          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                    )       No. 76503-5-1 consolidated with
                                        )       No. 77400-0-1
                    Respondent,         )
                                        )       DIVISION ONE
                    v.                  )
                                        )
AARON REY YBARRA,                       )       UNPUBLISHED OPINION
                                        )
                    Appellant.          )       FILED: August 19, 2019
                                        )

       MANN, A.C.J. —Aaron Ybarra planned a school shooting and chose Seattle

Pacific University(SPU)as his target. On June 5, 2014, Ybarra drove to the SPU

campus to carry out his plan. Ybarra killed one student and injured several others.

Ybarra appeals his conviction and sentence for one count of first degree murder, three

counts of attempted first degree murder, one count of second degree assault—all with a

firearm enhancement and the aggravator that the crime involved a destructive and

foreseeable impact on persons other than the victims. Ybarra alleges that there were

three improper judicial comments on the evidence, that the trial court erred in denying

his request for second degree murder and second degree attempted murder

instructions, and that his counsel was ineffective at sentencing. We affirm.
No. 76503-5-1/2


                                             I.

                                            A.

       On June 5, 2014, Ybarra left his house with a double-barrel shotgun in a garbage

bag and drove to SPU. Ybarra chose to carry out his plan at Otto Miller Hall ("OMH")

because it was close to the street and parking was easy. Ybarra parked his truck

behind OMH so he could enter a classroom through the back door, but it was locked.

Instead, Ybarra parked his car across the street from OMH. Ybarra filled his pockets

with 50 shotgun shells before crossing the street and making his way toward the front

doors of OMH.

      SPU students Anna Sophia Curturlio-Hackney and Thomas Fowler were

standing outside the front doors of OMH when Ybarra aimed the gun at them and said

"freeze" or "get inside." At the same time, Paul Lee walked between Ybarra and

Cuturlio-Hackney, wearing headphones, unaware of the threat Ybarra posed. Ybarra

yelled "freeze" at Lee and fatally shot him in the back of the neck.

       Bird shot from the blast hit Fowler in the face, neck, and chest. Ybarra then

aimed his shotgun at Curturlio-Hackney and pulled the trigger, but the shotgun did not

fire. Curturlio-Hackney and Fowler both fled behind the building.

      Ybarra entered OMH lobby and aimed his shotgun at Tristan Cooper-Roth, who

was studying at a table in the lobby. Ybarra told Cooper-Roth not to "disrespect him

because he shot someone outside." Ybarra then turned to Sarah Williams. Williams

was walking down the stairs into the lobby when Ybarra shot her in the chest. Ybarra

began reloading the shotgun as Cooper-Roth fled the building.



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No. 76503-5-1/3


      Jon Meis, who was in the building-monitor office, entered the OMH lobby and

heard Ybarra say "don't move" while pointing his shotgun at a student. Meis was out of

Ybarra's line of sight and hit the panic button to alert campus security. Meis heard the

gunshot that hit Williams and saw Ybarra trying to reload the shotgun. Meis grabbed a

canister of pepper spray and sprayed Ybarra in the face. Meis then tackled Ybarra and

wrestled the shotgun away. Ybarra attempted to pull a hunting knife from his pocket,

but Meis pinned Ybarra's arm and kicked it away. Justin Serra and Meis held Ybarra

until campus security and Seattle Police arrived. Ybarra told them they should have let

him keep his knife because he was going to use it to kill himself.

      The State charged Ybarra with first degree murder of Lee, three counts of

attempted first degree murder of Fowler, Curturlio-Hackney, and Williams, and second

degree assault of Cooper-Roth. Each count had a firearm enhancement and alleged

that the crime involved a destructive and foreseeable impact on persons other than the

victims under RCW 9.94A.535(3)(r). Ybarra argued that he was not guilty by reason of

insanity, was acting on God's plan, and was influenced by Satan and Lucifer.

                                            B.

       At trial, the jury heard testimony about Ybarra's premeditation of the crimes from

three primary sources: Ybarra's journal, a police interview, and Ybarra's testimony at

trial. In both Ybarra's journal and during the police interview, he explained that he

planned to kill students at SPU because of his hatred toward the world and was inspired

by the Columbine and Virginia Tech shootings. At trial, however, Ybarra's story

changed, instead he was carrying out "God's Plan."



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       Ybarra's Journal Entries

       Ybarra explained his intent in his journal. On June 2, 2014, Ybarra explained

how and why he chose to target SPU:

              I use to always hate violence towards women, but there is no doubt
      that I'm going to kill quite a few in the shootout, I don't care anymore.
      There are a few universities in the state to pick from that I'm planning to
      attack. Washington State is the main target. I can't make it there with out
      [sic] any suspision, [sic] my parents will keep wondering where I'm at and
      plus I'm not yet prepared for it, I have plans B's Central, Eastern and
      Seattle Pacific. I was focusing on Central but not prepared for that either.
      Didn't think about Eastern because I'm only prepared to be local. I picked
      Seattle Pacific because I'm less familiar with it and I can see that
      University of Washington and Seattle University represent Seattle more. I
      didn't want to have to attack my own city. I went to the SPU campus to
      get info and find a good area to attack. A couple Mondays ago I was
      trying to give myself a tour and asking where certain buildings were, acting
      like a transfer student. I asked this nice black girl where the history
      building was. For about ten minute's [sic] she showed me around some of
      the places she knew, I forgot how to say her name. Minutes later, I met a
      cute white girl named Kylene. She offered to show me around for about
      fifteen or twenty minutes. These girls were very nice and they treated me
      well. Because they showed me around the campus without me asking
      them to, I will single them out of the shooting if I see them.

       Ybarra's journal entries became angrier and more hostile as it got closer to the

day of the shooting. Ybarra explained that he still loved his family and friends but,

"Everybody else in the world, I just want to blow their faces out with a 12 gauge shot

gun blast!" Ybarra wrote the last journal entry the morning of the shooting, while parked

in his truck outside SPU.

              This is it! I can't believe I'm finally doing this! So exciting I'm
      jumpy. Since Virginia Tech and Columbine, I've been thinking about these
      a lot. I use to feel bad for the ones who were killed, but now Eric Harris
      and Seung Hui Cho became my Idols. And they guided me til today. No
      matter how cute the girl is and no matter how cool the guy is, I just want
      people to die! And I'm gonna die with them. I'm not asking for
      forgiveness because there won't be any. But it is what it is. I'm doing


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No. 76503-5-1/5


       some people a favor by sending them to heaven. But those who are
       sinners like me, I'll see you in hell.

        Police Interview

       Detectives James Cooper and Dana Duffy interviewed Ybarra at the police

station following his arrest. During the interview, Ybarra explained his plan, motive,

procurement of a weapon, stealth, and method of choosing his victims.

       Ybarra explained that three years prior, when he was 23, he began having "bad

feelings." Ybarra was diagnosed with obsessive compulsive disorder(OCD)when he

was 13 but did not begin having "bad feelings" until his bedroom furniture was replaced

by his parents. Ybarra explained that he told his parents to wait to replace his bedroom

furniture, but they didn't listen and afterwards he "started losing it." After Ybarra's

parents took his furniture away, he "felt nothing but hate. Hundred percent hatred

towards the world. Towards everyone. I threatened to massacre the local bar once

cause I just wanted everything and everyone to die. And then Columbine came into

mind. I don't know how, but it just hit me." Ybarra explained that he felt disrespected,

that God had betrayed him when he asked for help, and was overcome with hatred

toward the world.

       Ybarra planned to attack SPU students using a double-barrel shotgun. Ybarra

bought the shotgun when he was 19 years old, but Ybarra's parents put a trigger lock

on the shotgun because Ybarra had "rant[ed] about killing people." Ybarra hid bolt

cutters in his room so that he could break the trigger lock on his shotgun. Ybarra saved

up money for "the right weapons, the right equipment" and was "trying to be well-

organized." Ybarra bought three boxes of ammunition over two shopping trips, which


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No. 76503-5-1/6


totaled 75 rounds. With that amount of ammunition, Ybarra thought he "was gonna kill

and injure more people." Ybarra specifically chose bird shot because "at close range,

[bird shot] would disintegrate a human face." Ybarra chose a shotgun, rather than a

pistol because Ybarra can hit a moving target more accurately with a shotgun than a

pistol.

          Ybarra used a "hunter and fisherman's technique," scouting the SPU campus two

weeks before the shooting. While on campus, Ybarra pretended to be a transfer

student and two students gave Ybarra a tour of the first floor of OMH. Ybarra also

talked to an academic advisor and pretended he was transferring from Edmonds

Community College. When discussing these encounters during the police interview,

Ybarra explained how he "manipulated" the students and academic advisor to get the

information he needed. Since the two students treated Ybarra nicely, Ybarra made the

conscious decision to show them "remorse" if he saw them during the shooting and

spare their lives.

          In an effort to plan the shooting when many students were on campus, Ybarra

asked the academic advisor when finals began. Ybarra did not want to plan the

shooting when classes were not in session and feared if he did not complete the plan

soon, he would have to wait until fall semester. While Ybarra was scouting, he was also

"mak[ing] sure people were [on campus]."

          Ybarra's Trial Testimony

          Ybarra testified at trial about hateful feelings, how he formulated his plan from the

Columbine and Virginia Tech shootings, and his thought process on the day of the

shooting. Ybarra explained the hateful feelings were implanted by Satan and Lucifer,

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No. 76503-5-1/7


that God had banished Ybarra to hell, and before Ybarra died, Ybarra had to carry out

"God's Plan" and Satan's destruction so that people would focus on "keep[ing] this

country a better place." Ybarra explained that he had to keep "God's Plan" a secret,

which was why he did not explain the plan in his journal, during the police interview, to

his therapists, or the defense's and State's experts. Portions of Ybarra's testimony

contradicted itself and Ybarra explained that everything he said prior to his testimony

about feeling hatred and admiring the Columbine and Virginia Tech shootings was a

"cover-up" and, instead, Ybarra was carrying out "God's Plan."

                                            C.

       Dr. Craig Beaver, the defense's expert, and Dr. Kenneth Muscatel, the State's

expert, evaluated Ybarra while he was in jail after the shooting and both testified about

whether Ybarra was legally insane. Dr. Beaver opined that Ybarra's severe mental

disease or defect, "impacted his ability to understand the wrongfulness of his actions."

br. Beaver explained that Ybarra knew that the shootings were morally wrong, but

because he was receiving a direct command from God, he was unable to recognize the

moral wrongness of his actions. Dr. Muscatel countered that Ybarra understood that

shootings were both legally and morally wrong, but "felt influenced by other forces" and

Dr. Muscatel "couldn't conclude that he was legally insane."

                                            D.

      The court instructed the jury on manslaughter but denied Ybarra's request to

instruct the jury on second degree murder and attempted second degree murder. The

manslaughter instruction was consistent with Ybarra's theory that he was firing "warning

shots" and wanted to take hostages, rather than intending to kill. The court denied

                                          -7-
No. 76503-5-1/8


Ybarra's request for second degree murder instructions because there was no evidence

presented that Ybarra intended to kill without premeditation. The jury convicted Ybarra

as charged, including all enhancements and aggravators. The court sentenced Ybarra

to a standard range sentence, totaling 1,343 months in prison. Ybarra appealed.

      At the restitution hearing, the court ordered Ybarra to pay $10,504 to the Crime

Victims' Compensation Fund (Victims' Fund) and $2,615.90 to Lee's family for funeral

expenses. The court ordered Ybarra to pay Hannah Judd's medical expenses totaling

$86.04 from October 21, 2014. Judd assisted Williams with her gunshot wound until

paramedics arrived.

      Ybarra appeals the judgment and sentence and restitution order.

                                            11.

      Ybarra first contends that the trial court improperly commented on the evidence

in violation of article IV, section 16 of the Washington Constitution. We disagree.

      The standard of review for a claim of judicial comment on the evidence is

whether the error was harmless beyond a reasonable doubt. State v. Levy, 156 Wn.2d

709, 731, 132 P.3d 1076 (2006). Judicial comments on the evidence are prohibited

under article IV, section 16 of the Washington Constitution, which provides, "Uludges

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

declare the law." A comment on the evidence is an error of constitutional magnitude,

thus a defendant's failure to object or move for mistrial does not foreclose a defendant

from raising the issue for the first time on appeal. State v. Becker, 132 Wn.2d 54, 64,

935 P.2d 1321 (1997).



                                         -8-
No. 76503-5-1/9


      The purpose of article IV, section 16 is to prevent the court's opinion of the

evidence from improperly influencing the jury and its deliberation. State v. Lampshire,

74 Wn.2d 888, 892, 447 P.2d 727(1968). "To constitute a comment on the evidence, it

must appear that the trial court's attitude toward the merits of the cause is reasonably

inferable from the nature or manners of the court's statements." State v. Miller, 179 Wn.

App. 91, 107, 316 P.3d 1143(2014). If the court's evaluation of a disputed issue is

inferable from the judge's statement or the judge communicates their feelings about the

veracity of testimony, then the judge improperly commented on the evidence. State v.

Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995).

       If the trial court commented on the evidence, those comments are presumed

prejudicial. Levy, 156 Wn.2d at 721. The State bears the burden of showing the

defendant was not prejudiced, unless the record affirmatively shows that no prejudice

could have resulted. State v. Hartzell, 156 Wn. App. 918, 937, 237 P.3d 928 (2010).

The test to determine whether the comments resulted in actual prejudice to the

defendant is whether there is "overwhelming untainted evidence" to support the

conviction. State v. Sivins, 138 Wn. App. 52, 61, 155 P.3d 982(2007).

      Ybarra contends he was denied a fair trial when the court made three separate

comments on the evidence. The first alleged improper comment was on the 10th day of

trial. The court updated the jurors on the anticipated schedule for the rest of the week

and noted that Dr. Beaver would be testifying the following day. Ybarra objects to the

court's statement: "we will go until the [sic] least 4:30 tomorrow afternoon with Dr.

Beaver, who is an important witness for the defense. And then we will be starting on



                                          -9-
No. 76503-5-1/10


Thursday morning at 8:30 in the morning, so I want you here at 8:20 to continue with Dr.

Beaver."

       The second alleged improper comment was at the end of Dr. Beaver's testimony.

The court explained the upcoming schedule and why he was releasing jurors early that

day:

       Thank you, Dr. Beaver, you are all done. You are excused, and so are
       you. We planned a long period of time for this witness, obviously, an
       important witness, so in case it took all day, and we have no other
       witnesses planned for today. So the next time we are going to meet will
       be next Monday, at nine o'clock. There is still much more to hear, the
       defense has more witnesses to call, the State is planning on putting on
       rebuttal testimony, so please continue to keep an open mind as you
       proceed through the case.

       The third alleged improper comment occurred during Dr. Muscatel's testimony.

After the State asked Dr. Muscatel to refer to a "marked up" copy of his report, the court

interjected and explained to the jury that the report would not be available during

deliberations:

       If you wish to look at it. Any exhibit used by the witness is viewable by
       counsel in any case, so we are taking a moment for that and I probably
       should have said this earlier, but many exhibits that have been marked in
       this case, as you know, witnesses relied upon them to either remember to
       refresh their memory, or perhaps they have no memory, and we have
       provided them those exhibits. The testimony of the witnesses is the
       evidence, for example, Dr. Muscatel will be talking from his report, and of
       course, Dr. Beaver did the same. Those reports were not admitted into
       evidence, so their testimony is the evidence that you will use in making
       your decisions about this case.

Ybarra avers that together the court's comments implied that the court believed Dr.

Beaver's and Dr. Muscatel's testimony was "some of the most significant evidence at

trial" and that the State had met its burden of proving the underlying crimes, and "the



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No. 76503-5-1/11


only issue for jurors was whether Ybarra should be found [not guilty by reason of

insanity]."

       Ybarra first contends the court's comments are analogous to the trial court's

comments in Lampshire. In Lampshire, the prosecutor objected to the materiality of

testimony offered by the defendant. The trial court sustained the objection, commenting

that "Counsel's objection is well taken. ... I don't see the materiality, counsel."

Lampshire, 74 Wn.2d at 891. While the Supreme Court recognized that the court's

comment was inadvertently made while ruling on a motion, it concluded that "the remark

implicitly conveyed to the jury his personal opinion concerning the worth of the

defendant's testimony." Lampshire, 74 Wn.2d at 892.

        Unlike Lampshire, the trial court's comments during Ybarra's trial were about

scheduling witnesses, not the value of their testimony. Both parties anticipated long,

multi-day testimony from Dr. Beaver and scheduled two full days. On the second day of

Dr. Beaver's testimony, no other witnesses had been scheduled and the jury was

released early. The court's comment related to why the jury was released early, but

reminded the jury that there was still more testimony to hear. The court's opinion of the

credibility or worth of the testimony is not apparent from the comment. Instead, it is

readily apparent from the comments that the judge was informing the jury about

scheduling in a multi-week trial.

       Ybarra points next to State v. James,63 Wn.2d 71, 385 P.2d 558 (1963). In

James, the State moved to discharge one of the defendants so that he could testify for

the State. The trial court granted the motion and explained to the jury that "the

prosecuting attorney made a motion to discharged defendant Topper so that he may

                                          -11-
No. 76503-5-1/12


testify as a witness for the state, and the Court has granted that motion provided that he

testify fully as to all material matters within his knowledge." Id. at 74. The Supreme

Court concluded that the trial court's comment deprived James of a fair trial because

after Topper's testimony and subsequent discharge as a defendant, the "the jury could

draw only one conclusion: the court was satisfied that Topper had testified 'fully as to all

material matters within his knowledge." Id. at 76. But here, unlike James, neither

doctor was allowed to testify conditionally based on the veracity of testimony.

       Ybarra next analogizes to State v. Bogner, 62 Wn.2d 247, 382 P.2d 254 (1963).

In Bogner, defense counsel argued that there were two issues before the jury: whether

a robbery occurred, and then who did it. The following colloquy took place between the

trial court and defense counsel [Haley]:

      The Court: Are you denying that there was a robbery at the housing
      project at that time on that date? Mr. Haley: I don't know, your Honor. I
      think that is what we are here to determine. The Court: We are here to
      determine, as I understand it, who did it, if anyone. Mr. Haley: Of course,
      we have a two-fold purpose. We are trying to determine whether or not
      there was a robbery and the second point is, who committed the robbery.
      The Court: Don't you think we are getting a little ridiculous, or aren't we?

Bogner, 62 Wn.2d at 249. The Supreme Court concluded the trial court's comment

violated the defendant's constitutional right because:

      the remarks of the trial judge could only have had the effect of indicating to
      the jury that the judge believed that at this point in the trial it could not be
      denied that a robbery had taken place, and that this essential element of
      the prosecution's case had been so well established that to suggest
      otherwise was 'getting a little ridiculous.'

Bogner, 62 Wn.2d at 250.

       Again, unlike Bogner, the trial court here did not comment about whether the

State proved an essential element of its case. Instead, the court's comment related to

                                           -12-
No. 76503-5-1/13


managing the proceedings and informing the jury of scheduling in a trial spanning

multiple weeks.

       Finally, Ybarra relies on State v. Vaughn, 167 Wn.420, 423-24, 9 P.2d 355

(1932). In Vaughn, the court commented on the credibility of the prosecutor, who was

called as a witness to testify about a secret agreement between Vaughn's codefendant

and the prosecutor. The judge's comment had the effect of vouching for the veracity

and rectitude of the prosecutor. Vaughn, 167 Wn. at 424. Again, here, the trial court

did not make comments alluding to the veracity and rectitude of the testifying

physicians. Thus, Vaughn is not analogous.

       Ybarra has not provided a case where a trial court's comment about scheduling

or characterization that a witness is "important" demonstrates the court's attitude

towards the witness or the witness's testimony. The length of this trial informs the

context of these comments. For instance, Dr. Beaver and Dr. Muscatel testified in early

November, in a trial that began in early October and ended in early November, with over

40 witnesses testifying. In a long trial, the trial court must keep jurors informed of

scheduling and periodically remind jurors to remain open-minded throughout testimony.

At one point, the court explained that no other witnesses were scheduled because all

parties had anticipated that Dr. Beaver's testimony would take all day and the jurors

were being released early because of that scheduling decision. Finally, the court's

explanation to the jury that the doctors' reports would not be in evidence, and that

during deliberation, the jurors would rely on the doctors' testimony, does not show the

judge's personal opinion about the doctors' testimony. None of these comments



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No. 76503-5-1/14


suggest that the court believed the State had met its burden of proof or that the court

believed certain testimony to the detriment of other testimony.

       Even analyzing these comments together, the trial court's attitude about the

veracity of witnesses' testimony or a disputed issue of fact is not apparent. We

conclude that the trial court did not improperly comment on the evidence.

                                            III.

       Ybarra next contends that the trial court abused its discretion by denying his

request for jury instructions on second degree murder and attempted second degree

murder. We disagree.

      The standard of review for instructional errors depends on whether the court's

decision to deny the instruction was based on a factual determination or a legal

conclusion. State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357(2015). Decisions

based on a factual determination are reviewed for abuse of discretion, while legal

determinations are reviewed de novo. Condon, 182 Wn.2d at 315-16. We review the

trial court's decision to deny Ybarra's request for instructions on second degree murder

and attempted murder for abuse of discretion because the court denied Ybarra's

request based on a lack of evidence proving simple intent versus premeditation. A trial

court abuses its discretion when the "decision is manifestly unreasonable, or is

exercised on untenable grounds, or for untenable reasons." State v. Blackwell, 120

Wn.2d 822, 830, 845 P.2d 1017 (1993).

       In State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978), our Supreme

Court set out a two-pronged test to determine whether a party is entitled to an

instruction on a lesser included offense. Under the first, or legal prong, the court asks

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No. 76503-5-1/15


"whether the lesser included offense consists solely of elements that are necessary to

conviction of the greater, charged offense." Condon, 182 Wn.2d at 316. Under the

second, or factual prong, "the court asks whether the evidence presented in the case

supports an interference that only the lesser offense was committed, to the exclusion of

the greater, charged offense." Id. at 316. When the answer to both prongs is "yes," the

requesting party is entitled to the lesser included offense instruction. Id. at 316.

       In Condon, the Supreme Court concluded that second degree murder is a lesser

included offense to aggravated first degree murder under the Workman legal prong

"because it consists solely of elements that are necessary for conviction of that greater

offense." Condon, 182 Wn.2d at 319.1 Since second degree murder is a lesser

included offense of first degree murder, only the factual prong is at issue in this appeal.

       The factual prong "incorporates the rule that each side may have instructions

embodying its theory of the case if there is evidence to support that theory." State v

Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997). The standard is that "some evidence

must be presented which affirmatively establishes the defendant's theory on the lesser

included offense before an instruction will be given." Id. at 546 (citing State v. Fowler,

114 Wn.2d 59, 67, 785 P.2d 808 (1990)). "When evaluating whether the evidence

supports an inference that the lesser crime was committed, courts view the evidence in

the light most favorable to the party who requested the instruction." State v. Henderson,

182 Wn.2d 734, 344 P.3d 1207 (2015).

           Compare RCW 9A.32.050(a person commits second degree murder when, with intent to cause
the death of another person but without premeditation, he or she causes the death of such person or of a
third person), with RCW 9A.32.030(1)(a)(a person commits first degree murder, when with a
premeditated intent to cause the death of another person, he or she causes the death of such person or
of a third person), and RCW 10.95.020 (listing aggravating circumstances).

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No. 76503-5-1/16


        Ybarra requested jury instructions on the lesser included offense of murder and

attempted murder in the second degree. "A person is guilty of murder in the second

degree when:(a)[w]ith intent to cause the death of another person but without

premeditation, he or she causes the death of such person or of a third person." RCW

9A.32.050(1)(a). "A person is guilty of an attempt to commit a crime if, with intent to

commit a specific crime, he or she does any act which is a substantial step toward the

commission of that crime." RCW 9A.28.020.

       Second degree murder is first degree murder without premeditation. RCW

9A.32.030(1)(a).2 Premeditation is "the deliberate formation of and reflection upon the

intent to take a human life" and involves "the mental process of thinking beforehand,

deliberation, reflection, weighing or reasoning for a period of time, however short."

State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105 (1995). Premeditation "must

involve more than a moment in point of time." RCW 9A.32.020(1). The following

factors are relevant to establish premeditation: motive, procurement of a weapon,

stealth, and method of killing. State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995).

        Ybarra contends that the evidence supported his theory that he lacked

premeditation because his premediated plan was to enter the OMH classroom through

the back door and kill as many people as possible. Ybarra argues that the plan was not

carried out because the back door was locked and he instead entered through the main

entrance and shot at Lee, Fowler, Curturlio-Hackney, and Williams in the OMH lobby on

his way to the OMH classroom. He contends his decisions to shoot were



        2"A person is guilty of murder in the first degree when:(a) with a premeditated intent to cause the
death of another person, he or she causes the death of such person or a third person."
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No. 76503-5-1/17


spontaneous—based on the victims' reactions to seeing him with a gun on campus and

"failing to respect that he was armed with a gun." The State responds that "there was

no evidence that Ybarra intended, but did not premeditate the crimes."

       Intent to kill without premeditation can be shown with evidence that the defendant

killed in an impulsive or reactionary manner to the victim's resistance. In Condon, the

Court held that the trial court erred when it did not instruct the jury on second degree

murder in addition to premeditated first degree murder. Condon, 182 Wn.2d at 311.

The defendant, Joel Condon, and Jesus Lozano entered the home of Carmelo Ramirez

and Enedina Gregorio under the mistaken belief that it was the home of a drug dealer

whom they planned to rob. Condon, 182 Wn.2d at 311. During the robbery, Ramirez

put Lozano in a choke hold and when Lozano was losing consciousness from lack of

oxygen, Condon shot Ramirez. Condon, 182 Wn.2d at 312. Ramirez died before

reaching the hospital. Condon, 182 Wn.2d at 312.

      The trial court refused to instruct the jury on second degree murder because

Condon shot Ramirez twice and was reflective and cool enough "to be able to say at

some point that Lozano was lucky he didn't get shot and that ultimately he probably

should have shot him too." Condon, 182 Wn.2d at 320. This reasoning, however, was

not sound because the evidence showed Condon's later reflection on the shooting, not

his premeditated intent prior to the shooting. Condon, 182 Wn.2d at 320. The Supreme

Court held that, while there was evidence from which a rational juror could find that the

shooting was premeditated, there was also evidence supporting a lack of premeditation

through "an inference that the shooting was a sudden reaction, based in fear rather than



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'weighing or reasoning" and was impulsive and reactionary. Condon, 182 Wn.2d at

320.

       Condon is distinguishable from the facts here. Condon entered the home with

the intent to commit robbery, but murdered the victim when he fought back. Condon,

182 Wn.2d at 311-12. There was evidence of both first and second degree murder,

depending on whether the jury believed Condon had premeditated before pulling the

trigger, or whether the intent to murder was a direct and impulsive reaction to the victim

fighting back and made without premeditation.

       In contrast, Ybarra went to SPU with the premeditated intent to kill students.

There is ample evidence that Ybarra planned, over a period of several weeks, to kill

students at SPU. Ybarra scouted the SPU campus, planning where the shooting would

occur. Ybarra purchased three boxes of ammunition and brought two weapons and the

ammunition to campus for the purpose of killing students. Ybarra explained that if he

saw the students who had given him a tour of the SPU campus, Ybarra intended to

show them mercy. Ybarra went to campus that day with premeditated intent to kill

students.

       Ybarra tries to cabin his premeditated intent to kill students specifically in the

OMH classroom, and argues that there was evidence that Ybarra intended to kill, but

lacked premeditation for any shots fired outside OMH or in the lobby of OMH. Ybarra

indicated that he "wasn't trying to kill anyone outside, the plan was just to wound them."

This supports the manslaughter instructions, but not the second degree murder

instructions. There is no evidence to support Ybarra's theory that he intended to kill, but

without premeditation, thus the trial court did not abuse its discretion.

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No. 76503-5-1/19


       Furthermore, Ybarra's argument that his premeditated intent to kill was confined

to killing students in a classroom ignores the plain language of RCW 9A.32.030 which

states:

      (1) A person is guilty of murder in the first degree when:
      (a) With a premeditated intent to cause the death of another person, he or
         she causes the death of such person or of a third person.[31

Thus, even if Ybarra intended only to kill students in the OMH classroom, in carrying out

this premeditated intent, there is no dispute that he caused the death of a third person

on his way to the classroom. His actions still meet the definition of first degree murder.

      The evidence presented does not support an inference that Ybarra only intended

to commit the lesser offense of second degree murder to the exclusion of first degree

murder. Condon, 182 Wn.2d at 316. Because Ybarra does not meet the factual prong

of the Workman test, the trial court did not abuse its discretion in denying Ybarra's

request for a lesser included instruction of second degree murder.

                                            IV.

       Finally, Ybarra contends that his counsel was ineffective for failing to object to

the $86.04 restitution charge for Judd's medical expenses. We disagree.

      The Sixth Amendment affords a defendant the right to be represented by counsel

in all criminal prosecutions. U.S. CONST. amend. VI. A defendant's counsel is

ineffective where the attorney's performance was deficient and the deficiency prejudiced

the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. E.

2d 674 (1984). The defendant must show that both (1) his attorney's performance was


      3(Emphasis added.)




                                          -19-
No. 76503-5-1/20


deficient and not a matter of trial strategies or tactics, and (2) that he was prejudiced.

State v. Mannerinq, 150 Wn.2d 277, 285-86, 75 P.3d 961 (2003). "There is a

presumption of effective representation, and the defendant must show in the record the

absence of a legitimate strategic or tactical reason supporting the challenged conduct

by counsel." Mannerinq, 150 Wn.2d at 286.

       A defendant is prejudiced when there is a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome." Strickland, 466 U.S. at 694.

       Ybarra raised the issue of whether Judd was a victim in his motion to oppose

restitution. At the restitution hearing, the trial court noted that "[t]here was a specific

exception taken to restitution requests submitted by Hannah Judd. As far as other

specifics, I think it was about the scope of the funeral home." Counsel for defense

agreed with the court's characterization of the defense's motion and stated that prior

counsel, "did file a brief on some of the issues, and I'm just resting on the brief. No

further arguments."

       Argument moved to specifics and defense counsel indicated "I'm prepared to

concede causal connection to most of the costs or restitution requests that the State

has submitted in this matter, and I can narrow them down to three specific items that—

or actually it's two." Discussion moved on to costs related to Lee's funeral.

       The court sentenced Ybarra to a standard range sentence, totaling 1,343 months

in prison. The court ordered Ybarra to pay $10,504 to the Victims' Fund, $2,615.90 to

Lee's family for funeral expenses, and $86.04 for Judd's medical expense.

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No. 76503-5-1/21


       It is within a defense attorney's strategic choice to concede the causal

connection for an $86.04 restitution charge when the defendant was facing 111 years in

prison and had been ordered to pay a total of $13,119.90 in restitution. We conclude

that Ybarra's counsel was not ineffective for conceding the $86.04 restitution charge for

Judd's medical expenses.

      Affirmed.




                                                 4f4/i41q/ 4i,J"



WE CONCUR:




                                                                    ?


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