                                                                                FILED 


                                                                           June 27, 2013 


                                                                   In the Office ofthe Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                            )
                                                )         No. 28618-5-111
                     Respondent,                )
                                                )
       v.                                       )
                                                )
ERIBERTO GONZALEZ,                              )         UNPUBLISHED OPINION
                                                )
                     Appellant.                 )

       SIDDOWAY, J. -     Eriberto Gonzalez appeals his conviction for first degree murder,

contending that the trial court erred when it denied his trial lawyer's motion to withdraw.

Mr. Gonzalez had thrown water at his lawyer and overturned counsel's table, resulting in

a physical altercation between him and his lawyer in the presence of the jury. He also

argues that the trial court's instruction to the jury on how to answer a special verdict form

was erroneous.

       The challenge to the jury instruction fails in light of intervening, controlling

authority from the Washington Supreme Court. As to the motion to withdraw, our review

of the record reveals that the trial court carefully considered the trial lawyer' s reasons for

the motion but did so with the benefit of its own observation of the precipitating events,

its knowledge of the lawyer's history with the case, and its assessment of the lawyer's
No. 2861 8-5-II1
State v. Gonzalez


capability of continuing to effectively represent his client. We find no abuse of discretion

and affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Eriberto Gonzalez was charged in 2007 with the first degree murder of a

convenience store clerk. Adolfo Banda was appointed to serve as his lawyer.

Approximately two-and-a-half years after charges were filed, the case proceeded to trial.

As Mr. Banda commented to the court early on in the trial, he had by that time come to

know the case intimately.

       During the first several days of trial, the trial court noticed that Mr. Gonzalez was

expressing disagreement or concern to Mr. Banda after Mr. Banda cross-examined State

witnesses. The court inquired about it outside the presence of the jury and Mr. Gonzalez

told the court he did not believe that Mr. Banda was doing a good job because he was

allowing State witnesses to get away with damaging evidence. The court explained to

Mr. Gonzalez that "[s]ometimes there are very significant reasons why certain material is

not developed and explored. And that usually requires the-you know, the guiding hand

of an experienced lawyer." Report of Proceedings (RP) at 356. The trial court later read

to Mr. Gonzalez from an appellate decision explaining the responsibility of the lawyer to

decide tactics to be used at trial and the need for a lawyer to exercise his or her judgment,

which may mean forgoing argument on every point that may seem important to the client.




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No. 28618-5-111
State v. Gonzalez


       On the sixth day of what proved to be an eight-day trial, Mr. Gonzalez had a

physical altercation with Mr. Banda in the presence of the jury, after which the court

ordered restraints placed on Mr. Gonzalez. It entered findings and conclusions in support

of its decision to restrain him. Although the decision to shackle Mr. Gonzalez is not

assigned error on appeal, we reproduce the following portions of the court's findings

because they reflect its observations of the event that precipitated Mr. Banda's motion to

withdraw and his continuing representation.

       The court found, in part:

                                               I
             The trial began on Monday, September 21, 2009. The defendant
      wore no restraint devices. He sat in court at counsel table beside Adolfo
      Banda, his lawyer, and Marlene Goodman, the defense investigator. For
      strategic reasons the defense team chose to sit on the side of the counsel
      table nearest the jury. The defendant was well behaved in the presence of
      the jury during the first week of trial.
                                               II
             On Monday, September 28, 2009 at 3:50 p.m., a witness, Jennifer
      Sharp, had just finished testifYing. The defendant became upset. He threw
      his Styrofoam cup of water at Mr. Banda. The defendant stood up and
      turned over the table. Reflexively, Mr. Banda defended himself by pushing
      the defendant toward the jury box. The defendant banged his head on the
      jury box. Five officers subdued the defendant. The judge excused the jury
      from the courtroom.

                                            IV
              On Tuesday, September 29, 2009, the court, out of the presence of
      the jury, considered whether to restrain the defendant in the presence of the
      jury to prevent further courtroom outbursts, to prevent escape, and protect
      the safety of everyone in the courtroom, including the jury ....




                                              3

No. 28618-5-III
State v. Gonzalez


                                             V
              The court ruled that handcuffs and shackles would be placed on the
      defendant. The court asked the defendant to remain seated at all times in
      the jury's presence to prevent the restraints from being seen by the jury.
      The court advised the other trial participants to remain seated and not rise
      when the jury or the judge entered or exited the courtroom to prevent the
      restraints from becoming visible. The court moved the defense team to the
      opposite side of the counsel table to prevent the restraints from being seen
      by the jury.

                                        VIII
            The trial resumed. The defendant was well behaved in court on
      Tuesday.
                                           IX
              On Wednesday, September 30,2009, at 9:50 a.m., before the jury
      had been brought into the courtroom for the morning session, the
      defendant, who was consulting with his lawyer Mr. Banda, stood up and
      head butted Mr. Banda. Mr. Banda bled from over his ey~. Mr. Banda
      assured the court that the injury was minor. Mr. Banda received medical
      attention.
                                            X
              The court advised the defendant that further disruptive behavior by
       him would lead to his removal from the courtroom and he would give up
       his right to be present for the remainder of the trial.
                                           XI
             The court no longer a1l0wed Mr. Gonzalez to sit beside either Mr.
      Banda or Ms. Goodman. A corrections officer sat between Mr. Gonzalez
      and his defense team.
                                          XII
             Mr. Gonzalez's intent in misbehaving in the courtroom on
      September 28, 2009 and on September 30, 2009 was to undermine the trial.
      The court cannot allow a defendant to undermine a trial by purposefully
      misbehaving in the courtroom.
                                          XII[I]
              On Wednesday, October 1,2009, the trial resumed. There was no
       further misbehavior by the defendant.

Clerk's Papers at 4-6.


                                            4

No. 286l8-5-II1
State v. Gonzalez


       At the commencement of proceedings the morning after the initial altercation, Mr.

Banda moved to withdraw, stating he did not believe Mr. Gonzalez would receive an

effective defense if he remained his attorney "given what happened and what the jury saw

and the way I feel." RP at 827. Mr. Gonzalez joined in the request. The court denied the

motion. It observed, as it had earlier in the trial, that it was not unusual for criminal

defendants to second-guess their lawyers given what is at stake, and stated, "it seems to

me that despite the friction and disagreement, that a lot of progress was made in getting

through the witnesses and the evidence and that Mr. Banda was able to do what he could

to work with what he had to work with. And my observation is that there's no reason at

this point to stop the trial from going forward." Id. at 828.

       Mr. Banda then moved for a mistrial. In response to that motion, the court

questioned each juror individually, inquiring of each whether they were comfortable

continuing to serve in light of what had happened, whether they could continue to be fair

and impartial, and whether they could focus on the evidence, disregarding the prior day's

scuffle. Each of the jurors responded without qualification that they wished to continue

and could be fair. After completing the juror interviews, the court denied the motion for

mistrial.

       When the jurors returned to the courtroom, the trial court briefly discussed what

had happened the prior afternoon, the assurances of impartiality it had obtained from .




                                               5

No. 28618-5-III
State v. Gonzalez


them, and some security changes that had been made in the courtroom. It also instructed

the jury that

               [w]hat happened [yesterday afternoon] and those events are not
       evidence that you are to consider in determining whether the Defendant is
       guilty of the crime. Those events that happened yesterday afternoon are
       simply some of the many events that happen in a trial and happened in this
       trial but are separate from the evidence.

RP at 860.

       At the conclusion of trial the jury found Mr. Gonzalez guilty as charged. The trial

court sentenced him to 467 months' confinement, including the 120-month firearm

enhancement, and 36 months' community custody. He appeals.

                                       ANALYSIS

       Mr. Gonzalez makes three assignments of error. The first is to the trial court's

denial of Mr. Banda's motion to withdraw. The second and third are related challenges

to the court's instruction to the jury on how to answer the firearm enhancement special

verdict form and to then imposing the sentencing enhancement on the basis of that

instruction and verdict form. We address them in that order.

                                               I

       In challenging the trial court's denial of Mr. Banda's motion to withdraw, Mr.

Gonzalez relies upon two lines of authority.




                                               6

No. 28618-5-II1
State v. Gonzalez


       The first is case law addressing when an indigent defendant's dissatisfaction with

his appointed counsel warrants substitution of counsel, since Mr. Gonzalez joined in Mr.

Banda's request to tenninate the attorney-client relationship.

       A criminal defendant who is dissatisfied with appointed counsel must show good

cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable

conflict, or a complete breakdown in communication between the attorney and the

defendant. State v. Stenson, 132 Wn.2d 668,734,940 P.2d 1239 (1997) (citing Smith v.

Lockhart, 923 F.2d 1314,1320 (8th Cir. 1991)). "Attorney-client conflictsjustity the

grant of a substitution motion only when counsel and defendant are so at odds as to

prevent presentation of an adequate defense[;] [t]he general loss of confidence or trust

alone is not sufficient to substitute new counsel." ld. (citations omitted). Factors to be

considered in a decision to grant or deny a motion to substitute counsel are (1) the

reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3)

the effect of any substitution upon the scheduled proceedings. ld. (citing State v. Stark,

48 Wn. App. 245, 253, 738 P.2d 684 (1987)). Whether an indigent defendant's

dissatisfaction with his court appointed counsel is meritorious and justifies the

appointment of new counsel is a matter within the discretion of the trial court. State v.

DeWeese, 117 Wn.2d 369,375-76,816 P.2d 1 (1991).

       The trial court weighed all of these factors. The third-the effect on the scheduled

proceedings-strongly weighed against substitution, where the parties were nearing

                                              7

No. 28618-5-III
State v. Gonzalez


completion of trial in a two-and-a-half-year-old case. As to the second, the trial court had

previously told Mr. Gonzalez that Mr. Banda was experienced and it commented on its

perception of the progress that was being made when it denied Mr. Banda's motion to

withdraw. As to the first factor, Mr. Gonzalez had offered no persuasive reason for his

dissatisfaction with Mr. Banda. From the complaints he expressed to the judge, it

appears that Mr. Gonzalez wanted any point he perceived as operating in his favor

brought up early and often, without appreciating that some points are best reserved for

the right witness (e.g., a witness who will affirm the point rather than challenge it) or

even for closing argument. The trial court was well within its discretion in refusing to

allow Mr. Banda to withdraw on the basis of Mr. Gonzalez's dissatisfaction.

       The second line of authority relied upon by Mr. Gonzalez is case law establishing

that where a constitutional right to counsel exists, the Sixth Amendment provides a

correlative right to representation that is free from conflicts of interest. Wood v. Georgia,

450 U.S. 261,271, 101 S. Ct. 1097,67 L. Ed. 2d 220 (1981) (citing Cuyler v. Sullivan,

446 U.S. 335, 100 S. Ct. 1708,64 L. Ed. 2d 333 (1980)). A conflict of interest exists if

there is a significant risk that the representation of a client will be materially limited by a

personal interest of the lawyer. RPC 1.7(a)(2). Mr. Gonzalez argues that once he

attacked Mr. Banda, the lawyer had a conflict of interest by virtue of being "Gonzalez'

lawyer and his crime victim." Br. of Appellant at 12. Whether the circumstances




                                               8

No. 28618-5-III
State v. Gonzalez


demonstrate a conflict under ethical rules is a question of law, which is reviewed de

novo. State v. Regan, 143 Wn. App. 419, 428, 177 P.3d 783 (2008).

       "A defendant's misconduct toward his attorney does not necessarily create a

conflict of interest." State v. Fualaau, 155 Wn. App. 347, 360, 228 PJ4 771 (2010).

Fualaau involved facts similar to this case. During cross-examination of a witness, the

defendant became increasingly agitated and the court called a recess so that the defendant

and his lawyer could confer. Before the jurors could leave the courtroom, though, the

defendant lunged at his attorney, grabbed him with both arms, and said something about

needing his psychiatric medication. A corrections officer had to intervene and force the

defendant to release his lawyer. The lawyer moved for a mistrial and to withdraw from

representing his client. Both motions were denied.

       Division One of this court found no conflict of interest to have been created by the

defendant's assault, observing that "[o]ur Supreme Court has held that even where a

defendant 'has demonstrated the possibility that his attorney was representing conflicting

interests,' the defendant nevertheless 'failed to establish an actual conflict' where he did

not demonstrate how his attorney's conflict of interest affected his attorney's

performance at triaL" [d. at 362 (quoting State v. Dhaliwal, 150 Wn.2d 559,573, 79 PJd

432 (2003)). Although a defendant need not demonstrate that the outcome of the trial

would have been different but for the conflict, the defendant must show that some

plausible alternative defense strategy or tactic might have been pursued but was not and

                                              9

No. 28618-5-II1
State v. Gonzalez


that the alternative defense was inherently in conflict with or not undertaken due to the

attorney's other loyalties or interests. Id. (quoting Regan, 143 Wn. App. at 428).

       Here, Mr. Gonzalez contends that Mr. Banda's representation of him suffered after

the assault as evidenced by the fact that Mr. Banda did not call witnesses as planned. But

the record strongly indicates otherwise. Before the assault, Mr. Banda had represented to

the court that he did not anticipate calling witnesses unless needed for purposes of

rebuttal. After the assault, and at the conclusion of the State's case, Mr. Banda reported

to the court that based on Mr. Gonzalez's wishes, he expected the next morning to recall

two witnesses and playa recording of a phone call made by Mr. Gonzalez from j ail, even

though he firmly believed that the evidence was damaging to the defense case. The next

morning, however, Mr. Banda reported that he and Mr. Gonzalez had met with their

investigator the prior evening, discussed Mr. Banda's strategy further, and Mr. Gonzalez

had accepted Mr. Banda's advice. The record demonstrates, then, that Mr. Banda's

strategy continued to be guided by Mr. Gonzalez's best interest.

       Because Mr. Gonzalez has failed to demonstrate any actual conflict on the part of

Mr. Banda, we need not reach a further point made in Fualaau that would appear to have

equal application here: that a defendant can forfeit his Sixth Amendment right by

misconduct. Id. at 360 (citing State v. Mason, 160 Wn.2d 910,924, 162 PJd 396

(2007)). The trial court found that Mr. Gonzalez's intent in attacking Mr. Banda had

been to undermine the trial. Forfeiture by misconduct "is grounded in equity-the notion

                                             10 

No. 28618-5-III
State v. Gonzalez


that people cannot complain of the natural and generally intended consequences of their

actions." Mason, 160 Wn.2d at 926. A defendant may forfeit rights by threatening or

assaulting his or her attorney in the courtroom. Fualaau, 155 Wn. App. at 360 (citing

United States v. McLeod, 53 FJd 322,326 (11th Cir. 1995».

      The trial court did not err or abuse its discretion in denying the motion to

withdraw.

                                            II

      Mr. Gonzalez's remaining challenges are to the trial court's instruction to the jury

on how to complete the firearm enhancement special verdict form and its increase in his

sentence on the basis of that instruction and form. He relies in each case on the

nonunanimity rule for such verdicts articulated in State v. Bashaw, 169 Wn.2d 133,234

PJd 195 (2010) and State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003). After Mr.

Gonzalez filed his opening brief, the Washington Supreme Court overruled Bashaw and

Goldberg in State v. Guzman Nunez, 174 Wn.2d 707, 285 PJd 21 (2012) on the very

issue identified by Mr. Gonzalez for appeal. Guzman Nunez makes clear that the trial

court's instruction was correct and the firearm enhancement was properly included in

determining Mr. Gonzalez's sentence.




                                            11 

    No. 28618-5-111 

    State v. Gonzalez 



           Affinned.

           A majority of the panel has determined that this opinion will not be printed in the

    Washington Appellate Reports but it will be filed for public record pursuant to RCW

    2.06.040.



                                                 Sidd?J:Y?o ' (}
    WE CONCUR:



I
    ~,
    Korsmo, C.J.
                       ev

    Kulik, J.




                                                12 

