                                                                           i- ILLU
                                                                 COURT OF APPEALS OIV
                                                                  STATE OF WASHINGTON

                                                                   Z0I3HAR -^ AH 10: 26




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

STATE OF WASHINGTON,                                No. 68308-0-

                      Respondent,

              v.



EDIBERTO MUJO-HERNANDEZ,                           UNPUBLISHED OPINION

                      Appellant.                   FILED: March 4, 2013


       Verellen, J. — Ediberto Mujo-Hernandez appeals his conviction for second

degree robbery. He argues the trial court erred by dismissing a juror who called in sick

the morning of trial. He further contends the court erred by misreading a portion of the

accomplice liability instruction to the jury. The trial court properly dismissed the ill juror

and swore in the alternative juror along with the 11 other jurors. While the court did

misread a small portion of the accomplice liability instruction, any error was harmless

beyond a reasonable doubt. The record amply supports his conviction as a principal for

second degree robbery—the only crime charged. We affirm Mujo's conviction.1
                                           FACTS


       On the evening of June 19, 2011, Aaron Palmer sat down on the steps of Seattle

Fitness in Pioneer Square. He pulled out his cell phone to text some friends. Ediberto




       1Mujo considers Mujo, rather than Mujo-Hernandez, to be his last name.
No. 68308-0-1/2



Mujo and a few friends, including Jayro Munoz Monterroso, were driving around the

neighborhood. Monterroso said he wanted to go "kick someone."2 Mujo and
Monterroso saw Palmer sitting on the steps of Seattle Fitness and ran up to him. Mujo

grabbed Palmer's hood and dragged him down the stairs. Monterroso kicked Palmer,

and Mujo grabbed Palmer's cell phone from Palmer's hands. Mujo and Monterroso

then ran back to their car and drove away. A security camera from Seattle Fitness

captured the incident, although the footage does not show Mujo taking the cell phone

from Palmer.

       The State charged Mujo with one count of second degree robbery. The court

instructed the jury on the lesser-included offenses of assault in the fourth degree and

theft in the third degree. The juryfound Mujo guilty of second degree robbery, and the

court imposed a standard range sentence.

                                       DISCUSSION

                                      Juror Dismissal

       Mujo first challenges the court's decision to dismiss juror 13, arguing the court

was obliged to inquire into the juror's ability to serve, and contending the dismissal
deprived Mujo of his right to a trial by jury. We review a trial court's decision to excuse

a juror for abuse of discretion.3
       The morning after the jury had been selected, but before the jury had been

sworn, juror 13 left a phone message that she was ill. The trial court proposed going


       2 Report of Proceedings (RP) (Jan. 10, 2012) at 101.
     3 State v. Elmore, 155 Wn.2d 758, 768, 781, 123 P.3d 72 (2005); State v. Jorden,
103 Wn. App. 221, 226, 11 P.3d 866 (2000).
No. 68308-0-1/3



forward with the remaining 11 jurors plus the alternate. Mujo's counsel objected, noting

that juror 13 is African American and Mujo is a person of color. Defense counsel

suggested setting the one day trial over for one day, presumably to see if juror 13 had

recovered. The trial court declined delaying the trial and the trial proceeded with 12

jurors.

          RCW 2.36.110 sets forth the circumstances under which a court must excuse a


juror:

          It shall be the duty of a judge to excuse from further jury service any juror,
          who in the opinion of the judge, has manifested unfitness as a juror by
          reason of.. . any physical or mental defect or by reason of conduct or
          practices incompatible with proper and efficient jury service.

          CrR 6.5 governs the procedure a trial court must follow if a juror is found unable

to perform his or her duties. If the juror is found unable to perform before submission of

the case to the jury, "the court shall order the juror discharged, and the clerk shall draw

the name ofan alternate who shall take the juror's place on the jury."4
          In State v. Jorden, we upheld the court's decision to dismiss a juror who, over the

course of several days, yawned, dozed, and sat with her eyes closed during the

testimony of various witnesses.5 We reasoned the court properly exercised its discretion




      4 CrR 6.5 (emphasis added). The same rule provides a different procedure in the
event a juror is unable to perform his or her duties after deliberations commence. See,
e.g.. State v. Ashcraft. 71 Wn. App. 444, 467, 859 P.2d 60 (1993) (holding the trial court
erred by failing to reinstruct the reconstituted jury that it must disregard previous
deliberations with dismissed juror and begin deliberations anew). This procedure is
inapplicable here, where the court dismissed juror 13 the morning of trial, before the court
had sworn in the jury.
          5 103 Wn. App. 221, 226, 230, 11 P.3d 866 (2000).
No. 68308-0-1/4



to dismiss the inattentive juror because "fpjnce the juror was found to be unfit, the trial

judge was required under CrR 6.5 to remove her from the jury."6
       Mujo does not establish the trial court abused its discretion by accepting the

phone call at face value. Juror 13 was, by virtue of illness, unfit to serve. Having

determined the juror's inability to serve, the trial court made the logical decision to

proceed with the 12 jurors who were present on the morning trial was to begin—

precisely the procedure mandated by CrR 6.5. Further, the dismissal of juror 13 was

less disruptive than in Jorden, where the court had to dismiss the juror during trial.

       The trial court determined that a one day delay for a one day trial was "fraught

with problems," particularly with a long weekend approaching.7 The court's concern
was consistent with the statutory directive that a court consider juror dismissal with an

eye to "proper and efficient jury service.8
       We reject, as we did in Jorden. the contention that dismissal of a juror before

deliberation prejudices the defendant's right to a fair trial.9 As in Jorden. the court here
dismissed the juror before the jury began deliberating, so "the issue of prejudice is

premature."10 A defendant does not have a right to be tried by a jury that includes any

particular juror.11




       6JU at 230.
       7RP(Jan. 10. 2012) at 33.
       8 RCW 2.36.110 (emphasis added).
       9Jorden, 103 Wn. App. at 229.
       10JU
       11 State v. Gentry. 125 Wn.2d 570, 615, 888 P.2d 1105 (1995).
No. 68308-0-1/5



       Nor are we persuaded by Mujo's contention that the court's dismissal of juror 13,

who is African American, requires a Batson analysis.12 "Batson prevents a party from
exercising a peremptory challenge based on race, in violation of a defendant's right to

equal protection."13 The State did not exercise a peremptory challenge to juror 13.
Juror 13 called in sick.

                                        Jury Instructions

       Mujo also asserts that an error in the court's recitation of the accomplice liability

instruction relieved the State of its burden of proof.14 Mujo acknowledges that the
written accomplice liability instruction correctly stated the law. The pertinent portion of

the written instruction stated:

             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.'151




       12 Batson v. Kentucky. 476 U.S. 79, 106 S. Ct. 1712, 90 L Ed. 2d 69 (1986).
       13 Jorden. 103 Wn. App. at 230 (rejecting the identical argument) (citing Batson.
476 U.S. at 89).
       14 The State contends Mujo waived his right to raise this issue on appeal by failing
to object to the instruction at trial. We address Mujo's argument, as a defendant may
raise for the first time on appeal a "manifest error affecting a constitutional right."
RAP 2.5(a)(3). "An error is 'manifest' if the defendant demonstrates that it had practical
and identifiable consequences in the trial." State v. King. 113 Wn. App. 243, 265 n.2, 54
P.3d 1218 (2002). Instructional error that may be construed as relieving the State of the
burden of proving an element of its case is manifest and of constitutional magnitude, jd.
       15 Clerk's Papers at 46.
No. 68308-0-1/6



        However, Mujo contends the trial court's error in its recitation of the instruction to

the jury allowed the jury to find him guilty as an accomplice if he had knowledge of any

crime committed by the principal, rather than knowledge of the charged crime. In

verbally instructing the jury, the court misread the definite article "the" as the indefinite

article "a" in two instances:

        A person is an accomplice in the commission of a crime if[,] with
        knowledge that it will promote or facilitate the commission of a crime[,] he
        or she either, one, solicits, commands, encourages, or requests another
        person to commit a_crime, the crime; or, two, aids or agrees to aid another
        person in planning or committing the crime.[16]
The error in the court's recitation of the instruction is harmless only if we can "'conclude

beyond a reasonable doubt that the jury verdict would have been the same absent the

error.'"17

        In cases where a defendant alleges error in the accomplice liability instruction,

the harmless error inquiry is "inextricably interwoven" with the facts of the particular

case.18 If the record contains evidence that a defendant acted as a principal, i.e.,

through direct participation in the charged crime, "the difference between 'a crime' and

'the crime' in the accomplice instruction is harmless beyond a reasonable doubt."19
        In State v. Brown. Brown challenged an error in the accomplice liability

instruction where he had been convicted for first degree robbery, first degree assault,


        16 RP (Jan. 12, 2012) at 159 (emphasis added).
        17 State v. Brown. 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v.
United States. 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L Ed. 2d 35 (1999)).
      18 King. 113 Wn. Add, at 266: see also Brown. 147 Wn.2d at 341 (applying the
harmless error analysis requires a thorough examination of the record as to each
defendant).
        19 Brown. 147 Wn.2d at 341.
No. 68308-0-1/7



and first degree rape.20 The court noted, "[T]he record shows that Jacob Brown struck
the victim, took his personal property, and held him at gunpoint."21 Because Brown
acted as a principal in the robbery, the instructional error was harmless beyond a

reasonable doubt.22 Conversely, the instructional error was not harmless beyond a

reasonable doubt with respect to the rape and assault charges, as there was no

evidence of Brown's "direct participation ... as a principal."23
       The record reflects Mujo's direct participation in each of the elements of

robbery.24 Mujo admitted to being the suspect in the surveillance video footage who
pulled the sweatshirt over Palmer's head, and admitted that he grabbed the cell phone
from Palmer's hand and drove away. Palmer testified he had not given anyone else

permission to have or use the phone.

       Mujo contends the error was not harmless, as the State asked the jury to
consider lesser-included offenses, including the possibility that Mujo aided Monterroso

in assaulting Palmer. Monterroso had stated to Mujo before they saw Palmer that
Monterroso wanted to go kick someone, so Mujo could have been acting as
Monterroso's accomplice in an assault. But Mujo's argument ignores the compelling




       20 147 Wn.2d 330, 341, 58 P.3d 889 (2002).
       21JU
       22 JcL
       23 Id.
       24 RCW 9A.56.190 (defining the crime of robbery). "A person is guilty of robbery in
the second degree if he or she commits robbery." RCW 9A.56.210(1).
No. 68308-0-1/8



evidence in the record of his direct participation in all elements of the only crime

charged—second degree robbery.25
       Notwithstanding the compelling evidence of Mujo's participation as a principal in

second degree robbery, there is also ample evidence of his direct participation in the
lesser-included offenses. Mujo grabbed Palmer's hood and pulled him down the stairs,
acting as a principal in the lesser-included offense of assault in the fourth degree.26
Mujo took Palmer's phone from his hand, acting as a principal in the lesser-included
offense oftheft in the third degree.27 Under Brown, the error was harmless.

       Affirmed.




WE CONCUR:




        25 Mujo's reliance on State v. Sanchez. 122 Wn. App. 579, 94 P.3d 384 (2004), is
similarly unpersuasive. There, the court failed to read the entire assault definition, which
 relieved the State of its burden of proving every essential element of the crime beyond a
 reasonable doubt. JU at 589-90.
       26 RCW 9A.36.041(1) ("A person is guilty of assault in the fourth degree if, under
 circumstances not amounting to assault in the first, second, or third degree, or custodial
 assault, he or she assaults another.").
        27 RCW 9A.56.050(1)(a) ("A person is guilty of theft in the third degree if he or
 she commits theft of property or services which (a) does not exceed seven hundred fifty
 dollars in value.").
