                                                                                FILED

                                                                           April 8,2014

                                                                   In the Office of the Clerk of Court 

                                                                 WA State Court of Appeals. Division III 



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 30806-5-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
JOSE GARCIA MORALES,                           )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWAY, C.J. - Jose Garcia Morales appeals his conviction as an accomplice

to first degree murder, attempted first degree murder, and two counts of assault. He

argues that the trial court abused its discretion in refusing to give five nonpattern jury

instructions he contends were needed to clearly present the standard for accomplice

liability. We disagree. The trial court reasonably concluded that the Washington pattern

jury instruction on accomplice liability was an evenhanded and sufficient statement of the

law from which Mr. Garcia Morales could present his defense. We affirm.

                     FACTSANDPROCEDURALBACKGROlmD

       On a December night in 2008, brothers Ramon and Jose Garcia Morales traveled

to the home of Alfredo and Maria Garcia with a grievance to vent. Ramon, Jose, and the

Garcias were all farm workers, but Alfredo had the additional responsibility of compiling
No.30806-5-III
State v. Garcia Morales


the list of workers who would be hired to plant and top the onions for one of the local

onion packing plants. l Ramon had not been included in the list of approved workers, was

in a desperate financial situation, and blamed Alfredo, who was his relative by marriage. 2

Ramon would later tell detectives that the day before he and Jose went to see Alfredo, he

told Jose and his sister Virginia that he planned to approach Alfredo the next day and

demand money from him. If Alfredo refused to pay at least part ofthe money Ramon

believed he had missed out on, then he would kill Alfredo.

       The next night, the brothers went to the Garcia home. Both were armed with

handguns. Five members of the Garcia family were home when Ramon and Jose arrived:

Alfredo, Maria, and three of their children: two teenaged daughters, Erika and Maricela,

and Kimberly, an infant.

       Alfredo was the only member of the family in the living room when Ramon and

Jose arrived. Maria heard the two brothers talking loudly with Alfredo about money but

did not initially join them. When she did enter the living room, Alfredo explained to her

that Ramon and Jose were demanding money because Ramon had not been called to

work with the crew at the onion packing facility. Maria later testified that Alfredo



       IThe members of the Garcia family and the two Garcia Morales brothers share a
last name. To avoid confusion, we use their first names in the statement of facts. No
disrespect is intended.
       2 Joseand Ramon are brothers of Alfredo's brother's wife. Alfredo's daughter
Erika described them as "family members." Report of Proceedings (RP) at 607.

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No. 30806-5-111
State v. Garcia Morales


offered to take them to the foreman's house the next day, but Ramon demanded to go

there immediately. When she heard Alfredo say something to the brothers about not

needing their guns, 3 she left the room to call the police. That was the last thing she

remembered. Evidence was later presented that her 911 call was answered, she made

statements in Spanish to the dispatcher, and then hung up; the dispatcher's attempt to call

her back was not answered. Apparently Ramon began firing at her and Alfredo very

shortly after her call.

       Hearing gunshots, Erika and Maricela went to the living room and saw Ramon-

and perhaps Jose; Erika's testimony was inconsistent-shooting their parents. Both

would later testifY that Ramon and Jose pointed guns at them at one point, in response to

which their father told the brothers not to shoot the girls. While Ramon then fired

additional shots at her father, the brothers did not shoot at the two girls.

       Erika called 911 as soon as Ramon and Jose left. By the time help arrived,

Alfredo, who had been shot six times, was dead. Maria was alive but unresponsive and

barely breathing. She had been shot four times, including once to the face, twice to the

chest, and once to the left lung. Her injuries left her unable to walk.

       The next morning Erika and Maricela identified Ramon and Jose from a

photomontage. Both described Ramon as the person who had shot their parents. They


       3Maria testified that her husband said, "[Y]ou don't need that, Ramon. You don't
need that gun. We can just talk with words." RP at 524.

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No. 30806-5-III
State v. Garcia Morales


described Jose as the person who was standing by the door, holding a gun, and acting like

a lookout.

       Ramon and Jose were arrested the next day, and Ramon confessed two days after

the shooting. He told detectives that he was the only one who did any shooting and that

when his handgun ran out of bullets, he took Jose's handgun and fired additional shots

with it. He was adamant that Jose never fired a shot, characterizing him as being a

lookout. Ramon was separately tried and was convicted. 4

       Jose was ultimately charged with the first degree murder of Alfredo, the attempted

first degree murder of Maria, and two counts of second degree assault of Erika and

Maricela. The State sought firearm enhancements for each of the four counts. 5

       At trial, the State argued that Jose was liable as an accomplice, pointing to

evidence that he knew about his brother's plan to either get money from Alfredo or to kill

him, brought his own gun into the Garcias' home, supplied Ramon with either bullets or a

gun, and acted as a lookout. Jose defended on the basis that while he was present at the

scene, he did not assist in the crimes. To support the defense theory, Jose presented

evidence showing his lack of motive (unlike Ramon, he had been given work in the

fields) and statements Erika and Maricela made to the police shortly after the shooting


       4 State v. Morales, noted at 177 Wn. App. 1026 (2013), review denied, No. 89659­
3 (Wash. Mar. 5,2014).
       5 The State also charged Jose with rendering criminal assistance in the first degree,
but withdrew the charge at the close of its case.

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No. 30806-5-111
State v. Garcia Morales


indicating that Jose never fired shots, never pointed a gun at them, and stopped Ramon

from shooting the girls. The girls contradicted some of those reported statements at trial.

      Jose proposed five nonpatternjury instructions on accomplice liability. His

proposed instructions would have told the jury:

      Mere assent to the commission of a crime is not enough to make someone
      an accomplice.

Clerk's Papers (CP) at 115.

      Neither is presence at the scene of a crime sufficient, even when coupled
      with knowledge that the presence [aids] in the crime's commission.

CP at 116.

      For presence to rise to the level of complicity, the defendant must be ready
      to assist in the commission of the crime.

CP at 117.

      Failure to act does not establish complicity. This remains true even if the
      person had a duty to act. For example a person's failure to protect his or
      her child from assault does not make the person an accomplice in that
      assault.

CP at 118. And,

      A person is also not an accomplice if that person's sole involvement with
      the crime arises after the crime was committed.

CP at 119. Although the Washington pattern jury instructions for criminal trials include a

pattern instruction on accomplice liability, see 11 WASHINGTON PRACTICE: WASHINGTON




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No. 30806-5-111
State v. Garcia Morales


PAITERN JURY INSTRUCTIONS: CRIMINAL 10.51 (3d ed. 2008) (WPIC), Jose did not

include it in his proposed instructions.

       The court refused to give Jose's proposed instructions, ruling that the pattern

instruction, WPIC 10.51, was sufficient and would enable the defense to argue the points

raised in its proposed instructions.

       The jury found Jose guilty on all counts and returned special verdicts that he was

armed with a firearm at the time he committed each crime. He was sentenced to 906.5

months of confinement. He appeals.

                                           ANALYSIS

       The principal instructional concern of the defense was to be able to argue that the

actions of Jose (whom we refer to hereafter as Mr. Garcia Morales) did not meet the

standard for accomplice liability. But it is the role ofthe trial court, not a criminal

defendant, to decide how best to instruct the jury. Jury instructions are proper if

"substantial evidence supports them, they allow the parties to argue their theories of the

case, and, when read as a whole, they properly inform the jury of the applicable law."

State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). "[I]t is not error for a

trial court to refuse a specific instruction when a more general instruction adequately

explains the law and allows each party to argue its case theory." Id.

       Where a defendant alleges an error oflaw in a jury instruction, we review the

instruction de novo. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005).

                                              6

No. 30806-5-111
State v. Garcia Morales


"Whether to give a particular jury instruction," on the other hand, "is within the trial

court's discretion." Boeing Co. v. Key, 101 Wn. App. 629, 632,5 P.3d 16 (2000)

(emphasis added).

       The Washington pattern instruction on accomplice liability given by the trial court

informed the jury:

               A person is guilty of a crime if it is committed by the conduct of
       another person for which he or she is legally accountable. A person is
       legally accountable for the conduct of another person when he or she is an
       accomplice of such other person in the commission of the crime.
               A person is an accomplice in the commission of a crime if, with
       knowledge that it will promote or facilitate the commission of the crime, he
       or she either:
               (1) solicits, commands, encourages, or requests another person to
       commit the crime; or
               (2) aids or agrees to aid another person in planning or committing
       the crime.
               The word "aid" means all assistance whether given by words, acts,
       encouragement, support, or presence. A person who is present at the scene
       and ready to assist by his or her presence is aiding in the commission of the
       crime. However, more than mere presence and knowledge of the criminal
       activity of another must be shown to establish that a person present is an
       accomplice.

CP at 57-58.

       As noted in State v. Hoffman, WPIC 10.51 "is drawn directly from the accomplice

statute." 116 Wn.2d 51, 102-04, 804 P.2d 577 (1991) (finding no error in the instruction

insofar as it correctly states the mental state required for an accomplice). The pattern




                                             7

No. 30806-5-111
State v. Garcia Morales


instruction largely mirrors the language of the accomplice statute,6 adding a definition of

the term "aid." State v. Williams, 28 Wn. App. 209,211,622 P.2d 885 (1981). Its

definition of "aid" as requiring assistance or readiness to assist is consistent with

Washington case law. Id.; In re Welfare o/Wilson, 91 Wn.2d 487,491,588 P.2d 1161

(1979); State v. Aiken, 72 Wn.2d 306,349,434 P.2d 10 (1967), vacated on other grounds

by Wheat v. Washington, 392 U.S. 652, 88 S. Ct. 2302, 20 L. Ed. 2d 1357 (1968).

       The State does not dispute that Mr. Garcia Morales's proposed instructions were

correct statements of the law, derived from published Washington decisions that he cited

to the trial court as support. 7 It does disagree-and rightly so-with Mr. Garcia



       6 The accomplice liability statute, RCW 9A.08.020, provides, in relevant part:
               (3) A person is an accomplice of another person in the commission
       of a crime if:
               (a) With knowledge that it will promote or facilitate the commission
       of the crime, he or she:
               (i) Solicits, commands, encourages, or requests such other person to
       commit it; or
               (ii) Aids or agrees to aid such other person in planning or 

       committing it; or 

               (b) His or her conduct is expressly declared by law to establish his or
      her complicity.
We quote the current version ofRCW 9A.08.020, which was amended by Laws of2011,
chapter 336, section 351 to make the language gender neutraL
       7As support for his instructions, Mr. Garcia Morales cited State v. Renneberg, 83
Wn.2d 735, 739, 522 P.2d 835 (1974) ("It is true that assent to the crime alone is not
aiding and abetting."); State v. Rotunno, 95 Wn.2d 931,933,631 P.2d 951 (1981)
('" something more than presence alone plus knowledge of ongoing activity must be
shown to establish the intent requisite to finding [defendant] to be an accomplice'"
(quoting In re Welfare o/Wilson, 91 Wn.2d 487,492, 588 P.2d 1161 (1979))); State v.

                                              8

No. 30806-5-111
State v. Garcia Morales


Morales's argument that if the instructions he requested accurately stated the law, then

the trial court should have given them. "The law is well established that the fact that

certain language is used in an appellate court decision does not mean that it can be

properly incorporated into a jury instruction." State v. Alexander, 7 Wn. App. 329, 335,

499 P.2d 263 (1972); accord Williams, 28 Wn. App. at212; State v. Dunning, 8 Wn.

App. 340, 342 n.2, 506 P.2d 321 (1973) (noting that "language quoted from an appellate

court opinion does not necessarily make a proper jury instruction"). In particular, "[t]he

refusal to give a requested instruction is not error when the subject matter is adequately

covered in the court's other instructions." State v. Etheridge, 74 Wn.2d 102, 110,443

P.2d 536 (1968).

       Mr. Garcia Morales must therefore persuade us of at least one of two contentions:

(1) that the pattern instruction prevented him from arguing his defense theory that he was

merely present and, at most, failed to stop his brother from acting and rendered assistance




Robinson, 35 Wn. App. 898,903,671 P.2d 256 (1983) ("The evidence must show both
presence and readiness (intent to assist) before a person can be found guilty as an
accomplice."); State v. Jackson, 87 Wn. App. 801,944 P.2d 403 (1997), ajJ'd, 137 Wn.2d
712,976 P.2d 1229 (1999) (Failure to act does not establish complicity. This remains
true even if the person had a duty to act. For example a person's failure to protect his or
her child from assault does not make the person an accomplice in that assault.); State v.
Robinson, 73 Wn. App. 851, 872 P.2d 43 (1994) (a person is also not an accomplice if
that person's sole involvement with the crime arises after the crime was committed).

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No. 30806-5-111
State v. Garcia Morales


after the fact by retrieving the two handguns from the Garcia home, or (2) that the pattern

instruction was misleading and failed to accurately state the law of accomplice liability.s

       With this burden in mind, we review his proposed instructions.

       First proposed instruction: "Mere assent to the commission ofa crime is not

enough to make someone an accomplice." The pattern instruction advised the jury that

"more than mere presence and knowledge of the criminal activity of another must be

shown to establish that a person present is an accomplice." CP at 57-58 (emphasis

added). Mr. Garcia Morales nonetheless claims that the pattern instruction contradicts

itself by defining "aid" as "all assistance whether given by words, acts, encouragement,

support, or presence." CP at 57. The definition of "aid" further provides, however, that

"[a] person who is present at the scene and ready to assist by his or her presence is aiding

in the commission of the crime." Id. (emphasis added). A critical, consistent concept in

the definition of "aid" is that of "assistance," which Mr. Garcia Morales chooses to

ignore. In State v. Renneberg, our Supreme Court held that instructing the jury that

readiness to assist or- actual assistance is a required component of "aiding" avoided the


        S Mr. Garcia Morales emphasizes that there was conflicting evidence as to how
Erika, Maricela, and Maria characterized his role in the crimes immediately after they
occurred, at the trial of Ramon Garcia Morales, and in direct and cross-examination at his
trial. He suggests that these contradictions heightened the need for instructions beyond
the pattern instruction. The fact that there were conflicts in the evidence would increase
the likelihood that an error was prejudicial if we were engaged in harmless error analysis.
But it does not alter the analysis of whether the instructions given correctly stated the law
and enabled the defense to argue its theory of the case.

                                             10 

No.30806-5-II1
State v. Garcia Morales


error of suggesting that "mere assent" could establish complicity. 83 Wn.2d 735, 739,

522 P.2d 835 (1974) (contrasting what it held to be correct instruction from the

instruction held to be error in State v. Peasley, 80 Wash. 99, 141 P. 316 (1914)). The

pattern instruction is not internally contradictory and enabled Mr. Garcia Morales to

argue that mere assent to the commission of a crime would not establish accomplice

liability.

        Second proposed instruction: "Neither is presence at the scene ofa crime

sufficient, even when coupled with knowledge that the presence [aids] in the crime's

commission." Mr. Garcia Morales cites State v. Rotunno, 95 Wn.2d 931, 933, 631 P .2d

951 (1981), which clearly supports this statement of the law-but Rotunno also observed

that "[t]his interpretation of the law has been embodied in the Washington pattern

instructions [at] WPIC 10.51." It was only because the trial court in Rotunno modified

the instruction by eliminating its last sentence that the Supreme Court found it to be

misleading. Rotunno implicitly establishes that when given in its complete, unmodified

form, WPIC 10.51 encompasses the principle of law that Mr. Garcia Morales proposed as

his second instruction.

        Third proposed instruction: "For presence to rise to the level ofcomplicity, the

defendant must be ready to assist in the commission ofthe crime." This proposed

instruction is functionally equivalent to Mr. Garcia Morales's second proposed

instruction. As recognized in Rotunno and in Williams, 28 Wn. App. at 212, the last

                                             11 

No. 30806-5-111
State v. Garcia Morales


paragraph of WPIC 10.51 makes clear that the defendant must have been ready to assist

in the crime, thereby allowing Mr. Garcia Morales to argue to the jury that while present,

he was not ready to assist.

       Fourth proposed instruction: "Failure to act does not establish complicity. This

remains true even   if the person had a duty to act.   For example a person's failure to

protect his or her child from assault does not make the person an accomplice in that

assault." The pattern instruction nowhere states or suggests that a failure to act suffices

as complicity. In State v. Jackson, l37 Wn.2d 712, 720-22, 976 P.2d 1229 (1999), which

Mr. Garcia Morales relies upon for this statement of law, the trial court committed error

by modifying WPIC 10.51 to provide-incorrectly-that accomplice liability extends to

a person based upon his or her failure to fulfill a duty to come to the aid of another.

Jackson characterized the modification as a "notable expansion on the reach of the

statute," because "such a basis for accomplice liability does not appear in the statute." Id.

at 722 (emphasis added). Such a basis for liability does not appear in the pattern

instruction, either, and was not suggested by the State as a basis for accomplice liability.

Mr. Garcia Morales could argue his theory of defense without an instruction negating a

basis for liability that was not suggested by the pattern instruction.

       Fifth proposed instruction: "A person is also not an accomplice     if that person's
sole involvement with the crime arises after the crime was committed." The language of

the pattern instruction limits the temporal scope of accomplice liability to the planning

                                              12 

No. 30806-5-III
State v. Garcia Morales


and commission of a crime: it states that "[a] person is legally accountable for the

conduct of another person when he or she is an accomplice of such other person in the

commission o/the crime." CP at 57 (emphasis added). It further provides that a person

can only be an accomplice in the commission of the crime if-"with knowledge that it

will promote or facilitate the commission of the crime"-he or she either (1)    "solici~s,


commands, encourages, or requests another person to commit the crime" or (2) "aids or

agrees to aid another person in planning or committing the crime." Id. (emphasis added).

This language limits a person's liability to conduct that occurs either before or during the

commission of the crime. The State did not rely upon Mr. Garcia Morales's acts

following commission of the crimes as a basis for his guilt; in any event, he was free to

point to the temporal references in the pattern instruction to argue that guilt must be

based on acts preceding or occurring during the commission of the crime.

       Since the legal principles reflected in Mr. Garcia Morales's proposed instructions

on accomplice liability were all encompassed in the pattern instruction, the trial court did

not abuse its discretion by giving only the pattern instruction.

       Affirmed.

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




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No. 30806-5-111
State v. Garcia Morales


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

2.06.040.



                                                  ~
                                                  /       /;

                                                      /                /
                                            Siddoway, C.J.

WE CONCUR:



Brown, J.




                                           14 

