                                                                                                          F`1' ED
                                                                                                    COURT OF APPEALS
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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II


STATE OF WASHINGTON,                                                       No. 42603 -0 -II


                                 Respondent,


       V.



MARSELE KENITH HENDERSON,                                           PUBLISHED OPINION




        WORSWICK, C. J. —    Marsele Kenith Henderson appeals his conviction for first degree

murder with extreme indifference to human life while armed with a firearm. Henderson argues

that the trial court erred by refusing to instruct the jury on the lesser included offenses of first

degree manslaughter and second degree manslaughter. We reverse and remand for a new trial

because Henderson was entitled to a lesser included instruction for first degree manslaughter.

                                                     FACTS


A.      The Shootings


        Philip Johnson and Henderson were Hilltop Crip gang members and close friends.
Johnson told Henderson that he was going to a party at the Boys' and Girls' Club (BGC).

Henderson told Johnson     not   to   attend   the BGC party because it   was   too   close   to the 96th Street
No. 42603 -0 -II



Murderville Folk gang' s territory. Johnson went to the BGC party despite Henderson' s warning.

Johnson was shot at the BGC party and later died.

        Henderson, Lewis Davis, and D' Orman McClarron immediately went to the BGC party

to check on Johnson. After Henderson, Davis, and McClarron learned that Johnson had been

taken to the hospital, they went to the hospital.

        On the same night, there was another house party on South Yakima Street in Tacoma.

The Yakima Street party took place in a house with a front yard that bordered a street. Attendees

had spilled out from the house and formed a large crowd in the front yard. Many people

associated with the 96th Street Murderville Folk gang were present. Victor Schwenke worked as

security for the party.

        Henderson and McClarron left the hospital and went to the Yakima Street party. While

Henderson and McClarron were in the street that ran in front of the house, shots were fired from

that street, through the front yard, and toward the house. Schwenke was shot and killed.

        The State charged Henderson with first degree murder with an extreme indifference to

human life while armed with a firearm, alleging that Henderson shot-Schwenke when shooting-

into the Yakima Street party.'

        The State argued at trial that Henderson was a Hilltop Crip and that he shot

indiscriminately into the Yakima Street party with the motive of retaliating against the 96th
 Street Murderville Folk gang for the shooting      of   Johnson ( a fellow     Hilltop Crip).   Henderson


 argued at trial that McClarron, also a Hilltop Crip, was the shooter.

  RCW 9A.32. 030( 1)( b).   The State also charged Henderson with one count of second degree
 unlawful possession of a   firearm   under   RCW 9. 41. 040( 2)(   a)(   i). This charge is not relevant to
 this appeal.




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B.        Lesser Included Jury Instructions

          Henderson asked the trial court for lesser included jury instructions for first degree

manslaughter and second degree manslaughter. At two points during trial, the trial court denied

Henderson' s requests to give the lesser included instructions.


          First, during the defense case, Henderson asked the trial court for lesser included

instructions for first degree manslaughter and second degree manslaughter. The trial court

declined, citing State         v.   Pettus, 89 Wn.   App.   688, 951 P. 2d 284 ( 1998), and State v. Pastrana, 94


Wn.   App.   463, 972 P. 2d 557 ( 1999).           The trial court ruled preliminarily that " depending upon the

rest of the case, and it appears to me that, based on both the Pettus and Pastrana case, that you

                               lesser        Manslaughter 1     and   Manslaughter 2 instruction."   10 Report of
are not   going to     get a            of



Proceedings ( RP) at 1128.


          Second, after the close of evidence, Henderson took exception to the trial court' s refusal


to instruct the jury on these two lesser manslaughter offenses. The trial court finalized its

preliminary decision, stating that "[            b] ased on our discussions the other day, I don' t think lesser-
                                                                                                              2
includeds- of Manslaughter First or Second Degree apply based                     on   applying the Workman       test



and   the facts   of   this   case."    11 - 13 RP at 1191. .


          The jury found Henderson guilty of first degree murder with extreme. indifference.
Henderson appeals.




 2 State v. Workman, 90 Wn.2d 443, 584 P. 2d 382 ( 1978).



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                                                            ANALYSIS


                                              MANSLAUGHTER INSTRUCTIONS


          Henderson argues that the trial court erred when it denied his request for lesser included


jury instructions for first degree manslaughter and second degree manslaughter. We hold that

the trial court erred in refusing to give the jury the lesser included instruction for first degree

manslaughter but that it did not err in refusing to give the jury the lesser included instruction for

second degree manslaughter.


A.        The Workman Test


          The     right   to a lesser included instruction        is statutory. RCW 10. 61. 006       states, "[   T] he


defendant may be found guilty of an offense the commission of which is necessarily included
within    that   with which     he   or she   is   charged   in the indictment   or   information."   The remedy for

failure to give a lesser included instruction when one is warranted is reversal. State v. Ginn, 128

Wn.   App.      872, 878, 117 P. 3d 1155 ( 2005).             A defendant is entitled to an instruction of a lesser

included offense if the two prongs of the State v. Workman test are met. 90 Wn.2d 443, 447 -48,

584 P. 2d 382 ( 1978).


              First, under the Workman test' s legal prong, each element of the lesser offense must be a

necessary element of the charged offense. State v. Berlin, 133 Wn.2d 541, 545 -46, 947 P. 2d 700
  1997) ( citing Workman, 90 Wn.2d                  at   44748). Here, the State concedes that the Workman test' s


 legal prong was satisfied.

              Second, under the factual prong, the evidence presented in the case must support an

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

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



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No. 42603 -0 -II



factual prong, we view the evidence that purports to support a requested instruction in the light

most favorable to the party who requested the instruction at trial. Fernandez- Medina, 141

Wn.2d at 455 -56.


            We review a trial court' s determination of the factual prong of the Workman test for an

abuse of     discretion. State      v.   LaPlant, 157 Wn.       App.   685, 687, 239 P. 3d 366 ( 2010). A trial court


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

grounds or untenable reasons.              State   v.   Neal, 144 Wn.2d 600, 609, 30 P. 3d 1255 ( 2001).            A trial


court' s decision is based on untenable reasons if it is based on an incorrect legal standard. State

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


            To determine whether the factual prong is satisfied, we determine whether the facts

affirmatively established guilt of the lesser offense, to the exclusion of the greater offense. State

v.         Cervantes, 141 Wn.2d 468, 481, 6 P. 3d 1160 ( 2000); Berlin, 133 Wn.2d
     Perez -                                                                                              at   551. " If the


evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit

him    of   the   greater, a   lesser included     offense   instruction   should   be   given."   Berlin, 133 Wn.2d at


551:_   The factual test requires that the evidence raise a possible inference that the defendant

committed the lesser offense, but did not commit the charged offense. Fernandez- Medina, 141

Wn.2d at 455.


B.          First Degree Murder By Extreme Indifference Versus Manslaughter

            To properly analyze the question here, it is necessary to examine the similarities and

differences among first degree murder by extreme indifference, first degree. manslaughter, and

 second degree manslaughter. First degree murder by extreme indifference requires proof that the

 defendant "(       1) acted with extreme indifference, an aggravated form of recklessness, which (2)




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created a grave risk of     death to   others, and ( 3)   caused   the death   of a person."   State v. Yarbrough,


151   Wn. App. 66,      82, 210 P. 3d 1029 ( 2009); RCW 9A. 32. 030( 1)( b). First degree murder


requires a very high degree of risk, which " elevates the level of recklessness to an extreme level,

thus ` manifesting     an extreme   indifference to human life. "' State v. Dunbar, 117 Wn.2d 587,.


594, 817 P. 2d 1360 ( 199 1) (    quoting RCW 9A.32. 03 0( 1)( b)).

         First degree manslaughter requires proof that the defendant recklessly caused the death of

another.    RCW 9A.32. 060( 1)(     a).   A person " acts recklessly when he or she knows of and

disregards a substantial risk that a wrongful act may occur and his or her disregard of such

substantial risk is a gross deviation from conduct that a reasonable person would exercise in the

same situation."       RCW 9A.08. 01 0( 1)( c).


         Second degree manslaughter requires proof that the defendant, with criminal negligence,

caused   the death     of another person.    RCW 9A.32. 070( 1).       A person " acts with criminal


negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur


and his or her failure to be aware of suqh substantial risk constitutes a gross deviation from the

standard of care that a reasonable person would            exercise   in the -
                                                                             same    situation."   RCW


9A.08. 01 0( 1)( d).


C.         The Pettus and Pastrana Cases


         Two Court of Appeals opinions have applied the factual prong of the Workman test to

uphold a trial court' s denial of a lesser included instruction for first degree manslaughter to a

defendant accused of first degree murder with extreme indifference. These cases are Pettus and

Pastrana. These are the two cases the State argued to the trial court here.




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          In Pettus, the defendant was convicted of first degree murder by extreme indifference

                                the             his   victim and      firing   at   it. 89 Wn.       App.     at   691 -92. " The first
after   driving   alongside            car of




shot hit [the victim' s car] in front of the rear tire. The second shot hit [the victim] in the left arm

and penetrated his chest. Two other shots passed nearby or through the windshield and exited

through the   plastic rear window."              Pettus, 89 Wn. App. at 692. The trial court concluded,

          The evidence of the force of a. 357 magnum, the time of day, the residential
          neighborhood, and Pettus' s admitted inability to control the deadly weapon,
          particularly from a moving vehicle, does not support an inference that Pettus' s
          conduct presented a substantial risk of some wrongful act instead of a " grave risk
          of death."


Pettus, 89 Wn. App. at 700 ( emphasis added).

          In Pastrana, the defendant was driving on the interstate when another car cut in front of

him:


          Pastrana      retrieved a gun         from behind the .seat[,]            ...      rolled down the passenger

          window and fired one shot out the window, directly in front of [the passenger' s]
          face.


                    After he fired the                gun, [   the   passenger]           asked . Pastrana what he was
                           Pastrana         replied    that he       was     aiming for       a     tire. [    The passenger]
          thinking..
          mentioned that " it' s kind of hard to be aiming at anything when you are going
          down the freeway that fast."

94 Wn.                  469. In Pastrana, this                                Pettus to     state   that "` [ t]he    factual prong is
           App.    at                                    court quoted



not satisfied because the evidence showed much more than mere reckless conducta disregard

 of a substantial risk of           causing   a wrongful act."'             94 Wn.   App.    at   471 (   emphasis added) (      quoting


Pettus, 89 Wn.          App.   at   700).    This court in Pastrana used the quote from Pettus to justify

 holding that manslaughter was not a required lesser included instruction for first degree murder
 with extreme indifference under the Workman test' s factual prong. 94 Wn. App. at 471 -72.




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No. 42603 -0 -II


        Six years after Pettus and Pastrana, our Supreme Court decided State v. Gamble, 154

Wn.2d 457, 114 P. 3d 646 ( 2005).              In Gamble, our Supreme Court changed the State' s burden to


prove manslaughter, requiring the State to show that the defendant knew of and disregarded a

substantial risk that a homicide may occur, as opposed to merely a substantial risk that a

wrongful act     may   occur.   154 Wn.2d at 467 -68. The attorneys here did not bring Gamble to the

trial court' s attention.


D.      Henderson' s Case


        Because the State conceded that the Workman test' s legal prong was satisfied, the only

question before us is whether the Workman test' s factual prong was satisfied for ( 1) first degree

manslaughter or ( 2) second degree manslaughter.


         1.    First Degree Manslaughter


         Henderson argues that Gamble' s narrowing of first degree manslaughter' s recklessness

element—       requiring that the defendant disregard a substantial risk of homicide, rather than just a
substantial risk of a wrongful act —             brings manslaughter closer to first degree murder with


extreme indifference such as to give Henderson a right to a first degree manslaughter instruction

under the Workman test' s factual prong. The State argues that in spite of Gamble, we should

continue to follow Pettus and Pastrana and hold that Henderson has no right to a first degree

manslaughter instruction. We agree with Henderson.


         The analyses in Pettus and Pastrana are no longer helpful to a trial court ruling on

whether the factual prong of the Workman test has been met for a first degree manslaughter jury

 instruction. This is because Pettus and Pastrana explicitly justified their holdings on the

 grounds      that shooting   guns   in   a   high -
                                                   risk   manner cannot constitute a substantial   disregard   of
No. 42603 -0 -II



some wrongful act, which is no longer the standard following Gamble. Pettus, 89 Wn. App. at

700; Pastrana, 94 Wn. App. at 471. Pettus and Pastrana do not stand for the proposition that

such acts cannot constitute a reckless disregard of homicide which is the definition of

recklessness following Gamble.

          With Gamble' s definition of recklessness in mind, we now turn to Henderson' s case. A

lesser included instruction is required where the jury could rationally convict the defendant of the

lesser offense, while at the same time acquitting on the charged offense. Berlin, 133 Wn.2d at

551.    Viewing the evidence in the light most favorable to Henderson, we hold that a rational jury
could find that Henderson shot into a crowd but that he did so with a disregard for a substantial

risk of homicide, rather than an extreme indifference that caused a grave risk of death. A

rational jury could convict Henderson of first degree manslaughter, while acquitting him on first
degree murder with extreme indifference. Thus, the trial court applied the incorrect legal

standard from Pettus and Pastrana. Based on this error, we reverse and remand for a new trial.

Ginn, 128 Wn. App. at 878.

          I Second-Degree Manslaughter


          Henderson argues that Gamble' s narrowing of first degree manslaughter' s recklessness

 element required the trial court to give Henderson a second degree manslaughter instruction. We

 disagree.


           Gamble and State v. Peters both state that first degree manslaughter' s recklessness

 element requires demonstrating that the defendant committed an act with a substantial disregard


 3
     We address this issue as it is likely to recur on retrial. See State v. Pierce, 169 Wn. App. 533,
 538, 280 P. 3d 1158, review denied, 175 Wn.2d 1025 ( 2012).




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No. 42603 -0 -II


for the   risk of a      homicide.    154 Wn.2d at 467 -68; 163 Wn. App. 836, 837 -38, 261 P. 3d 199

 2011).       However, the cases do not address whether second degree manslaughter' s criminal


negligence element requires demonstrating that the defendant failed to be aware of a substantial

risk   that   a   homicide ( rather than " a   wrongful act ")    may occur. See Gamble, 154 Wn.2d at 467-

68; Peters, 163 Wn. App. at 837 -38. But by applying Gamble' s reasoning, it is logical to assume

that criminal negligence for manslaughter would require the State to prove that a defendant failed

to be   aware of a substantial risk       that   a   homicide ( rather than " a   wrongful act ")   may occur. We

assume without deciding that the mens rea of criminal negligence requires the failure to be aware

of a substantial risk that a homicide may occur, because it does not change the result.

          A lesser included instruction is required where the jury could rationally convict the

defendant of the lesser offense, while at the same time acquitting on the charged offense. Berlin,

133 Wn.2d          at   551.   When one shoots randomly into a crowd, it is obvious that homicide is a

possible risk. Thus, no rational jury could possibly conclude that Henderson shot a gun into a

crowd while failing to be aware that a homicide could occur. Rather, a rational jury that finds

that Henderson shot a gun into a crowd must necessarily find that he displayed, at the very least, -

a conscious disregard of a substantial risk of homicide. Thus, a rational jury could not find on

these facts that Henderson committed only second degree manslaughter by shooting randomly

into a crowd. For this reason, the trial court did not abuse its discretion in refusing to give the
                                                                              4
lesser included instruction for          second      degree   manslaughter.




4 Henderson also argues that the trial court erred by admitting gang evidence at trial without
 conducting an ER 404( b) analysis. While it is the best practice to engage in such an ER 404(b)
 analysis, including a balancing of the evidence' s probative value against its potential to cause
 undue prejudice, we do not consider this issue. Because we reverse Henderson' s conviction and
 remand for a new trial, this evidentiary issue is now moot.

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No. 42603 -0 -II



       We reverse and remand for a new trial.




                                                     Worswick,
We concur:




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