                                                              TILED
                                                      COURT OF APPEALS OIV I L.;,.
                                                       STATE OF WASHINGTOH '

                                                       2018 JUL -9 AB 8:39



  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

STATE OF WASHINGTON,         )                     No. 75845-4-1
                             )
              Respondent,    )
                             )
         v.                  )
                             )                     UNPUBLISHED OPINION
CHRISTOPHER GARCIA GONZALEZ, )
                             )                     FILED: July 9, 2018
              Appellant.     )
                             )

       VERELLEN, J.     Christopher Garcia Gonzalez appeals his conviction for

second degree murder and theft of a motor vehicle. Gonzalez assigns error to the

trial court's denial of his request to instruct the jury on the lesser included offense

of second degree manslaughter. Because the evidence does not support an

inference that Gonzalez committed second degree manslaughter rather than

second degree murder, the trial court did not abuse its discretion when it denied

Gonzalez's request.

       Gonzalez also claims the prosecutor committed misconduct during closing

argument. Given the prosecutor's entire argument, the evidence, and the jury

instructions, we conclude it is unlikely the prosecutor's challenged remarks

affected the jury's verdict.

       Therefore, we affirm.
No. 75845-4-1/2



                                       FACTS

       On September 20, 2015, Lynnwood police officers found the body of

Christopher Davis. A belt was found wrapped three times around Davis's neck

and cinched tight so it would not come loose. Davis's blood was also found on the

floor, walls, and on two dumbbells found near him. The medical examiner

concluded that Davis had been struck in the head before the belt was wrapped

around his neck. The medical examiner determined the cause of death was

ligature strangulation and the manner of death was homicide.

       On October 15, 2015, police found Gonzalez in California driving Davis's

car. The police also connected Gonzalez to the crime through e-mails, text

messages, and cell phone location records. The State charged Gonzalez with

second degree murder and theft of a motor vehicle.

       When considering the parties' proposed instructions, the trial court denied

Gonzalez's request to instruct the jury on the lesser included offense of second

degree manslaughter.

       During trial, the State introduced a jail phone call from Gonzalez to his

girlfriend. During closing argument, the State replayed the call. The prosecutor

emphasized Gonzalez's pattern of deception and his repeated statements during

the phone call that he only "allegedly" committed the murder. The prosecutor then

stated, "[O]n that jail call, during that conversation, you never heard him say

anything about being innocent. Challenge met. Find him guilty."1


       I Report of Proceedings(RP)(Sept. 15, 2016) at 1090.



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No. 75845-4-1/3



       The jury found Gonzalez guilty on both counts.

       Gonzalez appeals.

                                     ANALYSIS

I. Lesser Included

       Gonzalez contends the trial court abused its discretion when it refused to

instruct the jury on the lesser included offense of second degree manslaughter.

       "A defendant is entitled to an instruction on a lesser included offense when

(1) each of the elements of the lesser included offense is a necessary element of

the charged offense and (2)the evidence in the case supports an inference that

the lesser crime was committed."2 Courts refer to the first part of the test as the

"legal prong" and the second part as the "factual prong."3 The parties agree the

legal prong is satisfied.4

       We review a trial court's decision under the factual prong for abuse of

discretion.5 In determining the factual prong, the panel reviews "the evidence in

the light most favorable to the party requesting the instruction."6 The evidence

must raise an inference that only the lesser included offense was committed

instead of the charged offense.7


       2 state v. Henderson, 182 Wn.2d 734, 742, 344 P.3d 1207(2015).
       3 State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700(1997).

      4 See id. at 551 ("We hold first and second degree manslaughter are lesser
included offenses of second degree intentional murder.").
       5   Henderson, 182 Wn.2d at 743.
       6 State v. Wade, 186 Wn. App. 749, 772, 346 P.3d 838 (2015).
       7 State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150(2000).




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No. 75845-4-1/4



       To determine whether the evidence supports an inference that Gonzalez

committed second degree manslaughter rather than second degree murder, we

must compare the definitions of the two crimes.8 A person is guilty of second

degree murder when "[w]ith intent to cause the death of another person but

without premeditation, he or she causes the death of such person."8 "A person

acts with intent or intentionally when he or she acts with the objective or purpose

to accomplish a result which constitutes a crime."10 A person is guilty of second

degree manslaughter when "with criminal negligence, he or she causes the death

of another person."11

      A person is criminally negligent or 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.[12]

       Here, the trial court refused to instruct the jury on second degree

manslaughter because the evidence did not establish that Gonzalez acted with

criminal negligence:

      I don't think the evidence supports a criminal negligence argument in
      putting the belt around the neck to begin with and constricting it in
      such a way as to render someone unconscious. A person should

      8  See Henderson, 182 Wn.2d at 743("To determine whether the evidence
supports an inference that Henderson committed first degree manslaughter rather
than first degree murder by extreme indifference, we must carefully compare the
definitions of the two crimes.").
      9     RCW 9A.32.050(1)(a)(emphasis added).
       18   RCW 9A.08.010(1)(a).
       11   RCW 9A.32.070(1)(emphasis added).
       12   RCW 9A.08.010(1)(a).



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No. 75845-4-1/5



      know that there's a substantial risk of death in that action by itself.
      That, coupled with the previous activity that must have taken place in
      terms of the lacerations on the head, which were caused possibly by
      the barbells that were there, and the blood distribution around the
      room indicates there was a substantial struggle that took place prior
      to that. All of that evidence, taken together, would only support a
      jury finding of either intentional murder or reckless conduct and not
      negligent conduct.(131

       In State v. Wade, this court considered whether Wade was entitled to a jury

instruction on the lesser included offenses of first degree and second degree

manslaughter after a jury convicted him of second degree murder.14 There, the

victim died of asphyxia from strangulation. This court concluded,"There was no

evidence that the strangulation was either reckless or the result of criminal

negligence" because "[t]he undisputed testimony established that whether [the

victim] was intentionally strangled manually or with a ligature, Wade had to

continue to apply pressure, even after she lost consciousness, for one to two

minutes."15 We held the court did not err in denying the request to instruct the jury

on first degree and second degree manslaughter.16

       Similarly, even viewed in the light most favorable to Gonzalez, there is no

evidence in this case that the strangulation was the result of criminal negligence

rather than intent. The police found Davis with a belt wrapped around his neck

three times. The belt was "drawn tight at the back of the neck by passing the free


       13 RP (Sept. 14, 2016) at 1028.
       14 186 Wn. App. 749, 346 P.3d 838 (2015).

       15   id. at 772.
       16   Id. at 773.
No. 75845-4-1/6



end under one of the loops and pulling it tight."17 And the belt was cinched in such

a way to prevent it from coming loose or unraveling. The medical examiner

determined Davis died from ligature strangulation.

       The police also found blood on the floors and walls around Davis's body.

Two dumbbells were found near Davis's body and DNA from blood on the

dumbbells matched Davis. The medical examiner determined that Davis was

struck in the head before the belt was wrapped around his neck.

       Gonzalez argues the court should not have considered the evidence of a

struggle prior to Davis's death. But the trial court is not required to take a limited

view of the evidence. The court "must consider all of the evidence that is

presented at trial when it is deciding whether or not an instruction should be

given."18

       Gonzalez also argues "[i]t was the constriction caused by the belt that

allowed for strangulation to take place, and not constant pressure by the

perpetrator."19 The medical examiner testified that loss of consciousness occurs

within 10 to 15 seconds after blood flow is blocked and that death occurs within

minutes if the pressure is not released. The medical examiner determined that

Davis "los[t] consciousness and proceeded to die over a period of subsequent

minutes" from the "belt around his neck."2° Although it does not appear that


       17   RP (Sept. 14, 2016) at 980.
       18   Fernandez-Medina, 141 Wn.2d at 456.
       19   Appellant's Br. at 12.
       29   RP (Sept. 14, 2016) at 994-95.



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No. 75845-4-1/7



Gonzalez manually applied pressure to Davis's neck in the time between

unconsciousness and death, the evidence supports an inference that, following a

struggle, Gonzalez wrapped the belt around Davis's neck and cinched it in such a

way to ensure constant pressure, even after Davis lost consciousness. The

evidence does not support a reasonable inference that Gonzalez negligently forgot

to loosen the belt after Davis was rendered unconscious.

       Because the evidence does not support an inference that Gonzalez

committed second degree manslaughter rather than second degree murder, we

conclude the court did not abuse its discretion when it denied Gonzalez's request

to instruct the jury on the lesser included offense.

II. Prosecutorial Misconduct

       Gonzalez argues a new trial is required because the State committed

prosecutorial misconduct during closing argument. Gonzalez claims the

prosecutor's statements shifted the burden of proof and commented on his right to

remain silent.

       "Allegations of prosecutorial misconduct are reviewed under an abuse of

discretion standard."21

       To prevail on a claim of prosecutorial misconduct, the defendant bears the

burden of establishing that the conduct was both improper and prejudicia1.22



       21 State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29(1995).
       22 State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43(2011)(quoting
State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).



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No. 75845-4-1/8



"Once a defendant establishes that a prosecutor's statements are improper, we

determine whether the defendant was prejudiced under one of two standards of

review."23 If the defendant objected at trial, the defendant must show "a

substantial likelihood that the misconduct affected the jury's verdict."24 "If the

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."25

       In analyzing prejudice, we evaluate the prosecutor's challenged statements

"within the context of the prosecutor's entire argument, the issues in the case, the

evidence discussed in the argument, and the jury instructions."26 "A prosecutor

has wide latitude in closing argument to draw reasonable inferences from the

evidence and to express such inferences to the jury."27

       Here, during trial, the court introduced a jail phone call between Gonzalez

and his girlfriend. In the call, Gonzalez initially denied he was charged with

murder and then repeatedly used ttie word "allegedly" to discuss the murder. Prior

to closing argument, the prosecutor informed the court that he intended to play the

jail call during closing. The prosecutor told the court he would focus on



       23State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653(2012).
      24 In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673

(2012).
      25 Emery, 174 Wn.2d at 760-61.

       26 State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432(2003).
       27 State v. Boehninq, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).




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No. 75845-4-1/9



Gonzalez's use of the word "allege ly" and that Gonzalez "never says he's

innocent."28 Gonzalez objected and argued that such argument flipped the burden

of proof. The court overruled Gonzalez's objection.

       While the objection by defense counsel focused on burden flipping, there

was some discussion in the prosecutor's argument and the court's oral ruling of

the right to remain silent. For purposes of this opinion, we will assume the

objection preserved Gonzalez's claim of error that the prosecutor's statements

improperly commented on his right io remain silent.

       During closing, the State repayed the call and made the following

argument:

      You heard the defendant say "allegedly." And he said it maybe two
      or three more times during the course of that call. It's up for you to
      discern what was meant by that. And what I'm about to say is not in
      any way—I don't want it to sound that I am in any way walking away
      from the very high burden that. . . I have to prove to you in this case
      that the defendant murdered Chris Davis and he stole his car. It's
      not meant by that in any way. But on that day, on that jail call, during
      that conversation, you never hear him say anything about being
      innocent. Challenge met. Find him guilty.(29]

       Gonzalez claims the prosecutor improperly shifted the burden of proof. The

State bears the burden of proving "beyond a reasonable doubt, every element

necessary to constitute the crime w th which the defendant is charged."3°




       28   RP (Sept. 15, 2016) at 1044.
       28   Id. at 1089-90.
       38 Glasmann, 175 Wn.2d at 713.




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No. 75845-4-1/10



Although the prosecutor has wide latitude during closing, it is improper for the

prosecutor to argue or imply that the burden of proof rests With the defendant."31

       During the call, Gonzalez's girlfriend confronted Gonzalez with the fact that

the State charged him with murder. At first, Gonzalez denied any knowledge of

the murder charge and claimed to be "in here for DUI."32 Later in the call, he

acknowledged the murder charge.

       Okay, okay, let me be honest with you. For whatever they have me
       booked on, it's not really what they—it's allegedly. You know what
       I'm saying? They could be s'eying that I did that, but yet they don't
       have enough evidence to prove that I did that. It's allegedly.[331

      The prosecutor never implied that Gonzalez had any duty to present

evidence or to prove his innocence, rather the prosecutor was responding to

Gonzalez's claim that the State could not prove that he committed the murder.

The prosecutor never misstated the law and he correctly identified the burden of

proof multiple times during his closing argument. In this narrow setting, the

prosecutor's statements did not shift the burden of proof. We acknowledge that

the statements are close to the line and, in almost any other scenario, the

argument would be improper. We caution against the risk inherent in addressing a

defendant's failure to profess his or her innocence. The better practice is to avoid

any unintended inference.




       31   Thorgerson, 172 Wn.2d at 453.
       32 Ex. 175.
       33 Id.




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No. 75845-4-1/1 1



       Gonzalez also claims the prosecutor improperly commented on his

constitutional right to remain silent and contends we should apply the

constitutional harmless error standard. Before a defendant can rely on his right to

remain silent, he must invoke it.34 "The only exceptions to the invocation

requirement are that(1) a defendant need not take the witness stand to invoke the

privilege at trial, and (2) a defendant subject to a custodial interrogation or other

governmental coercion need not invoke the privilege."35

       Here, Gonzalez made the statements to his girlfriend and not in the context

of a custodial interrogation. Additionally, Gonzalez was not silent. When his

girlfriend confronted him about the murder charge, he at first denied the fact and

later used the word "allegedly" to discuss the murder. Gonzalez's constitutional

right to remain silent was not implicated by the admission of the phone call and the

prosecutor's closing argument.

       Even if Gonzalez's right to remain silent was implicated, the constitutional

harmless error standard is applied only when the State "comments" on an

accused's silence.36 "Comment" means the State uses the accused's silence to

suggest to the jury that the refusal to talk is an admission of guilt.37


       34 State v. Pinson, 183 Wn. App. 411,418, 333 P.3d 528(2014).
       35   Id.
        36 State v. Easter, 130 Wn.2d 228, 236-37, 242, 922 P.2d 1285(1996)(The

Fifth Amendment to the United States Constitution and article 1, section 9 of the
Washington State Constitution guarantee a criminal defendant the right to remain
silent).
        37 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).




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No. 75845-4-1/12



       Here, the prosecutor did not mproperly comment on Gonzalez's right to

remain silent because he did not suggest that any of Gonzalez's statements during

the call constituted an admission of guilt. The mere reference to Gonzalez's

silence concerning his innocence does not constitute misconduct. The prosecutor

told the jury it was for them to interpret Gonzalez's use of the word "allegedly."

And the prosecutor emphasized the heavy burden on the State. We conclude

Gonzalez fails to satisfy his burden of establishing that the prosecutor's

statements were improper.

       Gonzalez also fails to show a substantial likelihood that the misconduct

affected the jury's verdict. When viewed in the context of the entire closing

argument, the prosecutor's reference to the jail call was not significant. During his

argument, the prosecutor illustrated Gonzalez's pattern of dishonesty:

       Let's talk about deception. Let's talk about a defendant who some
       days before he kills Christopher Davis deletes his Gmail account.
       He deletes the account that he uses to communicate initially with Mr.
       Davis. He flees to California all of a sudden. ... And his deception
       in fleeing was obviously to get away. But he doesn't just delete his
       Gmail account and he doesn't just flee to California. He deletes his
       text messages of his contact with Mr. Davis and others[38]

The prosecutor argued the jail call was a prime example of Gonzalez's repeated

deception:

      So it's not just about what the defendant did. It's about what the
      defendant said. It's about what he said in that phone call to his
      [girlfriend.] But more significantly it's about what he said to Detective
      Jorgensen and Detective Arnett. Because he said things that just
      weren't accurate. He said, when asked, that he got the car from


       38   RP (Sept. 15, 2016) at 1076-77.



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No. 75845-4-1/13



      some Salvadorian gang dude in Everett. Well, we know where he
      got the car. He got the car from Christopher Davis after he killed
      him. He said that he never had an e-mail address. . . .

             But he also told Detective Jorgenson that he didn't have a
      phone. ... But then he actuOly said, well, I may have had that
      phone,. . . but I lost it ... . Well, that's just not true because you
      know where the phone was found. The phone was found in Mr.
      Davis's car on October 15th of 2015.

            So, he also told Detective Jorgensen and Detective Arnett that
      he'd been to California since the end of August. And, again, we
      know that's not true. He was clearly in Lynnwood, Washington for
      much of, for all of the first part of September.... This defendant
      was never in California at the end of August... .

              He's also deceptive to others. He's deceptive to [his girlfriend]
      in the jail phone call. He was also deceptive with regards to his
      phone records and his e-mail.[39]

      The prosecutor's theme of deception is reasonably supported by the

evidence admitted during trial. Detectives Jorgenson and Arnett both testified

about Gonzalez's dishonesty during the investigation.

      Additionally, the court's instructions cured any potential, prejudice. The

court instructed the jury that "the layers' statements are not evidence."40 The

court told the jury to "disregard any emark, statement, or argument that is not

supported by the evidence or the law."41 The court also instructed the jury about




      39   RP (Sept. 15, 2016) at 1078-79.
      40 CP at 54.
      41   Id.



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No. 75845-4-1/14


the burden of proof.42 And "[Burors are presumed to follow the court's

instructions."43

       Given the prosecutor's entire argument, the evidence, and the jury

instructions, we conclude it is unlikely the prosecutor's challenged remarks

affected the jury's verdict.

       Therefore, we affirm.




WE CONCUR:



                                                       I r t cA-c c. Ni —I
                                                                    I,




       42CP at 57("The State is the plaintiff and has the burden of proving each
element of each crime beyond a resonable doubt. The defendant has no burden
of proving that a reasonable doubt bxists as to these elements.").
       43   In re Pers. Restraint of PhIps, 190 Wn.2d 155, 172, 410 P.3d 1142
(2018).



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