                                                                                                      F1LE
                                                                                             CURT@      F APPEALS
                                                                                                    DIVISION II

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                                                                                          STATE CF WASHINGTON

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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

STATE OF WASHINGTON,                                                                 No. 43422 -9 -II


                                        Respondent,


          v.




JUAN JOSE GOMEZ VASQUEZ,                                                        UNPUBLISHED OPINION


                                        Appellant.
                                                                          Consolidated with Nos. 44485 -2 -II,
In re Personal Restraint of                                                       44616 - -II, 44607 -3 -II
                                                                                        2


JUAN JOSE GOMEZ VASQUEZ,


                                         Petitioner.


          JOHANSON, C. J. —            A jury found Juan Jose Gomez Vasquez guilty of unlawful delivery

of   a   controlled      substance     contrary to RCW 69. 50. 401( 2)( b).            Gomez Vasquez appeals his


conviction,       contending that ( 1)       he   received        ineffective   assistance    of    counsel, (   2) the State


committed        prosecutorial      misconduct,      and (   3)   that the trial court erroneously denied Gomez

Vasquez'       s right   to        representation.
                              self -                   Gomez Vasquez also filed two statements of additional


grounds (      SAG)      and   three   personal   restraint petitions (    PRP)    which      are   consolidated    with   this
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II


appeal. 1 We hold that ( 1) Gomez Vasquez' s ineffective assistance of counsel claims fail because

he is   unable        to demonstrate resulting        prejudice, (   2) the prosecutor' s misconduct was not flagrant


and   ill intentioned       and   incurable   by   instruction, ( 3) that Gomez Vasquez waived his right to self -


representation by proceeding through trial with counsel, and ( 4) that Gomez Vasquez' s SAG

arguments fail. We also deny Gomez Vasquez' s PRPs. Accordingly, we affirm his conviction.

                                                                FACTS


                                                        I. BACKGROUND


           Kevin Gordon used drugs for over 25 years. In June 2011, police pulled Gordon over and

found      an ounce of methamphetamine                in Gordon' s     possession.       Officer Don Walkinshaw arrived


at   the   scene and      inquired   as   to Gordon' s    willingness      to   work    for the   police.   Aware that he was


facing up to 20 years in prison if convicted on his charges, Gordon agreed to plead guilty when

offered     a more        lenient   sentence     in   exchange    for his       work    as   a   confidential   informant ( CI).


Shortly thereafter, Gordon began to conduct " reliability buys" for Officer Walkinshaw. 2 Report

of Proceedings ( RP) at 197.


            In    August     2011,    Officer Walkinshaw put Gordon in contact with Officer James

Buchanan.             On August 18, Gordon went to the police station and, in the presence of Officer

Buchanan, called and spoke to Gomez Vasquez reaching an agreement to exchange cash for

drugs      at a   location in Pierce        County. Before taking Gordon to the meeting location, Officer

Buchanan conducted a standard prebuy search which required Gordon to empty his pockets and

submit      to    a   thorough    search,   frisk,    and pat    down    of     his   person.     Officer Buchanan provided


Gordon with a scale and prerecorded money to purchase a quarter ounce of methamphetamine.


 1
     The Stated filed         a motion      to   strike   the   exhibits    attached     to Gomez Vasquez'         s   PRPs.   A
commissioner of our court             denied that      motion.
Consol. Nos. 43.422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II


          Gordon went to the location where he and Gomez Vasquez agreed to meet while Officer

Buchanan     and other members of                   his investigation team        conducted surveillance.           But because the


technology unit was unavailable, Officer Buchanan was unable to record audio or video of the

day' s   events.      Gordon arrived at the location and entered a van in which Gomez Vasquez was a

passenger.        Gordon gave Gomez Vasquez the money and Gomez Vazquez left on a bicycle

returning    a    few      minutes      later     with a package      that   needed      to be "    weigh[ ed]    out,"   but Gordon


discovered that the scale he had been given was not functioning, so he was taken to Gomez

Vasquez'    s residence          to   complete          the transaction.   Members of Officer Buchanan' s surveillance


team followed the van from the original location back to Gomez Vasquez' s home as Gordon

relayed    the changing              plans   to Officer Buchanan           via   text   message.      Gordon arrived at Gomez


Vasquez'    s residence where                Gordon       was given a quarter ounce of methamphetamine.                     After the


transaction, Officer Buchanan retrieved Gordon who produced a baggie of what was later

confirmed        to   be   methamphetamine.                Officer Buchanan        again searched       Gordon.      On August 30,


Officer Buchanan applied for a search warrant.


          On September 7, Officer Buchanan and several other members of the Tacoma Police

Department executed the search warrant at the residence where Gordon purchased the

methamphetamine.                 During the ensuing search, police recovered marijuana, prescription pills, a

gun, a scale, and documents with Gomez Vasquez' s name on them. But the officers did not find

methamphetamine                 or   any     of   the   marked   money Gordon           used   to   buy   the    drugs.   During the
                                                                                 Miranda2


search,    Officer Kenneth Smith                   read     Gomez Vasquez                      warnings.        Afterwards, Gomez


Vasquez      agreed        to   speak      to Officer Buchanan.            Gomez Vasquez initially claimed that he. only



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

                                                                       3
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consumed drugs, but when he was advised that police had observed the earlier controlled buy,

Gomez Vasquez admitted to selling methamphetamine and heroin.

                                                    II. PROCEDURE


          The State initially charged Gomez Vasquez with two counts of unlawful delivery of a

controlled substance, second degree unlawful possession of a firearm, two counts of possession


of a    legend   drug,   and unlawful possession of a controlled substance.          But the State amended the


charges to one count of unlawful delivery of a controlled substance.

                                                A. PRETRIAL MOTIONS


          Either by agreement of both parties or for administrative necessity, Gomez Vazquez' s

trial   date   was continued a   total   of   five times. Although his counsel agreed to continue the case,


Gomez Vasquez himself objected to any continuance during his omnibus hearing, desiring that

the record reflect the       assertion of     his speedy trial   rights.   Gomez Vasquez refused to sign each


subsequent order continuing the trial date.

          Gomez Vasquez also moved to suppress the admissions he made during the execution of

the search warrant on grounds that he did not knowingly and voluntarily waive his right to

remain silent.      Notwithstanding some evidence that Gomez Vasquez appeared tired or possibly

high on drugs, the trial court ruled that the statements were made after Gomez Vasquez


voluntarily waived his Miranda rights. Additionally, Gomez Vasquez filed a motion in which he

claimed to waive his right to counsel and contended that he wished to represent himself pro se.

But Gomez Vasquez was represented by counsel throughout trial and did not bring this motion to

the trial court' s attention until the day he was scheduled to be sentenced.




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                                B. TRIAL TESTIMONY AND POST -TRIAL PROCEEDINGS


          At trial, Officer Buchanan testified            on   behalf   of   the State.     On redirect examination, the


prosecutor asked Officer Buchanan to describe the items found in the house and elicited the


following testimony:

            THE STATE:]            So [ defense counsel] was asking you about some of the things
                       you found in the house. Did you find a scale in the house?
            OFFICER BUCHANAN:] Yes.
            THE STATE:] Did you find a gun in the house?
            OFFICER BUCHANAN:]                   Yes.
            THE STATE:] Did you find bullets in the house?
            OFFICER BUCHANAN:] Yes.


2 RP   at    208.      Then, in closing      argument,     the State    utilized     a "   peg theory,"   arguing that the

various     little "   pegs"    supported Gordon' s version of the events and showed Gomez Vasquez' s


guilt. Responding to testimony that no methamphetamine was found during the search of Gomez

Vasquez' s residence, the prosecutor stated,

            Ask yourselves, think about this, why did Mr. Gordon tell you that they went to
            this house?        What did   they   need?    You   remember.       He   said, a scale, right?   What
            did Officer Buchanan tell        you   that he found in that house?         A scale. I' m going to
            hang    up another     little peg for Mr. Gordon,       right.       Everything keeps supporting
            what    he told you.    You didn' t find any methamphetamine, no, but I found some
            other   drugs.       You didn' t find any methamphetamine, but I found a loaded
            handgun.


3 RP   at   304.    Gomez Vasquez did not object to Officer Buchanan' s testimony on redirect nor did

he   object    to the     prosecutor' s    closing      argument.   The jury found Gomez Vasquez guilty as

charged.




            At sentencing, Gomez Vasquez complained that the court failed to address the various

pro se motions that he had submitted before and after trial, including a motion for arrest of

judgment and new trial. The trial court denied his motion for a new trial the following week.



                                                                5
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            Gomez Vasquez appeals his conviction for unlawful delivery of a controlled substance

and   his    sentence of   75    months confinement.      Gomez Vasquez also filed three PRPs which are


consolidated by order to his direct appeal.

                                                      ANALYSIS


                                    I. INEFFECTIVE ASSISTANCE OF COUNSEL


            Gomez Vasquez argues that his trial counsel rendered ineffective assistance by failing to

move to exclude prejudicial gun evidence and by failing to object or request a sidebar once the

testimony involving        the   weapon was adduced.        Because Gomez Vasquez fails to show resulting

prejudice, his ineffective assistance of counsel argument fails.

                                                 A. RULES OF LAW


            To prevail on an ineffective assistance of counsel claim, a defendant must show both

deficient performance and resulting prejudice; failure to show either prong defeats this claim.

State   v.   McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).               An appellate court reviews an


ineffective assistance claim de novo, beginning with a strong presumption that trial counsel' s

performance was adequate and reasonable and giving exceptional deference when evaluating

counsel' s strategic    decisions. Strickland v. Washington, 466 U. S. 668, 689, 104 S. Ct. 2052, 80


L. Ed. 2d 674 ( 1984); State         v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011) (   quoting State v.

Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009)).               Thus, to establish deficient performance, a


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

reasonableness.      McNeal, 145 Wn.2d          at   362. To establish prejudice, a defendant must show that


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

Strickland, 466 U. S. at 694.




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                                         B. COUNSEL' S FAILURE TO OBJECT


           Here,     counsel for Gomez Vasquez, did not object to Officer Buchanan' s testimony

regarding the gun found during the search nor did counsel object to the prosecutor' s gun remarks

during     closing   argument.      Because the unlawful firearm possession charge was dismissed before


trial, evidence relating to the gun was no longer relevant to Gomez Vasquez' s case and the trial
                                                                                  3
court   likely would have        sustained an objection under           ER 402.


           Even assuming such an objection would have been sustained, Gomez Vasquez cannot

show    that the     result of   the trial would   have been different         absent      the   gun evidence.   There were


only two     fleeting    references     to the   gun    throughout the trial.         In addition, the State' s evidence


against    Gomez Vasquez          on   the   unlawful   delivery       charge was     decidedly strong.     Tacoma police


identified Gomez Vasquez as a participant in a controlled drug buy. Gordon was searched before

he met with Gomez Vasquez and Gordon produced a quantity of methamphetamine upon his

departure from Gomez Vasquez'                s residence.     Gordon testified that he bought methamphetamine


from Gomez Vasquez.                 When      questioned     by       Officer Buchanan, Gomez Vasquez admitted


dealing methamphetamine and heroin.

           Consequently, Gomez Vasquez does not demonstrate that his trial counsel rendered

ineffective assistance by failing to object to the admission of the gun evidence because there is

no reasonable probability that, but for counsel' s deficient performance, the outcome of the case

would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).



3
    Under ER 402,       relevant evidence        is generally admissible and          "[   e] vidence which is not relevant
is   not   admissible."      Evidence is         relevant if it makes " the
                                                               existence of any fact that is of
consequence          to the determination        of   the   action or less probable." ER 401.
                                                                       more   probable

Evidence of the gun seizure does not make the existence of any fact of consequence to the
determination of the unlawful delivery charge more or less probable.

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                                                 2



                                     C. FAILURE TO EXCLUDE GUN EVIDENCE


         In the alternative, Gomez Vasquez argues that his trial counsel was ineffective in failing

to   move   in limine to      exclude   the    gun evidence.         Counsel' s failure to make a motion does not


support an ineffective assistance of counsel claim unless Gomez Vasquez can show that the


motion would           have been properly      granted.      State   v.   Price, 127 Wn.   App.   193, 203, 110 P. 3d


1171 ( 2005), aff'd, 158 Wn.2d 630, 146 P. 3d 1183 ( 2006).                       Gomez Vasquez must make this


showing based on the record developed in the trial court. McFarland, 127 Wn.2d at 337.

         After the State amended the information leaving only the unlawful delivery charge, the

gun evidence was rendered entirely irrelevant because it had no tendency to make any element of

the remaining          charge more or   less   probable.     ER 401.        Although the amended information was


filed on the day trial began, counsel for Gomez Vasquez said that he had an opportunity to

review     and       discuss the   amendments      a week      before the trial.    Therefore, counsel knew that


evidence of the weapon was no longer relevant and could be prejudicial, but he opted not to

attempt     to   exclude    this   evidence   in his trial   memorandum.         The trial court likely would have

granted a motion to exclude the gun evidence on grounds that it was irrelevant and overly

                 4
prejudicial.




           Accordingly, we find that defense counsel' s performance fell below an objective standard

of   reasonableness. McNeal, 145 Wn.2d                at   362.      But notwithstanding his ability to satisfy the

deficient performance prong, Gomez Vazquez' s ineffective assistance claim fails because. he


4 The State urges us to conclude that counsel' s decision not to bring a motion was tactical
because it was consistent with the defense' s theory that the evidence found belonged to other
residents    of           There was evidence found, including documents bearing names other
                     the home.

than Gomez Vasquez, which already demonstrated the fact that the residence was shared.
Contrary to the State' s position, there appears to be no legitimate trial tactic associated with this
failure.
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 - -II / 44607 -3 - II
                                                  2



cannot . show that the outcome of the trial would have been different but for his counsel' s

deficient performance. McFarland, 127 Wn.2d at 335.


           Evidence of a connection between a criminal defendant and a firearm can be highly

prejudicial when such a connection is unassociated with the underlying crime. State v. Rupe, 101

Wn.2d 664, 708, 683 P. 2d 571 (          1984); 5 State v. Freeburg, 105 Wn. App. 492, 501, 20 P. 3d 984
 2001) (    stating that courts have uniformly condemned evidence of dangerous weapons, even

though found in the possession of a defendant, which have nothing to do with the crime

charged).        But as we discussed above, the State provided strong evidence of Gomez Vasquez' s

guilt, including physical evidence of drugs from controlled buys and Gomez Vasquez' s own

admission that he sold quantities of methamphetamine and heroin. Gomez Vasquez fails to show

that the outcome would have been different even had his trial counsel moved to exclude evidence

of   the   gun    and,   thus, he   cannot   demonstrate   prejudice.   His ineffective assistance of counsel


arguments fail.


                                        II. PROSECUTORIAL MISCONDUCT


           Gomez Vasquez also argues that the prosecutor engaged in prosecutorial misconduct


during redirect examination of Officer Buchanan and also at closing argument. We disagree.




5
    The Rupe court noted that many individuals view guns with great abhorrence and that some
may react solely to the fact that someone who has committed a crime has dangerous weapons.
 101 Wn.2d at 708.


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                                                 2



                                      A. STANDARD OF REVIEW AND RULES OF LAW


           To establish prosecutorial misconduct, Gomez Vasquez has the burden of establishing

that the    challenged conduct was               both improper    and prejudicial.    State v. Cheatam, 150 Wn.2d


626, 652, 81 P. 3d 830 ( 2003).               We review the prosecutor' s conduct " by examining that conduct

in the full trial     context,       including   the   evidence presented, ` the   context of the total argument, the


issues in the case, the evidence addressed in the argument, and the instructions given to the


jury. "'   State     v.   Monday,      171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal quotation marks


omitted) (   quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006)).

           When a defendant objects to alleged misconduct at trial, the defendant must show that the


prosecutor' s misconduct resulted in prejudice that had a substantial likelihood of affecting the

jury' s   verdict.    State     v.   Emery,   174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012).       If a defendant fails to


object to misconduct at trial, he fails to preserve the issue unless he establishes that the


misconduct was so flagrant and ill intentioned that it caused an enduring prejudice that could not

have been      cured with an           instruction to the    jury. State v. Thorgerson, 172 Wn.2d 438, 442 -43,

258 P. 3d 43 ( 2011).            We focus more on whether the resulting prejudice could have been cured,

rather than the flagrant or ill-intentioned nature of the remark. Emery, 174 Wn.2d at 762.

                                                          B. ANALYSIS


           Specifically, Gomez Vasquez argues that the prosecutor improperly elicited and exploited

irrelevant and highly prejudicial evidence of the gun and ammunition. But he failed to object to

either     instance       of    alleged   misconduct.        Accordingly, he must first demonstrate that the

prosecutor' s conduct was              flagrant   and   ill intentioned.   The first instance of alleged misconduct


occurred     during       the   redirect examination of        Officer Buchanan.      On cross- examination, Gomez


Vasquez questioned Officer Buchanan about the search of his residence and inquired as to what

                                                                 10
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II


evidence   that   search produced.        Gomez Vasquez' s trial counsel asked a series of questions meant


to challenge the credibility of Gordon' s information and to emphasize the lack of incriminating

evidence police recovered when Gomez Vasquez' s home was searched.


          In response, the prosecutor elicited the testimony from Officer Buchanan regarding the

seizure of the gun and ammunition in an attempt to show that, notwithstanding the failure to

seize methamphetamine or marked bills, the search still resulted in the seizure of evidence


tending    to   support     Gordon' s information that illegal activity           occurred     in the   residence.   The


prosecutor asked whether Officer Buchanan found a gun and ammunition amongst several other


items   seized.    While the seizure of the scale and other controlled substances may have supported

Gordon' s       assertion    that   the   residence       was   used   for   criminal   drug   activity, the   gun   and



ammunition was irrelevant as it pertained to Gomez Vasquez and the charges against him.

          Moreover, Gordon never alleged that Gomez Vasquez was armed during any of their

previous encounters nor did Gordon claim to have seen guns inside Gomez Vasquez' s residence.

Because the connection between a criminal defendant and a firearm can have prejudicial effect, it

was   improper for the        prosecutor    to   elicit   testimony    which created such a connection.         But the


prosecutor' s conduct cannot be characterized as so flagrant and ill intentioned that a curative


instruction could not have obviated any prejudice. State v. Stenson, 132 Wn.2d 668, 726 -27, 940

P. 2d 1239 ( 1997),       cert. denied, 523 U. S. 1008 ( 1998). A limiting instruction could have easily

cured what little prejudice may have resulted from Officer Buchanan' s testimony.

          In closing argument, the prosecutor used the " peg" approach in discussing the evidence;

not to suggest that the items seized at the residence proved Gomez Vasquez' s guilt, but

attempted rather to bolster Gordon' s credibility which the defense had vigorously attacked



                                                                11
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throughout the trial.        The prosecutor implored the jury to believe Gordon' s testimony despite the

relatively fruitless search. He said,

           W] hy did Mr. Gordon tell            you that   they   went   to this house?       What did they need?
                He     said, a scale, right?      What did Officer Buchanan tell you that he found in
           that house?      A   scale.    I' m going to hang up another little peg for Mr. Gordon,
           right.Everything keeps supporting                   what    he told    you.     You didn' t find any
           methamphetamine, no, but I found                    some    other    drugs.     You didn' t find any
           methamphetamine, but I found a loaded handgun.


3 RP at 304. While a prosecuting attorney does have wide latitude in closing to argue reasonable

inferences from the             evidence,
                                             including evidence respecting the credibility of witnesses,

Thorgerson,         172 Wn.2d      at    448,   Gordon provided no testimony to support the notion that

weapons were connected to Gomez Vasquez' s drug sales or that any would be found during a

search. Accordingly, it was improper for the prosecutor to attempt to connect the gun to Gomez

Vasquez      when    it   was not associated with           the underlying       charge.      But again, Gomez Vasquez


fails to   show     enduring    prejudice   that   was not curable       by    instruction.    Thorgerson, 172 Wn.2d at


443.   A    limiting   instruction   could      have   cured   any resulting     prejudice.    Accordingly, we hold that

Gomez Vasquez has failed to preserve this issue for review.


                                         III. RIGHT TO SELF- REPRESENTATION


           Gomez Vasquez next argues that reversal is required because he was deprived of his

constitutional right to self -
                             representation when he filed a motion to proceed pro se a month

before his trial,         a motion   that the     court    failed to   consider.     We hold that Gomez Vasquez' s


argument fails because he waived his self representation right by proceeding through trial with
                                          -

representation by counsel.

           Criminal defendants have an explicit right to self -
                                                              representation under the Washington

Constitution and an implicit right under the Sixth Amendment to the United States Constitution.



                                                                  12
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WASH. CONST.      art.   I, § 22; Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d


562 ( 1975).     This right is so fundamental that it is afforded despite its potentially detrimental

impact on both the defendant and the administration of justice. State v. Madsen, 168 Wn.2d 496,

503, 229 P. 3d 714 ( 2010) ( citing Faretta, 422 U. S.                at   834)). "[     U]njustified denial of this [ pro se]

right requires reversal."         Stenson, 132 Wn.2d        at   737. But both the United States Supreme Court


and   our   Supreme Court have held that                courts    are      required      to indulge in "' every reasonable


presumption against a        defendant'   s waiver of      his   or   her   right   to   counsel. '   Madsen, 168 Wn.2d at


504 ( internal   quotation marks omitted) (             quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986

P. 2d 790 ( 1999), cent. denied, 531 U. S. 1125 ( 2001)).


        The    right   to   proceed pro    se   is   neither absolute nor self -
                                                                               executing.               State v. Woods, 143


Wn.2d 561, 586, 23 P. 3d 1046,            cent.      denied, 534 U.S. 964 ( 2001).              When a defendant requests


pro se status, the trial court must determine whether the request is unequivocal and timely.

Stenson, 132 Wn.2d at 737. Even when a request is unequivocal, a defendant may still waive the

right of self -
              representation        by   subsequent words or conduct.                    State v. Vermillion, 112 Wn. App.

844, 851, 51 P. 3d 188 ( 2002) ( citing          State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 ( 1995)),

review denied, 148 Wn.2d 1022 ( 2003).


        Here, while he was represented by counsel, Gomez Vasquez filed a pro se motion

demanding to exercise his rights to self -
                                         representation along with what appears to be a request

for standby counsel to assist him in filing motions, conducting interviews, and accessing forms.
But there is     no    Sixth Amendment          right   to "` hybrid       representation '      through which defendants


may serve as co- counsel with their attorneys. State v. DeWeese, 117 Wn.2d 369, 379, 816 P. 2d 1

 1991) ( quoting State       v.   Bebb, 108 Wn.2d 515, 524, 740 P. 2d 829 ( 1987)).                     Furthermore, though


the motion was received and stamped, there is no indication in the record that Gomez Vasquez

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ever noted       the issue for       hearing. Moreover, Gomez Vasquez proceeded through the entirety of

his trial   with representation            by   his   appointed counsel.          Gomez Vasquez did not bring the motion

to the court' s attention at any point during trial nor did he express any desire to renew his request

despite     ample      opportunity to           address    the      court.   It was only after the jury returned a guilty

verdict, on the day that was originally scheduled for sentencing, that Gomez Vasquez both

voiced his frustration over the court' s failure to address his earlier motion and also alleged that


his trial counsel had .been ineffective. Accordingly, we hold that Gomez Vasquez, by proceeding

with counsel throughout his trial, waived his right of self representation.
                                                            -


                                       IV. STATEMENT OF ADDITIONAL GROUNDS


            Gomez Vasquez             raises     a    litany   of   issues in his SAG.             He   appears    to   argue   that ( 1)



probable cause to issue a search warrant was lacking because the affidavit of probable cause

contained false         and   misleading        statements, (       2) the State failed to demonstrate that Gordon was a

                                                                                                                        6(
reliable    CI   under       the   basis   of   knowledge        and   veracity        prongs of   Aguilar- Spinelli,        3) the trial


court erred       in   denying      Gomez Vasquez'             s motion      to                 Miranda
                                                                                  suppress post -                 statements, (   4) the


State did not prove the delivery element of the charge because police did not actually see an

exchange      and       no   audio    or   video       recording      exists, (   5)    reversal is required because the court


continued the case over Gomez Vasquez' s objections in violation of his speedy trial rights, and

    6) failure to identify " CI #2" was a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,

10 L. Ed. 2d 215 ( 1963).              We address each of these arguments in turn. We hold that these claims

lack merit.




6
    See Spinelli       v.   United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 ( 1969); Aguilar v.
Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 ( 1964).

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                                A. PROBABLE CAUSE TO ISSUE SEARCH WARRANT


          Gomez Vasquez argues that the facts and circumstances leading to the issuance of the

search warrant     did      not support    a   finding   of probable cause.        He alleges that the search warrant


affidavit contained false and misleading statements such that he should have been entitled to a

Franks? hearing. He argues further that there was not a sufficient nexus between the place to be

searched and the item to be seized. We hold that probable cause existed and that any mistakes in

the affidavit were not deliberate falsifications nor did the affiant recklessly disregard the truth.

We conclude further that there was a nexus between the criminal activity, the items to be seized,

and the place to be searched.


          A   search warrant        may only issue       upon    a determination   of probable cause.   State v. Thein,


138 Wn.2d 133,              140, 977 P. 2d 582 ( 1999).             An application for a warrant must state the


underlying facts and circumstances on which it is based in order to facilitate a detached and
independent      evaluation of       the   evidence   by   the   issuing   magistrate.   Thein, 138 Wn.2d   at   140.   A


magistrate exercises judicial discretion in determining whether to issue a warrant and that

decision is     reviewed      for   abuse of    discretion.      State v. Vickers, 148 Wn.2d 91, 108, 59 P. 3d 58


 2002).       We accord great deference to the magistrate and view the supporting affidavit for a

search warrant     in light     of common sense.          Vickers, 148 Wn.2d at 108.


          Probable cause exists if the affidavit in support of the warrant sets forth facts and

circumstances sufficient to establish a reasonable inference that the defendant is probably

involved in criminal activity and that evidence of criminal activity can be found at the place to be

searched.      State   v.   Maddox, 152 Wn. 2d 499, 505, 98 P. 3d 1199 ( 2004).               Accordingly, " probable



7
    Franks v. Delaware, 438 U. S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 ( 1978).

                                                                  15
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II



cause requires a nexus between criminal activity and the item to be seized, and also a nexus

between the item to be        seized and      the place to     be   searched."   State v. Goble, 88 Wn. App. 503,

509, 945 P. 2d 263 ( 1997). ( citing 1 WAYNE R. LAFAVE, SEARCH &                      SEIZURE § 3. 7( d), at 372 ( 3d


ed. 1996)).


          Here, Gomez Vasquez spends significant time and effort arguing that falsifications and

misrepresentations       in the   affidavit   lead to   an erroneous     finding   of probable cause.   But many of

the alleged misrepresentations are contained in the prosecuting attorney' s declaration of probable

cause filed after the search warrant had been executed, instead of the affidavit requesting the
                    8
search warrant.         The only mistake contained in Officer Buchanan' s affidavit was his use of the

wrong name twice in one paragraph. This was clearly a clerical error because Officer Buchanan

used Gomez Vasquez' s correct name and date of birth in between the two mistaken instances.


Viewing the affidavit in a light of common sense it is clear that Officer Buchanan intended to

refer only to Gomez Vasquez. It was not an abuse of discretion for the magistrate to ignore these

inconsistencies because a defendant is entitled to a Franks hearing only when he submits an offer

of proof showing deliberate falsehood or reckless disregard for the truth; negligent or innocent

mistakes are    insufficient. Vickers, 148 Wn.2d at 114.


          Gomez Vasquez cites Maddox as further support that probable cause to issue the search

warrant was     lacking. Gomez Vasquez attempts to analogize this case with Maddox because, like

Maddox,       the    search   of Gomez Vasquez' s               residence    revealed   no   physical   evidence   of


methamphetamine.           But Maddox is clearly distinguishable.                There, it was not the fact that no


methamphetamine was found which gave rise to the argument that probable cause was lacking,


8
    Our   review    is limited to the four      corners   of   the   probable cause affidavit.   State v. Neth, 165
Wn.2d 177, 182, 196 P. 3d 658 ( 2008).

                                                               16
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II


but rather the fact that law enforcement learned before executing the warrant that an immediate

search   would      likely   not      produce    methamphetamine.          Maddox, 152 Wn.2d            at   503,   507.


Furthermore, the Supreme Court held that redetermination of probable cause in Maddox was


unnecessary because Maddox' s statements to the CI did not affect probable cause supporting the

warrant' s   authorization      to    search   for   paraphernalia   and   other   evidence   of   drug dealing.    152


Wn.2d at 513.


         Here, law enforcement involved in the search of Gomez Vasquez' s residence did not


receive any information prior to the warrant' s execution suggesting that they would no longer

find   methamphetamine         in the house.         Even had the officers been so informed, this information


would not necessarily have negated probable cause when the warrant also authorized the officers

to search for paraphernalia, books, records, and weapons associated with narcotics trafficking.

         Last, Gomez Vasquez appears to argue that the search warrant lacked the requisite nexus

between the     place   to be   searched and         the items to be   seized.     In the days and weeks before the


search warrant was executed, Gordon informed law enforcement that he had observed Gomez

Vasquez with dealer quantities of methamphetamine and that Gordon could arrange to purchase

drugs.   Tacoma police conducted surveillance of Gomez Vasquez' s residence as a controlled


drug buy     took   place    there.    Within 10 days of the search, a second CI approached police and

informed them that he or she had been at the residence and had seen packaged methamphetamine


and that Gomez Vasquez had been distributing methamphetamine from that location for several

weeks.       Accordingly, a sufficient nexus existed between Gomez Vasquez, his residence, and

evidence of methamphetamine               distribution to determine that         probable cause existed.       We hold


that the magistrate' s finding of probable cause was not an abuse of discretion.



                                                              17
Consol. Nos. 43422 -9 -II / 44485 -2 -1I / 44616 - -II / 44607 -3 -II
                                                 2



                                                B. GORDON' S RELIABILITY


          Gomez Vasquez contends that the State did not sufficiently demonstrate that Gordon was

a reliable informant such that a search warrant could issue based on the information he provided.


Washington continues to follow the Aguilar- Spinelli standard for establishing probable cause via

an unidentified       informant. State         v.   Lyons, 174 Wn.2d 354, 359             n. 1,   275 P. 3d 314 ( 2012).      This


standard    has two              basis
                        prongs — "              of   knowledge"        and "   veracity."      State v. 011ivier, 178 Wn.2d


813, 849, 312 P. 3d 1 ( 2013).            The basis of knowledge prong requires that the affidavit contain

     sufficient facts to convince a reasonable person of the probability the defendant is engaged in

criminal activity and that evidence of criminal activity can be found at the place searched.'"

011ivier, 178 Wn.2d           at   849 ( quoting Lyons, 174 Wn.2d               at   359 &    n. 2).   Furthermore, this prong

may be satisfied by a showing that the informant had personal knowledge of the facts provided to
the   affiant.    Vickers, 148 Wn.2d at 112.


          The veracity prong requires that the affidavit contain information from which a

determination        can   be   made   that the informant         is   credible or     the information        reliable.   State v.


Jackson, 102 Wn.2d 432, 435, 688 P. 2d                  136 (   1984).    The most common way to satisfy this prong

is to   evaluate     the informants " track          record,"    i. e., has he provided accurate information to the


police    a number of         times   in the    past?    Jackson, 102 Wn.2d              at   437.     But   a successful "   track



record" as a police informant is not the only method of demonstrating the present reliability of a

CI— successful        controlled buys may themselves be sufficient to establish a CI' s reliability. State

v.    Casto, 39 Wn.        App.    229, 233, 692 P. 2d 890 ( 1984); review denied, 103 Wn.2d 1020 ( 1985).


As the Casto court explained,


          In     a " controlled    buy," an informant claiming to know that drugs are for sale at a
          particular place is given marked money, searched for drugs, and observed while
           sent    into the   specified   location.      If the informant " goes in empty and comes out

                                                                  18
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II


        full,"   his     assertion   that     drugs   were   available   is   proven,     and his reliability
         confirmed.       Properly executed, a controlled buy can thus provide the facts and
         circumstances necessary to satisfy both prongs of the test for probable cause.

39 Wn. App.      at   234 ( quoting 1 WAYNE R. LAFAVE, SEARCH & SEIZURE § 3. 3( b) at 512 ( 1978)).


        Here, Gordon testified that he had known Gomez Vasquez personally for approximately a

year.   Gordon, who had already conducted successful reliability buys told Officer Buchanan that

he   could   buy drugs from       Gomez Vasquez.        During    the   controlled     buy,   Gordon "`     went in empty

and came out      full. "'     Casto, 39 Wn. App. at 234 ( quoting 1 WAYNE R. LAFAVE, SEARCH &

SEIZURE §     3. 3( b)   at   512 ( 1978)).    In his affidavit, Officer Buchanan explained that Gordon' s


reliability as a CI was bolstered by his extensive involvement in the local drug scene, including a

working knowledge of the street prices and packaging methods of various controlled substances.

Officer Buchanan also stated that Gordon had provided information about drug trafficking and

general criminal activity that proved to be true and correct.

         Accordingly, we hold that Gordon satisfies both prongs of the Aguilar-Spinelli test and,

therefore, the magistrate did not abuse his discretion in finding that Officer Buchanan' s affidavit

was sufficient to support a finding of probable cause to search Gomez Vasquez' s residence.

                                 C. SUPPRESSION OF POST -MIRANDA STATEMENTS


         Gomez Vasquez asserts that the trial court erred when it ruled that his statements to

Officer Buchanan during the execution of the search warrant were admissible at his trial because

Officer Buchanan testified that Gomez Vasquez                     appeared    either   tired   or   high.    We hold that


substantial evidence supports the trial court' s finding that Gomez Vasquez knowingly and

voluntarily waived his Miranda rights.

         We review the trial court' s evidentiary rulings for abuse of discretion. State v. Lane, 125

Wn.2d 825, 831, 889 P. 2d 929 ( 1995).                  A trial court abuses its discretion if its decision is

                                                             19
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II



manifestly         unreasonable or         based   on untenable      grounds or reasons.       State v. Wilson, 144 Wn.


App.     166,      183,   181 P. 3d 887 ( 2008). "[            T] he rule to be applied in confession cases is that


findings of fact entered following a CrR 3. 5 hearing will be verities on appeal if unchallenged,

and,    if   challenged,     they   are verities    if   supported   by   substantial evidence      in the   record."   State v.


Broadaway,           133 Wn.2d 118, 131, 942 P. 2d 363 ( 1997). " Substantial evidence exists where there


is a sufficient quantity of evidence in the record to persuade a fair- minded, rational person of the

truth   of   the   finding." State v. Hill, 123 Wn.2d 641, 644, 870 P. 2d 313 ( 1994).

             Due    process requires       that   a confession    be voluntary   and   free   of police coercion.       State v.


Reuben, 62 Wn.               App. 620,       624, 814 P. 2d 1177,          review   denied, 118 Wn.2d 1006 ( 1991).


Whether a confession is voluntary depends on the totality of the circumstances under which. it
was     made.        State   v.   Aten, 130 Wn.2d 640, 663 -64, 927 P. 2d 210 ( 1996).                       This examination


includes        considerations        of    the    location,    length,   and   continuity     of   the   interrogation;    the



defendant' s maturity, education, physical condition, and mental health; and whether the police

advised the defendant of his or her Miranda rights. State v. Unga, 165 Wn.2d 95, 101, 196 P. 3d

645 ( 2008).          We do not disturb a trial court' s determination that statements were voluntary if

there is substantial evidence in the record from which the trial court could have found

voluntariness by a preponderance of the evidence. Aten, 130 Wn.2d at 664.

             Here, the trial court found that Gomez Vasquez' s statements were made after officers


properly conducted Miranda warnings from a prepared card, correctly advising Gomez Vasquez

of all of      his   rights.      The trial court determined that Gomez Vasquez understood his rights and


opted to speak to Officer Buchanan without coercion, thereby knowingly, voluntarily, and

intelligently waiving his Miranda rights.



                                                                   20
Consol. Nos. 43422 -9 -I1 / 44485 -2 -1I / 44616 -2 -1I / 44607 -3 -1I



         Testimony at the CrR 3. 5 hearing revealed that Gomez Vasquez told officers that he
understood     his   rights.    Gomez Vasquez never claimed that he did not understand the English


language, that he       was unable       to hear the     officers,     or   that he   needed an    attorney.   Despite his


apparent understanding of his rights, Gomez Vasquez answered affirmatively when asked

whether   he   was   willing to       speak with officers.         Officer Buchanan did testify that at some point

during their conversation, he noticed that Gomez Vasquez appeared to be either half asleep or

like   someone who      may have been high.             But intoxication, though it may be considered a factor,

is not dispositive of voluntariness. Aten, 130 Wn.2d at 664.

         Moreover,       Officer        Smith     testified    that    Gomez       Vasquez      was    argumentative   and


disrespectful    when    law    enforcement        began its   search of     his   residence.   Officer Smith stated that


Gomez Vasquez asked officers what they were doing, told them they had no right to be there,

and    demanded to be          read    a search    warrant.     Thus, Gomez Vasquez was coherent enough to


articulate his understanding of lawful procedure and to assert his rights in that sense.

Accordingly, a sufficient quantity of evidence exists in the record to persuade a fair -
                                                                                       minded,

rational person of the truth of the trial court' s finding that Gomez Vasquez' s statements were

given   knowingly,      voluntarily,      and     intelligently.      Hill, 123 Wn. 2d     at   644.   Therefore, the trial


court did not abuse its discretion in ruling that the statements were admissible.

                               D. INSUFFICIENT EVIDENCE OF DELIVERY ELEMENT


          Gomez Vasquez asserts that the State failed to prove his guilt because there was

insufficient    evidence on      the   delivery    element of    his   charge.     Specifically, Gomez Vasquez argues

that there was no audio, video, or eyewitness account of Gomez Vasquez' s transaction with


Gordon.        We hold that Gomez Vasquez' s claim fails because the State presented sufficient

evidence of all elements of the crime.

                                                                21
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II



           To determine whether evidence is sufficient to sustain a conviction, we review the


evidence     in the light    most      favorable to the State.       State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d


282 ( 2003).       The    relevant question       is "`   whether any rational fact finder could have found the

essential elements of        the   crime   beyond     a reasonable       doubt.'       State v. Drum, 168 Wn.2d 23, 34-


35, 225 P. 3d      237 ( 2010) ( quoting        Wentz, 149 Wn.2d          at   347).   In claiming insufficient evidence,

the defendant necessarily admits the truth of the State' s evidence and all reasonable inferences

that can be drawn from it. Drum, 168 Wn.2d at 35 ( citing State v. Salinas, 119 Wn.2d 192, 201,

829 P. 2d 1068 ( 1992)). We interpret the                 evidence "' most      strongly     against    the defendant. '      State


v.   Hernandez, 172 Wn.          App.    537, 543, 290 P. 3d 1052 ( 2012) ( internal quotation marks omitted)


 quoting State       v.   Joy,   121 Wn.2d 333, 339, 851 P. 2d 654 ( 1993)),                    review denied, 177 Wn.2d


1022 ( 2013).       We consider both circumstantial and direct evidence as equally reliable and defer

to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness

of the evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).


           To find Gomez Vasquez guilty of unlawful delivery of a controlled substance, the jury

was instructed that the State must prove the following elements beyond a reasonable doubt:

                      1) That on or about the 18th day of August, 2011, the defendant delivered
           a controlled substance;

                      2) That the defendant knew that the substance delivered was a controlled
           substance; Methamphetamine; and
                      3) That the acts occurred in the State of Washington.


CP    at   68.     The    jury   was    also   instructed that "[ d] eliver means the ' actual or constructive or


attempted transfer of a controlled substance                  from   one person        to   another."     CP   at   67.   The State


presented evidence that Officer Buchanan took Gordon to a designated meeting location to

purchase         drugs from Gomez Vasquez.                 Gordon met with Gomez Vasquez and the two men


traveled to       a residence    in   search of a   working     scale.    Members of the Special Investigation Unit


                                                                22
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -1I



maintained surveillance on        the moving        vehicles.     Gordon entered the residence where Gomez


Vasquez weighed and bagged methamphetamine, a portion of which he handed to Gordon.

Gordon then delivered the drugs he had been given to Officer Buchanan.


          Gomez Vasquez cites no authority that purports to require audio or video recordings or

eyewitness accounts of controlled drug transactions to prove elements of a delivery charge.

Furthermore, our courts have upheld convictions for possession and delivery of controlled

substances where police witness their CI entering an apartment complex but were unsure as to

which apartment he actually entered. See State v. Lane, 56 Wn. App. 286, 295 -96, 786 P. 2d 277

 1989).     Here, the State presented enough evidence for a rational fact finder to have found the

essential   elements    beyond     a   reasonable    doubt.       We hold that sufficient evidence supported


Gomez Vasquez' s conviction.


                           E. TIME FOR TRIAL AND SPEEDY TRIAL VIOLATION


                                       1.   CRR 3. 3 TIME FOR TRIAL RIGHT


          Gomez Vasquez next argues that his CrR 3. 3 rights were violated because the trial court


continued    the   case several   times,    each   time   over   Gomez Vasquez'   s objection.   We hold that no


such violation occurred because the continuances were properly granted and the time for trial

period was properly computed considering the applicable exclusions.

          CrR 3. 3 accords with the United States Supreme Court' s determination that states can


prescribe reasonable periods for commencement of trials consistent with constitutional standards.


011ivier, 178 Wn.2d at 823 ( citing Barker v. Wingo, 407 U.S. 514, 524, 92 S. Ct. 2182, 33 L. Ed.

2d 101 ( 1972)).     Under CrR 3. 3( b)( 1)( i),    an individual held in custody pending trial must be tried

within    60 days   of arraignment.         But certain time periods are excluded from the computation of




                                                            23
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II


time,    including       continuances granted      by the    trial   court.   CrR 3. 3(   e).   With regard to continuances,


CrR 3. 3( f)(2) explains,


              On motion of the court or a party, the court may continue the trial date to a
              specified date when such continuance is required in the administration of justice
              and the defendant will not be prejudiced in the presentation of his or her
              defense....    The court must state on the record or in writing the reasons for the
              continuance.    The bringing of such motion by or on behalf of any party waives
              that party' s objection to the requested delay.

              Here, Gomez Vasquez           was   in custody pending trial,           so    the 60 -day rule   applied.   CrR


3. 3( b)( 1)( i).      There were a total of five continuances and. Gomez Vasquez objected in each


instance. Three of the motions were brought upon agreement of the State and counsel for Gomez

Vasquez for            reasons     associated with   trial   preparation.        The trial court ordered the final two


continuances on its own accord for administrative necessity because there were no courtrooms

available for use.


              As mentioned, Gomez Vasquez' s own counsel sought three of the continuances about


which         he    complains.     Consequently, as the rule expressly provides, any objection is therefore

waived.             011ivier, 178 Wn.2d     at   824; CrR 3. 3( f)(
                                                                  2).         The trial court stated that the final two


continuances it initiated were necessary for administrative reasons because there were no court

rooms         available.     Our Supreme Court has concluded, however, that although trial preparation


may be a valid reason for a continuance, court congestion is not. State v. Flinn, 154 Wn.2d 193,

200, 110 P. 3d 748 ( 2005).             Accordingly, the first three continuances sought for trial preparation

needs         were    for   good   cause   and   were   thus   excluded       in the time for trial      computation.     CrR


3. 3(   e)(   3).    But the last two continuances, sought by the court for administrative necessity,

resulted in an additional delay of five days which did count in the time for trial computation.

The case was first continued on October 26 when the case was 47 total days old and 30 days



                                                                 24
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II


remained in the time for trial period according to the record. Trial was continued until December

13.   On December 13, the        case was again continued until             January    26, 2012.   On January 26, the

case was continued until       March 1.      These continuances were for trial preparation and, therefore,


did   not count against     the 60 -day time for trial       period.     Accordingly, as of March 1, 30 days still

remained      in the time for trial   period.   The final two continuances are included in computing the

time for trial.      On March 1, the case was continued until March 5 and on March 5 it was

continued      to March 6.     Thus, five additional days ran in the time for trial period and 25 days

                                                                                                     9
remained.      There is   no violation of    CrR 3. 3( b)( 1)( i)   as   60 days did   not elapse.       Accordingly, we

hold that Gomez Vasquez' s time for trial right was not violated.


                                  2. CONSTITUTIONAL SPEEDY TRIAL RIGHT


          Gomez Vasquez also argues that his speedy trial rights under the state and federal

constitutions were        violated as    a result of   the   several continuances        to   which      he   objected.   We


disagree.


          Both the United States Constitution and the Washington Constitution provide a criminal


defendant with the right to a speedy public trial. U.S. CONST. amend. VI; WASH. CONST. art. I, §

22.    Our state constitution " requires a method of analysis substantially the same as the federal

Sixth Amendment           analysis and   does   not afford a       defendant   greater   speedy trial     rights."   State v.


Iniguez, 167 Wn.2d 273, 290, 217 P. 3d 768 ( 2009).                      We review de novo constitutional speedy

trial claims. Iniguez, 167 Wn.2d at 280.


          A defendant' s constitutional rights to a speedy trial attach when a charge is filed or an

arrest   is   made, whichever occurs       first.   State v. Corrado, 94 Wn. App. 228, 232, 972 P. 2d 515,


9 On the order for the penultimate continuance, the trial court stated that 26 days of speedy trial
time remained.


                                                              25
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II



review       denied, 138 Wn.2d 1011 ( 1999).                           Some        pretrial   delay        is   often "   inevitable and wholly

justifiable," Doggett v. United States, 505 U. S. 647, 656, 112 S. Ct. 2686, 120 L. Ed. 2d 520


 1992),      and any " inquiry into a speedy trial claim necessitates a functional analysis of the right in

the   particular context of            the   case."    Barker, .407 U. S.               at    522.        As first articulated by the United

States Supreme Court in Barker,                      we consider (            1) the length          of pretrial     delay, ( 2) the reason for

delay, ( 3)     the defendant'         s assertion of        his       or   her    right, and (      4)    prejudice      to the    defendant. 407


U. S. at 530.


             But to trigger this             analysis,      the    defendant           must     first demonstrate that the " interval


between accusation and trial has crossed the threshold dividing ordinary from ` presumptively

prejudicial'       delay."       Doggett, 505 U. S.               at   651 -52 ( quoting Barker, 407 U. S.                         at   530 -31).    We


consider the duration of pretrial custody, the complexity of the charges, and the extent to which a

case involves a reliance on eyewitness testimony. Iniguez, 167 Wn.2d at 292 ( citing Barker, 407

U. S.   at   531 &     n. 31).    In Iniguez,         our    Supreme Court found "                    presumptive[ ]          prejudic[ e]"         based


upon a       delay   of more      than       eight months.             167 Wn.2d         at    291 -92.         The court found it important


that ( 1)     the defendant had          remained           in custody throughout this                      period; (     2) the charges against


him     were    not    complex;         and (   3)    such     a       lengthy delay " could result in witnesses becoming

unavailable        or their      memories       fading,"      thus          impairing his       defense.          Iniguez, 167 Wn.2d at 292.


The     court   took    pains     to   note    that this eight -
                                                               month                  delay    was,        however, " just beyond the bare


minimum needed            to trigger the Barker              inquiry." Iniguez, 167 Wn.2d at 293. 1°

             Here, as in Iniguez, Gomez Vasquez remained in custody pending trial and the charges

against      him   were not complex.                 But the length of delay in Gomez Vasquez' s trial was shorter




10 See also 011ivier, 178 Wn.2d at 828 ( 23 -month delay enough to trigger Barker analysis).
                                                                              26
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616- 2- 11/                    44607 -3 -I1



than the       delay      in Iniguez.      Gomez Vasquez' s trial began almost exactly six months after his

arrest.       Although the State' s case rested in part on the eyewitness testimony of Gordon, it also

rested largely on documentary evidence recorded by police during the investigation of Gomez

Vasquez.           Thus, it appears unlikely that Gomez Vasquez has met the threshold requirement to

trigger the Barker test.           Assuming Gomez Vasquez did trigger the Barker analysis, we examine

the factors.


              The first two Barker factors             concern    the length         and reason   for the   delay.   Barker, 407


U. S.    at   530.    The State filed charges on September 7, 2011, and trial began on March 6, 2012.


Notwithstanding the fact that the charges are not complex and even though Gomez Vasquez did

spend the entire pretrial period in incarceration, less than six months is not necessarily an undue

delay.        Iniguez, 167 Wn.2d             at    293.     Regarding the reason for delay, careful assessment is

necessary to          sort   the legitimate        or neutral reasons         for   delay from    improper    reasons.   A court


looks to each party' s responsibility for the delay, and different weights are assigned to delay,

primarily related to blameworthiness and the impact of the delay on defendant' s right to a fair
trial.    Barker, 407 U. S.        at   531.       Courts often hold that even where continuances are sought over


the defendant' s objection, delay caused by defendant' s counsel is charged against the defendant

under     the Barker         balancing     test.    011ivier, 178 Wn.2d         at   834.    And delay caused by the defense

weighs against             the defendant because '           the attorney is the [ defendant' s] agent when acting, or

failing       to   act,   in furtherance    of    the litigation. "'    Vermont v. Brillon, 556 U.S. 81, 90 -91, 129 S.

Ct. 1283, 173 L. Ed. 2d 231 ( 2009) (                     alteration   in   original) (   quoting Coleman v. Thompson, 501

U. S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 ( 1991)).                                Here, defense counsel' s stipulated




                                                                       27
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II



continuances      accounted      for approximately four months                 of   delay."   Therefore, the first two


factors weigh in favor of the State.


          The third factor, the defendant' s assertion of his rights, clearly weighs in favor of Gomez

Vasquez because he        objected     to    each continuance.            Gomez Vasquez refused to sign each order


granting the continuance and he filed a pro se motion specifically asserting his speedy trial rights

and objecting to any further continuance.

          The last factor is prejudicial to the defendant. Prejudice is judged by looking at the effect

on   the interests   protected   by the     right   to   a   speedy trial: ( 1) to prevent harsh pretrial incarceration,


 2) to minimize the defendant' s anxiety and worry, and ( 3) to limit impairment to the defense.

Iniguez, 167 Wn.2d        at    295.   Because Gomez Vasquez was incarcerated throughout the pretrial

                                                                12
period,   there   was   likely   anxiety     and     worry.          But as explained in detail above, the evidence


against Gomez Vasquez was significant and much of it was documented by law enforcement.

Gomez Vasquez' s primary defense was that Gordon was not a credible informant and witness. A

delay    of   less than   six   months      did     not      impair this defense.     On balance, the totality of the

circumstances here does not support a finding of a speedy trial violation of constitutional

magnitude. Even assuming he meets the threshold for a Barker analysis, three of the four factors

weigh against Gomez Vasquez. We hold that no speedy trial violation occurred.




11 Trial was originally set for November 1, 2011, but the parties agreed to three continuances,
pushing the trial date back until March 1, 2012.
12
     But see Barker, 407 U.S. at 534 ( 10 -month pretrial incarceration not prejudicial absent actual
impairment of defense).


                                                                     28
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II


                                              F. FAILURE TO IDENTIFY CI #2


          Gomez Vasquez contends that his right to a fair trial was violated because the State did

not identify " CI #2" who apparently informed the police that he or she had also observed Gomez

Vasquez dealing drugs from the residence in the days before police executed the search warrant

there.   Gomez Vasquez also claims that this failure to disclose is a violation of the rules initially

set   forth in     Brady. We hold that Gomez Vasquez' s claim fails because the State' s anonymity of

CI #2 did not infringe upon Gomez Vasquez' s constitutional rights.


          It is well established that the State has a legitimate interest in protecting the identity of

CIs.     State      v.   Moen, 150 Wn.2d 221, 230, 76 P. 3d 721 ( 2003).                The ability to protect an

informant' s        identity from        disclosure is termed the " informers     privilege,"   which is the State' s


right to withhold from disclosure the identity of persons who provide information to law

enforcement          concerning the        commission of crimes.     State v. Atchley, 142 Wn. App. 147, 155,

173 P. 3d 323 ( 2007) ( citing State             v.   Harris, 91 Wn.2d 145, 148, 588 P. 2d 720 ( 1978)).          The


privilege     is   recognized          in Washington by both    statute   and court rule.   RCW 5. 60. 060( 5);   CrR

              13
4. 7( f)(
        2).          Disclosure is only required if the failure to disclose will infringe upon the

constitutional           rights   of   the defendant.   CrR 4. 7( f)(
                                                                    2).    Courts typically must balance several

competing factors in determining whether to disclose a CI' s identity, but Washington courts have

held that where the CI provided information relating only to probable cause rather than the




13 CrR 4. 7( f)( states,
               2)
       Disclosure of an informant' s identity shall not be required where the informant' s
          identity is a prosecution secret and a failure to disclose will not infringe upon the
          constitutional rights of the defendant. Disclosure of the identity of witnesses to be
          produced at a hearing or trial shall not be denied.

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Consol. Nos. 43422 -9 -I1 / 44485 -2 -II / 44616 - -II / 44607 -3 - 1I
                                                 2



defendant' s guilt or innocence, disclosure of the CI' s identity is not required. Atchley, 142 Wn.

App. at 156 ( citing State v. Casal, 103 Wn.2d 812, 816, 699 P. 2d 1234 ( 1985)).

         Here,    the      information         provided    by   CI #    2 appeared only in the declaration for

determination of probable cause. CI #2' s information only corroborated information that Gordon

had already provided or was capable of providing. Moreover, CI #2 was not called as one of the

State' s witnesses and therefore was uninvolved in the " guilt phase" of the trial. Accordingly, the

fact that the    identity          of    CI # 2 was not disclosed did not infringe upon Gomez Vasquez' s


constitutional rights.




         Furthermore, the failure to disclose the identity of CI #2 was not a violation of the Brady

rules.   Under the Supreme Court' s current jurisprudence to establish a Brady violation, a

defendant     must     demonstrate the           existence    of each    of   three necessary elements: "[(      1)]   The


evidence at issue must be favorable to the accused, either because it is exculpatory, or because it

is impeaching; [( 2)]         that evidence must have been suppressed by the State, either willfully or

inadvertently;    and [(     3)]   prejudice must      have   ensued."   Strickler v. Greene, 527 U.S. 263, 281 -82,


119 S.      Ct. 1936,       144 L. Ed. 2d 286 ( 1999).                 Gomez Vasquez        cannot   show   that CI # 2' s


information was favorable to him or that prejudice ensued from suppression of his or her


identity.    CI # 2'   s   information inculpated Gomez Vasquez, it               was not   exculpatory.    Accordingly,

his claim fails.


                                                     G. MERITLESS CLAIMS


         Gomez Vazquez                  makes several additional claims        in his SAG.    These claims include ( 1)


that Gomez Vasquez' s mere proximity to seized drugs was insufficient to support a charge of

possession, (    2)    Gomez Vasquez' s conviction should be reversed because some of Gordon' s


reliability buys       were conducted         for   an officer other   than Officer Buchanan, ( 3) Officer Buchanan


                                                                30
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II



committed official misconduct for including false information in his affidavit and complaint for

search    warrant, (   4)   Gordon failed to complete his obligations under his contract with law

enforcement, (    5) Gordon was not reliable because he was cooperating only to stay out of prison,

 6) reversal is required because the prosecution should have given Gomez Vasquez Miranda


warnings again after filing an amended information, and ( 7) reversal is required because Gomez

Vasquez did      not   sign a   Miranda    rights   card.       Gomez Vasquez has failed to inform us of the


nature and occurrence of these alleged errors and we are not required to search the record in

support of   these   claims.    RAP 10. 10( c).     We hold that each claim contained in Gomez Vasquez' s


SAG fails.


                                       V. PERSONAL RESTRAINT PETITION


          Gomez Vasquez filed three PRPs                which are consolidated with          this direct   appeal.   In his


PRPs, Gomez Vasquez             appears   to    argue    that   his   restraint   was    unlawful   because ( 1)   his due


process right to be heard was violated by the trial court' s failure to address his pretrial motions;

 2) the trial   court should    have   suppressed       illegally     seized evidence; (   3) he was denied a fair trial


because the impaneled        jury    included 11    women and          1   man, none of whom were       Hispanic; ( 4) the


trial court erred in failing to instruct the jury as to the delivery element of his charge; and ( 5) his

offender    score    was    erroneously   miscalculated:             We deny the PRPs because Gomez Vasquez

cannot demonstrate actual prejudice or a complete miscarriage of justice relating to any of his

claims.



          We consider the arguments raised in a PRP under one of two different standards,


depending       on whether     the   argument   is based    on constitutional       or   nonconstitutional grounds.      In


re   Pers. Restraint of Davis, 152 Wn.2d 647, 671 -72, 101 P. 3d 1 ( 2004).                         A petitioner raising

constitutional error must show          that the   error caused actual and substantial prejudice.              In re Pers.


                                                                31
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II



Restraint of Elmore, 162 Wn.2d 236, 251, 172 P. 3d 335 ( 2007).                                 In contrast, a petitioner raising

nonconstitutional error must show a fundamental defect resulting in a complete miscarriage of

justice. Elmore, 162 Wn.2d             at   251.   Additionally, Gomez Vasquez must support his claims of

error with a statement of the facts on which his claim of unlawful restraint is based and the

evidence available      to   support   his factual       allegations.     RAP 16. 7( a)( 2); In re Williams, 111 Wn.2d


353, 365, 759 P. 2d 436 ( 1988); see also In re Cook, 114 Wn.2d 802, 813 - 14, 792 P. 2d 506


 1990).    Gomez Vasquez must present evidence showing his factual allegations are based on

more    than    mere speculation, conjecture, or             inadmissible        hearsay. In re Pers. Restraint of Rice,

118 Wn.2d 876, 886, 828 P. 2d 1086,                  cert.   denied, 506 U. S. 958 ( 1992).                   Bald assertions and

                                                                                                14
conclusory      allegations are not sufficient.          Rice, 118 Wn.2d           at   886.


          First, Gomez Vasquez argues that his right to due process of law was violated when the

                failed to                                           that he                                 filed               But as
                                                    motions15




trial   court                address   pretrial                                   composed           and            pro   se.




explained above, Gomez Vasquez neglected to request hearings or otherwise bring these motions

to the trial court' s   attention until after        the    jury   returned a          guilty    verdict.    Furthermore, Gomez


Vasquez     was     given    the opportunity to           address       the    court    before he     was      sentenced.       Gomez


Vasquez     expressed       frustration that the trial        court      had     not    considered     his    pro   se    motions.   In




14 Several of Gomez Vasquez' s arguments constitute bald assertions or conclusory allegations
unsupported  by facts or evidence. These contentions include ( 1) the prosecutor' s violation of a
motion     in limine     during    voire      dire, ( 2)     that Gomez Vasquez was subjected to malicious
prosecution, (     3) that the   prosecutor suppressed             documents, ( 4) that defense counsel could have
objected with more frequency, ( 5) that the magistrate who issued the search warrant was
unaware of Gordon' s contract to work as a CI, and ( 6) that Pierce County Jail staff denied
Gomez Vasquez          access    to the     courts   to "    argue[ ]         all illegal issues before the court took its
course."        PRP ( Feb. 26, 2013)          at   20.     We decline to address these claims for the reasons
mentioned above.



15 These included Gomez Vasquez' s motions to represent himself and his motion objecting to
continuance of his trial date, both of which were central to other issues already addressed.

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Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II



response, the trial judge stated that he had read those motions, that it was unclear what relief


Gomez Vasquez sought, but that he would be happy to hear from Gomez Vasquez further.

Gomez Vasquez addressed the court at length, imploring it to consider his new motions for a

new trial and arrest of judgment.


         The trial court agreed to consider the motions, set sentencing over for one week, and

subsequently denied the           motions     at   Gomez Vasquez'        s next appearance.          Accordingly, Gomez

Vasquez cannot show that he was denied the right to be heard and, moreover, he cannot

demonstrate that any        error caused actual and substantial prejudice.                   Elmore, 162 Wn.2d at 251.


This argument fails.


         Second, Gomez Vasquez argues that the trial court should have suppressed the items

seized   from his    residence when        law     enforcement executed       the   search warrant.      Gomez Vasquez


appears to argue that the seizures were a product of an illegal search, but Gomez Vasquez never

moved    to suppress the         evidence at   trial.   Consequently, to demonstrate actual prejudice, Gomez

Vasquez must establish from an adequate record that the trial court likely would have granted a

suppression     motion.      State    v.   Contreras, 92 Wn.          App.   307, 312, 966 P. 2d 915 ( 1998).          But


Gomez Vasquez          cannot      make     such    a   showing.       As explained above, the State established

Gordon'   s   reliability   under     both     prongs     of   the . Aguilar- Spinelli       test.   Therefore,   Gordon' s


information     suffices    to    support a    determination         of probable    cause.     Also as explained above,


there was a sufficient nexus between the place to be searched and the items to be seized.


Accordingly, the search of Gomez Vasquez' s residence and the subsequent seizure of physical

evidence      were   lawful.       The trial court would not have granted a motion to suppress and,


therefore, Gomez Vasquez cannot show actual prejudice. This argument fails.




                                                                33
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II


          Third, Gomez Vasquez argues that he was denied a fair trial because there were 11


women on the jury and no jury member was Hispanic. Gomez Vasquez is entitled to a trial by an

impartial jury under the Sixth Amendment to the United States Constitution and article I, section

22 of the Washington Constitution. State v. Momah, 167 Wn.2d 140, 147, 217 P. 3d 321 ( 2009),

cert.   denied, 131 S. Ct. 160 ( 2010).            But Gomez Vasquez fails to show how a jury composed of

11   women     and        1    man   resulted   in partiality      or    bias.   Gomez Vasquez does not argue that


preemptory strikes were used inappropriately or that challenges for cause were somehow

improperly     geared          towards   removal of   the    prospective male      jurors.   Ultimately, Gomez Vasquez

fails to present evidence showing that his factual allegations are based on more than mere

speculation or conjecture.               Rice, 118 Wn.2d      at   886. Gomez Vasquez has not demonstrated actual


prejudice. Accordingly, this claim fails.

          Fourth, Gomez Vasquez contends that he is entitled to a new trial because the trial court

committed reversible error in failing to instruct the jury regarding the delivery element of his

charge.     But Gomez Vasquez is mistaken. The jury was instructed as to each element necessary

to   commit   the    crime of unlawful          delivery     of a controlled substance.       Furthermore, the jury was

also    instructed   as       to the legal definition   of   the term " deliver."    Therefore, this claim fails.


          Fifth, Gomez Vasquez argues that his offender score was calculated improperly because

his felonies for taking a motor vehicle without permission and felony eluding should have

 washed out"         under        RCW 9. 94A.525.        But Gomez Vasquez misreads the applicable statutory

provision.     Taking a motor vehicle without permission and felony eluding are class C felonies.

RCW 9A.56. 075( 2); RCW 46. 61. 024( 1).                      RCW 9. 94A.525( 2)( c) governs the " washing out" of

class C felonies and provides,




                                                                    34
Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II



        Except as provided in (e) of this subsection, class C prior felony convictions other
        than sex offenses shall not be included in the offender score if, since the last date
        of release from confinement ( including full -ime residential treatment) pursuant to
                                                     t
        a felony conviction, if any, or entry of judgment and sentence, the offender had
        spent five consecutive years in the community without committing any crime that
        subsequently results in a conviction.

The   crimes    which    Gomez Vasquez      contends   should     wash    out   occurred   in 1996.   He also


committed      crimes   in 1998, 2002, 2003,   and   2005.      Accordingly, as of the 2005 crime, all of

Gomez Vasquez' s prior felonies would have been considered for purposes of his offender score.


During his bail hearing, counsel for Gomez Vasquez stated that Gomez Vasquez had been

released   from custody in 2009.      Although the record does not reveal whether Gomez Vasquez

                                                         16
was   in custody   as a result of   the 2006 sentence,        it is clear that if he was in custody in 2009,

then Gomez Vasquez necessarily could not have spent five consecutive years in the community

as the statute requires. Accordingly, this claim also fails. We deny Gomez Vasquez' s PRP.

        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.




16 The 2005 crime was unlawful possession of a controlled substance with intent to distribute.
                                                       35
