                                                                                                         i_ - ED
                                                                                                  COURT OF APPEALS
                                                                                                       DIVISION 11

                                                                                              20111 AUG - 5      AM 10: 37

                                                                                               STATE OF WASHINGTON
     IN THE COURT OF APPEALS OF THE STATE OFslyASH                                                         J 4, ON
                                                                                                          EPI.     Y
                                                     DIVISION II

STATE OF WASHINGTON,                                                                      No. 40962 -3 -II


                                       Respondent,


         v.



ADRIAN CONTRERAS -REBOLLAR,


                                       Appellant
IN RE PERSONAL RESTRAINT PETITION                                                       Consolidated with
OF                                                                                        No. 41672 -7 -II


         ADRIAN CONTRERAS -
                          REBOLLAR,
                                                                                UNPUBLISHED OPINION
                                       Petitioner.


         HUNT, J. —         In this   supplemental personal restraint petition (              PRP), on remand from the


Supreme Court, Adrian Contreras -Rebollar challenges his jury convictions for two counts of first
                    1
degree   assault.       He argues that ( 1) the trial court erred in admitting statements he made to the

arresting     officer, (   2) the State    improperly        commented         on   his   right   to   remain    silent, (   3)   he


received ineffective assistance when counsel failed to propose a jury instruction addressing his

statements     to the arresting       officer, (   4) the State engaged in prosecutorial misconduct, and ( 5)


cumulative      error      deprived him     of     his   right   to   a   fair trial.     We deny Contreras -Rebollar' s

supplemental PRP.




1 Contreras -Rebollar also pled guilty to one count of second degree unlawful possession of a
firearm,    which conviction      he does    not challenge        here.
Consolidated Nos. 40962 -3 -II and 41672 -7 -II


                                                           I. FACTS


       We set out the background facts in our first, unpublished decision in this case, excerpts of

which we provide here:


                    T] he evening [      of    April 11, 2006], Contreras[ -Rebollar], [ Nicholas] Solis,

        Regina] Hernandez, and [ Ahria] Kelly left their friend' s house and went to a
       place    described      as "    Wolfie'   s   alley,"   so      Solis    could pick         up   a vehicle.    Report of
       Proceedings ( RP) ( Jan. 23, 2007) at 254. Contreras[ -Rebollar] and Hernandez left

       Wolfie' s alley to go drive around; Solis and Kelly followed in the car that Solis
       had just      retrieved.       Hernandez alleged that Contreras[ -Rebollar] flagged Solis to
       stop,    got out of     his    vehicle, and argued with                  Solis    about a " sack of          dope"   and a

       Palm Pilot.           RP ( Jan. 23, 2007)          at   259.          According to Hernandez, Contreras[ -
       Rebollar]       returned       to his   vehicle, said, "[            T] his   mother       f[ *]
                                                                                                      cker     is getting on my
       nerves;   I' m going to do him in[,]" and retrieved a gun from the backseat of the
       car.    RP ( Jan. 23, 2007) at 261. After going back to Wolfie' s alley, Contreras and
       Hernandez subsequently drove to Yessica Rosas'                                       s    house. [      Hernandez later
       claimed that, during their second visit to Wolfie' s alley, Solis, while wearing a
       bandana over his face, pointed a gun at Contreras -Rebollar who responded by
       firing shots in Solis' s direction].
                      Rosas and Hernandez were talking in Rosas' s bedroom when
        Contreras[ -Rebollar]            went     outside      to      his     car.     Contreras[ -Rebollar]           returned


        wearing dark          clothes      and       sunglasses,         carrying       a       gun.        Rosas testified that
        Contreras[ -Rebollar] appeared nervous and looked like he was wearing a disguise.
        Rosas' s father, Jose Rosas, heard people talking and he asked Hernandez and
        Contreras[ -Rebollar] to leave.                  Jose testified that he watched Hernandez and
        Contreras[ -Rebollar] drive away before returning to bed.
                    Contreras[ -Rebollar] sat in the driver' s seat and Hernandez sat in the front
        passenger         seat when     they left Rosas'           s   house.         Hernandez testified that she was

        looking      at    CDs [(     compact        discs)]     when         she     heard Contreras[ -Rebollar]           say,
          T] here those        mother     f[ *]
                                              ckers      are."         RP ( Jan. 23, 2007)             at   289.   The two were

        only    a    short    distance from Rosas'             s       house     when       Contreras[ -Rebollar]           started


        shooting at the oncoming vehicle. After Contreras[ -Rebollar] finished shooting,
        Hernandez heard him say, " I just dumped on those fools." RP ( Jan. 23, 2007) at
        290. Hernandez testified that Contreras[ -Rebollar] did not appear afraid; instead,
        he    appeared     brave,     calm, and cool.          Further, Hernandez testified that she had her
        head down looking at CDs and did not see Solis' s vehicle approach; she looked
        up after Contreras[ -Rebollar] started shooting and saw only the taillights of
        Solis' s vehicle. Contreras[ -Rebollar], however, relayed a different story at trial.
        Contreras[ -Rebollar] claimed that he saw Solis' s vehicle speed up and the
        headlights turn off. He also claimed to see Solis wearing a bandana and raise the
        barrel      of a gun.       Based on this information, Contreras[ -Rebollar] believed that
        Solis    was   preparing to       commit a             by shooting. Contreras[ -Rebollar] testified
                                                         drive -



                                                                        2
Consolidated Nos. 40962 -3 -II and 41672 -7 -II



       that he feared for his life, reached for his gun, ducked, and fired towards Solis' s
       vehicle.


                Solis was driving with Kelly in the passenger seat when Contreras[ -
       Rebollar]    shot at    Kelly testified that he yelled "[ d] uck" when he saw the
                                them.

       flash of a gun firing from the driver' s window of a parked vehicle with no
       headlights.    RP ( Jan. 24, 2007)          at   501.     Solis did not see Contreras[- Rebollar' s]
       vehicle and only remembered seeing gunfire sparks at the time of the shooting.
       One bullet struck Kelly in the shoulder and at least one bullet struck Solis. As a
       result of the shooting, Solis is paralyzed from the chest down.
                Shortly after the shooting, Kim Say -Ye was returning home when she saw
       a vehicle parked on the grass in front of her neighbor' s house. The vehicle caught
       her attention because she saw shattered glass and because both the windshield
       wipers and    headlights        were on.    She thought the driver was drunk and was about
       to call the police when Officer Timothy Caber showed up.
                Caber, who had received the dispatch call for the shooting around 1: 00
       a. m., briefly spoke to Say -Ye when he arrived at the scene. Caber found the
       vehicle still running and stopped against landscaping railroad ties on the lawn. He
       also observed      that the      windshield wipers           and     headlights   were on.    Caber found
       Solis inside, slumped over; a rifle lay wedged between the driver and passenger
       seats with the barrel pointing toward the dash.
                Edward Robinson, a firearm examiner at the Washington State Patrol
       Crime   Laboratory, determined             that the     gun was a        black    powder rifle.   Robinson

       received the rifle without a ram rod and without any wadding, projectiles, and gun
       powder inside the rifle' s chamber or otherwise in a container associated with the
       rifle. Solis testified that he traded dope for the rifle on the day of the shooting and
       that he thought the rifle was inoperable.
                  On April 12, 2006, the police arrested Contreras[ -Rebollar] at a Motel 6.
       The State charged him with two counts of first degree assault, with firearm
       enhancements, and one count of second degree unlawful possession of a firearm.
              Contreras pleaded guilty to second degree unlawful possession of a firearm.
                      Both parties focused on credibility throughout the trial [ on the two
        assaults], as many of the witnesses were habitual methamphetamine users who

        admitted to having a poor memory. On January 23, 2007, Hernandez testified that
        she   did   not   see    the    headlights      on     Solis'   s   vehicle.     When the prosecution
        questioned her, Hernandez acknowledged that her testimony conflicted with a
        statement    she made      to   police    officers     shortly      after   the shooting.   However, she
        claimed that [ one of Contreras- Rebollar' s counsel] had told her the headlights
        were off. On direct, Hernandez denied that [ defense counsel] told her to say the
        headlights were off, but on cross -examination she claimed he had. [ T] he jury
        found Contreras[ -Rebollar] guilty on both counts of first degree assault and found
        that he was armed with a firearm during the commission of both crimes.




                                                                3
Consolidated Nos. 40962 -3 -I1 and 41672 -7 -I1



State    v.              Rebollar,
               Contreras -                noted   at   149 Wn.        App.   1001, 2009 WL 448902,        at *   1 - 2 ( 2009)


 some alternations        in   original) (   internal footnotes omitted).2

                                                       II. PROCEDURE


              Contreras -Rebollar has previously filed two direct                 appeals.   We resolved his first appeal


in an unpublished opinion in which we affirmed his convictions but remanded for resentencing.

Contreras -Rebollar, 2009 WL 448902,                    at *   1.    Contreras -Rebollar appealed his resentencing—

his   second appeal.       He then filed a PRP, which we consolidated with his pending direct appeal

from his resentencing; and we granted his request to supplement his PRP.

              In June 2012, in another unpublished opinion, we denied his original PRP as meritless


and     his    supplemental      PRP    as   untimely;    and        we   again   remanded   for resentencing.      State v.


Contreras -
          Rebollar,            noted at   169 Wn.      App.         1001, 2012 WL 2499369 ( 2012),       review granted,



173 Wn.2d 563 ( 2013).                          Rebollar
                                      Contreras -                   petitioned    the Supreme Court    for   review.     The


Supreme Court granted the petition in part and remanded to us to consider Contreras- Rebollar' s

supplemental        PRP   on    the   merits.   3 State v. Contreras -Rebollar, 177 Wn.2d 563, 564, 303 P. 3d

1062 ( 2013).       It is this supplemental PRP that we now consider.




2
    We set out additional facts related to Contreras- Rebollar' s current arguments in the relevant
analysis sections.


3
    The Supreme Court upheld our denial of his original PRP on the merits, remanding only his
supplemental PRP. State v. Contreras -
                                     Rebollar, 177 Wn.2d 563, 564, 303 P. 3d 1062 ( 2013).




                                                                     4
Consolidated Nos. 40962 -3 - II and 41672 -7 -II


                                                         ANALYSIS


                                                     I. PRP STANDARDS


          Generally, to be entitled to relief on collateral review, a petitioner must establish " either

that he or she was actually and substantially prejudiced by constitutional error or that his or her

trial suffered from a fundamental defect of a nonconstitutional nature that inherently resulted in a

complete miscarriage of justice."              In re Pers. Restraint ofFinstad, 177 Wn.2d 501, 506, 301 P. 3d

450 ( 2013).     Contreras -Rebollar fails to sustain this burden here.

                                    II. IN- CUSTODY STATEMENTS ADMISSIBLE

                                                                                                                 Miranda4

          Contreras -Rebollar first          contends   that the trial   court erred   in admitting his   pre-




statements to the arresting officer, asserting that they were not spontaneous and voluntary, and

                             5                   6
instead   were coerced.          We disagree.


                                             A. Standard of Review; Miranda


          A trial court' s CrR 3. 5 findings of fact are verities on appeal if substantial evidence


supports   the   findings. State        v.   Broadaway,    133 Wn.2d 118, 131, 942 P. 2d 363 ( 1997). Evidence




4 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

5 Contreras -Rebollar also contends that the trial court erred by failing to enter written findings of
fact supporting its CrR 3. 5 ruling. Although failure to enter findings of fact and conclusions of
law is error, such error is harmless if the trial court' s oral findings are sufficient to permit
appellate review.       See State       v.   Johnson, 75 Wn.     App.    692, 698   n. 3,   879 P. 2d 984 ( 1994),   review

denied, 126 Wn. 2d 1004 ( 1995).                Such is the   case   here.   Accordingly, we do not further address
this argument.

6
    Contreras -Rebollar also appears to assert that the trial court erred when it found that he was not
in custody       when   he       made   these   statements.      Contreras -Rebollar is incorrect; the trial court
specifically found that Contreras -Rebollar was in custody when he made the statements.
Accordingly, we do not further address this issue.




                                                                5
Consolidated Nos. 40962 -3 - II and 41672 -7 -II



is substantial when it is sufficient to persuade a fair -
                                                        minded person of the truth of the stated

premise.       State   v.   Reid, 98 Wn.     App.       152, 156, 988 P. 2d 1038 ( 1999) (      citing State v. Thetford,

109 Wn.2d 392, 396, 745 P. 2d 496 ( 1987)). "                    The legal conclusions flowing from the facts are

questions of     law,"      which we review de novo. State v. Aronhalt, 99 Wn. App. 302, 307, 994 P.2d

248 ( citing State      v.   Armenta, 134 Wn.2d 1, 9, 948 P. 2d 1280 ( 1997)), review denied, 141 Wn.2d


1012 ( 2000).


             Under the Fifth Amendment              of   the United States Constitution, " Miranda warnings must


be    given when a suspect endures (               1)   custodial ( 2) interrogation ( 3) by an agent of the State."

State   v.   Heritage, 152 Wn.2d 210, 214, 95 P. 3d 345 ( 2004). When these conditions exist, but the


state   agent    fails to     advise     the defendant     of   his Miranda       rights, we presume   that "   a suspect' s



statements      during       custodial    interrogation    are ...       involuntary"   and that we must exclude these


statements.       Heritage, 152 Wn.2d at 214; State v. Warner, 125 Wn.2d 876, 888, 889 P. 2d 479


 1995).       Miranda does        not,   however, "      apply to voluntary, spontaneous statements made outside

the   context of       custodial interrogation." State v. Sadler, 147 Wn. App. 97, 131, 193 P. 3d 1108

 2008) ( citing Miranda, 384 U. S. 478), review denied, 176 Wn.2d 1032 ( 2013).


             Only questions or actions reasonably likely to elicit an incriminating response from the

defendant       can    be   characterized as       equivalent    to interrogation.      State v. Wilson, 144 Wn. App.

166, 184, 181 P. 3d 887 ( 2008) (            citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682,

64 L. Ed. 2d 297 ( 1980)); State              v.   Peerson, 62 Wn.         App.   755, 773, 816 P. 2d 43 ( 1991),    review




denied, 118 Wn.2d               1012 ( 1992).           Generally,       a statement is not the product of custodial


interrogation      when       it is   spontaneous and unsolicited.            State v. Ortiz, 104 Wn.2d 479, 484, 706


P. 2d 1069 ( 1985),           cent.   denied, 476 U. S. 1144 ( 1986).             The determination of voluntariness is




                                                                     6
Consolidated Nos. 40962 -3 -II and 41672 -7 -II



made     upon    the   totality   of circumstances             surrounding the interrogation.               State v. Unga, 165


Wn.2d 95, 100, 196 P. 3d 645 ( 2008); State v. Aten, 130 Wn.2d 640, 663 -64, 927 P. 2d 210


 1996).


                                                     B.    CrR 3. 5 Hearing

             When the State learned mid -
                                        trial that Contreras -Rebollar was planning to testify, it

notified Contreras -Rebollar that it intended to cross -examine him about the statements he had


made     to arresting      officer    Pierce    County         Police Detective Brian P. Vold.                 Defense counsel


requested a      CrR 3. 5      hearing     to determine the admissibility             of   these   statements.     Vold was the


only    witness at     the CrR 3. 5       hearing. The trial court also considered Vold' s earlier testimony in

the State' s case in chief.


             Vold testified that he was assisting with the shooting investigation when he learned that

Hernandez was at a local Motel 6. Vold and other officers went to the motel hoping to locate the

vehicle that had been involved in the shooting. The officers were driving unmarked vehicles and

were not in uniform, but Vold was wearing a jacket that had a " flap pulled down identifying

 him]    as police."     6 Report     of    Proceedings ( RP)         at   700.   While investigating a vehicle similar to

the    car   involved in the shooting, Vold               saw    Hernandez walking           across " an elevated sidewalk"



about    60 feet away. 6 RP          at   701. When Hernandez              noticed   Vold,   she appeared " startled," which




Vold believed       was   in   response     to the   police markings on           his jacket. 6 RP     at   701.   Vold " ordered


her to    continue     walking    around      the   elevated sidewalk         to the left    side of   the complex."     6 RP at


701.


             As Hernandez continued to walk, Contreras -Rebollar " appeared from the same location

 Hernandez] had          appeared     from." 6 RP         at   702.   Contreras- Rebollar seemed to be " conceal[ ing]"



                                                                      7
Consolidated Nos. 40962 -3 - II and 41672 -7 -II



something "      against        his   body "; when he saw Vold, he turned back to the room from which he had

emerged and           then " reappeared        from the     same   location," appearing empty handed.                         6 RP at 703.


Vold pointed his firearm at Contreras -Rebollar and ordered him to come downstairs; Contreras -

Rebollar     complied.           Vold " placed" Contreras -Rebollar "               on    the    ground"      and   handcuffed him. 7


RP   at   885.   Vold did not advise Contreras -
                                               Rebollar of his Miranda rights at this point; and none


of the officers asked him any questions.

           But Contreras -Rebollar spontaneously                       and "   repeatedly        ask[ ed] [   the officers] in various


ways what [      they]       were      doing   and   why [ they]   were      doing    it." 7 RP        at   886.    According to Vold,

Contreras -Rebollar             asked, "    What'    s   going   on?    Why       is this   happening ?"           and "[   t] hings to that


effect."     7 RP       at   886.       When Contreras -Rebollar commented that his family had an attorney,

Vold told him that it                 was "[ n] ot a problem,"     that he        was "   being       detained," and that he ( Vold)


would " respect [                  Rebollar' s]
                         Contreras -                      wishes."      7 RP at 886.


           At the end of the CrR 3. 5 hearing, the trial court orally ruled that ( 1) Contreras -Rebollar

was in custody when he made his statements, but ( 2) Miranda did not apply because there was

no interrogation.


           Here, there was no evidence that any officer attempted to solicit information from

Contreras -Rebollar             when      he spontaneously        made      his   statements.         Although the officers clearly

intended to take him into custody, that alone was not sufficient to show that their actions were

calculated       to    elicit    a    response   from Contreras -Rebollar.                Nor does the record show that his


statements were involuntary or " the product of coercion made under psychological duress while

being     apprehended           by     an undercover officer."           Suppl. PRP         at   5.    The record supports the trial


court' s factual findings and legal conclusions that these statements were voluntary, and not a




                                                                        8
Consolidated Nos. 40962 -3 -II and 41672 -7 -II



product of a custodial         interrogation to   which   Miranda    applied.       Therefore, we uphold the trial


court' s admission of Contreras -Rebollar' s statements.


                                           III. COMMENTS ON SILENCE


          Contreras -Rebollar       next   contends     that   the   State   improperly         commented       on   his


constitutional right to remain silent when it introduced the above statements as substantive

evidence of    his   guilt and   repeatedly   emphasized   his failure to    call   the   police.   8 These claims also

fail.


                                  A. Contreras -Rebollar' s Cross -examination


          On cross -examination at trial, the State asked Contreras -Rebollar whether he had called


the police after the shooting. Without objecting to this question, Contreras -Rebollar testified that

he had not called the police; and he confirmed that after the shooting, he took Hernandez to the

motel and they had sex.

          The State also cross -examined Contreras -Rebollar about what he had told Vold during

the arrest:



          When the police arrived and arrested you, when they called you down, what you
          said to them was not, Hey, I was almost killed.      What you said to them was:

          What' s this all about; why are you doing this, why am I being arrested, correct?

7 In his reply, Contreras -Rebollar appears to argue, for the first time, that his statements were
inadmissible for evidentiary reasons and because he did not waive his Miranda rights. We do
not address issues raised for the first time in a responsive brief. RAP 10. 3( c); State v. Clark, 124

Wn.2d 90, 95 -96       n. 2,   875 P. 2d 613 ( 1994),   overruled on other grounds by State v. Catlett, 133
Wn.2d 355, 361, 945 P. 2d 700 ( 1997).

8
     Because these issues present potential manifest constitutional errors, we address them even
though Contreras -Rebollar did   not object to all of this evidence below. See RAP 2. 5( a)( 3) ( " The

appellate court may refuse to review any claim of error which was not raised in the trial court."
    Emphasis added)).




                                                           9
Consolidated Nos. 40962 -3 -II and 41672 -7 -II




7 RP    at   916.      Again, Contreras -Rebollar did                 not object   to this   question.   Instead, he responded


that   when     Vold ordered him to               come   downstairs, ( 1) he did       not   know   who   the   officers were, (   2)


he asked Vold who they were and what they were doing because they had not identified

themselves, and ( 3) he did not know they were police officers or that he was a suspect until after

he   was on     the    ground.      In rebuttal, the State recalled Vold, who testified that he had announced


directly to Contreras -Rebollar that they were police and that his ( Vold' s) jacket was clearly

marked.




                                             B.   State' s Closing Rebuttal Argument

         In rebuttal closing, the State argued that in determining whether it had proved the intent

element of the charged assaults, the jury could consider what Contreras -Rebollar did after the

shooting, including his comments to the police during his arrest:

                       The last thing that I want to leave you with is the beyond a reasonable
                                                                19'
         doubt         and   the   assault   2 legal issue.           This is not an assault 2, and you know it' s
         not an assault 2 because it does, as I' ve said all along, the assault 1 is focused on
         the defendant' s intent. It doesn' t matter the result; it matters the intent.
                       That " X"      marks        the   spot   defines his intent.          That weapon defines his
             intent.    The    number        of shots     he fired defines his intent.           The fact that he was
             sitting there in      wait   defines his intent. What he did afterwards defines his intent:
             F[ * *] k off. If you tell the police what happened, just one phone call and the same
         thing could happen to you, Regina.
                  Laying [ sic] on the ground being cuffed: What' s this all about? What' s
         this all about? All of those things give you a clear picture, an accurate picture of

             the defendant' s mindset, which is to kill or cause the significant, permanent harm
             to Mr. Solis, what he actually did, ruthless.

8 RP at 1022 -23 ( emphasis added).




9 The trial court had instructed the jury on the lesser included offense of second degree assault.



                                                                        10
Consolidated Nos. 40962 -3 -II and 41672 -7 -II



        Later, the State mentioned Contreras -
                                             Rebollar' s failure to call the police after the Solis' s


alleged initial threat:


                   And when you use your common sense, when you analyze the minutia of
        this   case, please          step back and look at the big picture. Don' t convict because you
        believe that he'         s    in a gang, that kind of thing. That' s not at all what I' m saying,
        but what I am saying is that these people are not acting reasonably and the
        defendant doesn' t do what most people would do if somebody put a gun at them
        and called the police, get away, protect their family and themselves in reasonable
        ways. He goes after him, and that' s what he did.


8RPat1025.


                                                      C. No Prejudice


        A comment on the right to remain silent occurs when evidence of the defendant' s silence


is used to the State' s advantage as either substantive evidence of guilt or to suggest to the jury

that the    silence was an admission of guilt.             State v. Lewis, 130 Wn.2d 700, 707, 927 P. 2d 235


 1996). "     The use of pre -arrest silence as substantive evidence of guilt implicates the Fifth


Amendment       and   is   not    merely    an   evidentiary issue."   State v. Easter, 130 Wn.2d 228, 235, 922


P. 2d 1285 ( 1996).         But the State may use a defendant' s prearrest silence to impeach the

defendant' s credibility if the defendant testifies at trial. State v. Burke, 163 Wn.2d 204, 217, 181

P. 3d 1 ( 2008).


           Contreras -Rebollar does not persuade us that the State used his failure to call the police


as substantive evidence of his guilt. Rather, the record shows that Contreras -Rebollar testified at


trial and the State used this evidence on cross -examination to impeach his self defense claim,
                                                                                 -

which is permissible. See Burke, 163 Wn.2d at 217.


           In its rebuttal closing argument, however, the State argued that the jury could consider

Contreras- Rebollar' s failure to tell Vold that he ( Contreras -Rebollar) had acted in self -
                                                                                             defense as




                                                              11
Consolidated Nos. 40962 -3 -II and 41672 -7 -II



evidence of his " intent, "10 substantive evidence of Contreras- Rebollar' s guilt; this was improper.

But this error does not warrant PRP relief unless Contreras -
                                                            Rebollar also establishes that this


comment resulted          in   actual and substantial prejudice            to his   case.     Finstad, 177 Wn.2d at 506.


Given the other evidence in this case, he fails to meet this burden. Even if the jury had not heard

about Contreras- Rebollar' s comments to Vold, there was other evidence of Contreras- Rebollar' s


intent,   including his behavior ( as           opposed   to     his   comments)    following   the shooting—    leaving the

scene, booking into a motel, and having sex with Hernandez, rather than contacting the police —

inconsistent                           defense.
                  with a claim of self -                       We hold, therefore, that Contreras -Rebollar is not


entitled to PRP relief on this ground.


                                  IV. No INEFFECTIVE ASSISTANCE OF COUNSEL


           Contreras -Rebollar next claims that his trial counsel provided ineffective assistance"

                                                                               WPIC12

when      he failed to    propose    a   jury   instruction based         on            6. 41 addressing the weight and

credibility of Contreras- Rebollar' s in- custody statements. 13 This claim also fails.

1°
     8 RP at 1022.

11
     The State argues that Contreras -
                                     Rebollar cannot raise this ineffective assistance of counsel
claim in his supplemental PRP because he previously raised an ineffective assistance of counsel
claim     in his direct   appeal, which we         have already         addressed on    the   merits.   Although Contreras -

Rebollar previously raised and we addressed an ineffective assistance of counsel claim, see
Contreras- Rebollar, 2009 WL 448902,                      at *    7 -9, his current ineffective assistance of counsel
claim is premised on different grounds, the merits of which we have not previously addressed.
12
     11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:                                        CRIMINAL 6. 41, at
196 ( 3d    ed.   2008) ( WPIC).


13In his reply, Contreras -Rebollar attempts to argue that he also received ineffective assistance of
appellate counsel when his appellate counsel failed to raise this argument in his earlier direct
appeal.  Again, we will not address issues raised for the first time in a responsive brief. Clark,
124 Wn.2d at 95 -96 n.2.




                                                                   12
Consolidated Nos. 40962 -3 -II and 41672 -7 -II



         To    establish       ineffective    assistance      of     counsel,   Contreras -
                                                                                          Rebollar must show both

                                                               14
deficient   performance and         resulting   prejudice.           In re Pers. Restraint of Yates, 177 Wn.2d 1, 35,

296 P. 3d 872 ( 2013) (        citing Strickland v. Washington, 466 U.S. 668, 687 -88, 104 S. Ct. 2052, 80

L. Ed. 2d 674 ( 1984)).         Contreras -Rebollar fails to establish deficient performance or prejudice.


                                             A. No Deficient Performance


         CrR 3. 5( d)( 1), (    4) provides:


         If the   court rules    that the    statement   is   admissible, and     it is   offered   in   evidence: (   1)

         the defense may offer evidence or cross -examine the witnesses, with respect to
         the statement without waiving an objection to the admissibility of the statement; .
               4) if the defense raises the issue of voluntariness under subsection ( 1) above,
         the jury shall be instructed that they may give such weight and credibility to the
         confession in view of the surrounding circumstances, as they see fit.

Courts normally give a WPIC 6.41 instruction when the defendant challenges the voluntariness

of a statement. WPIC 6. 41 provides:


         You may give such weight and credibility to any alleged out - - ourt statements
                                                                     of c
         of the defendant as you see fit, taking into    consideration the surrounding
          circumstances.




WPIC 6. 41, at 196. The accompanying note on use of this instruction states:

          This instruction must be given upon request of a defendant when, after a CrR 3. 5
          hearing, the trial court has ruled that an out of court statement is admissible and
          the defense has raised the issue whether the out of court statement was voluntary
          through the evidence offered or cross -examination of witnesses.


WPIC 6. 41, at 196.



14
     Although this is a PRP, Contreras -Rebollar can establish ineffective assistance of counsel if he
meets    the   prejudice   standard     that   applies   to   such claims when raised           in   a    direct   appeal.   In re
Pers. Restraint of Crace, 174 Wn.2d 835,                       846 -47, 280 P. 3d 1102 ( 2012) ( "[ I] f a personal
restraint petitioner makes a successful ineffective assistance of counsel claim, he has necessarily
met his burden to show actual and substantial prejudice. ").




                                                                    13
Consolidated Nos. 40962 -3 -II and 41672 -7 -I1



        Contreras -
                  Rebollar does not show that his trial counsel failed to offer this instruction; on

                                                                                          15
the contrary, the   record shows      that   his   counsel proposed   this instruction.        Accordingly, to the

extent Contreras -Rebollar predicates his deficient performance claim on failure to propose this

instruction, it fails.


                                                   B. No Prejudice


         But even if we liberally construe Contreras -Rebollar' s challenge as asserting that his

counsel should not have acquiesced to the trial court' s characterization of his proposed


instruction as inapplicabile, Contreras -Rebollar still fails to establish the prejudice prong of the

ineffective assistance of counsel test. Despite his evidence about the circumstances under which


he made statements to Vold and his explanation at trial about why he did not tell Vold he had

acted in self -
              defense, Contreras -Rebollar offered no evidence suggesting that his statements were

involuntary,   the necessary trigger for giving WPIC 6. 41.               Thus, even if defense counsel had


challenged the trial court' s initial comments about the instruction and insisted that the trial court


give   it, it is unlikely the trial    court would       have   allowed   this instruction.      Thus, Contreras-


Rebollar cannot show prejudice. His ineffective assistance claim fails.




15 The trial court acknowledged that defense counsel had proposed an instruction based on WPIC
6. 41. The State advised the trial court that this instruction was required only " if the defendant
contests a 3. 5 hearing as to whether or not the statements were voluntary."      7 RP at 948. The
trial court responded, " Does that really apply here?  The only statements we have is, [`] Why are
you doing this.[']"  7 RP at 948. After the State asserted that it did not think the instruction was
appropriate,    defense counsel agreed and withdrew the proposed instruction without further
argument.




                                                          14
Consolidated Nos. 40962 -3 - I1 and 41672 -7 -I1



                                  V. PROSECUTORIAL MISCONDUCT CLAIMS

        Contreras -Rebollar next contends               that the          State engaged in several instances       of


prosecutorial misconduct during its cross -examination of him and in closing argument.

Contreras -Rebollar fails to show he is entitled to relief on this ground.

                                                    A. Standards


        A defendant claiming prosecutorial misconduct must establish the impropriety of the

prosecutor' s   comments and       their   prejudicial effect.          State v. Brown, 132 Wn.2d 529, 561, 940


P. 2d 546 ( 1997),   cent.   denied, 523 U.S. 1007 ( 1998).               If the defendant failed to object to any of

the prosecutor' s allegedly improper statements at trial, the defendant must show that the

prosecutor' s comments were " so flagrant and ill-intentioned that [ they] cause[ d] an enduring and

resulting prejudice that could not have been neutralized by a curative instruction to the jury."

Brown, 132 Wn.2d at 561.


        Because this is a PRP, however, Contreras -Rebollar must also satisfy the higher PRP

prejudice    standards:      He   must     establish " either         that he . . .   was actually and substantially


prejudiced   by   constitutional error or      that   his ...        trial suffered from a fundamental defect of a


nonconstitutional nature       that   inherently   resulted      in   a complete miscarriage of   justice."   Finstad,


177 Wn.2d at 506. He fails to meet both standards.


                                                      B. Tailoring

        Contreras -Rebollar argues that the State committed prosecutorial misconduct during

cross- examination by asking whether he was tailoring his testimony to the evidence.

Specifically, he directs us to the following exchange during cross -examination immediately after




                                                                15
Consolidated Nos. 40962 -3 - II and 41672 -7 -II



Contreras -Rebollar testified        about    having       seen   Solis   with   a   gun   as   he ( Contreras -Rebollar)


approached Solis' s car:


                    Q [ State].          You' re not having your testimony just conform to the
         evidence, are you?

                    A [Contreras -Rebollar].               What do you mean?
                    Q.        You didn' t just listen to this case and understand that [ Solis] had
         his fingers of his left hand blown off?
                    A.        No.
                Q.       Which would mean that there would be blood somewhere
         probably, if it was touching the gun, correct?
                    A.        I guess.
                    Q.        You know where the gun was found, with the stock in the back
             seat, the barrel to the front, and he was leaning on it with his hands in his lap,
             correct?

                    A.        Yes.
                    Q.        And my      question   is:   Aren' t you just trying to use the testimony,
             use the evidence, and create a story?
                    A.        No, sir.


7 RP     at    922 -23.   Our Supreme Court has expressly allowed the State, in response to the

defendant' s testimony on direct, to cross -examine a testifying defendant about possible tailoring.

State   v.   Martin, 171 Wn.2d 521, 535 -36, 252 P. 3d 872 ( 2011).                  The cross -examination approved


in Martin is what occurred here; it was not misconduct.


                                                     C. Confrontation


             Contreras -Rebollar next argues that the State improperly commented on his right to

confront witnesses against him by suggesting in closing argument that Contreras- Rebollar' s self -

defense       claim was a "   fabrication,"   as demonstrated by the inconsistencies between the evidence

he   offered and other     testimony: Suppl. PRP           at   20.   He directs us to the following portions of the

State' s closing and rebuttal arguments:

                    This is not a case of self -
                                               defense. This was an ambush, and to suggest that
             this is self -
                          defense is misplaced. Self defense in this case is nothing more than a
                                                     -
             creation of the defense after the facts, after understanding what the State' s




                                                                16
Consolidated Nos. 40962 -3 -II and 41672 -7 -II



       evidence is, and coming up with some explanation in an attempt to sell to you that
       the defendant acted in self -
                                   defense.


8 RP at 977 ( emphasis added).


                    The    same     with      Yessica [ Rosas].        And then what else did Yessica say?
       And I       want    to   point out     something    else as well.    The defendant' s testimony differs
       from every single other witness, people that were in these cars, Yessica, people
       that       were   there.     His testimony differs from every                  other   person.   And why?
       Because it           the only way he has a chance of convincing you that it' s self defense.
                                                                                           -
       He'    s   trying   to    create a     doubt.   That' s the desperation that he has, to hope that
       you' ll be naive enough to believe that anything he says has to be believed or
       creates enough of an issue that you won' t be able to convict him.

8 RP at 988 ( emphasis added).


                    So the defendant' s story is nothing more, as I've said, than an attempt to
       convince you             after   the   facts that   you   should    have   a    doubt in this    case.   And
       fortunate for him, [ Solis] had an inoperable weapon between the seats or he has
       no case at all. That' s what he centered his case on, and he crafted this " if you
        ever come         back to the East Side, I' ll kill He' s crafted the lights being out.
                                                                   you."

       He' s crafted, clearly, the situation that it occurred seeing him down the road in
       this dark place, seeing the car, seeing the stock of a weapon, and seeing it as he
       rounds the corner as the driver, and within a split second, let' s say less than five
       seconds, certainly, not only has his passenger identified this person and said who
       he is, screams several times " there he is ", for him to do something , do something,
        but he' s been able to roll down his window, he' s been able to retrieve his weapon
        from under his seat, get it ready, and by the time [ Solis] comes all the way to here
        without shooting, he fires on him. It didn' t happen. This is an ambush.

8 RP at 993 -94 ( emphasis added).


                    With all due respect, reiterating the defendant' s crafted self -
                                                                                    defense claim,
        it is nothing    more than that.    It' s just reiterating what the defendant tried to sell
        you, and you know that the defendant is not credible for several reasons.

8 RP at 1012.


                    Also, driving with [Hernandez] to two friends' homes, remember, this is a
        long, convoluted story that the defendant gives about where he was and why he
        was       different     places.       The defendant didn' t actually answer the question asked.
        He had a story ready to give and he was going to get it all out. And he told you
        that there were two friends, two people that could corroborate what he had to say,
        Eric, and I believe the other person' s name was Shawna or something like that.


                                                                  17
Consolidated Nos. 40962 -3 -II and 41672 -7 -II




8 RP    at   1014 -15 (   emphasis added).        Contreras -Rebollar did not object to any of this argument.

             Contreras -
                       Rebollar appears to claim that the State made the above arguments in an


attempt to infringe on his right to confront witnesses; this claim, however, is essentially an

objection to the State' s pointing out that the evidence did not support Contreras- Rebollar' s

defense. " It is     not misconduct ...           for a prosecutor to argue that the evidence does not support

the   defense theory." State           v.   Russell, 125 Wn.2d 24, 87, 882 P. 2d 747 ( 1994), cert. denied, 514


U. S. 1129 ( 1995).        Thus, this claim also fails.

                                              D. Prosecutor' s Personal Belief


             Prosecutors may not " state their personal beliefs about the defendant' s guilt or innocence

or    the credibility     of   the   witnesses."        State v. Dhaliwal, 150 Wn.2d 559, 577 -78, 79 P. 3d 432


 2003) ( citing State       v.   Reed, 102 Wn.2d 140, 145, 684 P. 2d 699 ( 1984)).              But such was not the


case here.


                                                  1.    Defendant' s credibility

             Citing the same portions of the record set out above, Contreras -Rebollar also appears to

contend       that the State'    s allegations                        Rebollar had " fabricat[ ed]"
                                                       that Contreras -                               his self defense
                                                                                                               -


claim was tantamount to the State' s improperly expressing its personal belief about his

credibility. Suppl. PRP at 20. This claim fails.

             Even presuming, without deciding, that the prosecutor' s comments suggested such a

personal belief, these closing argument statements were not so flagrant and ill-intentioned that

any    potential prejudice could not            have been      cured                 Rebollar
                                                                       had Contreras -          objected.   Moreover,


 1) taken in context, the jury could have understood these remarks to address whether Contreras -

Rebollar' s self-defense claim was reasonable in light of all of the evidence; and ( 2) the trial court



                                                                  18
Consolidated Nos. 40962 -3 - II and 41672 -7 -II



had instructed the   jury   that it   was    the "   sole   judge ...     of   the credibility of   each witness,"    and we




presume that the jury followed the court' s instructions. State v. Foster, 135 Wn.2d 441, 472, 957

P. 2d 712 ( 1998); State'    s   Response,      App. G ( Jury           Instruction 1).     Because Contreras -Rebollar


fails to show that an objection and proper instruction would not have cured any potential

prejudice or that this argument was prejudicial in light of the other jury instructions, he is not

entitled to relief on this ground.


                                                         2. Witnesses


        Contreras -Rebollar further contends that the State engaged in prosecutorial misconduct


by   vouching for   and   expressing     personal         belief   about certain witnesses'         credibility.   Contreras -


Rebollar cites the following portions of the record:

                  What he did         was    nothing        more   than    search   out [   Solis] and shoot him
        down, gun him down. And I'm going to tell you right now that the most important
        witnessto this situation is Jose [( Rosas' s father)], and I'll tell you why.



                  Now, the next thing I want to do is, again, move to the evidence which
         supports  that this is an ambush. I' m going to put back in front of you one of

         several keys to this case, and that' s this diagram. .. .
                  I' ll get right to the most important factor from the beginning, and that is
         Jose Rosas. What did Jose tell you and what motivation does Jose have to tell you
         anything but the truth.
                Jose told you that at one point he got up and told the defendant to leave
         and Regina to leave. He watched them get up, he watched them go to the car, and
         he didn' t leave the door frame             and go     back to his bed.          He watched them drive
         down the    street until     they   took    a   left turn to leave.
                                                             Then and only then did he go
         back to his room, get back in his bed, and try to get back to sleep, and it' s only
         then that he hears gunfire.
                  You will have to say either to be polite, he' s mistaken, or that he' s lying
         about that in order to believe the defendant. Because what did the defendant say?
         The defendant said he immediately left and as he was rounding this corner, he
         saw Smiley, [ Solis'] s car, and Regina started screaming. He reached for his gun,

         rolled his window down, and started shooting.
                 Somebody is not telling the truth. It could not have happened both ways.
         Other issues that are just as important that support Mr. Rosas' s statement about
         what happened, first of all, the time period in which he gave that statement was



                                                                 19
Consolidated Nos. 40962 -3 - II and 41672 -7 -1I



         right   as   officers   got   there he       gave    a   statement   to them   immediately.    So did
         Yessica. And Yessica also says that she saw her dad make them leave.


8 RP at 981 -83 ( emphasis added).


                  The physical scene supports everything that was said by Ahria [ Kelly],
         and   Ahria is the only       one   apparently       who remembers.      Either that or [ Solis] is not
         willing to talk     about     it for      whatever reason.       But Ahria has no motive to say
         anything other than what happened. He said in the hospital that he was afraid of
         what would      happen if he told in the ` hood.
                                                      He was afraid of being a snitch. But
         in court, and I apologize for using this language, but I think it' s expressive; it' s
         how he represented his motive for talking, he just said: F[* *]k it; I'm going just

         going to tell the truth. And he did. By all accounts, based on the physical scene,
         it appears that he' s telling the truth.

8 RP at 986 ( emphasis added).


         Although some of the above comments arguably reflect the prosecutor' s personal belief

about a witness' s credibility, as we have previously discussed, any prejudicial impact of these

comments could have been cured by a timely objection from Contreras -Rebollar and curative

instruction by the trial court. But Contreras -Rebollar did not object to any of this argument that

he now challenges for the first time. Nor does he show that the comments were flagrant and ill -

intentioned. Furthermore, again we note that the trial court instructed the jury that it was the sole

judge    of   credibility;   and nothing in the record suggests that the jury did not follow this

instruction. Foster, 135 Wn.2d               at   472. Thus, Contreras -Rebollar is not entitled to relief on this


ground.



                                                  E. Facts outside the Record


          Contreras -Rebollar also appears to assert that several portions of the State' s closing

argument were not supported             by    the   record.   16 Even if this were the case, again we note that the


16
     Specifically, Contreras -Rebollar cites the following portions of the record:


                                                                  20
Consolidated Nos. 40962 -3 - II and 41672 -7 -1I



trial court instructed the jury that the State' s argument was not evidence and that it (the jury)

must    disregard any        statement or argument not supported                by   the      record.   Again, we presume the


jury follows the trial court' s instructions. Foster, 135 Wn.2d at 472. Thus, this claim also fails.

                                                   VI. CUMULATIVE ERROR


         Finally, Contreras -Rebollar asserts that cumulative error deprived him of a fair trial.

Again, we disagree.


         Even if each error standing alone would otherwise be considered harmless, cumulative

error   may   warrant reversal when           the   errors combined          denied the defendant          a   fair trial. State v.



               Jose told you that at one point he got up and told the defendant to leave
         and Regina to leave. He watched them get up, he watched them go to the car, and
         he didn' t leave the door frame                 and go     back to his bed.          He watched them drive
         down the            they
                        street until          took   a    left turn to leave.
                                                            Then and only then did he go
         back to his room, get back in his bed, and try to get back to sleep, and it' s only
         then that he hears gunfire.
8RPat983.
                    What      other significant value        does that      reaction and       that   statement   have? It
         proves that the defendant is not telling the truth, is not credible on .the stand,
         because      what     did he say     on   the   stand under oath?         That she brought the issue of

          Smiley to his attention as they were rounding that corner, that she did that.
                 And there' s another example right there of a big material contrast between
         what the other person in the car said happened and what the defendant does. And
          what does Regina have to lose or gain by telling you anything other than the
          truth? What does the defendant have to lose or gain by telling you anything other
          than the truth.
8 RP at 1017.
                     Then, finally, the defense says time is relative. I mean, come on. Jose and
          Yessica don' t have          much   to   add    to this   case.    It' s just   a   few   seconds.   Well, first
          of all,   that'   s not testimony. It wasn' t a few seconds, it was minutes. It was,
                                    their

          went   back to bed, trying to get to bed. It was Jose watching the car and take the
          turn, then he went to bed, and then, after a period of time, he heard the gunfire.
                     It was Yessica saying she watched her dad escort them out and watched
          her dad till he closed the door and then she went and closed her door, got back in
          bed and was laying there for a period of time before she heard the gunfire.
 8 RP at 1021.




                                                                    21
Consolidated Nos. 40962 -3 -II and 41672 -7 -II


Weber, 159 Wn.2d 252, 279, 149 P. 3d 646 ( 2006),                  cent.   denied, 551 US. 1137 ( 2007).    The


defendant, however, bears the burden of proving an accumulation of error of such magnitude that

retrial   is necessary. State   v.   Yarbrough, 151 Wn.    App.    66, 98, 210 P. 3d 1029 ( 2009). Contreras -


Rebollar fails to carry this burden.

          Even presuming,        without   deciding,   that ( 1)     the State improperly used Contreras -

Rebollar'    s statements   to the arresting   officers as substantive evidence, (    2) portions of the State' s


argument may have suggested personal belief as to Contreras- Rebollar' s guilt or some of the

witnesses' credibility, and ( 3) portions of the State' s argument were not supported by the record,

in light of the other evidence and the jury instructions in this case, Contreras -Rebollar does not

show that these errors cumulatively deprived him of a fair trial. Accordingly, he is not entitled to

relief on this ground.


           We deny this petition.
           A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




                                                         22
