### FILED APRIL 30, 2013 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, 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### v. ) UNPUBLISHED OPINION ) ARMONDO HERNANDEZ ) GONZALEZ, ) ) Appellant.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 ofa fireann. He contends the trial court erred by failing to excuse ajurorwho expressed fears ofretaliation. He also contends that fireann enhancements imposed at sentencing should be vacated because thejury was incorrectly instructedthat a unanimous decision was neededto answer "no" onthe special verdict fonns. The trial court properly retainedthejurorafterreviewing whetherthejurorcould be impartial. And the challenge to the special verdict instruction onunanimity is without merit. Therefore, we affmn the convictions and sentence.

### No. 29238-0-III State v. Gonzalez


### FACTS The facts ofthis 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 ofa firearm. The case proceeded to trial. In the middle oftrial, one ofthejurors indicated he might have an issue serving on thejury: THE COURT:
... I'm advised by the bailiffthat 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 meJURORNUMBER 4: Safety issuesTHE COURT: Yeah. JURORNUMBER 4: -thatkind ofthing. THE COURT: Let mejusttalk to you a little bit here. JUROR NUMBER4: Yeah. THE COURT: Your name was said out loud because I address members ofthejury that way, instead of jurornumber 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 publicproceedings. Anybody can come in and listen. Another concern I'm advised is that youwere concerned about who's in the gallery. The gallery consists primarily ofmembers ofthe Vargas family, the deceased boy. JUROR NUMBER4: 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? 2No. 29238-0-II1 State v.' Gonzalez
JURORNUMBER4: To be honest, no. THE COURT: Okay. You wantJURORNUNIBER 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 anonymousthanTHE COURT: There's nothingJURORNUNIBER 4: -itis. THE COURT: -anonymous about a criminal trial. JURORNUMBER4: WellReport ofProceedings (RP) at 596-98. Thejudge additionally informed thejurorthat in his many decades oflegal practice, he had never heard ofa single instance of juryretaliation. Thejudge then told thejuror, "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 jurorresponded, "Okay." RP at 599. Defense counsel asked the court to dismiss thejuror, pointing outthat thejuror's fear for his personal safety "may affect the neutrality ofhisjudgment." RP at 599-600. The court retained thejuror. At the close oftrial, the court instructed thejury:

3No. 29238-0-III State v. Gonzalez
Because this is a criminal case, all twelve ofyou must agree in order to answer the special verdict forms. In orderto 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." Ifyou 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). Thejury found Mr. Gonzalez guilty as charged and returned special verdicts finding the aggravating factor thatMr. Gonzalez committed the murder and assault charges while armed with a firearm. At sentencing, defense counsel asked the courtto withdraw the special verdicts, pointing outthatBashaw l had come outtwo days after the verdicts were entered and that underBashaw, the court had erred in instructing thejury that it had to be unanimous to
answer**~~no"** to the special verdict question. The court denied the request, finding thejury had been unanimous regarding the special verdicts. Mr. Gonzalez appeals. The State
cross appeals. ANALYSIS ImpartialJuror. Mr. Gonzalez first contends that he was denied his constitutional right to a fair and impartialjury as a result ofthe trial court's failure to excusejuror4. He

1State v. Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010), overruledby State v. GuzmanNunez, 174 Wn.2d 707,285 P.3d 21 (2012). 4No. 29238-0-111 State v. Gonzalez
contends thejuror's fear ofretaliation potentially affected his ability to remain impartial and that the court should have questioned thejuror in more detail about his concerns. Under the Sixth Amendment to the United States Constitution and article I, section 22 ofthe Washington Constitution, a defendant is guaranteed the right to a fair and impartialjury. State v. Latham, 100 Wn.2d 59, 62-63, 667 P.2d 56 (1983). The right to an impartialjury is also protected by RCW 2.36.110 and CrR 6.5, which place the trial court under a continuous obligation to excuse anyjurorwho 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 ajudge excuse anyjurorwho is unfit due to "bias, prejudice, indifference, inattention or any physical or mental defect or by
reason ofconduct orpractices incompatible with proper and efficientjury service." CrR 6.5 states, in part, "[i]fat any time before submission ofthe case to thejury ajuroris found unable to perform the duties the court shall order thejuror discharged." Because the trialjudge is in the bestposition to determine ajuror's ability to serve impartially, we review a court's decision whether to excuse ajuror 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 trialjudge is able to observe thejuror's demeanor and, in light ofthat observation, to interpret and evaluate thejuror's answers to
5No. 29238-0-111 

### State 

### v. Gonzalez
determine whether thejurorwould 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 allegejurormisconduct, but contends that the court erred by failing to excuse thejurorwithout establishingthe extent ofthejuror's fear of retaliation. He argues that "Juror4, based upon his fears, was no longer a fair and impartialjuror" and that in view ofthe court's limited inquiry, we can only speculate how thejuror's fear may have impactedthe deliberative process. Br. ofAppellant at 10. Citing

### Rupe, Mr. Gonzalez argues that the court's minimization ofthejuror's concerns violated due process standards and constituted an abuse ofthe trial court's discretion. In 

### Rupe, the defendant argued that the trial court denied his right to a fair and impartialjury by refusing to excusejurors he believed were predisposed to invoke the death penalty. 

### Rupe, 108 Wn.2d at 748. Our Supreme Courtreviewed the voir dire ofthe jurors at issue, concluded their responses were equivocal, and held that a trial court is not required to excuse ajurorwho has preconceived ideas ifthejuror can put his concerns aside to decide the case on the evidence and apply the law provided by the court. Id. at 748-49.

6No. 29238-0-III State v. Gonzalez Here, nothing in the record indicates that thejurorat issue was unable to make a decision based on the law and facts ofthe case. As Rupe indicates, one ofthe fundamental concerns in these cases is whether ajuror's ability to fairly deliberate has been compromised. Id. Admittedly, thejurorhere cited safety issues and concerns about the lack ofanonymity, but nothing in the court's colloquy with thejuror established that he would not be able to fairly deliberate. 

### In fact, at the end ofthe 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, thejurors were instructed: You must not let your emotions overcome your rational thoughtprocess. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, orpersonal 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, thejuror did not raise additional concerns during the remainder ofthe trial or indicate that he could not be impartial or follow the court's instructions. The record indicates that thejurorwas able to participate injury deliberations without issue.

7No. 29238-0-III State 

### v. Gonzalez
In sum, the court was able to observe thejuror's demeanor during questioning and found nothing to suggest that he hadpreconceived ideas as to Mr. Gonzalez's guilt, that his concerns would affect the deliberative process, orthat he had any other issues incompatible with properjury 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 thejurythat 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 oflaw 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 heldthat a trial court's failure to instruct ajury that 

### itmustbe unanimous to acquit a defendant ofan aggravating factor is not an issue ofconstitutional magnitude. State v. GuzmanNunez, 160 Wn. App. 150, 159, 162-63,248 P.3d 103 (2011), ajf'dinpart, 174 Wn.2d 707,285 P.3d 21 (2012). Mr. Gonzalez did not objectto the unanimity instruction and, therefore, waives the
8No. 29238-0-III State v. Gonzalez right to raise the issue on appeaL Nevertheless, his challenge to thejury 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 nonunanimity rule developed in State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003) that "a unanimousjury decision is not required to find that the State has failed to prove the presence ofa 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 of jury 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
orreject 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. 9No. 29238-0-II1 State 

### v. Gonzalez
the State's argument on cross appeal. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Kulik, J. WE CONCUR:

I

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

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