                                                                                                               FILED
                                                                                                         COURT OF APPEALS
                                                                                                            DIVISION ii
                                                                                                      2014 AUG 26
                                                                                                                  AN U. 35
                                                                                                      SP E      WA        TON


      IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                     DIVISION II

STATE OF WASHINGTON                                                                   No. 43358 -3 -II


                                         Respondent,


           v.



JERRO DE JON DAGRACA,                                                        UNPUBLISHED OPINION


                                         Appellant.
STATE OF WASHINGTON,                                                      Consolidated with No. 43365 -6 -II


                                         Respondent,


           v.



COREY DUAWAYN YOUNG,                                                         UNPUBLISHED OPINION


                                         Appellant.


           HUNT, J. —       Jerro De Jon DaGraca and Corey Duawayn Young appeal their jury

convictions and sentences for kidnapping and robbery, for which Young' s sentences include

firearm        enhancements.   Young also appeals his separate conviction and sentence for first degree

unlawful possession of a         firearm.      Both DaGraca and Young ( Defendants) argue that the trial
                                                                                                                      1
court erred       in ruling that the      kidnapping    was not "      incidental to the ongoing     armed   robbery. "


Young separately argues that ( 1) the prosecutor committed misconduct by questioning him about

a bullet located in the pocket of a red and black jacket that he wore during the crimes, and ( 2) his

counsel was        ineffective in   failing   to   object   to the   prosecutor' s   questioning.   DaGraca separately

1
    Br.   of   Appellant ( Young)   at   7.
No. 43358 -3 -II, consolidated with 43365 -6 -II


argues      that RCW           13: 04. 030( 1)(   e)( v)( A),   under which he was tried in adult court instead of


juvenile        court, violates       the Eighth Amendment to the United States Constitution.                       DaGraca also


adopts and incorporates the arguments in Young' s initial and supplemental briefing.

            In    a   Statement       of   Additional Grounds ( SAG),           Young asserts that the trial court denied

him a fair trial, compelled him to testify against himself, violated his time -for -rial rights, and
                                                                                   t

committed             other   irregularities warranting         reversal.      In his SAG, DaGraca           asserts   that ( 1)   his


counsel was ineffective for failing to object to jurisdiction and failing to request a remand to the

juvenile        court, and (    2) his     counsel' s   deficient   performance      denied him    a   fair trial. We hold that


RCW 13. 04. 030( 1)( e)( v)(A) is not unconstitutional, the kidnapping was not incidental to the

robbery,         and the prosecutor' s misconduct during cross -examination was curable by an

instruction.2 We affirm both defendants' convictions and sentences.

                                                                 FACTS


                                                  I. ROBBERY AND KIDNAPPING


            Early in the morning on November 19, 2011, Moua Yang was talking on the phone in his

car in his apartment parking lot when Corey Duawayn Young and Jerro De Jon DaGraca3
                                                                                  One4

jumped          over   the parking lot fence        and approached       him.            pointed a gun at      him,    said, "   Today

is    a   bad    day....       Give    me all your      money;      give me     anything     you got,"      and took Yang' s cell



2 Defendants' other arguments fail.

3 At the time he committed these crime, DaGraca was still a juvenile, approximately one month
and       two         days    short    of    turning     18.      The     State    charged     him     as     an   adult.        RCW
 13. 04. 030( 1)( e)( v)( A).

4
     At trial,    Yang       positively identified both         men as   his   assailants.   In discussing this fact, Young' s
brief of appellant notes that he was the man with the gun.




                                                                     2
No. 43358 -3 - II, consolidated with 43365 -6 -II


phone and $              117.     1 Verbatim Report                of    Proceedings ( VRP)             at    115.    The other told the first man


to     search          Yang' s    pockets       for     credit         cards.       The first man, the one with the gun, found an


Electronic Benefit Transfer ( EBT) "                              Quest "5 food stamp card and a military identification card in

Yang' s        pocket and          demanded the              personal          identification      number       for the Quest         card.    Yang gave

him a fictional number.


              Apparently after checking the number on his phone, the man with the gun told Yang,

    It' s   not       working;    you' re     lying," hit Yang in the stomach, put the gun on Yang' s stomach, and

punched               Yang   in the face.          1 VRP          at   119.     Both men then ordered Yang, at gunpoint, to drive

them to a nearby 7- Eleven, saying, " Let' s                                   go   to 7- Eleven to      get food        and    money.        If you don' t


get     money for            us, you' re     dead."        1 VRP at 119. They pulled Yang " back [ into] the car" and kept

the     gun pointed at            him   while      they directed Yang                     to drive for " about five[- ]seven           minutes" to a 7-

Eleven         store.     1 VRP        at   121.    During the drive, the men said that after they got the money, they

would         kill     Yang     and " put [ him]        in the lake            so   they [ could] have        the    car."    1 VRP at 121.


               Several        police        officers,      standing        at       the    7- Eleven,   saw      Yang        pull    into the lot " very


quickly," "            slam ...       on [ his]    brakes,"            and "   jump ...        out and yell" that he was being robbed and

that "[ t] hey           got guns."         1 VRP       at   71.       DaGraca and Young fled the vehicle, and the police gave

chase on foot. According to Officer Christopher Michael Bowl, the man " with a red hat and red
and         black jacket jumped              out of     the [ p] assenger front               seat,"   and    the    other man, "      in a black jacket,


jump[ ed]             out of    the   rear passenger side                of the      car."     1 VRP     at   73. 74.        The two men split up as

the     police chased            them through the parking lot                        of an adjacent          shopping        mall.   Bowl observed the


man in the red hat and red and black jacket shed the jacket.



5
     Clerk'       s   Papers ( CP) (    Young)        at     6.
No. 43358 -3 -I1, consolidated with 43365 -6 -II


         The police captured and arrested Young and DaGraca, retraced their steps, and found the

discarded hat   and   jacket. Officer Michael Robert Wulff found a gun on the " front passenger side


floorboard "6 of Yang' s car, five . 22 caliber bullets in a magazine in the gun, and a sixth round
loaded in the chamber.


                                                    II. PROCEDURE


         On November 21, 2011, the State                charged      DaGraca7 and Young with first degree robbery

and first degree kidnapping; the State separately charged Young with first degree unlawful

possession of a     firearm.   The State also alleged special firearm sentencing enhancements for the

robbery and kidnapping charges.

                                                    A. Continuances


         Forty - ine days into the case, at a January 9, 2012 hearing, DaGraca' s attorney requested
               n
                                                                                                                          8
a continuance      for time to   prepare     adequately.         DaGraca himself      objected   to this   continuance;




Young    agreed    to it.   Because of the " very serious nature of [the] charges and the fact that. Mr.

DaGraca and Mr. Young [ would be] likely looking at substantial jail time if they [ would be]

convicted,"   the trial court granted the continuance to February 23. VRP (Jan. 9, 2012) at 4.

         At the February 23 hearing, the State moved for a continuance; both defendants objected.

The trial   court continued      the   case until   February         27 because   no courtrooms were available.      On


February    27, the trial    court set   trial   over   to the   next
                                                                        day. At the February 28 hearing, the trial


6
    1 VRP at 30.


7 The State charged DaGraca in adult court.

8 Although DaGraca objected to all requested continuances, he did not assert CrR 3. 3 time -
                                                                                           for-
trial violations below. Nor does he so assert on appeal.




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No. 43358 -3 -II, consolidated with 43365 -6 -II



court proposed continuing the trial to March 8, finding " good cause" because the trial judge was

unavailable to begin on February 29. VRP (Feb. 28, 2012) at 2 -3.

         On March 8,           the trial court heard another State' s motion to continue because the


prosecutor was unavailable.              Young   agreed,      but DaGraca        objected.     The trial court found " good


cause"   to   continue   the   matter one week          to March 15.          VRP ( Mar. 8, 2012)         at   10.   At the March


15 hearing, the trial court again continued the trial, this time to March 20, based on the

prosecutor' s   absence    being " good        cause ";   both defendants objected. VRP (Mar. 15, 2012) at 12.


On March 20, the trial           court   found "   good cause"           and continued the trial to March 26 because


courtrooms were unavailable;              again,   both defendants            objected.     On March 26, again because


courtrooms were unavailable,              the trial    court continued         the    case one more      day.    Trial began the


next day, on March 27.

                                                       B. Jury Voir Dire

         During    voir    dire    on    the   first    day   of    trial,   Young' s defense counsel asked several

prospective    jurors    about   their   attitudes     toward tattoos.        Prospective juror 18, a prison corrections


officer, responded that he recognized that certain tattoos reflected gang affiliations, but not all

tattoos had    such a purpose, and          he did     not   have      a problem with      tattoos.     This prospective juror,


however, did not serve on the jury that tried the case.

                                                              C. Trial


         The    State    presented       testimonies         from the        police    officers   and    Yang,       as previously


described.     The State also offered as exhibits the items the police had recovered during DaGraca

and Young' s flight and the gun from Yang' s car. DaGraca and Young each testified and denied

robbing or kidnapping Yang.



                                                                   5
No. 43358 -3 -II, consolidated with 43365 -6 -II


            DaGraca testified that he and Young had been celebrating an upcoming music
                                                                                                                    9
performance, were         looking   for   someone     to   buy   them       alcohol, were not "    familiar   with "    Yang,

but   nevertheless    approached     him     and asked "    if he    wanted    to   buy [ them]   some alcohol."        2 VRP


at   149.   Yang told them to get in his car; with DaGraca sitting behind Yang and Young sitting in

the   front   passenger   seat,   Yang    drove to the 7- Eleven.             On the way, they asked to use Yang' s

phone to arrange a marijuana purchase; Yang allowed them to use his phone and volunteered to

drive them to     buy   marijuana     if Yang    could     try it    with   them.     As they approached the 7- Eleven,

Yang drove into the parking lot, where the police were standing, and told the police that he was

being robbed.

            On cross -examination, the prosecutor, asked Young whether he had another .bullet in his

jacket, even though there was no evidence in the record that the police found an additional bullet

in    Young' s jacket. Young did not object to the questioning, but he denied knowledge of any

bullet in the jacket.


            Neither DaGraca nor Young objected to any of the court' s proposed jury instructions.

But after the trial court returned from recess, Young' s counsel moved for a mistrial, stating,

 Apparently,      I   misunderstood what [       Young]       said.    He apparently told me he did not want to

 testify]. I   thought he   said    he did   want   to [ testify]."    2 VRP     at   181.   The State objected. The trial


court denied the motion for mistrial on grounds that counsel had had ample time to clarify

whether Young would testify and that when Young took the stand, he did not express any desire

not to testify.




92 VRP at156.



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No. 43358 -3 - II, consolidated with 43365 -6 -II



        The jury found DaGraca guilty of first degree robbery and first degree kidnapping; but

did it not reach a unanimous decision about whether he had been armed with a firearm during the

commission of either offense.               The    jury   found   Young       guilty      of all   three charges:     first degree


robbery, first degree        kidnapping,         and unlawful possession of.a              firearm.      By special verdict, the

jury also found that Young had been armed with a firearm during the robbery and kidnapping.

                                                          D. Sentencing

        At the sentencing hearing, the trial court denied Defendants' motion to merge their

kidnapping   and      robbery      convictions,     stating that, although the            crimes were " related,"       they were

separate   and   thus did        not   qualify   as " same   criminal conduct under [               RCW] 9. 94A. 589."       VRP


 Apr. 23, 2012)       at    4.   The trial court also ruled that the kidnapping was not incidental to the

robbery and, thus, these two crimes must be treated as separate.

        The trial court sentenced DaGraca to standard range sentences of 68 months of


incarceration for          count   I ( first degree robbery)           and        72    months     for   count    II ( first degree


kidnapping),     to   run   concurrently.        As required by RCW 9. 94A.701, the trial court also imposed

18 months of community custody on count I ( violent offense) and 36 months of community

custody on count II (serious violent offense).

        The trial court sentenced Young to standard range sentences of 87 months on count I

 first degree robbery), 110            months on count       II (first degree          kidnapping),      and 54 months on count


III (first degree     unlawful possession of a            firearm),    all   to   run   concurrently.        The trial court added


firearm enhancements of 60 months to Young' s base sentences for counts I and II, to run

consecutively to       each other and        to the sentences         on   the underlying          counts.    The trial court also




                                                                  7
No. 43358 -3 -II, consolidated with 43365 -6 -II



imposed 18 months of community custody for count I and 36 months of community custody for
                                      0




count   II.


          DaGraca and Young appeal their convictions and sentences.

                                                            ANALYSIS


                                      I. DAGRACA: ADULT COURT JURISDICTION


          DaGraca        argues   that RCW 13. 04. 030( 1)(           e)( v)( A),   under which he was tried as an adult


court rather than as a juvenile, violates both the due process clause and the Eighth Amendment to


the   United      States       Constitution (       cruel   and   unusual       punishment).      He   contends   that   in


automatically vesting the           adult superior court               exclusive original jurisdiction over the serious


violent       offenses    he    was       charged   with    committing (       first degree robbery and first degree

kidnapping),       the    statute     failed to take into         account       his   youth.   DaGraca' s constitutional


challenges fail.


          As our Washington Supreme Court has recently reiterated:

                    In adopting Washington Constitution article IV, section 6, the people of
          this state granted the superior courts original jurisdiction ` in all criminal cases
          amounting to           felony'      and in several other enumerated types of cases                 and
          proceedings.         In these enumerated categories where the constitution specifically
          grants    jurisdiction to the             superior   courts,     the legislature cannot restrict the
          jurisdiction     of   the   superior courts.         See Blanchard v. Golden Age Brewing Co.,
          188 Wn. 396, 418, 63 P. 2d 397 ( 1936).


                    Article IV, section 6 also grants the superior courts residual jurisdiction
          over nonenumerated cases and proceedings, providing that superior courts ` shall
          also have original jurisdiction in all cases and of all proceedings in which
          jurisdiction shall not have been by law vested exclusively in some other court .. .




                                                                  8
No. 43358 -3 -II, consolidated with 43365 -6 -II



State   v.   Posey,       174 Wn. 2d 131, 135 -36, 272 P. 3d 840 ( 2012).                   The court went on to explain the

                                                                                                                                       10
evolution          of   juvenile    court   as   a "'   division   of   the   superior     court,   not    a   separate    court, "'        a




statutory      creation of        the legislature that "[    could ] not" and "    did     not" "   divest the superior courts of


their   criminal         jurisdiction    over    juveniles."       Posey,     174 Wn.2d       at    140.       Thus, "[ t] he juvenile


courts are properly understood, jurisdictionally, as a separate division of the superior courts."

Posey, 174 Wn.2d at 140 ( emphasis added).

             When DaGraca committed the charged crimes, he was a juvenile, approximately one

month        shy    of     his   eighteenth      birthday.     RCW 13. 04. 030( 1)(          e)( v)( A)    and (   C),    respectively,


expressly          exclude       from juvenile      court   jurisdiction 16- and 17- year -old minors charged with

                                                                                      11
committing first degree robbery                  and    first degree    kidnapping.         Thus, the superior adult court had


original jurisdiction over DaGraca for these offenses, contrary to DaGraca' s argument that this

statute automatically removes jurisdiction from the juvenile court.

10
     Posey, 174 Wn.2d at 137 ( quoting State v. Werner, 129 Wn.2d 485, 493, 918 P. 2d 916 ( 1996).
11
     RCW 13. 04. 030 provides, in part:
              1)    Except as provided in this section, the juvenile courts in this state shall have
             exclusive original jurisdiction over all proceedings:


             e)     Relating      to juveniles    alleged or   found to have      committed offenses ...             unless:



             v)     The juvenile is sixteen or seventeen years old on the date the alleged offense
             is committed and the alleged offense is:
             A) A        serious violent offense as         defined in [ former] RCW 9. 94A.030 [( 2011)];


              C)        Robbery in the first degree, rape of a child in the first degree, or drive -by
             shooting, committed on or after July 1, 1997
 Emphasis added).
             Former RCW 9. 94A. 030 ( 2011), in turn, provided, in part:
              44) "      Serious violent offense" is a subcategory of violent offense and means:

              vi)   Kidnapping in the first degree.
 Emphasis added).



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No. 43358 -3 -II, consolidated with 43365 -6 -II


             DaGraca argues in general that our Supreme Court' s 1996 decision In re Boot, 130


Wn.2d 553, 925 P. 2d 964 ( 1996), upholding the constitutionality of a previous version of the


juvenile      court       decline   statute, "    is   no   longer    good      law."   Br.   of   Appellant ( DaGraca)    at   8.   He


relies primarily on United States Supreme Court cases addressing whether statutes that impose

the death penalty or life imprisonment without parole for juveniles violate the Eighth.
                     12
Amendment.                  Although DaGraca contends that RCW 13. 04. 030 runs afoul of the Eighth


Amendment, he              never argues          how his     sentences were " cruel and unusual."             U. S. CONST. amend.


VIII.       On the contrary, the trial court sentenced DaGraca to 68 months of confinement for count I

 first degree robbery)              and   72   months       for   count   II ( first degree   kidnapping), far short of the " most

severe punishments" at               issue in Graham. 13            Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011,

176 L. Ed. 2d 825 ( 2010). Furthermore, DaGraca fails to show that his standard range sentences




12
     DaGraca cites Graham v. Florida, in which the United States Supreme Court held that the
Eighth Amendment to the United States Constitution prohibits a court from imposing a sentence
of   life    without parole on a          juvenile      offender     for   a nonhomicide crime and stated: "         An offender' s
age     is    relevant      to the Eighth Amendment,                       and criminal procedure laws that fail to take
defendants'         youthfulness          into   account at all would           be flawed." Graham v. Florida, 560 U. S. 48,
76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 ( 2010).                                 Based on this quote, and ignoring Graham' s
         life
homicide /                without parole         context,     DaGraca ( 1)        essentially asks us to interpret Graham to
mean that any jurisdictional or sentencing statute that automatically treats a juvenile the same as
an adult       is   unconstitutional;          and (   2)   contends      that the   superior court' s "`   automatic '   exercise of

original      jurisdiction      over      him     violated        the Eighth Amendment             and   Graham.   Br. of Appellant
 DaGraca) at 7. As we explain above, we reject DaGraca' s expansive reading of Graham.

13 Nor does DaGraca' s attempted analogy persuade us that his potential maximum sentence of
life imprisonment for either offense ( based on his having a previous felony conviction) was
unconstitutionally cruel and unusual. RCW 9. 94A.515 ( providing standard sentence ranges);
RCW. 9A.20. 021( 1)( a) ( establishing a maximum term of life imprisonment for class A felonies).




                                                                           10
No. 43358 -3 -II, consolidated with 43365 -6 -II



constitute cruel and unusual punishment or otherwise violate the Eighth Amendment. 14

          Beginning with the presumption of constitutionality accorded to our legislature' s

enactments, we hold that RCW 13. 04. 030( 1)( e)( v)(A) does not violate the Eighth Amendment by

treating 16- and 17- year -olds as adults for first degree robbery and first degree kidnapping

charges. State v. Jorgenson, 179 Wn.2d 145, 150, 312 P. 3d 960 ( 2013).


                                              II. KIDNAPPING AND ROBBERY


          DaGraca and Young contend that the trial court should have dismissed their kidnapping

convictions because their restraint of Yang, a necessary element of kidnapping, was " incidental

to the ongoing        armed    robbery,"      and they were not separate crimes. 15 The State responds that,

when DaGraca and Young took Yang' s money and cards, they completed the robbery and any

further   restraint   thereafter     was a separate crime.             We agree with the State and the trial court that


the kidnapping and robbery were separate crimes.

                                        A. Kidnapping not Incidental to Robbery

          The restraint and movement of a victim that are merely incidental to and not independent

of   the underlying     crime      do   not constitute      kidnapping.      State v. Green, 94 Wn.2d 216, 227, 616




14
     Addressing former RCW               13. 04. 030( 1)(   e)( v)( A)   ( 1999), Division Three of our court held that
our state juvenile court automatic decline statute does not violate equal protection and due
process rights.       State   v.   Posey,   130 Wn.       App.   262, 269, 122 P. 3d 914 ( 2005),     rev' d in part, aff'd
in   part on other grounds,             161 Wn.2d 638, 167 P. 3d 560 ( 2007).             The Supreme Court did not
address and    left intact Division Three'            s   holding   the   statute constitutional.   Posey, 161 Wn.2d at
643.      For purposes of our analysis here, former RCW 13. 04. 030( 1)( e)( v)( A) does not differ
materially from the current version of the statute.
15
     Br. of Appellant (Young) at 7.



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No. 43358 -3 - II, consolidated with 43365 -6 -II


                         16 "
P. 2d 628 ( 1980).              Although rooted in merger doctrine, courts reviewing kidnapping charges

that are arguably merely incidental to another crime frequently borrow a sufficiency of the

evidence analysis."             State v. Elmore, 154 Wn. App. 885, 901, 228 P. 3d 760, review denied, 169

Wn.2d 1018 ( 2010).               Thus, in general, whether " kidnapping is incidental to the commission of

other   crimes"        involves both "      a   fact -
                                                     specific determination" and a legal determination about




whether       the   facts   merge    to   support one crime     instead   of   two.   Elmore, 154 Wn. App. at 901

 citing Green, 94 Wn.2d at 225 -27 and State v. Korum, 120 Wn. App. 686, 707, 86 P. 3d 166

 2004),      aff'd in part, rev 'd in part      on other grounds,    157 Wn.2d 614, 141 P. 3d 13 ( 2006)). Here,


we review de novo the trial court' s conclusion of law that the restraint was not incidental to the


robbery.


             In Berg, we held that, as a matter of law, that

             restraint was      incidental to the ...    robbery when ( 1) facilitating the robbery was
             the   restraint' s sole purpose, (    2) the   restraint was   inherent in the robbery, ( 3) the
             robbery victims were not transported from their home to a place where they were
             not likely to be found, ( 4) the restraint did not last substantially longer than

             necessary to complete the robbery, and ( 5) the restraint did not create a significant
             independent danger.


State   v.   Berg,    177 Wn.      App. 119,     136 -37, 310 P. 3d 866 ( 2013) (     citing Korum, 120 Wn. App. at

707), review granted, 179 Wn.2d 1028 ( 2014).


             Once DaGraca and Young took the Quest card and the military identification card from

Yang' s person by force, they had completed the robbery; further restraint was unnecessary.

Thus, DaGraca and Young' s subsequent ordering Yang at gunpoint to drive them to the 7- Eleven



16
     See also State v. Elmore, 154 Wn. App. 885, 901, 228 P. 3d 760, review denied, 169 Wn.2d
1018 ( 2010).




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                                                                                                                                             7
was neither "        inherent" in      nor "     integral to [ the]    commission"        of   the already       completed       robbery;'


rather,   it   was       for the    new purpose of        obtaining money from            Yang' s        Quest   card.   By restraining

Yang at gunpoint and threatening to kill him during the drive to the 7- Eleven18, DaGraca and

Young      created         a   new    danger      separate      from the already         completed         robbery.       We hold that


DaGraca        and       Young have        not    shown     that the   kidnapping        restraint " was         so   incidental to" the


robbery " that it          could not support a separate conviction."                   Elmore, 154 Wn. App. at 903.

                               B. Kidnapping Not " Same Criminal Conduct" as Robbery

          DaGraca and Young also argue that the trial court abused its discretion in not finding that

Yang' s kidnapping              merged      into the "     same criminal conduct"              as   his robbery. Br. of Appellant


 Young)        at    9; Br.    of   Appellant ( DaGraca)          at   18.    For sentencing          purposes, "` [ s] ame criminal



conduct' ...             means two or more crimes require the same criminal intent, are committed at the


same    time and           place,    and   involve the      same victim."         RCW 9. 94A.589( 1)( a). 19 Here, the trial

court ruled that DaGraca and Young had completed the robbery when they

          stuck the gun in Mr. Yang' s face and took his wallet. They then formed the intent
          to try to get some more money from him and formed the intent to abduct him at
          gunpoint in his car. That is a separate crime.


VRP (Apr. 23, 2012) at 4 -5.




17
     Berg, 177 Wn. App. at 136; Korum, 120 Wn. App. at 703, 707.
18
     Yang      testified that        one   of   the defendants had           said, "   If you don' t get money for us, you' re
dead,"    and       that   once   Yang     obtained      the money     for them, " they[      would] kill [him] and put [ him]
in the lake         so   they [ could] have       the   car."   1 VRP at 119, 121.

19
     The legislature            amended         RCW 9. 94A. 589 in 2014.                 LAws       OF   2014,    ch.    101 §     1.   The
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.




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No. 43358 -3 -II, consolidated with 43365 -6 -II


          We     review       a   trial   court' s   determination         of " same       criminal    conduct"     under RCW


9. 94A. 589( 1)(   a)   for   abuse of     discretion. State v. Graciano, 176 Wn.2d 531, 533, 295 P. 3d 219


 2013).    The defendant bears the burden of proving all three statutory elements of "same criminal

conduct."       Graciano, 176 Wn.2d             at   538;   see   RCW 9. 94A. 589( 1)(       a). ""[   T]he statute is generally

construed narrowly to disallow most claims that multiple offenses constitute the same criminal

act. "'   Graciano, 176 Wn.2d at 540 ( quoting State v. Porter, 133 Wn.2d 177, 181, 942 P. 2d 974

 1997)).


          Here, we need not decide whether DaGraca and Young' s objective intents changed after

they took Yang' s wallet because the evidence shows that the kidnapping occurred after DaGraca

and Young had robbed Yang of his property and continued in Yang' s car when DaGraca and

Young forced Yang             to drive them to the 7- Eleven.                   Because the robbery and the kidnapping

occurred at different times and in different locations ( stationary car for the robbery and moving

car   for the   kidnapping), the trial court properly ruled that the crimes were not the same criminal

conduct for sentencing purposes.

                                            III. PROSECUTORIAL MISCONDUCT


                                                        A. No Prejudice


           Defendants argue that the prosecutor committed misconduct by repeatedly questioning
                                                                                                                         20
him    about a   bullet located in the         red and       black jacket that he     wore     during    the   crimes.        Officers


had already testified that they found                  six   bullets     with   the gun.    While cross -examining Young,

however, the prosecutor asserted that a . 22 caliber bullet had been found in the jacket and asked



20
            Young asserts that the prosecutor cross -examined him about a " seventh
     Although                                                                                                            bullet," the
prosecutor never referred to a " seventh" bullet. Suppl. Br. of Appellant (Young) at 6.



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No. 43358 -3 - II, consolidated with 43365 -6 -I1



whether the bullet belonged to Young, even though the State had no evidence that such a bullet
           21
existed.         Neither defendant                    objected       to the    prosecutor' s    questioning,       and Young denied

knowledge        of    any bullet in the jacket.                    We agree with Defendants that this cross -examination


was    improper.        Nevertheless, reversal is not required because, as we next explain, Defendants


waived any error when they did not object to the misconduct below.

         A defendant who " fails to object or request a curative instruction at trial" waives his right


                                                      unless the conduct was so flagrant and ill intentioned that an
                         misconduct22             "




to   challenge     the


instruction      could not      have       cured      the resulting        prejudice."     State v. Lindsay, 180 Wn.2d 423, 430,
                                    23
326 P. 3d 125 ( 2014).                     Assuming, without deciding, that the prosecutor' s misconduct was

flagrant and ill-intentioned, Defendants fail to show how an instruction could not have cured any

resulting prejudice if Young had timely objected. Young' s failure to object denied the trial court
                                                                                                                               24
an    opportunity        to    instruct       the       jury        to   disregard the      now -
                                                                                                challenged         question.        Thus,


Defendants' prosecutorial misconduct challenge fails.




21 The State concedes that the record contains no evidence of such additional bullet.

22 The trial court must have the opportunity to correct any alleged error, and the defendant' s
failure to      object at     trial      waives       his   right   to   challenge   the   remarks on appeal.       State v. Hamilton,
179 Wn.         App.    870, 878, 320 P. 3d 142 ( 2014);                      State v. Fullen, 7 Wn. App. 369, 389, 499 P.2d
893, cent. denied, 411 U. S. 985 ( 1973).

23
     See also State v. Emery, 174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012).
24
     Young       also    argues          that the       prosecutor' s        repeated      questioning     was "   so   cumulative    and

pervasive"       that    a   jury     instruction           could not     have   cured     the resulting   prejudice.     Suppl. Br. of
Appellant ( Young)                  9.
                           But even if Young could show that the prosecutor' s misconduct was
                              at

incurable, he fails to show a substantial likelihood that the statements affected the jury' s verdict.
Emery, 174 Wn.2d at 760. " In analyzing prejudice, we do not look at the comments in isolation,
but in the context of the total argument, the issues in the case, the evidence, and the instructions
given   to the    jury." Emery, 174 Wn.2d at 764 n.14.


                                                                            15
No. 43358 -3 -II, consolidated with 43365 -6 -II



                                             B. Effective Assistance of Counsel


          Young also argues that he received ineffective assistance when his trial counsel failed to

object to the prosecutor' s cross -examination about the bullet. This argument also fails.

          To     prove    ineffective    assistance      of counsel,   Young   must   show   that ( 1)   his counsel' s


performance        was    deficient,    and (   2) the deficient     performance   prejudiced   him.      Strickland v.


Washington, 466 U. S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Thomas,


109 Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987).                  A defendant alleging ineffective assistance must
                                                                                                   25
overcome "' a      strong    presumption        that   counsel' s performance was reasonable. ,,         State v. Grier,

171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011) (                 quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d

177 ( 2009)),     adhered to in part on remand, 168 Wn. App. 635, 278 P. 3d 225 ( 2012), petition for

cert.   filed,   May     27, 2014.. "        Deficient performance is not shown by matters that go to trial

strategy    or   tactics."    State     v.   Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996).                If


          Here, the      misconduct was         harmless because, "    look[ ing] only at the untainted evidence to
determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of
guilt,"   we     are "   convinced beyond a reasonable doubt that any reasonable jury would have
reached    the   same result    in the absence of the error." State v. Guloy, 104 Wn.2d at 412, 426, 425,
705 P. 2d ( 1985).        Even without the prosecutor' s improper question about the additional bullet,
there was ample evidence of other bullets, Young and DaGraca did not present credible stories,
and the evidence overwhelmingly supported the conclusion that they robbed and kidnapped
Yang.
        Other evidence linked the firearm to Young and gave the jury a sufficient independent
basis on which to convict him of unlawful possession of a firearm. The jury heard Officer
Bowl' s testimony that the individual in a " red and black jacket" ( later identified as Young)
jumped out of the front passenger seat, 1 VRP at 73; Yang' s testimony that the individual with
the gun was in the front passenger seat; and Young' s testimony that he had discarded a " red
jacket" while fleeing from the police. 2 VRP at 167. Furthermore, after this cross -examination,
the prosecutor never again raised the issue of an additional bullet or otherwise again implied that
Young had a bullet in his jacket.
25
     We also presume that, under the circumstances, the alleged errors " might be considered sound
trial strategy."     Strickland, 466 U. S. at 689.




                                                                16
No. 43358 -3 -II, consolidated with 43365 -6 -II



counsel' s conduct "`     can be characterized as legitimate trial strategy or tactics, performance is not

deficient. "'     Grier, 171 Wn.2d at 33 ( quoting Kyllo, 166 Wn.2d at 863).

          To     show prejudice,     the    defendant      must establish     that "'   there is a reasonable probability

that, but for counsel' s deficient performance, the outcome of the proceedings would have been


different.'"      Grier, 171 Wn.2d          at   34 ( quoting Kyllo, 166 Wn.2d          at   862). A defendant' s failure to


prove either      prong   of   this test   ends our      inquiry.    Hendrickson, 129 Wn.2d              at   78.   Young fails to

meet    his burden here.        Young cannot show prejudice flowing from counsel' s failure to object to

the   prosecutor' s    cross -examination           of   him   about     the bullet.     Even if Young' s counsel had

objected and the trial court had responded by precluding the prosecutor' s questions, Young fails

to show a substantial likelihood that this cross -examination affected the jury' s verdict because

there was ample evidence linking the firearm to Young, supporting the jury' s verdict that he

robbed and        kidnapped     Yang       at gunpoint.     State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653

 2012).     Because Young fails to meet the prejudice prong of the test, he fails to show that he

received ineffective assistance counsel.

                                    IV. STATEMENTS OF ADDITIONAL GROUNDS


                                                           A. DaGraca


          In his SAG, DaGraca asserts that ( 1) his counsel was ineffective for failing to object to

the adult superior court' s jurisdiction and for failing to request a remand to the juvenile court,

and (   2) his   counsel' s    deficient    performance        denied him    a   fair trial.    We have already upheld the

superior court' s exercise of         jurisdiction under RCW 13. 04. 030( 1)(                  e)( v).   Thus, counsel did not


render deficient or ineffective assistance in failing to object to the juvenile court' s decline of

jurisdiction under this statute.




                                                                    17
No. 43358 -3 - II, consolidated with 43365 -6 -II



                                                                    B. Young

                                                      1.    Trial court irregularities


         Young        asserts     that "[   t] he trial court abused its discretion by allowing jurors to sit and

congregate      in the      hallway during            trial,"      failing to tell the jurors that they could not be in the

hallway, and failing to admonish them to disregard anything they might have seen or heard; he

contends      that these errors tainted the                  proceedings        and violated      his   right   to   a   fair trial.   SAG


 Young) at 4. We disagree.

            The "   trial court has wide discretionary powers in conducting a trial and dealing with

irregularities      which        arise."    State v. Westlund, 13 Wn. App. 460, 472, 536 P. 2d 20, review

denied, 85 Wn.2d 1014 ( 1975).                     And, unless Young shows that " the irregular incidents are of a

number and magnitude                 that   they   are per se unfair,           that is,   prejudice    undoubtedly          resulted,"    he


must   show " actual         prejudice."           Westlund, 13 Wn.             App.     at   472.    Young fails to demonstrate

prejudice.




            During the       second        day   of   trial, the         prosecutor    believed that he had           seen "   about three


 jurors]" "   in the hallway" and asked the trial court to request the public in the courtroom ( which

included the defendants' friends)                  not     to "   congregate outside       the   courtroom ...        in the   hallway."    1


VRP    at   87. The trial         court announced             that " the jurors       shouldn'   t be sitting   out   there."    1 VRP at


87.    Young' s      counsel responded, "[                 A] s far as congregating, I think [ the friends of Defendants]

have a right to be in the hall as long as they' re quiet, and, as the Court pointed out, the jurors are

not   supposed        to be there."          1 VRP           at    88.    At the next recess later that day, the trial court

admonished          the   jury   not   to " discuss the           case   among [ themselves]       or with others."         1 VRP at 102.




                                                                           18
No. 43358 -3 - II, consolidated with 43365 -6 -II



Neither Young nor DaGraca raised any objections to the fairness of the proceedings, and neither

asked the trial court to investigate further whether jurors were sitting in the hallway.

         Nothing in the record shows that there was another similar incident. Neither the State nor

Defendants      raised a similar concern again        during       trial.   Furthermore, Young has not shown that

the incident     prejudiced      him in any way.       Thus, Young has failed to show that the trial court

abused its discretion or violated his right to a fair trial.


                                                     2. Juror bias


         Young also asserts that he was denied an impartial jury and a right to a fair trial because

one of the jurors was biased against him, contending that the juror believed that Young' s tattoos
                                                                                           26
signified      gang   affiliation and   that the juror'   s comments reflected. bias.            The record, however,


does   not support      Young' s   assertions:    Nothing in the record shows that this juror was biased; on

the contrary, the juror' s       statements reflected an      ability to     remain   impartial.    Young never raised

an objection      to the fairness   of   the   proceedings.    Furthermore, prospective juror 18 did not serve


on the jury that found Young guilty. Thus, Young' s challenge lacks merit.




26
     Apparently Young refers to prospective juror 18, whom counsel questioned during voir dire
about    his   attitude   towards tattoos.      Juror 18 stated that tattoos could sometimes, but not always,
signal   gang    affiliations;   this prospective juror       also confirmed      that tattoos     would not " cause [ a]

problem" for him. Suppl. VRP ( Mar. 27, 2012) at 97.




                                                              19
No. 43358 - -II, consolidated with 43365 -6 -II
          3



                         3.    Prosecutorial misconduct: Referencing clothing and aliases

           Young further asserts that the prosecutor committed misconduct by referring to his

 Young' s)       clothing      colors and aliases        to insinuate gang            affiliation, which prejudiced       him. This


assertion also fails.


           During trial, police officers identified clothing items found at the scene and on the

defendants,       which       included       a " red   bandanna," 1 VRP              at   44, "   a red   hat," and a " red and black


jacket."        1 VRP     at   73.   The prosecutor cross- examined Young about the clothing that he had

worn during the incident, asking whether Young had a jacket, a red bandanna, and a red hat.

Young admitted to having a jacket and a red hat, but could not " remember having a bandanna."

2 VRP      at   169.    The    prosecutor       then    asked, "   Is   your stage name `           Little Bones'? ...   What about


 Little Flame' ?"         2 VRP at 169 -70. Young denied using either alias.

                A] prosecutor engages in misconduct when making an argument that appeals to jurors'

fear and repudiation of criminal groups or invokes racial, ethnic, or religious prejudice as a


reason     to   convict."       State   v.   Perez- Mejia,    134       Wn.    App.       907, 916, 143 P. 3d 838 ( 2006).        The


prosecutor did not argue or present a case that Young and DaGraca were part of a gang.

           Young       does    not explain        how the    prosecutor' s           questions      about    his           or   aliases




showed      gang       affiliations or prejudiced          his    right   to   a   fair trial.     Rather the prosecutor' s inquiry

about Young' s clothing was relevant to support the State' s evidence connecting Young and

DaGraca' s articles of clothing to the persons witnesses had observed committing the charged
crimes.     The    prosecutor' s questions about                 Young' s "        stage name "     28 were relevant to the veracity

27
     Young did not object to the prosecutor' s questions about his clothes.
28
     2 VRP at 169.


                                                                        20
No. 43358 -3 -II, consolidated with 43365 -6 -II



of Young' s earlier testimony that he was a " music artist" and that, on the evening of the incident,

he and DaGraca had been celebrating an upcoming musical performance and looking for

someone to buy them alcohol. 2 VRP at 160.

        Moreover, neither Young nor DaGraca objected to the evidence elicited in this line of

questioning; nor did either request a curative instruction. And nothing in the record suggests that

the prosecutor'   s questions prejudiced     the   jury.   We find no misconduct and no prejudice in the


prosecutor' s asking these questions.

                      4. Ineffective assistance of counsel; testifying on own behalf

        Young also asserts that he was denied effective assistance of counsel by being " forced to

testify."   SAG (Young) at 9. Again, the record does not support this assertion.

        Young     and   DaGraca both testified       at   trial.   After the defendants rested and the court


completed discussions about jury instructions, Young' s counsel moved for a mistrial, stating he

had believed that Young had wanted to testify, but apparently had misunderstood that Young did

not want to testify. The State objected because Young had never expressed a desire not to testify

and   Young did    not speak   up   when   his   counsel called     him to the   witness stand.   The trial court


denied the motion for mistrial, noting that, before Young testified, it had held a sidebar to give

defense     counsel   ample   opportunity to decide        whether    Young   would    testify.   The trial court


further noted that, when defense counsel said that Young would testify, Young never corrected

him, something which defense counsel was unable to explain during his later motion for a

mistrial.   Young fails to establish that he was forced to testify against his will or that his counsel

rendered ineffective assistance in calling him to the witness stand.




                                                           21
No. 43358 -3 - II, consolidated with 43365 -6 -II



           Young additionally asserts that he received ineffective assistance when his counsel failed

to object to various statements                      or   evidence presented          by   the State.    Although he references


various lines in the report of proceedings, he does not explain why these statements or evidence

were prejudicial.           See RAP 10. 10( c). Moreover, these assertions of error are either unfounded or


cumulative with other assertions of error we                            have already       addressed.    Thus, we do not further

address these asserted errors.


                                               5.   Time for trial and speedy trial rights
                                                                                                                      tria129,



           Young      next           asserts   that the      trial    court   violated     his CrR 3. 3 time for                 Sixth


Amendment, and Fourteenth Amendment rights by failing to bring him to trial in a timely

manner. Again, the record does not support this assertion.


           Instead, the record shows that Young was timely brought to trial as required by law. CrR

3. 3    governs   the time            for trial in   superior court criminal proceedings.                CrR 3. 3 provides that a


defendant "       shall    be brought to trial" within 60 days of the defendant' s commencement date,


which      CrR    3. 3(   c)(   1)    establishes as the arraignment date, if he or she is detained in jail, CrR

3. 3( b)( 1),   or within 90 days of the commencement date if the defendant is not detained in jail,


CrR 3. 3( b)( 2).         The record does not reveal either defendant' s arraignment date; but this is not


necessary to resolve Young' s asserted error.

           When computing the time for trial, CrR 3. 3( e)( 3) excludes delay for continuances granted

in the following circumstances:



29
       Although    Young             asserts a violation of          his " speedy trial    rights,"   which are constitutional, he

primarily       raises     arguments under                CrR 3. 3,    which    are   procedural "    time   for trial"   court rules.

Young ( SAG) at 10.



                                                                         22
No. 43358 -3 - II, consolidated with 43365 -6 -II


                          1)     Written Agreement.                Upon       written agreement of          the   parties ...       the

          court may continue the trial date to a specified date.
                  2) Motion by the Court or a Party. On motion of the court or a party, the

          court may continue the trial date to a specified date when such continuance is
          required in the administration of justice and the defendant will not be prejudiced
          in the presentation                of   his   or    her defense.         The motion must be made before the
          time     for trial has            expired.      The court must state on the record or in writing the
          reasons        for the         The bringing of such motion by or on behalf of any
                                       continuance.

          party waives that party' s objection to the requested delay.

CrR 3. 3( f).


          At the January 9, 2012 continuance hearing, Defendants requested and the trial court

ordered       the trial        reset   to   February         23.      Because the parties agreed to set the trial over until


February        23, (   1) CrR 3. 3( f)( excluded the period between January 9 and February 23 from the
                                       2)

new time for trial calculation; and ( 2) thus, at the February 23 hearing, Defendants were only 49

days into their          reset    time for trial        period.       The subsequent continuances were excluded from the


time for trial          period,    CrR 3. 3(      e)(   3), and the time for trial would not have expired until 30 days


after   the     end of         the last excluded period.                   CrR 3. 3( b)( 5).      The record thus shows that, when


Defendants' trial began on March 27, 2012, Young was timely brought to trial.

          Moreover, for Young to be able to raise time for trial violations on appeal, he must have

timely   objected         below to the trial date               set   by   the trial     court.   CrR 3. 3( d)( 4).   If a court sets a trial


date outside the time for trial deadlines, CrR 3. 3( d)( 3) requires a defendant to object within 10


days    after    the    court gives notice of                the trial date,       or   the   defendant loses the     right   to   object.   CrR


3. 3( d)( 4).    The record reflects no such objection by Young. Thus, Young' s assertion fails on this

ground as well.




                                                                              23
No. 43358 -3 - II, consolidated with 43365 -6 -II



          Not only has Young failed to show a CrR 3. 3 time for trial violation, but he also fails to

show    how the trial      court violated       his           and   federa131 constitutional speedy trial rights or how

the   continuances prejudiced              him; thus, his Sixth Amendment                   claim    fails.   See State v. 011ivier,


178 Wn.2d 813, 826, 312 P. 3d 1 ( 2013),                    pet.   for   cent.   filed,   May   7, 2014.      Nor can we surmise


how Young might prevail on a constitutional speedy trial violation where the law and record

show    that   he   was   timely brought        to trial   under   the   applicable court rules.          See RAP 10. 10( c) ( " the


appellate court is not obligated to                        search the record in support of claims made in a

defendant /
          appellant'           s statement of additional grounds                 for   review. ").   Thus, Young' s speedy trial

challenges also fail.


                                             6. Firearm sentencing enhancements

          Lastly, Young asserts that the trial court erred in adding two firearm enhancements to his

sentence       instead    of one.     He contends that chapter 9. 94A RCW ( the Sentencing Reform Act)

provides that, when sentences run concurrently, the offender should be given only one firearm

sentencing enhancement if he has no prior firearm offenses. Young is incorrect.
                                       32,
          RCW 9. 94A. 533( 3)                which governs firearm sentencing enhancements, provides in part:

          The following additional times shall be added to the standard sentence range for
          felony crimes committed after July 23, 1995, if the offender or an accomplice was
          armed with a firearm ... and the offender is being sentenced [ for a crime eligible
          for firearm enhancements]. If the offender is being sentenced for more than one
          offense,       the    firearm . . .     enhancements must be added to the total period of



30
     WASH. CONST.         art   I, § 22.

31
     U. S. CONST. amend. VI.

32
      The legislature      amended         RCW 9. 94A. 533         numerous        times    since    2011.    The amendments did
not alter the statute in any way relevant to this case; accordingly, we cite the current version of
the statute.



                                                                    24
No. 43358 -3 -II, consolidated with 43365 -6 -II


         confinement      for    all offenses. [    T] he following additional times shall be added to
         the standard sentence range ... :


                    a)   Five years for any felony defined under any law as a class A felony . .


                    e)   Notwithstanding any other provision of law, all firearm enhancements
         under this section are mandatory, shall be served in total confinement, and shall
         run consecutively to all other sentencing provisions, including other firearm or
         deadly weapon enhancements.

         The jury convicted Young of first degree robbery, first degree kidnapping ( both Class A

felonies),   and   first degree         unlawful   possession       of a   firearm (   a   Class B   felony).   See RCW

                                                         33.
9A.56. 200( 2), 9A.40. 020( 2), 9. 41. 040( 1)( b)             By special verdict form, the jury also found that

Young had committed both the robbery and kidnapping while armed with a firearm, thus

subjecting him to firearm sentencing               enhancements under          RCW 9. 94A.533( 3).         The trial court


imposed ( 1)      standard low end sentences for count I, first degree robbery ( 87 months) and for

count   II, first degree    kidnapping (      110   months),    both Class A felonies; and ( 2) a standard high


end    sentence    for   count   III,   unlawful possession         of a   firearm ( 54     months),   a Class B felony.

Because both counts I and II were Class A felonies, RCW 9. 94A.533( 3)( a) required the trial




33
      The legislature      amended        RCW 9. 41. 040       in 2014, LAWS OF 2014,                ch.   111, §   1.   The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.



                                                               25
No. 43358- 3 -II,.consolidated with 43365 -6 -II



court to sentence Young to an additional 60 -month firearm enhancement for each of these two

counts,   to   run   consecutively.   The trial court did not err in adding firearm enhancements to each

of Young' s Class A felony standard range sentences.

          We affirm.


          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:




                                                       26
