                                                                             FILED
                                                                   NOVEMBER 1, 2018
                                                                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. 34655-2-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
DESHAWN ISAIAH ANDERSON,                      )         UNPUBLISHED OPINION
A.K.A.: DESHAWEN ISAIAH                       )
ANDERSON,                                     )
               Appellant.

       SIDDOWAY, J. — DeShawn Anderson appeals what is effectively a lifetime

sentence imposed for charges arising out of his multiple-victim assault with a firearm and

later a murder, both of which took place in a several week period. All were grudge and

retaliation crimes committed by Mr. Anderson shortly after he turned 18.

       We reject his arguments that the trial court failed to recognize that youth can be a

mitigating factor supporting an exceptional downward sentence and that his trial lawyer

provided ineffective assistance by failing to advocate for such a sentence. We agree with

Mr. Anderson’s challenge to an unconstitutionally vague gang-related community

custody condition and remand for resentencing so that the court can either clarify the
State v. Anderson
No. 34655-2-III


condition or strike it. The trial court can correct two scrivener’s errors conceded by the

State and conduct a Blazina1 inquiry at the same time.

       We reject seven challenges to Mr. Anderson’s convictions that he raises in a pro se

statement of additional grounds. The convictions are affirmed.

                     FACTS AND PROCEDURAL BACKGROUND

       On November 18, 2014, law enforcement responded to a report of a shooting in

Pasco, Washington. Four men had been sitting in a car when two men opened fire at the

occupants. All four occupants were hit by the gunshots. One of the occupants yelled, “I

think that was Shawn,” during the shooting. Report of Proceedings (RP) at 1030.

Investigation revealed the occupants in the car to be Florencia-13 gang members.2 Mr.

Anderson quickly become a suspect in the November 18 shooting but could not be

located by police.

       The next day, apparently in retaliation for the shooting, three men attacked a

location that Mr. Anderson and his associates often visited. During this attack, Mr.

Anderson’s cousin was shot and injured. One of Mr. Anderson’s friends, Anthony

Guerrero, was shot and killed.




       1
          State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).
       2
          At trial, the State did not offer evidence to the jury that Mr. Anderson had a gang
affiliation, although it offered evidence of the gang affiliation of other individuals. It
contended outside the presence of the jury that Mr. Anderson was a gang member.
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No. 34655-2-III


       Two weeks later, on December 3, Pasco law enforcement responded to the

shooting of Lorenzo “Ritchie” Fernandez in front of the Stonegate Apartments. He had

been fatally shot inside his car and was pronounced dead within 45 minutes of the

officers’ arrival at the scene. Like the victims of the first shooting, Mr. Fernandez was

associated with the Florencia-13 gang. A witness saw two men jump the fence at the

apartment complex immediately after shots were fired and run from the scene. One was

carrying a pistol. Within a week, Mr. Anderson had become a suspect in Mr.

Fernandez’s shooting. He was located and arrested on December 11.

       On December 12, Mr. Anderson’s pregnant girlfriend was allowed to visit him at

jail. After that meeting, Mr. Anderson asked to speak to law enforcement. In a recorded

interview led by Detective Anthony Aceves, Mr. Anderson admitted that he had

committed the November 18 shooting and had shot Mr. Fernandez on December 3.

       Mr. Anderson told Detective Aceves that he committed the November 18 shooting

following longstanding problems with the four victims, who he ran into at the Crazy

Moose Casino in Pasco on the night of the shooting. He told the detective that he liked to

street fight and had “never lost, and I don’t stop,” but that the gang members carried

guns, forcing him to “run and then fucking hope I don’t get shot.” Ex. 71 at 9. He said

he had been shot at by Florencia-13 gang members seven times, and gang members had

hit his brother in the head with a brick. He told Detective Aceves that he was “tired of


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State v. Anderson
No. 34655-2-III


this motherfucker cheesing on me everywhere I go. Just laughing about the shit like it’s

funny because I don’t shoot.” Ex. 71 at 9.

       A female friend of Mr. Anderson’s later testified that he sent her a text message

the night of November 18 asking her to pick him up from the casino, which she did. She

testified that Mr. Anderson got into her car angry, telling her he had “issues inside” and

that the four men had “laughed at him.” RP at 930. Video footage from the casino from

the night of shooting was later admitted at trial and showed the four men present at the

casino at the same time as Mr. Anderson, but it revealed no verbal or other confrontation.

In closing argument, though, the prosecutor told jurors, “[I]f you look at the surveillance

photo here, you can see in the grainy footage just the hint of a bit of a smirk on the face

of Tapia Torres. . . . [S]o there’s no issue of a physical or verbal altercation that night.

It’s really about this look and the idea in the defendant’s mind the idea that pricked his

ego that he was being laughed at, that he was being disrespected.” RP at 1501.

       Mr. Anderson told Detective Aceves that he later killed Mr. Fernandez because

Mr. Fernandez was associated with the Florencia-13 gang and he wanted to get back at

them for what they did to Anthony Guerrero. He claimed he called Mr. Fernandez,

pretended to be someone from Mr. Fernandez’s “hood,” and arranged for them to meet in

front of the Stonegate Apartments. Ex. 71 at 35-36. Mr. Anderson said he waited about

10 minutes for Mr. Fernandez to show up before he shot him. Other evidence placed Mr.


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State v. Anderson
No. 34655-2-III


Anderson at the scene but suggested that he had his cousin’s wife contact Mr. Fernandez,

and that Mr. Fernandez had traveled to the Stonegate Apartments thinking he was picking

up a girl.

       The State initially charged Mr. Anderson with one count of first degree murder

and four counts of first degree assault. It later amended the charges to include two counts

of unlawful possession of a firearm.

       The jury found Mr. Anderson guilty as charged. It returned special verdicts

finding that Mr. Anderson was armed with a firearm at the time of each assault and the

murder.

       At sentencing, defense counsel asked the court to “recognize that Mr. Anderson

was very young at the time, barely an adult in this matter. He’s ultimately going to spend

the rest of his life in prison. We ask the Court take that into consideration in sentencing

him.” RP at 1579. In announcing Mr. Anderson’s sentence the trial court made no

mention of his age, however. Instead, the court emphasized the premeditated and wholly

unjustified character of Mr. Anderson’s actions. The court commented that surveillance

video from the casino showed that Mr. Anderson’s victims “did absolutely nothing to Mr.

Anderson on November 18”; as for Mr. Fernandez, he did nothing more than be “labeled

part of a group seen as an enemy.” RP at 1584. The court stated that the killing of Mr.

Fernandez “wasn’t a gunfight. It was an execution.” RP at 1586.


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No. 34655-2-III


       The court explicitly stated that there was no reason warranting a downward

departure. It imposed a midrange sentence, with a total period of confinement of 1,126

months, or 93 years and 10 months. Mr. Anderson appeals.

                                       ANALYSIS

I.     THE TRIAL COURT DID NOT MISAPPREHEND ITS AUTHORITY TO IMPOSE AN
       EXCEPTIONAL SENTENCE AND INEFFECTIVE ASSISTANCE OF COUNSEL IS NOT
       SHOWN

       Mr. Anderson contends the trial court abused its discretion by failing to apply

current Washington case law and consider youth as a mitigating factor. Alternatively, he

contends his trial lawyer was ineffective for failing to argue for an exceptional mitigated

sentence.

       A defendant generally cannot appeal a standard range sentence. RCW

9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). He can

appeal a failure by the sentencing court “to comply with procedural requirements of the

[Sentencing Reform Act of 1981, chapter 9.94A RCW,] or constitutional requirements.”

State v. Osman, 157 Wn.2d 474, 481-82, 139 P.3d 334 (2006); RCW 9.94A.585(2).

Where a defendant appeals a sentencing court’s failure to consider a request for an

exceptional sentence, “review is limited to circumstances where the court has refused to

exercise discretion at all or has relied on an impermissible basis for refusing to impose an




                                             6
State v. Anderson
No. 34655-2-III


exceptional sentence below the standard range.” State v. Garcia-Martinez, 88 Wn. App.

322, 330, 944 P.2d 1104 (1997).

       Under RCW 9.94A.535(1), a court may impose an exceptional sentence below the

standard range “if it finds that mitigating circumstances are established by a

preponderance of the evidence.” In State v. O’Dell, 183 Wn.2d 680, 695-96, 358 P.3d

359 (2015) our Supreme Court made clear that while youth is not a per se mitigating

factor, a defendant’s youth can justify an exceptional sentence below the standard range.

In so holding, it disavowed the reasoning of prior case law to the extent it was

inconsistent. Id. at 696. The court remanded O’Dell’s case for resentencing because “the

trial court clearly believed that [it was] absolutely prohibited . . . from considering

whether youth diminished [the defendant’s] capacity to appreciate the wrongfulness of

his conduct or conform that conduct to the requirements of the law.” Id.

       Mr. Anderson contends that his sentencing suffered from the same infirmity, with

“[t]he trial court erroneously believ[ing] it had no discretion to depart from the standard

range.” Br. of Appellant at 7. But the record does not support that contention. No one

argued at sentencing that the court could not consider Mr. Anderson’s youth as a

mitigating factor. Mr. Anderson’s lawyer argued that he “was very young at the time,

barely an adult.” RP at 1579. The trial court directly addressed the exceptional sentence

option, stating that it had no reason to deviate from the standard range, not that it lacked


                                              7
State v. Anderson
No. 34655-2-III


the legal ability to do so. See RP at 1585 (stating that Mr. Anderson would get a standard

range sentence “[a]bsent a reason to depart, and here there is none”). The court explained

its sentence as warranted by the premeditated and wholly unjustified nature of Mr.

Anderson’s actions.

       Mr. Anderson also asserts conclusorily that his trial lawyer provided ineffective

representation by failing to raise O’Dell and the related case law recognizing a

connection between youth and decreased moral culpability for criminal conduct. But he

fails to present any analysis of the two showings required for an ineffective assistance

claim.3 See Br. of Appellant at 13. Passing treatment of an issue or lack of reasoned

argument is insufficient to merit judicial consideration. Holland v. City of Tacoma, 90

Wn. App 533, 538, 954 P.2d 290 (1998); RAP 10.3(a)(6).

II.    THE GANG-RELATED COMMUNITY CUSTODY CONDITION IMPOSED BY THE COURT IS
       UNCONSTITUTIONALLY VAGUE IN ITS PRESENT FORM

       Mr. Anderson next argues that the trial court violated due process when it imposed

an unconstitutionally vague crime-related prohibition as a community custody condition.

The challenged condition requires that Mr. Anderson not possess “gang paraphernalia
       3
         To demonstrate ineffective assistance of counsel, a defendant must show two
things: “(1) defense counsel’s representation was deficient, i.e., it fell below an objective
standard of reasonableness based on consideration of all the circumstances; and (2)
defense counsel’s deficient representation prejudiced the defendant, i.e., there is a
reasonable probability that, except for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. McFarland, 127 Wn.2d 322, 334-35,
899 P.2d 1251 (1995) (emphasis omitted).
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State v. Anderson
No. 34655-2-III


including clothing, insignia, medallions, etc.” Clerk’s Papers (CP) at 142. Although Mr.

Anderson did not object to the condition at sentencing, challenges to community custody

conditions as illegal or erroneous may be made for the first time on appeal. State v. Bahl,

164 Wn.2d 739, 744, 193 P.3d 678 (2008).

       “Sentencing conditions must adequately inform the offender of what conduct they

either require or proscribe; failure to provide sufficient clarity runs afoul of the due

process protection against vagueness.” State v. Villano, 166 Wn. App. 142, 143, 272

P.3d 255 (2012). This court found that a condition similar to that challenged here was

unconstitutionally vague in State v. Weatherwax, 193 Wn. App. 667, 677-78, 376 P.3d

1150 (2016), rev’d in part on other grounds, 188 Wn.2d 139, 392 P.3d 1054 (2017). In

Weatherwax, the challenged condition was that “the defendant shall not wear clothing,

insignia, medallions, etc., which are indicative of gang lifestyle. Furthermore, that the

defendant shall not obtain any new or additional tattoos indicative of gang lifestyle.” Id.

at 676 (internal quotation marks omitted).

       Weatherwax discussed Washington and federal cases holding that general

prohibitions of gang-related clothing or paraphernalia are unconstitutionally vague, but

that a crime-related prohibition specific to a gang with which a defendant is associated

might not be. As explained by the federal circuit court in United States v. Soltero, 510

F.3d 858, 865-66 (9th Cir. 2007), in which a member of the Delhi gang appealed a


                                               9
State v. Anderson
No. 34655-2-III


condition forbidding him to wear or display Delhi paraphernalia, the district court was

entitled to presume that the defendant would be familiar with his own gang’s

paraphernalia.

       As we did in Weatherwax, we remand for resentencing with directions that the

gang-related condition be stricken or clarified.

III.   MR. ANDERSON IDENTIFIES AND THE STATE CONCEDES TWO SCRIVENER’S ERRORS
       IN THE JUDGMENT AND SENTENCE

       Mr. Anderson next assigns error to two related scrivener’s errors in the judgment

and sentence. The first is language on the second page, checked as applying, which

states, “A special verdict/finding returned/entered that the defendant used firearm in the

commission of Counts I, II, III, IV and V.” CP at 133 (boldface omitted). The second is

language on page 7a, also checked as applying, which states, “The confinement time on

Counts I, II, III, IV, and V includes 60 months as enhancement for [X] firearm.” CP at

140. In fact, the jury was not asked nor did it find use of a firearm in connection with

count II, which charged Mr. Anderson with first degree unlawful possession of a firearm.

The confinement time for that count did not include a 60-month enhancement.

       The State concedes the error. At resentencing, the court is directed to strike or

exclude count “II” from the language in each case.

IV.    SINCE WE REMAND FOR RESENTENCING, MR. ANDERSON’S ABILITY TO PAY
       DISCRETIONARY LEGAL FINANCIAL OBLIGATIONS (LFOS) MAY BE ADDRESSED AT
       THAT TIME

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State v. Anderson
No. 34655-2-III


       Finally, Mr. Anderson argues that the trial court did not conduct the required

Blazina inquiry into his current and likely future ability to pay discretionary LFOs and

that his counsel provided ineffective assistance by failing to challenge his ability to pay.

       During sentencing, the court’s only inquiry into Mr. Anderson’s current or future

ability to pay LFOs was to ask defense counsel’s “position on [his] ability to pay costs

and fines and fees.” RP at 1583. Defense counsel responded:

       Your Honor, my client has the ability to work at this point in time. I always
       tell the Court when we have these types of cases I don’t know what his
       ability, his future ability will be, so we’ll have to address that at some point
       in time. Obviously if he’s going to prison, he won’t be working per se.

RP at 1583-84.

       The court imposed LFOs totaling $11,203.01, with restitution to be determined.

Of that sum, $10,403.01 were discretionary costs including a $250.00 jury demand fee,

$700.00 for a court appointed attorney, a $500.00 fine, and $8,953.01 for a court

appointed defense expert and other defense costs. Defense counsel did not object.

       Since we remand for resentencing, a Blazina inquiry can be conducted and Mr.

Anderson may raise whatever objections he has to any discretionary LFOs imposed.

                      STATEMENT OF ADDITIONAL GROUNDS
       In a pro se statement of additional grounds (SAG), Mr. Anderson raises seven.

They can be consolidated into four contentions: (1) that Mr. Anderson’s confession was



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State v. Anderson
No. 34655-2-III


involuntary, false, and not independently corroborated, (2) juror misconduct, (3) a

violation of his speedy trial right, and (4) ineffective assistance of counsel.

       Involuntary, false, and uncorroborated confession. Mr. Anderson contends that

his confession was improperly admitted at trial because it was involuntary and

uncorroborated. The State presented ample corroboration.

       Mr. Anderson does not explain why we should conclude that his confession was

involuntary. The trial court ruled the statement to be voluntary and admissible following

a CrR 3.5 hearing and entered findings and conclusions explaining its ruling. Mr.

Anderson does not assign error to any of the findings. His SAG does not sufficiently

inform us of the nature of the claimed error. See RAP 10.10(c).

       Mr. Anderson also argues that his confession was clearly false because the

evidence at trial showed that someone named Andres Alegria actually committed the

crimes. A forensic scientist in the DNA4 section of the Washington State Patrol Crime

Laboratory testified at trial that one ammunition magazine provided for her analysis bore

DNA that, when run through CODIS,5 was a match with an individual named Andres

Alegria. Law enforcement testified that they unsuccessfully tried to track down Mr.

Alegria.




       4
           Deoxyribonucleic acid.
       5
           Combined DNA Index System.
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State v. Anderson
No. 34655-2-III


       During closing argument, Mr. Anderson’s trial lawyer argued that the DNA

evidence and law enforcement’s failure to make contact or question Mr. Alegria called

Mr. Anderson’s guilt into question. The prosecution responded that the DNA result was

unsurprising because the 9 mm pistol used to shoot Mr. Fernandez had reportedly been

purchased earlier that day from an acquaintance of an acquaintance, “[s]o it would make

sense that somebody else’s DNA was on it.” RP at 1547.

       The State presented substantial evidence linking Mr. Anderson to the crimes.

Whether his confession was true or false was a question for the jury.

       Juror misconduct. Mr. Anderson argues his convictions should be reversed on

account of misconduct by jurors 6 and 13.

       During trial, the local newspaper ran a story about the trial that included a front-

page picture of Mr. Anderson’s handcuffs being removed in the courtroom. While the

defense argued that the publication warranted a mistrial and change of venue, the trial

court instead questioned jurors individually about whether they had seen the newspaper.

Juror 6 admitted that he saw the photo briefly while buying coffee that morning. He said

he could still be impartial and that seeing the photo did not affect his view of Mr.

Anderson. Asked if he remembered anything about the photo, juror 6 said he “just [saw]

the defendant standing up and part maybe of the defense attorney, the back of her head or

something, and that’s all [he] remember[ed] seeing.” RP at 604.


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State v. Anderson
No. 34655-2-III


       Shortly after that issue was raised, the prosecutor brought it to the trial court’s

attention that a testifying detective recognized juror 13. Juror 13 was brought in for

examination. She said she did know the testifying detective and had indicated as much

on her witness list form. Upon examination by defense counsel, juror 13 indicated that

she would “give [the detective’s testimony] the same weight [she] g[a]ve everybody

else’s testimony” and that she could still be fair and impartial. RP at 614.

       A trial judge has broad discretion to conduct an investigation of jury problems and

may investigate accusations of juror misconduct in the manner most appropriate for a

particular case. State v. Elmore, 155 Wn.2d 758, 773-75, 123 P.3d 72 (2005). The court

need not follow any specific format. State v. Jorden, 103 Wn. App. 221, 229, 11 P.3d

866 (2000). Additionally, “[t]he decision of the trial court will be overturned on appeal

only for an abuse of discretion. If misconduct is found, great deference is due the trial

court’s determination that no prejudice occurred.” Richards v. Overlake Hosp. Med. Ctr.,

59 Wn. App. 266, 271, 796 P.2d 737 (1990) (citations omitted). The trial court did not

abuse its discretion in finding that there was no juror misconduct or prejudice to Mr.

Anderson.

       Speedy trial right violation. Mr. Anderson asserts that his speedy trial rights were

violated. But on September 8, 2015, Mr. Anderson signed a waiver of speedy trial rights




                                              14
State v. Anderson
No. 34655-2-III


and told the trial court that he understood he was waiving that right. RP (Sept. 8, 2015)

at 4-5. No error is shown.

       Ineffective assistance of counsel, including conflict of interest. Finally, Mr.

Anderson argues his counsel was ineffective for failing to meet and confer with him,

lying to the trial court about the amount of time spent with him, and failing to raise

requested issues with the trial court. Because these complaints are almost entirely based

on facts outside the record, Mr. Anderson's remedy is to present any supporting evidence

in a personal restraint petition. State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159

(1991 ).

       We affirm Mr. Anderson's convictions and remand for resentencing. The issue of

costs on appeal will be addressed by our commissioner.

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

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

2.06.040.




WE CONCUR:




                                                   Pennell, A.CJ.


                                              15
