at 366-67. Acknowledging the due process rights at stake, this

court allowed Mr. Smith to raise his challenge to the elements instruction for the first time

on appeal because it involved a manifest error involving a constitutional right. Id. at 365.

We held that a corollary of due process requires that a jury must return a verdict of not

guilty if the State does not carry its burden of proof beyond a reasonable doubt. Id. at

366. And, that even though the jury likely understood that the court's use of "should" in

the elements instruction expressed a mandatory action, we could not be sure that it did.

Id. at 368. The trial court's erroneous instruction was a structural error that required

reversal of Mr. Smith's conviction. Id. at 368-69.

       Here, as in Smith, the trial court erroneously instructed the jury that it "should"

return a verdict of not guilty based on the evidence. This instruction relieved the State of




                                              14 

No. 31441-3-III
State v. Lopez


its burden of proving guilt beyond a reasonable doubt. We decline the State's request to

revisit Smith and consider cases outside this court's jurisdiction.

       Even though Smith supports Benjamin's position, we agree with the State that

Benjamin cannot raise this issue for the first time on appeal because he invited the error.

"Even where a constitutional error is manifest, it can still be waived if the issue is

deliberately not litigated during trial." State v. Hayes, 165 Wn. App. 507, 515,265 PJd

982 (2011).3 The invited error doctrine prohibits a party from setting up an error at trial

then complaining of it on appeal. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514

(1990) (quoting State v. Pam, 101 Wn.2d 507, 511,680 P.2d 762 (1984), overruled on

other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995». For example, a

defendant may not request instructions be given to the jury and then complain upon


        3 The State also argued that this issue cannot be raised for the first time on appeal
because it is not a manifest error. We disagree. Generally, an error cannot be raised for
the first time on appeal unless it is a "manifest error affecting a constitutional right."
RAP 2.5(a)(3); State v. O'Hara, 167 Wn.2d 91, 97-98, 217 PJd 756 (2009). Establishing
manifest error requires a showing of actual prejudice. State v. Kirkman, 159 Wn.2d 918,
935, 155 P.3d 125 (2007). Actual prejudice occurs when the asserted error had practical
and identifiable consequences at trial. Id. (quoting State v. WWJ Corp., 138 Wn.2d 595,
603,980 P.2d 1257 (1999». An error in a to-convict instruction is significant because the
instruction implicates the standard used by the jury to determine guilt or innocence. See
State v. Mills, 154 Wn.2d 1,6, 109 P.3d 415 (2005). Thus, misstating the standard by
instructing the jury that it can acquit despite the presence of reasonable doubt has
practical and identifiable consequences and is a manifest error affecting a constitutional
right.

                                              15 

No. 31441-3-II1
State v. Lopez


appeal that the instructions are constitutionally deficient, even if the error is of

constitutional magnitude. State v. Aho, 137 Wn.2d 736, 744-45, 975 P.2d 512 (1999).

The invited error doctrine applies only where the defendant engaged in some affirmative

action by which he knowingly and voluntarily set up the error. In re Pers. Restraint of

Call, 144 Wn.2d 315,326-28,28 P.3d 709 (2001). We apply the invited error doctrine as

a "strict rule" to situations where the defendant's actions at least in part caused the error.

State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999).

       Here, Benjamin invited the error in the jury instructions because he proposed the

erroneous instruction. Also, during the jury instruction conference, the State informed

Benjamin that the "should" language allowed for jury nullification because it did not

impose a mandatory duty to follow the court's instructions on returning a verdict of

gUilty. Yet, when asked for his position on the instruction, Benjamin's attorney did not

take issue with the instruction.

       The invited error doctrine precludes Benjamin from challenging the jury

instruction on appeal. His appeal raises essentially the same arguments that he rejected in

the trial court-no mandatory duty was imposed on the jury to return a not guilty verdict.

He cannot complain of an error that he actively set up at triaL Under these circumstances,

reversal of Benjamin's convictions is not warranted.


                                              16 

No. 31441-3-III
State v. Lopez


       Sufficiency ofEvidence to Prove Accomplice Liability. Benjamin contends that the

evidence is insufficient to support the accomplice liability guilty verdict for drive-by

shooting and second degree felony murder. He maintains that the State failed to prove

that he knew his acts would aid in the drive-by shooting of Mr. Beltran. Further, he

maintains that without an accomplice conviction for the predicate felony, the conviction

for second degree felony murder fails as well.

       In every criminal prosecution, due process requires that the State prove, beyond a

reasonable doubt, every fact necessary to constitute the charged crime. In re Winship,

397 U.S. 358, 364, 90S. Ct. 1068,25 L. Ed. 2d 368 (1970). When a defendant

challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing

the evidence in the light most favorable to the State, any rational trier of fact could have

found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P .2d

1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of

the State and interpreted most strongly against the defendant." Id. The appellant admits

the truth of the State's evidence and all inferences that can reasonably be drawn from it,

giving equal weight to circumstantial and direct evidence. State v. Hermann, 138 Wn.

App. 596, 602, 158 P.3d 96 (2007). We defer to the trier of fact on issues of conflicting




                                              17 

No. 31441-3-II1
State v. Lopez


testimony, credibility of witnesses, and persuasiveness of the evidence. State v.

Killingsworth, 166 Wn. App. 283,287,269 P.3d 1064 (2012).

       A person is guilty of second degree felony murder when he or she commits or

attempts to commit any felony and, in the course or furtherance of such crime, he or she

or another participant causes the death of another person other than one of the

participants. RCW 9A.32.050(1)(b). A person is guilty of drive-by shooting when he or

she recklessly discharges a firearm in a manner that creates a substantial risk of death or

serious physical injury to another person and the discharge is either from a motor vehicle

or from the immediate area of the motor vehicle that was used to transport the shooter or

the firearm, or both, to the scene of the discharge. RCW 9A.36.045(1).

       For a person to be an accomplice to felony murder, the person must with

knowledge that it will promote or facilitate the commission of the crime, solicit,

command, encourage, or request such other person to commit it; or aids or agrees to aid

such other person in planning or committing it. RCW 9A.08.020(3)(a). A person aids in

the commission of a crime if he or she is present and ready to assist in committing the

crime. State v. Wi/son, 95 Wn.2d 828,833,631 P.2d 362 (1981).

       To convict Benjamin as either an accomplice or a principal, the State needed to

prove the particular crime was committed and that Benjamin participated in it. State v.



                                             18 

No. 31441-3-II1
State v. Lopez


Teal, 152 Wn.2d 333,339,96 P.3d 974 (2004). The criminal Ii ability of an accomplice is

the same as that of the principal. State v. Carter, 154 Wn.2d 71, 78, 109 P.3d 823 (2005)

(quoting State v. Graham, 68 Wn. App. 878, 881, 846 P.2d 578 (1993)).

       For felony murder, liability may be imputed to a coparticipant who does not

actually commit the homicide. Id. When one participant in a predicate felony alone

commits a homicide during the commission of, or flight from, such felony, another

participant in the predicate felony has, by definition, committed felony murder. Id.

Therefore, in the felony murder context, the State need not prove that the nonkiller

participant was an accomplice to the homicide. Id. at 79. Rather, the State need prove

only that Benjamin was an accomplice and a participant to the felony offense of drive-by

shooting. See id.

       Here, the evidence to convict Benjamin is circumstantial. There is no direct

evidence to show that he knew that his brother or one of his friends in the car would shoot

Mr. Beltran and that he aided in the crime. However, circumstantial evidence is given the

same weight as direct evidence and can support a guilty verdict.

       Interpreting the evidence and inferences therefrom in favor of the State, we find

there is sufficient evidence to support an accomplice liability verdict for Benjamin. After

weighing the credibility of the witness and the evidence, it was possible for the jury to


                                             19 

No. 31441-3-II1
State v. Lopez


find that Benjamin knew that the murder of Mr. Beltran would occur. Benjamin had

motive to participate in the crime. Benjamin's good friend Mr. Davalos was killed, and

Benjamin's gang believed Mr. Beltran's gang was responsible for the murder. Benjamin

was angry about Mr. Davalos's death. Soon before Mr. Beltran was shot, Benjamin got a

tattoo in his memory reading, RIP Chow Loco. Testimony was given at trial that killing a

rival gang member that killed a member of your gang earns respect and benefits the gang.

Similarly, committing murder in the Marijuanos 13, Benjamin's gang, earned respect.

       Additionally, Benjamin's acts prior to and directly after the shooting provided

circumstantial evidence that he knew that the men were set on killing Mr. Beltran. Mr.

Hernandez testified that Benjamin gave Mr. Murillo directions to the alley where the car

stopped. Mr. Hernandez said that Benjamin did not react to Mr. Murillo stopping or

when his brother got out of the car. When his brother returned with a gun anda bandana

over his face, Benjamin was calm. Benjamin gave directions as the men sped out of

town. The jury could infer from these facts that Benjamin knew Abraham and Mr.

Murillo intended to commit a drive-by shooting and that Benjamin aided in commission

of the crime.




                                            20 

No. 31441-3-III
State v. Lopez


       Prosecutor's Closing Argument. Benjamin contends that the State made several

inflammatory statements during closing arguments that amounted to prosecutorial

misconduct. We address each statement in turn.

       To establish prosecutorial misconduct, Benjamin must show that the prosecutor's

statements were improper and, as a result, prejudicial. State v. Dhaliwal, 150 Wn.2d 559,

578, 79 P.3d 432 (2003). For improper statements that were followed by a proper

objection, a prosecutor's statements are prejudicial if the statement had a substantial

likelihood of affecting the jury's verdict. State v. Emery, 174 Wn.2d 741, 760,278 P.3d

653 (2012).

       However, "[i]fthe defendant did not object at trial, the defendant is deemed to

have waived any error, unless the prosecutor's misconduct was so flagrant and ill

intentioned that an instruction could not have cured the resulting prejudice." Id. at 760­

61. "Under this heightened standard, the defendant must show that (1) 'no curative

instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct

resulted in prejudice that' had a substantial likelihood of affecting the jury verdict. '" Id.

at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).

"Reviewing courts should focus less on whether the prosecutor's misconduct was flagrant

or ill intentioned and more on whether the resulting prejudice could have been cured." Id.


                                              21 

No. 31441-3-111
State v. Lopez


at 762. A proper jury instruction generally c(:mnot cure a statement that has an

inflammatory effect. Id. at 763.

       "Any allegedly improper statements should be viewed within the context of the

prosecutor's entire argument, the issues in the case, the evidence discussed in the

argument, and the jury instructions." Dhaliwal, 150 Wn.2d at 578. A prosecutor is given

wide latitude in closing arguments to draw and express reasonable inferences from the

evidence. State v. Perez-Mejia, 134 Wn. App. 907, 916, 143 P.3d 838 (2006).

       1. "Right thing to do." First, Benjamin alleges that the prosecutor attempted to

align the jury with the prosecutor's office by telling the jury that convicting Benjamin was

the right thing to do. In the beginning of closing argument, the prosecutor said,

             No matter what you do when you get back there to deliberate, it's not
      going to be easy. Nobody ever told you it would be .... But when it's
      done, I'm going to ask you to do one thing. I'm going to stand here and ask
      you to do what is right. Because it is proper and because the evidence in the
      case leaves you only one conclusion.

12 RP at 30.

      It is misconduct for a prosecutor to "try to exhort the jury to 'do its job'; that kind

of pressure, whether by the prosecutor or defense counsel, has no place in the

administration of criminal justice." United States v. Young, 470 U.S. 1, 18, 105 S. Ct.

1038,84 L. Ed. 2d 1 (1985). Similarly, this court has held that it is improper for the State



                                             22 

No. 31441-3-III
State v. Lopez


to make an argument that could be construed as "telling the jury that it would violate its

oath ifit disagreed with the State's theory of the evidence." State v. Coleman, 74 Wn.

App. 835, 839, 876 P.2d 458 (1994).

       Here, the prosecutor's statement, when taken in context, was not improper. The

statement did not attempt to align the jury with the prosecutor or instruct the jury that it

could submit a guilty verdict based on what it believed was right. Instead, the prosecutor

instructed the jury that it should do what was right based on the evidence, even though

getting to that decision may be tough. The prosecutor did not tell the jury that it must

reach the State's conclusion in order to do what is right.

       Benjamin contends that the State continued this theme of the "right thing to do"

throughout the trial. He also calls attention to the prosecutor's discussion of Mr.

Hernandez's decision to testifY. The prosecutor stated, "But [Mr. Hernandez] did decide

to do the right thing after the police told him his mother wanted him to, and he quickly

gave them an initial outline that completely fit the facts of this case." 12 RP at 53.

Additionally, Benjamin contends that the statement is improper because no evidence

presented at trial addressed Mr. Hernandez's mother's wishes. It is reversible error for a

prosecutor to urge a jury to decide a case based on evidence outside the record. State v.

Pierce, 169 Wn. App. 533, 553, 280 P.3d 1158 (2012).


                                              23
No. 31441-3-II1
State v. Lopez


       Again, this statement does not attempt to align the jury with the State. Instead,

when taken in context, the statement responded to defense's theory that Mr. Hernandez's

testimony was not credible because he was given a deal for his testimony. While true that

there was no evidence to support the statement that he told the investigating officer the

truth because his mother wanted him to, Mr. Hernandez did testify that he talked to police

because he decided to do the right thing and that police told him his mom was sad. Even

with this error referencing the mother, the comment was a brief, one time assertion that

could have been cured by a limiting instruction. This minor misstatement did not likely

affect the jury's verdict.

       2. Send a message. Benjamin contends that the prosecutor committed misconduct

by encouraging the jury to return a guilty verdict in order to send a message to gangs in

the local community. For instance, he cites the prosecutor's statements, "You heard

Alexis Hernandez say that he had been shot at on three separate occasions. This is an 18

year old who's already been shot at on three separate occasions. This is out of hand."

12 RP at 32. Benjamin also contends that this statement inappropriately implies that

Benjamin was somehow responsible for shots being fired at Mr. Hernandez.

       A prosecutor's closing statement is improper if it merely appeals to the passion and

prejudice of a jury or references prejudicial allusions outside of evidence. State v.


                                             24 

No. 31441-3-111
State v. Lopez


Belgarde, 110 Wn.2d 504,507, 755 P.2d 174 (1988) (quoting State v. Belgarde, 46 Wn.

App. 441, 448, 730 P.2d 746 (1986)). "[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." Perez-Mejia, 134

Wn. App. at 916. Misconduct also occurs when a prosecutor repeatedly urges jurors to

convict a criminal in order to protect community values, preserve civil order, or deter

future criminal activity. State v. Ramos, 164 Wn. App. 327, 338, 263 P.3d 1268 (2011)

(quoting United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir. 1991)).

       In Perez-Mejia, the court held that the prosecutor's closing argument was improper

and prejudicial when the prosecutor asked the jury to

       "[s]end a message to Scorpion, to other members of his gang ... and to all
       the other people who choose to dwell in the underworld of gangs. That
       message is we had enough. We will not tolerate it any longer. That we as
       citizens of the State of Washington and the United States of America, we
       have the right to life, liberty and the pursuit of happiness and we will no
       longer allow those who choose to dwell in the underworld of gangs to stifle
       our rights. And that message begins now.
              It begins now by finding that the defendant was involved in the death
       of Ms. Emmitt."

Perez-Mejia, 134 Wn. App. at 917 (footnote omitted). The trial court overruled the

defendant's objection "to call for messages." Jd. The appellate court ruled that this

argument improperly invoked the juror's patriotic sentiment and cast the defendant as an


                                            25 

No. 31441-3-111
State v. Lopez


oppressor of inalienable rights. ld. at 918. This, when combined with a statement

referencing the defendant's "machismo," were racially prejudicial comments that affected

the jury's verdict. ld. Additionally, the court found that the prejudice was magnified by

the issues in the case. ld. Of importance, the court found that the statement appealed to

the jury's passion and prejudice by inviting them to decide based on their fear of crime.

ld. at 919.

       In Belgarde, the prosecutor referenced the American Indian Movement (AIM) and

the chilling events of Wounded Knee, South Dakota. Belgarde, 110 Wn.2d at 507. The

prosecutor said the group was a militant group to be afraid of like the Irish Republican

Army and that the defendant was a part of the group. ld. at 506-07. The defendant did

not object. ld. at 507-08. On appeal, the court concluded that the statements were

improper and prejudicial. ld. at 508. The court held that an objection and instruction to

disregard could not have erased the fear and revulsions jurors would have felt if they had

believed the prosecutor's descriptions ofthe Indians involved in AIM. ld. at 507-08.

Additionally, the court found that the prosecutor's statements could not be considered

proper argument because they were. not supported by any evidence in the case. ld. at 508­

09. Thus, the prosecutor's statements, which were based on his own memory of the

events of Wounded Knee, was testimony and improper. ld.



                                            26 

No. 31441-3-II1
State v. Lopez


       Here, the prosecutor's statement did not directly ask the jury to convict Benjamin

in order to send a message to gangs in Grant County. However, it does appeal to the

passion and prejudice of a jury by calling attention to the amount of gang violence in the

community and implying that a conviction would help stop the violence. Even then, we

do not find this statement flagrant and ill-intentioned to the point that it could not have

been cured by a limiting instruction. See Dhaliwal, 150 Wn.2d at 580-81. While the

statement calls attention to gang violence, the State's theory of motive was gang

retaliation. The State produced evidence of repeated gang violence, including Mr.

Hernandez's testimony that he was shot at on three separate occasions. There is no

inference that either Abraham or Benjamin was responsible for the three shootings at Mr.

Hernandez.

       Perez-Mejia and Belgarde do not persuade us to reach a different conclusion.

Both of those cases involve arguments that do more than simply reference the out-of­

control nature of gang violence and are much more egregious than Benjamin's situation.

The prosecutors in Perez-Mejia and Belgarde both made improper, unsupported

references to classes of people and used prejudice and stereotypes as a basis for finding

guilt. The prosecutor appealed to the passion and prejudice of the jury by asking to




                                             27 

No. 31441-3-III
State v. Lopez


decide based on fear of these groups ofpeop1e. In both cases, the argument was repeated

and not based on evidence presented at trial.

       At Benjamin's trial, the contested statement that gang violence is out of hand was

not the overarching theme of the case. Admittedly, while gang activity and retribution

was mentioned throughout the prosecution's closing argument, this was based on

evidence of gang violence presented at trial and the State's theory of motive. Most

importantly, the statements did not reinforce stereotypes or invoke racial prejudices. The

prosecutor's statement was not so inflammatory that it could not have been cured by an

instruction and, thus, did not constitute prosecutorial misconduct.

       3. Propensity for violence. Benjamin contends that the prosecutor committed

misconduct by encouraging the jury to use evidence of gang affiliations to conclude that

Benjamin had a propensity for violence. For example, he quotes the prosecutor,

             Let's talk for a moment about common sense and human emotion.
      These young men have committed their lives to this group, and we know
      that one of their friends was murdered. And we know from our human
      experience that revenge and retribution is a natural human desire. Maybe
      not for everyone. Maybe not for everyone in this courtroom. Maybe not for
      everyone in the world. But it is definitely fair to say that it is a natural
      desire for many. And certainly it would be a more natural desire for people
      who have committed their lives to a criminal street gang, people who have
      actively engaged in back and forth fighting.

12 RP at 38.


                                            28
No. 31441-3-III
State v. Lopez


       Prior bad acts cannot be used to establish a person's propensity to commit a

current crime. ER 404(b). "[T]he only relevance between the prior acts and the current

act is the inference that once a criminal always a criminal." State v. Wade, 98 Wn. App.

328, 336, 989 P .2d 576 (1999).

       Evidence of gang affiliation is presumed prejudicial. State v. Scott, 151 Wn. App.

520,526,213 P.3d 71 (2009). However, when evidence of gang membership can be

connected to the crime, such evidence is admissible. Id. "Courts have regularly admitted

gang affiliation evidence to establish the motive for a crime or to show that defendants

were acting in concert." Id. at 527.

       The prosecutor was free to discuss gang affiliation during closing argument.

Benjamin stipulated to his membership in the Marijuanos 13 gang during trial.

Furthermore, Benjamin was charged with the aggravating circumstance that he committed

the crime to benefit a criminal street gang, so gang affiliation was crucial for this charge.

       Although armed with evidence of gang affiliation, the prosecutor did not use

Benjamin's gang membership to show his propensity to commit the shooting. The

prosecutor did not ask the jury to convict Benjamin based on his membership in a

criminal street gang or because he had a natural desire to seek revenge and retribution.

Instead, the prosecutor used gang affiliation as part of the motive for the crime­


                                             29 

No. 31441-3-III
State v. Lopez


retribution for the death of Mr. Davalos, a fellow gang member. In Benjamin's situation,

evidence showed that he and Mr. Davalos had a close relationship, that he was upset

when Mr. Davalos was killed, and that gang members suspected Mr. Beltran of the crime.

Mr. Beltran was a member of a rival street gang that often fought with Benjamin's gang.

Testimony established that it was common in gang culture to kill members of rival gangs

when the rival member is suspected of killing a member of the opposing gang. In

Benjamin's gang, committing murder would raise a person's standing. In sum, the

prosecutor did not use gang membership to show propensity, but instead to show motive

for the current crime. The prosecutor used the above statement to explain the thought

processes of gang members and why Benjamin would act as an accomplice to the murder.

This argument was not improper.

       4. Vouchingfor the credibility ofa witness. Benjamin contends that the

prosecutor improperly vouched for the credibility of Mr. Hernandez by personally

supporting his testimony and by adding facts not in the record. He gives four examples of

this error. First, Benjamin contends that the prosecutor used a stereotype to support

credibility by arguing that the jury should believe Mr. Hernandez's testimony because Mr.

Hernandez was not smart enough to lie. Second, he contends that the prosecutor

attempted to bolster Mr. Hernandez's testimony by telling the jury that Mr. Hernandez



                                            30 

No. 31441·3-III
State v. Lopez


would have come up with a better story ifhe was lying. Third, Benjamin contends that

the prosecutor implied that he personally believed Mr. Hernandez when he told the jury

that Mr. Hernandez risked his life to tell the truth. Fourth, the prosecutor again affirmed

his own belief in Mr. Hernandez's testimony by arguing that Mr. Hernandez knew he

needed to tell the truth so his story would not be disproven by other evidence.

       Benjamin identifies two particular statements that support his contentions. First,

he cites to the prosecutor's statement, "And there's one other thing that the jury probably

picked up on. [Mr. Hernandez] is not real bright. He's just not a real bright guy. He just

doesn't have the ability to make up a complex story and be consistent with it. He just

doesn't." 12 RP at 54.

       In the other statement, the prosecutor told the jury during rebuttal, "If a witness

were bought and paid for, wouldn't his testimony have been a little bit better? If this was

really a situation of say what we want you to say, wouldn't he have said, I actually saw

Abraham shoot the gun? He didn't say that. Because he didn't see it. He testified to

what he knew, no more, no less." 12 RP at 162.

       "It is misconduct for a prosecutor to state a personal belief as to the credibility of a

witness. However, prosecutors have wide latitude to argue reasonable inferences from

the facts concerning witness credibility, and prejudicial error will not be found unless it is



                                              31 

No. 31441-3-111
State v. Lopez


clear and unmistakable." State v. Allen, 176 Wn.2d 611,631,294 P.3d 679 (2013).

Improper vouching occurs when the prosecutor expresses his personal belief in the

veracity of the witness or indicates that evidence not presented at trial supports the

testimony of the witness. Thorgerson, 172 Wn.2d at 443.

       "Remarks of the prosecutor, even if they are improper, are not grounds for reversal

if they were invited or provoked by defense counsel and are in reply to his or her acts and

statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative

instruction would be ineffective." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747

(1994). A prosecutor can argue that the evidence does not support the defense theory and

is entitled to make a fair response to defense arguments. Id. at 87.

       In Russell, a constant theme in the defendant's case was that the police had

inadequately investigated the charged murders. Id. In response, the State argued that

further investigation was offered to and rejected by the defense and, therefore, some

incriminating evidence may not have been developed. Id. The court held the State's

argument was a fair response to defense criticisms. Id. Furthermore, any impropriety

was ameliorated by a curative instruction. Id.

       In considering Benjamin's first credibility challenge, we conclude that the

prosecutor went outside the evidence in the case when he stated that Mr. Hernandez could



                                             32 

No. 31441-3-III
State v. Lopez


not make up his account of the shooting because he was not smart enough. In our review

of the record, there is no evidence regarding Mr. Hernandez's mental capacity or his

ability to make up a story. The prosecutor bolstered Mr. Hernandez's credibility by

giving an unsupported reason as to why he was telling the truth. While we find this

statement improper, any minimal prejudicial effect could have been cured by a limiting

instruction.

       We reject the remainder of Benjamin's contentions that the prosecutor improperly

vouched for the credibility of Mr. Hernandez. The challenged statements did not imply

that the prosecutor personally believed Mr. Hernandez. Like in Russell, it was proper for

the prosecutor to rebut defense argument and say that if Mr. Hernandez was lying, then he

clearly would have made up a better story and that he needed to tell the truth so his story

would not be disproven. Both Abraham and Benjamin attempted to discredit Mr.

Hernandez by contending that he was lying, that he took the deal from the State to avoid

prosecution, and that he was simply saying what the prosecutor wanted to hear. The State

had wide latitude to respond to this argument. The State responded by arguing that Mr.

Hernandez's story did not provide the level of incriminatory evidence that the State would

have liked to present if it were a lie. The argument merely responded to the defense's

argument that Mr. Hernandez was not telling the truth.



                                            33
No. 31441-3-III
State v. Lopez


       Furthennore, the prosecutor did not imply that he personally believed Mr.

Hernandez when he told the jury that Mr. Hernandez risked his life to tell the truth. The

prosecutor argued, "At first, he was reluctant to talk. And he told you why on the stand.

He said he didn't want to testity against these two guys. He felt concern for his safety."

12 RP at 53. The prosecutor was restating the testimony of Mr. Hernandez and not

implying his personal belief.

       5. Misstatement a/the burden a/proof Benjamin contends that the prosecutor

lowered the burden of proof for accomplice liability by telling the jury that Benjamin was

ready to assist in the crime because it was his obligation as a gang member. In describing

the events on the night of the murder, the State argued, "Now, while this was going on,

the other three Surenos, two of them Marijuanos 13 members, were in the car with

another gun, ready to assist, if necessary. Of course, they were ready to assist, that is their

obligation as a fellow gang member. That is his obligation as a brother." 12 RP at 49.

       In the State's rebuttal argument, the prosecutor said,

              You heard Mr. Crowley say that [Mr.] Hernandez is guilty as an
       accomplice. And you know the driver also is also guilty, as well. Now,
       what did Mr. Hernandez do that makes him guilty as an accomplice,
       according to Mr. Crowley? He had the-motive, right? They were all in the
       same gang, they all lost a friend. He had the opportunity, he was there, as
       weIl,just like [the defendants]. And arguably had the ability, because he
       was there with the gun, or the group was there with the gun.



                                              34
No.31441-3-III
State v. Lopez


               But it cuts both ways. Because if Mr. Hernandez is guilty, as they
       say, for simply being there, these two are in the exact same boat. If Mr.
       Hernandez is guilty as they say, and he's getting the benefit of a deal, that
       may be true, but what that tells you is their clients are guilty and they have
       just told you that. As a matter of law, they have told you their clients are at
       a minimum accomplices to this murder.

12 RP at 159. Abraham's attorney objected to these statements on the grounds that

Benjamin's counsel had not made the alleged statements. The court overruled the

objection as argument. Benjamin maintains that these statements imply that he could be

found guilty as a matter of law for simply being at the scene of the crime, which is

insufficient to prove accomplice liability.

       A defendant's presence at the scene of a crime is not enough to prove accomplice

liability, even if the defendant is fully aware of the ongoing criminal activity. In re

Welfare o/Wilson, 91 Wn.2d 487,491-92,588 P.2d 1161 (1979) (quoting State v. J-R

Distribs., Inc., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973». The accused's presence at the

scene is sufficient only if the jury also finds that the defendant was present at the scene

and was ready to assist. Id. at 491. To prove that a defendant is ready to assist, the State

must be able to point to specific facts that tend to show that the defendant's presence at

the scene indicated that he was also ready to assist with the commission of the crime.

State v. Collins, 76 Wn. App. 496, 502, 886 P.2d 243 (1995).




                                              35
No. 31441-3-II1
State v. Lopez


       The first challenged argument is not improper. The prosecutor did not reduce the

burden of proof for accomplice liability. Benjamin takes the prosecutor's argument out of

context. The prosecutor did not say that mere presence was enough. To the contrary, he

argued that Abraham and Benjamin were ready to assist. The right standard is also found

in the jury instructions. Jury members are presumed to follow court instructions.

Thorgerson, 172 Wn.2d at 444.

       Furthermore, the argument is supported by the record. Mr. Hernandez testified

that gang members were expected to have everyone's back, inferring that gang members

have an obligation to assist others. Specifically, Mr. Hernandez testified that Benjamin

gave driving directions and the men ended up at Mr. Beltran's home, and that Abraham

left the car at the time of the shooting. Based on this evidence the prosecutor could argue

that they were in the car to assist. The argument was not improper.

       Benjamin also maintains that the prosecutor misstated his argument to imply that

his attorney admitted his client's guilt. He contends that he was prejudiced by this

misstatement because it led the jury to believe that defense counsel admitted his client's

guilt as an accomplice, and the court's decision to overrule his objection added an aura of

reliability to the misstatement.




                                            36 

No. 31441-3-111
State v. Lopez


       The trial court correctly determined that the rebuttal statements were argument.

Defense counsel in closing argued that the evidence connected Mr. Hernandez to the

crime. Counsel maintained that the facts showed Mr. Hernandez was involved in the

murder but was not being held accountable because of his deal with the State. Defense

also argued that the same evidence that linked Benjamin to the crime linked Mr.

Hernandez.

               Remember [the prosecutor] spent a great deal of time talking about
       all the motive and he assured you he would go through his list of evidence,
       and the litany of evidence that he had against Benjamin indicating motive.
       He told you he would demonstrate all the motive. But if the motive applies
       to him, the motive applied to him. It works the same way. He was in a
       gang, he was in a gang. He wanted to advance, no, he wanted to advance.
       Where is the proof? The proof is with me. I am lying to you. My name is
       [Mr. Hernandez]. I don't want to go to prison.

12 RP at 124. The prosecutor's argument was an extension of defense counsel's

argument that Mr. Hernandez and Benjamin had equal motive. It did not imply that the

defense attorney thought his client was guilty. The prosecutor's statement was argument

and was not improper.

       6. Step into shoes. Benjamin contends that the prosecutor committed misconduct

by encouraging the jury to step into the shoes of Benjamin and speculate as to his state of

mind. The prosecutor argued,




                                            37
No. 31441-3-III
State v. Lopez


       And every time you see his house, it's going to be a reminder of how the
       rival gang killed your friend.
               Think of how that would affect a 16-year-old or 17-year-old young
       man's mind, gang member's mind. Every day he wants to go get a slice of
       pizza and he has to be reminded about the rival gang member that murdered
       his friend. That's a powerful motivator. Gang members have a duty to
       back up their friends. They've lost a fellow gang member, and they had a
       duty to do something about it.

               Now, go back to that motive issue just briefly. Think about what that
       must have been like for these young men to believe 18th Street killed their
       friend, and here is one oftheir leaders on the main street in town for
       everyone to see wearing his colors, full display. Folks, that would probably
       drive anyone over the edge.

12 RP at 39-40, 42. Benjamin contends that through these statements, the prosecutor

testified to Benjamin's thought processes, argued facts not in the evidence, and tried to

int1ame the jury's passions and prejudices.

       Statements that do no more than appeal to the passion or prejudice of the jury are

improper. Pierce, 169 Wn. App. at 552 (quoting State v. Gregory, 158 Wn.2d 759, 808,

147 P.3d 1201 (2006)). It is reversible error for a prosecutor to urge a jury to decide a

case based on evidence outside the record. Pierce, 169 Wn. App. at 553. Prosecutors

often use matters outside the record to appeal to ajury's passion; thus, the two rules are

closely related. Id. It is improper for a prosecutor to step into the shoes of a defendant

and represent his thought processes when those facts are not in evidence. Id. at 554.




                                              38 

No. 31441-3-111
State v. Lopez


       In Pierce, the prosecutor stepped into the shoes of the defendant during closing

arguments by repeatedly presenting the thought process of the defendant from the first

person point of view. Id. at 553-54. He argued from the defendant's point of view, '''But

who do I know in Quilcene that has money? Well, the Yarrs. I know they got money.

And they have cash, because they paid me in cash. I can go up there and get some money.

But there's one problem: I don't want to work for it. ... He's not going to give it to me,

so I need a gun, but I don't know anybody that has a gun.'" Id. at 542. The court found

that these statements were calculated to portray the defendant as an impatient, amoral

drug addict who refused to work. Id. at 554. While the court found that the prosecutor

could have asked the jury to infer this view from the facts, the court held that the

prosecutor went beyond his wide latitude in drawing inferences from the evidence by

effectively testifying about the particular thoughts the defendant must have had in his

head, outside of the evidence. Id. at 555. The court held that the cumulative effect of this

and other improper statements objected to by the defendant affected the jury verdict

because the statements focused on the shocking nature of the crimes and invited the jury

to imagine the crimes happening to themselves. Id. at 556.

      Here, while the prosecutor's statements peer into the minds of Abraham and

Benjamin, the prosecutor's statements do not rise to the level of impropriety as in Pierce.


                                             39 

No. 31441-3-II1
State v. Lopez


Much of the argument is supported by the evidence and did not require speculation. Mr.

Hernandez testified that Mr. Davalos's death made Abraham and Benjamin mad. Deputy

Harris and Mr. Hernandez testified about a gang member's duty to retaliate. Benjamin

testified that two of the people in the car became tense upon seeing Mr. Beltran. The

inferences in the argument were based on the evidence and supported the motive

advanced by the State. Even if improper, Benjamin fails to establish that these statements

could not have been cured by a limiting instruction. The statements were not shocking or

repetitive to the extent that they affected the jury's verdict.

       7. Guilt by association. Benjamin contends that the prosecutor committed

misconduct when he implied that the jury should convict Benjamin as an accomplice

because his brother was gUilty. The prosecutor implied guilt by association by arguing

that a fellow gang member has an obligation to help. Additionally, the prosecutor said,

"[Benjamin and Abraham] wear almost identical clothing .... Now, a lot of people have

brothers, a lot of people like their brothers. But it's pretty rare for brothers to be so close

that they wear almost identical outfits. That's avery, very deep bond, and that is a

mirroring or copying of a younger brother and an older brother." 12 RP at 50. Benjamin

maintains that by making this statement, the prosecutor improperly assumed that the




                                               40 

No.31441-3-III
State v; Lopez


brothers wore the same style of clothing because of their bond, and that they would lie

and kill for each other.

       This statement is not improper because it does not imply that Benjamin was guilty

because of his relationship with his brother or because they wore the same style of

clothing. Instead, the statement supports the State's theory that the brothers would do

anything for each other, including murder. The prosecutor attempts to show motive by

referencing evidence that proved the close relationship. This statement by the prosecutor

does not imply that the jury could forgo the instructions on accomplice liability and

convict because of the relationship.

       8. Disparaging defense counsel. As another example of misconduct, Benjamin

contends that the prosecutor disparaged defense counsel by insinuating that defense

counsel believed his client was gUilty. The prosecutor discussed the powerful effect of

Mr. Hernandez's testimony in his rebuttal argument, stating, "[Defense counsel] called

[Mr. Hernandez] a liar 20 times. You can tell where an attorney is concerned about a case

based upon what they focus on. They are scared to death of the testimony of [Mr.]

Hernandez. Because it is the truth, it is consistent, it is corroborated by other witnesses

and other facts. They don't want you to believe him, because they know what it means."

12 RP at 160-6l. Benjamin also contends that through this statement, the prosecutor


                                             41 

No. 31441-3-II1
State v. Lopez


referenced facts about counsel's opinion that were not in the record and improperly

bolstered Mr. Hernandez's credibility by saying his testimony was the truth.

       A prosecutor cannot make disparaging comments about defense counsel's role or

impugn defense counsel's integrity. Thorgerson, 172 Wn.2d at 451. However, it is not

improper for a prosecutor to argue that the evidence does not support the defense theory

of the case. Russell, 125 Wn.2d at 87. "Moreover, the prosecutor, as an advocate, is

entitled to make a fair response to the arguments of defense counsel." [d.

       Discrediting Mr. Hernandez was crucial to the defense of Benjamin. It is true that

defense counsel repeatedly referred to Mr. Hernandez as a liar. The prosecutor was

permitted to respond to defense arguments. He also was permitted to show that consistent

evidence from other witnesses discredited defense arguments that Mr. Hernandez was

lying. Nothing in these arguments impugn defense counsel's role or integrity.

       9. Unable to walk down the street. Benjamin contends that the prosecutor argued

facts not in the record during rebuttal when he said,

             Now, that may be true that [Mr.] Hernandez isn't going to go to
      prison for this. But that's not all he gets. Let's be right up front about this.
      He gets to never, ever walk down the streets in the city of Quincy again.
      Ever. He doesn't get to go to a movie theater or a pizza parlor in Quincy or
      probably Ephrata or Moses Lake. He doesn't get to do those things
      because, as they have testified, as evidence has shown, if you testify against
      one of these guys, there's going to be a mark out on you. That's pretty
      powerful disincentive to testify. You don't do that.

                                             42
No. 31441-3-II1
State v. Lopez


12 RP at 162-63. Benjamin contends that the prosecutor stepped far beyond the

permissible limit of inferring facts from the record and appealed to the prejudices of the

Jury.

        It is reversible error for a prosecutor to urge a jury to decide a case based on

evidence outside the record. Pierce, 169 Wn. App. at 553.

        Benjamin is correct that there is no direct evidence in the record about what Mr.

Hernandez will be able to do now that he testified at the trial of a gang member.

However, the prosecutor's statements here are reasonable inferences from the record

designed to contradict the defense closing argument that Mr. Hernandez would not suffer

any consequences from his actions. Defense counsel argued during closing that Mr.

Hernandez got his life back in exchange for giving two hours of testimony at trial. On

rebuttal, the prosecutor responded by arguing that Mr. Hernandez did not get his life back

by testifying. Testimony at trial established that members who testify against other gang

members are beaten or killed. From this the prosecutor presented examples of how Mr.

Hernandez's life would be limited.

        Benjamin contends that even if no individual error warrants reversal, cumulative

error denied him a fair trial. Errors that do not individually require reversal may still

require reversal if together they violate a defendant's right to a fair trial. State v. Jackson,



                                              43 

No. 31441-3-III
State v. Lopez


150 Wn. App. 877,889,209 P.3d 553 (2009). In this situation, there are not multiple

errors of prose cut oriaI misconduct. Accordingly, cumulative error does not apply.

      Affirm.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Lawrence-Berrey, J.

WE CONCUR: 





                                            44 

