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                                                               2013 HM 13 Kt 8- 59




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                   No. 67757-8-1
                                                       (Consolidated with
                     Respondent,                         No. 67758-6-1)

              v.                                       DIVISION ONE

FELIPE JOSEPH RAMOS,

                     Appellant.


STATE OF WASHINGTON,                                   UNPUBLISHED

                     Respondent,                       FILED: Mav 13. 2013


              v.



MARIO ALEJANDRO MEDINA,

                     Appellant.



       Cox, J. — In these consolidated cases, codefendants Felipe Ramos and

Mario Medina appeal their convictions and sentences. Medina, convicted of

second degree murder, argues that the trial court abused its discretion when it

allowed the State to amend the prior charging document. Medina also contends

that the court erred when it failed to give him credit for time served prior to
No. 67757-8-1 (Consolidated with No. 67758-6-l)/2


sentencing in the King County Community Center for Alternative Programs

(CCAP) Enhanced.

       We hold that the court did not abuse its discretion by permitting

amendment of the information prior to trial. And the court correctly declined to

give credit for pre-trial confinement in CCAP Enhanced, although the basis for

doing so was incorrect. We affirm Medina's conviction and sentence.

       Ramos, convicted of first degree manslaughter, argues that the first

degree manslaughter jury instruction at trial was legally incorrect and

unconstitutionally lowered the State's burden of proof. He also argues that he

was denied effective assistance of counsel when his attorney proposed this

incorrect instruction.


       We hold that Ramos is barred by the invited error doctrine from

challenging the instruction his trial counsel proposed. But proposing that

instruction deprived Ramos of his constitutional right to effective assistance of

counsel. We reverse Ramos's conviction and remand for further proceedings.

        In 1997, Medina lived with his sister, Maria,1 and her ex-husband, Felipe

Ramos. At the time, Maria worked as the night clerk at a Motel 6. Her boss

there was Joe Collins.

        On September 13,1997, Maria was late to work, and Collins sent her

home. After retrieving a handgun from the Medina/Ramos apartment, Medina

and Ramos drove to the Motel 6 to confront Collins.




        1We adopt the naming convention of the parties for naming Maria Medina
for clarity.
No. 67757-8-1 (Consolidated with No. 67758-6-l)/3

       Upon arriving at the Motel 6, Ramos and Medina began searching for

Collins. After speaking with several witnesses, they knocked on his door. When

Collins answered, Medina asked him if he "had a problem with Maria." Before

Collins could answer, either Ramos or Medina shot him in the head, killing him.

       In 1999, the State charged both Ramos and Medina with first degree

intentional murder. The jury found them guilty of the lesser included offense of

second degree felony murder, based on the predicate offense of second degree

assault.


       Both Ramos and Medina appealed.2 Their appeals were then stayed,
pending the outcome of several supreme court cases.3 In re Andress. one of
these decisions, held that a conviction for second degree felony murder could not

be based upon a predicate crime of assault.4 Based on this decision, this court

vacated both convictions of Medina and Ramos, which were based on the

predicate offense of second degree assault.5
       On remand, the State charged both Medina and Ramos with first degree

manslaughter. Both defendants moved to dismiss this charge, alleging that it

violated double jeopardyand the mandatory joinder rule.6 The supreme court



       2See State v. Ramos. 124 Wn. App. 334, 101 P.3d 872 (2004).
       3 lg\ at 337.

       4 147 Wn.2d 602, 604, 56 P.3d 981 (2002), superseded bv statute. RCW
9A.32.050.


       5 Ramos. 124 Wn. App. at 343.

       6See State v. Ramos. 163 Wn.2d 654, 659, 184 P.3d 1256 (2008).
No. 67757-8-1 (Consolidated with No. 67758-6-l)/4


took direct review and held that the first degree manslaughter charges did not

violate either provision.7

       In 2010, following remand, the State moved to amend the prior charging

document. The trial court granted the State's motion, and Medina and Ramos

were both charged with second degree intentional murder.

       Both men were tried before the same jury in June 2011. The jury found

Medina guilty of second degree intentional murder. But it found Ramos guilty of

the lesser included offense of first degree manslaughter.

       Both Ramos and Medina appeal.

                          AMENDMENT OF INFORMATION

       Medina argues that the trial court abused its discretion by permitting the

State to amend the prior information to include second degree murder. Although

the amendment was five years after the initial charging document, it was over a

year prior to trial. Because Medina fails to establish prejudice, there was no

abuse of discretion in permitting amendment.

       Superior Court Criminal Rule (CrR) 2.1(d) allows a court to permit the

State to amend an information "at any time before verdict or finding if substantial

rights of the defendant are not prejudiced." Echoing the United States Supreme

Court, our supreme court has recognized:

       "[A] prosecutor should remain free before trial to exercise the broad
       discretion entrusted to him [or her] to determine the extent of the
       societal interest in prosecution. An initial decision should not freeze
       future conduct.... [T]he initial charges filed by a prosecutor may




       7 Id. at 661-62.
No. 67757-8-1 (Consolidated with No. 67758-6-l)/5


      not reflect the extent to which an individual is legitimately subject to
      prosecution."®
      Such an amendment is within the court's discretion, and it is consequently

reviewed by an appellate court for an abuse of discretion.9
      CrR 2.1(d)'s provision for liberal amendment of a charging document is

"tempered by article I, section 22 of the Washington Constitution, which requires

that the accused be adequately informed of the charge to be met at trial."10 This
requirement ensures that a defendant is sufficiently apprised of the charges

against him so that he can prepare a defense.11
      Generally, "[a] defendant cannot claim error from the amendment of an

information unless he can show he was prejudiced thereby."12 Typically the
prejudice that CrR 2.1 (d) addresses is whether the amendment leaves the

defendant without time to prepare a defense to a newcharge.13




       8State v. James. 108 Wn.2d 483, 488-89, 739 P.2d 699 (1987) (some
alterations in original) (quoting United States v. Goodwin. 457 U.S. 368, 382,102
S. Ct. 2485, 73 L Ed. 2d 74 (1982)).

       9 Id at 490.

       10 State v. Zieoler. 138 Wn. App. 804, 808, 158 P.3d 647 (2007).

       11 State v. Kosewicz, 174 Wn.2d 683, 691, 278 P.3d 184 (2012).
       12 State v. Jones. 26 Wn. App. 1,6, 612 P.2d 404 (1980) (citing State v.
Brown. 74 Wn.2d 799, 447 P.2d 82 (1968)).

       13 State v. Larson. 160 Wn. App. 577, 594, 249 P.3d 669, review denied.
172 Wn.2d 1002 (2011): see also State v. Murbach. 68 Wn. App. 509, 512, 843
P.2d551 (1993).
No. 67757-8-1 (Consolidated with No. 67758-6-l)/6


       For example, the supreme court has held that the possibility of a harsher

penalty did not result in prejudice.14 In State v. James, the State originally
charged James with second degree murder.15 A month later, after James made
a tape recorded confession, the State moved to amend the charge to first degree

murder.16 In the same proceeding, James attempted to withdraw his original plea
and plead guilty to the original charge.17 Prior to the State's amendment, the
State and James's counsel engaged in plea discussions during which the State

made clear that it was considering amending the charge against James.18
       The supreme court held that the amendment of the information was not

prejudicial:

               While James has a conditional right to withdraw his not guilty
       plea, he has failed to sustain his burden of demonstrating specific
       prejudice resulting from the information amendment. James does
       not claim surprise or an inability to prepare a defense because of
       the trial court's ruling. At trial, James argued that being subject to
       the harsher penalty accompanying a first degree murder charge
       constituted specific prejudice         [But] we find that the possibility
       of a harsher penalty, standing alone, cannot constitute
       specific prejudice.1 ]
       The James court did note that because "the prosecution reached its

decision to amend with reasonable dispatch, [and] without any suggestion of bad


       14 James. 108 Wn.2d at 484.

       15 id, at 484-85.
       16Ig\at485.

        17 Id at 485-86.

        18kL

        19 kl at 489-90 (emphasis added) (citations omitted).
No. 67757-8-1 (Consolidated with No. 67758-6-IJ/7

faith. ... [V]indictiveness, which the United States Supreme Court has viewed

as prejudicial in the decision to charge, played no role in the State's motion to

amend."20

       Here, the amendment of the information to charge second degree murder

followed a period of uncertainty on what charges could property be made. Those

uncertainties were finally resolved by the supreme court, the stay of the appeals

was lifted, and the State moved to amend the information in February 2010.

Medina's trial did not begin until June 2011, over a year later. Thus, Medina had

more than ample time prior to trial to prepare a defense to the new charges

against him. There is nothing in this record to suggest that he had insufficient

time to prepare a defense to the amended charge. Likewise, there is nothing to

suggest the loss of witnesses or other evidence that would support a showing of

prejudice to Medina by allowing the amendment of the information. And there is

no showing of vindictiveness by the State amending the charge against him.

       As in James, the mere fact that the State's amendment increased the

possible penalty Medina would face if convicted was not, by itself, prejudicial.

The State's amendment of the information appears to have been motivated by

the supreme court's opinion in this case, not by any vindictiveness.21 The
supreme court clarified that the prior jury verdict did not preclude a charge of



       20 Id. at 490.


       21 See State's Motion to Amend Information, Medina 2012 Clerk's Papers
at 160-61 ("Once the proper analysis under the principles of alternative means
was apparent, the State indicated the intent to amend the charges to intentional
murder.").
No. 67757-8-1 (Consolidated with No. 67758-6-l)/8

first-degree manslaughter under the alternative means analysis.22 Thus, after the
court's decision in this case in 2008, the State determined that, under the

alternative means analysis applied by the supreme court, it could still charge

Medina with murder. It then moved to amend the information.

       Medina argues that his case is distinguishable from James for three

reasons. None are persuasive.

       First, he argues that James did not, in fact, create a "per se rule and does

not preclude Medina from arguing that the circumstances of his case ...

demonstrate prejudice." We agree. James involved both the question of when a

defendant may withdraw a plea and when amendment of an information is

prejudicial. And that court "evaluated the specific circumstances of James' case

in deciding he could not show prejudice [by the amendment]." But this fact does

not change the supreme court's holding, that "the possibility of a harsher penalty,

standing alone, cannotconstitute specific prejudice."23
       Medina's argument is, essentially, that the possibility of a harsher penalty,

occurring five years after the original information, is prejudicial. This argument is

directly refuted by James.

       Second, Medina argues that the "policy considerations" implicated in

James are not present here, pointing out that the James court was concerned

with balancing the State's interest in adapting to an ongoing investigation and the

defendant's right to withdraw a plea. But similar policy considerations with



       22 Ramos. 163 Wn.2d at 660-62.

       23 James. 108 Wn.2d at 489-90.
                                              8
No. 67757-8-1 (Consolidated with No. 67758-6-l)/9


regard to the State's interests are represented here. The State amended

Medina's information only after the supreme court made clear that it could do

so.24 Like the James court's interest in allowing the State flexibility to adapt to an
ongoing investigation, the State has an interest in adapting to a clarified legal

landscape.

       Third, Medina contends that unlike the defendant in James, he was

prejudiced by the State's representations at his 2005 arraignment that he would

only be charged for first degree manslaughter. It is true that in James, the

defendant appears to have had some knowledge that the State was at least

considering altering the charge against him.25 But the mere fact that the State
did not provide Medina a warning before the amendment does not, by itself,

result in prejudice. There is no indication that the State sought a plea deal with

Medina during the second trial. Thus, Medina fails to persuade us how lack of

knowledge of the amended charge, prior to the State's official motion, prejudiced

him.


       Medina also asserts that the amendment of the information five years after

his initial charge is itself prejudicial. But he cites no authority to support the




       24 See Medina 2012 Clerk's Papers at 160-61 ("Once the proper analysis
under the principles of alternative means was apparent, the State indicated the
intent to amend the charges to intentional murder.").

       25 James. 108 Wn.2d at 485.
No. 67757-8-1 (Consolidated with No. 67758-6-l)/10


contention that passage of time, well before trial, constitutes prejudice to a

defendant. Medina relies on State v. Ziealer.26 but this case is not helpful.
       There, the supreme court concluded that the amendment of the counts for

child rape midtrialprejudiced Ziegler.27 The court permitted the State to amend
the information during trial, changing the first degree child rape charge to a first

degree child molestation charge and adding two first degree rape charges.28
Thus, because of the midtrial amendment, Ziegler was not able to properly

prepare a defense and was prejudiced.29 That is not the case here.
       It is true that in holding that the amendment was prejudicial to Ziegler and

thus an abuse of discretion, the supreme court stated that "[a]dding two child

rape charges during trial affected Ziegler's ability to prepare his defense. His trial

strategy and plea negotiations with the State would likely have been different

had he known there would be two additional child rape charges."30 We are not
convinced that this passing mention of plea negotiations means that anytime the

State increases a charge against a defendant by amendment of the information,

he or she is prejudiced by a demonstration that a plea would have been taken

before amendment.




       26 138 Wn. App. 804, 158 P.3d 647 (2007).
       27 ]d at 810-11.
       28 Id,at 807.

       29 Ji at 811.
       30 ]a\ (emphasis added).
                                              10
No. 67757-8-1 (Consolidated with No. 67758-6-l)/11


       Finally, Medina points to the United States Supreme Court's recent

decision in Missouri v. Frve,31 arguing that its enunciation ofthe importance of
plea bargaining in the criminal justice system somehow trumps our state court's

interpretation of CrR 2.1 (d). It does not.

       Frve addressed whether a defendant received ineffective assistance of

counsel where his attorney failed to inform him of two plea bargains offered by

the State.32 The Supreme Court held thatsuch action by an attorney fell below
the proper standard of representation.33 In contrast, there is no evidence here

that a plea bargain was ever offered to Medina. Thus, Frve is inapplicable.

                           CREDIT FOR TIME SERVED

       Medina next argues that he is entitled to credit against his sentence

because the time he spent before sentencing in King County's CCAP Enhanced

qualifies under governing statutes. We disagree.

       An offender sentenced to a term of confinement has both a constitutional

and a statutory right to receive credit for confinement for time served before

sentencing.34 The failure to provide credit for time served in confinement violates




       31 _ U.S. _, 132 S. Ct. 1399, 182 L Ed. 2d 379 (2012).
       32 Id at 1404, 1409.

       33 ]d at 1408-09.

       34 RCW 9.94A.505; State v. Speaks. 119 Wn.2d 204, 206, 829 P.2d 1096
(1992).
                                              11
No. 67757-8-1 (Consolidated with No. 67758-6-l)/12


due process, equal protection, and the double jeopardy prohibition against

multiple punishments.35
       Under RCW 9.94A.345, "[a]ny sentence imposed under [the SRA] shall be

determined in accordance with the law in effect when the current offense was

committed." "Generally statutes are presumed to apply prospectively, unless

there is some legislative indication to the contrary."36 Under the SRA, The
sentencing court shall give the offender credit for all confinement time served

before the sentencing if that confinement was solely in regard to the offense for

which the offender is being sentenced."37 "'Confinement' means total or partial
confinement as defined in [the SRA]."38




       35 In re Pers. Restraint of Costello. 131 Wn. App. 828, 832, 129 P.3d 827
(2006). But see Harris v. Charles. 151 Wn. App. 929, 936-37, 214 P.3d 962
(2009) (holding that failure to credit time served in electronic home monitoring to
misdemeanor sentence was not a violation of defendant's equal protection rights
because there is a rational basis for treating misdemeanants differently than
felons).

       36 State v. Humphrey. 139 Wn.2d 53, 57, 983 P.2d 1118(1999); Howell v.
Spokane & Inland Empire Blood Bank. 114 Wn.2d 42, 47, 785 P.2d 815 (1990)
("Statutory amendments are ... presumed to be prospective unless there is a
legislative intent to the contrary or the amendment is clearly curative."); State v.
Doutv. 92 Wn.2d 930, 935, 603 P.2d 373 (1979) ("It is a fundamental rule of
statutory construction that a statute is presumed to operate prospectively and
ought not to be construed to operate retrospectively in the absence of language
clearly indicating such a legislative intent." (quoting Earle v. Froedtert Grain &
Malting Co.. 197 Wash. 341, 344, 85 P.2d 264 (1938))).

       37 Former RCW 9.94A.120(16) (1988); see also RCW 9.94A.680.

       38 Former RCW 9.94A.030(8) (1988).
                                             12
No. 67757-8-1 (Consolidated with No. 67758-6-l)/13


       We may affirm on any ground supported by the record even if that ground

was not argued to the trial court.39

       Here, the trial court imposed a sentence of 183 months.40 Medina sought
credit against this sentence for 1,505 days served prior to sentencing in King

County's CCAP Enhanced.41 In doing so, he relied exclusively on RCW
9.94A.680, a statute that provides for alternatives to total confinement.42

       The record shows that he was in this local program during 2007 and after,

following serving time in prison.43 The trial courtdenied credit on the basis that
this statute, by its terms, applies only to offenders with sentences of one year or

less.44 Because Medina's 183 month sentence exceeded that term, the trial
court denied his request for credit under CCAP Enhanced.45

       But the trial court granted credit to Medina for 1,084 days time actually

served in confinement in the King County Jail prior to sentencing.46 This part of
the sentence is not at issue on appeal.




       39 LaMon v. Butler. 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
       40 Medina 2012 Clerk's Papers at 188.
       41 Sentencing Hearing, Report of Proceedings (Sept. 30, 2011) at 4-5,19.
       42 lg\ at 7.

       43 ]g\ at 13; Medina 2012 Clerk's Papers at 179-189.
       44 Report of Proceedings (Sept. 30, 2011) at 15,19.
       45 Jg\ at 15-16.

       48 Medina 2012 Clerk's Papers at 188.
                                             13
No. 67757-8-1 (Consolidated with No. 67758-6-l)/14


         Here, Medina contends that his time spent prior to sentencing in King

County's CCAP Enhanced constitutes "confinement" for which he is entitled to

credit against his sentence under governing statutes. We conclude that neither

the record nor the governing statutes supports this claim.

         First, RCW 9.94A.680, on which Medina primarily relies, was not enacted

until 1999. This was well after the time of Medina's crime in September 1997.

Accordingly, RCW 9.94A.345 bars application of this statute to this sentencing

because it was not in effect at the time of Medina's crime.

         Second, there is nothing in RCW 9.94A.680 that indicates that it has

retroactive effect.


         For these reasons, this statute has no bearing on the question that we

must decide: whether credit for time served prior to sentencing in CCAP

Enhanced should be applied to Medina's sentence for his September 1997

crime.


         Medina argues that CCAP Enhanced constitutes "partial confinement" for

which he is entitled to credit against his sentence. We are not persuaded that

this is correct.


         The question of what activities qualify for credit for time served is one of

statutory interpretation. When engaging in statutory interpretation, an appellate

court looks first to the statute's plain language.47 If the statute's meaning is plain
on its face, the inquiry ends.48 Astatute is ambiguous when it is susceptible to


         47 State v. Armendariz. 160Wn.2d 106, 110, 156 P.3d201 (2007).
         48 jg\
                                               14
No. 67757-8-1 (Consolidated with No. 67758-6-l)/15


two or more reasonable interpretations.49 But a statute is not ambiguous merely
because different interpretations are possible.50 The meaning of a statute is a
question of lawthat an appellate court reviews de novo.51

      As we have already explained, for purposes of sentencing credit, the

applicable definition of "confinement" was that existing at the time of Medina's

crime in September 1997. Under the SRA, as it then read, confinement included

"total or partial confinement."52 "Partial confinement," which is at issue here, was
then defined as:

       confinement for no more than one year in a facility or
       institution operated or utilized under contract by the state or any
       other unit of government, or, if home detention or work crew has
       been ordered by the court, in an approved residence, for a
       substantial portion of each day with the balance of the day spent
       in the community. Partial confinement includes work release, home
       detention, work crew, and a combination of work crew and home
       detention as defined in this section.1531

       The above emphasized language shows that there were temporal

requirements to qualify for partial confinement at the time of Medina's crime. As

the State argues, there does not appear to be any definition in this statute of the

phrase "a substantial portion of each day," one of these temporal requirements.




      49 HomeStreet. Inc. v. Deo't of Revenue. 166 Wn.2d 444, 452, 210 P.3d
297 (2009) (quoting State v. Hahn. 83 Wn. App. 825, 831, 924 P.2d 392 (1996)).

       50 !i
       51 Okeson v. City of Seattle. 150 Wn.2d 540, 548-49, 78 P.3d 1279 (2003).

       52 Former RCW 9.94A.030(8) (1988).

       53 Former RCW 9.94A.030(26) (1991) (emphasis added).

                                              15
No. 67757-8-1 (Consolidated with No. 67758-6-l)/16

But the State correctly argues that former RCW 9.94A.180(1) (1988) provides as

follows:


                An offender sentenced to a term of partial confinement shall be
         confined in the facility for at least eight hours per day... .[54}
         Harmonizing these statutes, to qualify for time served in partial

confinement an offender must demonstrate that this partial confinement included

at least eight hours per day in a "facility." There is nothing in this record to

substantiate that Medina met the eight hour daily minimum requirement in CCAP

Enhanced. This failure is fatal to his claim for credit for time served.

         Citing RCW 9.94A.030(35), a current definitional provision of the SRA,

Medina argues that the varied requirements of partial confinement programs do

not require participation for a specific minimum number of hours per day or per

week.55 The programs to which he refers include work release, work crew, home
detention, and a combination of work crew and home detention. We cannot

agree.


         As we previously stated in this opinion, the controlling definitional

provision for determining Medina's sentencing credit was the definitional

section of the SRA in effect at the time of Medina's crime. That statute

was former RCW 9.94A.030(26) (1991), which stated:

                Partial confinement includes work release, home detention,
         work crew, and a combination of work crew and home detention as
         defined in [the SRA].




         54 (Emphasis added.)
         55 Brief of Appellant at 16 et seq.
                                               16
No. 67757-8-1 (Consolidated with No. 67758-6-l)/17


      Although the language of the current and former provisions is identical,

Medina has not pointed to anything in this record to substantiate that he was

either in any of these individual programs or a "combination of work crew and

home detention" for the relevant time. This failure is also fatal to his argument.

       Medina also appears to argue that his participation in CCAP Enhanced in

2007 and after is sufficiently similar to the programs specified in former RCW

9.94A.030(26) (1991) to qualify as confinement for purposes of credit for time

served. We again disagree.

       "Work crew" was defined under former RCW 9.94A.030(34) (1991) as:

       [A] program of partial confinement consisting of civic improvement
       tasks for the benefit of the community of not less than thirty-five
       hours per week that complies with RCW 9.94A.135           Only those
       offenders sentenced to a facility operated or utilized under contract
       by a county or the state are eligible to participate on a work crew.[56]

Under former RCW 9.94A.135 (1991):

       An offender who has successfully completed four weeks of work
       crew at thirty-five hours per week shall thereafter receive credit
       towards the work crew sentence for hours worked at approved,
       verified employment. Such employment credit may be earned for
       up to twenty-four hours actual employment per week, provided,
       however, that every such offender shall continue active
       participation in work crews projects according to a schedule
       approved by a work crew supervisor until the work crew sentence
       has been served.

"Work release" was defined in the 1997 SRA as:

       [A] program of partial confinement available to offenders who are
       employed or engaged as a student in a regular course of study at
       school. Participation in work release shall be conditioned upon the




       56 Former RCW 9.94A.030(39) (1995).

                                             17
No. 67757-8-1 (Consolidated with No. 67758-6-l)/18


       offender attending work or school at regularly defined hours and
       abiding by the rules ofthe work release facility.[57]
Generally, one is partially confined in a residential facility during work release.58

       Medina has failed to establish in this record that his participation in CCAP

Enhanced was sufficiently similar to the above programs to qualify for credit.

The section of the King County Municipal Code enacting the general CCAP

program provides:

              A. The community corrections division of the department of
       adult and juvenile detention shall provide a county supervised
       community option for offenders convicted of nonviolent and non-sex
       offenses with sentences of one year or less as provided in RCW
       9.94A.680.


              B. For the purposes of this section, "county supervised
       option" means an alternative to confinement program in which an
       offender must participate for a minimum of six hours per day of
       structured programs offered through, or approved by, the
       community corrections division. The structured programs may
       include, but are not limited to: life management skills development;
       substance abuse assessment and treatment services; mental
       health assessment and treatment services; counseling; basic adult
       education and related services; vocational training services; and job
       placement services.[59]
The King County Department of Adult and Juvenile Detention further outlines

CCAP as a program that "holds offenders accountable to a weekly itinerary




       57
            Former RCW 9.94A.030(41) (1997).

       58 See Citizens for Fair Share v. State Dep't of Corr.. 117 Wn. App. 411,
423, 72 P.3d 206 (2003) (deferring to the Department of Corrections
interpretation that a "facility" is a residential facility when considering work
release programs).

       59 King County Code § 5.12.010, available at
http://www.kinQCOuntv.QQv/council/leQislation/kc code/08 Title 5.aspx.


                                              18
No. 67757-8-1 (Consolidated with No. 67758-6-l)/19


directed at involving the offender in a continuum of structured programs."60
CCAP is aimed at providing offenders with the services that fit their needs:

       The goal of CCAP is to assist offenders in changing those
       behaviors that have contributed to their being charged with a
       crime. CCAP provides on-site services as well as referrals to
       community-based services. Random drug tests are conducted to
       monitor for illegal drug use and consumption of alcohol. Offenders
       participating in CCAP receive an individual needs assessment and
       are scheduled for a variety of programs.1611
       Consistent with state statutes, this program only requires six hours per

day—not the eight hour minimum required under former RCW 9.94A.180(1)

(1988). Significantly, there is nothing in this record to show what Medina did or

for how long during his time in CCAP Enhanced. The above description of CCAP

does nothing to fill this gap. Without such information, there is no way to show

that this program is sufficiently similar to partial confinement, as defined in 1997

by state statute.

       Given this sparse appellate record, the adequacy of which is Medina's

burden to provide, he is not entitled to pre-sentencing credit under governing law.

       While neither party addresses the point, there is another reason why

Medina is not entitled to credit for time served in CCAP Enhanced. Former RCW

9.94A.380 (1988), the statute that was in effect at the time of his September

1997 crime, provided as follows:

               Alternatives to total confinement are available for offenders
       with sentences of one year or less. These alternatives include the


       60 King County Department of Adult and Juvenile Detention, available at
http://www.kingcountv.gov/courts/detention/communitv corrections/programs.asp
x#ccap.


       61jg\
                                             19
No. 67757-8-1 (Consolidated with No. 67758-6-l)/20

      following sentence conditions that the court may order as
       substitutes for total confinement:

             (1) One day of partial confinement may be substituted for
       one day of total confinement;

              (2) In addition, for offenders convicted of nonviolent offenses
       only, eight hours of community service may be substituted for one
       day of total confinement, with a maximum conversion limit of two
       hundred forty hours or thirty days. Community service hours must
       be completed within the period of community supervision or a time
       period specified by the court, which shall not exceed twenty-four
       months, pursuant to a schedule determined by the department.

               For sentences of nonviolent offenders for one year or less,
       the court shall consider and give priority to available alternatives to
       total confinement and shall state its reasons in writing on the
       judgment and sentence form if the alternatives are not used.

       The plain words of this statute buttress our conclusion that Medina was

not entitled to credit for time served. His confinement was for more than one

year. Murder, the offense for which he was convicted, is not a "nonviolent

offense." And his failure to qualify under both of these criteria made him

ineligible for "available alternatives to total confinement."

       To summarize, RCW 9.94A.680, on which Medina primarily relies does

not control the question of whether he is entitled to time served in CCAP

Enhanced because it was not in effect at the time of his September 1997 crime.

Rather, former RCW 9.94A.380 (1988) is the controlling statute. Significantly,

Medina fails to show that his activities in CCAP Enhanced qualify for credit for

time served either under the provisions of RCW 9.94A.380 or under the more

general provisions of the SRA.




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                                    Rule of Lenity

       Medina argues that, to the extent that the applicable statutes could be

ambiguous as to credit for time served in CCAP Enhanced, the rule of lenity

applies. Because the governing statutes that we have discussed are clear, the

rule of lenity has no place here.

       "The rule of lenity requires [a court] to interpret an ambiguous criminal

statute in favor of the defendant absent legislative intent to the contrary."62 For
the reasons previously explained, the statutes are not ambiguous. They are not

susceptible to two or more reasonable readings.

       We have already discussed what statutes govern and why. There is no

ambiguity in these statutes that requires us to consider the rule of lenity.

                        Equal Protection and Double Jeopardy

       Finally, Medina contends that the trial court's failure to credit his time

spent in CCAP Enhanced violates double jeopardy and his right to equal

protection. This is not the case.

       Under North Carolina v. Pearce.63 a case on which Medina relies, the Fifth

Amendment guarantee against double jeopardy "is violated when punishment

already exacted for an offense is not fully 'credited' in imposing sentence upon a

new conviction for the same offense."64 Thus, the protection against double


       62 State v. Mandanas. 168Wn.2d 84, 88, 228 P.3d 13 (2010).
       63 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part
bv Ala, v. Smith. 490 U.S. 794, 801, 109 S. Ct. 2201, 104 L Ed. 2d 865 (1989).

       64 Id. at 718.


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jeopardy "requires that punishment already exacted must be fully 'credited' in

imposing sentence upon a new conviction for the same offense."65

       Here, Medina is not entitled to credit for time served before sentencing in

CCAP Enhanced for the reasons we explained previously in this opinion. Thus,

there is no question of him being subjected to double jeopardy. Pearce does not

require a different result.

       Similarly, Medina's equal protection argument depends on him being

entitled to credit for time served under CCAP Enhanced. Under State v.

Anderson66 and State v. Swiaer.67 the supreme court held that a condition that
would qualify as confinement pre-conviction must also qualify as such post

conviction.68 But here, as explained previously in this opinion, Medina is not
entitled to time served presentence in CCAP Enhanced. There is no equal

protection violation.

       We next consider the claims of Ramos.

                              JURY INSTRUCTION

       Ramos argues that the trial court's first degree manslaughter jury

instruction violated his right to due process because it lowered the State's burden

of proof. While the jury instruction given by the court did lower the burden of




       65 ]g\ at 718-19.

       66 132 Wn.2d 203, 937 P.2d 581 (1997).
       67 159 Wn.2d 224, 149 P.3d 372 (2006).

       68 Id at 229-30; Anderson. 132 Wn.2d at 207-08.

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No. 67757-8-1 (Consolidated with No. 67758-6-l)/23


proof, his counsel agreed to it. Thus, this claim of error is barred by the invited

error doctrine.


       Under State v. Gamble69 and State v. Peters.70 to convict a defendant of

first degree manslaughter "requires the State to prove beyond a reasonable

doubt that the defendant knew of and disregarded a substantial risk that death

may occur."71 This court held in Peters that a jury instruction
       that defines reckless to mean [the defendant] knew of and
       disregarded "a substantial risk that a wrongful act may occur,"
       rather than "a substantial risk that death may occur," is contrary to
       Gamble and WPIC 10.03. The instruction impermissibly relieve[s]
       the State of the burden of proving beyond a reasonable doubt that
       [the defendant] knew of and disregarded a substantial risk that
       death may occur, and allowed the jury to convict [the defendant] of
       only a wrongful act.1721
       Whether a jury instruction has impermissibly lowered the State's burden of

proof is a question of law that this court reviews de novo.73

       The State concedes that the supreme court's decision in Gamble and our

decision in Peters require a correct jury instruction for first degree manslaughter,

one other than that used here. Nevertheless, Ramos's own counsel proposed

instructions that included the "wrongful act" language in the first degree

manslaughter instructions. Thus, the invited error doctrine precludes Ramos's

appeal based on this error.


       69 154 Wn.2d 457, 114 P.3d 646 (2005).

       70 163 Wn. App. 836, 261 P.3d 199 (2011).
       71 Id at 848 (citing Gamble. 154Wn.2d at 467-68).
       72 Id at 849-50.

       73 id at 847.
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No. 67757-8-1 (Consolidated with No. 67758-6-l)/24

       Under the doctrine of invited error, a party is prohibited from "'setting up

an error at trial and then complaining of it on appeal.'"74 Thus, a court"will deem
an errorwaived if the party asserting such error materially contributed thereto."75
The invited error doctrine generally requires a defendant's affirmative act to have

set up the complained of error, that is, a voluntary and knowing action. The

supreme court has made clear that this includes requested instructions. "'[A]

party may not request an instruction and later complain on appeal that the

requested instruction was given.'"76
       Here, Ramos's counsel proposed the complained-of instruction.

Consequently, Ramos cannot now argue that this error should result in a

vacation of his sentence.

       Ramos argues that Peters requires reversal of his conviction, but he fails

to note the significance of who proposed the improper instructions in that case.

There, the trial court disagreed with the State and defense's proposed

instructions, and it suggested and then instructed on the improper standard.77
That is not the case here, where Ramos's counsel proposed the improper

instruction.




       74 State v. Wakefield. 130 Wn.2d 464, 475, 925 P.2d 183 (1996) (quoting
Statev.Pam. 101 Wn.2d 507, 511, 680 P.2d 762 (1984)).

       75 In re Dependency of K.R.. 128 Wn.2d 129, 147, 904 P.2d 1132 (1995).

       76 State v. Studd. 137 Wn.2d 533, 546, 973 P.2d 1049 (1999) (quoting
State v. Henderson. 114 Wn.2d 867, 870, 792 P.2d 514 (1990)).

       77 Peters. 163 Wn. App. at 844.

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                   INEFFECTIVE ASSISTANCE OF COUNSEL

       Ramos next argues that his defense counsel's failure to research the

relevant law and consequent proposal of an improper jury instruction for first

degree manslaughter resulted in ineffective assistance of counsel and requires

reversal. We agree.

       To prevail on a claim of ineffective assistance of counsel, a defendant

must show that his counsel's performance fell below an objective standard of

reasonableness based on consideration of all circumstances and that the

deficient performance prejudiced the trial.78 The reasonableness inquiry
presumes effective representation and requires the defendant to show the

absence of legitimate strategic or tactical reasons for the challenged conduct.79
In order to show prejudice, the defendant must prove that, but for the deficient

performance, there is a reasonable probability that the outcome would have been

different.80

       A claim of ineffective assistance of counsel presents a mixed question of

fact and law that an appellate court reviews de novo.81

        Here, the State does not dispute that Ramos's lawyer's performance was

deficient. "Both Gamble and the comment regarding the WPIC were published


       78 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L Ed.
2d 674 (1984); State v. Nichols. 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).

        79 State v.McFarland. 127Wn.2d322, 336, 899 P.2d 1251 (1995).
        80 In re Pers. Restraint of Pirtle. 136 Wn.2d 467, 487, 965 P.2d 593
(1998).

        81 State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

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No. 67757-8-1 (Consolidated with No. 67758-6-l)/26


before [the 2011 trial]. Therefore, it was deficient performance for Ramos's

lawyers to propose the standard version of WPIC 10.03 instead of drafting the

instruction in accordance with Gamble and the WPIC comment."82

      The State argues that Ramos's counsel's deficient performance was not

prejudicial. We disagree.

       In convicting Ramos of first degree manslaughter here, the jury concluded

that Ramos knew of and disregarded the substantial risk that a wrongful act

would occur. It did not consider whether he disregarded the substantial risk that

death would occur. As Ramos notes, it takes much less to disregard a

substantial risk of any wrongful act than it does to disregard a substantial risk of

death. Therein lies the consequence of the instructional error.

       At trial, the State presented evidence to show that (1) Ramos and Medina

agreed to go to Motel 6 to confront Collins; (2) Ramos changed clothes before

going to the hotel; (3) one of the men took a gun, ammunition, and other weapon

supplies with them to the motel; (4) at least some of these supplies had been

purchased at Camp Pendleton, where Ramos was stationed when he was in the

Marines; (5) Ramos drove to the motel; (6) when Ramos and Medina arrived,

they started looking around the motel for Collins; (7) together, they knocked on

Collins's apartment door; (8) either Medina or Ramos shot Collins; (9) the pair

then ran from Motel 6; (10) Ramos lied to a witness the night of the shooting and

later to police officers about his presence at the motel. Later that night at a




       82 Brief of Respondent at 14.
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No. 67757-8-1 (Consolidated with No. 67758-6-l)/27


friend's apartment, Ramos asked "What should I do?" When he learned that

Medina had confessed, he became visibly angry.

      As the State recognizes, because the jury convicted Medina of second

degree murder, it appears that they concluded that Medina was the shooter.

Given this conclusion and the above evidence presented at trial, there is a

reasonable probability that, but for his attorney's deficient performance, the jury

would not have convicted Ramos of first degree manslaughter. The jury appears

to have believed Medina's confession, in which he claimed that he alone

obtained Ramos's gun from his closet. And the above evidence does not

demonstrate a reasonable probability that a jury would have found Ramos acted

recklessly, if recklessly had been properly defined. The State presented no

evidence that demonstrated that Ramos disregarded a substantial risk of death—

the jury's determination would indicate that they accepted that Ramos did not

know of Medina's plan to murder Collins. Thus, Ramos's counsel was both

deficient and his deficient performance was prejudicial. Consequently, Ramos's

conviction must be reversed.83

       The State argues that, given the evidence it presented at trial, "Ramos

cannot demonstrate that there is a reasonable probability that the jury's verdict

would have been different if the instruction" had been proper. But, as explained

above, the evidence was not overwhelming. The evidence presented by the

State demonstrates that Ramos may have had knowledge when he drove to




       83 Strickland. 466 U.S. at 694; State v. Hendrickson. 129 Wn.2d 61, 78,
917 P.2d 563 (1996).
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No. 67757-8-1 (Consolidated with No. 67758-6-l)/28


Motel 6 that there was a substantial risk that a wrongful act could occur. But the

evidence did not overwhelmingly demonstrate he knew of a substantial risk of

death occurring.

      Reversal of the conviction is the proper remedy for counsel's deficient

performance in proposing an improper instruction.

                   STATEMENT OF ADDITIONAL GROUNDS

       Ramos submitted a statement of additional grounds for review. His

arguments, which focus on the first degree manslaughter instructional error and

consequent relief of the State's burden of proof, are adequately addressed in his

appellate counsel's brief. We will not separately discuss this again.

      We affirm Medina's conviction and sentence. We reverse Ramos's

conviction and remand for a new trial.

                                                       ^qX,vJ.
WE CONCUR:




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