### f! LED 

# COURTOF APPEALS DIVISION 11 2014 

### DEC 30 

### AM 9: 149 STATE OF WASHINGTON BY UTY


### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

v. JIMMY JOSEPH PERKINS, DIVISION II
Respondent,

Appellant. No. 44533 -6 -II

UNPUBLISHED OPINION

LEE, J. — A

### jury found 

### Jimmy Perkins guilty of second degree assault. Perkins appeals 

### his conviction and sentence, arguing that (1) the prosecutor committed misconduct during closing arguments, and ( 2) the court miscalculated his offender score by adding 1 point for being on community custody. Because the prosecutor did not commit misconduct and the trial court 

### properly calculated Perkins' offender score, we affirm. FACTS 

### Jimmy Perkins and John Mayfield were cellmates in the Cowlitz County Jail. Perkins was 

### in custodyforaprobationviolation,and Mayfield was in custodyforan alleged assault. Mayfield and Perkins had confrontations over various issues. In the common area ofthe cell unit, Mayfield questioned Perkins about Mayfield' s missing candy and asked Perkins to leave his belongingsNo. 44533 -6 -II

alone. Perkins asked if Mayfield was 

### insinuating that he was a " punk b *tch," to which Mayfield responded that Perkins was a " punk b *tch." 1 Verbatim Report of Proceedings ( VRP) at 96. Perkins approached Mayfield and punched him in the face. In response, Mayfield held Perkins in 

### a headlock until an inmate trustee broke up the fight. 

### After that fight, Mayfield walked around the cell unit common area insulting Perkins and saying, "[ W] e [ can] take care of it ... when we get locked in." 1 VRP at 129. Perkins motioned for Mayfield to come into their cell to fight again, but Mayfield continued to walk around the

common area. Perkins then crossed the common area and hit Mayfield. 

### They fought until 

### correctional officers intervened. Mayfield was examined by adoctor,who determinedthat he had abroken cheekbone and that he needed surgery. The State charged Perkins with second degree assault for the second fight. The trial court 

### admitted a surveillance video ofthe cell unit showing the fight between Perkins and Mayfield that resulted in the charge. Perkins claimed self - defense and testified at trial that after the first fight, Mayfield 

### threatened to rape him when theywere locked in their cell. Perkins also testified that "you can't let somebody continue to talk like that without responding, saying something to him," and there' s the code ofthe jail," 

### that ifan inmate allows someone to insult him without fighting or standing 

### up for himself,that insult becomes true. 2 VRP at 240; 3 VRP at 294. Perkins then testified that he went into his cell to wait for Mayfield to fight. On cross -

examination, Perkins testified that Mayfield wanted to fight and that Mayfield 

### knewPerkinswas coming after him. Specifically, in responseto the State' s question astowhether he wove through the seating area in the cell unitto sneakoverto hit Mayfield,
2No. 44533 -6 -II 

### A. There' s no sneaking. 

### Q. 

### Okay, so you were directly going after him? A. Well,he knewwhat I was doing the whole time. 

### Q. He knewthatyou were going to come at him and beat him? A. The whole time he wanted to fight. 2 VRP at 250. 

### Perkins further testified on cross - examination that Mayfield only hit him after Perkins went after him. 

### During the State' s cross - examination, Perkins interrupted the prosecutor, stating that Mayfield was standing outside the courtroom window trying to intimidate him. The prosecutor 

### said that he did not see Mayfield. The trial court directed Perkins to answer the pending question, stating that the trial court would control the 

### hallway. The prosecutor continued questioning 

### Perkins and defense counsel interrupted, asking the trial court if Mayfield was outside the 

### courtroom. Again, Perkins said that Mayfield was staring at him, and again, the prosecutor said he did not see him. The trial court directed Perkins to answer the question and stated that it had control of the courtroom. 

### In closing arguments, the prosecutor argued that Perkins did not have the right to hit Mayfield based on Mayfield' s insults. 

### The prosecutor referenced Perkins' testimony about "the
code of the jail." 3 VRP at 294. The prosecutor argued that the " code ofthe jail" did not make Perkins' use offorce reasonable or deprive Perkins ofhis free choice to exercise other options and
not fight Mayfield. 3 VRP at 294. The prosecutor argued that if Perkins was concerned for his safety, " he had a number of options aside from [

### fighting]. He could have gone to, you know,
exclusive custody... The Defendant did not have a right to defend himselfbecause the Defendant
created both ofthose situations." 3 VRP at 294, 306. The prosecutor also suggested that Perkins

3No. 44533 -6 -II



### was trying to distract the jury when he complained that Mayfield was outside the courtroom because Perkins hadjust gotten caught giving contradictory testimony. 

### During rebuttal argument,the prosecutor reminded thejurythat they are expected to read the 

### jury instructions. 

### The prosecutor then rebutted Perkins' assertion that being insulted was a 

### good enoughreasonto fightbyarguingthat Perkins did nothave reasonable groundsforbelieving that he was about to be attacked and that the expectation ofa future fight does not create the right to use force. 

### The prosecutor also argued thathe feltthreatened when he was examining Perkins and that Perkins demonstrated aggressive tendencies on the stand. Perkins objected and moved for a
mistrial. 

### The trial court denied the mistrial and instructed thejury to disregard the prosecutor' s comments about his personal feelings.

The prosecutor' s rebuttal argument continued without additional objections. He argued 

### that Perkins "was and isthe aggressor" andthat thejury saw "how quickly hewas to rise to anger,
and that is suggestive of someone who' s going to attack someone." 3 VRP at 346. The prosecutor 

### also suggested that Perkins and defense counsel used " diverting tactics" when Perkins could not change his story or talk his way out of the situation. 3 VRP at 346. " That' s what his Defense 

### Counsel did here earlier. Andthat'swhatthey get paidto do. Come here and divertyour attention from what really happened." 3 VRP at 346. 

### Thejury found Perkins guilty ofsecond degree assault. Perkins stipulated to his criminal history, stating that " he wants to be sentenced today and get it over with." 

### 3 VRP at 368. During 

### sentencing, Perkins did not objectto the prosecutor' s references tothe applicable sentencing range or Perkins' calculated offender score. The felonyjudgment and sentence showed that Perkins was
4No. 44533 -6 -II



### on community custody when the assault took place, and that 1. point was added to his offender score as a result. The trial court sentenced Perkins to a mid - range sentence. Perkins appeals. ANALYSIS A. PROSECUTORIAL MISCONDUCT

Perkins alleges that the prosecutor committed misconduct 

### by ( 1) 

### commenting on his personal feelings about Perkins' demeanor while testifying, (

### 2) arguing Perkins' propensity for aggression, (

### 3) misstating the law of self - defense and lowering the State' s burden of proof, (4) offering his personal opinion on Perkins' credibility and introducing facts not in evidence, and (5) 

### disparaging the role of defense counsel. Perkins also alleges that the cumulative effect of the prosecutor' s misconduct requires reversal. Perkins' claims ofprosecutorial misconduct fail.

To prevail on a claim ofprosecutorial misconduct, Perkins must show that the prosecutor' s conduct was both improper and prejudicial. 

### State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 2012) ( citing State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 ( 2011)). Once a defendant has demonstrated that the prosecutor' s conduct was improper, we evaluate the defendant' s claim 

### ofprejudice undertwo different standards ofreview,depending on whetherthe defendant objected to the misconduct at trial. 

### Emery, 174 Wn. 

### App. at 760 - 61. If the defendant objected, he must show that the prosecutor' s misconduct resulted in prejudice that had a substantial likelihood of 

### affecting thejury'sverdict. Emery, 174 Wn.2d at 760 - 61 ( citing State v.Anderson, 153 Wn.App. 417, 427, 220 P.3d 1273, review denied, 170 Wn.2d 1002 (2009)). 

### Ifthe defendant did not object at trial, the defendant is deemed to have waived any error, unless the prosecutor' s misconduct was so flagrant and ill intentioned. Emery, 174 Wn.2d at 760- 61 ( citing State v. Stenson, 132 Wn.2d 668, 727, 940 P. 2d 1239 ( 1997), cert. denied, 523 U. S.
5No. 44533 -6 -II

1008 ( 1998)). 

### The defendant is presumed to have waived any error by not objecting because objections are required to prevent additional improper remarks and abuse ofthe appellate process. 

### Emery, 174 Wn.2d at 762. Therefore, when there is no objection,we apply aheightened standard requiring the defendant to show that "( 1) ` 

### no curative instruction would have obviated any 

### prejudicial effect on thejury' and (2) the misconduct resulted in prejudice that `had a substantial likelihood of affecting the 

### jury verdict. ' 

### Emery, 174 Wn.2d at 761 ( quoting Thorgerson, 172 Wn.2d at 455). 

### When reviewing a prosecutor's misconduct that was not objected to, we focus less on whetherthe prosecutor' s misconduct was flagrant and ill intentioned and more on whether the resulting prejudice could have been cured." 

### Emery, 174 Wn.2d at 762. 

### In closing argument, prosecutors are afforded wide latitude to drawand express reasonable 

### inferences from the evidence. State v. Reed, 168 Wn.App. 553, 577, 278 P.3d 203, reviewdenied, 176 Wn.2d 1009 (2012). 

### When analyzing prejudice, we do not look atthe comment in isolation, but in the context ofthe total argument, the issues in the case, the evidence, and the instructions given to the

### jury. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007), cent. denied, 554 U.S. 922 (2008). 

### We also presume that the jury follows the court' s instructions. Anderson, 153 Wn. App. at 428.

1. Arguments based on the prosecutor' s personal feelings 

### During closing arguments, the prosecutor stated: 

### And ifyou want to talkabout is [sic] being threatened,you saw howthe Defendant actedwhen Ipushed his buttons. I thought Iwas being threatened. I thought Iwas going to be attacked, and did I? Did I

### jump over that box and punch him? I didn't. 

### I was alittle concerned. But I didn'tpunch him. Twenty minutes hewaited as John Mayfield walked around .. .

6No. 44533 -6 -II

3 VRP at 339 -

40 ( emphasis added) ( noting the portion Perkins assigned error to). Perkins objected. Outside the presence of the

### jury, Perkins moved for a mistrial. The trial court denied 

### the motion.1 Thetrial court instead instructedthejury as follows:

I just need to remind you of — 

### ofonething: Thatthe lawyers' remarks, statements, and arguments are intendedto help you understand the evidence and applythe law. It' s important, however, for you [to] rememberthat the lawyers' statements are not 

### evidence. You must disregard any remark, statement, or argument that isthat is not supported 

### by the evidence or the law in my instruction — instructions. The evidence is the testimony and the exhibits. The Prosecutor made an argument 

### regarding Mr.Perkins' demeanor onthe standyesterday and his feelings aboutthat. You are instructed to disregard that. 3 VRP at 345 -

46. 

### Perkins asserts thatthisjury instruction was insufficientto cure the prejudicial effectofthe prosecutor' s statements and that the prosecutor' s statements could not be remedied by a curative instruction, because they were flagrant, ill intentioned, and prejudicial. Perkins also alleges that 

### the trial court should have instructed thejury not to considerthe propensity evidence. Perkins has failed to show that the curative instruction was insufficient to cure the prejudicial effect. 

### Thejury instruction specifically targeted the wrongful conduct by instructing 

### the jury to disregard the prosecutor's statements regarding his personal feelings about Perkins' demeanor on the stand. 

### Additionally, the State presented multiple witnesses who testified that Perkins was the aggressor in the fight, and showed a video ofthe fight. Perkins testified that he
went after Mayfield and hit him first. In the context of the entire argument, all ofthe evidence,


### 1 Perkins does not appeal the trial court's denial of his motion for mistrial; he only appeals the prosecutor' s improper statements. His motion for mistrial preserved the issues for appeal. State v. 

### Lindsay, 180 Wn.2d 423, 430 - 31, 326 P. 3d 125 ( 2014) (

### finding thatthat a motion for mistrial during the prosecutor' s closing arguments preserved the challenge for prosecutorial misconduct). 7No. 44533 -6 -II



### andthejury instruction, Perkins has not shown asubstantial likelihoodthatanyresulting prejudice from the prosecutor' s statements affected the 

### jury' s. verdict. Perkins' claim of prosecutorial 

### misconduct based on the prosecutor' s statements regarding his personal feelings fails.

2. 

### Arguments based on propensity Perkins argues that the following statements were improper because the prosecutor commented on Perkins' propensity for aggression. 

### The point ofeverything is that the Defendant is the aggressor. He was and is the aggressor. You didsee his temper. You didsee how quickly he was to rise to anger, and that is suggestive of someone who 's going to go attack someone. 

### It is very 

### suggestive ofsomeone who isgoingto attacksomeone. When he' s caught in certain areas where he's unable to change his story ortalk his way out ofit,the Defendant was —

### quickly resorted to flashing anger, quickly. 3 VRP at 346 ( emphasis added) (noting the portion Perkins assigned error to). Perkins did not 

### object; accordingly, he has waived any errorunless he can showthatthe " misconductwas so flagrant and ill intentioned that an instruction would not have cured the prejudice." 

### Emery, 174 

### Wn.2d at 761 ( citing Stenson, 132 Wn.2d at 727).

Perkins' 

### claim fails because even assuming, without deciding, that the prosecutor's statements were improper, Perkins has failed to showthat any resulting prejudice could not have been cured 

### by an instruction. The State presented strong evidence of Perkins' guilt. The State 

### presented multiple witnesses who testified that Perkins was the aggressor in the fight and thejury viewed avideo ofthe fight. Perkins himselftestified that he hit Mayfield first. Thus, in the context ofthe entire argument and the.evidence, Perkins has not shown thatthe misconduct was so flagrant 

### and ill intentioned that it could not have been cured by ajury instruction or that the resulting prejudice had a substantial likelihood ofaffectingthejury's verdict. Therefore,we deem Perkins'

8No. 44533 -6 -II



### claim of prosecutorial misconduct based on the prosecutor' s statements regarding propensity
waived.

3. 

### Prosecutor' s statements relating to the law ofself - defense Perkins argues that the prosecutor committed misconduct by misstating the law of self - 

### defense and lowering the State' s burden ofproof. Perkins claims that the prosecutor did this by 

### improperlyarguing that Perkins' use offorce was not lawful because Perkins did not retreat orask for protection, thatforce is unlawful in response to threatening words, and that Perkins could not 

## lawfullyuseforceto defend himselfuntil hewas being physically attacked. During closing,the prosecutor argued: He was there only for a three - 

### day stint in DOC. He knew he was going. There' s 

### no reason for him to really be concerned about an ongoing, prolonged issue about being a " bitch" or a " punk." 

### And ifthere was such a concern, he had a number of options asidefrom that. He could have gone to;you know, exclusive custody. He could have gone, pushed one of any of these buttons here, and asked, say, " You know what, Ifeel like I'm 

### being threatened." " 

### I've gotjusta little bit oftime leftto serve out on my DOC hold, and I can go." " Can you guys 

### help me?" " Can you get me into protective custody ?" He didn' t do that. Instead, when John Mayfield 

### was going to throw away his water bottles,the Defendant went and hit him. 3 VRP at 294 -

95 ( emphasis added) (

### noting the portion Perkins assigned errorto). 

### He'sthere until the next morning. He hadotheroptions, and he chose to show that he wasn' t apunk bitch. All these red "X's" are other options, and not once did he take those other options. 

### Instead, he created an option. Not something that was present tense. He was 

### dealing with something way down in the future — if it ever. occurred. 3 VRP at 339 -

40 ( emphasis added) (

### noting the portion Perkins assigned error to). Sure, they were saying things. 

### Sure, Mr. Mayfield probably had some colorful 

### language, but does that really give the Defendant the right to go and beat up Mr. Mayfield? The answer is " no." 

### It doesn't give him the right to do that. The only 

### thing that Mr. Mayfield was doing was insulting him. Now there 's an oldsaying, Sticks and stones may break my bones, but words may never hurt me." Andyou
9No. 44533 -6 -II



### heardsomething about the code ofthejail and how,you know,you call someone a a " bitch" or a " punk, "you' vejust made them into a " bitch" or a " punk" unless 

### theystand upforthemselves. That's a choice. That's a choice thatsomeone makes 

### to either abide by that code or not abide by that code. And the Defendant made a choice to abide bythat code. 3 VRP at 293 -94 ( emphasis added) (

### noting the portion Perkins assigned errorto).

Now his 

### being attacked — 

### that is a really, really important distinction here yet, again, and this whole idea ofwhat' s self - defense is about. That the Defendant 

### hadto have reasonable groundsfor believing thathe is being attacked andto stand 

### hisground. Is being attacked. That 'spresenttense. Rightthen, rightthere, hegets to defend himself.Not something in thefuture, notsomething an hour - and - a - half later, then, right then, right now, present tense —is 

### being. That' s what has to be going through his brain. Is 

### being attacked. That' s whatjustifies his right to go and beat up John Mayfield. You saw the [...] video. Was he 

### being attacked? No. What he did was —he kicked off his slippers, went around these tables, and went at 

### John Mayfield who was not expecting him. 3 VRP at 338 ( emphasis added) ( noting the portion Perkins assigned error to). Perkins did not object to these statements at trial. 

### Viewing the prosecutor's statement inthe contextofthe total argument,the prosecutordid not misstate the law. Rather, the prosecutor argued that the facts do not support Perkins' claim of
self - defense. " 

### A prosecutor can certainly argue that the evidence does not support the defense theory." State v. 

### Lindsay, 180 Wn.2d 423, 431 -32, 326 P.3d 125, 130 ( 2014) ( 

### citing State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 ( 1994), cert. denied, 514 U.S. 1129 ( 1995)). The 

### prosecutor does not commit misconduct by arguing reasonable inferences from the facts in evidence. State v. Smith, 104 Wn.2d 497, 510 -11, 707 P.2d 1306 ( 1985)).

10No. 44533 -6 -II



### The prosecutor' s statements mirrorthe language ofthejury instruction and do notmisstate the law.3 The prosecutor argued that, based on the circumstances, Perkins' use offorce was not reasonable. The prosecutor' s statements do not misstate the law ofself - defense, lower the State' s burden of proof, or contradict the 

### jury instructions. The prosecutor' s statements were not improper. Even if the prosecutor' s statements were improper, Perkins has not shown that the 

### misconductwas so flagrant and ill intentioned that it could not have been cured by an instruction. 

### Moreover, as stated above, the State presented strong evidence against Perkins. In the context of the entire argument and the evidence, Perkins has not shown a substantial likelihood that any 

### resulting prejudice affected thejury'sverdict,andtherefore, his claim ofprosecutorial misconduct fails. 4. 

### Arguing facts not in evidence and offering a personal opinion on Perkins'

credibility 

### Perkins alleges that the prosecutor argued " facts" not in evidence and provided a personal 

### opinion ofPerkins' credibility by suggesting that Perkins fabricated adiversion. Br.ofAppellant at 18. When I had him pinpoint it on that, and he couldn't get out ofthat statement, as a person who knew he was caught in that statement, he wanted to divert your attention. He wanted you all to think, " Oh, my goodness." 

### He was really being intimidated 

### by John Mayfield. So what does the Defendant do? " Tell your client, tell your victim to quit intimidating me. " And what did you guys all do? You all 2 " Number 14A. It is lawful for a person who is in a place where that person has a rightto be and 

### who has reasonable grounds forbelieving that he is being attacked to stand his ground and defend against such attack 

### by the use of lawful force. The law does not impose a 

### duty to retreat." 3 VRP at288. 

### 3 Perkins does not challengethe self - defense instructions given to thejury.

11No. 44533 -6 -II
turned and looked at doors. You looked out there, 

### and you forget for a brief moment what he was saying. " John was in, this corner 

### intimidating me." And then, I knew it was on, so I kicked off my slippers." Defendant' s right therethere' s his slippers. Where' s John? Right there walking past Table 3 — right there. Is he even 

### looking at the Defendant? Is he 

### saying, " Let' s go. Let' s fight. " Now, he' s not. John' s 

### looking at the ground, 

### looking away. And look at the Defendant; he just goes over to him. Let' s watch that. 3 VRP at 302 -

03 ( emphasis added) (noting the portion Perkins assigned error to). Perkins did not object to the statements at trial. Perkins has not shown that the prosecutor argued facts outside ofthe record. Prosecutors

are afforded wide latitude to draw and express reasonable inferences from the evidence. Reed, 168 Wn. 

### App. at 577. 

### The prosecutor argued that Perkins wanted the jury to think that .he was intimidated 

### by Mayfield. 

### This argument is a reasonable inference from the facts on the record,4 

### and from Perkins' theory ofself - defense. Further,the prosecutor' s statementthatthejury "turned and looked at the doors" is a recitation of what happened in the courtroom, not an argument of facts not in evidence. 3 VRP at 302. Perkins also has not shown that the prosecutor offered his own opinion about Perkins' credibility.. 

### Perkins properly notes that there is no evidence to suggest that Mayfield was not outside the courtroom. However,the prosecutor did not saythat he believed Perkins was lying or that there was evidence that Perkins was 

### lying. He recounted Perkins' testimony, which was on 

### the record, and suggested that Perkins interrupted him to divert the jury's attention from the



### 4 The prosecutor referenced Perkins' interruption during the State' s cross - examination, when Perkins said, "[

### w]hy isyourwitnesstryingto intimidate me,YourHonor,nowby standing outside that window and staring at me." 2 VRP at 253. 12No. 44533 -6 -II
question, which is a reasonable inference from the facts on the record. The prosecutor did not offer a personal opinion and the statements were not improper. Even if the statements were improper, Perkins has not shown that the misconduct was so 

### flagrant and ill intentioned that it could not have been cured by an instruction. Moreover,the State played a video of the fight, and presented multiple witnesses testifying that Perkins was the aggressor in the fight. Perkins testified that he went after Mayfield and hit him first. In the context 

### ofthe entire argument and the evidence, Perkins has not shown a substantial likelihood that any 

### resulting prejudice affectedthejury'sverdict. Therefore, Perkins' challenge fails.

5. 

### Comments disparaging defense counsel Perkins alleges that the prosecutor' s comments about Perkins and defense counsel were 

### disparaging and flagrant, ill intentioned, and prejudicial. 

### Perkins assigns error to the following 

### statements made bythe prosecutor during closing arguments: When he' s caught in certain areas where he' s unable to change his story or talk his way out of it, the Defendant was —

### quickly resorted to flashing anger, quickly. And 

### ifthat didn'tworkfor him,then he useddiverting tactics. That's what his Defense Counsel did here earlier. And that' s what they get paid to do. Come here and divert your attention from what really happened. 

### What really happened is the Defendant assaulted John Mayfield twice. He did it without lawful authority. 3 VRP at 346 ( emphasis added) ( noting the portion Perkins assigned error to.) Perkins did not object to the above statement, and the State concedes that the above statement was improper, but argues that it was not prejudicial. 

### A prosecutor may not " disparagingly comment on defense counsel' s role or impugn the defense lawyer' s 

### integrity." Thorgerson, 172 Wn.2d at 451 ( citing State v. Warren, 265 Wn.2d 17, 29 - 30, 195 P. 3d 940 (2008)). Here, it is clear that the prosecutor made a statement saying that

13No. 44533 -6 -II

the defense counsel is paid to divert attention, and that is improper. We accept the State' s concession that the prosecutor' s statement was improper. But, Perkins has not shown that the misconduct was so flagrant and ill intentioned that it
could not have been cured 

### by a

### jury instruction. 

### Moreover, as previously discussed, given the context ofthe entire argument and the evidence, Perkins has not shown a substantial likelihood 

### that any resulting prejudice affected thejury's verdict.

6. Cumulative effect Perkins argues that the alleged improper statements, " 

### whether considered individually or in the aggregate, require reversal." Br. ofAppellant at 20. ‘" [ T] he cumulative effect of repetitive 

### prejudicial prosecutorial misconduct maybe so flagrantthatno instruction orseries ofinstructions

can erase their combined prejudicial effect. 

### Lindsay, 180 Wn.2d at443 (quoting In re Glasmann, 175 Wn.2d 696, 707, 286 P.3d 673 ( 2012)); 

### State v. Walker, 164 Wn.App. 724, 738, 265 P.3d 191 2011) ( Cumulative error applies when the prosecutor makes " improper comments notjust once 

### or twice, but frequently. "). Here, the prosecutor committed misconduct when he disparaged the role of defense
counsel, saying that it is paid to divert the 

### jury' s attention. 

### Courts apply the cumulative error doctrine to cases of repetitive or frequent misconduct — one instance is neither repetitive nor 

### frequent. Accordingly, the cumulative error doctrine does not apply here. B. OFFENDER SCORE CALCULATION 

### Perkins alleges thatthetrial court erred by . miscalculating his offender score by adding 1 point because he was under community custody at the time of the assault. Interpretation of the

14No. 44533 -6 -II



### Sentencing Reform Act (SRA) is aquestion oflaw,which we reviewde novo. State v.Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011). The SRAprovides that 1 point is added ifthe present conviction is for an offense committed
while the offender was under community custody. RCW 9. 94A.525( 19). 

### Community custody is tolled if a defendant is in confinement, " unless the offender is detained pursuant to RCW 9.94A.740 or 9.94A.631 ... for confinement pursuant to sanctions imposed for violation of
sentence conditions, in which case, the period of community custody shall not toll." RCW 9.94A. 171( 3)( a). The State argues that Perkins cannot challenge his offender score on appeal because he stipulated to his criminal 

### history. Washington courts " hold that in general a defendant cannot
waive a challenge to a miscalculated offender score" when based on legal error. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 ( 2002). "[ 

### T]he court may rely on the defendant' s stipulation or acknowledgement of prior convictions to calculate the offender score." State v. James, 138 Wn. 

### App. 628, 643, 158 P. 3d 102 ( 2007), review denied, 163 Wn.2d 1013 2008). When a defendant stipulates to his prior convictions to calculate his offender score, he cannot object to the calculation on appeal. State v. Cadwallader, 155 Wn.2d 867, 875, 123 P.3d 456 (2005). 

### Here, Perkins agreed to his criminal history, and he expressed to the courtthat he wanted 

### to get sentencing overwith and did notwantto contest his criminal history. The criminal history that Perkins stipulated to listed his prior convictions and showed that he was on community custody at the time of the offense. 

### Taking the record as a whole, because Perkins affirmatively

15No. 44533 -6 -II



### agreed to his criminal history and the fact that he was on community custody at the time ofhis offense, he cannot challenge it on appeal.

We affirm Perkins' conviction and sentence. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is

so ordered.

We concur:

16