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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

STATE OF WASHINGTON,                                                       No. 42890 -3 - II


                                 Respondent,


       V.



JOHNNY MICHAEL GARCIA,                                              PUBLISHED OPINION




       MAXA, J. —    Johnny Garcia appeals his convictions for first degree assault, first degree

unlawful possession of a firearm, and unlawful possession of a controlled substance. At trial, he

stipulated that he had committed a " serious offense" for purposes of the unlawful possession of a


firearm charge to prevent the State from introducing evidence of his prior first degree robbery

conviction. However, the jury instructions inadvertently included an instruction stating that the

jury had to find that Garcia committed first degree robbery in order to convict on the first degree
unlawful possession of a firearm charge. The trial court replaced the erroneous instruction and

instructed the jury to disregard it. The trial court then denied Garcia' s motion for a mistrial. On

appeal, Garcia argues that ( 1) the trial court abused its discretion in denying his mistrial motion,

 2) the trial court improperly admitted " gang" evidence and the cumulative effect of this

evidence and the erroneous instruction deprived him of his right to a fair trial, and ( 3) on remand

we should appoint   different   counsel   because trial   counsel was   ineffective.
No. 42890 -3 - II



        We hold that the trial court did not abuse its discretion when it denied Garcia' s mistrial


motion because the jury' s temporary exposure to the improper instruction was not such a serious

trial irregularity that it could not be cured by an instruction to disregard. We also hold that

Garcia' s gang evidence and cumulative error claims fail because he failed to preserve for review

his challenge to the gang evidence. And because we do not remand, we do not address Garcia' s

request to appoint new trial counsel. Accordingly, we affirm Garcia' s convictions.

                                                  FACTS


         On April 23, 2011, Mark McCloud, his cousin Tara McCloud Shanta, and his friend


Phillip Noel were in the garage behind a friend' s house. Garcia arrived at the garage and argued

with Shanta. McCloud and Garcia also began to argue. Garcia shot McCloud in the abdomen


and arm, and then fled.


         Shortly after the shooting, Noel identified Garcia from a photo montage. Tacoma Police

Department officers later. located Garcia and arrested him. During a search incident to arrest, the

officers discovered methamphetamine in Garcia' s pants pocket. The State charged Garcia with


first degree assault under RCW 9A.36. 01 l( 1)( a), first degree unlawful possession of a firearm

under   RCW 9. 41. 040( 1)( a), and unlawful possession of methamphetamine under RCW


69. 50. 4013( 1).


         At trial, part of the State' s burden on the firearm charge was to prove that Garcia


previously had been   convicted of   a"   serious offense."   To satisfy this burden, the State sought to

admit Garcia' s judgment and sentence for a prior first degree robbery conviction. Garcia

objected and offered to stipulate that he had committed a serious offense without revealing that

the offense was first degree robbery. The trial court accepted the stipulation and instructed the

jam':

                                                      2
No. 42890 -3 - II


          This is   a stipulation of       the  The parties have agreed that the following
                                                 parties.

          evidence will be presented to .you: As of April 23rd, 2011, the defendant, Johnny
          Michael Garcia, had previously been convicted of a crime that is a serious offense
          and that makes him ineligible to possess a firearm as is required to be proven
          beyond a reasonable doubt by the State of Washington as an element of Count II,
          Unlawful Possession         of a   Firearm in the First Degree.              This is evidence that you
          will evaluate and weigh with all the other evidence.


7 Report of Proceedings ( RP) at 62 -63.


          During    trial, three   witnesses mentioned         the   word "   gang."    A Puyallup Tribal Police

Department officer said that when he was dispatched in response to Noel' s 911 call, he " knew

that there   was a garage    behind the house         at    2218 East 32nd that'       s a   known gang hangout."       1 RP


at 77. A Tacoma Police Department officer who arrived at the scene of Garcia' s arrest testified

that he   was a part of "[t] he     gang   unit."    4 RP at 7. Another Tacoma Police Department officer


testified that on the evening of Garcia' s arrest, he " was requested to meet with our gang unit

officers   regarding the    operation      they   were   involved    with."    6 RP at 63. And during closing

argument,     the State told the    jury   that Garcia " pull[ ed]      out a gun and        d[ id] the   gangster shoot."   8


RP at 9.


           Before closing argument, the trial court asked counsel if there were any objections to the

jury instructions. Neither the State nor defense counsel objected to the proposed instructions,

and the trial court distributed copies of its instructions to the jury. The trial court then read the

instructions.. Instruction 20, the " to convict" instruction for the first degree unlawful possession

of a firearm charge, read as follows:

                    To convict the defendant of the crime of unlawful possession of a firearm
           in the first degree, as charged in Count II, each of the following elements of the
           crime must be proved beyond a reasonable doubt:
                     1) That on or about the 23rd day of April, 2011, the defendant knowingly
           had a firearm in his possession or control;
                     2) That the defendant had previously been convicted of Robbery in the
           First Degree,    a serious offense; and
No. 42890 -3 -II



                       3) That the possession or control of the firearm occurred in the State of
              Washington.


Clerk'    s   Papers ( CP)   at   202 ( emphasis   added).   Apparently neither the trial court nor counsel had

noticed that the instruction specifically referenced first degree robbery as a " serious offense"

despite Garcia' s stipulation. 1

              During closing argument, the State projected an image of instruction 20 for the jury to

view. Despite what the instruction stated, the State did not mention robbery and told the jury

that it   needed    to find that Garcia had " been      convicted of a prior serious offense."   8 RP at 16.


              After finishing closing argument, the State informed the trial court that instruction 20 was

incorrect and asked that the court amend it to state " a serious offense" instead of "Robbery in the

First Degree."        8 RP at 21 -22. The State also told the trial court that it had noticed the incorrect


instruction and had tried to " sanitize [ the mistake] in the midst of the argument by using the

other statutory language and then pulling it off the overhead as quickly as I could without

looking too       obvious about      it." 8 RP at 22. Defense counsel said that he " didn' t catch this


either."       8 RP at 22. The parties agreed to replace the jury' s copy of instruction 20 with the

proper instruction.


              The trial court also determined that it had read the incorrect version of this instruction to


the jury. Accordingly, the parties agreed that in addition to providing the jury with a corrected

copy of the instruction, the trial court would read the proper instruction to the jury and inform the

jury that it "misspoke" the first time it read the instruction. 8 RP at 25.



1 The State explained that the version of instruction 20 submitted to the trial court had been
drafted before Garcia stipulated that he had been convicted of a serious offense. The State did
not amend the instruction after the trial court accepted the stipulation, and defense counsel did
not object to the instruction as the State originally submitted it.

                                                              11
No. 42890 -3 -II



        When the trial court collected the incorrect copies of instruction 20 from the jury, it

noticed that one juror had placed a star next to " Robbery" and another juror had underlined

 Robbery" and placed a question mark next to that portion of the instruction. Garcia then moved

for a mistrial. Garcia noted that the State also had projected the incorrect instruction " for several

minutes,"   to which the State responded,


        I don' t know that we actually had several minutes. Basically, I looked up, saw the
        error, [ and] as soon as I saw that I tried to engage the jury with eye contact to

        divert them away from it and tried as gracefully as possible to remove that from
        the overhead. But it certainly was on the overhead long enough to look up and

        see the robbery words on the instruction.

8 RP at 29 -30. The trial court denied the mistrial motion.


        The trial court gave the jury corrected copies of instruction 20, reread the correct version

of the instruction to the jury, and stated,

                   During closing argument, the Court realized that instruction 20 concerning
        Count II, the charge of Unlawful Possession of a Firearm in the First Degree, was
        the wrong instruction      for this   case.   You have now been given the correct
        instruction 20 concerning Count II. You should disregard the previous instruction
        20.


8RPat33.


        The jury convicted Garcia on all counts, and he appeals.

                                                ANALYSIS


I.      MISTRIAL MOTION


        Garcia stipulated that he had been convicted of a " serious offense" in order to prevent the


jury from hearing evidence that he had been convicted of first degree robbery. Nevertheless, the

jury temporarily was exposed to an instruction stating that in order to convict, it had to find that

Garcia was convicted of first degree robbery. Garcia argues that the trial court abused its

discretion in denying his mistrial motion based on this improper instruction. We disagree.

                                                      5
No. 42890 -3 -II



Temporarily exposing the jury to an improper jury instruction was not such a serious irregularity

that it could not be cured with a limiting instruction, and the trial court instructed the jury to

disregard the instruction because it was the wrong instruction for this case.

           A.      Standard of Review


           We review a trial court' s denial of a mistrial for abuse of discretion. State v. Emery, 174

Wn.2d 741, 765, 278 P. 3d 653 ( 2012). Our Supreme Court has stated that abuse of discretion


will    be found for       a   denial   of a mistrial   only     when " `    no reasonable judge would have reached the


same conclusion.' "             Emery,     174 Wn.2d        at   765 ( internal   quotation marks omitted) (    quoting State

v.   Hopson, 113 Wn.2d 273, 284, 778 P. 2d 1014 ( 1989)).                          A trial court' s denial of a mistrial


motion will be overturned only when there is a substantial likelihood that the error affected the

jury' s   verdict.    State     v.   Rodriguez, 146 Wn.2d 260, 269 -70, 45 P. 3d 541 ( 2002). A mistrial


should    be    ordered " `
                                only when the defendant has been so prejudiced that nothing short of a new

trial   can   insure that the defendant         will    be tried     fairly.' " Rodriguez, 146 Wn.2d at 270 ( quoting

State v. Mak, 105 Wn.2d 692, 701, 718 P. 2d 407 ( 1986)).


           B.     Hopson Factors


           We    examine        three   factors —the Hopson factors —when                determining whether an

irregularity     warrants a mistrial: " `(          1) its   seriousness; (     2) whether it involved cumulative


evidence; and (       3)   whether      the trial   court    properly instructed the     jury to   disregard it.' "   Emery,

174 Wn.2d        at   765 ( quoting Hopson, 113 Wn.2d                  at   284). These factors are considered with


deference to the trial court, State v. Perez -Valdez, 172 Wn.2d 808, 818, 265 P. 3d 853 ( 2011),


because the trial court is in the best position to discern prejudice. State v. Lewis, 130 Wn.2d 700,


707, 927 P. 2d 235 ( 1996).




                                                                       ON
No. 42890 -3 -II



                1.         Seriousness of the Irregularity

          The first Hopson factor is the           seriousness of      the   irregularity.   113 Wn.2d at 284. The


question is whether the irregularity was " serious enough to materially affect the outcome of the

trial."   Hopson, 113 Wn.2d at 286.


                      a.     Old ChiefRule

          The starting point in assessing the irregularity in this case is the United States Supreme

Court' s decision in Old Chiefv. United States, 519 U. S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574

 1997).    In Old Chief, the defendant offered to stipulate to a qualifying conviction, but over his

objection the trial court allowed the State to present evidence that the conviction was for an


assault that had caused serious bodily injury and that the defendant had been sentenced to five

years in prison. 519 U. S. at 174 -77. The Court held that if a defendant stipulates that he has a


prior felony conviction for purposes of an unlawful possession of firearm charge, the trial court

cannot allow the State to introduce into evidence the details of the conviction and punishment.


Old Chief, 519 U.S. at 191 -92. The Court reasoned that there is " no question" that " evidence of

the name or nature of the prior offense generally carries a risk of unfair prejudice to the

defendant."          Old Chief, 519 U.S. at. 185.

          We    relied on      Old   Chief in   State   v.   Johnson, 90 Wn.     App.   54, 950 P. 2d 981 ( 1998). We


held that the trial court abused its discretion when it failed to accept a stipulation that the


defendant had been convicted of a serious offense for the purposes of a first degree unlawful

possession of a firearm charge and instead allowed evidence of the defendant' s prior rape


conviction. Johnson, 90 Wn. App. at 63. We reasoned,

          Johnson' s proffered stipulation, along with an appropriate jury instruction, would
          have       proved    conclusively that Johnson          was a   felon. Thus, the probative value of
          the   conviction,          as   compared      to the   stipulation,    was    negligible.   The unfair


                                                                  VA
No. 42890 -3 -II


        prejudice     was    significant,    i.e.,   there was a significant risk that the jury would
        declare guilt on the two assault charges based upon an emotional response to the
        rape conviction rather than make a rational decision based upon the evidence.


Johnson, 90 Wn. App. at 63.

        Both Old Chiefand Johnson held that when a defendant offers to stipulate that he

committed a prior offense for the sole purpose of proving legal status, the trial court must accept

the stipulation if the name or nature of the offense raises a risk of a verdict tainted by improper

considerations.      Old   Chief, 519 U.S.     at    191 - 92; Johnson, 90 Wn.     App.   at   63. Garcia' s stipulation


that he had been convicted of a serious offense triggered application of this rule, and precluded


mention that his prior serious offense was for first degree robbery. As a result, there is no

dispute that giving a jury instruction suggesting that Garcia had been convicted of first degree

robbery was an irregularity that was " serious enough to materially affect the outcome of the

trial." Hopson, 113 Wn.2d at 286.


                b.      Young Analysis

        Division One of this court addressed a similar situation in State v. Young, 129 Wn. App.

468, 119 P. 3d 870 ( 2005).       Young was charged with aggravated first degree murder, first degree

assault, and   first degree    unlawful possession of a         firearm.    Young,   129 Wn.     App.   at   470 -71. As


in this case, the State was required to prove that the defendant had previously been convicted of a

serious offense as one of       the   elements of     the   unlawful possession of a      firearm   charge.     Young,

129 Wn. App. at 474. Young had a previous second degree assault conviction, but the parties

stipulated   that the   nature of   this   prior offense would not     be   presented   to the   jury. Young, 129

Wn. App. at 472. Nevertheless, when reading the charges, the trial court told the jury that the

defendant had been         convicted " ` of a serious offense ...      to   wit:   Second Degree Assault.' "
No. 42890 -3 -II



Young,    129 Wn.       App.    at   471 (   alteration   in   original).   Significantly, the trial court never told the

jury to   disregard the disclosure.             Young, 129 Wn. App. at 476.

          Division One reversed the trial court' s denial of Young' s mistrial motion, holding that

informing the jury of the assault conviction was " a serious irregularity that is inherently

prejudicial" because that conviction and two of the defendant' s current charges were for violent


offenses. Young, 129 Wn. App. at 476. Applying the reasoning in Old Chiefand Johnson to a

mistrial motion, the court stated,


               When the sole purpose of the evidence is to prove the element of the prior
          conviction, revealing a defendant' s prior offense is prejudicial in that it raises the
          risk that the verdict will be improperly based on considerations of the defendant' s
          propensity to commit the crime charged. This risk is especially great when the
          prior offense is similar to the current charged offense.
             No one can seriously dispute that disclosure that an accused has been
          previously convicted of second degree assault is not a serious irregularity that is
          inherently     prejudicial.         Here, like the prior conviction for second degree assault,
          two    of    the   current    charges,     are   also    violent    felonies— murder and first degree
          assault.




Young,    129 Wn.       App.    at   475 -76 ( footnotes       omitted).     The court also noted that although the


errors in Old Chief and Johnson related to the admission of evidence and not a statement from

the   court,   there   was no    distinction between the            prejudice engendered     in the two   contexts.   Young,

129 Wn. App. at 476.

                  c.         Effect of Erroneous Instruction


          The facts here are somewhat similar to those in Young. To prove the charge of first

degree unlawful possession of a firearm, the State had to prove that Garcia had been convicted of

a serious offense.           RCW 9. 41. 040( 1)(     a).   Although the parties stipulated that Garcia had been


convicted of a serious offense, the trial court mistakenly instructed the jury that it had to find that

 Garcia had been convicted of first degree robbery. The jury was exposed to the erroneous


                                                                     9
No. 42890 -3 - II



instruction   on   three   occasions: (   1) when the trial court read the incorrect instruction to the jury,

 2) when the trial court provided the jury with incorrect copies of the instruction, and ( 3) when

the State projected the incorrect instruction for the jury to view during closing argument.

Further, two jurors had noted the robbery reference on their copies of the incorrect instruction.

        However, the irregularity in this case is less serious than that in Young and the cases on

which it relies. Most significantly, there was no direct evidence linking Garcia to the first degree

robbery in the incorrect instruction. In Young, the trial court read the charges against the

defendant directly from the information which expressly stated that the defendant had been

convicted of second        degree   assault.    129 Wn.   App.   471.   Similarly, in both Old Chief and

Johnson, the trial    court allowed       the   actual convictions   into   evidence.   Old Chief, 519 U.S. at 177;

Johnson, 90 Wn. App. at 60. In those cases, the jury explicitly was told that the defendant had

been convicted of specific crimes.


        By contrast, the improper instruction in this case told the jury that in order to convict

Garcia of first degree unlawful firearm possession, it had to find that he previously had been

convicted of first degree robbery. The instruction did not affirmatively state that Garcia had in

fact been convicted of that crime. And because of the stipulation, the State had not submitted


any evidence that Garcia had been convicted of robbery. The absence of any direct connection

between Garcia and a first degree robbery conviction mitigated the effect of the erroneous

instruction.


         Arguably, the instruction did at least imply that Garcia had been convicted of second

degree robbery. But because the instruction did not state that Garcia actually had been convicted

of robbery and there was no evidence provided at trial of any robbery conviction, the jury

reasonably could have believed that the trial court mistakenly included an instruction unrelated

                                                            10
to Garcia' s case. This is especially true in light of the trial court' s express instruction telling the

jury that   the   original     instruction    was    the " wrong instruction for this     case."    8 RP at 33.


          Garcia emphasizes that one juror placed a star next to " Robbery" and another underlined

 Robbery" and placed a question mark next to that portion of the incorrect instruction 20.

However, these marks do not compel a conclusion that this instruction prejudiced the jury. The

jurors simply may have been confused because there had been no evidence or argument

presented at trial indicating that Garcia had been convicted of robbery.

          Because there was no direct connection between Garcia and the crime referenced in the


erroneous instruction, we hold that the jury' s exposure to the first degree robbery reference was

less serious than the type of irregularities that trigger a mistrial.


             2.       Cumulative Evidence


          The second Hopson factor is whether the trial irregularity involved cumulative evidence.

If the   evidence was cumulative, a mistrial               may      not   be necessary. 113 Wn.2d at 284. Here, there


was no evidence other than the erroneously admitted jury instruction that Garcia had been

convicted of first degree robbery. As a result, this factor does not provide meaningful support

for either the trial court' s denial of a mistrial or Garcia' s challenge to that ruling on appeal.

             3.       Curative Instruction


          The third Hopson factor is whether the trial court properly instructed the jury to disregard

the   irregularity.    113 Wn.2d        at   284. Our Supreme Court has            restated   this factor   as " `   whether the



irregularity      could   be   cured   by    an   instruction.' "    Perez- Valdez, 172 Wn.2d at 818 ( quoting State

v.   Post, 118 Wn.2d 596, 620, 826 P. 2d 172, 837 P. 2d 599 ( 1992)).                     In other words, depending on

the seriousness of the irregularity and whether the information provided to the jury was

cumulative, a proper instruction may or may not be sufficient to avoid a mistrial.

                                                                    11
No. 42890 -3 - II



           The absence of a curative instruction was significant in Young. In that case, the trial

court did not specifically address the unintentional disclosure with the jury and never told the

jury   to disregard the disclosure.      Young, 129 Wn. App. at 476. Instead, the court merely gave a

standard instruction telling the jury not to consider the contents of the information as proof of the

crimes charged. Young, 129 Wn. App. at 476 -77. The court found this instruction insufficient,

stating,


           While it is presumed that juries follow the instructions of the court, an instruction
           that fails to expressly direct the jury to disregard evidence, particularly where, as
           here, the instruction does not directly address the specific evidence at is
           cannot logically be said to remove the prejudicial impression created by
           revelation of identical other acts.


Young, 129 Wn. App. at 477.

           Here, the trial court took immediate steps to remedy the irregularity. After the State

brought the improper jury instruction to the trial court' s attention, the trial court removed the

incorrect instruction from the jury' s instruction packets and replaced it with the correct version.

The trial court then reread the correct version of the instruction. Finally, the trial court instructed

the jury:

             During closing argument, the Court realized that instruction 20 concerning Count
             II, the charge of Unlawful Possession of a Firearm in the First Degree, was the
             wrong instruction for this   case.   You have now been given the correct instruction
             20 concerning Count II. You should disregard the previous instruction 20.

8 RP    at   33 (   emphasis added).   This instruction was effective. The trial court not only directed

the jury to disregard the incorrect instruction, but also implied that the incorrect instruction did

not even relate to Garcia' s case.


             Nevertheless, Garcia argues that the trial court should have specifically referenced first

degree robbery in the curative instruction to disregard. In Young, the appellate court disapproved


                                                        12
No. 42890 -3 -II



of a generic instruction to the jury not to consider the information' s contents as proof of the

crimes charged.      129 Wn. App. at 477. The court contrasted the trial court' s deficient curative

instruction in that case with that in Hopson, in which the trial court specifically instructed the

jury to disregard an improper witness statement. Young, 129 Wn. App. at 477 ( citing Hopson,

113 Wn.2d at 284).


         We do not interpret Young as requiring a " proper" instruction to specifically mention

details of the prior conviction. In many cases, specifically mentioning the prior conviction

would have the effect of reemphasizing the irregularity and causing more prejudice to the

defendant. In fact, here the parties agreed that specifically telling the jury to disregard the

 robbery" portion of the instruction would have drawn unnecessary attention to the error.

         Accordingly, we hold that the trial court' s response to the irregularity and the instruction

to disregard it was proper.


         C.      Consideration   of   Hopson Factors —Effect on Verdict


         The Hopson factors are designed to guide determination of the ultimate question in the

review of the denial of a mistrial motion: whether there is a substantial likelihood that the error


affected the jury' s verdict. Rodriguez, 146 Wn.2d at 269 -70. Application of these factors

requires a balancing approach; they cannot be viewed in isolation from each other. The

seriousness of the irregularity (which possibly could be reduced if the evidence was cumulative)

must be weighed against the likelihood that the trial court' s limiting instruction will eliminate

any   prejudice.   As the   court noted   in Hopson, " in certain situations curative instructions cannot


remove    the   prejudicial effect of evidence of other crimes."    113 Wn.2d at 284. On the other


hand, for less serious irregularities a proper instruction may provide an effective cure. We must

decide whether, based on the seriousness of the irregularity and whether the information

                                                       13
No. 42890 -3 -I1



provided to the jury was cumulative, the irregularity was " so inherently prejudicial that it

rendered    the      curative   instruction ineffective      and necessitated a new         trial."   Perez- Valdez, 172


Wn.2d at 819.


          We cannot say that there is a substantial likelihood that the irregularity here affected the

jury' s verdict. As discussed above, the absence of any connection between Garcia and first

degree robbery suggests that the irregularity in this case is on the less serious end of the spectrum

    certainly less serious than in Young, Old Chief, and Johnson. And the trial court provided an

effective instruction that not only told the jurors to disregard the incorrect instruction but also

encouraged them to believe that the reference to robbery did not even involve Garcia' s case. We

presume that the jury followed the trial court' s instructions. State v Kirkman, 159 Wn.2d 918,

928, 155 P. 3d 125 ( 2007).

          We also are cognizant that application of the Hopson factors must occur in the context of

deference to the trial          court, who " `    having seen and heard the proceedings, is in a better position

to   evaluate and adjudge          than     can we   from   a cold, printed record.' "      Perez- Valdez, 172 Wn.2d at


819 ( internal       quotation marks omitted) (         quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d

221 ( 2006)).         The record here does not support a conclusion that no reasonable judge would have


denied the mistrial motion. Emery, 174 Wn.2d at 765.

           Finally,       application of     the Hopson factors     means   that    not   every   irregularity     in trial —even


a    relatively   serious one — triggers a mistrial.           Our Supreme Court has          noted    that " `[   a] defendant


is   entitled   to   a   fair trial but   not a perfect one.' "   State v. Davis, 175 Wn.2d 287, 345, 290 P. 3d 43


 2012) ( internal          quotation marks omitted) ( quoting          Brown   v.   United States, 411 U. S. 22' ), 231,


93 S. Ct. 1515, 36 L. Ed. 2d 208 ( 1973)), cent. denied, No. 12 -9685, 2013 WL 1490614 ( U.S.




                                                                  14
No. 42890 -3 -II



Wash. Oct. 7, 2013). 2 Garcia received a fair trial despite the jury' s temporary exposure to the

incorrect instruction.


           We hold that exposing the jury to the incorrect instruction was not so serious that the trial

court' s instruction could not cure any potential prejudice, and that the trial court' s instruction to

disregard the incorrect instruction was effective in limiting any prejudice to Garcia.

Accordingly, we hold that the trial court did not abuse its discretion when it denied Garcia' s

mistrial motion.




II. "       GANG EVIDENCE"


           Garcia argues .that the cumulative effect of the erroneous jury instruction and prejudicial

 gang evidence" deprived him of a fair trial and requires reversal. We disagree.

           At trial, a tribal police officer testified that the place where Garcia was shot was a


 known gang hangout."                1 RP   at   77. Two   other police officers referenced a "   gang    unit."   4 RP at


7; 6 RP at 63.       And during closing argument, the State told the jury that Garcia " pull[ ed] out a

gun and     d[ id] the        gangster shoot,    boom, boom, boom." 8 RP at 9.


           Garcia argues that the presentation of gang evidence was highly prejudicial and should

not have been allowed at trial. However, he did not object to any of this testimony or argument

below. Under RAP 2. 5( a), we generally will not review claims raised for the first time on

appeal, unless the party claiming the error can show the presence of an exception to that rule,

such as a manifest error affecting a constitutional right. State v. Robinson, 171 Wn.2d 292, 304,

253 P. 3d 84 ( 2011). '          Garcia asserts only an evidentiary issue related to the admission of gang

evidence and does not assert any constitutional error. See State v. Gresham, 173 Wn.2d 405,

2
    See   also   State   v.   Paumier, 176 Wn.2d 29, 44, 288 P. 3d 1126 ( 2012) ( Wiggins,
                                                                                       J., dissenting)
    the court' s " task is not to determine whether the defendant received a trial completely free of
defects, but to determine            whether     the defendant   received a   fair trial ") (emphasis   omitted).

                                                                 15
No. 42890 -3 - II



433, 269 P. 3d 207 ( 2012) ( evidentiary       errors under     ER 404( b)   are not constitutional errors).   And


he does not provide argument or legal authority supporting our review on any other ground we

could address    for the first time   on appeal under     RAP 2. 5(   a).   Because Garcia has failed to


preserve this issue for review, we need not consider whether the trial court should have excluded

this evidence.



        Further, admission of the gang evidence cannot be the basis for a cumulative error

argument. Even where several errors standing alone do not warrant reversal, the cumulative

error doctrine requires reversal when the combined effect of the errors denied the defendant a

fair trial. Davis, 175 Wn.2d     at   345.    Because we hold that Garcia failed to preserve the alleged


error regarding gang evidence, this. doctrine does not apply. See State v. Embry, 171 Wn. App.

714, 766, 287 P. 3d 648 ( 2012) ( failure to preserve claimed errors for appeal precluded


defendant'   s cumulative error claim        based   on alleged unpreserved errors),     review denied, 177


Wn.2d 1005 ( 2013).


III.    APPOINTMENT OF NEW COUNSEL


         Garcia argues that " on remand, new counsel should be appointed based on counsel' s


ineffectiveness" for failing to offer to stipulate to the serious offense before trial and for failing

to object to the improper jury instruction. Br. of Appellant at 29. Because we do not remand, we

need not address this argument.




                                                           16
No42890 - -II
         3




       We affirm Garcia' s convictions.




                                           Maxa, J.




                                          17
