State of Washington v. Cesar Saul Prado

OCR transcription for search; preserved printed pages are authoritative

FILED
JAN. 8, 2015

in the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE
STATE OF WASHINGTON, ) No. 31275-5-III
Respondent,
v. UNPUBLISHED OPINION
CESAR SAUL PRADO,
Appellant.

LAWRENCE-BERREY, J. — Cesar Prado appeals his convictions for attempted first
and second degree murder and his exceptional sentence based on a gang aggravator. He
contends insufficient evidence supports the attempted murder convictions and the
criminal street gang sentencing enhancement. He also contends: (1) the trial court erred
in admitting the expert gang testimony under ER 404(b) and ER 702, (2) the gang
enhancements must be reversed because the gang experts’ testimony was based on
testimonial hearsay, in violation of his Sixth Amendment right to confrontation (3) the
State engaged in prosecutorial misconduct, (4) the trial court erred in giving a missing
witness instruction and a lesser included instruction, and (5) he received ineffective

assistance of counsel. We disagree with Mr. Prado’s contentions and affirm.

No. 31275-5-HI
State v. Prado
FACTS

Late in the evening on October 18, 2010, Angela Deckard and Brandon Parren, a
Sureno gang member, were at a Conoco gas station at 301 North First Street in Yakima,
Washington. Ms. Deckard pumped gas while Mr. Parren went into the store. Ms.
Deckard noticed three people drive by in a grey car and give her “dirty looks,” but she did
not recognize them and was not particularly concerned. Report of Proceedings (RP) at
530. As Mr. Parren returned to the car, he was shot in the neck and leg and fell to the
ground. Ms. Deckard, who was inside the car, heard the gunshots. As she attempted to
exit the car, she was shot in the leg and shoulder. Neither Mr. Parren nor Ms. Deckard
could identify the shooter. Officer Eric Walls responded to the call of the shooting and
spoke with several witnesses. One witness told him that he had seen a person run from
the east side of the building to a car that was at a gas pump, saw the person start shooting,
and then run eastward.

Police identified Israel Rivera, a Norteno gang member who was known to drive a
grey Kia, as a suspect. Several hours after the shooting, police were informed that a grey
Kia had crashed into a barrier and that two Hispanic males were seen running from the
car. Police went to Mr. Rivera’s house and learned that he had been seen with Cesar

Prado earlier in the evening. Police subsequently arrested Mr. Rivera and Mr. Prado.

No. 31275-5-HI
State v. Prado

Mr. Prado, who was 15 years old at the time of the shootings, was originally
charged in juvenile court with two counts of first degree assault. After a declination
hearing, the juvenile court declined jurisdiction and the State charged him with two
counts of attempted first degree murder and one count of first degree unlawful possession
of a firearm.

Pretrial Motions

Before trial, Mr. Prado moved to exclude any reference to gangs or gang activity,
arguing there was no nexus between his gang affiliation and the charged offenses. The
State, in turn, moved for admission of expert gang testimony, contending the evidence
was relevant “to establish motive for an otherwise seemingly senseless act of violence.”
Clerk’s Papers (CP) at 23.

As an offer of proof, the State argued the gang evidence provided the res gestate of
the case and showed intent, motive, preparation, and lack of mistake under ER 404(b).
The State noted that one of the victims, Mr. Parren, has a prominent Sureno tattoo on his
face, and that Mr. Prado was aware that Mr. Parren was a rival gang member. The State
argued, “[t]he whole motivation of this is they have some history of familiarity with each
other and had wanted to assault Mr. Parren on an earlier occasion but didn’t. They took

the opportunity when he was on the north side over here, which is considered territory of

No. 31275-5-H1

State v. Prado

La Raza, north side gangs, Norteno, and he was in the wrong place.” RP at 27. Without
that background, the State argued, “this is just a nonsensical random crime with no
purpose and no motive.” RP at 27.

Mr. Prado responded that the prejudice of the gang information outweighed any
probative value and cautioned the court that it was going to be difficult to “seat an
impartial jury given the gang activity in this community.” RP at 28.

The trial court granted the motion to admit the gang evidence and denied the
motion to exclude, finding the evidence prejudicial, but that “ample” evidence established
that “gang association was the reason for this alleged crime.” RP at 29. It explained: “I
think it is relevant. I think a person who is known as a gang expert should be entitled to
testify and explain to the jury how the gang works and what motivates them.” RP at 40.
The court continued, “[I]t has been my experience that gangs are understood and known
to the general public but not necessarily how they work or operate. I think that will be
important, an explanation, so the jurors can understand.” RP at 41.

Trial Testimony

At trial, Mr. Rivera testified that he and Mr. Prado were childhood friends and that
they spent time together every day. The prosecutor asked Mr. Rivera why he testified

against Mr. Prado. Mr. Rivera responded, “Because I don’t want to get in trouble. I don’t

No. 31275-5-III
State v. Prado

want to go down for it. I don’t want to go to prison for the rest of my life.” RP at 448.

Mr. Rivera stated that he and Mr. Prado were members of La Raza, a subset of the
Norteno gang. He explained that he and Mtr. Prado were “soldiers” for La Raza who “put
in work” to earn stripes for the ang, RP at 415. The prosecutor questioned Mr. Rivera
about how gang members achieve status in the gang:

[Prosecutor]: And what type of crimes give La Raza gang members higher
status?

[Mr. Rivera]: Shootings.

[Prosecutor]: Is that the highest status?

[Mr. Rivera]: Yeah.

[Prosecutor]: Does it matter whether you kill somebody or not?
[Mr. Rivera]: Not really.

[Prosecutor]: It’s just the willingness to shoot somebody?

[Mr. Rivera]: Yes.

[Prosecutor]: Do you get a higher status if you actually kill somebody?

[Mr. Rivera]: Yes.

[Prosecutor]: Who are your typical targets?

[Mr. Rivera]: S[u]renos.
RP at 416.

Mr. Rivera also explained that the older gang members direct the work, and
“[o]nce you put in work, then you're respected.” RP at 417. According to Mr. Rivera,
some La Raza members routinely carried firearms, including Mr. Prado.

Mr. Rivera then described the night of the shootings. According to Mr. Rivera, the

north side of Yakima is Norteno territory, and this area encompasses the Conoco station

No. 31275-5-IH

State v. Prado

where the shootings occurred. Mr. Rivera stated that on the day in question, he picked up
Mr. Prado just before noon. Mr. Prado was wearing a black and white checkered shirt
and carrying a semi-automatic gun. They drove around for a while and went to a local
park where they picked up Patrick Bentley, a mutual friend. The three of them then
cruised around with the intent to do some car prowling. Mr. Rivera pulled into the
Conoco gas station where he saw Mr. Parren, a known rival gang member. Mr. Rivera
told Mr. Bentley and Mr. Prado that he had just seen Mr. Parren, which prompted Mr.
Prado to ask if he should “light him up.” RP at 435. The prosecutor asked:

[Prosecutor]: What did [Mr. Prado] mean by light someone up?

[Mr. Rivera]: Shoot them.

[Prosecutor]: Were you surprised when he said that?

[Mr. Rivera]: No.

[Prosecutor]: Why?

[Mr. Rivera]: Because those kind of things are expected.

RP at 436.

Mr. Rivera then drove a short distance from the gas station. According to Mr.
Rivera, Mr. Prado put a bandana over his face, “[c]ocked [the gun] back, put one in the
chamber,” and walked back to the Conoco station. RP at 438. Mr. Rivera heard a series
of shots, saw Mr. Prado run back to the car, and heard him state he had just shot “the

scrap” and a girl. RP at 439. Mr. Rivera told Mr. Prado that he had “earned some

stripes” for the gang. RP at 440.

No. 31275-5-HI
State v. Prado

Neither Ms. Deckard nor Mr. Parren were able to identify the shooter. Ms.
Deckard stated that she was unable to get a good look at who was shooting. Mr. Parren
described the shooter as stocky and about 5’ 6.” He saw someone wearing a bandana
point an object at him, but could not identify the person. Mr. Parren admitted that he was
a Sureno, and that even if he could have identified the shooter, he would not have done so
because it would have ended his career.

Ms. Deckard and Mr. Parren described their injuries. Ms. Deckard testified that
she was shot in the leg and shoulder. She stated that one bullet entered just below her
knee, exited, and then went back into her thigh and stopped in her hip. Mr. Parren
testified that when he saw the shooter point the object at him, he turned his head away at
the last minute to avoid being shot directly in the head. He testified that he was shot in
the neck and upper leg and was wheelchair bound for an extended period of time because
one bullet had shattered his femur.

William Wilson, MD, testified about the dangers of bullets entering the neck or
femoral artery areas. He explained that the neck is an extremely worrisome area because
it can involve an injury to the upper spine, which can cause quadriplegia or paralyze the
nerves that go to the diaphragm, and can be lethal in a short amount of time. He also

testified that an injury to the airway is immediately life threatening and can result in

No. 31275-5-HI
State v. Prado
imminent death.

The State introduced several witnesses to explain gang culture. Detective Joe
Salinas, who has worked for the Yakima police department for 22 years and headed the
department’s gang unit for five of those years, testified that officers in the gang unit
receive constant ongoing training, and that he has daily contact with gang members on the
street.

Detective Salinas testified that he was one of the first officers to respond to the
shooting. When he arrived at the scene, he saw Mr. Parren lying next to a car parked by a
gas pump. He recognized Mr. Parren from his experience on the gang unit. Mr. Parren
had a gunshot wound near his head and on the side of his torso. Detective Salinas
observed 11 shell casing in the parking lot.

Detective Salinas testified that Mr. Parren had “what [he] would classify as a gang
tattoo, which is an X under the right eye and a 3 under the left eye.” RP at 155. He
explained, “[t]he X3 is significant in that it stands for the number 13, which is [Mr.
Parren’s| affiliation with S[uJreno gangs.” RP at 155. Detective Salinas also testified
that the area around the gas station was a predominantly Norteno neighborhood, “so much
so that we could just about determine if there was a carload of individuals wearing blue in

that neighborhood that we were going to have some problems.” RP at 158.

No. 31275-5-IH
State v. Prado

Detective Salinas further explained that La Raza is a subset of the Norteno gang
and that it “is probably the more active or most active gang... in Yakima.” RP at 158.
He testified that tattoos and certain types of clothing are gang identifiers, and explained
that Surenos wear the color blue as a gang identifier, while the Nortenos wear red. He
also stated, “This is a gang on gang, red on blue shooting. That’s a gang-motivated
crime.” RP at 158.

According to the detective, gang members are taught not to be forthright with
police: “It’s taught early on that you don’t talk to police, that in gang culture you’re not
going to talk to police because there’s no snitching. ... Nobody talks to the cops.” RP at
172-73. Detective Salinas also testified that gang members “put in work” for the gang to
either increase their stature within the gang or to promote the gang. RP at 167. He
explained this work included daytime burglaries to obtain items of property desired by a
gang leader, such as a television or lawnmower. According to the detective, gang
members gain the highest level of respect by committing more serious crimes: “[I]f you
spill blood for that gang, you automatically get status.... You may have gone and done a
hit on a rival, which is viewed as important in the gang world. ... So once you do those
significant things, spill blood for the gang, shoot a rival, spend time in prison, those are

viewed as very big for the gang.” RP at 170.

No. 31275-5-HI
State v. Prado

The prosecutor asked Detective Salinas to detail his experience with La Raza:

[Prosecutor]: How many incidents, since you’ve been on the [police
department], have you been involved with? Let’s say property crimes
involving La Raza gang members and let’s say violent crimes.

[Detective Salinas]: There’s too many to mention. Not the violent—
not so many of the violent crimes as it is the property crimes. Property
crimes are a big nuisance for the city.... Burglaries are big. Car prowls
are big. Assaults on rivals are big.

What you really can’t stop is the chance encounters. We talked
about Mr. Parren. You have it on your face. You’re telling the world who
you are. You’re wearing the clothing.

You go to the Walmart, there’s no telling who you’re going to see
there. You could see a Norteno. You’re riding your bike in the
neighborhood. You may wind up in the wrong neighborhood. Somebody’s
going to put you in check. Somebody is going to be there to let you know
this is not your neighborhood. You don’t belong here. We came across that
quite a bit.

RP at 170-71.
Detective Salinas then explained the structure of gangs, noting that their structure
was changing due to the increased incarceration of gang members:

We picked them up on probation violations, any number of things, to
control the head, put enough of them away.

Now you have no structure, no leadership. What’s happened now is
the older gang members . . . have been removed, put in prison for varying
types of crimes. Now you have no leadership or structure. You’ve got a
bunch of underlings with no direction.

Little homey will go on the street or try to freelance, go out and sell
dope by himself somewhere. He’s making his own money.

RP at 179. The prosecutor asked whether “a gang member can act both personally and

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No. 31275-5-I
State v. Prado

for the larger gang when they’re committing crime?” RP at 179. Detective Salinas

answered:

An individual before, you would have an individual getting direction on
exactly what to do. Now that’s not there anymore. So an individual
thinking he can get some status may go out and act on his own without any
direction from the hierarchy. Then you have issues, crossing boundar|[y]
lines, all kinds of things, that maybe the membership didn’t want to happen.
Maybe they’ve got family members living in rival territory. All [of] the
sudden they get shot up with gang fire because of something the little
homeys did. You have things going on where there is no direction, people
acting out on their own.

RP at 179-80.

Efren Morfin, a gang enforcement police officer for three years, testified that in
addition to basic law enforcement training, he attended annual specialized gang trainings.
He explained, “[w]e go over gangs, the history of gangs, where they evolved. A bunch of
deputies get together and share information, intelligence.” RP at 302. He also stated that
he has daily contact with gang members and that over the last few years has had contact
with hundreds of gang members.

The prosecutor asked Officer Morfin to explain the “anti-snitch ethic.” RP at 315.
Officer Morfin answered:

[Officer Morfin]: In gang language, snitching is telling on
somebody. You don’t want to snitch because there is certain rules that you

. live by as a gang member. So if you snitch, you’re telling on your homey
that just went out and did some stuff, usually involving crimes or anything

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No. 31275-5-II
State v. Prado

that can pin them up against a serious crime or any type of crime. So

basically, don’t talk to the police, don’t cooperate, don’t share information

with them. That’s essentially what that means.

[Prosecutor]: What if the person is a victim of a crime? Is it okay to
come in and cooperate with the police investigation and testify|?]
[Officer Morfin]: No. Usually if they’re a victim, the idea behind it

is, again, no snitching and take care of the issue later. If you can’t handle

your issue as a gang member, you’re looked upon as weak.

RP at 315-16. However, Officer Morfin also noted that gang members will snitch “[t]o
get themselves out of trouble if they participated in something” and know they are more
likely to take the hit. RP at 316.

Chris Taylor testified that he has worked for the Yakima Police Department for
seven years with close to five of those years in the gang unit. Regarding his gang
expertise, he stated that he is a member of the Northwest Gang Investigators Association,
has participated in approximately 120 extra hours of specialized gang-related training,
and has attended monthly and quarterly gang intelligence briefings throughout the state.

Officer Taylor testified that Mr. Parren is a self-admitted member of the East Side
Surenos, a subset of the larger Sureno gang. He stated:

Mr. Parren had a lot of clout. He’s what you would call an original

gangster, an OG. He had been incarcerated for at least five years before he

got released, and he was involved in gangs before that, before he went

away. So he had quite a tenure with gangs, which gave him the clout or the

seniority, you would say.

RP at 330.

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No. 31275-5-III
State v. Prado

Upon being asked whether a rival gang member would earn more respect killing an
older gang member, Officer Taylor responded:

Yes. The original gangsters or OG’s, they’re smarter. They have been

around longer. They’re aware of what goes on, knowing what to look for.

If you’re an up and coming rival and you’re able to take out a senior level

of a rival gang member, it’s all going to give you more credibility.... Ifa

young rival gang member takes out a senior rival gang member, he gets a

feather in his cap.

RP at 330.

Officer Taylor testified that Mr. Parren would be considered a rival of La Raza and
opined that La Raza is considered a criminal street gang. He stated that La Raza has been
involved in “violent homicides, homicides, drive-by shooting, robberies. They’ve been
known to be very active in home invasion or daytime burglaries, drug dealings, weapons
dealings[,] promoting prostitution, running girls, witness tampering. Basically they run
the gambit as long as it prospers them or the gang directly.” RP at 352-53.

Officer Taylor also stated that Mr. Prado would benefit both himself and La Raza
by shooting Mr. Parren and Ms. Deckard, explaining:

It would tell rival S[u]Jreno gang members—typically in Yakima First Street

is the border. If you’re west of you’re primarily S[u]reno. By doing

something that’s right on the border, that’s Norteno or La Raza, whatever

Norteno set is telling the S[u]renos that even if you come close to the border

we will shoot you. We don’t need a reason or the justification. If you come

into our territory we will shoot you.
That instills fear. It also, by instilling fear in rival gang members, it

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No. 31275-5-II
State v. Prado

keeps them safe basically that nobody is going to come there and shoot
them. They have the strike first mentality.

RP at 353.
The prosecutor then questioned Officer Taylor about snitching:

[Prosecutor]: How does the anti-snitch ethic play into that?

[Officer Taylor]: Gang members are very anti-telling, anti-
snitching.... If you’re the victim of a crime you don’t talk to the police. If
you’re the victim of a crime and you help the police identify who the
shooter was or who assaulted you, your own gang will check you or
discipline you. They will beat you up for helping law enforcement out for
prosecuting your crime.

[Prosecutor]: What’s the expectation of how those things should be
handled?

[Officer Taylor]: You remain quiet, either mislead the police by
describing someone else or saying you weren’t assaulted.

[Prosecutor]: In a serious case, how is snitching looked at?
[Officer Taylor]: In a case where you’re putting someone away for a
long time, by actually going in open court and saying that’s the guy that
pulled the trigger or that’s the guy that drove in the drive-by, you go with a
green light. It’s a go ahead any time that gang sees you there to assault you,
stab you, shoot you, do whatever they can to kill you or hurt you.
RP at 354-56. According to Officer Taylor, per Sureno rules, Mr. Parren’s role as
a Sureno was simply to say “I was shot. I don’t know who did it. I didn’t see
anything.” RP at 357.

Officer Taylor also explained the role of women in gangs. He testified that women

“are going to be in the car holding the drugs, probably holding firearms” because many

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No. 31275-5-HI
State v. Prado
gang members are not allowed to have guns due to their criminal history. RP at 358.
Officer Taylor also stated that women provide alibis, stating, women are “‘engrained in the
gang culture. If they don’t provide that alibi or support their boyfriend or the gang, they
can also can be put in check.” RP at 359.

After the State rested, Mr. Prado moved for a directed verdict, arguing that the
State failed to prove intent or premeditation. He also pointed out that other than the
discredited testimony of Mr. Rivera, no witnesses identified Mr. Prado as the shooter.
The court denied the motion, reasoning as follows:

The testimony of Mr. Rivera, the title or describing it as discredited is a

conclusion, I think, that the defense would want to achieve. That is a

decision that the jury would engage in.

The testimony from him was clear that he identified, targeted and

had gone to Mr. Prado, informed him of that. Mr. Prado stated what he was

going to do. He got out of the car. He put a bandana on with the intent of

achieving a particular purpose.

He traveled some distance to get to the target. He fired 11 shots, two

initially and then the remaining in quick succession. The gap between the

two and the remaining would suggest that there was some passage of time

when there was an ability deliberate. Following that period of time the

remaining bullets were fired, and two people were hit.
RP at 548-49.

Mr. Prado took the stand in his defense. He did not dispute that he was a member

of La Raza, but denied shooting Mr. Parren or Ms. Deckard. He testified that on the

afternoon of October 18, 2010, Mr. Rivera picked him up to drive around. According to

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No, 31275-5-III

State v. Prado

Mr. Prado, he and Mr. Rivera stopped at an apartment complex and visited with friends
until 8:00 or 9:00 at night. Mr. Prado claimed that after visiting with these friends, Mr.
Rivera drove him to Isabel Torres’s house, where Mr. Prado stayed until midnight. Mr.
Rivera’s stepfather then picked him up from Ms. Torres’s house and dropped him off at
his house between 12:30 a.m. and 1:00 a.m. Mr. Prado testified that he originally
admitted to an officer that he was at the Conoco station that night. However, Mr. Prado
testified that he really had not been to the Conoco station that night, but had originally
lied so that they’d “stop asking me questions.” RP at 575.

The prosecution played portions of two telephone calls made by Mr. Prado from
jail to Mr. Rivera. In those calls, Mr. Prado called Mr. Rivera a snitch. He never called
Mr. Rivera a liar.

The jury found Mr. Prado not guilty of attempted first degree murder in count 1,
but found him guilty of the lesser included offense of attempted second degree murder. It
also returned guilty verdicts for the attempted first degree murder charge in count 2 and
first degree unlawful possession of a firearm in count 3. The jury returned firearms
- enhancements in counts | and 2, and a special verdict finding Mr. Prado committed
counts 2 and 3 with the intent to benefit a criminal street gang. The court imposed an

exceptional sentence of 590 months based on the firearm enhancements and the gang

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No. 31275-5-III
State v. Prado
aggravator.
ANALYSIS

I. Sufficiency of the Evidence

A. Attempted First and Second Degree Murder. Mr. Prado first argues that the State
presented insufficient evidence to convict him of attempted first and second degree murder
and assigns error to the trial court’s denial of his motion for a directed verdict on the two
counts. At trial, Mr. Prado argued that the State failed to prove premeditation or that he was
the shooter. On appeal, he contends the evidence is insufficient because the murder
convictions were supported almost exclusively by Mr. Rivera’s unreliable snitch testimony,
and there was no physical or forensic evidence linking him to the crime. He also points out
that no witnesses, apart from Mr. Rivera, identified Mr. Prado as the shooter, including the
victims.

Evidence is sufficient to support a conviction if, viewed in the light most favorable
to the jury’s verdict, it permits any rational trier of fact to find the essential elements of
the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
1068 (1992). A claim of insufficiency admits the truth of the evidence and all reasonable
inferences that a trier of fact can draw from that evidence. Jd. Circumstantial evidence

and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d

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No, 31275-5-If

State v. Prado

99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71,
794 P.2d 850 (1990).

To convict Mr. Prado of attempted first degree murder, the State had to prove
beyond a reasonable doubt that he had the premeditated intent to cause the death of
another person and took a substantial step toward causing the death of that person.
RCW 9A.32.030(1 )(a); RCW 9A.28.020(1). Premeditation is the “deliberate formation
of and reflection upon the intent to take a human life.” State v. Hoffman, 116 Wn.2d 51,
82, 804 P.2d 577 (1991). “Premeditation may be shown by circumstantial evidence
where the jury’s inferences are reasonable and substantial evidence supports the jury’s
verdict.” State v. Sherrill, 145 Wn. App. 473, 484, 186 P.3d 1157 (2008). A conviction
for attempted second degree murder requires proof of the same elements with the
exception of premeditation. RCW 9A.32.050(1)(a); RCW 9A.28.020(1).

Mr. Prado’s primary contention on appeal is that Mr. Rivera’s testimony is
unreliable due to the State’s offer to substantially reduce Mr. Rivera’s sentence in
exchange for his testimony against Mr. Prado. He discredits Mr. Rivera’s testimony,
arguing, “‘[a]fter being offered the choice of pleading guilty to a Rendering Criminal

Assistance charge and receiving a sentence of only 20 months if he would testify for the

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No. 31275-5-I
State v. Prado

prosecution, Mr. Rivera changed his story and implicated Mr. Prado.” Br. of Appellant at
7-8.

Mr. Prado’s argument goes to the weight that a trier of fact might give to the
evidence, not its sufficiency. It is well settled that we do not weigh evidence or make
credibility determinations, as this is left to the jury. Camarillo, 115 Wn.2d at 71. We
also defer to the trier of fact on the persuasiveness of the evidence. State v. Walton, 64
Wn. App. 410, 415-16, 824 P.2d 533 (1992). As noted above, Mr. Rivera testified that he
entered into an agreement with the State prior to Mr. Prado’s trial. In exchange for his
testimony against Mr. Prado, the State agreed to amend his charges with a significant
reduction in the sentence. The jury was aware of the plea agreement and could judge Mr.
Rivera’s credibility in light of the deal. Moreover, the prosecutor reminded the jurors
during closing argument that they were the sole judges of the credibility of the witnesses:

When we look at the context of all of the evidence, there’s one person that’s

been, although untruthful at the beginning, which is expected, he’s a

participant. We’re not here trying to tell you that Israel Rivera is a saint,

that he’s doing this out of the goodness of his heart, quite frankly, he’s not.

He’s doing it because he’s on the Titanic, too, and it’s going down, and he

opted to take a life raft off.

There’s a price for it, and he described the price. He had to come

and testify against his friend, Mr. Prado.

RP at 680.

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No. 31275-5-III
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The jury evaluated Mr. Rivera’s testimony and presumably found it credible and
persuasive.

This testimony included information that gang members gain status by shooting
rival gang members, and that after being told that Mr. Parren was at the gas station, Mr.
Prado offered to shoot him. Mr, Prado then tied a red bandana over his face, armed
himself with a gun, and put bullets in the gun. The evidence also showed that Mr. Parren
and Ms. Deckard were shot multiple times, and that Mr. Prado admitted to Mr. Rivera that
he shot both of them. One of the bullets hit Mr. Parren in the neck. Another bullet hit
Ms. Deckard’s shoulder. Dr. Wilson testified that such injuries can be lethal. Jurors also
considered Mr. Prado’s inconsistent statements of whether he was at the Conoco station
that night and Mr. Prado’s jailhouse statements to Mr. Rivera.

As to the attempted first degree murder conviction, Mr. Prado argues there is no
evidence of premeditation. The premeditation required to support a first degree murder
conviction “must involve more than a moment in point of time.”” RCW 9A.32.020(1);
State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987). Thus, the State must show
that the defendant decided to cause the victim’s death after some period of reflection,
however short. State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006) (quoting

Hoffman, 116 Wn.2d at 82-83). Motive, gang membership, and procurement of a weapon

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No, 31275-5-III

State v. Prado

are relevant in establishing premeditation. Sherrill, 145 Wn. App. at 484; State v. Boot, 89
Wn. App. 780, 789-90, 950 P.2d 964 (1998).

The evidence establishes that Mr. Prado had a period of time to deliberate and
reflect before he shot Mr. Parren. After Mr. Rivera told Mr. Prado that Mr. Parren, a rival
gang member, was at the gas station, Mr. Rivera drove away and returned after Mr. Prado
stated his desire to shoot Mr. Parren. This is a sufficient period of time to establish
premeditation. Upon return to the Conoco gas station, Mr. Prado exited the car, walked
toward Mr. Parren and Ms. Deckard and fired the contents of the revolver, returned to Mr.
Rivera’s car, and fled. This evidence was sufficient to establish that Mr. Prado formed
the premeditated intent to kill Mr. Parren. It is also sufficient to establish that he
intended, without premeditation, to kill Ms. Deckard.

B. Aggravating Factor. Mr. Prado next contends insufficient evidence supports
the jury’s finding that he committed the crimes “with intent to directly or indirectly cause
any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street
gang its reputation, influence, or membership” under RCW 9.94A.535(3)(aa). CP at 111.
He argues the State failed to prove that (1) La Raza’s primary activity is the commission
of crimes, and (2) Mr. Prado committed the crimes at issue with the intent to benefit the

gang. Citing State v. Bluehorse, 159 Wn. App. 410, 429, 248 P.3d 537 (2011), Mr. Prado

21

No. 31275-5-III
State v. Prado
argues the State “merely introduced, through opinion testimony provided by police
officers, conclusory statements that La Raza was involved in a variety of general crimes.”
Br. of Appellant at 8-9. As to the second point, Mr. Prado notes that Mr. Parren was not
wearing gang colors, Ms. Deckard was not a gang member, and Mr. Prado did not say
anything that would allow his gang to claim credit for the shootings.
A court may impose a sentence higher than the standard range if a jury finds the
defendant committed the crimes to advance his position in a criminal street gang.
RCW 9.94A.030(12). We review findings that support an exceptional sentence for
substantial evidence. State v. Moreno, 173 Wn. App. 479, 495, 294 P.3d 812 (2013).
“Criminal street gang” is defined as:
[A]ny ongoing organization, association, or group of three or more persons,
whether formal or informal, having a common name or common identifying
sign or symbol, having as one of its primary activities the commission of
criminal acts, and whose members or associates individually or collectively
engage in or have engaged in a pattern of criminal street gang activity.
RCW 9.94A.030(12).
Relying in part on Bluehorse, this court has held that expert testimony about
generalized gang motivations is insufficient. Moreno, 173 Wn. App. at 496. Rather,

‘Ts]ome evidence must show gang involvement actually motivated the defendant to

commit a crime to support RCW 9.94A.535(3)(s)’s gang aggravating factor.” Jd.

22

No. 31275-5-II
State v. Prado

In Bluehorse, Crips gang members did a drive-by shooting at the house of a rival
Blood gang member named Fomai Leoso. Bluehorse, 159 Wn. App. at 416. At the time
of the shooting, Mr. Bluehorse was in a particular sport utility vehicle associated with his
gang and somebody yelled out a Crip-related phrase before the shooting. /d. at 416. For
a period of several months before the shooting, Fomai’s brother, Francis Leoso, and Mr.
Bluchorse exchanged gang hand signs, particularly when Mr. Bluehorse walked in front
of the Leoso’s house. /d. at 418. An expert testified that gang members must maintain
their status by retaliating against gang members who encroach on their territory and
disrespect their gang by making the hand signs of their own gang in rival territory. Jd.

The Court of Appeals reversed Mr. Bluehorse’s gang aggravating factor because
the exchange of gang signs several months prior was the only evidence of gang-related
motivation aside from generalized expert testimony. The court explained:

The State presented no evidence that [Mr.] Bluehorse announced a rival

gang status contemporaneously with the shooting or that he had recently

confronted and been disrespected or provoked by rival gang members,

which would... give rise to a contemporaneous gang requirement or desire

to retaliate. Further, the State presented no evidence that [Mr.] Bluehorse

made any statements that he wanted to advance his position in a gang or

committed the drive-by shooting for reasons related to gang status.

Id. at 430-31 (footnote omitted),

23

No. 31275-5-IH
State v. Prado

Similarly in Moreno, the defendant committed what appeared to be a random act
of violence against a nongang member. Moreno, 173 Wn. App. at 495. However, the
court concluded that there was sufficient evidence to support the gang aggravating factor
when a gang expert testified that (1) the Nortenos and Surenos are rivals, (2) there is
usually a specific reason for encroaching on rival territory, and (3) gang members often
commit random crimes as a way to maintain or improve their status within the gang.
Moreno, 173 Wn. App. at 497. The court emphasized that the evidence also showed that
Mr. Moreno had ties to the Nortenos, he and his cohorts were in Sureno territory, and
somebody in Mr. Moreno’s car yelled out a gang-related phrase moments before the
shooting. /d. at 496-97. The court held that this evidence in connection with the expert
testimony was sufficient to support the inference that Mr. Moreno intended to advance his
position in his gang by shooting at the pedestrian. /d. at 497.

Here, like Moreno, there is sufficient evidence for the jury to infer that Mr. Prado
intended to indirectly cause a benefit or advantage to a criminal street gang. Several gang
experts testified that La Raza members engage in a wide range of criminal activity,
including shootings, robberies, home invasions, drug dealings, and promoting
prostitution. Detective Salinas testified that gang members “put in work” to increase their

stature in the gang or to promote the gang. RP at 169. This “work” ranges from

24

No, 31275-5-II

State v. Prado

committing burglaries to attacking rival gang members. The evidence also established
that Mr. Prado was a member of La Raza and that Mr. Parren was a senior member of the
Surenos, La Raza’s rival gang. Officer Taylor testified that Mr. Parren as an older Sureno
member has “a lot of clout,” and that a junior gang member like Mr. Prado would gain
significant respect by shooting or killing a rival senior gang member. RP at 330.

Additionally, Officer Taylor and Detective Salinas both testified that the Conoco
station was on the border between Norteno and Sureno territory. Officer Taylor
explained that both Mr. Prado and his gang would benefit from the shooting because it
would send a signal to the Surenos that “if you come close to the border we will shoot —
you.” RP at 353. This, in turn, he explained, would help La Raza members feel safe.

Mr. Rivera’s testimony reinforced the gang experts’ testimony. As detailed above,
he testified that the Conoco station is in Norteno territory and that upon being told that
Mr. Parren, a known Sureno, was in the Conoco station, Mr. Prado decided to shoot him.
In fact, Mr. Rivera stated that such an act is expected in gang culture and that he was
proud of Mr. Prado for shooting the pair. From this evidence, the jury could have
concluded that Mr. Prado committed the shootings to directly or indirectly benefit his
gang. Therefore, the sentencing court did not err in imposing an exceptional sentence

based on the gang aggravating factor.

25

No. 31275-5-III
State v. Prado

Il. Admissibility of Gang-Related Evidence

A. ER 404(b). Next, Mr. Prado argues the court abused its discretion in allowing
gang evidence because the State failed to establish a nexus between the shootings and Mr.
Prado’s gang membership. To support his argument, he points to the lack of evidence
that anyone in La Raza ordered the shooting of a rival gang member, noting that
Detective Salinas testified that La Raza had lost its leadership and that many of its
members were acting on their own. He argues that without evidence the assailant was
acting for the gang as opposed to settling some personal score, the required proof of
nexus fails. Mr. Prado also argues that even if a nexus between the crimes and gang
membership could be established, the court erred in using ER 404(b) to admit evidence
that La Raza was responsible for burglaries, drug and weapons dealings, and witness
tampering. The State counters the challenged evidence was properly admitted under
ER 404(b) to show motive.

We review a trial court’s ER 404(b) rulings for an abuse of discretion. State v.
Guloy, 104 Wn.2d 412, 429-30, 705 P.2d 1182 (1985); State v. Campbell, 78 Wn. App.
813, 821, 901 P.2d 1050 (1995). ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of

26

No. 31275-5-HI
State v. Prado

mistake or accident.

Before a trial court may admit evidence of other crimes or misconduct, it must
(1) find by a preponderance of the evidence that the misconduct occurred, (2) determine
whether the evidence is relevant to a material issue, (3) state on the record the purpose for
which the evidence is being introduced, and (4) balance the probative value of the
evidence against the danger of unfair prejudice. State v. Kilgore, 147 Wn.2d 288, 292, 53
P.3d 974 (2002); State v. Yarbrough, 151 Wn. App. 66, 81-82, 210 P.3d 1029 (2009).

Gang evidence falls within the scope of ER 404(b). Yarbrough, 151 Wn. App. at
81. Because of First Amendment concerns, “evidence of criminal street gang affiliation
is not admissible in a criminal trial when it merely reflects a person’s beliefs or
associations.” State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009). “Accordingly,
to admit gang affiliation evidence there must be a nexus between the crime and gang
membership.” Jd. We have noted that courts have regularly allowed evidence of a
defendant’s gang membership to establish the motive of a crime if the trial court finds a
sufficient connection between the gang affiliation and motive for committing the crime.
Id. at 527; see also Boot, 89 Wn. App. at 789.

In Campbell, for example, the trial court permitted evidence of gang membership

because “there was a nexus between gang culture, gang activity, gang affiliation, drugs,

27

No. 31275-5-III

State v. Prado

and the homicides” at issue. Campbell, 78 Wn. App. at 818. Division Two of this court
affirmed the trial court’s decision to admit the evidence based on the “fact that [Mr. ]
Campbell was a member of a gang and a drug dealer provided the basis for the State’s
theory of the case.... The challenged evidence clearly was highly probative of the
State’s theory—that [Mr.] Campbell was a gang member who responded with violence to
challenges to his status and to invasions of his drug sales territory.” Jd. at 821-22.

Here, in its offer of proof, the State asserted that the gang evidence was relevant to
show motive and intent. It stated that it would present evidence that (1) Mr. Parren was a
member of the Sureno gang, (2) gang members achieve status by shooting rival gang
members, (3) Mr. Prado is a Norteno gang member and knew that Mr. Parren was a rival
gang member, (4) Mr. Parren was in Norteno territory, (5) Mr. Prado prepared to shoot
Mr. Parren after learning that Mr. Parren was inside the gas station.

Based on the State’s offer of proof, the trial court concluded the gang affiliation
evidence was prejudicial, but its relevance outweighed the prejudice because it was highly
probative of Mr. Prado’s motive for the crimes.

As detailed above, evidence was later offered at trial establishing the relevance of

gang membership to the crime, including Mr. Prado’s reported statement after shooting

28

No. 31275-5-II

State v. Prado

Mr. Parren that he had shot “the scrap”! and a girl. RP at 439. Additionally, Mr. Prado
and Mr. Parren were identified as rival gang members, and there was evidence that
shooting a rival gang member increases a gang member’s status. The evidence also
established that Patrick Bentley, a La Raza member, encouraged Mr. Prado to shoot Mr.
Parren, and that after the shooting, Mr. Rivera told Mr. Prado that he had earned some
stripes.

This evidence was highly probative of the State’s theory that this was a gang
motivated crime in which Mr, Prado hoped to increase his status by shooting a rival gang
member. The trial court properly balanced the gang evidence’s probative value against
the danger of unfair prejudice to Mr. Prado. The State demonstrated a sufficient
connection between Mr. Prado’s gang affiliation and the crimes charged. Accordingly,
the challenged gang evidence satisfied the requirements of ER 404(b) and the trial court
did not abuse its discretion in admitting the gang affiliation evidence.

In a related argument, Mr. Prado also contends the trial court erred by allowing
evidence of uncharged bad acts that were irrelevant to gang affiliation or Mr. Prado’s
charges. Specifically, Mr. Prado points to the introduction of evidence that he had an

outstanding arrest warrant for an unknown crime, that he was suspended from school, had

' Mr. Rivera testified that “scrap” is a disrespectful term for a Sureno. RP at 434.

29

No. 31275-5-H1

State v. Prado

an uncharged burglary in King County, possessed stolen handguns, and that on the day of
the crime, Mr. Prado took cough syrup and an illegal prescription drug to get high.
Defense counsel did not object to any of this evidence.

Under ER 404(b), evidence of other misconduct is not allowed to show that the
defendant is a “criminal-type person” likely to commit the crime charged. State v.
Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). However, evidence of other bad
acts may be allowed to complete the story of the crime on trial by proving its immediate
context. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995) (quoting State v. Tharp,
27 Wn. App. 198, 204, 616 P.2d 693 (1980), aff'd, 96 Wn.2d 591, 637 P.2d 961 (1981)).
The rationale for this res gestae evidence is to ensure that the jury knows the whole story.
State v. Lillard, 122 Wn. App. 422, 431-32, 93 P.3d 969 (2004).

Here, the evidence that Mr. Prado had an arrest warrant was unsolicited and
therefore not sought for the improper purpose of showing that Mr. Prado was a criminal
type. During cross-examination, the prosecutor asked Mr. Prado:

Q. Isn’t it true you moved from the chair in the room . . . and ran over to
your bedroom real quick when the police knocked on the door?

A. I would say, yes, I did.
Q. Why did you do that?
A. [had a warrant.

Q. For what?

A. A warrant for my arrest.
Q. Why?

30

No. 31275-5-HI
State v. Prado

A. I’m not familiar with the charge.

Q. Is it for residential burglary—

A. I’m not sure.

Q. —over in King County?

A. Pm not for sure. I haven’t been given a copy of anything like that.

RP at 597.

The evidence that Mr. Prado took a prescription drug and was not in school on the
' day of the shooting, possessed a stolen gun, and participated in car prowling should have
been excluded, and likely would have been, had defense counsel made a timely objection.
The question of whether defense counsel’s failure to object constitutes ineffective
assistance of counsel will be discussed later in this opinion.

B. ER 702. Next, Mr. Prado contends that the trial court erred in admitting gang
evidence under ER 702 because (1) the subject matter of the police officers’ testimony
did not require specialized knowledge, (2) the officers did not qualify as experts, and
(3) their testimony improperly invaded the province of the jury when they presented
opinions about the veracity of witnesses.

Admission of expert testimony under ER 702 is within the trial court’s discretion.
State v. Greene, 139 Wn.2d 64, 70, 984 P.2d 1024 (1999). A trial court abuses its

discretion when it bases its decision on untenable or unreasonable grounds. State v.

Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). If the reasons for admitting or

31

No. 31275-5-HI

State v. Prado

excluding evidence are “fairly debatable,” we will not reverse the trial court’s exercise of
its discretion. State v. Simon, 64 Wn. App. 948, 963, 831 P.2d 139 (1991) (quoting
Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979)), rev'd in part on other
grounds by 120 Wn.2d 196, 840 P.2d 172 (1992).

ER 702 allows qualified experts to testify regarding “scientific, technical, or other
specialized knowledge” if the testimony “will assist the trier of fact to understand the
evidence or to determine a fact in issue.”’ “Expert testimony is helpful if it concerns
matters beyond the common knowledge of the average layperson and does not mislead the
jury.” State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 (2004).

Police testimony is routinely admitted in Washington to explain gang terminology,
gang codes of conduct, and gang structure. State v. Embry, 171 Wn. App. 714, 729, 287
P.3d 648 (2012), review denied, 177 Wn.2d 1005, 300 P.3d 416 (2013); Yarbrough, 151
Wn. App. at 86-87; Campbell, 78 Wn. App. at 823. Such evidence assists the trier of fact
in understanding the State’s theory of the case. Campbell, 78 Wn. App. at 823.

Here, the court allowed the gang expert testimony, finding it relevant to explain to

the jury how gangs operate and what motivates them.

7 ER 702 states: “If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify

32

No. 31275-5-III
State v. Prado

Citing United States v. Mejia, 545 F.3d 179 (2d Cir. 2008), Mr. Prado asserts that
police testimony regarding the activities of La Raza did not require specialized
knowledge and was improperly introduced “under the guise of expert testimony.” Br. of
Appellant at 23. He specifically points to Detective Taylor’s testimony about La Raza’s
involvement in homicides, drive-by shootings, robberies, burglaries, and drug dealing
contending it “went beyond sociological interpretation of terms or symbols jurors need to
understand gang issues.” Br. of Appellant at 23.

Mejia is distinguishable. In that case, a police officer testified that the defendant’s
gang, MS-13, needed guns “‘to do what MS 13 does, which is, you know, shoot at rival
gang members, and sometimes in the process, obviously, some people get hit.’” Mejia,
545 F.3d at 187. The officer also testified that the MS-13 gang had committed between
18 and 23 murders in the area in recent years. Jd. The Second Circuit held that this
testimony went too far under Federal Rule of Evidence 702. Jd. at 194-96. The court
held that it was not “acceptable to substitute expert testimony for factual evidence of
murder in the first instance.” Mejia, 545 F.3d at 195. It explained:

An increasingly thinning line separates the legitimate use of an officer

expert to translate esoteric terminology or to explicate an organization’s

hierarchical structure from the illegitimate and impermissible substitution of
expert opinion for factual evidence. ... As the officer’s purported expertise

thereto in the form of an opinion or otherwise.”

33

No. 31275-5-II
State v. Prado

narrows from “organized crime” to “this particular gang,” from the meaning

of “capo” to the criminality of the defendant, the officer’s testimony

becomes more central to the case, more corroborative of the fact witnesses,

and thus more like a summary of the facts than an aide in understanding

them.

Td. at 190.

Thus, in Mejia, the court distinguished the officer’s impermissible propensity
testimony from admissible testimony about gang mores, symbols, and internal structure.
Id. However, unlike Mejia, Officer Taylor’s testimony did not constitute an opinion as to
Mr. Prado’s guilt. He did not testify that Mr. Prado shot Mr. Parren or Ms. Deckard;
rather, he testified in general terms about facts relevant to proving the criminal street gang
enhancement,’ and the workings and operations of the two gangs at issue here. Moreover,
his testimony explained the motive for a crime that would otherwise appear to be a
random act of attempted murder in a public area.

Mr. Prado next contends that the officers testifying as experts in his case were
unqualified to present expert gang testimony. He argues that the officers failed to explain

how a gang unit officer differs from any other kind of officer or the nature of their

specialized training. His argument is not persuasive.

3 A gang is not a “criminal street gang” unless it has “as one of its primary
activities the commission of criminal acts” and that its members “engage in or have
engaged in a pattern of criminal street gang activity.” RCW 9.94A.030(12).

34

No. 31275-5-III
State v. Prado

Under ER 702, a court may admit expert testimony if the witness is qualified by
“knowledge, skill, experience, training, or education.’ Formal course work in an area or
academic credentials are not required to qualify as an expert; practical experience is
sufficient qualification. Simon, 64 Wn. App. at 963 (quoting State v. Smith, 88 Wn.2d
639, 647, 564 P.2d 1154 (1977), overruled on other grounds by State v. Jones, 99 Wn.2d
735, 664 P.2d 1216 (1983)).

At trial, as detailed above, each expert described his qualifications. Officer Morfin
stated that in addition to special gang training seminars, he has daily contact with gang
members, and has had contact with hundreds of gang members in the last few years.
Officer Taylor testified that he has worked in the gang unit for close to five years, and has
participated in many hours of specialized gang related training. Similarly, Detective
Salinas has worked in the gang unit for five years, receives constant ongoing training, and
has daily contact with gang members on the street. The officers’ work experience,
training, and extensive contact with gang members sufficiently qualifies them to testify as
experts. Accordingly, the trial court did not abuse its discretion in qualifying these
officers as experts and allowing their testimony.

Finally, Mr. Prado contends that the expert gang witnesses improperly invaded the

province of the jury by testifying about the veracity of defense witnesses and his guilt as

35

No. 31275-5-III
State v. Prado
to the gang aggravator. Specifically, he points to Detective Taylor’s and Officer Morfin’s
testimony that Mr. Parren would not identify Mr. Prado as his assailant because of the
gang code. He contends, “[t]hat testimony improperly inferred that Mr. Parren could
actually identify Mr. Prado as his assailant but instead would testify falsely that he could
not.” Br. of Appellant at 29. He also asserts that Detective Taylor’s testimony that a
girl’s role in a gang is to provide an alibi for a gang member “improperly inferred that
Ms. Torres would be testifying falsely if she were to testify that Mr. Prado was with her
instead of at the scene of the shooting.” Br. of Appellant at 29-30. He also contends that
Detective Salinas invaded the province of the jury by testifying that that “[t]his is a gang
on gang, red on blue shooting.” RP at 158. Finally, Mr. Prado contends that it was
improper for Officer Morfin to testify that he believed Mr. Rivera was being truthful.
“No witness, lay or expert, may testify to his opinion as to the guilt of a defendant,
whether by direct statement or inference.” State v. Black, 109 Wn.2d 336, 348, 745 P.2d
12 (1987). This prohibition exists “[b]ecause issues of credibility are reserved strictly for
the trier of fact.” City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993).
Admission of improper opinion testimony may be constitutional error requiring reversal.

State v. Saunders, 120 Wn. App. 800, 813, 86 P.3d 232 (2004).

36

No. 31275-5-III
State v. Prado

Mr. Prado did not preserve this issue by objecting at trial. His failure to object
bars him from claiming error. RAP 2.5(a). A timely and specific objection could have
cured any potential error.

However, even if we address his argument, it fails. Detective Taylor’s and Officer
Morfin’s statements are not opinions regarding the credibility of Mr. Parren or Ms.
Torres. Both officers were explaining the anti-snitch code. Their testimony did not lead
to an inference that Mr. Parren knew the identity of the shooter, it simply explained that
in gang culture, a person could be injured or killed if they testified against another gang
member, including a member of another gang. In any event, Mr. Parren himself testified
that even if he knew the identity of the shooter he would not reveal it to officers because
of the snitch code.

Similarly, Detective Taylor’s testimony about the role of women in gang culture
did not improperly suggest that Ms. Torres would lie if bought in to testify. It simply
explained that women often serve as alibi witnesses to men in gang culture. In any event,
Ms. Torres’s credibility was not at issue as she was not called to testify.

Finally, we need not determine whether Officer Morfin’s statement about Mr.
Rivera’s truthfulness amounts to improper opinion testimony. Even if error occurred, the

doctrine of invited error precludes review. Invited error bars review because a party

37

No. 31275-5-If

State v. Prado

cannot set up an error at trial and then complain on appeal. State v. Henderson, 114
Wn.2d 867, 870, 792 P.2d 514 (1990) (quoting State v. Pam, 101 Wn.2d 507, 511, 680
P.2d 762 (1984)). This prohibition applies even to constitutional issues. State v. Boyer,
91 Wn.2d 342, 344-45, 588 P.2d 1151 (1979). “The Court held that the invited error
doctrine was a ‘strict rule’ to be applied in every situation where the defendant’s actions
at least in part cause the error.” State v. Summers, 107 Wn. App. 373, 381-82, 28 P.3d
780 (2001) (citing State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999)), modified
on reconsideration on other grounds, 43 P.3d 526 (2002).

In this case, defense counsel elicited the testimony during which Officer Morfin
stated that he believed Mr. Rivera was being truthful during his interview. If improper
opinion testimony was given, it was invited by defense counsel’s question on cross-
examination and not subject to review. See State v. Vandiver, 21 Wn. App. 269, 273, 584
P.2d 978 (1978) (statements elicited on cross-examination were invited error precluding
appeal).

_C. Confrontation Clause Challenge to Gang Experts’ Testimony, Mr. Prado next
contends that the State’s reliance on gang experts’ testimony violated his Sixth
Amendment right to confrontation because the experts relied on the testimonial

statements of others. He contends, “[t]he admission of testimony from absent witnesses,

38

No, 31275-5-If]

State v. Prado

presented under the guise of expert testimony, constituted inadmissible hearsay and
violated Mr. Prado’s constitutional right to confront his accuser.” Br. of Appellant at 33.
He claims that “statements taken by officers in the course of investigations are almost
always testimonial and in violation of Crawford,"! as are statements that are the product
of police-initiated contact.” Br. of Appellant at 32.

Mr. Prado overlooks the authority that failure to raise confrontation issues at or
before trial bars any consideration on appeal. “A clear line of decisions—-Melendez-Diaz,
Bullcoming, Jasper, and Hayes—requires that a defendant raise a Sixth Amendment
confrontation clause claim at or before trial or lose the benefit of the right.” State v.
O’Cain, 169 Wn. App. 228, 248, 279 P.3d 926 (2012) (citing Melendez—Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009); Bullcoming v.
New Mexico, US. __, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011); State v. Jasper, 174
Wn.2d 96, 271 P.3d 876 (2012); State v. Hayes, 165 Wn. App. 507, 265 P.3d 982 (2011),
review denied, 176 Wn.2d 1020 (2013)). The same rule applies to the article I, section 22
confrontation clause right of the Washington Constitution. O’Cain, 169 Wn. App. at 252.

Neither does he assert any manifest error theory.

“ Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

39

No, 31275-5-I
State v. Prado

Even if he had properly preserved the issue, he does not establish that the
testimony at issue was testimonial. The Sixth Amendment’s confrontation clause, made
applicable to the states by the Fourteenth Amendment, provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right .. . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. In Crawford v. Washington, the United States
Supreme Court held that this provision prohibits the admission of out-of-court testimonial
hearsay statements offered for their truth, unless the declarant testified at trial or was
unavailable at trial and the defendant had a prior opportunity to cross-examine the witness
under oath. Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). “It is the testimonial character of the statement that separates it from other
hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject
to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266,
165 L. Ed. 2d 224 (2006) (emphasis added).

A statement is “testimonial” if its declarant knew, or should have known, that its
primary utility was to provide evidence of the defendant’s unlawful conduct for use in his
prosecution or a criminal investigation into past events. Williams v. Illinois, U.S. __,
132 S. Ct. 2221, 2242, 183 L. Ed. 2d 89 (2012). As the Ninth Circuit has observed,

Crawford’s discussion of what may constitute a testimonial statement was premised on

40

No. 31275-5-IT
State v. Prado
the use of statements “made to a government officer with an eye toward trial, the primary
abuse at which the Confrontation Clause was directed.” Jensen v. Pliler, 439 F.3d 1086,
1089 (oth Cir. 2006). “Although Crawford did not define ‘testimonial’ or
‘nontestimonial,’ it made clear that the Confrontation Clause was concerned with
‘testimony,’ which ‘is typically [a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact,’ and noted that ‘[a]n accuser who makes a
formal statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.’” Delgadillo v. Woodford, 527 F.3d
919, 927 (9th Cir. 2008) (alterations in original) (quoting Crawford, 541 U.S. at 51).

Mr. Prado contends the following statements violate the confrontation clause:
(1) Detective Taylor’s testimony that “contacts on the street” informed him that Mr.
Rivera had been labeled a snitch, and (2) Detective Salinas’s statement that a snitch
provided information that La Raza members were involved in painting graffiti. Mr. Prado
also argues that in other instances, officers provided testimony on matters that could have
come only from informants or custodial interrogations from absent witnesses, including
Detective Salinas’s remark that gang members gain respect by injuring or shooting rival

gang members.

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No. 31275-5-HI
State v. Prado

None of the foregoing statements violate the confrontation clause because none of
the out-of-court statements on which the testimony at issue was based involved
accusations against Mr. Prado. Instead, the statements formed the basis of the experts’
opinions about matters related to gang organization and rules. Experts can testify to their
opinions on relevant matters, and relate the information and sources upon which they rely
in forming those opinions. The hearsay at issue here in support of expert opinion is not
the sort of testimonial hearsay the use of which Crawford condemns. The admission of
the detectives’ expert testimony based on hearsay statements does not offend the
confrontation clause because the experts were subject to cross-examination about their
opinions and the information on which they based their opinions was not elicited for the
truth of their contents or to prove an event relevant to Mr. Prado’s individual criminal
prosecution.

Ill. Prosecutorial Misconduct

Mr. Prado alleges two instances of prosecutorial misconduct that he claims
prejudiced his trial. He asserts that the prosecutor committed misconduct by
eavesdropping on confidential conversations between Mr. Prado and his attorney and that
during closing argument, he appealed to the prejudices of the jury and referenced matters

outside the record.

42

No. 31275-5-IH
State v. Prado

To succeed on a claim of prosecutorial misconduct, a defendant must establish
both misconduct and prejudice. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937
(2009). Prejudice exists when there is a substantial likelihood that the misconduct
affected the verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). Where, as here, a defendant
fails to object to the prosecutor’s improper statements at trial, such failure constitutes a
waiver of prosecutorial claims unless the prosecutor’s statements were “so flagrant and ill
intentioned” that it caused an “enduring and resulting prejudice” incurable by a jury
instruction. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). In determining
whether a prosecutor’s misconduct warrants reversal, we consider its prejudicial nature
and cumulative effect. State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005).

Mr. Prado first claims that the prosecutor committed misconduct when he listened
to Mr. Prado and his attorney discussing whether to have a potential witness served with a
material witness warrant. He asserts that the prosecutor’s failure to move away from the
conversation or inform defense counsel that the conversation could be heard violated Mr.
Prado’s attorney-client privilege. Mr. Prado fails to establish either misconduct or

prejudice.

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No. 31275-5-III
State v. Prado

The conversation at issue took place in the courtroom. During discussion of
whether the State was entitled to a missing witness instruction regarding Isabel Torres, a
potential alibi witness, the prosecutor informed the judge that he overheard Mr. Prado
state in the courtroom that he did not want Ms. Torres served with a material witness
warrant. The following exchange occurred:

[Prosecutor]: My understanding, I was sitting here as was Detective
Shaw when we heard Mr. Prado say that, no, he didn’t want them to go out
and find Ms. Torres and serve the material witness warrant on her. It would
be the [S]tate’s position that’s [sic] the issuance of the material witness
warrant was a ruse to say that she’s unavailable to them. So they’re not
planning on calling her. It’s pretty obvious.

[Defense counsel]: I would object to that, your Honor. That’s
eavesdropping. I was having a confidential conversation with my client.
We were going to actually try to get her over here within 12 hours time
from the time that the court instructed that we were going to resume
testimony. They can’t use their eavesdropping on me with my confidential
conversation with my client.

[Prosecutor]: If they’re saying it in open court where it can be heard,
we’re sitting here doing the work. I wasn’t trying to listen. Do you want
me to arrest her and have the warrant served? No.

[Defense counsel]: Your Honor, I don’t have a luxury of having an
office. This is my office. This is my opportunity to discuss with my client.
If they’re going to sit here and listen to all my conversations with my client,
that’s improper. They can’t later say we [sic] heard me talking with my
client.

THE COURT: I understand.

RP at 579-80.

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No. 31275-5-III
State v. Prado

The court later remarked: “You don’t have anyplace to go with your client, Mr.
Heilman-Schott. Mr. Clements is sitting here and does hear something. I’m not going to
attribute anything bad to either the [S]tate for hearing or the defense for not asking for the
issuance of a writ after the order was signed.” RP at 581. The court also advised defense
counsel that he could have confidential conversations with his client in the back of the
courtroom, stating “[i]f you need a moment to confer with your client, we can shuffle
some folks around in the courtroom and you can go to the back.” RP at 583.

Contrary to Mr. Prado’s assertion, the conversation he had with his attorney in an
open courtroom within earshot of a third person was not privileged. The attorney-client
privilege protects communications made by the client in the course of the professional
relationship. RCW 5.60.060(2); State v. Wilder, 12 Wn. App. 296, 300, 529 P.2d 1109
(1974). However, “[i]f a statement is made in the presence of a third person . . . it is not
confidential, and therefore not privileged.” Wilder, 12 Wn. App. at 300. The
prosecutor’s inadvertent overhearing of the conversation between Mr. Prado and his
attorney in an open courtroom in the presence of third persons cannot be deemed a
violation of the attorney-client privilege. In contrast to the cases cited by Mr. Prado, the
prosecutor here took no overt act to listen to the conversations. For example, in State v.

Cory, the State eavesdropped via microphone on conversations between prisoners in the

45

No. 31275-5-HI
State v. Prado
jail and their attorneys. State v. Cory, 62 Wn.2d 371, 372, 382 P.2d 1019 (1963). The
court dismissed the charges against the defendant, finding that such “eavesdropping upon
the private consultations between the defendant and his attorney” deprived him of his
right to effective counsel. Jd. at 378; see also Maine v. Moulton, 474 U.S. 159, 160, 106
S. Ct. 477, 88 L. Ed. 2d 481 (1985) (holding the State “clearly violated respondent’s Sixth
Amendment right when it arranged to record conversations between respondent and its
undercover informant”). Under our facts, the prosecutor did not commit misconduct by
listening to a public conversation between Mr. Prado and his attorney.

The other claims of prosecutorial misconduct arise from closing argument. Mr.
Prado first claims that the prosecutor improperly argued that the shootings were about Mr.
Prado getting his “scrap killer tag.” RP at 673. He also claims the prosecutor improperly
inferred that Mr. Prado had been involved in shootings on prior occasions when he
referenced the calls from Mr. Prado’s family members after the shootings and stated, “it’s
not the first rodeo probably with them.” RP at 684.

The prosecuting attorney has wide latitude in making closing argument to the jury
and may draw reasonable inferences from the evidence. Gregory, 158 Wn.2d at 860. We
review a prosecutor’s remarks during closing argument in the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the jury

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No. 31275-5-III

State v. Prado

instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Appeals to the
jury’s “passion and prejudice” through use of inflammatory rhetoric, however, is
misconduct. State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988). Similarly,
prejudicial allusions to matters outside the evidence are improper because they encourage
the jury to render a verdict based on something other than the admitted evidence. Jd. at
507 (quoting State v. Belgarde, 46 Wn. App. 441, 448, 730 P.2d 746 (1986)).

The prosecutor’s arguments here were not improper. His reference to Mr. Prado
obtaining a “scrap killer tag” was made in the context of establishing the gang aggravator.
RP at 673. During closing, he emphasized that Mr. Prado’s motive in shooting Mr.
Parren and Ms. Deckard was to benefit Mr. Prado’s gang. He argued to the jury:

[Y]ou have to determine .. . whether the defendant committed the crime

with the intent to directly or indirectly cause any benefit, aggrandizement,

gain, profit or other advantage to or for a criminal street gang, its

reputation, influence or membership.

Obviously in this case that’s what it’s all about. The whole

motivation for shooting Mr. Parren and Ms. Deckard is to get stripes, to

shoot some scraps, to get your scrap killer tag. That’s what this is all about.
RP at 673.

This was not inflammatory in light of the extensive gang evidence produced at

trial. The jurors were instructed that the lawyers’ arguments “are intended to help you

understand the evidence and apply the law.” CP at 80. They were further instructed to

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No. 31275-5-II
State v. Prado
“disregard any remark, statement, or argument that is not supported by the evidence or the
law.” CP at 80. The evidence at trial established that “scrap” is a term of disrespect and
that one of the goals of a gang member is to assault rival gang members. The
prosecutor’s argument was merely a recitation of previously admitted evidence, and
therefore was not an improper plea to the jury’s passions. By asserting that Mr. Prado
was obtaining a “‘scrap killer tag,” the prosecutor was asking the jury to find that the gang
aggravator had been established.

The remaining statement at issue occurred when the prosecutor was summarizing
Mr. Rivera’s testimony regarding events after the shooting. The statement in context
follows:

[Mr. Rivera] says [Mr.] Prado says he shot the girl first and then he
shot the scrap. They flee the area, and they know at that point the gang unit
has been out to their houses. They’ve been looking for these guys.
They are no dummies. They’re getting phone contact because it’s

not the first rodeo probably with them. According to law enforcement,

they’re a known quantity. Their family is calling them up saying guess

who’s back out at the house.
RP at 684-85.

Viewed in context, the statement was not improper. Contrary to Mr. Prado’s

claim, the prosecutor was not referencing matters outside the record. He was reiterating

witness testimony regarding the gang members’ previous contacts with law enforcement.

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No. 31275-5-III

State v. Prado

This recitation of the evidence did not constitute misconduct. However, even if we were
to find the statement improper, Mr. Prado failed to object or request a curative instruction.
The statement was not so “flagrant and ill intentioned” that a curative instruction, had Mr.
Prado requested one, would have been futile.

IV. Missing Witness Instruction

Mr. Prado also claims the trial court erred in giving a “missing witness” jury
instruction. He contends that his alibi witness, Isabel Torres, was not “particularly
available” to him as a witness and that he provided a satisfactory explanation for her
absence. Br. of Appellant at 38.

Over defense counsel’s objection, the trial court gave a missing witness instruction
as follows:

If a person who could have been a witness at the trial is not called to
testify, you may be able to infer that the person’s testimony would have
been unfavorable to a party in the case. You may draw this inference only
if you find that:

(1) The witness is within the control of, or peculiarly available to,
that party;

(2) The issue on which the person could have testified is an issue of
fundamental importance, rather than one that is trivial or insignificant;

(3) As a matter of reasonable probability, it appears naturally in the
interest of that party to call the person as a witness;

(4) There is no satisfactory explanation of why the party did not call
the person as a witness; and

(5) The inference is reasonable in light of all the circumstances.

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No. 31275-5-III
State v. Prado
CP at 88.

The trial court’s instruction accurately stated the missing witness doctrine: Where
a party fails to call a witness the party would properly be expected to call as part of its
case, and the witness is peculiarly available to the party, the jury may draw an inference
that the witness’s testimony would be adverse to that party. State v. Flora, 160 Wn. App.
549, 556-57, 249 P.3d 188 (2011). In State v. Montgomery, 163 Wn.2d 577, 598-99, 183
P.3d 267 (2008), the court held the State is entitled to argue the missing witness inference
if: (1) the missing witness is not equally available to the State, (2) the defendant does not
satisfactorily explain the witness’s absence, (3) the inference would not shift the burden
of proof, and (4) the witness’s testimony would be material and not cumulative. We
review the trial court’s giving a missing witness instruction for an abuse of discretion.
State v. David, 118 Wn. App. 61, 67, 74 P.3d 686 (2003), modified on remand, 130 Wn.
App. 232, 122 P.3d 764 (2005).

The trial court here addressed the Montgomery factors, finding that Ms. Torres was
“peculiarly available” to Mr. Prado because she appeared in photographs with Mr. Prado
and had been identified as a friend of Mr. Prado and other La Raza members. RP at 630.
The court also cited the fact that Mr. Prado had been in contact with her and was trying to

procure her testimony. The court noted that the material witness warrant was not served

50

No, 31275-5-II

State v. Prado

even though Ms. Torres’s testimony was central to the case, stating “[i]t would be
unthinkable that she would not have been called if she would, in fact, have placed him in
another location.” RP at 631. Finally, the court found that Mr. Prado’s explanation for
Ms. Torres’s absence was not satisfactory. When the defense reiterated the reasons for
her absence—work conflicts, transportation problems, a child—the court responded,
“Tgjiven the gravity of the offense, I don’t consider that to be a satisfactory explanation.”
RP at 632.

The trial court did not abuse its discretion in giving the missing witness
instruction. Mr. Prado’s defense was that he was at Ms. Torres’s house during the
shootings. During trial, he asserted that she was going to be his “main witness.”

RP at 470. As his alibi witness, her testimony was critical to his defense, such that her
absence would lend itself to the inference that her testimony would not be favorable.
Moreover, Ms. Torres was a friend of Mr. Prado’s and others in the La Raza gang.
During trial, defense counsel advised the court that he was still “working on Ms. Torres,”
and that he was expecting her to testify, despite transportation problems. RP at 469.
When Mr. Prado asked for a material witness warrant, he asserted that he was the party
who had access to her, but that she was not cooperating. He explained that he had made

telephone calls, but that she never contacted him. When defense counsel eventually made

51

No. 31275-5-II
State v. Prado
contact with her, Ms. Torres told him she would not be attending the trial, citing
transportation and employment problems.

In view of the evidence, Ms. Torres was more available to Mr. Prado than the
State. A witness’s equal availability does not turn on whether he is subject to the
subpoena power; it may turn on whether one party has a superior knowledge of the
witness’s identity. State v. Blair, 117 Wn.2d 479, 490, 816 P.2d 718 (1991) (quoting
Davis, 73 Wn.2d at 277). Given the significance of Ms. Torres’s testimony, Mr. Prado’s
failure to call her reasonably leads to the inference that her testimony would have been
damaging.

V. Lesser Included Instruction

Mr. Prado next contends that the court erred by instructing the jury on the lesser
included offense of attempted second degree murder in count 1. Initially, defense counsel
requested the lesser included instruction, subject to discussion with Mr. Prado. Later,
defense counsel indicated that after consultation with Mr. Prado, his client wanted to
withdraw the request. During discussion of the jury instructions, defense counsel argued:

I would like to argue against [the lesser included instruction], but second

degree murder is a lesser included offense of first degree murder. You take

the factors in this case and work them through the Workman!! test. The
legal issues, all the elements of one are contained in the other. If you

> State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).

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No. 31275-5-III
State v. Prado

commit the first you’re necessarily committing the second.

... [U]nfortunately, your Honor, I don’t have a lot to argue with
here. That’s one of the reasons I originally was proposing a lesser included
instruction on both counts.

RP at 621.
The court concluded the evidence justified the instruction, reasoning:

I think there is an inference that only the lesser would be included, which
would provide or satisfy the factual prong.

Based on the testimony of Mr. Rivera, there is clearly an inference
that only attempted second degree murder was committed, that there was no
premeditation. [A]ccording to Mr. Rivera, [Mr. Prado] said I’m going to
light him up, did not say them. There is a reference only to the male. So
... the deliberation that I referenced earlier was only applied to Mr. Parren.

RP at 621-22.
The court instructed the jury as follows:

The defendant is charged in Count | with the crime of Attempted
First Degree Murder. If after full and careful deliberation on this charge,
you are not satisfied beyond a reasonable doubt that the defendant is guilty,
then you will consider whether the defendant is guilty of the lesser crime of
Attempted Second Degree Murder.

When a crime has been proven against a person and there exists a
reasonable doubt as to which of two or more degrees that person is guilty,
he shall be convicted only of the lowest degree.

CP at 96 (instruction 17).

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No. 31275-5-II
State v. Prado

By statute, either party in a criminal case is entitled to an instruction on a lesser
included offense in a criminal case. RCW 10.61.006;° State v. Tamalini, 134 Wn.2d 725,
728, 953 P.2d 450 (1998). An instruction on a lesser included offense is warranted when
“Tflirst, each of the elements of the lesser offense must be a necessary element of the
offense charged [and second], the evidence in the case must support an inference that the
lesser crime was committed.” State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382
(1978). These are known as the “legal” and “factual” prongs. State v. Berlin, 133 Wn.2d
541, 545-46, 947 P.2d 700 (1997). Legally, second degree murder is a lesser included
offense of first degree murder. State v. Mullins, 158 Wn. App. 360, 371, 241 P.3d 456
(2010). Thus, the legal prong of the Workman standard is met. “If the evidence would
permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of
the greater, a lesser included offense instruction should be given.” State v. Warden, 133
Wn.2d 559, 563, 947 P.2d 708 (1997). The factual prong is met because there is evidence
showing that the lesser crime was committed. As the trial court pointed out, Mr. Rivera
testified that Mr. Prado only referenced shooting Mr. Parren, not Ms. Deckard. Thus, the

State had scant evidence of premeditation regarding Ms. Deckard. The State was entitled

® RCW 10.61.006 states that “[i]n all other cases the defendant may be found guilty
of an offense the commission of which is necessarily included within that with which he
or she is charged in the indictment or information.”

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No. 31275-5-HI
State v. Prado
to the lesser included instruction.
The trial court did not err in giving the lesser included instruction.

VI. Ineffective Assistance of Counsel

Finally, Mr. Prado contends that trial counsel was ineffective for failing to object
to the prior bad acts evidence under ER 404(b), failing to object to the prosecutor’s
closing argument, and failing to request an offer of proof regarding the qualifications of
the gang experts. He contends that without the improper propensity evidence and gang
related testimony, there is a reasonable probability he would have had a different result at
trial. As noted above, the expert gang evidence testimonies were properly admitted. We,
therefore, restrict the below analysis to the ER 404(b) evidence and the prosecutor’s
closing statement—“not the first rodeo” remark.

To prevail on an ineffective assistance of counsel claim, Mr. Prado must show
both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel’s performance is deficient if
it fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668,
705, 940 P.2d 1239 (1997). Our scrutiny of counsel’s performance is highly deferential;
we strongly presume reasonableness. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d

1251 (1995). To rebut this presumption, a defendant bears the burden of establishing the

55

No. 31275-5-HI

State v. Prado

absence of any conceivable legitimate tactic explaining counsel’s performance. State v.
Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting State v. Reichenbach, 153
Wn.2d 126, 130, 101 P.3d 80 (2004)). To establish prejudice, a defendant must show a
reasonable probability that the trial outcome would have differed absent the deficient
performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting
Strickland, 466 U.S. at 694). If an ineffective assistance claim fails to support a finding
of either deficiency or prejudice, it fails. Strickland, 466 U.S. at 697 (“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed. Courts should strive to ensure
that ineffectiveness claims not become so burdensome to defense counsel that the entire
criminal justice system suffers as a result.”).

Mr. Prado fails to establish prejudice. In view of Mr. Rivera’s testimony, Mr.
Prado’s inconsistent statements concerning his presence at the Conoco station, and Mr.
Prado’s statement to Mr. Rivera that the latter was a snitch (rather than a liar), even if we
deem defense counsel’s performance deficient, Mr. Prado is unable to show a reasonable
probability that the trial outcome would have differed. Thus, his ineffective assistance of

counsel claim fails.

56

No. 31275-5-HI
State v. Prado
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

Mr. Prado raises two additional grounds in his SAG. He first asserts that the trial
court erred by denying his motion to remove a relative of one of the investigating
detectives from the jury. An appellant is required to provide all information necessary for
our review of an issue, and we may refuse to decide an issue where the record is
incomplete. RAP 9.2(b); State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995)
(appellate court will not consider matters outside the record). Here, the transcript of jury
selection is not a part of the record submitted on appeal. Without a record of voir dire, we
are unable to review Mr. Prado’s contention.

Second, Mr. Prado contends that the trial court erred by denying his request to
replace defense counsel with another attorney. He asserts that he asked the court to
replace his assigned attorney based on ineffective assistance of counsel. This claim is

| insufficiently argued. Although RAP 10.10(c) states that reference to the record and
citation to authorities are not required in statements of additional grounds for review, the
rule also states that the appellate court will not consider the SAG for review if it does not
inform the court of the nature and occurrence of the alleged errors. Here, not only does
Mr. Prado fail to cite to the relevant portions of the record, he does not explain how

assigned counsel’s performance was deficient or why the trial court’s ruling was

57

No. 31275-5-III
State v. Prado
erroneous. Without additional information or argument, we cannot address the issue.
We affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

WE CONCUR:

5 4 f hse ( i}
/

Brown, A.C.J, Korsmo, J.

58