                                                                                            FILED
                                                                                   COURT OF APPEALS
    IN THE COURT OF APPEALS OF THE STATE OF                                               WaINGTON
                                                                                   Nib FEB —3     Aii
                                                   DIVISION II
                                                                                    STATE OF WASi-iiGTGN
STATE OF WASHINGTON,                                                               No. 44870 - - II
                                                                                    BY

                                        Respondent,


         v.



JOSE R. GERMAN,                                                            UNPUBLISHED OPINION


                                        Appellant.



       MELNICK, J. —           Jose German appeals from his jury trial convictions for assault in the

second degree with a firearm enhancement, vehicle prowling in the second degree, and unlawful

possession of a    firearm in the first degree.           German argues that evidence seized from his home


pursuant to a search warrant should have been excluded at trial because it was the fruit of an

unlawful entry by police, and the trial court erred by giving the jury an " abiding belief" instruction.
In his statement of additional grounds ( SAG), German further argues that the trial court abused its

discretion by not allowing him to refer to a shooting by police in California, that his trial counsel
was ineffective for a variety of reasons, that the trial court abused its discretion by failing to

admonish the prosecutor for his closing argument, and that his appellate counsel is ineffective for

failing to brief ineffective assistance of trial counsel. We reject all of German' s claims and affirm
the trial court.

                                                          FACTS


        In early spring 2012, a " string of break -ins" occurred in the parking lot of Charley' s Pub
in Fircrest. Report      of   Proceedings ( RP) ( Feb.      14, 2013) at 296. Charley' s hired Frank James and

Noah Frampton to         patrol   its lot.      One evening, James and Frampton noticed an unlocked car

containing    a purse.    Ten    or   fifteen   minutes   later, James   and   Frampton   saw a pair of men   leaning
44870 -0 -II




inside the      car.   When the     men saw        James   and    Frampton, they began to         walk       away.   James told


them not to come back.


          The two men turned around and shouted an obscenity. One of the two pulled out a pistol.

He    said "   I have something for        you,   big boys," cocked the gun, and aimed it in the security guards'

direction. RP ( Feb. 14, 2013)             at   303. James and Frampton retreated and called the police.


          Police officers were dispatched to Charley' s where James and Frampton described the

suspects as a white male and a Hispanic male, both wearing white T -shirts and blue jeans, who

had    gone southbound, and who were armed.                      A couple of blocks southeast of Charley' s, Officer

Christopher Roberts found German and his .eventual co- defendant, Manuel Urrieta, leaning into a

car   that had its hood up.         German       and   Urrieta   were   wearing    white   T -shirts   and   blue jeans. When


Officer Roberts called out to the two men, they ran into a nearby apartment and slammed the door.

          Officer Roberts believed that German and Urrieta had entered a home which did not belong

to them. Officer Roberts kicked down the door and ordered German and Urrieta to show him their

hands. When German and Urrieta did not comply, Officer Roberts shot them.

           The    police   called    for    an    ambulance.       After checking for other individuals inside the

apartment,       the   police   left the   premises and waited          for   a search warrant.   Subsequently, the police

searched the apartment pursuant to a warrant and discovered a gun, ammunition, and letters

addressed       to German.         Frampton later identified German as the gunman from a photographic

montage.




                                                                   2
44870 -0 -II



                                                PROCEDURAL HISTORY


          The State charged German with two counts of assault in the second degree with a firearm

enhancement, 1 one count of vehicle prowling in the second degree,2 and one count of unlawful
possession of a firearm in the first degree.3

          German        moved under        CrR 3. 6 to       suppress     the firearm         discovered in his   residence.   He


argued that Officer Roberts had entered his home unlawfully and everything that the police

discovered thereafter was the fruit of the poisonous tree.4 Because German agreed that there were

no    disputed facts, the trial        court   did   not    hold   an   evidentiary        hearing. The trial court heard legal

argument and then denied German' s motion. Based on the undisputed facts the parties presented,

                                                                                      5(
the trial   court entered       the    following     oral   findings     of   fact:        1) that the police were investigating

the   crime of assault with a          firearm; ( 2) that the      suspects were           reasonably believed to be   armed; (   3)


that the    police     had reasonably trustworthy information, based                         on eyewitness statements; (   4) that


there    was a             reason      to believe the       suspects were still on           the property; ( 5) that the suspects
                  strong


were     likely   to   escape   if   not apprehended; (        6) that the entry was not peaceable but was justified

under    the   circumstances; (        7) that the entry was at night; and ( 8) that the investigation was not part

of a planned operation or ongoing investigation.




 1
     RCW 9A.36. 021( 1)( c); RCW 9. 94A.533.

2
     RCW 9A.52..100( 1), (       2).


 3 RCW 9. 41. 040( 1)( a).

 4 The record on appeal does not contain German' s motion or the trial court' s order.

 5 The trial court asked the prosecutor to draft written findings of fact and conclusions of law, but
 these   do   not appear    in the     appellate record.
44870 -0 -II



           German    went     to trial.'   Over German' s objection, the trial court instructed the jury that

reasonable       doubt    required " an    abiding belief in the truth          of   the   charge."   Clerk' s Papers ( CP) at


107; 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4. 01, at

85 ( 3rd   ed.   2008).    The jury convicted German of all the charged offenses and the enhancement.

German appeals.


                                                         ANALYSIS


I.         MOTION TO SUPPRESS


           German argues that the firearm seized pursuant to the search warrant for his home should

have been        excluded as      the fruit   of an unlawful   entry       by   police.      The State argues that German


failed to preserve the issue because he failed to challenge the search warrant itself. Alternatively,

the State argues that Officer Roberts' s warrantless entry was permitted under the doctrine of

exigent circumstances.             As the State points out, German does not challenge the search warrant

itself. In fact, it has not been made a part of the appellate record. Therefore, we do not review the

warrant' s legality. To the extent German challenges his arrest, we hold that Officer Roberts both

lawfully entered German' s residence and arrested German. We affirm the trial court.

            Unchallenged findings of fact entered following a suppression hearing are verities on

appeal."     State   v.   Gaines, 154 Wn.2d 711, 716, 116 P. 3d 993 ( 2005).                     Neither party assigns error

                                                                    6"
to the   findings    of   fact,   so we   take them to   be true.         We review a trial court' s conclusions of law

in   an order    pertaining to     suppression of evidence      de       novo."      State v. Carneh, 153 Wn.2d 274, 281,


 103 P. 3d 743 ( 2004).




6 Although the record on appeal contains no written findings of fact, the trial court entered oral
findings of fact. We take the trial court' s oral findings as true because neither party disputes the
facts in this case.



                                                               4
44870 -0 -II



           The state and federal constitutions prohibit warrantless searches of homes unless they fall

within a well -delineated exception. State v. Leach, 113 Wn.2d 735, 738, 782 P. 2d 1035 ( 1989);

U. S. CONST.      amend.       IV ( "The right of the people to be secure in their persons, houses, papers, and


effects, against unreasonable searches and seizures, shall not           be   violated. ");   WASH. CONST. art. I,


  7 ( " No person shall be disturbed in his private affairs, or his home invaded, without authority of


law. ").      But when the police make a warrantless entry justified by exigent circumstances and

evidence is discovered only after a search warrant is issued, then the trial court does not err by

admitting the evidence. State v. Terrovona, 105 Wn.2d 632, 645, 716 P. 2d 295 ( 1986).

             We use six factors to determine whether a warrantless police entry into a home is justified:

               1) the gravity or violent nature of the offense with which the suspect is to be
             charged; (   2)   whether   the    is reasonably believed to be armed; ( 3) whether
                                               suspect

             there is reasonably trustworthy information that the suspect is guilty; ( 4) there is
                                                                             5) a likelihood that the
             strong reason to believe that the suspect is on the premises; (
             suspect will escape if not swiftly apprehended; and ( 6) the entry [ can be] made
             peaceably."


State   v.   Smith, 165 Wn.2d 511, 518, 199 P. 3d 386 ( 2009) ( quoting          State v. Cardenas, 146 Wn.2d

400, 406, 47 P. 3d 127, 57 P. 3d 1156 ( 2002)).              This totality of the circumstances test does not

require that each factor be satisfied. Circumstances may still be exigent and justify a warrantless

search even if they do not satisfy every one ofthe elements listed above. Smith, 165 Wn.2d at 518.

All warrantless entries of a home are presumptively unreasonable, and the State bears the heavy

burden" of proving that exigent circumstances necessitated the entry. State v. Hinshaw, 149 Wn.

App. ,747, 754, 205 P. 3d 178 ( 2009).

             Here, the unchallenged findings of fact support the trial court' s conclusion that Officer

Roberts lawfully entered German',s home without a warrant. Officer Roberts was investigating a
crime      of violence.         James    and   Frampton had been threatened      with   a   gun.   Officer Roberts


reasonably believed the suspect to be armed, because moments before he had been seen with a

                                                            5
44870 -0 -II



gun. Officer Roberts had reasonably trustworthy information to believe that German and Urrieta

were guilty, because they matched the description of the individuals who had threatened James

and Frampton. Furthermore, German and Urrieta were found a short distance south of Charley' s,

the direction that the suspects had fled. German and Urrieta were also engaged in the same conduct

that the suspects had been; they were prowling a car and retreated when challenged by a third

party. Officer Roberts knew that German and Urrieta were on the premises, because he saw them

run into the apartment. German and Urrieta were likely to escape if not swiftly apprehended; they

could have exited through the back of the apartment. It is also worth noting that Officer Roberts

believed German and Urrieta had entered someone else' s apartment, and posed a danger to

whomever might be inside.


        It is true that Officer Roberts' s entry was not peaceable, but " it is not necessary that every

factor be met to find exigent circumstances, only that the factors are sufficient to show that the

officers needed   to   act   quickly."   Cardenas, 146 Wn.2d at 408. Here, the unchallenged findings of

fact clearly indicate that Officer Roberts reasonably believed German and Urrieta were the

suspects in a crime of violence, that they posed a continuing danger, and that he needed to act

quickly in order to apprehend them. We hold that Officer Roberts' s entry was justified by exigent
circumstances, and the search warrant for German' s apartment was not the fruit of an unlawful

entry. Because German does not challenge the search warrant, the firearm discovered pursuant to
the warrant is admissible under Terrovona, and we affirm the trial court. See 105 Wn.2d at 645.




                                                        6
44870 -0 -I1



II.        ABIDING BELIEF INSTRUCTION


           German argues that the trial court erred by instructing the jury using the " abiding belief'

language because it        misstated      the jury'   s role as a search   for the truth.    We reject German' s claims


and affirm the trial court.



           Jury instructions, taken in their entirety, must inform the jury that the State bears the burden

of proving every essential element of a criminal offense beyond a reasonable doubt. State v. Pirtle,

127 Wn.2d 628, 656, 904 P. 2d 245 ( 1995).                    It is reversible error to instruct the jury in a manner

that would     relieve    the State     of   this burden.     Pirtle, 127 Wn.2d      at   656.   We review a challenged


                                                                            the instructions                   Pirtle, 127
jury   instruction de     novo,       evaluating it in the     context of                        as a whole.




Wn.2d at 656.


            The instruction      at   issue here has     never   been held to be improper.          To the contrary, our

Supreme Court has directed that trial courts use the instruction given in this case. State v. Bennett,

161 Wn.2d 303, 318, 165 P. 3d 1241 ( 2007).


            German argues that this instruction improperly suggests that the jury' s role is to determine

the truth,    rather   than to test the State'        s evidence.      See State v. Emery, 174 Wn.2d 741, 760, 278

P. 3d 653 ( 2012) ( "     The jury' s job is not to determine the truth of what happened; a jury therefore
does   not ` speak     the truth'     or ` declare   the truth. ") (   quoting State v. Anderson, 153 Wn. App. 417,

429, 220 P. 3d 1273 ( 2009)).            The instruction here does not tell the jury to find the truth; it tells the

jury to acquit the defendant unless the government convinces the jury of the truth of the charge.
The    purpose of       the "   abiding belief' language is not to recast the government' s burden, but to
                                                              have in             to convict the defendant.      Victor v.
underscore      the certainty that the          jury   must               order




Nebraska, 511 U. S. 1, 14 - 15, 114 S. Ct. 1239, 127 L. Ed. 2d 583 ( 1994); Hopt v. Utah, 120 U. S.




 7
     The   court used   the   standard    WPIC 4. 01 " Beyond a Reasonable Doubt" instruction.



                                                                 7
44870 -0 -II



430, 439, 7 S. Ct. 614, 30 L. Ed. 708 ( 1887) ( " The                word ` abiding' here has the signification of

 settled and       fixed,' -a   conviction which may follow a careful examination and comparison of the

whole evidence. ").         Although the " abiding belief" language may not add substantively to WPIC

4. 01,   neither   does it " diminish the definition       of reasonable     doubt." Pirtle, 127 Wn.2d at 658.


           The trial court properly instructed the jury.

III..      STATEMENT OF ADDITIONAL GROUNDS


           German alleges several additional errors in his SAG. We reject his claims and affirm the

trial court.


           A.         Pretrial Order Against Analogies


           German asserts that the trial court abused its discretion by barring him from referring to an

incident in which the police shot two innocent people in California. We disagree.

           Prior to trial, the State moved to exclude any " comparisons, analogies to any incident that

has     occurred other     than the one      in   question."    RP ( Feb. 13, 2013)   at   132.   Specifically, the State

sought to prevent German from referring to " these officers that apparently shot and killed two, as

it turns   out,    innocent     people   down in Southern California." RP ( Feb. 13, 2013)             at   132. The trial



court granted the motion, ruling that " I don' t see any analogy between what occurred in this recent

case down in California with the pick -up truck that was being shot and what occurred in this

particular case....         The focus should be on what occurred in this particular case, and I think that

this can be argued without making references to a highly- charged situation down in California,
                                                                                                        him." RP ( Feb.
which     nobody really knows            what occurred or      why the   officer shot, what provoked




 13, 2013) at 138 -39.




                                                                 8
44870 -0 -II




             We review a trial court' s ruling restricting the scope of argument for abuse of discretion.

State   v.   Hughes, 118 Wn.        App.    713, 726, 77 P. 3d 681 ( 2003).         A trial court abuses its discretion


only    when " no       reasonable    person    would     take the     view adopted     by    the trial   court."   State v.


Castellanos, 132 Wn.2d 94, 97, 935 P. 2d 1353 ( 1997).


             German complains that he was not allowed to rely on analogies while the prosecution was

allowed to analogize to fictional scenarios, such as police procedural shows on television. German

also makes unsubstantiated claims that the prosecutor analogized Officer Roberts' s shooting of

German        and   Urrieta to "   hunting."    SAG      at   3.   But a reasonable judge could have permitted the


prosecution' s analogies while barring German' s because German sought to make use of a real,

highly       charged, and      irrelevant   situation.   Officer Roberts was not involved in the shooting that

German         sought   to   reference.     Nor were the circumstances of the shooting known with any

                  Furthermore, the California shooting              was a   high -profile   media case.     For German to
certainty.


raise this case in his argument to the jury would have invited speculation and created a risk that

the jury would make a decision based not on the facts before them, but on what they believed
happened          elsewhere.    The trial court did not abuse its discretion by limiting German' s argument

to his actual facts. We reject German' s claim. •

             B.       Ineffective Assistance of Trial Counsel


             German asserts that his trial counsel was ineffective for failing to request severance or a

mistrial, failing to request a lesser included instruction, failing to challenge the search warrant, and

failing to object to the prosecutor' s closing argument. We reject his claims.




                                                                   9
44870 -0 -II



                         1.              Standard of Review


         Ineffective assistance of counsel is a mixed question of law and fact that is reviewed de

novo.    State      v.    Sutherby,            165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).              Ineffective assistance of


counsel may be analyzed for the first time on appeal if the defendant can show a manifest

constitutional error.                  State   v.   Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009); RAP 2. 5( a)( 3).


         To establish ineffective assistance of counsel, the defendant must prove both that the


attorney' s performance was deficient and that the deficiency prejudiced the defendant. Kyllo, 166

Wn.2d at 862 ( citing Strickland v. Washington, 466 U. S 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 ( 1984); State                v.   Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996)).                 An attorney' s

performance          is deficient if it falls " below an objective standard of reasonableness based on


consideration of all                   the   circumstances."     State v. McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d

1251 ( 1995).            Deficient performance prejudices a defendant if there is a " reasonable probability

that, but for counsel' s deficient performance, the outcome of the proceedings would have been

different." Kyllo, 166 Wn.2d at 862.


             There is         a                presumption     that   counsel' s   performance   was    reasonable.   Kyllo, 166
                                  strong


Wn. 2d       at   862.    Counsel' s performance is not deficient if it can be characterized as legitimate trial


strategy or tactics. Kyllo, 166 Wn.2d at 863.

                         2.              Severance /Mistrial


             German asserts that his counsel should have moved for severance or a mistrial owing to a

conflict      with his        co-      defendant, Urrieta. " Separate trials have never been favored in this state."


State   v.    Grisby, 97           Wn.2d 493, 506, 647 P. 2d 6 ( 1982) (            quoting State v. Herd, 14 Wn. App. 959,

963 n. 2, 546 P. 2d 1222 ( 1976)).                       The trial court has broad discretion to grant or deny a severance,

and the defendant bears the burden to come forward with sufficient facts to warrant the exercise




                                                                         10
44870 -0 -II




of discretion in his favor. Emery, 174 Wn.2d at 752. We do not disturb a trial court' s decision to

grant or deny a severance absent a manifest abuse of discretion. Emery, 174 Wn.2d at 752. Even

if German' s counsel had moved for severance, it is unlikely German would have received it.

            German argues that he and Urrieta should have been tried separately because Urrieta' s

theory      at   trial   was   that German      was      the   main perpetrator.      But   we "    set a high bar for granting

severance,"         and it is not enough that the co- defendants implicate each other. State v. Sublett, 176

Wn.2d 58, 69, 292 P. 3d 715 ( 2012).                      Rather, "[ t]he conflict must be so prejudicial that the two


defenses are irreconcilable, such that the jury will unjustifiably infer that the conflict alone

demonstrates that both defendants                 are    guilty." Sublett, 176 Wn.2d          at   69. In   contrast,   if "[t]he jury


could    have believed             either or neither     defendant," then         severance   is   not warranted.       Sublett, 176


Wn.2dat69.


            Here, the jury could have believed either or neither of German' s and Urrieta' s stories. In
fact, the                            Urrieta,   indicating that they          believed him    and not   German.         The jury did
             jury        acquitted




not infer that the conflict demonstrated both German' s and Urrieta' s guilt, and German was not

entitled to severance. German' s counsel was not ineffective for making a motion that would have

been denied.


            Nor     was     German     entitled   to a   mistrial. "       The trial court should grant a mistrial only when

the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant

will   be    fairly      tried."   Emery,   174 Wn. 2d         at   765.    As the above analysis shows, German was not


prejudiced by his joint trial with Urrieta. Any motion for a mistrial would have been futile, and
German' s counsel was not ineffective for failing to make the motion. We reject German' s claim.




                                                                       11
44870 -0 -II




                   3.          Lesser Included Instruction


            German asserts that his counsel should have moved for an instruction on the lesser included

offense of unlawful display of a weapon.8 The Washington Supreme Court has held that the " all

or nothing" approach is a legitimate trial tactic, and that it is not ineffective assistance to fail to
request a lesser included offense instruction. State v. Grier, 171 Wn.2d 17, 20, 44, 246 P. 3d 1260

 2011).


            Furthermore, any error by counsel was not prejudicial because German was not entitled to

this lesser included offense instruction. A trial court must give a lesser included offense instruction

when two elements are met: First, each element of the lesser offense must be an element of the

charged offense, and second, the evidence must support an inference that the lesser crime was

committed instead of the charged offense. State v. Karp, 69 Wn. App. 369, 375 -76, 848 P. 2d 1304

 1993).


            A charge of assault in the second degree requires the State to prove that German used a

                     to "`                      in   apprehension of    harm. ' State v. Byrd, 125 Wn.2d 707, 712,
deadly      weapon           put[ ]   another




887 P. 2d 396 ( 1995) ( quoting State                v.   Frazier, 81 Wn.2d 628, 631, 503 P. 2d 1073 ( 1972)).      In


contrast, unlawful display of a weapon only requires that a person " carry, exhibit, display, or draw

any firearm ...         or any other weapon apparently capable of producing bodily harm, in a manner,

under circumstances, and at a time and place that either manifests an intent to intimidate another

or   that   warrants alarm      for the safety       of other persons."   RCW 9. 41. 270( 1).


            The evidence does not show that German committed unlawful display of a weapon instead

of assault in the       second    degree.   German not only displayed the gun, but pointed it at James and

Frampton       and said      that the   gun was "         for" them. RP ( Feb. 14, 2013)   at   303.   German not only



8 RCW 9. 41. 270.


                                                                  12
44870 -0 -II




intimidated the two     men,   but   put   them in   apprehension of   harm. A motion for a lesser included


instruction would have been futile, and German' s trial counsel was not ineffective for failing to

request it.


                 4.        Search Warrant


         German asserts that his trial counsel should have challenged the search warrant for his

apartment.     Where a search warrant is issued, the defendant bears the burden of challenging the

warrant and establishing that the' search was unlawful. State v. Hopkins, 113 Wn. App. 954, 958,

55 P. 3d 691 ( 2002).


         German offers no reason why the warrant was invalid, other than Roberts' s warrantless

entry into the apartment. As described above, Roberts' s warrantless entry was justified by exigent
circumstances.     No evidence was discovered in the interim between Roberts' s warrantless entry

and   the issuance of the   search warrant.         For the reasons we have previously explained, we reject

his claim.


                  5.       Failure to Object


         German asserts that his trial counsel was ineffective for failing to object to the prosecutor' s

argument referencing the " abiding belief" instruction. We reject his claim.

         As discussed      above,    the "   abiding belief' instruction properly states the nature of the

government' s    burden.    WPIC 4. 01,       at   85.   The instruction does not minimize the government' s


burden, or recast the jury' s role as a search for the truth. Accordingly, the prosecutor' s argument

was proper and counsel' s objection would have been futile. German' s claim fails.

         C.       Prosecutorial Misconduct


         German asserts that the trial court abused its discretion by failing to admonish the

prosecutor' s   argument     referencing the " abiding belief" instruction.        As described above, the




                                                            13
44870 -0 -II




 abiding belief' instruction was not improper, and the prosecutor did not commit misconduct by

referencing that instruction. The trial court did not abuse its discretion, and German' s claim fails.

          D.           Ineffective Assistance of Appellate Counsel


          German asserts that his appellate counsel was ineffective for raising frivolous issues and

failing   to   raise   the issues German   raises   in his SAG.   To prevail on an ineffective assistance of


appellate counsel claim, the appellant must demonstrate merits of issues that counsel failed to

argue or argued         inadequately. In re Pers. Restraint ofLord, 123 Wn.2d 296, 314, 868 P. 2d 835

 1994),   cert.   denied, 513 U. S. 849 ( 1994).      As discussed above, all of German' s SAG issues are

without merit. Thus, we hold that German' s appellate counsel did not render ineffective assistance


by failing to raise those issues in the appellant' s brief.

          We affirm.


          A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06.040, it is

so ordered.




We concur:




                              14,,.   1.
                 gen, A.C. J.




                                                          14
