FILED 


APRIL 30, 2013 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 29238-0-III 

) 

Respondent and ) 

Cross Appellant, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

ARMONDO HERNANDEZ ) 


GONZALEZ, ) 


) 


Appellant. ) 


KULIK, J. - Armondo Hernandez Gonzalez appeals his convictions for the crimes 

ofsecond degree murder, first degree assault, and second degree unlawful possession of a 

fireann. He contends the trial court erred by failing to excuse a juror who expressed fears 

ofretaliation. He also contends that fireann enhancements imposed at sentencing should 

be vacated because the jury was incorrectly instructed that a unanimous decision was 

needed to answer "no" on the special verdict fonns. 

The trial court properly retained the juror after reviewing whether the juror could 

be impartial. And the challenge to the special verdict instruction on unanimity is without 

merit. Therefore, we affmn the convictions and sentence. 
No. 29238-0-III 

State v. Gonzalez 

FACTS 

The facts of this case are not disputed. On November 10,2008, Mr. Gonzalez shot 

and killed rival gang member, Eric Vargas. He also shot and wounded Antonio Carrasco. 

The State charged Mr. Gonzalez with second degree murder, first degree assault, and 

second degree unlawful possession of a firearm. The case proceeded to trial. 

In the middle of trial, one of the jurors indicated he might have an issue serving on 

the jury: 

THE COURT: ... I'm advised by the bailiff that you have 

expressed some concern about retaliation; is that right? 

JUROR NUMBER 4: Well,just concerned for, you know, why my 

name is said out loud and, you know. 

THE COURT: Well, let meJUROR NUMBER 4: Safety issuesTHE COURT: Yeah. 

JUROR NUMBER 4: -that kind of thing. 

THE COURT: Let me just talk to you a little bit here. 

JUROR NUMBER 4: Yeah. 

THE COURT: Your name was said out loud because I address 

members of the jury that way, instead ofjuror number whenever I can. 

No one has your address; no one has your telephone number. . .. So 

the only thing that's a matter ofpublic record is your name. 

This is a public proceeding; criminal trials are public proceedings. 

Anybody can come in and listen. 

Another concern I'm advised is that you were concerned about 

who's in the gallery. The gallery consists primarily of members ofthe 

Vargas family, the deceased boy. 

JUROR NUMBER 4: Uh-huh. 

THE COURT: I'm advised that no one else has been here .... Does 

that help in any way with respect to your concerns? 

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No. 29238-0-II1 

State v.' Gonzalez 

JUROR NUMBER 4: To be honest, no. 

THE COURT: Okay. You wantJUROR NUNIBER 4: What bothers me is-is, you know, not 

much-not necessarily what's happening here, but it could be anywhere. 

You know what I'm saying? I thought it was gonna be more anonymous 

thanTHE COURT: There's nothingJUROR NUNIBER 4: -it is. 

THE COURT: -anonymous about a criminal trial. 

JUROR NUMBER 4: WellReport of Proceedings (RP) at 596-98. 

The judge additionally informed the juror that in his many decades of legal 

practice, he had never heard of a single instance ofjury retaliation. The judge then told 

the juror, "I'm not going to excuse you ... you took an oath when you stood up and 

raised your right hand. I expect you to abide by that oath .... Okay?" RP at 599. The 

juror responded, "Okay." RP at 599. 

Defense counsel asked the court to dismiss the juror, pointing out that the juror's 

fear for his personal safety "may affect the neutrality of his judgment." RP at 599-600. 

The court retained the juror. 

At the close of trial, the court instructed the jury: 

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No. 29238-0-III 

State v. Gonzalez 

Because this is a criminal case, all twelve of you must agree in order to 

answer the special verdict forms. In order to answer the special verdict 

forms "yes," you must unanimously be satisfied beyond a reasonable doubt 

that "yes" is the correct answer. Ifyou unanimously have a reasonable 

doubt as to this question, you must answer "no." If you cannot agree on a 

verdict, do not fill in the blank provided in the special verdict form. 

Clerk's Papers (CP) at 164-65 (Instruction 39). 

The jury found Mr. Gonzalez guilty as charged and returned special verdicts 

finding the aggravating factor that Mr. Gonzalez committed the murder and assault 

charges while armed with a firearm. 

At sentencing, defense counsel asked the court to withdraw the special verdicts, 

pointing out that Bashawl had come out two days after the verdicts were entered and that 

under Bashaw, the court had erred in instructing the jury that it had to be unanimous to 

answer ~~no" to the special verdict question. The court denied the request, finding the jury 

had been unanimous regarding the special verdicts. Mr. Gonzalez appeals. The State 

cross appeals. 

ANALYSIS 

Impartial Juror. Mr. Gonzalez first contends that he was denied his constitutional 

right to a fair and impartial jury as a result of the trial court's failure to excuse juror 4. He 

1 State v. Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010), overruled by State v. 

Guzman Nunez, 174 Wn.2d 707,285 P.3d 21 (2012). 

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No. 29238-0-111 

State v. Gonzalez 

contends the juror's fear of retaliation potentially affected his ability to remain impartial 

and that the court should have questioned the juror in more detail about his concerns. 

Under the Sixth Amendment to the United States Constitution and article I, 

section 22 of the Washington Constitution, a defendant is guaranteed the right to a fair 

and impartial jury. State v. Latham, 100 Wn.2d 59, 62-63, 667 P.2d 56 (1983). The right 

to an impartial jury is also protected by RCW 2.36.110 and CrR 6.5, which place the trial 

court under a continuous obligation to excuse any juror who is unfit and unable to 

perform the duties ofajuror. State v. Jorden, 103 Wn. App. 221, 226-27, 11 P.3d 866 

(2000). RCW 2.36.110 specifically mandates that a judge excuse any juror who is unfit 

due to "bias, prejudice, indifference, inattention or any physical or mental defect or by 

reason of conduct or practices incompatible with proper and efficient jury service." 

CrR 6.5 states, in part, "[i]f at any time before submission of the case to the jury a juror is 

found unable to perform the duties the court shall order the juror discharged." 

Because the trial judge is in the best position to determine a juror's ability to serve 

impartially, we review a court's decision whether to excuse a juror for an abuse of 

discretion. State v. Elmore, 155 Wn.2d 758, 768-69, 123 P.3d 72 (2005); State v. Rupe, 

108 Wn.2d 734, 748,743 P.2d 210 (1987). '"The trial judge is able to observe the juror's 

demeanor and, in light of that observation, to interpret and evaluate the juror's answers to 

5 

No. 29238-0-111 

State v. Gonzalez 

determine whether the juror would be fair and impartial." Rupe~ 108 Wn.2d at 749. A 

trial court abuses its discretion when it issues an order that is manifestly unreasonable or 

based on untenable grounds. State v. Depaz, 165 Wn.2d 842~ 858,204 P.3d 217 (2009) 

(quoting State v. Quismundo, 164 Wn.2d 499,504, 192 P.3d 342 (2008». 

Mr. Gonzalez does not allege juror misconduct, but contends that the court erred 

by failing to excuse the juror without establishing the extent ofthe juror's fear of 

retaliation. He argues that "Juror 4, based upon his fears, was no longer a fair and 

impartial juror" and that in view of the court's limited inquiry, we can only speculate how 

the juror's fear may have impacted the deliberative process. Br. of Appellant at 10. 

Citing Rupe, Mr. Gonzalez argues that the court's minimization ofthe juror's concerns 

violated due process standards and constituted an abuse of the trial court's discretion. 

In Rupe, the defendant argued that the trial court denied his right to a fair and 

impartial jury by refusing to excuse jurors he believed were predisposed to invoke the 

death penalty. Rupe, 108 Wn.2d at 748. Our Supreme Court reviewed the voir dire ofthe 

jurors at issue, concluded their responses were equivocal, and held that a trial court is not 

required to excuse a juror who has preconceived ideas if the juror can put his concerns 

aside to decide the case on the evidence and apply the law provided by the court. Id. at 

748-49. 

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No. 29238-0-III 

State v. Gonzalez 

Here, nothing in the record indicates that the juror at issue was unable to make a 

decision based on the law and facts of the case. As Rupe indicates, one of the 

fundamental concerns in these cases is whether ajuror's ability to fairly deliberate has 

been compromised. Id. Admittedly, the juror here cited safety issues and concerns about 

the lack of anonymity, but nothing in the court's colloquy with the juror established that 

he would not be able to fairly deliberate. In fact, at the end of the court's questioning, the 

juror affirmed that he would be able to follow his oath to evaluate the case according to 

the evidence and the court's instructions. Furthermore, the jurors were instructed: 

You must not let your emotions overcome your rational thought process. 

You must reach your decision based on the facts proved to you and on the 

law given to you, not on sympathy, prejudice, or personal preference. To 

assure that all parties received a fair trial, you must act impartially with an 

earnest desire to reach a proper verdict. 

CP at 124 (Instruction 1). 

Jurors are presumed to follow instructions. State v. Johnson, 124 Wn.2d 57, 77, 

873 P.2d 514 (1994). Significantly, the juror did not raise additional concerns during the 

remainder of the trial or indicate that he could not be impartial or follow the court's 

instructions. The record indicates that the juror was able to participate in jury 

deliberations without issue. 

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No. 29238-0-III 

State v. Gonzalez 

In sum, the court was able to observe the juror's demeanor during questioning and 

found nothing to suggest that he had preconceived ideas as to Mr. Gonzalez's guilt, that 

his concerns would affect the deliberative process, or that he had any other issues 

incompatible with proper jury service. Accordingly, the court's decision to retain the 

juror was well within its broad discretion. 

Special Verdict Instructions. Citing Bashaw, Mr. Gonzalez contends that the trial 

court improperly instructed the jury that a unanimous decision was needed to answer "no" 

on the special verdict forms. He, therefore, asks this court to remand for resentencing 

without the firearm enhancements. 

We review alleged errors of law injury instructions de novo. Boeing Co. v. Key, 

101 Wn. App. 629, 632, 5 P.3d 16 (2000). Failure to timely object usually waives the 

issue on appeal, including issues regarding instructional errors. RAP 2.5(a); State v. 

Williams, 159 Wn. App. 298, 312-l3, 244 P.3d 1018, review denied, 171 Wn.2d 1025 

(2011). This court has held that a trial court's failure to instruct a jury that it must be 

unanimous to acquit a defendant of an aggravating factor is not an issue of constitutional 

magnitude. State v. Guzman Nunez, 160 Wn. App. 150, 159, 162-63,248 P.3d 103 

(2011), ajf'd in part, 174 Wn.2d 707,285 P.3d 21 (2012). 

Mr. Gonzalez did not object to the unanimity instruction and, therefore, waives the 

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No. 29238-0-III 

State v. Gonzalez 

right to raise the issue on appeaL Nevertheless, his challenge to the jury instruction fails 

because it relies on the special verdict instruction given in Bashaw and later rejected in 

Guzman Nunez. 

Prior to the Washington State Supreme Court's recent decision in Guzman Nunez, 

the court in Bashaw recognized the non unanimity rule developed in State v. Goldberg, 

149 Wn.2d 888, 72 P.3d 1083 (2003) that "a unanimous jury decision is not required to 

find that the State has failed to prove the presence of a special finding increasing the 

defendant's ... sentence." Bashaw, 169 Wn.2d at 146. However, in Guzman Nunez, our 

Supreme Court reconsidered and overruled the nonunanimity rule in Bashaw, concluding 

that such a rule "conflicts with statutory authority, causes needless confusion, does not 

serve the policies that gave rise to it, and frustrates the purpose ofjury unanimity." 

Guzman Nunez, 174 Wn.2d at 709-10. In reaching this decision, the court noted that for 

SRA2 aggravating circumstances, the legislature "intended complete unanimity to impose 

or reject an aggravator." Id. at 715. 

Because the court did not err in giving its firearm enhancement instruction, we 

reject Mr. Gonzalez's request to remand for resentencing without the enhancements. 

Because we affirm Mr. Gonzalez's convictions and sentence, we need not address 

2 Sentencing Reform Act of 1981, chapter 9.94A RCW. 

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No. 29238-0-II1 

State v. Gonzalez 

the State's argument on cross appeal. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Kulik, J. 

WE CONCUR: 

I

~, Brown, J. Korsmo, C.J. 

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