### FILED DEC 

### 23, 2014 In tbe Office ortbe Clerk orCourt W A State CourtorAppeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 29657-1-III Respondent and ) (consolidated with Nos. Cross Appellant, ) 29679-2-III, 29691-1-III) ) 

### v. ) ) RICARDO JUAREZ DELEON, ) ) Appellant and ) Cross Respondent, ) ) and OCTA VIO ROBLEDO, ) OPINION PUBLISHED INPART and ANTHONY DELEON, ) ) Appellants. ) SIDOOWAY, C.J. Ricardo Juarez DeLeon, Octavio Robledo, and Anthony DeLeon appeal their convictions and aggravated exceptional sentences arising from a gang-related shooting at a home in Sunnyside and a high speed chase thereafter, in which Anthony DeLeon attempted to elude responding officers. Over a dozen issues are raised by one or more ofthe appellants in these consolidated appeals, many involving the admission at trial ofgang evidence. We conclude that gang information that the three were required to give to Sunnyside jail officers at booking as a condition ofreceiving safe housing was not a voluntary statement for purposes ofthe Fifth Amendment and should nothave been admitted at trial,Nos. 29657-I-III; 29679-2-III; 29691-I-III State v. DeLeon
but that its admission was hannless except as to the gang aggravatorthat thejuryfound against Ricardo DeLeon. Inthepublishedportion ofthis opinion, we find additional errors inthe admission ofgang evidence but conclude that they were harmless, conclude that sufficient evidence supported thejury's verdicts on the gang aggravator, and find no abuse ofdiscretion bythe trial court in denying a motion for a new trial based onajuror's misconduct incommunicating to Twitter! followers during trial and deliberations. In the unpublished portion ofthe opinion, we reject the appellants' claims of ineffective assistance ofcounsel, instructional error, and the dozens ofissues raised inthe appellants' pro se statements ofadditional grounds. We reverse the exceptional sentence imposed on Ricardo DeLeon based onthe gang aggravator and remand for further proceedings. We otherwise affirm. FACTS AND PROCEDURAL BACKGROLmD At around 11 p.m. onMay 9,2009, Ignacio Cardenas and Miguel Acevedo were standing onthe sidewalk outside Mr. Cardenas's residence in Sunnyside waiting for 

### Mr. Cardenas's two cousins and a friend, Jose Barajas, who were coming tothe home to bring thempasses to a quinceaiiera. Acevedo and Cardenas were both members ofthe Lower

1 Twitter is a real-time information networkthat lets people share and discuss what is happening at a particular moment intime through the use of"tweets." The service allows users either to send direct messages to specific individuals orto use ''twitterposts" accessible to the public. The process ofposting messages onTwitter is commonly referred to as "tweeting." See http://twitter.com/about
. 

### 2Nos. 29657-I-III; 29679-2-III; 29691-I-II1 State v. DeLeon Valley Lokotes "LVL" gang, which claims the colorblue. The Cardenas home was a known LVL hangout. Seeing whathe thought were friends in a passing Taurus automobile, Mr. Acevedo flashed a "friendly" LVL sign. Hewas mistaken; the occupants ofthe Taurus were not his friends. The driver ofthe car made a U-turn and
one ofthe occupants yelled something to the effect that they would shoot. The carpassed the home, made a second U-turn, slowed down, and gunfire erupted from the passenger side. Mr. Acevedo ducked behind the tire ofa parkedcar. His and Mr. Cardenas's friend, Angelo Lopez, who hadjustemerged from the house and
was coming down the steps whenthe gunfire started, "hitthe ground." Report of Proceedings (RP) at 1353. Mr. Cardenas sustained a near-fatal bullet woundto the abdomen and ultimately lost a kidney. Itwas dark outside andnone ofthe three men could identify the persons inside the car. Jose Barajas hadjustreached the Cardenas residence inhis truck with passengers Monica Mendoza and Griselda Mendoza when the shooting started. Monica2 saw people inside the Taurus wearing redbandannas overtheir faces but could not identifythem at that time. Griselda also noticedthat someone inthe Taurus was wearing red. Monica estimatedthat nine gunshots were fired from the front passenger side.

2 Weuse the Mendoza sisters' and the DeLepn brothers' first names in those contexts where a reference to "Ms. Mendoza" or "Mr. DeLeon" would not be clear from the context. We intend no disrespect. 

### 3Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
Mr. Barajas followed the Taurus as it fled the area. Hetemporarily lost sight ofit in a housing development, but saw it again near the intersection ofAllen Road and Mabton-Sunnyside Highway. There, all three truck occupants saw someone inthe Taurus point a gun atthem. Monica no longer saw the red bandannas and was able, this time, to identifytwo ofthe car's occupants-AnthonyDeLeon (a friend ofherbaby's father, known to her as "Monkey") and Octavio Robledo, whom she knew from school. Everyone in the Barajas truck was certain this was the same Taurus that was involved in the shooting at the Cardenas home. Mr. Barajas called 911 on his cell phone andreported he was following a silver Taurus that hadbeen involved in a shooting. He chasedthe car onto Interstate 82. Sunnyside Police Officer Skip Lemmonjoinedthe pursuit, as did several Grandview and Prosserpolice officers. At one point, OfficerLemmon observed an object that he thought might be a gun fly bythe mirror onthe passenger side ofhis car. Laterin the chase, ProsserPolice Officer Shane Hellyer observed one ofthe Taurus passengers throw an object out the window that sparked when it hit a bridge railing overthe Yakima River, although no evidence was found in a later search ofthe rough and rocky terrain inthat
area. After a several-mile chase at speeds reaching 110 mph, the Taurus was fmally stopped by spike strips. Its occupants-driverAnthony DeLeon, front seat passenger Octavio Robledo, and rearpassengerRicardo DeLeon, were arrested.



### 4Nos. 29657-I-III; 29679-2-III; 29691-I-II1 State v. DeLeon
Ricardo DeLeon gave Sunnyside police detectives pennissionto search his Taurus automobile. Officers seized a red cooler, two Budweiserbeer cans, two redbandannas, a pair ofred dice, a digital scale, a bong, a plastic bag ofmarijuana inside a beercan, and a cell phone with AnthonyDeLeon's name on the wallpaper. The three suspects were taken to the Sunnyside police station where Detective Jose Ortiz administeredMiranda3 warnings: first to Ricardo DeLeon at 2:30 a.m. on the morning ofMay 10; to AnthonyDeLeon several hours later, at 7:03 a.m.; andto Octavio Robledo at 7:42 a.m. Each waived their rights and agreed to answer questions. All denied any involvement inthe shooting at the Cardenas home. All three defendants were ultimately chargedbyamended information with three counts offirst degree assault while armed with a frrearm and, as a sentencing aggravator, with intenttobenefit a criminal street gang. AnthonyDeLeon was additionally charged with attempting to elude a pursuing police vehicle. Considerable time was devotedbefore trial to the State's wish to offer evidence of the defendants' alleged affiliation with the Nortefio gang and evidence ofgang culture, including expert testimony from Detective Ortiz ofthe Sunnyside Police Department, to show thatthe shooting was gang motivated. The defendants raised multiple objections to the State's introduction ofsuch evidence. The courtultimately admitted evidence ofthe

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 

### L. Ed. 2d 694 (1966). 5Nos. 29657-I-III; 29679-2-III; 29691-I-II1 State 

### v. DeLeon
defendants' alleged affiliation with the Nortefios, including to allow Detective Ortiz to testify as an expert on gang culture, over a standing defense objection. The court explicitly cautioned that the detective's expert testimony would be prejudicial and must be "carefully crafted" to avoidthe impression that the defendants "musthave done [the crime] because that's what the culture mandates." RP at 581. The defendants' theory ofthe case was misidentification. They suggested it was
someone else's car from which the gunshots were fired and they were never at the Cardenas residence onthe night ofthe shooting. Theypointed to the fact that Mr. Barajas and the Mendoza sisters temporarily lost sight ofthe perpetrators' car during the chase, that Mr. Barajas had not been certain ofthe Taurus's color, that no guns or ammunition were found in the car or in the areas where police theorized guns had been discarded, and that the State failed to test any ofthe defendants' hands for gunshot residue. Although none ofthe defendants testified at trial, they asserted through other witnesses and argument that they hadbeen drinking all day at a barbecue and were dropping Anthony offat his girl friend's residence when they randomly met up with the Barajas truck, whose occupants mistook Anthony's Taurus for the car involved inthe shooting. They claimed they were intoxicated and only fled the police because there was marijuana and drug paraphernalia in their car. The defense also insinuated that the May 9 shooting was retaliation by an individual from a Surefio sect, the (VGLs).



### 6Nos. 29657-1-III; 29679-2-III; 29691-1-II1 State v. DeLeon
The court denied a defense request to bifurcate trial ofthe gang aggravator and refused the defendants' proposed lesser included instruction for drive-by shooting. Although it denied defense motions to exclude all ofthe defendants' recorded statements andbooking forms as testimonial hearsay ofnontestifying defendants, it instructed the jurythat it could consider a given defendanfs out-of-court statements ""as evidence against that defendant, but not as evidence against another defendant." Robledo Clerk's Papers (CP) at 188. Over defense objection, the court also gave the following instruction
on transferred intent: 

### Ifa person acts with intent to assault another, but assaults a third person, the actor is deemedto have acted with intent to assault the third person. The unintended victims do not need to bephysically injured andthe defendant need not know oftheir presence[.] Anthony DeLeon CP at 627. At the close ofthe State's case, the court denied defense motions to dismiss the assault counts and gang aggravators for insufficient evidence. It also denied a motion by Anthony DeLeonto dismiss the eluding charge based uponimproper venue as untimely
orwaived. Atthe end of jurydeliberations but before the verdict was delivered to the court andread, it came to light that ajurorhad been communicating onTwitter about his views ofthejustice system and the progress ofthe trial. A printout ofthejuror's Twitter communications (""tweets") was made part ofthe record. After reviewing the content of


### 7Nos. 29657-I-III; 29679-2-III; 29691-I-III State v. DeLeon
the tweets, defense counsel and the prosecutor all agreed there was no need to interview thejuror. No one moved for a mistrial atthat time. Thejuryreturned a verdict finding all three defendants guilty as charged on all counts. By special verdicts, thejuryalso found firearm enhancements for each crime and that the defendants' crimes were committedwithintent to benefit a criminal street gang. Mr. Robledo and Ricardo DeLeon moved for a new trial on several grounds, includingjurormisconduct for the Twitter communications that Detective Ortiz's testimony grossly exceeded the court's ER 404(b) ruling and prejudicedtheir right to a fair trial, andthat the guiltyverdicts and gang aggravator fmdings were not supportedby the evidence. The court denied the motion. The court imposed aggravated exceptional sentences for each defendant. All timelyappealed.4 ANALYSIS All three appellants contend on multiple grounds that improperly admitted gang evidence prejudiced their rightto a fair trial andresulted inunlawful exceptional

4 The State filed a cross appeal from Ricardo DeLeon's sentence. The court granted him an exceptional sentencebelow the base standardrange on count 1 only, on the bases that his offender score was based largely onjuvenile offenses that occurred 15 to 20 years earlier, and thathe had a number ofminor traffic violations that are now decriminalized. The court deemed a downward departure on count 1 a more equitable treatment for this defendant relative to his codefendants' sentences. The State has submitted no briefmg onits cross appeal and has thus apparently abandoned it. 

### 8Nos. 29657-I-III; 29679-2-III; 29691-I-III State v. DeLeon

sentences. All contend that thejury's fmdings ofa gang aggravator, on which the court based their exceptional sentences, were not supported bythe evidence. Defendants Ricardo DeLeon and Octavio Robledo additionally challenge the trial court's denial oftheir motion for mistrial. Anthony DeLeonraises a constitutional challenge to the trial court's instruction on transferred intent and raises several claims ofineffective assistance ofcounsel. We first address the defendants' several objections to the admission anduse of gang evidence andtheir challenges to the sufficiency ofevidence to support the finding ofthat gang aggravator. We next tum to the additional issues raised by Ricardo DeLeon and Octavio Robledo, tumthereafterto the additional issues raised byAnthony DeLeon, and concludebyaddressing issues raised bythe defendants' statements ofadditional grounds. 

### L GangEvidence Issues The most concerning issues raised on appeal arise from several types ofevidence offeredbythe State to prove that the three defendants were associated with the Nortefio gang and that the shooting was committed with the intent to cause a benefit or advantage to a criminal street gang. Some was ofdubious relevance and there is a danger that stronger evidence against defendants Octavio Robledo and Anthony DeLeon, neither of whom testified, might have influenced thejury's finding that the gang aggravator applied

9

### Nos. 29657-I-III; 29679-2-III; 29691-I-III State v. DeLeon



### to Ricardo DeLeon. For ease in following the gang evidence-related issues on appeal, we start with a summary ofthe evidence against each defendant. None ofthe defendants challenge the admission oftestimony from Miguel Acevedo that he flashed an LVL sign andbelieved that it was his flashing the sign that triggered the assault. Although there was conflicting evidence, none challenge the admission of testimony ofMonica Mendoza that she saw that the occupants ofthe Taurus, from which shots were fired, were wearing red bandanas ontheir faces; the testimony ofMonica, her sister, and Mr. Barajas that they were confident that the Taurus thatthey saw entering the freeway was the same Taurus from which the shots were fired; orthe testimony ofMonica that when she andthe others sighted the Taurus a second time at the Sunnyside-Mabton Road intersection, she recognized Anthony DeLeon and Octavio Robledo as two ofthe passengers. The State's strongest evidence ofthe defendants' gang membership was arguably its evidence against Octavio Robledo, the front seat passenger inthe Taurus. Monica testified that she hadknown him to be a Nortefio associate in school. He admitted to Detective Ortiz following Miranda 

### warnings that he was North Side Varrio, a Nortefio gang. Atthe time ofhis arrest, he was wearing a red cloth belt with a star on the buckle, and white Nike shoes with a red "swoosh." He repeated during booking that he was North Side Varrio and that his moniker is "Fat Boy." Booking records noted the following tattoos: "F" on his right forearm, "B" onhis left forearm, "N" on his neck and 10Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
"14" on his back. Testimony at trial established that the numbers 1,4, and 14 are significant toNortefios because "N" is the 14th letter in the alphabet. Bythe time oftrial, Mr. Robledo had an additional tattoo onhis hand ofa Huelga bird with "Warrior" ontop ofit, which Detective Ortiz testified was also a symbol ofNortefio gang affiliation. A photograph ofhis hand revealed the Huelga bird and additional tattoos: four dots-one
on each finger; the initials "NSV" on his ring fmger, and the numerals "XIV"nearthe web ofhis thumb and finger. Perhaps equally strong was the State's evidence that Anthony DeLeon, who was driving the Taurus, was a member ofEarlimart, a Nortefio gang. Monica testified that she had known him, too, to be a memberoftheNortefios. Atthe time ofhis arrest, he
was wearing a black clothbelt with a buckle displaying a capital "N." His blackNike shoes had red stars on one inside sole. The cell phone found during a search ofthe Taurus, which included his name on the wallpaper, includedphotos depicting a person in red clothing and a red cap with a black "N" symbol urinating on "Scrapz" (a derogatory
name for Surefio gang members), a Huelga bird in the colorblack with a red background, the slogan "Norte SK X-4," and the word "Familia" (meaning "family" in Spanish), all of which Detective Ortiz explained as symbols ofgang affiliation. Also stored in the cell phone were songs whose titles and artists (though not lyrics) were admitted into evidence and suggested association with the Nortefios: "Del Norte" by Los Tigres; "Northern Expozure" and "Still Mob Livin" by Woodie; "Northern Pride" by Big Tone, "Nortefios" 

### 11

### Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon 

### by Northern Warriorz, and "Darkroom Familia" by Woodie. When asked about his gang involvementbyDetective Ortiz, Anthony initially mentioned XIV, butthen told the detective he was Earlimart-bothNortefio-affiliated gangs. Additional evidence included his self-report at booking that his moniker was Monkey and that he was formerly a Nortefio and should not be housed with Surefios. The booking officer noted that he had the following tattoos, which Detective Ortiz testified were gang related: four dots on the left forearm, the number 1on his left leg, and the number 4 on his right leg. The State's weakest evidence ofa current gang affiliation was against Ricardo DeLeon, Anthony's older brother and the back seat passenger. When questioned by Detective Ortiz following the defendants' arrest, Ricardo denied any gang affiliation. When arrested, he was wearing a pair ofred and black sandals with star insignias and a red T-shirt depicting a recently deceased Nortefio gang member Julian Flores. One ofthe two redbandannas found in the car was found in the back seat. A gang disclosure form
on Ricardo, completed when he was booked, reflected in his report that he was formerly a Nortefio and should not be housed with Surefios; he did not claim to have a moniker. His only tattoo-a cross with two dots on his right forearm-was not gang related. 5

5 

### In the CrR 3.5 hearing, Detective Ortiz described Ricardo DeLeon's tattoo as a Pachuco cross, popular in the 1940s with a group ofCatholic Hispanic Latinos located in California. Supplemental Report ofProceedings (RP) (Sept. 28, 2010) at 15-16. The detective testified that by itself, it was not a common or normal gang indicator. Id. 

### at 17. 12Nos. 29657-l-III; 29679-2-III; 2969l-l-II1 

### State v. 

### DeLeon
A. ER 404(b) Issues The appellants raise three issues relating to the trial court's admission ofevidence oftheir gang affiliation under ER 404(b), whichprovides that [e]vidence ofother crimes, wrongs, or acts is not admissible to prove the character ofa person in orderto show action in conformity therewith, but maybe admissible for otherpurposes, such as proofofmotive, intent, or identity. Gang evidence falls within the scope ofER 404(b). 

### State v. 

### Yarbrough, 151 Wn. App. 66,210P.3d 1029 (2009). OnlyAnthony DeLeon broadly challenges the trial court's original ruling admitting gang evidence. Mr. Robledo challenges onlythe trial court's decision to admit the expert testimony ofDetective Ortiz that the Huelga tattoo on his hand signified that he had committed a very serious crime. Ricardo DeLeon challenges the trial court's denial ofhis motion for mistrial, raised after he alleges the State exceeded the court's limitations imposed on gang evidence and the bounds ofER 404(b). After
somepreliminary discussion ofthe evidence rule, we address the challenges inthat order. "ER404(b) is not designed 'to deprive the State ofrelevant evidence necessary to establish an essential element ofits case,' butratherto prevent the State from suggesting that a defendant is guilty because he or she is a criminal-type person who would be likely to committhe crime charged." 

### State v. 

### Foxhoven, 161 Wn.2d 168, 175, 163 PJd 786 (2007) (quoting 

### State v. 

### Lough, 125 Wn.2d 847,859, 889 P.2d 487 (1995)).



### 13Nos. 29657-1-III; 29679-2-III; 29691-1-II1 

### State v. DeLeon
ER 404(b) must be read in conjunction with ER 403, which "requires exclusion ofevidence, 

### even 

### if relevant, ifits probative value is substantially outweighedbythe danger ofunfairprejudice." 

### State v. Smith, 106 Wn.2d 772, 775-76, 725 P.2d 951 (1986). We consider gang evidence prejudicial due to its general "inflammatorynature." 

### State v. Asaeli, 150 Wn. App. 543, 579, 208 P.3d 1136 (2009). Generalized expert testimony on gang culture is a particular concern, for, "absent (1) evidence showing adherence bythe defendant orthe defendant's alleged gang to those behaviors and (2) a finding that the evidence relating to gangs is relevant to provethe elements ofthe charged crime, 

### [it] serves no purposebutto allow the State to 'suggest[ ] that a defendant is guilty because he or she is a criminal-type person who wouldbe likely to commit the crime charged.'" 

### State v. Mee, 168 Wn. App. 144, 159,275 P.3d 1192 (2012) (second alteration in original) (quoting

### Foxhoven, 161 Wn.2d at 175). Accordingly, to admit gang affiliation evidence there must be a nexus betweenthe crime and gang membership. 

### State v. Scott, 151 Wn. App. 520, 526,213 P.3d 71 (2009) (citing 

### State v. Campbell, 78 Wn. App. 813, 822,901 P.2d 1050 (1995)); 

### cfState v. Bluehorse, 159 Wn. App. 410, 429-30, 248 P.3d 537 (2011) (applying the nexus requirement to evidence offered to prove a gang aggravator in support ofan exceptional sentence). The analysis bywhich courts limit evidence ofother crimes, wrongs, or acts to properpurposes is well settled: before admitting the evidence, the trial court must "(1) fmd by a preponderance ofthe evidence that the misconduct occurred, (2) identify 14Nos. 29657-I-III; 29679-2-III; 29691-1-II1 State v. DeLeon
the purpose for whichthe evidence is sought to be introduced, (3) detennine whether the evidence is relevant to prove an element ofthe crime charged, and (4) weighthe probative value against the prejudicial effect." Yarbrough, 151 Wn. App. at 81-82. The balancing ofthese interests must be conducted on the record. State v. Kilgore, 147 Wn.2d 288,292,53 P.3d 974 (2002). The court's decision on admission ofER404(b) evidence is reviewed for abuse ofdiscretion. Foxhoven, 161 Wn.2d at 174. 1. AnthonyDeLeon's challenge topretrial ruling thatgang evidence wouldbe admissible Anthony DeLeon argues that all ofthe evidence relating to the defendants' current
or fonner gang affiliation violated ER404(b). He argues that the evidence did not have a properpurpose, because "[m]otive is not an element ofthe charged offenses." Br. of Appellant Anthony DeLeon at 20. He contends that evidence ofthe defendants' gang affiliation merely suggestedthat he andhis codefendants were criminal types who would likely committhe crimes charged, and was unduly prejudicial. Here, the trial court found on the recordthat the gang evidence was relevant to the issue ofmotive, which is a permitted purpose for offering evidence ofgang affiliation under ER 404(b). See Yarbrough, 151 Wn. App. at 81 (gang evidence admissible as to motive and state ofmind); State v. Boot, 89 Wn. App. 780, 788-90,950 P.2d 964 (1998) (admissible as to motive, premeditation); State v. Campbell, 78 Wn. App. at 821 (premeditation, motive, and intent). "Motive is an inducement which tempts a mind to 15Nos. 29657-l-III; 29679-2-III; 2969l-l-III 

### State v. 

### DeLeon
commit a crime," and, although it is not an element ofthe offense that the State is required to prove, evidence showing motive maybe admissible. 

### Boot, 89 Wn. App. at 789. Where the existence ofa motive on the part ofa defendant has a tendency to make the existence ofany fact that is ofconsequence to the determination ofthe action more probable than it would be without the evidence, motive is relevant. ER401; 

### Mee, 168 Wn. App. at 157. The State's theory was thatthe defendants were Nortefio gang members or associates who drove to a Surefio neighborhood and a well-known Surefio-associated house for the purpose ofspotting and shooting a rival gang member. Evidence that the Cardenas house was Surefio-associated, that Mr. Acevedo threw an 

### LVL sign that apparently triggered the violence, andthat MonicaMendoza observedred bandannas on the faces ofthe occupants ofthe Taurus from which shots were fired, all suggestedthat the crime was gang related. Evidence that the defendants were members or associates of
a rival gang claiming the colorred made it more probable theywere involved than ifthey
were not gang affiliated. Generally speaking, the trial court did not abuse its discretion in ruling that gang evidence wouldbe admissible so long as it was tied to gang affIliation and motive.

16Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon
2. Octavio Robledo's challenge topretrial ruling that evidence relating to hisHuelga bird tattoo would be admissible Mr. Robledo specifically challenges the admission under ER 404(b) ofthe State's evidence ofa tattoo ofa Hue1ga bird on his hand. In making its pretrial offer ofproof, the State argued that its purpose for offering a photograph ofthe tattoo was, like its purpose for offering evidence ofthe defendants l clothing andtheir other tattoos, to demonstrate thatthe defendants' chosen dress andtattoos were evidence ofNortefio affiliation, andthereby evidence ofmotive. Consistent with the State's offer ofproof, both Sergeant JeffCunningham and Detective Ortiz tied 

### Mr. Robledo's tattoo, like the other tattoos andthe defendants' clothing, to Nortefio gang allegiance. Sergeant Cunninghamtestifiedthat the Huelga bird is a symbol adoptedby the Nortefios and Detective Ortiz confirmedthe symbol as one of gang allegiance. Detective Ortiz went beyond that, however, and answered questions about the 

### meaningandsignificance ofthe Huelga bird, telling thejurythat, in the penitentiary, [the Huelgabird] signifies a "keeper ofknowledge," while on the streets "it'll bethat some individual has done a very serious crime, particular drive-bys or a homicide." RP at 1955. Athis earliest opportunity, Anthony DeLeon moved for a mistrial on two bases, one being that the detective's testimony as to the meaning ofthe Huelga birdimplied that hehaving a picture ofa Huelga bird on a cell phone-was a major player inthe gang and had 17Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
committed a priorhomicide or drive-by. Mr. Robledojoinedin the motion, arguing that "[to] say, well, it's evidence that he committed a homicide or a high level assault, it has, it's gone waybeyondevidence needed to prove motive in this case." RP at 1994. Mr. Robledo assigns errorto the trial court's ER 404(b) ruling, arguing that the court failed to engage in an ER404(b) analysis by failing to consider whetherMr. Robledo hadcommitted a very serious crime, whetherthe serious crime he had committed was relevant, and whether evidence concerning theprior crime was unduly prejudicial. In fairness to the trial court, that was notthe State's statedpurpose for the evidence, as to which it originallyruled. Nonetheless, oncethe mistrial motion highlighted the detective's testimony about the symbol's meaning, the trial court explainedwhy itviewed the detective's evidence as admissible for a broaderpurpose, continuing tojustifythe admission on ER404(b) grounds. Its ruling therebypresents an issue that we analyze in the first instance under ER404(b). The court explained: The State has presented-orprovided an expert who has described what the various symbols mean, what the colors mean, and has given meaning to the evidence. I can't find-it may be information that is in this setting considered negative orprejudicial to the Defendants. Outside this criminal setting where we are today, I gather that it was not considered a negative, itwas considered a positive. But in any event, it's whatthey created inthe form oftattoos and whatthey display eitherthrough clothing orthe tattoos. And I think it's appropriate. RP at 1997. Following an interjection by the prosecutor, the court continued, 

### 18Nos. 29657-1-III; 29679-2-III; 29691-1-III 

### State v. 

### DeLeon
[S]o what has come in is evidence that was provided bythem and the function ofthe expert testimony was to give that evidence that came in meaning and that has happened
.

. . . I'm denying it. I think that there-theprejudice that it obtains is prejudice that was createdbythem and it's fully appropriate to the case and it should move forward. RP at 1998. Anytime a defendant has committed a prior crime, she orhe canbe said to be responsible for the fact that evidence ofthat crime exists. The fact that Mr. Robledo was responsible for a tattoo being on his hand that allegedlytelegraphed his prior crime has no place inthe ER404(b) analysis. We agree withMr. Robledo's trial lawyer thattestimony suggesting that the tattoo signified that Mr. Robledo had committed a priorhomicide or drive-by shooting goes "waybeyond evidence needed to prove motive." Nonetheless, a trial court's admission ofevidence on an incorrectbasis does not constitute error ifa properbasis exists for admitting the evidence even though that
was notthe basis articulated bythe trial court. 

### State v. 

### Butler, 53 Wn. App. 214, 217, 766 P.2d 505 (1989) (citing 

### State v. 

### Bowen, 48 Wn. App. 187, 194, 738 P.2d 316 (1987». There had consistently been an implication, ifnot an explicit assertion, ofanother basis for admitting the evidence. On several occasions when the parties argued the in limine issue ofwhetherthe State shouldbe able to offer evidence ofa Huelgabirdtattoo onMr. Robledo's hand, the State emphasized its position that the tattoo had notbeenpresent on Mr. Robledo's hand at the time he was arrested. At trial, it presented the testimony of 19Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon Sergeant Cunningham and Detective Ortiz that neither had seen the Huelgabird tattoo on his hand at the time ofhis arrest. In closing argument, the prosecutor told thejury You've seen their statements when they're booked in, XIV Nortefios. They've all got gang tattoos. And, in fact, Mr. Robledo subsequently has got the one that means you've committed an act ofviolence after the fact of this event. Where do we know he's seated? In the front passenger seat. I guess that night he earned it. RP at 2335. It would appear, then, that an unstated but intended purpose ofthe evidence
was not to prove that Mr. Robledo had committed a

### prior crime, but that the tattoo was a nonverbal admission, following the shooting ofMr. Cardenas, that Mr. Robledo had recentlyparticipated in a drive-by-in other words, it was evidence ofthe presentlycharged crime. 

### CfState v. 

### Liverman, 687 S.E.2d 70 (S.c. App. 2009) (State's trial theory was that two teardrop tattoos were obtained by defendant after two murders for which he was ontrial; defendant failed to argue that the evidence might be construed as suggesting earlier murders, and thereby as propensity evidence, until appeal) In any event, ifDetective Ortiz's testimony about the Huelgabird's meaning exceeded a proper purpose under ER404(b) and was otherwise inadmissible, the erroneous admission ofevidence "requires reversal only ifthe error, within reasonable probability, materially affected the outcome ofthe trial." 

### State v. 

### Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). The State never suggested that thejury should infer prior criminal activity from the Huelgabird tattoo. Thejurywas instructed to consider gang evidence solely for the purpose ofestablishing a motive as to why the crime charged was committed. 20Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon
We presume thejuryfollowed this instruction. 

### See State v. 

### Swan, 114 Wn.2d 613,662, 790 P.2d 610 (1990). Ifany error occurred, it was harmless. 

### 3. Ricardo DeLeon's challenge to denial of the motion for mistrial During a break inDetective Ortiz's examination, the three defendantsjointly moved for a mistrial on grounds that the State's gang evidence had far exceeded the court's announced limitations and the bounds ofER 404(b). Ricardo DeLeon's lawyer conceded that some evidence ofgang affiliationto establish motive hadbeenproperly admitted, but argued that "the State has soughtto eitherignore orevade [the] Court's ruling andintroduce evidence ofgang affiliation at every opportunity." RP at 1993. He argued that the prejudice was greatest for Ricardo, given the "scantevidence" that he was
a gang affiliate ormember. 

### Id. The State denied that it had exceeded the trial court's ruling on theparties' in limine motions. The court denied the motion, stating, among otherreasons, that "the function ofthe experttestimony was to give that evidence that
came in meaning andthat has happened." RP at 1998. We review the trial court's denial ofa motion for a mistrial for abuse ofdiscretion. 

### State 

### v. Rodriguez, 146 Wn.2d 260,269,45 P.3d 541 (2002). An abuse ofdiscretion
occurs when "no reasonablejudge wouldhave reached the same conclusion." 

### Id. A court also abuses its discretion when its decision is based onuntenable grounds or untenable reasons. 

### State ex reI. Carroll v. 

### Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
21Nos. 29657-I-III; 29679-2-III; 29691-I-III State v. DeLeon
The trial court's decision to deny a motion for a mistrial will be overturned only when there is a "substantial likelihood" the prejudice affected thejury'sverdict. Rodriguez, 146 Wn.2d at 269-70. Ricardo DeLeon is correct that Detective Ortiz's discussion of"courtship" (how a personbecomes a gang member either through being "jumpedin" orthrough family ties)
was not relevant to motive in this case. Gang initiation, orhow to become a new member, was not at issue given the State's theory that all three defendants were already gang affiliates acting in concert to promote gang interests. Similarly, during testimony about Norteiio and Sureiio gang hierarchy, Detective Ortiz testified that a local Sureiio member who is an inmate at the Walla Walla Penitentiary is "calling the shots" and giving marching orders to "soldiers" or gang members onthe street. RP at 1927-30. This testimony had no relevance to motive when the State was not alleging that the shooting
was ordered by anyone within the hierarchy. Likewise, Detective Ortiz's extended discussion about the number, variety, and names oflocal gangs not tied to this incident had little relevance and could prejudicially suggest a pervasiveness ofdangerous criminal street gangs inthe area. Finally, Detective Ortiz's testimony that gangs use the Internet for intimidating and threatening rivals "except for pulling the trigger, so to speak," was also irrelevant when there was no evidence connecting Internet activityto the May 9 shooting. RP at 1940.

22Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
Onthe other hand, Detective Ortiz's testimony about "putting in work" and the expectation that gang members are init for life were relevant to the State's theory that the defendants were in fact gang affiliated despite defense claims that they were no longer active, and that the shooting was in retaliation for disrespect by a rival gang. Detective Ortiz's testimony about subsets ofthe Norteiios gang in the area and their rivalry with Sureiio subsets such as the LVLs was relevant, since the asserted motive for the crime
was tied to that rivalry. Nevertheless, the irrelevant generalized evidence had little orno probative value. It could suggest to thejurythe "forbidden inference" underlying ER 404(b) that the defendants were part ofa pervasive gang problem and were criminal-types with a propensity to commit the crimes charged. Mee, 168 Wn. App. at 159 (quoting State v. Wade, 98 Wn. App. 328, 336, 989 P.2d 576 (1999)); see Foxhoven, 161 Wn.2d at 175. The trial court was partially mistaken in ruling on the mistrial motion to the extent it concluded the generalized gang evidence hadbeen appropriately limited. It had not been. We take this opportunity to remind trial courts that ER 403 has particular importance in assessing the admissibility ofgeneralized evidence regarding the behavior ofgangs and gang members. Ifexpert testimony on gang behavior does notboth (1) show adherence by the defendant orthe defendant's gang to those behaviors and (2) tend to prove the elements ofthe charged crime, then its relevance will not outweigh 23Nos. 29657-l-III; 29679-2-III; 2969l-l-III State v. DeLeon
the risk that thejurywill draw a forbidden inference. Mee, 168 Wn. App. at 159. All members ofthis panel agree that trial courts should carefully apply ER403 in determining the quantity and nature ofgang affiliation testimony that will be admitted. Again, however, any error in the admission ofER404(b) evidence requires reversal only ifthe error, within reasonable probability, materially affected the outcome ofthe trial. We have already determined that evidence ofthe defendants' gang affiliation
was properly admitted to demonstrate motive, and identify above a fair amount ofthe generalized gang evidence that was relevant and properly admitted. The generalized evidence that exceeded appropriate limitations was less powerful than the direct evidence ofthe crime and the relevant (and prejudicial, but not undulyprejudicial) gang evidence that was legitimately admitted. We see no likelihood that the additional generalized gang evidence materially affected the outcome ofthe trial. B. Were PostarrestJailBooking StatementsAndJail BookingForms Voluntary Statements Under The FifthAmendment? Before trial, the State provided notice ofits intention to offer as evidence gang documentation forms completed at the Sunnysidejailwith information providedbythe defendants. Atthe erR 3.5 hearing on admissibility, Jail Officer Gabino Saenz testified that whenthe defendants were released to him for booking, procedure required that he ask them ifthere was anyone they could notbehoused with. Ifan individual responds that he cannotbehoused with Surenos, for example, as these defendants did, then Officer 24

### Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon


### Saenz uses the Sunnysidejail's Gang Documentation Fonnto obtain infonnation about the individual's gang affiliation and colors and numbers claimed. The Gang Documentation Fonnis completed even ifthe individual states that he is no longer active in a gang, and both DeLeonbrothers claimed to be inactive. Each defendant signed his Gang Documentation Fonnunder penalty ofperjury, at Officer Saenz's request. All defendants challenge the admission into evidence ofthe gang documentation forms. They argue that the procedure for obtaining the infonnation presented them with the prospect ofbeing housed with members ofa rival gang, and implicitly promised to protect them from that danger ifthey provided infonnation about their gang affiliation. They argue that this "conditional" opportunity for protection from violence coerced them into making self-incriminating statements. The State's pretrial motions in limine asked the court to admit the gang documentation fonns on one oftwo rationales: either because the fonns provided
answers to routine booking questions that do not require that the defendant be advised of his Miranda 

### rights, or becauseMiranda 

### warnings given byDetective Ortiz hours earlier
were still fresh. We tum first to the "routine booking question" rationale-notbecause it is dispositive, but because it might otherwise confuse the real issue on appeal. To determine whetherthe administration ofMiranda 

### warnings is required turns on whether any part ofthe questioning ofa defendant is: (a) custodial, (b) interrogation, (c) by an 25Nos. 29657-l-III; 29679-2-III; 2969l-l-III State v. DeLeon agent ofthe State. State v. Sargent, 111 Wn.2d 641,649-52, 762 P.2d 1127 (1988) (citingMiranda, 384 U.S. at 444). "Interrogation" for Fifth Amendment purposes refers to any words oractions on the part ofthe police
... that the police should know are reasonably likely to elicit anincriminating response from the suspect. The latterportion ofthis definition focuses primarily upon the perceptions ofthe suspect, ratherthan the intent ofthe police. Id. at 650 (quoting RhodeIsland 

### v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682,64 

### L. Ed. 2d 297 (1980)). The asking ofroutine booking questions during the booking process does not generally violate the prohibition against interrogation found inMiranda because the questions askedrarely elicit incriminating statements. Id. at 651. The trial court rejected the State's argument that Officer Saenz posed routine booking questions that did notrequire administering Miranda warnings, but it agreed with the State that theMiranda warnings administered byDetective Ortiz hours earlier
were still fresh and, implicitly, that they remained sufficient. The court explained: Therefore, the statements, to the extent that they would be testimonial in that sense, that they are-the gentlemen were clearly in custody in these have been coerced statements, I don't find that they arejust ordinary booking questions. They mayhave been treated that way previously, but they are very clearly asking questions ofanindividual that could clearly be evidence in the future and Miranda would be necessary before they be provided. In any event, [Miranda] has been given and I'm going to--I find that they are admissible for those purposes. That doesn't address some ofthe otherissues that may come up, but at least from a 3.5 perspective and a statement from the Defendants, they come in. RP at 93-94.
26Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
The challenge to admitting the gang documentation fonns that the defendants raise
on appeal (and that they also argued below) differs from the two issues raised by the State's in limine motion. The defendants argue that regardless ofwhether theMiranda warnings were fresh, the infonnation the defendants were required to provide was still involuntary, given the inherently coercive context: being presented with the choice whether to be placed in safejail housing, orvery dangerousjail housing. The Fifth Amendment to the United States Constitution states that "[n]o person

... shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. 

## v. Article I, section 9 ofthe Washington State Constitution affords the same protection. State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008); State v. Earls, 116 Wn.2d 364,374-75,805 P.2d 211 (1991). To be admissible, a defendant's statement to law enforcement must pass two tests ofvoluntariness: (1) the due process test, whetherthe statement was the product ofpolice coercion; and (2) the Miranda test, whether a defendant who has been infonned ofhis rights thereafter knowingly and intelligently waived those rights before making a statement. State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991). A confession that is the product of government coercion must be suppressed regardless ofwhetherMiranda has been complied with. United States v. Anderson, 929 F.2d 96,98 (2nd Cir. 1991). Courts evaluate the totality ofthe circumstances to detennine whether custodial statements were voluntarily given. Unga, 165 Wn.2d at 100 (citing Fare v. Michael 

## c., 27Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon
442 U.S. 707, 724-25, 99 S. Ct. 2560, 61 

### L. Ed. 2d 197 (1979); 

### Schneckloth v. 

### Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 

### L. Ed. 2d 854 (1973); 

### Miranda, 384 U.S. at 475-77). The government mustprove the voluntariness ofa defendant's statement by a preponderance ofthe evidence. 

### Lego v. 

### Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 

### L. Ed. 2d 618 (1972). The defendants rely on

### Payne v. 

### Arkansas, 356 U.S. 560, 567, 78 S. Ct. 844, 2 

### L. Ed. 2d 975 (1958) and

### Arizona v. 

### Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 

### L. Ed. 2d 302 (1991) as examples ofcoercion in obtaining potentially incriminating custodial statements eventhough no threat ofviolence came from law enforcement. In 

### Payne, the police chiefpromised to protect an accused killer from an angry mob gathered outside thejail in exchange for his confession. 

### Payne, 356 U.S. at 562-64. Inreversing Payne's conviction, the Supreme Court concluded: It seems obvious from the 

### totality ofthis course ofconduct, and particularly the culminating threat ofmob violence, that the confession was coerced and did not constitute an "expression offree choice," and that its use before the jury, overpetitioner's objection, deprived him of"that fundamental fairness essential to the very concept of justice," and, hence, denied him due process oflaw, guaranteed bythe Fourteenth Amendment. [d. at 567. In

### Fulminante, a prison infonner offered to protect the defendant from "credible threat ofphysical violence" by other inmates who suspected him ofkilling a young girl
onthe condition that the defendant tell him the truth about the killing. 499 U.S. at 286.
28Nos. 29657-1-III; 29679-2-III; 29691-1-III State v. DeLeon
The Supreme Court concluded the resulting confession was coerced and involuntary and explained that "a finding ofcoercion need not depend upon actual violence by a government agent; a credible threat is sufficient." Id. at 287. And '''coercion can be mental as well as physical, and
...**th~** blood ofthe accused is not the only hallmark ofan unconstitutional inquisition.'" Id. (quoting Blackburn v. Alabama, 361 U.S. 199,206, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960». Here, the trial court characterized the statements as "coerced" in its oral ruling ("the gentlemen were clearly in custody in these have been coercedstatements, I don't find that they arejust ordinary booking questions"). RP (afternoon Sept. 28, 2010) at 93-94. But the context ofthis reference, the court's ultimate ruling, and a possibly flawed transcription make it unclear what the court meant. In context, it might well have meant-as the State argues--only that the statements were custodial and potentially incriminating such that the prior Miranda warnings given to them were necessary. We need not dwell on what the trial court meant in referring to "coercion" because we review de novo a trial court's conclusion that statements were freely and voluntarily given. State 

### v. Butler, 165 Wn. App. 820,827,269 P.3d 315 (2012). "A statement is involuntary ifit is 'extracted by any sort ofthreats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion ofany improper influence.'" UnitedStates v. Leon Guerrero, 847 F.2d 1363 (9th Cir. 1988) (alterations in original) (quoting Hutto v. Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 29Nos. 29657-l-III; 29679-2-III; 2969l-l-II1 State 

### v. DeLeon
2d 194 (1976) (quoting Bram v. United States, 168 U.S. 532,542-43, 18 S. Ct. 183, 42 

### L. Ed. 568 (1897))). The State argues that Officer Saenz did notmake an offerto protect Mr. DeLeon orprovide any consideration not providedto other inmates. But it fails to address the involuntariness thatPayne and Fulminante demonstrate can arise where a state agent promises to protect an inmate from a threat posed by a third party. And as reflected inthe United States Supreme Court's holdings in Hutto andBram, a promise neednot be express, itcanbe implied. Relevant to our legal analysis is the fact that Sunnysidejail personnel are not acting solely out ofkindness in obtaining gang affiliation information in order to safely house inmates. The Eighth Amendment ofthe United States Constitutionimposes duties on prison officials, who must take reasonable measures to guarantee the safety ofinmates. Farmer 

### v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 

### L. Ed. 2d 811 (1994) (citing Hudson 

### v. Palmer, 468 U.S. 517, 526-27, 104 S. Ct. 3194, 82 

### L. Ed. 2d 393 (1984)). "Having incarceratedpersons with demonstrated proclivities for antisocial criminal, and often violent, conduct, having stripped them ofvirtually every means ofself-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state ofnature take its course." Id. at 833 (internal citations, quotations and brackets omitted). A prison official who acts with deliberate indifference to the safety of
an inmate, giving rise to a sufficiently serious danger to an inmate's safety, is subject to civil suit in the form ofan Eighth Amendment failure-to-protect claim. See id. at 849. 30Nos. 29657-1-III; 29679-2-III; 29691-l-III State 

### v. DeLeon Appellate counsel for the State admitted at oral argument that Sunnysidejail personnel could have obtained information needed to safelyhouse prisoners by stopping with their first question: whetherthere were any inmates with whom the defendants should not behoused. We do not suggest that it was unreasonable forjail personnel to obtain more information than that forjail securitypurposes, but what we do hold is that when, as here, answering inculpatory questions on a gang documentation form is implicitly required for an inmate to obtain safe housing, then whatever incriminating
answers the State gets are notvoluntary for purposes ofthe Fifth Amendment. They are not admissible in a criminal triaL We find support for this conclusion in several federal decisions suggesting that the threat ofexposure to conditions ofimprisonment that would violate the EighthAmendment is not coercive so long as the State does not control that exposure. In United States v. Shi, 525 F.3d 709, 728 (9th Cir. 2008) the Ninth Circuit Court ofAppeals described the conditions in which a defendant was held by a Taiwanese ship's crewbefore the ship was boarded bythe Coast Guard and Federal Bureau ofInvestigation (FBI) agents as "quite troubling," but emphasized that the defendant hadbeenheld inthe ship's storage compartment "as the crew's prisoner, not the Coast Guard's orthe FBI's. Once the FBI released Shi from the compartment and assumed custody, the district court found no evidence that the FBI intimidated orcoerced Shi in any way." 

### Id. at 728. Similarly, in UnitedStates v. McVicker, 979 F. Supp. 2d 1154 (D. Or. 2013), the defendant complained 31Nos. 29657-1-III; 29679-2-III; 29691-1-III 

### State v. 

### DeLeon
that when interviewed in a Belizejail by agents ofthe United States Department of Homeland Security, the agents implied that only by waiving his Fifth Amendment rights would they assist him in getting out ofBelize. The district court distinguished the facts of McVicker's case from 

### Fulminante and 

### Payne, pointing out that the federal agents "did not offer McVicker protection within the Belize City Jail and [made] it clear that they had no control over the conditions in thatjail." 

### Mc Vicker, 979 F. Supp. 2d at 1190. By contrast, in 

### UnitedStates v. 

### Bout, 2011 WL 4389537 (S.D.N.Y. 2011), the court concluded that the defendant, having been arrested in Thailand and who faced a credible threat ofviolence in Thaijails, was coerced to make a statement to American agents: "The totality ofthe circumstances led Bout to believe that speaking with the agents was the only way he might escape being abandoned to the rough conditions ofa Thaijail." 

### Id. at *4. Here, the State's own trial evidence demonstrated that there was a real and ongoing danger ofviolence and retaliation between rival gangs that presented these defendants with a credible threat ofharm ifhoused with rival gang members in the Sunnysidejail. Officer Saenz testified at the CrR 3.5 hearing that the manner in which thejail undertakes to circumvent that danger to inmates is by asking them at booking whether there are "certain individuals or certain groups you can't be housed with;" ifthe inmate says that there are, then a Gang Documentation Form is completed. The totality ofcircumstances would lead an inmate being booked into the Sunnysidejail to believe that in order to avoid
a real risk ofdanger posed by being housed with rival gang members, he would need to 32Nos. 29657-1-III; 29679-2-III; 29691-1-III 

### State v. 

### DeLeon

answer "yes" when asked ifthere were certain individuals or groups he could not be housed with, and then provide the information for the Gang Documentation Form. RP (afternoon Sept. 28, 2010) at 43-44. The trial court erred in ruling that the statements ofthe defendants reflected in the Gang Disclosure Forms were voluntary for purposes of the Fifth Amendment. Again, we examine whether the error was harmless; in this instance, the standard that applies is constitutional harmless error. That standard requires that-as to the verdicts to which the evidence is relevant (and here it was relevant only to the gang aggravator)-we look only to the untainted evidence to decide ifit is so overwhelming that it necessarily leads to a finding ofguilt. 

### State v. 

### McDaniel, 83 Wn. App. 179, 187-88,920 P.2d 1218 (1996) (quoting 

### State v. 

### Gu/oy, 104 Wn.2d 412,705 P.2d 1182 (1985)). Given the other admissible evidence ofAnthony DeLeon's and Mr. Robledo's gang affiliation, the information on their gang documentation forms was cumulative and can fairly be said to have been harmless for purposes ofthejury's finding ofthe gang aggravator. The same is not true for Ricardo DeLeon. The untainted evidence did not include any admission by Ricardo that he had ever been a member ofa gang, no witness testified that he had ever been a member ofa gang, and there was no testimony that his sole tattoo
was gang-related. When arrested, Ricardo was wearing a red shirt bearing the acronym 33Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
butMr. Flores had not died in a gang altercation, he committed suicide. Detective Ortiz agreed when cross-examined aboutthe shirt that Mr. Flores's "friends and family wish to rememberhim." RP at 2016. Monica testified that while she did notknow Ricardo, she had seen him at Julian Flores's house, establishing some personal connectionbetween Ricardo and Mr. Flores-butnot a gang connection. Monica claimed no knowledge of any gang affiliationby Ricardo. The State also relied onthe fact that one oftwo red bandannas found in the carwas found inthe back seat, where Ricardo was sitting. But only two red bandannas were found, andthere were three occupants ofthe car. Itwould nothave been difficult for a front seat passenger to toss his in the back ofthe car during the chase. Officers who succeeded in stopping the Taurus and arresting its passengers testified that Ricardo was sitting on the left side ofthe rear seat when the Taurus was fmally stopped bypolice, next to a red cooler on his right that Detective Ortiz described as "large enough that it took up the whole right rear passenger side seating area." RP at 1870. The untainted evidence that Ricardo acted "with intent to directly orindirectly cause any benefit, aggrandizement, gain, profit or other advantage to orfor criminal street gang, its reputation, influence, ormembership" is not at all overwhelming. The exceptional sentence imposed onRicardo based onthejury's fmding ofthe gang aggravator must be reversed and remanded for further proceedings.



### 34Nos. 29657-l-III; 29679-2-III; 2969l-l-III 

### State v. 

### DeLeon


### C. Were Codefendants J 

### GangInformation Forms AdmittedIn Violation Of The Hearsay Rule Or The Defendants' SixthAmendmentRights? Each defendant's statements to Officer Saenz reflected onthe Gang Documentation Formwas an admissionbya party opponentunder ER 80 1 (d)(2) as between that defendant andthe State buthearsay as to his codefendants, with no hearsay exception identified. ER 105 provides, however, that when evidence is admissible as to oneparty butnot as to another, the court, uponrequest, shall restrict the evidence to its proper scope and instruct thejury accordingly. The trial court instructed thejurythat "[y]oumay consider a statement made out ofcourt by one defendant as evidence against that defendant, but not as evidence against another defendant," thereby addressing any hearsay
concern. CP at 617. Less easily addressed is the implication ofthe codefendants' gang documentation forms on a defendant's right to confrontation under the Sixth Amendment. Here, none of the defendants testified, and each contends on appeal that admission ofthe Gang Information Forms ofhis codefendants violated his right to confrontation. The confrontation clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. CONST. amend. VI. In

### Bruton 

### v. United States, 391 U.S. 123,88 S. Ct. 1620,20 

### L. Ed. 2d476 (1968), the United States Supreme Courtheldthat the defendant's confrontation rights under the Sixth Amendment were violated when he was "powerfully incriminat[ed]"byadmission ofa pretrial statement of 35Nos. 29657-1-III; 29679-2-III; 29691-1-III 

### State v. 

### DeLeon
his codefendant, Evans, who did not take the stand at trial. 

### Bruton, 391 U.S. at 135-37. The trial court gave thejury a limiting instruction that it could considerthe confession only against Evans but in the context ofBruton's constitutional interest, the Supreme Court held that the limiting instruction was not enough. It stated that "the introduction of Evans' confessionposed a substantial threat to [Bruton's] rightto confront the witnesses against him, and this is a hazard [the Court] cannot ignore." 

### Bruton, 391 U.S. at 137. In

### Richardson v. 

### Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 

### L. Ed. 2d 176 (1987), however, the Supreme Court validated the use ofredaction and limiting instructions as ways ofprotecting criminal defendants' Sixth Amendmentrights in most
cases. During the underlyingjointtrial ofcodefendants Marsh and Williams, the State introduced the confession ofWilliams into evidence. Unlike the confession in

### Bruton, the State redacted Williams's confession so that it containedno explicit orimplicit reference to Marsh. 

### Richardson, 481 U.S. at 203. The trial court also admonished thejurynot to
use Williams's confession against Marsh. 

### Id. at 204. The Supreme Court held that "[o]rdinarily, a witness whose testimony is introduced at ajointtrial is not considered to be a witness 'against' a defendant ifthejury is instructed to consider that testimony only against a codefendant." 

### Id. at 206. The holding was based on "the almost invariable assumption ofthe law thatjurors follow their instructions." ld. The same result didnot obtain in a case decidedbythe Supreme Court nine years later, where "[t]he blank space in an obviously redacted confession also points directly to the defendant," such that ithad 36Nos. 29657-l-III; 29679-2-III; 2969l-l-III State v. DeLeon
the same powerfully incriminating effect as in Bruton. Gray v. Maryland, 523 U.S. 185, 194, 118 S. Ct. 1151, 140 L. Ed. 2d294 (1998). Under current confrontation clause jurisprudence, then, a limiting instruction will avoid a SixthAmendment violation except inthose cases where, because redaction cannotbe done effectively, use ofa nontestifying codefendant's statement "powerfullyincriminates" a defendant. Beginning with its 2004 decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) the Supreme Court has also clarified that the confrontation clause applies only to "testimonial" statements made by an out-of-court defendant. Since Bruton is based on the protections ofthe confrontation clause, "[i]t is
... necessaryto view Bruton through the lens ofCrawford," with the result that Bruton's restriction on the admission ofthe inculpatory statements by ajointlytried codefendant is limitedto testimonial hearsay. United States v. Figueroa-Cartagena, 612 F.3d 69,85 (1st Cir. 2010). As to what constitutes "testimonial hearsay," the Crawford Court recognized that '''statements that were made under circumstances which would lead an objective witness reasonablyto believe that the statement would be available for use at a later trial'" were an example ofa "core class of 'testimonial' statements." Crawford, 541 U.S. at 51. It also statedthat "[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." 

### ld. at 51.

37Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon Here, all defendants argue that statements oftheir codefendants reflected on the Gang Documentation Form are undisputedly testimonial in nature and were admitted without giving them a prior opportunity to cross-examine those witnesses, in violation of their Sixth Amendment right. The State contends that errorunder

### Bruton and 

### Crawford
was avoided because no defendant's Gang Documentation Form contained references to another defendant's gang affiliation and thejurywas instructed that it was to considerthe counts and defendants separately-thus, no statement by any codefendant constituted testimony against either ofthe other codefendants. 

### CfIn re Pers. Restraint of Hegney, 138 Wn. App. 511,546-47, 158 P.3d 1193 (2007) (where codefendant's statements did not referto Hegney by name or otherwise, did not contain blanks or obvious deletions, and were accompanied by a limiting instruction, codefendant was not a witness against Hegney and the protections ofthe confrontation clause were not at issue). Ricardo DeLeon replies that in this case thejurywas not admonished not to use a defendant's gang documentation form in any way against his codefendants at the time the evidence was admitted, as was done in

### Richardson; and inhis case, his brother's and Mr. Robledo's gang documentation forms were powerfully incriminating. Most significantly, he points out a problem with the limiting instruction-at least for purposes ofthejury's decision on the gang aggravator. While instruction 6 told thejurors they could consider a statement made out ofcourt as evidence against only that defendant, the court's instruction 29 stated: 38Nos. 29657-l-III; 29679-2-III; 2969l-I-III State v. Deleon
Ifyou fmd the defendant guilty ofthe crime ofFirst Degree Assault in Count I; or ofthe crime ofFirst Degree Assault in Count 2; or ofthe crime ofFirst Degree Assault in Count 3, then you must determine ifthe following aggravated circumstance exists as to that count: Whetherthe defendant committed the crime ofFirstDegree Assault 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, ormembership. When deliberating on this aggravating circumstanceyou may consider all the evidencepresentedduring the trial without limitation. CP at 641 (emphasis added). Itis clear from the record ofthe

### jury instruction conferences that the intent ofthe third paragraph ofinstruction 29 was to override a different limiting instructioninstruction 8, which toldjurors to consider gang evidence "only for thepurpose of establishing a motive as to why the crime alleged was committed." CP at 619. Nonetheless, whenreadtogether, a reasonablejurorwould understand instruction 29 to also override instruction 6. Instruction 29 invitedjurors-forpurposes ofdeciding whether the gang aggravator applied-to consider a statement made out ofcourt as evidence against any defendant. Applying the confrontation clause analysis laid out inRichardson, the fact thatthe jurors were invitedto consider his codefendants' gang documentation forms as evidence against Ricardo DeLeon indeciding whether the gang aggravator applied resulted intheir being witnesses against him. No defendant was named on any other defendant's gang documentation form. ButRichardson makes clear that where a nontestifying
39Nos. 29657-I-III; 29679-2-III; 29691-1-III State v. DeLeon
codefendant's statement is admitted into evidence it is the admonishment or limiting instruction to thejurythatprevents the codefendant from being a witness "against" the defendant. 6 TheRichardson Court recognized that even a statement that does not expressly implicate a defendant can implicate him when linked with other evidence. Richardson, 481 U.S. at 208-09.7 Instruction 29 and our assumption thatjurors follow instructions compels the conclusion that, as to the gang aggravator, nontestifying codefendants were witnesses against one another through the gang documentation forms, which were testimonial in nature. Admission ofthe forms without an effective limiting instruction violated the defendants' Sixth Amendment right, although only with respect to thejury's finding that the gang aggravator applied.

6 "Ordinarily, a witness whose testimony is introduced at ajointtrial is not considered to be a witness 'against' a defendant if thejury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption ofthe law thatjurors follow their instructions." Richardson, 481 U.S. at 206 (emphasis added). 7 The fact that the gang information forms do notname other defendants defeats Ricardo DeLeon's alternative argument that they fell within the Bruton exception. Richardson explains that whether a codefendant's statement incriminates the defendant onits face is important to determining whether the statement falls within the narrow Bruton exception for codefendant statements so powerfully incriminating that even a properjury instruction will not protect a defendant's Sixth Amendmentrights. 418 U.S. at 208. See also Gray, 523 U.S. at 195 ("We concede that Richardson placed outside the scope ofBruton's rule those statements that incriminate inferentially."). 40

### Nos. 29657-l-III; 29679-2-III; 2969l-l-II1 State 

### v. DeLeon


### Confrontation clause errors are subject to constitutional harmless error analysis. State 

### v. Lui, 

### 179 Wn.2d 457, 528,315 P.3d 493 (2014). As previously observed, inthe
case ofAnthony's and Mr. Robledo's gang documentation forms, the information reflected was cumulative ofgang affiliationthat was also established through their statements to Detective Ortiz, Monica Mendoza's testimony, their clothing, tattoos, and Anthony's cell phone contents. Given the unlikelihood that Ricardo's information would have influencedthejurywith respect to his more clearlygang-affiliated codefendants, and the fact that Anthony's and Mr. Robledo's information was cumulative, we are satisfied beyond a reasonable doubt that thejury's consideration ofa nontestifying defendant's gang documentation forms against his codefendants would not have contributed to thejury's verdicts. IL Is The Trial Court's Imposition Of An Exceptional Sentence On The GangAggravatorSupportedBy The Record? 

### The appellants argue that the evidence was insufficient to support the gang aggravator, complaining here, as they did in arguing that gang evidence was admitted in violation ofER404(b), about the State's generalized gang evidence. Generalized gang evidence is problematic in both contexts. Absent 

### (1) evidence showing that general evidence about gang behaviorwas adheredto bythe defendant orhis alleged gang and (2) a finding that the evidence relating to gangs is relevant to prove the elements ofthe charged crime, then generalized evidence may give rise to the forbidden inference under 41Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
ER 404(b) and, in the context ofexamining the sufficiency ofevidence, no probative value canbe ascribed to it. Wereview ajury's verdict onan aggravating factor for substantial evidencejustas
we do when evaluating the sufficiency ofthe evidence supporting the elements ofa crime. State v. Webb, 162 Wn. App. 195,205-06,252 P.3d 424 (2011). After viewing the evidence in a light most favorable to the State (which still requires that we ascribe no weight to generalized gang evidence having no nexus to the crimes charged), we ask whether anyrational trier offact could have found the essential elements ofthe charge beyond a reasonable doubt. Yarbrough, 151 Wn. App. at 96; State v. Moreno, 173 Wn. App. 479, 495-97, 294 P.3d 812, review denied, 177 Wn.2d 1021 (2013) (gang membership alone and general statements from police organg experts are insufficient; the State must establish a nexus between the crime and the defendant's motivations to benefit a gang). In order for the courtto impose the exceptional sentences requested bythe State, the State was required to show that the defendants committed the assault "withintent to directly orindirectly cause anybenefit, aggrandizement, gain, profit, or other advantage to orfor a criminal street gang[,] its reputation, influence, ormembership." CP at 641; RCW 9.94A.535(3)(aa). Whenwe disregard the improperly admitted Gang Documentation Forms andthe insufficientlyrelevant generalized gang evidence (the evidence unrelated to the elements 42Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
ofthe charged crime, the participants in the charged crime, or the gangs to which they belonged or with which they were associated), sufficient evidence was presented to persuade a rational trier offact beyond a reasonable doubt thatthe gang aggravator applied. In the case ofAnthony and Mr. Robledo, their active gang membership was abundantly demonstratedbytheir statements to Detective Ortiz, their clothing, their gang-related tattoos, the pictures and songs stored on Anthony's cell phone, and Monica Mendoza's testimony. That there was a gang-related motivation for their presence at the Cardenas home and the shooting was sufficiently demonstrated by theirpresence driving in a Surefio neighborhood, past a known Surefio-associated home, with red bandannas tied overthe faces ofoccupants in the car, andtheresponse to Mr. Acevedo's flashing an LVL sign-boththe yelling and then the shots fired. Detective Ortiz provided expert testimony about putting inwork and retaliation sufficientlyrelated to the Nortefio gangs, and potentially explaining these acts, to berelieduponbythe

### jury. While less evidence supported the gang aggravator's application to Ricardo, it was still sufficient. There was the same evidence that there was a gang-related motivation for the men's presence in a Surefio neighborhood and at the Cardenas home, the same evidence ofwhat triggered the violence, the same evidence ofred bandannas being worn, his red shirt with thepicture ofJulian Flores, and the expert testimony ofDetective Ortiz. Although we have concluded in addressing the erroneous admission against Ricardo of his involuntary gang documentation form that a rational trier offact mightnothave found 43Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State 

### v. DeLeon
the gang aggravator against him had that form been excluded, we nonetheless conclude that there was sufficient evidence from which a rational trier offact 

### could fmd the aggravator. Weremand for a trier offact to make that determination. 

### IlL Further Communications-JurorMisconduct A. Denial Of Motion ForA New Trial Based On A Juror's Improper Use Of A TwitterAccount Thejurors took an oath atthe outset ofthe trial below "to well and truly trythis
case according to the evidence and the instructions ofthe Court." RP at 487. The court instructed thejurors, "Youcan't discuss this case in anyregard, your feelings, what the evidence is, nothing." RP at 491. The court's instructions not to discuss the case with outside third parties were repeated throughout the trial and again at the outset of jury deliberations. Three days later,justas thejuryindicated it had reached a verdict, the bailiff providedthe court with a Twitterprintout showing that one ofthejurors hadbeen tweeting communications about the trial during the evidentiary and deliberation phases. Therecord does not disclose when the communications came to light. Many ofthe tweets were cryptic and some were incoherent. They did not discuss case-specific facts, did not contain evidence ofextraneous influence onthejurorinterms ofdeciding the case, and did not suggest a predisposed outcome. Atmost, the tweets show thejurorhad a negative attitude aboutthejustice system, the length of juryserVice,
44

### Nos. 29657-I-III; 29679-2-III; 29691-I-II1 State v. DeLeon


### and the lawyers involved. Several ofthe tweets were explicitlyor implicitly critical of law enforcement: for example (and from earlier to later), "The largest known street gang in the world: Police," "I'mnot against the police. rmjust afraid ofthem-I'mnot afraid ofthem, I'mjustagainst the system they serve," and "It's time to set the record straight that MJ was/is and always has been innocent-I actually believe that now." CP at 645. Afterthe court, the prosecutor, and all three defense lawyers reviewed the printout, the court asked each ofthe lawyers whether there was a need to question thejurorbefore bringing thejuryinto announce the verdict. The prosecutor expressed concern that the jurorhad made the communications, but consideredthe mattermoot since a verdict had apparentlybeenreached. Anthony DeLeon's lawyerwas concernedthat thejurordid not follow the court's instructions. He was also troubled bythe comment possibly suggesting
a score of3 to 9. 8 

### Buthe concluded there was no reason to interview thejuror. Ricardo DeLeon's counsel was likewise concerned that thejurordisregarded the court's "simple and explicit" instructions not to communicate about the trial. Buthe concludedthat the content ofthe communications "doesn'treally say all that much." RP at 2409. He asked that theprintout be made part ofthe record, butwaived any requirement to question the juror. 

### Mr. Robledo's counsel took the same position as Ricardo DeLeon's counsel.

8 

### An October 22, 20

### I0 tweet read, "you fighting the good fight my friend? Good for you!

- There are 2 others as well. ;-) Score 

### 3 : 9 ;-)." CP at 645. 45Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon Having heard out the lawyers, the court decidednot to interview thejuror. Noparty moved for a mistrial at that time. The verdicts were read and thejurypolled. Ricardo DeLeon filed a timely motion for new trial, contending that thejuror committed misconduct and that the court should have investigated thejuror and removed him as unfit when the communications came to light. Mr. Robledo timelyjoinedinthe motion.9 In opposing the motion, the State argued that the defense had made a tactical decision to waive the conduct and receive thejury's verdict. Thetrial court deniedthe motion for a new trial, stating that theTwitter communications were unquestionably misconduct but did not rise to the level thatthe juror should havebeen excused. It attached importance to the facts thatthe tweets were "almost exclusively comments about the system, not about the facts ofthe case," and "[t]here was nothing to suggest in the tweets ... that he was discussing the facts ofthis
case with anybody inparticular." RP (Jan. 20, 2011) at 21. The court also observed the following dilemma that was presentedbythe tenor of the tweets andthe timing oftheirdiscovery: The comments were very clearlynegative towards law enforcement. Clearlythere was no motion to have thisjurorexcused for misconduct atthe time. HadI done so, I would have had to excuse this jurorknowing that he had made comments that wouldbe certainly

9 Anthony DeLeon attemptedtojoinin the new trial motion onNovember22, 2010, whichthe court ruled was too late. His assignment oferrorto ineffective assistance ofcounsel for the tardy attempt atjoinderis addressed 

### infra. 46Nos. 29657-I-III; 29679-2-III; 2969I-I-III State v. DeLeon
construed as favorable to the defense and against the [S]tate. That could havebeen characterized as an abuse ofdiscretion. Id. at 21-22. Mr. Robledo assigns errorto the trial court's denial ofhis motion for a new trial. lO He argues thatjurormisconduct is a basis for mistrial andthat the court's and lawyers' failure to inquire further violated his right to a fair trial. Anthony alluded to a similar argument butprimarily contends his counsel was ineffective for failing to move for a mistrial (addressed infra). Ricardo DeLeon hasjoined in Anthony's arguments in his statement ofadditional grounds. 1. Juror misconduct as basis for a new trial RCW 2.36.110 states that ajudgehas a duty "to excuse from furtherjury service anyjuror, who in the opinion ofthejudge, has manifested unfitness as ajurorbyreason ofbias, prejudice
... orbyreason ofconduct orpractices incompatible with proper and efficientjury service." CrR 6.5 outlines procedures for discharging an unfitjuror after deliberations havebegun andreplacing thejurorwith an alternate. Together, RCW 2.36.110 and CrR 6.5 "place a 'continuous obligation' on the trial court to investigate allegations of jurorunfitness and to excusejurors who are found to beunfit."

10 Although his briefspeaks ofdenying a motion for mistrial, werecognize that he intends to challenge the new trial motion, there having beenno motion for a mistrial based onjurormisconduct. 

### 47

### Nos. 29657-1-III; 29679-2-III; 29691-1-III 

### State v. DeLeon
State v. Elmore, 155 Wn.2d 758, 773, 123 P.3d 72 (2005) (quoting 

### State v. Jorden, 103 Wn. App. 221,227, 11 P.3d 866 (2000». A trialjudgehas broad discretion to conduct an investigation of juryproblems and may investigate accusations of jurormisconduct in the manner most appropriate for a particular case. 

### Elmore, 155 Wn.2d at 773-75; 

### State v. Earl, 142 Wn. App. 768, 775, 177 P.3d 132 (2008). The courtneed not follow any specific format. 

### Jorden, lO3 Wn. App. at 229. In cases involving potential misconduct, however, "thetrialjudge is faced with a 'delicate and complex task,' in that he or she must take care to respectthe principle of jurysecrecy." 

### Elmore, 155 Wn.2d at 761 (quoting 

### United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997». The court's inquiry should not risk violating "the cardinal principlethatjurordeliberations must remain secret." 

### Id. at 770. "Ajuror's communication with a thirdparty about the case constitutes misconduct." 

### See State v. Depaz, 165 Wn.2d 842,859,204 P.3d 217 (2009). Juror misconduct can warrant a mistrial. 

### See State v. Applegate, 147 Wn. App. 166, 175-76, 194 P.3d 1000 (2008). A new trial is warranted onlywherejurormisconduct has prejudiced the defendant, however. 

### Earl, 142 Wn. App. at 774. No published Washington case is cited or found that involves ajuror using social media such as Twitter to communicate to third parties about the case during the trial. A seminal federal case on the topic is 

### United States v. Fumo, 655 F.3d 288 (3rd Cir. 2011). In

### Fumo, ajurormade numerous Facebook and Twitter comments during a five-month 48Nos. 29657-I-III; 29679-2-III; 29691-I-III State v. DeLeon trial, expressing wonder about when various stages ofthe trial would end. When Furno learned ofthe comments he movedto disqualifythejuror. After an in camera hearing that included aninterview ofthejuror, thejudge found that the postings were in violation ofinstructions not to discuss the case with anyone outside thejuryroom, but were "nothing more 

### than harmless ramblings having no prejudicial effect." 

### Id. at 299. The judge further found the comments were vague and virtuallymeaningless in that they raised no specific facts dealing with the trial, and nothing indicated any predisposition toward anyone involved in the suit. 

### Id. at 306. The appellate court agreed andheld that the district court did not abuse its discretion in denying Furno a new trial when no prejudice was shown. 

### Id. at 306-07. The

### Furno court's observations aboutjuroruse ofsocial media are nonetheless apropos: Notunlike ajurorwho speaks with friends orfamily members about a trial before the verdict is returned, ajurorwho comments about a case onthe Internet or social media mayengenderresponses that include extraneous information about the case, orattempts to exercise persuasion and influence. Ifanything, the risk ofsuchprejudicial communication maybe greater when ajurorcomments on a blog or social media website than when she has a discussion about the case in person, given that the universe ofindividuals who are able to see andrespond to a comment on Facebook ora blog is significantly larger. 655 F.3d at 305.



### 49Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
We review a trial court's ruling on a motion for new trial for abuse ofdiscretion. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989). While most trialjudges in most circumstances would (and should) interview ajurorupon learning ofa violation of the court's instructions notto communicate with third parties about a case, we are satisfied thatunderthe particular facts ofthis case, the trial court did not abuse its discretion by deciding not to interview thejurororinvestigate further. It is clearthatthe jurorcommitted misconduct, which the trial courtrecognized. Itconducted investigation to the extent ofobtaining a copy ofthe Twitterprintout after learning ofthejuror's communications. The stronglypredominating theme ofthe tweets-thejuror's negative attitude about thejustice system, the length of jury service, and lawyers-probably did notnecessitate further inquiry. See Commonwealth v. Werner, 81 Mass. App. Ct. 689, 697,967 N.E.2d 159 (2012) (and cases cited therein) ("attitudinal expositions" onjury service, protractedtrials and guilt orinnocence that fall far short ofthe prohibition against extraneous influence do not warrant further inquiry). Andbecause the discovery
came during deliberations-indeed, after a verdict had apparently been reached-inquiry bythe court presented a heightened risk ofupsetting the sanctity ofthejury's deliberations. Forthat reason, and because Messrs. DeLeon and Robledo have demonstrated no prejudice, we find no error.

50Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### Deleon
We reverse the exceptional sentence imposed on Ricardo DeLeon based onthe gang aggravator and remand for a new trial on the aggravator and resentencing. We otherwise affirm. The State's cross appeal is dismissed as abandoned. The remainder ofthis opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. RCW 2.06.040. 

### 2. Ineffective assistance As earlierindicated, Anthony contends his counsel was ineffective for failing to make a mistrial motion and for failing to timelyjoin in his codefendants' motion for a
new trial onthejurormisconduct issue. 

### Mr. Robledo's briefalso alludes to an issue of ineffective assistance ofhis trial lawyer for not insisting on further investigation ofthe juror. To demonstrate ineffective assistance ofcounsel, a defendant mustprove (1) defense counsel's representation fell below an objective standard ofreasonableness and (2) the deficient representation prejudiced the defendant. 

### Stricklandv. 

### Washington, 466 U.S. 668, 104 S. Ct. 2052,80 

### L. Ed. 2d 674 (1984); 

### State v. 

### McFarland, 127 Wn.2d 322,334-35,899 P.2d 1251 (1995). Since bothprongs are required, there is
no reason for a court addressing an ineffective assistance claim to address both the performance and prejudice prongs ifthe defendant makes an insufficient showing on one. 

### Strickland, 466 U.S. at 697. We stronglypresume that defense counsel's representation
was effective. 

### McFarland, 127 Wn.2d at 335. Reasonable trial tactics are not deficient 51Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon perfonnance and do not support an ineffective assistance claim. 

### State v. 

### Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Here, it is apparent that the defense lawyers elected to gamble onthe verdict-an entirely reasonable strategy when several tweets showed thejuror's displeasure with the justice system and police, and one tweet (albeit cryptic) could be interpreted to suggest thejurywas at one point deadlocked one way or the other at 3 votes to 9. Given the substance ofthe tweets, for the defense lawyers to forgo further investigation was legitimate trial strategy. AndAnthony suffered no prejudice from counsel's failure to timelyjoin in the new trial motion when no new prejudicial circumstances came to light. 

### IV. AdditionalIssues RaisedByAnthonyDeLeon A. Did The Trial CourtAbuseIts Discretion In DenyingBifurcation OfTrial On The Gang Aggravator? Anthony DeLeon's argument challenging the exceptional sentences imposed bythe court include an additional contention that the court erred in refusing to bifurcate the trial ofthe assault charges from the gang aggravator. "Bifurcation is inappropriate ifa 

### unitary trial would not significantly prejudice the defendant or ifthere is a substantial overlap between evidence relevant to the proposed separate proceedings." 

### State v. 

### Monschke, 133 Wn. App. 313,335, 135 P.3d 966 (2006). The court's bifurcation decision is reviewed for abuse ofdiscretion. 

### Id.; State v. 

### Roswell, 165 Wn.2d 186, 192, 196 P.3d 705

52

### Nos. 29657-1-III; 29679-2-III; 29691-1-II1 State v. 

### DeLeon 

### (2008). The court abuses its discretion only when its decision is manifestly unreasonable
orbased on untenable grounds. Junker, 

### 79 Wn.2d at 26. At the outset oftrial, the court denied the defense request to bifurcate, reasoning that thejurywould consider all ofthe gang evidence for motive purposes during the trial and the evidence wouldbe the same with respect to the aggravator. Thus, there would be
no prejudice in keeping the proceeding unitary. The defendants renewed their request for bifurcation during the instruction conference and the court adhered to its earlier decision. Otherthan arguing that no evidence supports the aggravating factor, Mr. DeLeon offers
no analysis to support his abuse ofdiscretion claim. The court's decision to deny bifurcation was a tenable exercise ofdiscretion. B. Did The Trial Court's Instruction On Transforred IntentMisstate The Law? 

### Citing to the dissenting opinion in State 

### v. Elmi, 

### Mr. DeLeon argues that for purposes ofa criminal assault "[t]here must be an actual intention to cause apprehension, 

### unless there exists the morally worse intention to cause bodily harm." State v. 

### Elmi, 

### 166 Wn.2d 209,223,207 P.3d 439 (2009) (Madsen, J., 

### dissenting). He argues that the State's evidence ofthe required specific intent to cause apprehension orbodily harm to Mr. Lopez and Mr. Acevedo was weak, since Mr. Lopez was only emerging from the house when the gunfire started, Mr. Acevedo ducked down behind a parked car when he
saw a gun, 

### and the State presented no evidence ofwhere the bullets hit in relation to Mr.
53Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
Acevedo. Mr. DeLeon argues that it was onlythrough instruction 16, II which he argues is anincorrect statement ofthe law, the State was able to satisfy the required element of intent for the counts relating to Mr. Lopez and Mr. Acevedo, byrelying onproofofa transferred specific intent to cause bodily harm to 

### Mr. Cardenas. In

### Elmi, a defendant who shot into his estranged wife's house was convicted not only ofattempted fITst degree murder against his wife, but also offirst degree assault against childrenwho were present inthe house during the shooting. The courtrejected Elmi's argument that the State was requiredto prove he hadthe specific intent to assault the children. The court heldby a 6 to 3 majority that when a person shoots into a building intending to 

### harm a certain occupant, this intent transfers underthe assault statute to any victims who were unintentionallyharmed orput in apprehension ofharm. 

### Elmi, 166 Wn.2d at 218. The court explained that RCW 9A.36.011 "encompasses transferred intent" and decided the issue based onthe statute, not on the common law doctrine of transferred intent. All that remained to beproved was that the uninjured, unintended victims hadbeenputin apprehension ofharm. Applying 

### Elmi, then, whether ornot the

II Instruction 16 provided: Ifa person acts with intent to assault another, butassaults a third person, the actor is deemedto have acted with intent to assaultthe third person. The unintended victims do not need to bephysically injured and the defendant need notknow oftheirpresence. CP at 627. 54Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
shooter in the Taurus knew that Mr. Lopez and Mr. Acevedo were present orintended hannto each ofthem is ofno moment, as long as the State proved the defendants' intent to inflict great bodily hann on one person. Mr. DeLeon urges this court to adopt the position ofthe dissentingjustices in Elmi, who would have held that transferred intent should apply only to those assaults in which there is an actual battery against an unintended victim, orwhen there is proofthat the shooter actually intended to cause apprehension in unhanned victims. But we maynot disregard directly controlling authority ofour Supreme Court in favor ofa dissenting opinion that Mr. DeLeonbelieves is betterreasoned. See 1000 Virginia Ltd. P 'ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 P.3d 423 (2006); MPMed. Inc. v. Wegman, 151 Wn. App. 409, 417,213 P.3d 931 (2009). C. IneffectiveAssistance Of Counsel Anthony DeLeon makes additional claims that his lawyer was ineffective for: (1) failure to request a lesser degree instruction on second degree assault, (2) failure to recognize a venue problem, and (3) failure to recall and conduct cross-examination of Monica Mendoza. We address the claims intum. 1. Failure to request a lesser degree instruction Mr. DeLeon argues that because second degree assault is a lesser degree offense of ftrst degree assault, and because (according to him) the two methods ofcommitting
55Nos. 29657-1-III; 29679-2-III; 29691-1-III State 

### v. DeLeon
second degree assaultprovidedby RCW 9A.36.021(l)(c) and (e) could have applied to counts 2 and 3 (charging him with fIrst degree assault ofMessrs. Acevedo and Lopez), his lawyer was ineffective for failing to request such instruction. UnderRCW 10.61.003, a criminal defendant canbe found guilty ofa crimethat is
an inferiordegree ofthe crime charged. A defendant is entitled to a lesser degree offense instruction if "( 1) the statutes for boththe charged offense and the proposed inferior degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree ofthe charged offense; and (3) there is evidence that the defendant committed only the inferior offense." State v. Fernandez-Medina, 141 Wn.2d448,454,6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d 885,891,948 P.2d 381 (1997)). The fIrst two factors are the legal components ofthe test, while the third factor entails a factual inquiry. Id. at454-55. "Everydegree ofassault is a lesser included offense ofall higher degrees of assault," so Mr. DeLeonreadily satisfIes the legal component ofthe test. State v. Foster, 91 Wn.2d 466,472,589 P.2d 789 (1979). The focus is on the factual component, i.e., whetherthere is evidence that, as to counts 2 and 3, Mr. DeLeon, as a principal or accomplice, committed only second degree assault under eitherRCW 9A.36.021(l)(c) or (e). The factual component ofthe inferior degree offense test requires a factual showing supporting the lesser crime that must be "more particularized than that required 56Nos. 29657-1-III; 29679-2-III; 29691-1-III State v. DeLeon
for otherjuryinstructions." Fernandez-Medina, 141 Wn.2d at455. "[T]he evidence mustraise an inference that only the lesser included/inferior degree offense was committed to the exclusion ofthe charged offense." Id. "Whendetennining ifthe evidence attrial was sufficient to support the giving ofan instruction, the appellate court is to view the supporting evidence in the light most favorable to the party that requested the instruction." Id. at 455-56. But "the evidence must affinnatively establish the defendant's theory ofthe case-itis not enough that thejurymight disbelieve the evidence pointing to guilt." Id. (citing State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990), overruled on othergrounds 

### byState v. Blair, 117 Wn.2d 479,816 P.2d 718 (1991)). Mr. DeLeon first contends that his lawyer overlooked the fact that second degree assault under RCW 9A.36.021(1)(e) would allow for a lesser degree instruction. Inthe
case ofsubsection .021 (1)( e), this required that there was evidence from which thejury could find that Mr. Lopez andMr. Acevedo were "with intent to commit a felony, assault[ed]," "undercircumstances not amounting to first degree assault." Mr. DeLeon contends there was evidence from whichthejury could find that the two men were assaulted (apprehended harm) during a felony drive-by shooting. RCW 9A.36.045(l). He argues that subsection .021(1)(e) places no limitation on which felonies can serve as thepredicate offense for a second degree assault.

57

### Nos. 29657-1-III; 29679-2-III; 29691-1-II1 State v. DeLeon


### The State dismisses the argument out ofhand, based on what it perceives to have been the trial court's reason for refusing to instruct the

### juryon drive-by shooting itself 

### as
a lesser included offense offirst degree assault: the different states ofmindrequired for the two offenses. 

### Itcontends that "the element ofrecklessness remains in the crime of drive-by shooting, so second degree assault based upon RCW 9A.36.021(1)(e) could no
more be a lesser included offense than drive-by shooting byitself." Br. ofResp't at 20. But State 

### v. Ferreira, 

### 69 Wn. App. 465,470,850 P.2d 541 (1993), on which the court relied in concluding that drive-by shooting (formerly called reckless endangerment)
was not a lesser included offense ofassault, cannotreasonably be read to turn onthe fact that assault is an intentional crime and drive-by shooting requires recklessness. See 

### RCW 9A.08.010(2) (providing that when a statute provides that when recklessness suffices to establish an element, such element is also established ifa person acts intentionally); cf. State v. Grier, 

### 171 Wn.2d 17,42,246 P.3d 1260 (2011) (holding that the Court ofAppeals, in State v. Grier, 

### 150 Wn. App. 619,635,208 P.3d 1221 (2009), correctly analyzed the legal prong ofthe Workman 12 

### test in concluding that the elements ofmanslaughter are necessary elements ofintentional second degree murder). Rather, Ferreira 

### appears to have turned onthe distinct drive-by shooting elements of, e.g.,

12 State v. Workman, 

### 90 Wn.2d 443,584 P.2d 382 (1978). 58Nos. 29657-I-III; 29679-2-III; 2969I-I-III State v. DeLeon proximity to a motorvehicle. The State's dismissive treatment turns on a flawed assumption aboutFerreira. Nonetheless, when we applythe factual component, there is no affirmative evidence thatraises an inference that only the inferior degree offense was committedto the exclusion ofthe charged offense-andit is because ofthe samebroadtransfer of intent encompassed by RCW 9A.36.011 to which Mr. DeLeon so vigorously objects as a matter of juryinstruction. The evidence presented, viewed in the light most favorable to Mr. DeLeon, was that passengers in a Taurus automobile fired nine shots into the area in front ofthe Cardenas home where Mr. Cardenas, Mr. Acevedo, and Mr. Lopez were standing. While there was some evidence that would affirmatively establish that Mr. DeLeon and the other defendants were not involved in the crime at all, there was no evidence that would raise an inference that ifMr. DeLeon was involved, he committed onlydrive-by shooting, to the exclusion offirst degree assault. Given Mr. DeLeon's more narrow view ofwhat is legitimate transferred intent, he wouldpresumably point to affirmative evidence of, e.g., darkness, limitedvisibility, where the bullets struck and Mr. Lopez's emergence from the homejustas shots were fired, and cite that as affirmative evidence that the shooters might not have been able to
see Mr. Lopez and Mr. Acevedo and might not have been shooting at them. But as construed inElmi, that evidence would not have preventedthejuryfrom finding the defendants guilty offirst degree assault ofthose victims. 59

### Nos. 29657-l-III; 29679-2-III; 2969l-l-III 

### State v. 

### DeLeon
Mr. DeLeon also contends that his lawyer failed to recognize that second degree assault under RCW 9A.36.02l(l)(c) would allow for a lesser degree instruction. Inthe
case ofsubsection .021 (1)(c), this required that there was evidence from which thejury could find that Mr. Lopez and Mr. Acevedo were assaulted with a deadly weapon "under circumstances not amounting to first degree assault." This argument is even more clearly based onMr. DeLeon's beliefthat, contraryto 

### Elmi's construction ofRCW 9A.36.0ll, proofoffirst degree assault ofan uninjured victim requires proofofan actual intent to
cause apprehension and fear ofbodily injury to, orto inflict bodily harm upon, that uninjured victim. Mr. DeLeon argues, citing 

### State v. 

### Adlington-Kelly, 95 Wn.2d 917, 924, 631 P.2d 954 (1981), that it is notthe presence ofa firearm that elevates an assault from second degree to first degree assault, but the specific intent to inflict great bodilyharm or death. He argues that that specific intent cannotbepresumedbut maybe inferred as a logical probability from all the facts and circumstances, citing 

### State v. 

### Wilson, 125 Wn.2d 212, 217,883 P.2d 320 (1994), and that specific intent is the intent to produce a specific result,
as opposed to intent to do the physical actthat produces the result. 

### State v. 

### Esters, 84 Wn. App. 180, 184,927 P.2d 1140 (1996). Fromthis he argues that for counts 2 and 3 the State was required to prove an actual intent to inflict bodily harm upon Acevedo and Lopez orto create apprehension intheirminds.

60

### Nos. 29657-1-111; 29679-2-111; 29691-1-111 State 

### v. DeLeon 

### Here, too, Mr. DeLeon disregards the majority opinion in Elmi, 

### under which the required intentto inflict greatbodily hann on one victim transfers to others who apprehend hann, even ifthe shooter does not see those victims. Applying the factual test, and given the testimony ofMessrs. Acevedo and Lopez that they experienced apprehension ofbeing wounded, the evidence does notraise an inference that only the inferior degree offense ofsecond degree assault was committed to the exclusion offIrst degree assault. Mr. DeLeon's lawyer did not perform defIciently by not requesting a second degree assault instruction. 2. Failure to timely challenge venue 

### Mr. DeLeon next contends that his trial lawyer was ineffective for failing to timely raise a venue challenge on the eluding count. A criminal defendant has a constitutional right to be tried by ajury "ofthe county in which the offense is charged to have been committed." WASH. CONST. art. 

### I, § 

### 11. CrR 5.1(a) requires that all actions be commenced in the county where the offense was committed, or in 

### any county where an element ofthe offense was committed or occurred. CrR 5.I(b) provides that "[w]hen there is reasonable doubt whether an offense has been committed in one oftwo or more counties, the action may be commenced in any such county."



### 61Nos. 29657-1-III; 29679-2-III; 29691-1-II1 

### State v. 

### DeLeon
"Venue is not an element ofacrime." 

### State v. 

### Pejsa, 75 Wn. App. 139, 145, 876 P.2d 963 (1994). Rather, it is a constitutional right that is waived ifnot asserted in timely fashion. 

### Id. (citing 

### State v. 

### McCorkell, 63 Wn. App. 798, 822 P.2d 795 (1992». Generally, a defendant waives a challenge to venue by failing to present itbeforejeopardy attaches, i.e., before thejuryis sworn in ajurytrial. 

### McCorkell, 63 Wn. App. at 801. 

### An exceptionmay arise ifthe evidence produced at trial raises a venue issue for the first time. 

### State v. 

### Dent, 123 Wn.2d 467,480,869 P.2d 392 (1994). The defendant must thenraise the issue at the end ofthe State's case and ifthe evidencereveals a genuine issue offact about venue, it becomes a question for thejuryto determine by a preponderance ofthe evidence. 

### Id. A couple ofweeks into trial, and as the State was nearing the close ofits case, Mr. DeLeonmoved for dismissal ofthe eluding count for lack ofvenue, explaining that it had beenbrought to his attention that testimony ofState witnesses suggested "thatthe entire eluding incident from thetime that the lights came on ... happened entirelyin Benton County." RP at 1850. The court denied the motion as untimelybecause a police report provided to the defense indiscovery indicated the chase might havebegun at milepost 75.5-just overthe Benton County line-therebyputting Mr. DeLeon on notice ofa
venue issue beforejeopardy attached. Mr. DeLeonnow argues that because his lawyer was on notice ofthe venue issue and failed to raise a timely challenge to venue, he was ineffective. The Stateresponds in 62Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon part, and correctly, that there is conflicting evidence whetherthe offense was committed only in Benton County. Trial testimony revealed that the dividing line for Yakima and Benton Counties on Interstate 82 is at milepost 75.25; that Grandview Officers Martin and Chilson activated the lights and sirens at about milepost 75.5, which isjust overthe Benton County line; that Prosser and Sunnyside units were also involved inthe chase; that Officer Martin testified thatjustbefore he activated his lights, a Sunnyside officer blewbywith its lights engaged at milepost 75; andthat Grandview OfficerBarnett's testimony indicates thatthe Sunnyside officer with lights engaged had already passedhim before milepost 75. As previously discussed, a defendant alleging ineffective assistance ofcounsel must demonstrate both the deficient performance ofhis lawyer and prejudice, and we need not address both theperformance and prejudice prongs ifthe defendant makes a deficient showing onone. In this instance, Mr. DeLeon cannot demonstrate prejudicethis issue ofdisputed fact would have been submittedto thejury, which couldhave resolved it eitherway. 

### 3. Failure to recall witnessMonica Mendoza Finally, Mr. DeLeon contends that the defense theorythat the defendants were misidentified was underminedbythe fact that his lawyer neverrecalled Monica Mendoza to the stand for cross-examination after her direct testimony was completed. Her

63Nos. 29657-I-III; 29679-2-III; 29691-I-II1 

### State v. 

### DeLeon

statements to investigating officers hadbeen inconsistent, and Mr. DeLeon argues that there was no legitimate reason not to subjectherto cross-examination. During Monica's direct testimony (in which she positively identified Anthony and Mr. Robledo as occupants ofthe car from which the gunshots were fired at the Cardenas home), thejudge allowedher to leave court to pickup her children from school, but did not excuse her as a witness, expressly contemplating that she wouldreturn on another day to finish anyfurther direct testimony andthen be subject to cross-examination. She did not return for further testimony. The record is silent as to why. For defense purposes, officers and detectives to whom Monica hadprovided statements had testified andbeen cross-examined, and during closing argument, Anthony's lawyer was able to argue that during the course ofthe investigation, Monica gave inconsistent statements about the number and identity ofthe occupants ofthe Taurus and could notkeep her story straight. He also arguedthat the onlypeople who identifiedthe defendants were L VL-affiliated individuals who had motive to accuse Nortenos, even ifuntruthfully. Not only does Mr. DeLeon fail to show thathe was prejudicedbyan omission of his lawyer (that his lawyer couldhave procuredMonica's further attendance and damaging testimony notpresented in her direct examination), but he fails to demonstrate that his lawyer's decision not to subject Monica to further examination was nottactical. Since Monica's inconsistency could beprovedthrough other witnesses, Mr. DeLeon's 64Nos. 29657-I-III; 29679-2-III; 29691-I-II1 

### State v. 

### DeLeon lawyer might reasonably have concluded that cross-examining Monica would, at best, provide only cumulative evidence ofherinconsistency and, at worst, could give her a chance to explainherself. In short, inviting Monica to testify further might have presentedmore downside thanupside for Mr. DeLeon. Here again, Mr. DeLeon's ineffective assistance claim fails. 

### D. SentencingIssues 1. Firearm enhancement The trial court doubled Anthony DeLeon's ftrearm enhancement, relying on RCW 9.94A.533(3)(d)13 and a representation bythe State-apresumed agreementby Mr. DeLeon-that a 1997 manslaughter conviction ofMr. DeLeon included a ftrearm enhancement. Nothing inthe record shows that the State produced the 1997 manslaughterjudgment and sentence during the sentencing proceedings. At issue is whether the State's proofofthejudgment and sentence was required. At sentencing, the State bears the burden ofproving prior convictions by a preponderance ofthe evidence. 

### State v. 

### Mendoza, 165 Wn.2d 913,920,205 P.3d 113 (2009). To meet this burden, the State must ftrst produce "evidence ofsome kind" bearing "minimum indicia ofreliability" that supports "the alleged criminal history."

13 The statute provides inpertinent part that ifan offender is being sentenced for any ftrearm enhancements "andthe offender has previouslybeen sentenced for any deadly weapon enhancements after July 23, 1995
... all ftrearm enhancements underthis subsection shall be twice the amount ofthe enhancement listed." RCW 9.94A.533(3)(d). 65Nos. 29657-I-III; 29679-2-III; 2969l-l-III 

### State 

### v. DeLeon
State v. 

### Ford, 137 Wn.2d 472,480-81, 973 P.2d 452 (1999). "Thebest evidence ofa prior conviction is a certified copy ofthejudgment." 

### Id. at 480. A defendant, may, however, affirmatively acknowledge his criminal history and thereby obviate the need for the State to produce evidence. 

### Mendoza, 165 Wn.2d at 920. With regard to what suffices as an acknowledgment, 

### Mendoza emphasizes the need for an 

### affirmative acknowledgment bythe defendant of 

### facts and information introduced for the purposes ofsentencing. The mere failure to object to a prosecutor's assertions ofcriminal history does not constitute such an acknowledgment. Nor is a defendant deemed to have affmnatively acknowledged the prosecutor's asserted criminal history based onhis agreement with the ultimate sentencing recommendation. 165 Wn.2d at 928 (citations and footnote omitted). The State explained in its sentencing memorandumthat under RCW 9.94A.533(3)(d), 

### Mr. DeLeon's three firearm enhancements must be doubled from 60 to 120 months because hehad a priormanslaughter conviction with a firearm enhancement. Mr. DeLeon acknowledged inhis sentencing memorandum that he was convicted ofmanslaughter inthe shooting death ofa friend and that his current firearm enhancements were thus 120 months each. He argued under a same criminal conduct analysis that he shouldreceive only one doubled enhancement of 120 months. The parties maintained these positions during the sentencing hearing. Where the State explained that the 120-month enhancement requested was based
on doubling in light ofa prior manslaughter conviction with a firearm enhancement and
66Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon
Mr. DeLeon's response acknowledgedboththe manslaughter conviction and that one resulting l20-month enhancement doubled figure was appropriate, this reflects an affmnative acknowledgement bythe defense offacts andinformation. No resentencing is required. 

### 2. Community custody conditions Mr. DeLeon challenges two conditions ofcommunity custody imposedbythe court: (1) wearno clothing associated with or signifying membership in a criminal street gang and (2) do not obtain anynew tattoos, brands, burns, piercings orany voluntary scarring related to gang membership or association. Relying on

### State v. 

### Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008), he contends the conditions are overlybroad and invade his First Amendmentrights ofassociation and freedoms ofspeech and expresslOn. The Sentencing Reform Act of 1981, chapter 9.94A RCW, empowers trial courts to impose "crime-relatedprohibitions" during the course ofcommunity custody. RCW 9.94A.703(3)(f); RCW 9.94A.505(8). A "crime-relatedprohibition" is "anorder ofa courtprohibiting conduct that directly relates to the circumstances ofthe crime for which the offender has been convicted." RCW 9.94A.030(10). Crime-related prohibitions are reviewed for abuse ofdiscretion. 

### State v. 

### Riley, 121 Wn.2d 22,37, 846 P.2d 1365 (1993).

67Nos. 29657-l-III; 29679-2-III; 2969l-l-II1 

### State v. DeLeon
To avoid running afoul ofthe due process protection against vagueness, sentencing conditions must adequately infonnthe offender ofwhat conduct they either require orproscribe. 

### Statev. Sanchez Valencia, 169 Wn.2d 782,791,239 P.3d 1059 

### (2010); Bahl, 164 Wn.2d at 752. Under Washington law, conditions that restrict First Amendmentrights are permissible ifthey are "sensitively imposed" and are reasonably necessary to accomplish the essential state needs and public order. 

### Id. at 757-58. "This meshes with the vagueness doctrine's principle that where the challenged law involves First Amendment rights, a greater degree ofspecificity may be demanded." 

### Id. at 757. Here, the community custodyprohibitions are sufficiently crime related. The prohibitions onlyrestrict clothing andtattoos or markings that signify gang membership
orassociation. They do not prohibit 

### Mr. DeLeon from wearing any particular color or item ofclothing so long as the item does not also signify membership or association in a criminal street gang. He is not prohibited from obtaining a tattoo or marking, so long as it does not relate to gang association or membership. The conditions adequately infonn him ofconduct that the trial court agreed were crime related and reasonably necessary to protectthe public orderbyrestricting criminal street gang activity. STATEMENTS OF ADDITIONAL GROUNDS Each defendant filed a pro se statement ofadditional grounds (SAG).

68Nos. 29657-I-III; 29679-2-III; 29691-I-II1 State v. DeLeon
Ricardo DeLeon SAG Ricardo DeLeon raises the same issues inhis SAG that counsel for Anthony DeLeonraised on appeal, through photocopied pages ofthebrieffiled byAnthony's lawyer. But for the ineffective assistance ofcounsel claim based on the venue issue, which Ricardo DeLeon has no standing to make, all ofRicardo's SAG issues abide the analysis and outcome ofthe issues raised byAnthony's counsel. Anthony DeLeon SAG Anthony DeLeon contends: 

### 1. The State violatedBrady v. Maryland, 373 U.S. 83, 83 

### S. Ct. 1194, 10L. Ed. 2d215 (1963), by failing to disclose material exculpatory evidence proving that apriorshooting at the Cardenas home and theMay 

### 9 shooting were Surefio on Surefio retaliation rather than Nortefio on Surefio shootings. 

### Mr. DeLeon's lawyermade a motion for Brady material after learning thatAngelo Lopez had recentlybeen charged as ajuvenile with a gang-related fIrst degree assault, but
was allowed to plead to a misdemeanor. There had beentwo shootings on May 2-one in Grandview andthe other atthe Cardenas home in Sunnyside. The State believedthat the defendants in this case had also perpetrated the May 2 shooting at the Cardenas home because the shell casings matched and the May9 shootings were from the same gun. Policereports apparently indicated that the two May 2 shootings were also connected. Defense lawyers sought discovery ofall police reports and agreements as to whyMr.

69Nos. 29657-I-III; 29679-2-III; 2969I-I-III 

### State v. DeLeon Lopez was allowed to pleadto a misdemeanor, suspecting that the Surefios were involved in both the May 2 and 9 shootings. The Stateprovided discoveryrevealing there hadbeen a fight on May 2 in Grandview betweentwo Surefio sects, whichthe defense theorized could be exculpatory. Mr. DeLeon claims nondisclosure by the State that (I) Mr. Lopez had a prior gang-related first degree assault charge and (2) police reports ofthe May 2 and May 9 shootings showed that the shell casings matched and were fired from the same gun. But there is no indication intherecord that the State failed to disclose any pertinent exculpatory evidence. In fact, the State sought to offer evidence that the shell casings from the two shootings atthe Cardenas home matched, but the trial court agreed with defense objections that the evidence was notrelevant. Mr. DeLeon cites to no 

### evidence to support his theorythat the May 9 shooting was Surefio retaliation. 

### 2. The trial court violated his constitutional right topresenta defense when it ruledthat his lawyer, in openingstatement, couldnot refer to a Sunnyside newspaper articlepublishedshortly afterMay 

### 9 that identifiedthe three defendants as suspects. Mr. DeLeon soughtto refer to Sunnyside and Grandview newspaper articles in opening statement as support for the theory that, because Monica Mendoza did not initially identify him as an occupant ofthe car, it was the articles that had ledherto identify him later, thus undermining the credibility ofthat later identification. The court ruled there was no foundation for allowing reference to the articles in opening statement
70Nos. 29657-1-111; 29679-2-111; 29691-1-111 State v. DeLeon
because there was no evidence Ms. Mendoza everread the articles. Itruled that admissibility issues couldbe revisited ifevidence was presented that she read the articles. Given lack offoundation, there was no error. 3. The trial court violated his right to bepresent at allcriticalstages, as well as hispublic trial rights, when it answeredajury inquiry during deliberations without escorting him to the courtroom. During deliberations, thejury asked to listen to Mr. Barajas's call on the 911 tape. The court and counsel agreed as to what wouldbeplayed for thejury and how, and the court then answered "yes" to thejury'srequest. Three days later, after thejuryhad apparentlyreached a verdict, the bailiffreported that atthe time he played the tape,jurors had asked himwhat time the Barajas call came in and heprovided an erroneous answer. Upon that disclosure, Mr. DeLeon's lawyer stated that his client asked that thejurybe toldthe correct time ofthe Barajas call. The lawyer also asked that thejurybe told the correct time before the verdict was returned in case it would change anything in the verdict. The lawyers all agreed andthe court provided thejurywith written, corrective information. The bailifflaterreported that thejurywas aware ofthe discrepancy andhad indicated its verdict was**unchanged~apparently** a reference to the 911 calL Mr. DeLeon argues that the timing ofthe 911 call was critical to thejury's understanding ofwhere the Taurus was during the shooting, that his attorney was notified ofthebailiffs discrepancybuthe was not, andthat hehad a constitutional right to influencethe response to thejuryand to participate inthis critical stage. 71Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon
The record is clear that 

### Mr. DeLeon was apprised ofthe problem, discussed it with counsel, and that the court took the action that Mr. DeLeonrequested. He was afforded the opportunityto comment upon an appropriate response, as contemplatedby erR 6.15(f). He gives no indication what his physical presence would have added to the discussion. The court's written explanation to thejurycorrected the error, which was not prejudicial in any event. 

### Ifany error was made 

### innot securing Mr. DeLeon's personal presence, it was harmless beyond a reasonable doubt. 

### See State v. 

### Irby, 170 Wn.2d 874, 885,246 P3d796 (2011) (violation ofright to be present at trial is subject to harmless
error analysis). Theprocedure also did not violate 

### Mr. DeLeon's public trial right. 

### See State v. 

### Sublett, 176 Wn.2d 58, 75-77, 292 P3d715 (20 12) (underthe "experience and logic" test, in-chambers conference with counsel only to discuss ajury question seeking clarification ofajuryinstruction did not implicate the right to a public trial). 

### 4. The imposition of multiple firearm enhancements for the first degree assaults violates doublejeopardy. Washington courts have repeatedly rejected such challenges under the coextensive federal and state doublejeopardy clauses. 

### See, e.g., State v. 

### Kelley, 168 Wn.2d 72, 77-78,83,226 P3d773 (2010) (multiple firearm enhancements do not violate double

72Nos. 29657-l-III; 29679-2-III; 2969l-1-III 

### State v. 

### DeLeon jeopardywhen the legislature clearly intended that cumulative punishments maybe imposed for the same act or conduct in the sameproceeding); 

### State v. 

### Aguirre, 168 Wn.2d 350,366-67,229 P.3d 669 (2010) (doublejeopardynot offendedbyweapon enhancements evenwhenbeing armed with weapon is element ofunderlying crime). Octavio Robledo SAG Octavio Robledo contends: 

### 1. The court abused its discretion by not bifurcating the gangaggravator. This contention madebyAnthony DeLeon's counsel has been addressed, 

### supra. There was no abuse ofdiscretion. 

### 2. Apretrialdefense motionfor change of venue based onpretrialpublicity shouldhave been granted. Through voir dire about gangs andotherwise, the jurypoolwas tainted by fear of gang retaliation, to thepoint that many jurors refused to serve. Oneprospective juror (Mr: Mow) talkedabout gangbangers in Yakima County having no regard for human life, implying that allgang members are allguilty. The record shows that the court and counsel questioned prospectivejurorMow outside the presence ofotherjurors. He was excused for cause. The record contains no indication that Mr. Mow influenced other members ofthejurypool. Mr. Robledo's claimthat thejurors servedunder a cloud ofretaliation fmds no support in the record. The court didnot abuse its discretion in maintaining venue inYakima County. 

### See State v. 

### Crudup, 11 Wn. App. 583, 586,524P.2d479 (1974).

73

# i 

# I I , Nos. 29657-I-III; 29679-2-III; 29691-I-II1 I 

### State v. DeLeon 

# I I I 3. and 4. 

### The defense motion to sever the defendantsfor separate trials should have been granteddue to theprejudicial hearsay from nontestifying 

# I
1, 

### codefendants in violation of Bruton, 

### and the obtainingof the defendants' jail bookingstatements in violation of Miranda 

### He was denied effective cross­ examination of nontestifying codefendants. 

# I t These issues were raised bycounsel and have been addressed, 

### supra. Severance 

## I l t was notrequired when the court instructed thejurythat it mayconsider a statement made out ofcourt by one defendant as evidence againstthat defendant, butnot as evidence against another defendant. 

### 5. Mr. Robledo raises the same Brady issue asAnthonyDeLeon'sSAG issue 1. His conc1usory allegations are unsupportedbyany evidence. 

### 6. He was denied effective assistance of counsel because his lawyer did not present the expert eyewitness testimony of Dr. GeoffreyLoftus, whom Anthony DeLeon's lawyer sought to offer as an expert on eyewitness identification and memory to support the theory thatMonica Mendoza misidentifiedAnthony as beingpresent in the Taurus. Mr. Robledo's lawyerjoinedin the effort topresent Dr. Loftus on behalfofhis client. The State opposed the Loftus testimony as unhelpful to the trier offact because Dr. Loftus's research is not focused on acquaintance identifications (which are rarely suspect), and the proposed expert testimony was notbeyondthe common sense of jurors. The court agreed with the State, but ruled that ifrelevant evidence was introduced attrial thatMs. Mendoza acquired post-event information potentially affecting her identification, then Dr. Loftus could testify as to whetherthat information could have affected herperception and memory so as to create a misidentification. The court also 74Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon
statedthat ifthe evidence was introduced and Dr. Loftus's testimony became relevant, it would be the defendants' obligationto procure his attendance attrial. No new informationrelevant to Ms. Mendoza's identification was presented during trial. There was no cause for Mr. Robledo's counsel to call Dr. Loftus. 

### 7. Theprosecutor committedmisconduct and illegally obtainedevidence (the photo of Mr. Robledo's handshowing the Huelga birdtattoo) by not filing a motion under erR 4. 

### 7(b)(2)

### (iv), and insteadgoing to a differentjudge and obtaining a search warrant to obtain thephoto. Suppression of thephoto was required. erR4.7(b)(2) provides: Notwithstanding the initiation of judicialproceedings, and subject to constitutional limitations, the court on motion ofthe prosecuting attorney or the defendant, may require or allow the defendant to (iv) pose for photographs not involving reenactment ofthe crime charged. Mr. Robledo's lawyerraised this issue priorto trial, contending thephoto should have been sought through the discoveryprocess, butmade no claimthat thephoto was invalidly obtainedpursuant to the search warrant. Theprosecutor argued that either
avenue was proper. The court ruled the photo admissible. The courtrule affords one method ofseeking inspection ofevidence in defendant's possession, but does not preclude the State from using othermethods such as
a searchwarrant to obtain access to evidence. There is no showing oferror orprosecutor misconduct.
75

### i ! i

# I

, !

# I Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon 

## I 8. The court's denial of the defense motion in limine to limit/suppress the gang evidence deniedhim a fair trial. 

# I ! This issue has been addressed, 

### supra. J 

### 9. The defendants were repeatedly ambushed with late allowedevidence, 

# I violating theirdueprocess rights because they were forced to choose between

## ~ speedy trial rights andhaving adequate investigation. Theproduction of last 

## t minute 911 

### tapes forced the openingstatement to be reserved. I, t Anthony DeLeon's lawyer reserved his opening statementuntil after the State's 

# I
case, butthis hadno effect onMr. Robledo, whose lawyer gave his opening statement at 

# I the outset oftrial. Mr. Robledo's several other citations to the record generallyreflect 

# I defense objections to evidence for the State's allegedlyuntimely disclosure, butnone of 

### I the citations support his claim oftrial by ambush orbeing forced into a Hobson's choice. 

# I 10. AllowingDetective Ortiz to sit at theprosecutor's table as lead 

### • I 

### investigatorlfact witness andalso testify as the State's gang expert unduly i 

### enhancedhis credibility thereby denying the defendants a fair trial. 

# I The defendants all raised this issue pretrial, contending that allowing Detective 

# I Ortiz to testify as an expert would givehimunmerited credibility and destroythe 

# I

l I legitimacy ofall his testimony. They argued that any expert gang testimony shouldbe 

## i ! 

# I , ! allowed onlyfrom a nonfactwitness, citing

### State v. 

### McDaniel, 155 Wn. App. 829, 848­ i 49,230 P.3d 245 (2010) and 

### United States v. 

### Mejia, 545 F.3d 179 (2d Cir. 2008). ; 

### I**~** 

### McDaniel and

### Mejia were both cases in which convictions were reversed on confrontation clause grounds after a police officer testified not only as an expert, but also

76Nos. 29657-I-III; 29679-2-III; 29691-I-III 

### State v. 

### DeLeon about, orbased on, particular facts stemming from inadmissible hearsaythat related to the defendants' crimes. The trial court ruled that Detective Ortiz could testify as both a fact witness and as
an expert on gang culture, but that, consistent with

### McDaniel, he could not use hearsay from otherwitnesses as a basis for an opinion that the defendants were involved in a gang
orthat they had committedthese crimes. The cases do not otherwisepreclude a fact witness from also testifying as an expert. Mr. Robledo does not pointto anytestimony by Detective Ortiz that strayed from the trial court's ruling and wouldbe precludedby 

### McDaniel and

### Mejia. 11. Cross-examination of the State's main witness Jose Barajas was not allowed. The defendants were denied the right to confront their accuser. Atthe end ofMr. Barajas's direct examination, the defense lawyers asked to delay his cross-examination until the next morning so it could all be done together. The court instructed Mr. Barajas to return the next day andhe agreed to do so. He was apparently
never cross-examined. The record discloses no indication why not. There is nothing to suggestthe court disallowed cross-examination ofMr. Barajas. 

### 12. Theprosecutor committedmisconduct by elicitingDetective Ortiz's expert testimony that whoever has aHuelga birdtattoo killedsomeone to get it. Detective Ortiz'stestimony about the import ofthe Huelga bird was not misconductbythe prosecutor. The issue was otherwiseraised by Mr. Robledo's lawyer andhas been addressed, 

### supra. 77Nos. 29657-1-111; 29679-2-111; 29691-1-111 

### State v. 

### DeLeon
13. Counsel was ineffective for not timely challenging venue for the eluding charge. Mr. Robledo was not charged with eluding and lacks standing to raise this issue. 

### 14. Ricardo DeLeon's counsel hada conflict of interest andwas ineffective because he workedtwo days a month as aprosecutor in a municipal court. No conflict ofinterest is shown and Mr. Robledo lacks standing to raise this issue. 

### 15. Theprosecutorcommittedmisconduct in closingargument bymaking references to the severity of Mr. Cardenas's injuries that the court had excluded from evidence. The prosecutor described the serious bodilyhannresulting from the gunshot. The argument did not go beyond the evidence presented at trial and was not misconduct. 

### 16. Mr. Robledo raises the same denial of right to bepresent issue asAnthony DeLeon's SAG issue 

### 3. He also contends the bailiff's erroneous report to the jurors about the time that the Barajas 

### 911 call occurredmade a difference in

the fact-findingprocess. As discussed above, the discrepancy was corrected, was not prejudicial, and any
error in not having the defendants present was therefore harmless. 

### 17. Mr. Robledo raises the issue of jurormisconduct for the Twitter communications and forpostingsomething during deliberations on Facebook. The Twitter issue was raised byhis counsel and has been addressed, 

### supra. The record includes no evidence ofFacebookposts byjurors during trial or deliberations; if such evidence comes to light and Mr. Robledo orthe other defendants feel prejudiced, the remedy would beto file a personal restraint petition.



### 78Nos. 29657-1-III; 29679-2-III; 29691-1-II1 

### State v. 

### DeLeon
18. The court improperly deniedAnthonyDeLeon's motion for reconsideration of the denial of a motionfor a new trial as untimely. Mr. Robledo lacks standing to raise this issue.

I CONCUR:

79No. 29657-1-II1 (consolidated with Nos. 29679-2-III; 29691-1-III)
KNODELL, J.P.T. (concurring) - I agree wholly with the majority opinion andjoin in its holdings. I write separately to emphasize my concern-as is illustrated by Ricardo DeLeon's substantially enhanced sentence despite scant, ifany, evidence he acted with gang motivation-that Washington's sentencing statutes have come to the point of unfairly providing prosecutors with essentially unfettered discretion to seek enhanced sentences that may be wholly noncommensurate with a defendant's conduct. Ricardo DeLeon was in the backseat ofa car driving through a residential neighborhood when a young man leaving a house mistook the occupants ofthe car for fellow gang members. This young man, in a mistaken gesture ofsolidarity, flashed a gang sign at the car. Unfortunately, the car contained rival gang affiliates. In response, the driver passed by the house a second time and a passenger opened fire severely injuring another man outside the home. One witness heard someone shouting they would shoot. But at the scene no one
was able to identify the speaker. Shortly after the shooting, police found Ricardo DeLeon in the backseat. Next to him was a red bandanna. The State presented no evidence Mr. Ricardo DeLeon fired any rounds, drove the car, or did anything to help.Nos. 29657-1-111; 29679-2-111; 29691-1-III-concurring State 

### v. DeLeon
But under Washington law, the meager evidence the State did have was a hook upon which the State was able to hang a great deal ofdirty laundry. Because the State alleged gang enhancements against all three defendants it was able to introduce expert testimony to establish a street gang enhancement and motive. One expert was allowed to testify that generally there is more than one person in the car during a drive-by shooting to act as a lookout and to provide the shooter a witness to gain credibility and respect for committingthe act. Ricardo DeLeon's presence in the car almost certainly was not for this purpose because, ifthe State's theory was correct, until someone flashed a gang sign at the defendants, no one had planned any shooting. At the time ofthe shooting, Ricardo DeLeon had been in the car for some time. But he could not have gotten into the carwith the intent to assist in a crime no one at that time knew was going to occur. This state ofaffairs is contrary to both the vision ofthe drafters ofthe Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, and fundamental notions about fair trial which underlie ourjurisprudence. In 1981, our legislature promulgated the SRA in order to structure sentencing in an effort to achieve proportionality and to ensure that criminals
are sentenced in a manner commensurate with the punishment imposed on others committing similar offenses. RCW 9.94A.OI0. Since that time, our legislature has littered the code with criminal and sentencing statutes from which a prosecutor in any given case can select without any restraint from a wide variety ofcharges and enhancements. 

### 2Nos. 29657-1-111; 29679-2-111; 29691-1-III-concurring State 

### v. DeLeon By doing so, that prosecutor can, even with only slight proof, subject a criminal defendant to the risk ofa lengthy mandatory prison term creating a grossly asymmetrical plea bargaining position which often forces a plea. The prospect ofthe introduction of evidence ofprior misconduct by fellow gang members, people with whom the defendant may very well have neverpersonally associated, enhances further the State'splea bargaining position and prospects for obtaining a conviction in a way that has virtually nothing to do with the proofthat the person charged actually committed the crime. This would not have been possible 30 years ago when the criminal code was simpler and the criminaljustice system was not driven by unchecked prosecutorial discretion. This trend has led to outcomes both by trial and plea negotiation which are based less and less on proofand to a generally less rigorous approach to proofin the law enforcement community, which includes prosecutors. Thejudicial system, like all government institutions in a democracy, can only be effective when it enjoys the confidence and trust ofthe people. A system which imprisons people when there is little or no proof, which employs a process ofguilt determination based on anything other than proof, cannot enjoy such confidence in the long run. So long as the courts decline to police either the legislature's power to define crimes orthe prosecution's discretion to charge, in other words, so long as substantive due process has no real application to criminal law, this will continue. See generally 3

### Nos. 29657-1-III; 29679-2-III; 29691-1-Ill-concurring State v. DeLeon


### William 1. 

### Stuntz, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 

### 82-83, 122-28, 209-10,227-30 (2011). Our trial courts, with the authority they have under ER403 to exclude unduly prejudicial evidence, should do what they can to make it as likely as possible that outcomes are based on proof. Our appellate courts should re-examine whether the radical change 

### in the nature ofour criminal code and sentencing laws requires some limit on prosecutorial discretion.

4No. 29657-I-III (consolidated with Nos. 29679-2-III; 29691-I-III) KORSMO, J. (dissenting) Despite its protests to the contrary, the majority is applying aperse coercion standard to the gang status booking questions issue. That is the only conclusion that can be drawn because none ofthe defendants ever claimed below that they felt coerced, nor did they offer any evidence or even argument in support ofsuch a position-and it is a position they bear the burden ofproving. Their arguments are raised for the first time on appeal, but none ofthe appellants cite to any evidentiary support for their argument. Indeed, Anthony Deleon does not even raise the claimI on appeal-and it
was his counsel's argument that the trial court's statement was addressing.2 As the party claiming coercion, the defendants bore the burden ofproving its existence. Horn v. State, 52 Wn.2d 613,614,328 P.2d 159 (1958); State v. Bird, 31 Wn.2d 777, 781,198 P.2d 978 (1948). They did not attempt to do so. Accordingly, the issue is not properly before this court. RAP 2.5(a)(3); State v. McFarland,

) Anthony DeLeon challenges the use ofthejail form on several grounds including Miranda and multiple evidentiary bases, but he does not claim that his answer was coerced. Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 

### L. Ed. 2d 694 (1966). 2 Tellingly, none ofthe defendants sought ajury instruction to put the voluntariness issue before thejury. CrR 3.5(d)(4); State v. Smith, 36 Wn. App. 133, 141, 672 P.2d 759 (1983).Nos. 29657-1-111; 29679-2-111; 29691-1-III-Dissent State 

### v. DeLeon 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). On that basis alone, we should not even analyze this claim. All three defendants challenged the admission ofthejail booking statements at the erR 3.5 hearing on the basis that they were the product ofcustodial interrogation which needed to be preceded by fresh Miranda warnings. RP at 83-87,89. Each counsel presented additional reasons for finding the questioning to be custodial. Counsel for Anthony DeLeon argued that the gang question was not a routine booking question because it called for an incriminating response and needed an independent Miranda warning. 

### Id. at 88. Counsel for Ricardo DeLeon argued similarly and contended that this
was a new interrogation that required new warnings. 

### Id. at 90-91. It was in answering this argument ofcounsel that the trial court made the statement that the majority now says was ambiguous in context. Majority at 29. It was not. The context was the court's discussion ofthe argument that the question did not meet the booking question exception because it called for an incriminating answer. The trial court rejected the prosecutor's argument that the answer was admissible independent of Miranda because it was a booking question, stating: Therefore, the statements, to the extent that they would be testimonial in that sense, that they are-the gentlemen were clearly in custody in these have been coerced statements, I don't find that they arejust ordinary booking questions. They may have been treated that way previously, but they are very clearly asking questions of an individual that could clearly be evidence in the future and [Miranda] would be necessary before they be provided. 2Nos.**29657-I-III~** 29679-2-III; 29691-I-III-Dissent State v. DeLeon

RP at 93. In context, the word "coerced"-ifit even was used by the trial court in what is otherwise an ungrammatical statement-meant simply "compelled" or, more accurately, "incriminating." The court was not making a finding that asking these defendants their gang affiliation was coercive. The lack offindings concerning any coercive aspect ofthe questioning also are easily understood. There were no findings because no one thought there was any coercion and did not discuss the issue. The lack ofevidentiary support for the coercion claim is fatal to the majority's contention that this is not

### aper se rule. 3 No defendant said that he thought he would be protected from opposing groups only ifhe answered the question. There simply is no suggestion that answering the question was the quid pro quo for safe housing. Indeed, none ofthe defendants even suggested that they needed or desired protection from other gangs, let alone that answering the question honestly was the only way they believed they would be protected. Instead, the majority's decision is based on appellate counsel's speculation about what may have been going on inside the minds of their clients. To find coercion here, the majority would have to find it in every instance where the question ofgang affiliation at booking is asked. That simply is not the rule.

3 Since we review a coercion finding for substantial evidence, State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991), the lack ofevidence ofcoercion is fatal to appellants' claim. 3Nos. 29657-I-III; 29679-2-III; 29691-1-III-Dissent State v. DeLeon While I do not doubt that there could be situations where asking during thejail booking process about gang or other affiliation might be**coercive~** there was no evidence ofthat presented here. In the absence of**evidence~** the majority can only reach its conclusion on the basis ofaper se rule rather than its purported totality ofthe circumstances approach. Forthat**reason~** as well as the fact that appellants did not raise the issue below and thus failed in their burden ofproofon this**point~** I part company with the majority in its treatment ofthis belatedly-raised claim.4 I therefore respectfully dissent.

# ~, 

# d,**K~o,J~** 

# P

4 Ijoin the majority and the concurrence in their respective acknowledgements that ER403 permits the trial courts discretion to limit the quantity and nature ofgang affiliation testimony. Trial courts cannot act in a**vacuum~** however, and therefore defense counsel must raise timely objections at trial**or~** perhaps more importantly, obtain some reliefvia motions in limine that require the gang evidence to be carefully tailored. Counsel also can avoid a great deal oftestimony by stipulating, where appropriate, that a particular organization is a criminal street gang. To the extentthat my learned colleague concurs on the basis offormer policies ofthe Sentencing Reform Act (SRA), one ofthe short answers is that the legislature has seen fit to alterthose policies over the intervening three decades as is its right as the policy-making body in our governmental structure. To the extent the concurrence believes that the prosecution has too much discretion in its charging decisions, I would simply note that nothing in the SRA alters-or could alterthe executive**branch~s** authority to decide what charges it will or will not pursue. These are age old debates that likely will last as long as our structure ofgovernment. Changes in legislative or executive policies must come from those branches ofgovernmentwhether induced by a change ofheart or a change brought by the electoral process-not from thejudicial branch straying outside its boundaries into the policy decisions ofthe other branches. 4