      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            )
STATE OF WASHINGTON,                        )          No. 74026-1-1
                                            )
                     Respondent,            )          DIVISION ONE
                                            )
             v.                             )
                                            )
SOPHIA ALEEN DELAFUENTE,                    )          UNPUBLISHED
                                            )
                     Appellant.             )          FILED: April 17, 2017
                                            )


       Cox, J. — Sophia Delafuente appeals her judgment and sentence for first

degree assault and first degree felony rendering of criminal assistance. The trial

court did not abuse its discretion in denying Delafuente's motion to dismiss and

by continuing her trial within the speedy trial expiration deadline. The trial court

did not violate her right to be present and her right to counsel by granting the

continuances outside her and her counsel's presence. Delafuente fails in her

burden to show comments to which she did not object at trial were flagrant and

ill-intentioned prosecutorial misconduct. We affirm.

       On April 1, 2013, Richard Powell, a town car driver, dropped off a

customer in West Seattle. A car passed by him and two people exited the

vehicle and approached him. One of the individuals pulled out a gun and told

Powell to empty his pockets. Powell reached for his gun but was shot multiple

times. Powell managed to call 911.
No. 74026-1-1/2


       Before Delafuente's arrest, she admitted to a detective that she drove the

car after the shooting. The State charged her with one count of first degree

assault and one count of felony first degree rendering of criminal assistance. It

alleged that Delafuente drove the car to and from the scene.

       Delafuente's speedy trial "[e]xpiration date" was set for September 4,

2015. On August 5th and 6th of 2015, the court entered two orders continuing

trial. On the orders, the trial court marked boxes indicating "No judicial

availability" as the reasons for the continuances. Delafuente's trial began on

August 10th, 2015.

       The jury found Delafuente guilty as charged, and the trial court entered its

judgment and sentence in accordance with the jury verdicts.

       Delafuente appeals.

                               MOTION TO DISMISS

       Delafuente argues that the trial court abused its discretion in failing to

dismiss the charges under CrR 8.3(b). We disagree.

       CrR 8.3(b) provides:

       The court, in the furtherance of justice, after notice and hearing,
       may dismiss any criminal prosecution due to arbitrary action or
       governmental misconduct when there has been prejudice to the
       rights of the accused which materially affect the accused's right to a
       fair trial. . ..




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No. 74026-1-1/3


       We review for abuse of discretion a trial court's decision on a motion to

dismiss.1 A court abuses its discretion when it makes a decision for untenable

reasons or on untenable grounds.2

       Also relevant here is the Sixth Amendment guarantee to criminal

defendants of the right to confer privately with counse1.3

       The supreme court has held that government eavesdropping on such

privileged communication violates this right and "is presumed to cause prejudice

to the defendant."4 The State can rebut that presumption if it "proves beyond a

reasonable doubt that the eavesdropping did not result in any such prejudice."5

       Pretrial in this case, Delafuente moved to dismiss all charges on account

of government misconduct. Although the record on appeal does not contain the

motion, the record contains the memorandum supporting the motion. In relevant

part, Delafuente argued that Detective Donna Stangeland violated Delafuente's

attorney-client privilege by improperly listening to a jail phone call between her

and her attorney Anna Gigliotti.

       At the motion hearing, Detective Stangeland testified about the call at

issue. She explained that she started listening to a recording of Delafuente's

      I State v. Williams, 193 Wn. App. 906, 909, 373 P.3d 353, review denied,
186 Wn.2d 1015 (2016).

       2 Wade'sEastside Gun Shop, Inc. v. Dep't of Labor and Indus., 185
Wn.2d 270, 277, 372 P.3d 97(2016).

       3 State   v. Fuentes, 179 Wn.2d 808, 811, 318 P.3d 257(2014).

       4   Id. at 812.

       5 Id. at 811-12(emphasis    omitted).


                                          3
No. 74026-1-1/4


outgoing call and heard the person answering say the word "law." She then

realized that the call was probably to an attorney and proceeded to stop the

recording when she heard Delafuente ask for Gigliotti. A female voice responded

that Gigliotti was on the other line. Detective Stangeland then stopped listening

to the recording.

       Detective Stangeland testified that the above discussion was all that she

heard. She also reported this incident to her sergeant and the prosecutor's

office. Detective Stangeland testified that she did not learn anything relevant to

the investigation and did not "do anything investigative. . . in response to that call

in [her] investigative duties."6 She further testified that she did not hear anything

that affected her investigation in any way, other than writing the reports. The

recording could not be played for the court because it had been deleted.

       The trial court found Detective Stangeland to be credible and denied

Delafuente's motion.

       This court defers to the trier of fact on credibility determinations.7 Here,

the trial court was in the best position to determine the facts and it was

persuaded that the State rebutted the prejudice presumption. Because the facts

support this conclusion, the trial court did not deny the dismissal motion for

untenable reasons. Thus, it did not abuse its discretion.




       6   Report of Proceedings(June 5, 2015) at 12-13.

      7 State v. Hart, 195 Wn. App. 449, 457, 381 P.3d 142(2016), review
denied, 187 Wn.2d 1011 (2017).


                                          4
No. 74026-1-1/5


       The State correctly argues that Delafuente argues four additional

instances of government misconduct for the first time on appeal. First,

Delafuente argues that Securus, the jail's call system provider, gave Detective

Stangeland access to Delafuente's calls without providing any training on "how to

avoid intercepting attorney-client calls." Second, Delafuente argues that "the

State deleted the electronic evidence of Detective Stangeland's access" to the

call, making it impossible to corroborate her testimony. Third, Delafuente argues

that Securus violated her right to counsel by recording the call. And lastly, she

argues that the State delayed in disclosing Detective Stangeland's actions in this

case and a prior case involving a similar incident. Overall, Delafuente argues

that these acts of government misconduct "forced" her to choose between being

fully prepared for trial and her speedy trial right.

       Notably, Delafuente fails to cite the record to support these new

arguments in accordance with RAP 10.3(a)(6). More importantly, she fails to

argue that these alleged incidents of government misconduct constitute manifest

constitutional errors as required by RAP 2.5(a). Thus, we do not consider these

arguments.

                               SPEEDY TRIAL RIGHT

       Delafuente argues that the trial court violated her speedy trial right. We

disagree.

       CrR 3.3 protects a defendant's constitutional right to a speedy tria1.8 CrR

3.3(b)(1)(i) provides that a defendant detained in jail shall be brought to trial


       8 State   v. Kenyon, 167 Wn.2d 130, 136, 216 P.3d 1024(2009).

                                           5
No. 74026-1-1/6


within 60 days of arraignment.9 But certain time periods are excluded from the

computation of time, including trial court continuances.10

       CrR 3.3(0(2) provides:

       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 continuance. . . .

       The application of the speedy trial rule to a specific set of facts is a

question of law we review de novo.11 But we review for abuse of discretion a trial

court's decision to grant a continuance.12

       Court congestion, perhaps due to lack of courtroom availability, is not a

valid reason for a continuance beyond the time period for tria1.13 A court may

continue trial due to court congestion "when it carefully makes a record of the

unavailability of judges and courtrooms and of the availability of judges pro

tempore."

       Here, Delafuente's argument focuses on the two trial court orders

continuing her trial. It is undisputed that Delafuente's speedy trial "[e]xpiration

date" was set for September 4, 2015. The two continuance orders were entered


       9 State   v. 011ivier, 178 Wn.2d 813, 823, 312 P.3d 1 (2013).
       10 Id.; CrR 3.3(e).

       11   State v. Hawkins, 181 Wn.2d 170, 183, 332 P.3d 408(2014).

       12 011ivier, 178 Wn.2d   at 822-23.
       13 Ikrmn, 167 Wn.2d      at 137.


                                             6
No. 74026-1-1/7


on August 5th and 6th of 2015. Delafuente's trial began on August 10th, 2015.

There was no continuance beyond the speedy trial expiration date of September

4, 2015. Because the trial court did not continue Delafuente's trial beyond the

speedy trial expiration date, we conclude that the trial court did not abuse its

discretion in granting the continuances.

       Delafuente relies on State v. Kenyon14 to argue that the trial court violated

her speedy trial right. She specifically argues that the trial court failed to provide

the required details regarding the lack of judicial availability. But that case is

distinguishable because the trial court there continued the trial past the speedy

trial deadline.15 Thus, it was required to document the availability of pro tempore

judges and unoccupied courtrooms but failed to do so. That is not the case here.

                                RIGHT TO BE PRESENT

       Delafuente argues that the trial court violated her right to be present at

trial. We disagree.

       As a matter of due process, criminal defendants have a fundamental right

to be present at all critical stages of the tria1.16 "A 'critical stage' is one at which

the defendant's presence 'has a relation, reasonably substantial, to the fullness

of his opportunity to defend against the charge."'"


       14 167 Wn.2d       130, 216 P.3d 1024(2009).

       15   Id. at 135.

       16 Statev. Zyion Houston-Sconiers, No. 92605-1, slip op. at 31 (Wash.
Mar. 2, 2017), http://www.courts.wa.gov/opinions/pdf/926051.pdf.

                    quotation marks omitted)(quoting State v. Irby, 170 Wn.2d
       17 Id. (internal
874, 881, 246 P.3d 796 (2011)).

                                            7
No. 74026-1-1/8


       Whether a defendant's constitutional right to be present has been violated

is a question of law we review de novo.18

      A defendant's right to be present is not absolute.19 In In re Personal

Restraint of Benn, the supreme court held that Gary Benn did not have a right to

be present at a continuance hearing.29 This is because his absence during the

hearing "did not affect his opportunity to defend the charge. The motion for

continuance involved no presentation of evidence, nor was the purpose of the

hearing... to determine the admissibility of evidence or the availability of a

defense.          ."21   In short, it was not a "critical stage."

       Here, outside Delafuente's presence, the trial court entered the two orders

continuing trial. Neither proceeding was a critical stage. Delafuente did not have

a right to be present when the court entered these orders.

                                       RIGHT TO COUNSEL

       Delafuente argues that the trial court violated her right to counsel. We

disagree.

       Both the federal and state constitutions provide the right to counse1.22

"The focus of the Sixth Amendment right to counsel inquiry is whether the event


       18   Irby, 170 Wn.2d at 880.

      18 State v. Thompson, 190 Wn. App. 838, 843, 360 P.3d 988 (2015),
review denied, 185 Wn.2d 1012(2016).

       28 134 Wn.2d          868, 920, 952 P.2d 116 (1998).
       21   Id.

       22   U.S. CONST. amend. VI; CONST. art. I, § 22.


                                                  8
No. 74026-1-1/9


for which the defendant argues counsel is necessary is a 'critical stage' of the

criminal prosecution."23

       As explained above, a continuance hearing is not a critical stage of trial.

Thus, the trial court did not violate Delafuente's right to counsel when it entered

the orders continuing her trial outside her counsel's presence.

       Delafuente relies on State v. Rupe24 to argue that a trial court's

Icionsideration of the time for setting the trial is a critical stage." But Rupe is

distinguishable because the issue in that case was whether the defendant was

entitled to counsel when the trial court set his resentencing trial date.25

                         PROSECUTORIAL MISCONDUCT

       Delafuente argues that the prosecutor committed two acts of misconduct

during closing argument. Because she failed to object at trial and cannot show

either comment was flagrant and ill-intentioned, we disagree.

       To prevail on a claim of prosecutorial misconduct, the defendant must

establish that the prosecutor's conduct was both improper and prejudicia1.26 A

defendant waives the misconduct issue by failing to object or request a curative

instruction at trial, "unless the conduct was so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice."27 This heightened


       23   Grisby v. Herzog, 190 Wn. App. 786, 796, 362 P.3d 763(2015).

       24   108 Wn.2d 734, 741, 743 P.2d 210(1987).

       25 See   id. at 741-42.

       26 State   v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653(2012).

       27 State   v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125(2014).

                                           9
No. 74026-1-1/10


standard requires that a defendant "show that(1)'no curative instruction would

have obviated any prejudicial effect on the jury' and (2)the misconduct resulted

in prejudice that 'had a substantial likelihood of affecting the jury verdict.'"28

       When the defendant fails to object, it "strongly suggests to a court that

the argument or event in question did not appear critically prejudicial to an

appellant in the context of the trial.'"28

                                "Reasonable"Argument

       Delafuente argues that the prosecutor improperly argued to the jury that

Delafuente should have known that the assault would happen. She fails to show

this was flagrant and ill-intentioned misconduct.

       At trial in this case, the State had the burden to prove that Delafuente

rendered criminal assistance. This means the State had to prove that Delafuente

provided transportation "or other means of avoiding the discovery" to another

person, who she knew had committed a crime, with the "intent to prevent, hinder,

or delay the apprehension or prosecution" of that person.

       The trial court gave the following "knowledge" instruction, which

provided:

               A person knows or acts knowingly or with knowledge with
       respect to a fact, circumstance or result when he or she is aware of
       that fact, circumstance or result. . . .
               If a person has information that would lead a reasonable
       person in the same situation to believe that a fact exists, the

        Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,
       28
455, 258 P.3d 43(2011)).

       29 State v. McKenzie, 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006)(quoting
State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610(1990)).


                                             10
No. 74026-1-1/11


         jury is permitted but not required to find that he or she acted
         with knowledge of that fact.
                 When acting knowingly as to a particular fact is required to
         establish an element of a crime, the element is also established
       - if a person acts intentionally as to that fact.(30I

        During closing argument, the prosecutor referred to Delafuente's actions

and the knowledge instruction. Delafuente did not object after the prosecutor

argued as follows:

       [S]he wants to say to you, I had no idea what was going on.

       Your instructions are replete with. . . the word "reasonable," and a
       reasonable person standard. And is it at all reasonable that
       [Delafuente] didn't know exactly what was going to go down?[31]

        The question before us is whether this argument is flagrant and ill-

intentioned misconduct that overcomes her failure to object below. We hold that

it is not.

        On appeal, Delafuente contends that the prosecutor improperly argued to

the jury that Delafuente should have known that the assault would happen and

that she assisted. To support this argument, she cites State v. Allen.32

        In that case, Dewayne Allen drove Maurice Clemmons to and from a crime

scene.33 The State had to prove that Allen actually knew he was promoting or




        3°   Clerk's Papers at 92(emphasis added).

        31   Report of Proceedings Vol. 13(September 1, 2015) at 1373(emphasis
added).

        32 182 Wn.2d     364, 375, 341 P.3d 268(2015).

        33 Id. at 369.




                                          11
No. 74026-1-1/12


facilitating Clemmons's crime.34 During closing argument, the State repeatedly

used the phrase "should have known" when describing the knowledge

definition.35 For example, the prosecutor argued "even if [Allen] doesn't actually

know, if a reasonable person would have known, he should have known ..        ."36


       On appeal, the supreme court concluded that these statements misstated

the law and were improper.37 It determined that "what Allen knew and did not

know was critically important."38 Thus, it concluded that "the 'should have known'

standard is incorrect" and that a jury must find that Allen had actual knowledge.38

But the jury may make this finding from circumstantial evidence.40

       Here, although Delafuente correctly cites the Allen principles, the

prosecutor in this case did not make the "should have known" argument during

closing argument. The prosecutor did not argue that Delafuente should have

known if a reasonable person would have known. Rather, the context of this

argument demonstrates that the prosecutor argued to the jury whether




       34   Id. at 371.

       35   Id.

       36   Id. at 376.

       37   Id. at 375.

       38   Id.

       39   Id. at 374-75.

       4° Id. at 374.


                                        12
No. 74026-1-1/13


Delafuente's lack of knowledge claim was reasonable. Thus, the prosecutor's

conduct was not "flagrant and ill intentioned."'"

                         "Successfully Executed"Argument

       Delafuente also argues that the prosecutor committed misconduct by

using the phrase "successfully executed." She fails to overcome her failure to

object below.

       In State v. Davis, the supreme court approved of a prosecutor's comment

during closing argument that the defendant was the victim's "judge, jury, and

executioner.'"42 The supreme court specifically concluded that nothing in the

record "indicate[d] the comment was intended to inflame the jury."43

       Here, during trial, a police officer testified that Powell "had passed on"

when the officer arrived and that he tried to bring Powell "back to life." An

emergency physician also testified that Powell "would have definitely died"

without medical intervention.

       During closing argument, the prosecutor stated:

               Without the heroic efforts of the first responding officers, the
       first responding medics, and Harborview Medical Center, you would
       be sitting here on a homicide trial. But for medical intervention, the
       defendants would have successfully executed Mr. Powell.(44]


       41   Lindsay, 180 Wn.2d at 430.

       42 175 Wn.2d 287, 337, 290 P.3d 43(2012)(internal quotation marks
omitted)(quoting State v. Davis, 141 Wn.2d 798, 873, 10 P.3d 977(2000)).

       43   Davis, 141 Wn.2d at 873.

       44   Report of Proceedings Vol. 13(September 1, 2015) at 1353(emphasis
added).


                                         13
No. 74026-1-1/14


        Delafuente did not object but she now challenges the above emphasized

language.

        As in Davis, nothing in this record indicates that the prosecutor made this

comment to inflame the jury's passions or prejudices. Although this statement

may have been a strong characterization of the evidence presented, we conclude

that the prosecutor's comment was not "flagrant and ill intentioned."45

        Delafuente contends that the prosecutor argued to the jury that Delafuente

was actually guilty of the uncharged crime of murder to inflame the jury. But the

prosecutor did not refer to the uncharged crime of murder by stating "the

defendants would have successfully executed Mr. Powell." Rather, this

statement reflects the State's characterization of the evidence presented to the

jury.

        In sum, Delafuente fails to establish that the comments to which she did

not object below were flagrant and ill-intentioned that overcome her failure to

object. They were not. We need not reach her substantive claims of

prosecutorial misconduct.

                                      COSTS

        Neither Delafuente nor the State raises the issue of the award of appellate

costs in their appellate briefs. We do so sua sponte.




        45   Lindsay, 180 Wn.2d at 430.


                                          14
No. 74026-1-1/15


       Under our recent opinion in State v. Sinclair, the issue of appellate costs is

to be decided by the panel that renders the decision.46 We do so here.

      Shortly after the trial court entered the judgment and sentence, Delafuente

moved for review at public expense and appointment of an attorney. The trial

court granted the motion.

      Under Sinclair, there is a presumption that indigency continues unless the

record shows otherwise.47 We have reviewed this record and see nothing to

overcome this presumption. Accordingly, an award to the State for appellate

costs is inappropriate under these circumstances.

      We affirm the judgment and sentence and decline to award costs on

appeal to the State.
                                                         Gi7x
WE CONCUR:




                                                                                  CJ1


       192 Wn. App. 380, 385, 367 P.3d 612(2016), review denied, 185
      46
Wn.2d 1034(2016).

      47   Id. at 393.

                                         15
