                                                                         FILED
                                                                      AUGUST 30, 2016
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 31701-3-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JOHN ANTHONY CASTRO,                          )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, C.J. - The trial court, after a jury trial, convicted John Castro of second

degree murder, among other charges. Castro assigns three errors on appeal. First, the

trial court erred by denying his motion for a mistrial after Detective Kip Hollenbeck

violated the trial court's order to exclude testimony of gangs. Second, the trial court

erred by barring his wife from the courtroom during trial when the State never called her

to testify. Third, the trial court erred when imposing a life sentence on the assumption

that he was a persistent offender. We reject Castro's first two assignments of error, but

agree that the evidence did not support a life sentence. We remand for resentencing.

                                          FACTS

       Defendant John Castro pied guilty, in 2008, to conspiracy to deliver a controlled
No. 31701-3-111
State v. Castro


substance with a deadly weapon enhancement. The felony judgment did not classify the

crime as a particular class of felony.

         Defendant John Castro performs rap music. On the evening of Friday, November

26, 2011, Castro attended a rap concert at the Ichiban restaurant in Spokane. A group

from Moses Lake, including members of a rap band intending to perform that evening,

also attended the concert. The Moses Lake entourage included the murder victim, Jose

Solis.

         During the course of the rap music concert, John Castro and Stafone Fuentes

fought in the entrance to Ichiban. Restaurant security quickly ended the fisticuffs, and

the restaurant terminated the rap concert.

         Upon the closing of the rap concert, many concertgoers, including John Castro and

Jose Solis, went to the Quality Inn, a nearby hotel. A fight among a dozen men broke out

on the fourth floor of the hotel. The men included John Castro and Jose Solis. Tera

Quarles observed the fight. A handful of men came downstairs from an upper floor and

joined the chaos. Objects flew through the air. Quarles saw Castro with a gun, saw him

lift and point the gun, and saw him shoot Solis. Shamela Freeman saw Castro with a gun,

although she saw no shot. After the shot, Tera Quarles grabbed Castro and asked him

why he shot Solis. Jose Solis died from a gunshot wound.




                                             2
I

I   No. 31701-3-111
    State v. Castro
I
I                                          PROCEDURE

           The State of Washington charged John Castro with murder in the second degree,

    two counts of second degree assault, riot, and first degree unlawful possession of a

    firearm. The State brought an ER 404(b) motion to submit evidence of Castro's gang

    affiliation and criminal history to the jury. The State argued Castro's gang association

    served as his motive to participate in the hotel melee. The trial court rejected the

    argument and ordered that "all gang evidence is excluded from the trial." Clerk's Papers

    (CP) at 265. The court also directed the State to "instruct the witnesses not to mention

    gang membership or evidence." CP at 265.

           At the request of the State, the trial court excluded all potential witnesses from

    inside the courtroom during trial. The ruling barred John Castro's wife, Dyneshia Sleep,

    from the courtroom during testimony. John Castro complained to the court about the

    exclusion of his wife. The State responded that it would prefer to avoid calling Sleep as a

    witness. The State, nonetheless, argued that it subpoenaed Sleep as a witness because she

    was at the Quality Inn when the shooting occurred and she might testify to facts essential

    to the State proving its case. The trial court maintained its ruling that prevented Sleep

    from viewing the trial. Sleep was not called to testify during trial.

           During trial, Detective Kip Hollenbeck testified for the State. During cross-

    examination, Hollenbeck testified, in part:

                  Q. No. No. Detective Hollenbeck, you've heard some testimony

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No. 31701-3-111
State v. Castro


      about showing people photo montages. When you showed all these people
      photo montages, did you ever once say to them that the person may not be
      in the photograph?
              A. Yes. There's a warning at the bottom of the form, and each time
      I show the lineup I read that warning [to] them. That warning explains that
      this person may or may not be included in this photo lineup.
              Q. Okay. And then you heard Mr. Powell testify, and I asked him
      some questions about this. Mr. Powell actually identified Jason St. Mark in
      a photograph.
              A. Yes.
              Q. You've just shown [] us all sorts ofvideo. Where was Mr. St.
      Mark?
              A. The first day, the day of this incident, I was reviewing videos
      with gang experts.
              MS. REARDON: Objection.
              THE COURT: Ladies and gentlemen, you will disregard the
      witness's last answer. If you would answer the question, detective.
             THE WITNESS: Yes. We were viewing the video and Anthony
      Fuentes was seen on the video.

Report of Proceedings (RP) at 13 82-83.

      Based on Detective Hollenbeck's violation of the pretrial ruling to exclude gang

evidence, John Castro made a half-time motion to dismiss. The trial court denied the

motion.

      The State initially requested a jury instruction for the lesser included offense of

manslaughter, but withdrew the request. John Castro, preferring an "' all or nothing'

defense," opposed a manslaughter instruction. CP at 397.

      At the conclusion of the trial, the trial court dismissed the two assault charges for

insufficient evidence. The jury found John Castro guilty of second degree intentional

murder, second degree felony murder, felony riot, and first degree unlawful possession of

                                             4
No. 31701-3-111
State v. Castro


a firearm.

       After the jury verdict, John Castro again sought a new trial because of Detective

Kip Hollenbeck's violation of the trial court's order excluding testimonial references to

gangs. As part of the motion, defense counsel filed a declaration that repeated a posting

on a Spokane news station's website. The post read:

              I was a juror on this trial, and yes, they were all a bunch of gang
       bangers. I saw it first hand. I was blown away by their cocky attitudes, and
       pure lack of respect towards the attorneys and the judge. He is exactly
       where he should be.

CP at 629. The trial court denied the motion for a new trial.

       The State of Washington requested the trial court sentence John Castro, as a

persistent offender, to a sentence of life without the possibility of parole. The State

contended that Castro incurred two previous strikes, one from his 2004 conviction, and

the other from a 2008 conviction for conspiracy to deliver a controlled substance with a

deadly weapon enhancement. The trial court sentenced Castro to life imprisonment as a

persistent offender because of his 2004 and 2008 convictions.

                                 LAW AND ANALYSIS

                                  Hollenbeck Testimony

       John Castro contends the trial court erred by denying the defense motion for

mistrial after Detective Kip Hollenbeck intentionally violated the court's order

prohibiting any mention of gangs and so tainted the proceedings that Castro could not get


                                              5
No. 31701-3-III
State v. Castro


a fair trial. We do not know if Hollenbeck intentionally violated the order. The State

responds that Detective Hollenbeck's reference to gang experts was harmless because it

was ambiguous, lacked sufficient detail for the jury to infer Castro had gang affiliations,

the court ordered the jury to disregard the comment, and Castro never requested a

curative instruction.

       We deny the request for a new trial. Detective Hollenbeck should have been

instructed to not mention the word "gangs," and he should have obeyed that instruction.

Nevertheless, under case law, the trial court did not abuse its discretion in denying the

motion for a mistrial.

       Denial of a motion for a mistrial is reviewed under an abuse of discretion standard.

State v. Johnson, 124 Wn.2d 57, 76,873 P.2d 514 (1994). An abuse of discretion occurs

only when no reasonable judge would have reached the same conclusion. State v.

Johnson, 124 Wn.2d at 75; State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989).

A mistrial is required only when a defendant has been so prejudiced by a trial irregularity

that only a new trial can ensure that the defendant will be tried fairly. Johnson, 124

Wn.2d at 76.

       One former United States Supreme Court Associate Justice observed that all

practicing lawyers recognize as unmitigated fiction the nai've assumption that prejudicial

effects can be overcome by instructions to the jury. Krulewitch v. United States, 336 U.S.

440,453, 69 S. Ct. 716, 93 L. Ed. 790 (1949) (Justice Jackson, concurring opinion).

                                             6
No. 31701-3-111
State v. Castro


Nevertheless, under Washington law, we presume in all cases that the jury obeyed the

instructions of the court, and this presumption must prevail until it is overcome by some

showing otherwise. In re Municipality of Metropolitan Seattle, 67 Wn.2d 923, 930-31,

410 P.2d 790 (1966).

       In considering whether a trial irregularity warrants a new trial, the court must

consider (1) the seriousness of the irregularity, (2) whether the statement was cumulative

of evidence properly admitted, and (3) whether the irregularity could be cured by an

instruction. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172, 837 P.2d 599 (1992); State

v. Escalona, 49 Wn. App. 251,254, 742 P.2d 190 (1987). The appropriate inquiry is

whether the testimony, when viewed against the backdrop of all the evidence, so tainted

the trial that the defendant did not receive a fair trial. State v. Post, 118 Wn.2d at 620.

       John Castro's trial court immediately instructed the jury to disregard Detective

Kip Hollenbeck's reference to a gang expert. The jury heard no other references to·

gangs. The trial court gave thorough consideration to the seriousness of Detective Kip

Hollenbeck's testimony, but determined it was not prejudicial because it "simply

indicated he had used the task force ... when he was trying to identify individuals." RP

at 1425.

       John Castro emphasizes a juror's posting of a message on a news station's

website. We have no confirmation that a juror wrote the message. Nevertheless, the

message does not suggest that the juror concluded that Castro was a gang member

                                              7
No. 31701-3-III
State v. Castro


because of Kip Hollenbeck's statement. The juror wrote that he or she concluded Castro

and others were gang members because of the cocky attitudes and lack of respect for

others.

          John Castro claims that gang evidence cannot be cured by instructing the jury to

disregard it, but he does not provide any authority for this contention. The two cases

Castro cites, State v. Wade, 98 Wn. App. 328, 989 P.2d 576 (1999) and State v. Holmes,

122 Wn. App. 438, 93 P.3d 212 (2004), are inapposite. Neither case involves gang

evidence, nor a curative instruction to the jury.

                                 Exclusion ofDyneshia Sleep

          John Castro contends that the prosecutor committed misconduct by requesting that

the trial court exclude Castro's wife from the courtroom as a potential witness when the

State had no intention to call her to testify. Castro also briefly suggests that the exclusion

of Sleep violated his public trial right. The State responds that the exclusion of witnesses

is a matter within the discretion of the trial court and Castro forwards no evidence that the

prosecutor surreptitiously requested Sleep's exclusion or that the State subpoenaed her

for a nefarious purpose. Also, the State argues that the trial court did not violate Castro's

public trial right because the exclusion of a witness is a matter of courtroom governance

within the discretion of the trial court. We agree with the State.

          In order to establish prosecutorial misconduct, a defendant must show that the

prosecutor's conduct was both improper and prejudicial in the context of the entire record

                                               8
No. 31701-3-III
State v. Castro


and the circumstances at trial. State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126

(2008). The burden to establish prejudice requires the defendant to prove a substantial

likelihood that the instances of misconduct affected the jury's verdict. State v.

Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43 (2011).

       John Castro misconstrues the record to raise the specter of malfeasance where

none existed. When Castro questioned the State's motivation for excluding Dyneshia

Sleep from the proceedings, the State provided a sound explanation. Although the State

preferred to avoid calling Sleep as a witness, the State kept her under subpoena because

she possessed percipient knowledge of facts the State needed to prove. Castro also fails

to show how Sleep's presence in the audience during the trial would have altered the

jury's determination of guilt.

       John Castro, in a short passage in his brief, claims the exclusion of Dyneshia Sleep

violated his public trial right. He cites State v. Strode, 167 Wn.2d 222, 217 P.3d 310

(2009), In re Personal Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004), State

v. Wise, 176 Wn.2d 1, 288 P.3d 1113 (2012), and State v. Paumier, 176 Wn.2d 29, 288

P.3d 1126 (2012). In Strode, Wise, and Paumier, the Supreme Court found a public trial

right violation because the trial court performed juror interviews in the judges' chambers.

In re Personal Restraint of Orange involved a public trial right violation when the trial

court excluded the family of the victim and the defendant during voir dire because of

limited space in the courtroom with a ninety-eight-person venire. None of the decisions

                                             9
No. 31701-3-III
State v. Castro


entail the exclusion of witnesses during an ongoing trial. Castro forwards no decision

that holds that exclusion of a witness constitutes a violation of an accused's right to a

public trial.

       To successfully raise a public trial right violation, the defendant bears the initial

burden of showing a closure occurred. State v. Gomez, 183 Wn.2d 29, 34,347 P.3d 876

(2015). The appellant must show that the judge acted to close the courtroom to the public

as opposed to acting to manage the in-court proceedings. State v. Gomez, 183 Wn.2d at

36. The exclusion of only one or a few individuals is a matter of courtroom operations,

in which the trial judge possesses broad discretion to preserve and enforce order in the

courtroom and to provide for the orderly conduct of its proceedings. State v. Lormor, 172

Wn.2d 85, 93-94, 257 P.3d 624 (2011); State v. Gomez, 183 Wn.2d at 36. The Supreme

Court declared in State v. Johnson, 77 Wn.2d 423,428,462 P.2d 933 (1969):

                The power to exclude witnesses from the courtroom, we think, falls
       within the general discretionary powers of the court to be exercised during
       trial in aid of eliciting the truth, promoting the orderly presentation of
       evidence, and to assure that all parties, in the exercise of reasonable
       diligence, are afforded fair opportunity to offer all relevant evidence.

       We hold that the trial court did not close the courtroom when it excluded a

potential witness from the courtroom during trial testimony. In tum, the trial court did

not breach John Castro's right to a public trial.




                                              10
No. 31701-3-III
State v. Castro


                                       Life Sentence

       John Castro contends the trial court erred by finding him a persistent offender. He

argues that the trial court mistakenly classified one of his prior offenses, conspiracy to

deliver a controlled substance with a deadly weapon enhancement, as a most serious

offense. The State responds that the conspiracy to deliver a controlled substance with a

deadly weapon enhancement was a most serious offense because the offense was a felony

with a deadly weapon finding, even if the deadly weapon enhancement is not valid. This

court must remand for resentencing because the conspiracy to deliver a controlled

substance conviction is facially invalid and cannot count as a most serious offense.

       Under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, a

trial court must impose a life sentence for a persistent offender. A persistent offender is

someone who is currently being sentenced for a most serious offense and also has two

prior convictions for most serious offenses. RCW 9.94A.030 reads in relevant part:

               (3 7) "Persistent offender" is an offender who:
               (a)(i) Has been convicted in this state of any felony considered a
       most serious offense; and                         _
               (ii) Has, before the commission of the offense under (a) of this
       subsection, been convicted as an offender on at least two separate
       occasions, whether in this state or elsewhere, of felonies that under the laws
       of this state would be considered most serious offenses and would be
       included in the offender score under RCW 9.94A.525; provided that of the
       two or more previous convictions, at least one conviction must have
       occurred before the commission of any of the other most serious offenses
       for which the offender was previously convicted.

In tum, RCW 9.94A.030 defines, in relevant part, as a "most serious offense"

                                             11
II
I
f
     No. 31701-3-111
     State v. Castro
I
                    (32) "Most serious offense" means any of the following felonies or a
            felony attempt to commit any of the following felonies:
                    (a) Any felony defined under any law as a class A felony or criminal
            solicitation of or criminal conspiracy to commit a class A felony;

                  (s) Any other class B felony offense with a finding of sexual
            motivation;
                  (t) Any other felony with a deadly weapon verdict under RCW

I
!
            9.94A.825.


I
!
     Under the POAA, the State bears the burden of proving, by a preponderance of the

     evidence, the existence of prior convictions that constitute predicate offenses for
I
I
     application of the POAA. State v. Knippling, 166 Wn.2d 93, 100, 206 P.3d 332 (2009).

I           John Castro contends the conspiracy to deliver a controlled substance with a
!    deadly weapon enhancement does not qualify as a most serious offense under the POAA.

     He argues that a deadly weapon enhancement does not create either a Class A or Class B
I    felony and thus does not fall under RCW 9.94A.030(32)(a) or (s). In other words, his

     2008 conviction was for an unranked felony. We agree.

           Under State v. Soto, 177 Wn. App. 706, 716, 309 P.3d 596 (2013), the deadly

     weapon enhancement cannot apply to an unranked felony. Conspiracy to deliver a

     controlled substance is an unranked felony. State v. Hebert, 67 Wn. App. 836, 837, 841

     P.2d 54 (1992).

           John Castro may challenge the 2008 deadly weapon enhancement in the pending

     prosecution. When a defendant is convicted of a nonexistent crime, the judgment and


                                                  12
No. 31701-3-111
State v. Castro


sentence is invalid on its face. In re Pers. Restraint of Hinton, 152 Wn.2d 853, 857, 100

PJd 801 (2004). Although Castro pled guilty to the challenged offense, exceptions to the

foreclosure of collateral attack on a guilty plea exist when, on the face of the record, the

court had no power to enter the conviction or impose the sentence. In re Pers. Restraint

of Thompson, 141 Wn.2d 712, 720, 10 PJd 380 (2000).

       The State claims the conspiracy to deliver a controlled substance with a deadly

weapon enhancement is a serious offense under RCW 9.94A.030(32)(t), which provides:

"[a]ny other felony with a deadly weapon verdict under RCW 9.94A.825" is a serious

offense. The State argues that, even if the enhancement is not valid, the crime is a serious

offense because of a deadly weapon finding. This argument fails, however, because

neither the judge nor a jury entered a deadly weapon finding in the earlier prosecution.

Neither the amended information, nor the statement of the facts by the prosecutor at the

plea hearing, mentioned a deadly weapon.

       John Castro's second strike, a 2008 conviction for conspiracy to deliver a

controlled substance with a weapon enhancement, is a facially invalid conviction.

Therefore, he suffered no deadly weapon verdict to raise the conviction to a most serious

offense.

                             Statement of Additional Grounds

       John Castro asserts five additional grounds for reversal in his statement of

additional grounds:

                                             13
    I

    !
    II
    i
    I
    i    No. 31701-3-III
    !
         State v. Castro
I   I


I
!
                1. Prosecutor and police misconduct committed by introducing gang evidence in

I!       violation of the court's order.

                2. Introduction of gang evidence violated John Castro's constitutional right to a

I        fair trial by an impartial jury.

!               3. The trial court abused its discretion in excluding Dyneshia Sleep from the


I        courtroom when she was not obligated to testify against her husband, pursuant to RCW

         5.60.060(1).
I
ll              4. John Castro was entitled to a lesser included instruction on manslaughter


 I       because the evidence at trial only proved an accidental death.

                5. It was fundamentally unfair to use the conspiracy to deliver a controlled
II
l        substance conviction as a strike for establishing a sentence of life without parole.

                Statements of additional grounds 1, 2, 3, and 5 mirror contentions raised by
I        appellant's counsel. We will not repeat our analysis.

                John Castro contends that the trial court erred because he was entitled to receive a

         jury instruction on the lesser included offense of manslaughter. A defendant who is

         entitled to a lesser included instruction may choose to forgo such instruction. State v.

         Grier, 171 Wn.2d I7,42,246P.3d 1260(2011). EvenifCastrowasentitledtoalesser

         included instruction, he intentionally waived his right to the instruction. Castro opposed

         any manslaughter instruction because of a preference for an"' all or nothing'" defense.

         CP at 397.

                                                      14
No. 31701-3-111
State v. Castro


                                    CONCLUSION

      We affirm John Castro's convictions. We vacate his life sentence under the

POAA. We remand the case to the trial court to exclude Castro's 2008 conviction for

conspiracy to deliver a controlled substance with a deadly weapon enhancement from a

POAA calculation and to resentence Castro.

      A majority of the panel has determined 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.




WE CONCUR:



                                             Lawrence-Berrey, J.
                                                                                  .j




                                           15
