                                                 FILED
                                             JANUARY 24, 2017
                                          In the Office of the Clerk of Court
                                        WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,               )     No. 31187-2-111
                                   )     (consolidated with
                  Respondent,      )     No. 31188-1-111
                                   )     No. 31205-4-111
    V.                             )     No. 31225-9-111)
                                   )
JOSE JESUS MANCILLA,               )
                                   )
                  Appellant.       )
                                   )
                                   )
STATE OF WASHINGTON,               )
                                   )
                  Respondent,      )
                                   )
     v.                            )
                                   )
ARMANDO LOPEZ,                     )     PUBLISHED OPINION
                                   )
                  Appellant.       )
                                   )
                                   )
STATE OF WASHINGTON,               )
                                   )
                  Respondent,      )
                                   )
     v.                            )
                                   )
JAIME LOPEZ,                       )
                                   )
                  Appellant.       )
                                   )
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


STATE OF WASHINGTON,                           )
                                               )
                       Respondent,             )
                                               )
       v.                                      )
                                               )
NICHOLAS JACOB JAMES,                          )
                                               )
                       Appellant.              )

       PENNELL, J. -    In the context of a criminal trial, gang evidence is a double-edged

sword. On the one hand, such evidence can help jurors understand relationships between

defendants and how various symbols and terminology suggest motive and intent. But on

the other hand, gang evidence can be problematic. Merely suggesting an accused is a

gang member raises the concern he or she will be judged guilty based on negative

stereotypes as opposed to actual evidence of wrongdoing. Accordingly, the State's use of

gang evidence requires close judicial scrutiny.

       The State's gang evidence here largely stands up to our review. The objective

evidence suggested the defendants' crime was gang related, and the State presented

narrowly tailored gang evidence to support its theory of the case. The State did err in

introducing the defendants' booking statements where they admitted gang affiliation.

State v. Juarez Deleon, 185 Wn.2d 478, 374 P.3d 95 (2016). However, with the




                                              2
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


exception of Jaime Lopez, this error was rendered harmless by other independent

evidence of admitted gang affiliation.

       Because neither gang related evidence nor other alleged errors impacted the

convictions of Jose Mancilla, Armando Lopez, and Nicholas James, those results are

affirmed. Only Jaime Lopez's conviction was compromised by impermissible gang

evidence. Accordingly, Jaime Lopez's conviction is reversed without prejudice and

remanded for retrial.

                                    BACKGROUND
       This case involves a Yakima County drive-by shooting. The facts are strikingly

similar to another Yakima County drive-by shooting recently addressed by the Supreme

Court in Juarez Deleon. The target of this shooting was the Rincon house. Although

several people were inside the house at the time of the shooting, no one was hurt. When

law enforcement arrived to investigate the shooting, blue graffiti could be seen near the

home's entrance. Law enforcement also recovered spent ammunition and a rifle

magazine from the scene.

       This was not the first time the Rincon house had been fired upon. It had been

targeted four or five times in the past, presumably because two of the household members

were affiliated with the Nortefios gang.



                                             3
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


       On the morning of the shooting, two women were delivering newspapers in the

area. After hearing the shots, they noticed a vehicle coming from the direction of the

Rincon house. The vehicle had its headlights off and turned in front of their car. The

women called the police and identified the vehicle as a gray Mitsubishi Galant.

       A responding deputy saw a vehicle matching the women's description stop at an

intersection. The deputy turned to pursue the vehicle, eventually stopping it. He removed

four individuals from the vehicle, driver Armando Lopez, front seat passenger Jose

Mancilla, and back seat passengers Jaime Lopez and Nicolas James. The deputy noted

Armando Lopez had a blue bandana hanging from his neck. No firearms or ammunition

were found inside the vehicle. Suspicious that firearms may have been discarded prior to

the stop, officers went back to the intersection where the deputy first saw the Mitsubishi

Galant. Three firearms were located in the area. A later forensic examination confirmed

the three firearms matched the ammunition and magazine found at the Rincon house.

      At the police station, law enforcement took the defendants' photographs.

Armando Lopez is depicted "throwing up a gang sign." Ex. 68; 5 Report of Proceedings

(RP) (Sept. 6, 2012) at 497-98. Law enforcement also took pictures of his many tattoos,

including the number 13. The photograph of Jaime Lopez shows numerous tattoos,

including a forearm tattoo of a zip code and the number 13 tattooed on his shoulders.



                                             4
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


Nicolas James is pictured wearing a blue shirt with a blue belt; his belt buckle

prominently featuring the number 13. Both the color blue and the number 13 are

associated with the Surefios gang.

       After being read their Miranda 1 rights and invoking their right to remain silent, the

four defendants were booked into jail. During the booking process, a corrections officer

questioned the defendants about gang affiliation in order to ensure they were safely

housed. In response to that questioning, all four men admitted they were Surefios.

Armando and Jose specifically identified themselves as members of Little Valley Locos

or Lokotes (L VL ), a Surefio clique.

       The State charged the four men with seven counts of first degree assault and one

count of drive-by shooting, all carrying gang aggravators. The seven counts of first

degree assault also carried up to three potential firearm enhancements per count. In

addition, the State charged Jose Mancilla, Armando Lopez, and Nicolas James with one

count of first degree unlawful possession of a firearm, also carrying a gang aggravator.

       The four defendants were tried together. At trial, the State introduced the

defendants' booking statements acknowledging gang membership. In addition, the State

introduced recorded jail phone calls where Jose Mancilla and Nicolas James implicated


       1
           Miranda v. Arizona, 384 U.S. 436,444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                             5
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


themselves as members of LVL. The State also called Officer Jose Ortiz as a gang

expert. Officer Ortiz testified about the meaning of gang terminology and symbols, the

types of criminal activities in which gangs were involved, gang codes of conduct and

discipline of violators, gang interactions with other gangs, the hierarchy of gang

membership, and how to achieve status within a gang. He also testified Armando Lopez

is a member of LVL.

       The jury found the defendants guilty as charged. FoUowing a motion to arrest

judgment, the trial court dismissed the gang aggravators. The court sentenced Jose

Mancilla and Nicolas James to consecutive sentences for the seven counts of first degree

assault and imposed the three firearm enhancements per count consecutively, for a total

sentence of 1,956 months. The court sentenced Armando Lopez, a persistent offender, to

life in prison without the possibility of release. The court sentenced Jaime Lopez to

consecutive sentences for the seven counts of first degree assault and imposed the three

firearm enhancements per count consecutively, for a total sentence of 1,929 months. 2 All

four defendants appeal.




      2 All sentences imposed for the convictions for the drive-by shooting and first
degree unlawful possession of a firearm ran concurrently to the above-enumerated
sentences.

                                             6
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


                            ANALYSIS OF TRIAL CLAIMS

Fifth Amendment challenge to booking statements

       The trial court erred in admitting the defendants' jail booking statements regarding

gang affiliation. Juarez Deleon, 185 Wn.2d at 487. Because the statements were made

to ensure the defendants' personal safety, they cannot be used as adverse evidence at trial.

Id.

       While the State committed constitutional error in admitting the defendants'

statements, reversal is not automatic. When faced with a constitutional error, we apply a

harmless error test. Id. The State must prove the erroneously admitted evidence was

harmless beyond a reasonable doubt. Under this level of scrutiny, we examine whether

"' any reasonable jury would have reached the same result, despite the error.'" Id.

(quoting State v. Aumick, 126 Wn.2d 422,430, 894 P.2d 1325 (1995)).

       Application of the harmless error analysis to this case is guided by the factually

similar case of Juarez Deleon. At trial in Juarez Deleon, the State had presented

substantial gang affiliation evidence, apart from booking statements. The evidence

included gang related clothing and tattoos. Witnesses also testified about the defendants'

past gang affiliations. While this evidence would seem substantial, Juarez Deleon held it

was insufficient to meet the State's burden. As explained by the court, "[t]he strongest



                                             7
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


evidence that a person is a gang member is their own clear admission." Juarez Deleon,

185 Wn.2d at 488. Because the State had no such evidence, apart from the improperly

admitted booking statements, the Juarez Deleon court reversed the defendants'

convictions.

       In light of Juarez Deleon, we focus on whether the State presented evidence of the

defendants' admitted gang affiliation, apart from their booking statements. Such

evidence exists for three of the four defendants. With respect to Armando Lopez, the

State introduced a postarrest photo in which Armando Lopez displayed a gang related

hand sign. While not verbal, this was an unambiguous admission of current gang

membership. The State also introduced incriminating jail calls from Jose Mancilla and

Nicholas James. During Jose Mancilla' s recorded call, he identified himself as "Solo"

from the LVL gang. 7 RP (Sept. 10, 2012) at 773, 776. During Nicholas James's call, he

identified himself by the name "Little Rascal." Id. at 774, 777. This testimony was

significant because Armando Lopez's gang name was "Rascal." Id. at 796. According to

the State's gang expert, using the adjective "Little" denotes an individual as a mentee of a

named gang member. 8 RP (Sept. 11, 2012) at 857. Referring to himself as "Little

Rascal" was an acknowledgment by Mr. James of his status as the mentee of Armando

Lopez, whose gang name was "Rascal." While indirect, Mr. James's statement served to



                                             8
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


identify himself as a gang cohort. Admission of this statement to the jury was sufficient

for the State to meet its burden of overcoming Juarez Deleon error.

       Our analysis with respect to Jaime Lopez is much different. Other than Jaime

Lopez's booking statements, the State did not present any evidence of admitted gang

affiliation. Jaime Lopez was not involved in any recorded jail calls. He was not

photographed throwing a gang sign or wearing gang related clothing. 3 The only evidence

suggesting Jaime Lopez's gang affiliation was his tattoos. Yet Juarez Deleon held that

gang tattoos, even if accompanied by other indicia of gang membership, is insufficient to

overcome the taint of an inadmissible booking statement. Thus, nothing about Jaime

Lopez's words or appearance is sufficient to take his case outside the holding of Juarez

Deleon.

       The only possible distinction between Juarez Deleon and this case is the fact that

the State has been able to meet its harmless error burden as to Jaime Lopez's

codefendants. The question then becomes whether the combination of Jaime Lopez's

tattoos and his presence in a vehicle shortly after a drive-by shooting with three admitted


       3
        During oral argument, counsel for the State proffered that Jaime Lopez was
wearing a blue "wild west" style bandana. Wash. Court of Appeals oral argument, State
v. Lopez, No. 31188-1-III (Oct. 20, 2016) at 27 min., 35 sec. to 28 min., 20 sec. (on file
with court). However, the record does not bear this out. The testimony at trial was the
"wild west" bandana pertained to Armando Lopez. 5 RP (Sept. 6, 2012) at 470-71.

                                             9
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


gang members is sufficient to overcome the taint of the Juarez DeLeon error. We hold it

is not. The jury was presented with evidence suggesting only three individuals were

involved in the drive-by shooting. Three guns were found near the scene of the crime, not

four. And when Nicholas James discussed his gang affiliated codefendants, he mentioned

only Armando Lopez (Rascal) and Jose Mancilla (Solo). He did not mention Jaime

Lopez. While the State presented significant evidence of Jaime Lopez's involvement, it

was not sufficiently strong to meet the difficult burden of establishing harmless error

beyond a reasonable doubt. Jaime Lopez's convictions are therefore reversed pursuant to

Juarez DeLeon.

Gang expert testimony

       The defendants challenge Officer Ortiz's expert testimony regarding gang

affiliation and gang related activity. They argue the evidence constituted improper

propensity evidence under ER 404(b) and was prejudicial under ER 403. They also claim

the testimony did not meet the standards for admission as expert testimony under ER 702.

We review the trial court's evidentiary rulings for abuse of discretion. State v. Asaeli,

150 Wn. App. 543, 573, 208 P.3d 1136 (2009). The defendants bear the burden of proof

in this context. Id.




                                             10
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


       ER 404(b) prohibits a court from admitting "[ e]vidence of other crimes, wrongs, or

acts ... to prove the character of a person in order to show action in conformity

therewith." Because it is a limitation on "any evidence offered to 'show the character of a

person to prove the person acted in conformity' with that character at the time of a

crime," it encompasses gang affiliation evidence that a jury may perceive as showing a

law breaking character. State v. Foxhoven, 161 Wn.2d 168, 174-75, 163 P.3d 786 (2007)

(quoting State v. Everybodytalksabout, 145 Wn.2d 456,466, 39 P.3d 294 (2002)).

       Given the inherent prejudice of gang evidence, the State's decision to introduce

gang expert testimony is a risky one. Id. Generalized expert testimony on gangs,

untethered to the specifics of the case on trial, is impermissible. Juarez Deleon, 185

Wn.2d at 490-91. But gang expert testimony can also be quite helpful. It can assist in

establishing a motive for a crime or showing the defendants were acting in concert. Id. at

490; State v. Scott, 151 Wn. App. 520,527,213 P.3d 71 (2009). It may also help explain

a witness's reluctance to testify. Id. at 528.

       This is a case where gang expert testimony was helpful. Officer Ortiz's testimony

supported the State's theory of motive and explained why the defendants, as members of

the Surefio affiliated LVL gang, would seek to target a house affiliated with Nortefios.

The testimony also explained why the jury should believe the four defendants were acting



                                                 11
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


in concert as opposed to the possibility that one or more were merely innocent associates.

Finally, the gang testimony explained why certain witnesses from the Rincon household

might fear reprisal and be reluctant to testify.

       The relevance of Officer Ortiz's testimony outweighed the risk of undue prejudice.

The State did not present Officer Ortiz's testimony simply in an effort to portray the

defendants as bad people. The objective evidence, including the blue graffiti left on the

Rincon house and the colors worn by the defendants at the time of arrest, provided the

State with ample reason to believe the assault on the Rincon house was gang related.

Officer Ortiz's testimony appropriately supplied the jury with the tools necessary to

interpret this evidence and understand the State's theory of the case.

       Nor was Officer Ortiz's testimony overly general. The vast majority of Officer

Ortiz's comments were directly linked to the specifics of the defendants' case. At one

point, Officer Ortiz did testify to general criminal activities by gangs, such as "disorderly

conduct, drinking, vehicle prowls, thefts, robberies, shooting, homicides, assaults." 8 RP

(Sept. 11, 2012) at 855. This testimony might be characterized as general. However, it

was not particularly prejudicial, especially given the testimony by nonlaw enforcement

witnesses that the Rincon house had been the target of numerous drive-by attacks,

including one which resulted in death. The least specific aspect of Officer Ortiz's


                                               12
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


testimony, which involved a discussion of how gang leaders issue orders from prison and

how new members are jumped into a gang, was elicited on cross-examination. Because

this testimony was not elicited by the State, it is not something the defendants can now

challenge on appeal.

       Apart from the objections to the relevance of gang expert testimony under ER

404(b) and 403, the defendants also challenge the nature of the State's gang expert

testimony under ER 702. Specifically, the defendants claim Officer Ortiz's testimony

failed to supply any information outside the realm of common knowledge. 4 They contend

it was not a proper subject for presentation to the jury under the guise of an expert

witness.

       The defendants' arguments regarding the quality of information supplied by

Officer Ortiz run counter to their claims of prejudice. To the extent Officer Ortiz simply

provided commonly understood information about gangs, it is difficult to understand how

his testimony could be prejudicial. But in any event, we disagree that Officer Ortiz's


       4 The defendants also claim Officer Ortiz's testimony constituted an impermissible
comment on the defendants' guilt. However, none of the defendants timely and
specifically objected to Officer Ortiz's testimony on the grounds it constituted an opinion
regarding their guilt. They objected solely on the grounds the proposed testimony was a
matter of common knowledge and constituted propensity evidence. Their failure to
specifically object bars them from claiming error. RAP 2.5(a); State v. Embry, 171 Wn.
App. 714, 741, 287 P.3d 648 (2012).

                                             13
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


testimony was so bland it failed to be useful and meet the criteria for admission under ER

702. While it may be common knowledge that rival gangs engage in violence against

each other, this was not the full extent of Officer Ortiz's testimony. Officer Ortiz

explained the meaning of gang terminology and symbols, the types of criminal activities

in which gangs are involved, gang codes of conduct and discipline of violators, gang

interactions with other gangs, the hierarchy of gang membership, and how a member

achieves status within the gang. This was technical information, important to the State's

theory of the case. It was therefore the proper subject for expert testimony.

Jury instruction challenges

       The defendants challenge three of the court's jury instructions: (1) the "to convict"

instruction regarding first degree assault, (2) the transferred intent instruction, and (3) the

accomplice liability instruction. They also argue the State presented insufficient evidence

to meet the terms of the "to convict" instruction. We review the court's jury instructions

de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Instructions are

flawed if, taken as a whole, they fail to properly inform the jury of the applicable law, are

misleading, or prohibit the defendant from arguing their theory of the case. State v. Tili,

139 Wn.2d 107, 126, 985 P.2d 365 (1999). In our review of the defendants' sufficiency

challenge we view the evidence in the light most favorable to the State and ask whether


                                              14
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


any rational trier of fact could have found guilt beyond a reasonable doubt. State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

          "To convict" instruction

          A "to convict" instruction is an instruction that apprises the jury of the elements of

an offense. In relevant part, the court's "to convict" instruction for first degree assault

states:

                To convict the defendant of the crime of First Degree Assault in
          Count [x], each of the following elements of the crime must be proved
          beyond a reasonable doubt:

                 ( 1) That on or about March 14, 2011, the defendant or an
                 accomplice assaulted [specific person];
                 (2) That the assault was committed with a firearm;
                 (3) That the defendant or an accomplice acted with intent to inflict
                 great bodily harm; and
                 (4) That this act occurred in the State of Washington.

Clerk's Papers (CP) at 61. 5 According to the defendants, this instruction was inadequate

because it failed to clarify the State's burden to prove specific intent.

          The crime of first degree assault requires proof of four elements-that the

defendant, (1) with intent to inflict great bodily harm, (2) assaulted (3) another (4) with a



          5
        This instruction mirrors the language of the pattern jury instruction, 11
Washington Practice: Washington Pattern Jury Instructions: Criminal 35.02, at 453 (3d
ed. 2008) (WPIC).

                                                15
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


firearm. State v. Elmi, 166 Wn.2d 209, 214-15, 207 P.3d 439 (2009); see also RCW

9A.36.01 l(l)(a). The nature of the defendant's intent is an important aspect of a court's

instructions on first degree assault. First degree assault requires the State to prove the

defendant intended a specific result; i.e., the infliction of great bodily harm. Elmi, 166

Wn.2d at 216. It is not sufficient merely to prove the defendant intended to act in a way

likely to bring about the specific result. If the jury instructions fail to make this

distinction, they are inadequate. State v. Byrd, 125 Wn.2d 707, 716, 887 P.2d 396 (1995).

       Contrary to the defendants' arguments, the instructions here did not misstate the

requisite form of intent. The third prong of the instruction unambiguously required the

State to prove intent to accomplish the result required by statute. There was no

reasonable basis for jury confusion on this point.

       The court's instructions were not required to specify that the defendants intended

to harm a specific person or persons. While the State certainly can present proof of intent

to harm a specific person, doing so is unnecessary. All the statute requires is proof the

defendant intended to inflict great bodily harm on someone, even if that someone is

unknown. Elmi, 166 Wn.2d at 218 ("Where a defendant intends to shoot into and to hit

someone occupying a house, a tavern, or a car," a conviction for first degree assault will

stand) (emphasis added). The instructions here met this standard.


                                              16
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


              Specific intent matching specific victims

       Apart from the legal adequacy of the "to convict" instructions, the defendants

claim the instructions, as worded, required the State to prove intent to assault a specific

person. Because no proof was presented at trial that the defendants knew who was inside

the Rincon house, the defendants claim the State presented insufficient evidence to

support their convictions.

       We disagree with the defendants' reading of the instructions. The instructions for

each count did specify different victims. But this was only to ensure separate findings.

This was important because even though a defendant's generalized intent to harm one or

more persons is sufficient to establish the mens rea of first degree assault, proof that an

actual person was in fact assaulted is necessary to complete the crime. See State v.

Abuan, 161 Wn. App. 135, 158-59, 257 P.3d 1 (2011). Without an individual victim,

there is no assault. The instructions here appropriately separated the defendant's intent

from the identity of the victim. Because there was no link between these two

components, the State's failure to prove intent to harm specific victims was

inconsequential.

              Sufficiency of the evidence

       Our disagreement with the defendants' interpretation of the law and instructions


                                             17
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


disposes of the majority of their claims that the State presented insufficient evidence to

satisfy the terms of the "to convict" instructions. One issue remains: whether the State

produced sufficient evidence for the jury to find the defendants intended to harm someone

as opposed to simply shoot at an empty house. Although proof as to a specific victim is

not required, the defendants are correct that the State must prove the defendants intended

harm to an actual person.

       In satisfying its burden of proving intent, the State is entitled to rely on

circumstantial evidence. Relevant factors may include the manner in which an assault is

committed and the nature of any prior relationship between the alleged assailant and

victim. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994).

       The evidence here showed the shooting took place at 4:00 a.m. on a Monday.

Several cars were parked outside the Rincons' small, single-wide trailer home. Faced

with these circumstances, the defendants could be expected to know the house they were

shooting at was occupied. In addition, given the home's small size, the defendants would

also know injuries were likely. These circumstances permitted the jury to find the

requisite degree of intent. Cf State v. Ferreira, 69 Wn. App. 465,469, 850 P.2d 541

( 1993) (evidence insufficient to support first degree assault when it was only "likely

apparent" that a house was occupied). The State satisfied its burden of proof.



                                              18
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


       Transferred intent jury instruction

       Apart from the "to convict" instruction, the defendants challenge the court's

transferred intent instruction. The instruction reads as follows:

               If a person assaults a particular individual or group of individuals
       with a firearm with the intent to inflict great bodily harm and by mistake,
       inadvertence, or indifference, the assault with the firearm took effect upon
       an unintended individual or individuals, the law provides that the intent to
       inflict great bodily harm with a firearm is transferred to the unintended
       individual or individuals as well.

CP at 60.

       The defendants' primary argument is the transferred intent instruction relieved the

State of its burden to prove mens rea. They argue the use of the words "mistake,

inadvertence, or indifference" suggests the lower mental states of recklessness or

negligence substitute for intent. We disagree. The court's instruction clearly lays out the

intent needed for first degree assault: "the intent to inflict great bodily harm." Id. The

instruction then uses a conjunctive "and" to state intent can be transferred to an

unintended victim by mistakenly, inadvertently, or indifferently assaulting an unintended

person. The words "mistake, inadvertence, or indifference" only apply to the identity of

the victim, not to the intent. The instruction does not conflate mental states and is not

confusing.




                                             19
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


       The defendants also argue the transferred intent instruction was unnecessary.

Regardless of whether this is true, relief is unwarranted. The transferred intent instruction

may have been superfluous given the "to convict" instruction. However, inclusion of the

instruction did not negatively impact the defendants, especially where the defense did not

involve intent but rather identity. See State v. Salamanca, 69 Wn. App. 817, 827, 851

P.2d 1242 (1993).

       Accomplice liability instruction

       The final instructional challenge goes to the court's accomplice liability

instruction, which reads as follows:

               A person is an accomplice in the commission of a crime if, with
       knowledge that it will promote or facilitate the commission of the crime, he
       either:

              (I) solicits, commands, encourages, or requests another person to
              commit the crime; or
              (2) aids or agrees to aid another person in planning or committing
              the crime.

              The word "aid" means all assistance whether given by words, acts,
       encouragement, support, or presence. A person who is present at the scene
       and ready to assist by his or her presence is aiding in the commission of the
       crime. However, more than mere presence and knowledge of the criminal
       activity of another must be shown to establish that a person is an
       accomplice.

              A person who is an accomplice in the commission of a crime is
       guilty of that crime whether present at the scene or not.

                                             20
No. 31187-2-111; 31188-1-111; 31205-4-111; 31225-9-111
State v. Mancilla


CP at 2296. 6

       The defendants claim this instruction was confusing and included erroneous

language that mere presence was sufficient to give rise to accomplice liability. We find

no error. The instruction unambiguously informed the jury the State was required to

prove more than mere presence. By distinguishing mere presence and requiring proof the

defendant knew his conduct would promote or facilitate the commission of a crime, the

instruction appropriately apprised the jury that the State must prove more than the

defendant was a knowing observer of a crime. No error was committed in issuing the

instruction.

Public trial

       Nicolas James contends the trial court violated his right to a public trial by

allowing the trial to continue past 4:00 p.m. on several days when a sign on the

courthouse door indicated the courthouse closed at 4:00 p.m. His argument is foreclosed

by the Washington Supreme Court's decision in State v. Andy, 182 Wn.2d 294, 340 P.3d

840 (2014).




       6
         This instruction is identical to the language from the Washington Pattern Jury
Instructions. WPIC 10.51, at 217. It is also drawn directly from the accomplice liability
statute, RCW 9A.08.020.

                                             21
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


                      ANALYSIS OF SENTENCING CLAIMS

Firearm enhancement

       Jose Mancilla contends the trial court had no authority to "stack" the three firearm

enhancements. Br. of Appellant at 14. He argues that there should have been a 60-month

enhancement for each count of first degree assault instead of a 180-month enhancement

for each count. The Washington Supreme Court specifically addressed this argument in

State v. DeSantiago, 149 Wn.2d 402, 415-21, 68 P.3d 1065 (2003), holding "the plain

language of [RCW 9.94A.533]7 requires a sentencing judge to impose an enhancement

for each firearm or other deadly weapon that a jury finds was carried during an offense."

Id. at 421 (emphasis added). Here, the jury found Mr. Mancilla carried three separate

firearms for each of the seven counts of assault. Thus, the court properly imposed an

enhancement for each of the three firearms.

Constitutionality of the Persistent Offender Accountability Act

      Armando Lopez claims his life sentence under the Persistent Offender

Accountability Act, RCW 9.94A.030 and .570, was imposed in violation of his rights to

due process, equal protection and to a jury trial. His arguments are contrary to our case



      7The DeSantiago court analyzed RCW 9.94A.510. The language at issue there
has now been recodified in RCW 9.94A.533.

                                              22
No. 31187-2-III; 31188-1-III; 31205-4-III; 31225-9-III
State v. Mancilla


law. State v. Witherspoon, 180 Wn.2d 875, 892-94, 329 P.3d 888 (2014); State v.

Brinkley, 192 Wn. App. 456, 369 P.3d 157, review denied, 185 Wn.2d 1042, 377 P.3d

759 (2016); State v. Williams, 156 Wn. App. 482, 496-98, 234 P.3d 1174 (2010).

                                       CONCLUSION

      The judgments and sentences of Jose Mancilla, Armando Lopez, and Nicholas

James are affirmed. Jaime Lopez's conviction is reversed without prejudice, and his case

is remanded for further proceedings, consistent with this opinion.


                                                                                           I
                                          Pennell, J.
WE CONCUR:




                                             7;~w~
                                                 oway,J.
                                                                     I~


                                   j




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