                                                           Filed
                                                     Washington State
                                                     Court of Appeals
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                      Division Two

                                         DIVISION II                                       April 10, 2018

    STATE OF WASHINGTON,                                             No. 49343-8-II

                                Respondent,                    UNPUBLISHED OPINION

         v.

    CARLOS E. PEREZ CALDERON,

                                Appellant.

        BJORGEN, C.J. — Carlos Perez Calderon appeals his conviction of second degree murder.

        Calderon argues that the superior court erred when it (1) allowed the State to file an

amended information arising from prosecutorial vindictiveness, (2) admitted his custodial

interrogation into evidence, (3) declined to instruct the jury on the lesser included offenses of

first and second degree manslaughter, and (4) declined to instruct the jury on self-defense.

        Finding no error, we affirm.

                                              FACTS

A.      Substantive Facts

        Calderon asked his ex-girlfriend, Amanda “Mindy”1 Hughes, to watch his house and dog

for an extended period of time because he had an upcoming military assignment at the Yakima

Training Center. Hughes and her two young daughters, MC, age nine, and GH, age five, began

staying with Calderon during the week before his departure for Yakima.

        MC testified that “Carlos and my mom were fighting . . . [b]ecause my mom wanted to

go to the food bank. And . . . Carlos wouldn’t take her, or something like that.” Verbatim



1
 The amended information identifies the decedent as Mindy Hughes. However, her mother,
Tonya Schrock, identifies her as Amanda Hughes. We use the name her mother provided.
No. 49343-8-II


Report of Proceedings (VRP) (June 28, 2016) at 287. MC testified her mom “grabbed some

metal thing and threw it at him.” VRP (June 28, 2016) at 288, 305. She testified Calderon “was

laying down on the couch . . . [and] saying mean things.” VRP (June 28, 2016) at 288. MC said

she initially witnessed them arguing, but Hughes told her to go to her room where she could only

hear “them fighting . . . saying cuss words to each other and stuff.” VRP (June 28, 2016) at 287-

89. MC testified she heard “something . . . go, boom” and remembered a gun was lying on the

living room table. VRP (June 28, 2016) at 290, 296. The prosecutor asked, “Did you see him

with a gun in his hand at any point in time?” MC responded, “I think so, but I don’t know.”

VRP (June 28, 2016) at 292. She added, “I don’t know if I really did. I thought so, but I don’t

know.” VRP (June 28, 2016) at 296. MC testified she did not see the gun go off, but heard it.

       Calderon’s friend, Ivan Montes, testified that they had been working on a car engine

earlier that day at Calderon’s house. Montes left to run some errands, and when he returned, he

saw Calderon on the phone with 911 and Hughes lying on the floor. Montes testified as follows:

                [Montes]:     Carlos told me that, “We got into a fight. She got mad at me
       and she flipped the table. My gun was on the table. It went off. She’s been shot.”
       That was after I got the dogs out. So immediately after that, I asked him where the
       hell is the gun. Those were my exact words to him. I looked around. He says he
       couldn’t find it. He didn’t know where it was.
                [Defense]:    Did you find the gun?
                [Montes]:     Yes, I’m the one who recovered the gun. I cleared the
       weapon and secured it next to a metal tin container next to the microwave.
                [Defense]:    Where did you find the gun?
                [Montes]:     It was not close – it wasn’t anywhere in line, or near Mindy.

VRP (June 28, 2016) at 241.

       When Officer Michael Wulff and other officers arrived on scene, they ordered everyone

out of the house and then heard a man yell, “I am doing CPR [cardiopulmonary resuscitations].

Get in here.” VRP (June 27, 2016) at 161-62. Wulff testified that when he entered the house, “I

observed a female laying on the floor in the corner of the living room. I observed she was

                                                2
No. 49343-8-II


bleeding. I observed a male doing chest compressions, CPR, and another male standing up next

to her.” VRP (June 27, 2016) at 162.

       Officer Joe Kolp testified:

       When I entered the house, it was sort of chaotic. I observed a female on the floor
       to my right. Her feet were facing me. There were two males performing medical
       aid on the female. There seemed to be a large amount of blood there. The
       gentleman on the right was on his knees conducting what I recall to be CPR
       compressions. The gentleman on the left was on his knees, and he appeared to be
       what I recall to be like holding a pressure type using his hand over what appeared
       to be a wound on the victim’s chest.

VRP (June 27, 2016) at 178-79. Kolp stated that Calderon was holding the wound, compressing

it, and had a lot of blood on him. He observed that Calderon appeared to be in a “panic state.”

VRP (June 27, 2016) at 188.

       Wulff testified that he “asked what happened, trying to figure out generally what had

occurred.” VRP (June 27, 2016) at 164. “[Calderon] said he and the female had been in an

argument about her wanting to go to the food bank. During the argument, she flipped the table

over. The gun had gone off and hit her in the chest.” VRP (June 27, 2016) at 164. Wulff

testified Calderon stated, “The gun was on the table and it went off and hit her in the chest.”

VRP (June 27, 2016) at 174-75.

       Officer Paul Osness testified that he walked into the house and “saw what appeared to be

a living room table on its top.” VRP (June 27, 2016) at 193. Osness testified that one of the

officers stated the gun was secured and directed him to the gun, which was unloaded and sitting

in a bowl, in the kitchen, 10 to 15 feet away from the victim.

       Kolp testified that while he was walking Calderon to his patrol car and after advising him

of his Miranda rights, Calderon said, “We were arguing. She flipped the table. The gun went

off.” VRP (June 27, 2016) at 180. Kolp also testified Calderon stated that “he was laying [sic]



                                                 3
No. 49343-8-II


on the couch, she began to scream at him for not going to the food bank.” VRP (June 27, 2016)

at 181.

          Detective Reynaldo Punzalan testified that he interrogated Calderon at the Lakewood

Police Station after the shooting occurred. Calderon told Punzalan that “they had an argument

about food in the house.” VRP (June 28, 2016) at 357. Calderon said that “she had swatted him

with an ACU [Army combat uniform] digital camouflage shirt top” and threw a glass chalice at

him, which hit him and broke. VRP (June 28, 2016) at 357-58. He said Hughes then flipped the

living room table towards him and that the gun was lying on the table. VRP (June 28, 2016) at

359. Calderon told Punzalan, “I’m a gun guy,” when asked about his familiarity with firearms.

VRP (June 28, 2016) at 359.

          Punzalan testified on cross examination as follows:

                   [Defense]:     Yesterday you testified he was – well, you said it was unclear
          as to what happened; is that correct?
                   [Punzalan]: With regard to the point of how the weapon discharged, I
          don’t think that was ever explained by Mr. Perez Calderon.
                   [Defense]:     He said he didn’t know; is that right?
                   [Punzalan]: [He] never explained it.
                   [Defense]:     He said he didn’t know how it went off?
                   [Punzalan]: Yes, sir.
                   [Defense]:     He was consistent through that. You asked him several
          times?
                   [Punzalan]: Right. That is correct.
                   [Defense]:     So he was never, ever able – other than hearing the gun go
          off, to give you – he said he just didn’t know, right?
                   [Punzalan]: That is correct.
                   [Defense]:     He said the gun was not in his hand, right?
                   [Punzalan]: Yes.
                   [Defense]:     He said it happened when he was turning away after she was
          either swinging something at him or throwing something at him?
                   [Punzalan]: Right, flipping the table.
                   [Defense]:     Flipping the table. Were you aware the table was found on
          its top?
                   [Punzalan]: Yes.

VRP (June 29, 2016) at 378-79. Calderon’s attorney continued with this line of questioning:

                                                    4
No. 49343-8-II



                 [Defense]:     You keep asking him questions and ask him possibilities that
       may have happened?
                 [Punzalan]: Certainly.
                 [Defense]:     Part of your possibility, is it could have inadvertently gone
       off if it was in [Calderon’s] hand when she flipped the table. That was one scenario
       you gave?
                 [Punzalan]: Right.
                 [Defense]:     When he was turning or something?
                 [Punzalan]: Grabbed it inadvertently as the table flipped, as the table was
       coming toward him. A lot of possibilities.
                 [Defense]:     A lot of possibilities in this case. He was consistent he didn’t
       know how it happened?
                 [Punzalan]: Yes.
                 [Defense]:     The only thing we know for sure is it went off and she died
       as a result?
                 [Punzalan]: Correct.

VRP (June 29, 2016) at 388-89.

B.     Procedural Facts

       1. Amendment to the Information

       The State initially charged Calderon by information with the crime of second degree

murder: the information incorporated a firearm enhancement and characterized the offense as

domestic violence, but did not allege any aggravating factors. The State subsequently filed an

amended information, adding the alternative charge of felony murder with second degree assault

as the predicate crime. Under both alternatives—second degree murder and felony murder—the

amended information added domestic violence aggravating factors because the offense occurred

in the presence of a child.

       Calderon objected and raised the issue of prosecutorial vindictiveness; he claimed the

State retaliated because he did not accept its plea deal. Calderon also claimed any amendment

would prejudice him because the State brought the motion the day trial proceedings commenced

and it increased the potential punishment Calderon faced. The State claimed no prejudice



                                                  5
No. 49343-8-II


existed, the plea offer remained open, and that it had provided defense counsel with notice.

Defense counsel acknowledged that the State provided him with notice of its intent to amend the

information approximately three weeks prior to trial. Calderon did not request a continuance.

The superior court granted the amendment to the information.

         2. CrR 3.5 Ruling

         At a CrR 3.5 hearing, Calderon sought to exclude the entire custodial interrogation that

Punzalan and Detective Christopher Bowl had conducted. In its findings of facts and

conclusions of law regarding Calderon’s CrR 3.5 motion, the court concluded that Punzalan and

Bowl had properly notified Calderon of his Miranda2 rights and that Calderon had made a

knowing and voluntary waiver.

         The superior court found, among other matters, that (1) Kolp walked Calderon to the

police car and advised Calderon of his Miranda rights; (2) Kolp did not question Calderon, but

Calderon made statements to Kolp; (3) Calderon was detained and transported to the police

station; (4) Punzalan met with Calderon at the police station; (5) Calderon was not free to leave

the room without police escort; (6) Punzalan briefly informed him that the interview would be

recorded; (7) Punzalan confirmed the preliminary notice of recording the interview with

Calderon and pointed out a sign hanging on the wall in the interview room that informed persons

that interviews in that room were being recorded; (8) Punzalan had Calderon read the advisement

on the wall aloud; (9) all of the contact between the officers and Calderon in the interview room

were recorded; (10) Punzalan advised Calderon of his Miranda rights by reading aloud from a

form while Calderon read the rights from a separate form; (11) Calderon signed the Miranda

waiver form; (12) Calderon spoke with the police and answered their questions; (13) during the


2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                  6
No. 49343-8-II


interview, Punzalan usually spoke with a normal tone, but he was sometimes loud and

confrontational; (14) Calderon was notified twice that the interview would be recorded; (15)

Punzalan was with Calderon off and on between 5:46 p.m. and 8:19 p.m.; and (16) two minor

children were present when the shooting occurred.

       More specifically related to the custodial interrogation issue, the court ruled:

       4. The interviewers, including Detective Punzalan, were allowed to challenge the
       defendant’s statements and to use a variety of tactics or techniques when trying to
       elicit information from the defendant with regard to the facts and circumstances
       leading up to, and during the fatal domestic violence incident.

       5. The detectives’ methods did not overcome the defendant’s will. Throughout the
       investigation into Ms. Hughes’ death, even beginning with the 911 call, the
       defendant consistently asserted that the gun “went off”; whether by accident or
       through some mechanical malfunction. The defendant never admitted or conceded
       criminal behavior involving Ms. Hughes’ death.

Clerk’s Papers (CP) at 189-89. The superior court ultimately admitted Calderon’s custodial

statements into evidence.

       3. Jury Instructions

       The case went to jury trial. Before deliberations, Calderon took exception to the superior

court’s denial of his offered instructions 6, 11, 12, 13, 14, and 16 and to the court’s designated

supplemental instructions 1, 2, and 3. The first group of exceptions pertained to Calderon’s

request for instructions on the lesser included offenses of first and second degree manslaughter.3




3
 Instruction 6 is the instruction on the lesser included offenses of first and second degree
manslaughter using Washington Pattern Jury Instructions—Criminal (WPIC) 4.11. Instruction
11 provides the definition of “first degree manslaughter” using WPIC 28.01. Instruction 12
provides the definition of “recklessness” using WPIC 10.03. Instruction 13 outlines the elements
of first degree manslaughter using WPIC 28.02. Instruction 14 provides the definition of
“second degree manslaughter” using WPIC 28.05. Instruction 15 provides the definition of
“criminal negligence” using WPIC 10.04. Instruction 16 outlines the elements of second degree
manslaughter using WPIC 28.06.


                                                  7
No. 49343-8-II


The second group of exceptions pertained to Calderon’s claim of self-defense.4 The superior

court declined to provide the proposed instructions Calderon requested related to the lesser

included offenses and self-defense, but gave an instruction on excusable homicide.

       4. Verdict

       The jury found Calderon guilty of second degree murder without specifying which

alternative charges it relied on. The jury unanimously agreed that Calderon was armed with a

firearm at the time of the commission of the crime. The jury also found Calderon committed an

aggravated domestic violence offense.

       Calderon appeals.

                                           ANALYSIS

                               I. PROSECUTORIAL VINDICTIVENESS

       Calderon argues that after he declined to accept the State’s plea deal, the prosecution

acted vindictively when it filed a motion to amend the information. Consequently, Calderon

claims the superior court erred when it allowed the State to file its amended information. We

disagree.

A.     Standard of Review

       We review a superior court’s ruling on a proposed amendment to an information for an

abuse of discretion. State v. Lamb, 175 Wn.2d 121, 130, 285 P.3d 27 (2012). A superior court

abuses its discretion when its decision is manifestly unreasonable or exercised on untenable

grounds or for untenable reasons. State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007).




4
 Supplemental jury instruction 1 is the WPIC 17.02 Lawful Force—Defense of Self, Others,
Property instruction. Supplemental jury instruction 2 is the WPIC 17.04 Lawful Force—Actual
Danger Not Necessary instruction. Supplemental jury instruction 3 is the WPIC 17.05 Lawful
Force—No Duty to Retreat instruction.
                                                8
No. 49343-8-II


Such is the case when the superior court relies on unsupported facts, takes a view that no

reasonable person would take, applies an incorrect legal standard, or bases its ruling on an

erroneous legal view. Id. at 284.

B.     The Prosecutor Did Not Act Vindictively

       Constitutional due process principles prohibit prosecutorial vindictiveness. State v.

Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006). “‘[A] prosecutorial action is ‘vindictive’ only

if [it is] designed to penalize a defendant for invoking legally protected rights.’” Korum, 157

Wn.2d at 627 (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)). A

defendant in a pretrial setting bears the burden of proving either “‘(1) actual vindictiveness, or

(2) a realistic likelihood of vindictiveness which will give rise to a presumption of

vindictiveness.’” State v. Bonisisio, 92 Wn. App. 783, 791, 964 P.2d 1222 (1998) (quoting

United States v. Wall, 37 F.3d 1443, 1447 (10th Cir.1994)). The defendant must show actual

vindictiveness through objective evidence that a prosecutor acted in order to punish him for

standing on his legal rights. Meyer, 810 F.2d at 1245. A presumption of vindictiveness arises

when a defendant can prove that “‘all of the circumstances, when taken together, support a

realistic likelihood of vindictiveness.’” Korum, 157 Wn.2d at 627 (quoting Meyer, 810 F.2d at

1246). The mere filing of additional charges after a defendant refuses a guilty plea cannot,

without more, support a finding of vindictiveness. Id. at 629, 631.

       Calderon fails to show either actual vindictiveness or the basis for a presumption of

vindictiveness. The State’s pretrial filing of the amended information does not support

Calderon’s claim of vindictiveness. The prosecutor has discretion to determine the number and

severity of charges to bring against a defendant. Korum, 157 Wn.2d at 627; see also State v.

Rice, 174 Wn.2d 884, 901, 279 P.3d 849 (2012); State v. Lewis, 115 Wn.2d 294, 299, 797 P.2d



                                                  9
No. 49343-8-II


1141 (1990). Calderon does not assert that the prosecutor lacked probable cause for (1) the

added alternative charge of felony murder with second degree assault as the predicate or (2) the

domestic violence aggravating factors because the offense occurred in the presence of a child.

See, e.g., Korum, 157 Wn.2d at 632-33. Prosecutorial vindictiveness “will not be found where

the only showing of vindictiveness is the pretrial addition of new charges supported by probable

cause.” Id. at 670-71.

       Although Calderon objected during pretrial motions claiming vindictiveness and

retaliation, he has not pointed to any evidence on the record to support his argument that the

State added the alternative charge and aggravating factors because he declined the State’s plea

deal. Further, Calderon’s counsel acknowledged that the State provided him with notice of its

intent to amend the information approximately three weeks prior to trial. Calderon failed to

show how the prosecutor acted vindictively: he failed to show how the prosecutor penalized him

for exercising constitutional or statutory rights, and he failed to show how the circumstances

support a realistic likelihood of vindictiveness. Therefore, Calderon did not meet his burden of

proving prosecutorial vindictiveness.

       The prosecutor did not act vindictively, and the superior court did not abuse its discretion

when it allowed the State to file an amended information.

                                        II. CRR 3.5 RULING
       Calderon contends that the superior court erred when it admitted his recorded custodial

interrogation into evidence because (1) Punzalan did not ask him if English was his native

language, (2) Punzalan stated his failure to provide a statement would result in a forensic

interview of Hughes’ children, (3) the interrogation lasted for hours, and (4) Punzalan repeatedly

used profanities. Calderon claims the totality of the circumstances show that the police coerced

his confession. We disagree.

                                                10
No. 49343-8-II


A.     Standard of Review

       We review a superior court’s ruling on a motion to suppress evidence to determine

whether substantial evidence supports its findings of fact and whether the findings of fact support

its conclusions of law. State v. Russell, 180 Wn.2d 860, 866-67, 330 P.3d 151 (2014).

Unchallenged findings of fact are verities on appeal. State v. Homan, 181 Wn.2d 102, 106, 330

P.3d 182 (2014).

B.     Calderon Provided a Knowing, Intelligent, and Voluntary Waiver

       The Fifth Amendment and the Washington Constitution guarantee the right against self-

incrimination. U.S. CONSTITUTION amends. V, XIV; WASH. CONSTITUTION art. I, § 9. Before a

defendant’s custodial statements can be used against him, the State must demonstrate that the

defendant knowingly, voluntarily, and intelligently waived his Miranda rights. State v.

Radcliffe, 164 Wn.2d 900, 905-06, 194 P.3d 250 (2008).

       The State bears the burden of proving that a suspect knowingly, voluntarily, and

intelligently waived his Miranda rights. State v. Mayer, 184 Wn.2d 548, 556, 362 P.3d 745

(2015). “Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an

uncoerced choice and the requisite level of comprehension may a court properly conclude that

the Miranda rights have been waived.” Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,

89 L. Ed. 2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 61 L.

Ed. 2d 197 (1979)). Circumstances that are potentially relevant in the totality of the

circumstances analysis include whether there was police coercion;

       the length of the interrogation; its location; its continuity; the defendant’s maturity,
       education, physical condition, and mental health; and whether the police advised
       the defendant of the rights to remain silent and to have counsel present during
       custodial interrogation.

State v. Unga, 165 Wn.2d 95, 101, 196 P.3d 645 (2008).

                                                 11
No. 49343-8-II


       Calderon did not challenge the superior court’s written findings of fact, so they are

verities on appeal. Homan, 181 Wn.2d at 106. The superior court found the following, among

other matters: Kolp walked Calderon to the police car and advised Calderon of his Miranda

rights; Kolp did not question Calderon, but Calderon made statements to Kolp; Calderon was

detained and transported to the police station; Punzalan met with Calderon at the police station;

Calderon was not free to leave the room without police escort; Punzalan briefly informed him

that the interview would be recorded; Punzalan confirmed the preliminary notice of recording the

interview with Calderon and pointed out a sign hanging on the wall in the interview room that

informed persons that interviews in that room were being recorded; Punzalan had Calderon read

the advisement on the wall aloud; all of the exchanges between the officers and Calderon in the

interview room were recorded; Punzalan advised Calderon of his Miranda rights by reading

aloud from a form while Calderon read the rights from a separate form; Calderon signed the

Miranda waiver form; Calderon spoke with the police and answered their questions.

       Based on the superior court’s unchallenged findings, the police adequately advised

Calderon of his Miranda rights and Calderon understood those rights when he signed the

Miranda waiver. The superior court’s findings of fact directly support its conclusion that

Calderon knowingly, voluntarily, and intelligently waived his Miranda rights.

C.     The Police Did Not Overbear Calderon’s Will

       Apart from the validity of a Miranda waiver, any use of the defendant’s involuntary

statement against him in a criminal trial denies him due process of law, regardless of the other

evidence against him. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290

(1978). The inquiry into voluntariness is necessarily fact-specific. Gallegos v. Colorado, 370

U.S. 49, 52, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962). In that inquiry, we consider whether, under



                                                12
No. 49343-8-II


the totality of the circumstances, including the suspect’s powers of resistance and the pressure

brought to bear by the interrogators, the ‘“defendant’s will was overborne.’” Dickerson v.

United States, 530 U.S. 428, 434, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)).

       First, although the police did not ask Calderon if English was his native language,

Calderon spoke English with the police and answered their questions. In fact, Punzalan had the

defendant read the Miranda advisement aloud. Calderon does not cite any authority to support

the proposition that a custodial interrogation must be conducted in the defendant’s native or

favored language where the defendant has the ability to converse in, and comprehend, English.

       Second, although Punzalan did advise Calderon he did not “want to have to put [Hughes’

children] through a forensic interview,” but would “if [he] had to,” the fact remains that the

police did conduct a forensic interview of the children as a part of its investigation. VRP (June

22, 2016) at 62. Punzalan testified that advising Calderon that they might interview the children

was a “[m]atter of fact” because it is routine “[i]nvestigative procedure.” VRP (June 22, 2016) at

62.

       Third, Punzalan interrogated Calderon off and on between 5:46 p.m. and 8:19 p.m.

However, in this context, a custodial interrogation lasting approximately two and half hours or

more is not unusual. See, e.g., Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed.

2d 1098 (2010) (a custodial interrogation concerning an alleged shooting was not coercive where

the defendant remained silent during first two hours and forty-five minutes of a three hour

interrogation).

       Finally, even though Detective Punzalan employed “loud and confrontational” tactics at

times, for the most part he spoke in a normal tone, and the superior court observed that “[t]he



                                                13
No. 49343-8-II


interviewers, including Detective Punzalan, were allowed to challenge the defendant’s

statements and to use a variety of tactics or techniques when trying to elicit information from the

defendant with regard to the facts and circumstances leading up to, and during the fatal domestic

violence incident.” CP at 187-89. Calderon does not offer argument or authority that any of the

tactics or techniques used coerced him or overcame his will. As a final point, the superior court

found “[t]he detectives’ methods did not overcome the defendant’s will.” CP at 189.

       With the superior court’s findings of fact treated as verities on appeal, the totality of the

circumstances do not suggest the police coerced Calderon. Accordingly, we hold the superior

court properly admitted Calderon’s custodial statements into evidence.

                      III. JURY INSTRUCTIONS: LESSER INCLUDED OFFENSES

       Calderon assigns error to the superior court’s refusal to give the jury instructions on first

and second degree manslaughter. We disagree.

A.     Standard of Review

       We review the adequacy of jury instructions based on an error of law de novo. State v.

Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002). However, where the superior court

refuses to give an instruction based on the facts of the case, we review a superior court’s refusal

to give a requested jury instruction for abuse of discretion. State v. Henderson, 180 Wn. App.

138, 145, 321 P.3d 298 (2014); State v. Hunter, 152 Wn. App. 30, 43, 216 P.3d 421 (2009); State

v. Hernandez, 99 Wn. App. 312, 318, 997 P.2d 923 (1999). A superior court abuses its

discretion when its decision is manifestly unreasonable or based upon untenable grounds or

untenable reasons. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). A superior court’s

decision is based on untenable grounds or untenable reasons if it is based on an incorrect legal

standard. State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013).



                                                 14
No. 49343-8-II


B.       Legal Principles

         A defendant is entitled to an instruction on a lesser included offense if two conditions are

met. State v. Berlin, 133 Wn.2d 541, 545, 947 P.2d 700 (1997); State v. Workman, 90 Wn.2d

443, 447-48, 584 P.2d 382 (1978). First, under the legal prong, each of the elements of the lesser

offense must be a necessary element of the greater charged offense. Berlin, 133 Wn.2d at 545-

46; Workman, 90 Wn.2d at 447-48. Second, under the factual prong, the evidence “must raise an

inference that only the lesser included . . . offense was committed to the exclusion of the charged

offense.” State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).

         When determining if the evidence at trial was sufficient to support the giving of an

instruction, we view the supporting evidence in the light most favorable to the party that

requested the instruction. Id. at 455-56. Nevertheless, the evidence must affirmatively establish

the defendant’s theory of the case; it is not enough that the jury might disbelieve the evidence

pointing to guilt. Id. at 456. In addition, the superior court “must consider all of the evidence

that is presented at trial when it is deciding whether or not an instruction should be given.” Id. at

456.

         To commit second degree murder a defendant must act with intent to cause the death of

another person without premeditation. RCW 9A.32.050. A person is guilty of first degree

manslaughter when he or she recklessly causes the death of another person. RCW 9A.32.060. A

person

         is reckless or acts recklessly when he or she knows of and disregards a substantial
         risk that a wrongful act may occur and his or her disregard of such substantial risk
         is a gross deviation from conduct that a reasonable person would exercise in the
         same situation.

RCW 9A.08.010(1)(c). A person is guilty of second degree manslaughter when he or she causes

the death of another with criminal negligence. RCW 9A.32.070. A person

                                                  15
No. 49343-8-II


       is criminally negligent or acts with criminal negligence when he or she fails to be
       aware of a substantial risk that a wrongful act may occur and his or her failure to
       be aware of such substantial risk constitutes a gross deviation from the standard of
       care that a reasonable person would exercise in the same situation.

RCW 9A.08.010(1)(d).

C.     The Evidence Does Not Support Jury Instructions on Lesser Included Offenses

       In Berlin, 133 Wn.2d at 550-51, our Supreme Court held that first and second degree

manslaughter are lesser included offenses of second degree murder.5 Therefore, because the

legal prong of the Workman test is satisfied, the only question before us is whether the factual

prong for first or second degree manslaughter is satisfied.

       The superior court relied on Hernandez, 99 Wn. App. 312, in declining to give

Calderon’s proposed lesser included instructions. In Hernandez, the defendant called 911 and

stated that his girlfriend had been shot in the chest. He first insisted that he was not present at

the time of the shooting, but then stated that “the shooting had been an accident.” 99 Wn. App.

at 315. In a recorded statement, Hernandez explained that he heard his girlfriend shoot the gun

in the dining room and he “immediately got up. [He] went towards her to grab the gun and she

went into the kitchen. [He] grabbed the gun. She fell down. She hit the floor.” Id. at 316, 319.

Hernandez then stated, “I could have grabbed [the gun] though . . . I don’t know.” Id. at 316,

320.

       The court stated that Hernandez “did not specifically describe any physical acts that

explain how [Hughes] was shot. He did not establish that he touched the gun before the bullet

that killed [her] was fired.” Id. at 320. Because the lesser included offenses of first and second




5
 Cf. State v. Gamble, 154 Wn.2d 457, 460, 114 P.3d 646 (2005) (holding that “manslaughter is
not a lesser included offense of second degree felony murder where second degree assault, RCW
9A.36.021(1)(a), is the predicate felony”).
                                                  16
No. 49343-8-II


degree manslaughter “require a finding that the accused actually caused the death of another,”

the court found that Hernandez had not established “affirmative evidence that he committed first

or second degree manslaughter and not second degree murder.” Id.

       In this case, Calderon claimed he did not know how the gun fired and struck Hughes; he

similarly suggested it was an accident. In this respect, we cannot distinguish this case from

Hernandez because Calderon cannot affirmatively establish the elements of first and second

degree manslaughter.

       Calderon points us to State v. Hunter, 152 Wn. App. 30, 216 P.3d 421 (2009), as

analogous to the facts of his case. In Hunter, the defendant called 911 stating that he was

suicidal. Id. at 33. When the police responded to the scene, an officer called into the apartment

and Hunter answered, “I’ve got a gun in my mouth. I’m in the bathroom, and I have a gun in my

mouth.” Id. at 33-34. Hunter stated, “I killed my girlfriend,” and “[i]t was an accident.” Id. at

34. At trial, Hunter testified that he “really d[id]n’t know” what happened. Id. at 37 (alteration

in original). However, he admitted on cross examination that he shot his girlfriend in the face.

Id. at 38. Hunter also stated, “I really don’t even remember pulling the trigger, if the trigger was

pulled.” Id. at 39.

       In Hunter we distinguished Hernandez because Hunter was able to establish the elements

of first and second degree manslaughter—Hunter admitted to shooting his girlfriend, but

Hernandez did not describe any physical acts that explained the shooting. Id. at 47. We

reasoned that “Hunter’s testimony that the shooting was an accident raised the inference that

Hunter was guilty only of manslaughter and not murder,” but the inference giving rise to the

“accident” manslaughter jury instruction clearly derived from Hunter’s testimony that he

unintentionally shot the victim in the face. Id.



                                                   17
No. 49343-8-II


       Here, Calderon did not make any statements that he “accidently” shot Hughes. He did

not describe any physical acts that explained the shooting besides his theory that it misfired when

Hughes flipped the living room table over. His case is more analogous to Hernandez.

       The evidence viewed in the light most favorable to Calderon does not raise an inference

that he committed only first or second degree manslaughter to the exclusion of second degree

murder. Calderon argues that part of Punzalan’s testimony provides affirmative evidence that he

committed only first or second degree manslaughter. During his custodial interrogation,

Punzalan asked Calderon questions about how Hughes was shot and whether Calderon may have

shot her inadvertently. One possibility Punzalan presented involved whether Calderon

“[g]rabbed it [the gun] inadvertently as the table flipped, as the table was coming toward him.”

VRP (June 29, 2016) at 388-89. However, Calderon did not adopt Punzalan’s suggestion and

instead consistently stated he did not know how the gun fired. Calderon maintained he did not

handle the gun. Although on appeal Calderon claims that he “acknowledged” this possibility,

trial testimony from multiple officers suggests the opposite—Calderon consistently denied any

knowledge regarding how the gun discharged. Br. of Appellant at 12; Reply Br. of Appellant at

3. Punzalan’s testimony does not “describe any physical acts” or affirmatively “establish that he

touched the gun” before it discharged. Hernandez, 99 Wn. App. at 320. The lesser included

offenses of first and second degree manslaughter require affirmative evidence that Calderon

recklessly or negligently caused Hughes death. On the record, he has not made such a showing.

       Accordingly, we hold the superior court did not abuse its discretion when it declined to

instruct the jury on the lesser included offenses. The evidence viewed in the light most favorable

to Calderon does not raise an inference that he committed only first or second degree

manslaughter to the exclusion of second degree murder.



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No. 49343-8-II


                             IV. JURY INSTRUCTIONS: SELF-DEFENSE

       Calderon claims that the superior court erred when it refused to instruct the jury on the

law of self-defense. We disagree.

A.     Standard of Review

       Our standard of review depends on the reason the superior court refused to grant

Calderon’s requested self-defense jury instruction. State v. Walker, 136 Wn.2d 767, 771, 966

P.2d 883 (1998). If the superior court declined the self-defense jury instruction based on a

factual dispute, we review its decision for abuse of discretion. Id. at 771-72. If the superior

court declined the self-defense jury instruction based on a ruling of law, we review its decision

de novo. Id. at 772.

       Here, the superior court stated, “I don’t think it is appropriate to give self-defense

instructions in a case of this nature. In particular, when it is a defense – self-defense dealing with

the Assault 2 in a Felony Murder situation.” VRP (July 6, 2016) at 599. Ostensibly, the superior

court determined such an instruction would be legally improper where the State alternatively

charged Calderon with felony murder with second degree assault as the predicate. Accordingly,

we review Calderon’s claim de novo.

B.     Legal Principles

       A defendant is entitled to a self-defense jury instruction when there is “some evidence

admitted in the case from whatever source which tends to prove [that an act was committed] in

self-defense.” State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983). In determining

whether some evidence supported instructing the jury on self-defense, we review the entire

record in a light most favorable to the defendant. State v. Callahan, 87 Wn. App. 925, 933, 943

P.2d 676 (1997). “Because the defendant is entitled to the benefit of all the evidence,” a superior



                                                 19
No. 49343-8-II


court may be required to instruct the jury on self-defense instruction even where the defendant’s

own testimony is inconsistent with a self-defense claim. Id. at 933. “The law [of self-defense]

does not require an explicit statement of intent.” State v. Hendrickson, 81 Wn. App. 397, 401,

914 P.2d 1194 (1996). Further, “[t]he defenses of accident and self-defense are not mutually

exclusive as long as there is evidence of both.” State v. Werner, 170 Wn.2d 333, 337, 241 P.3d

410 (2010).

       There are three elements to a claim of self-defense: (1) the defendant subjectively feared

that he was in imminent danger of death or great bodily harm, (2) the defendant’s belief was

objectively reasonable, and (3) the defendant exercised no more force than reasonably necessary.

Werner, 170 Wn.2d at 337. If the evidence fails to support any one of these elements, the

defendant is not entitled to present a self-defense theory to the jury. Walker, 136 Wn.2d at 773.

C.     The Evidence Does Not Support Jury Instructions on Self-Defense

       The superior court was required to consider all the evidence at trial in a light most

favorable to Calderon when determining whether he was entitled to a self-defense instruction.

Callahan, 87 Wn. App. at 933. If some evidence supported Calderon’s self-defense theory, the

superior court was required to instruct the jury on self-defense even where Calderon’s own

statements contradicted the theory. Werner, 170 Wn.2d at 337; Callahan, 87 Wn. App. at 933;

Hendrickson, 81 Wn. App. at 401.

       The evidence at trial, when viewed in a light most favorable to Calderon, did not support

a jury instruction on self-defense. The evidence adduced at trial included the following: (1)

Calderon and Hughes engaged in a hostile verbal altercation about food in the house, (2) Hughes

swatted Calderon with an item of Army apparel while he laid on the couch, (3) Hughes threw a




                                                20
No. 49343-8-II


glass chalice at Calderon, which hit him and broke, and (4) Hughes flipped the living room table

toward Calderon, but it did not strike him.

        Based on the evidence above, a reasonable jury could not find that Calderon subjectively

feared that he was in imminent danger of death or great bodily harm from Hughes’ actions or

that his use of force was no more than necessary under the circumstances. On the record, there is

no evidence that Calderon feared imminent bodily harm. More importantly, the use of deadly

force in response to Hughes’ alleged actions would be substantially more than necessary under

the circumstances. Further, Calderon consistently asserted he did not know how the gun fired.

For these reasons, he has not presented sufficient evidence warranting a self-defense jury

instruction.

                                         CONCLUSION

        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 in accordance with RCW 2.06.040,

it is so ordered.



                                                    Bjorgen, J.
 We concur:



 Worswick, P.J.




 Melnick, J.




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