# ^m?iMBMi STA* 

### 2013HM 

## 13 Kt 8- 59

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. FELIPE JOSEPH RAMOS, Appellant.

STATE OF WASHINGTON, Respondent,

v. MARIO ALEJANDRO MEDINA, Appellant. No. 67757-8-1 (Consolidated with No. 67758-6-1) DIVISION ONE

UNPUBLISHED FILED: Mav 13. 2013

Cox, J. — In these consolidated cases, codefendants Felipe Ramos and Mario Medina appeal their convictions and sentences. Medina, convicted of second degree murder, argues that the trial court abused its discretion when it allowed the State to amend the prior charging document. Medina also contends that the court erred when itfailed to give him credit for time served prior toNo. 67757-8-1 (Consolidated with No. 67758-6-l)/2 

### sentencing inthe KingCounty Community CenterforAlternative Programs (CCAP) Enhanced. We hold that the courtdid not abuse its discretion by permitting amendment ofthe information prior to trial. And the court correctly declined to give creditfor pre-trial confinement in CCAP Enhanced, although the basis for doing so was incorrect. We affirm Medina's conviction and sentence. Ramos, convicted of first degree manslaughter, argues that the first degree manslaughterjury instruction attrial was legally incorrect and unconstitutionally lowered the State's burden of proof. He also argues that he

was denied effective assistance of counsel when his attorney proposed this incorrect instruction. We hold that Ramos is barred by the invited error doctrine from challenging the instruction his trial counsel proposed. But proposing that instruction deprived Ramos of his constitutional right to effective assistance of counsel. We reverse Ramos's conviction and remand for further proceedings. 

### In 1997,Medina lived with his sister, Maria,1 and her ex-husband, Felipe Ramos. At the time, Maria worked as the night clerk at a Motel 6. Her boss there was Joe Collins. On September 13,1997, Maria was late to work, and Collins sent her home. After retrieving a handgun from the Medina/Ramos apartment, Medina and Ramos drove to the Motel 6 to confront Collins.



### 1We adopt the naming convention of the parties fornaming Maria Medina for clarity.

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/3 Upon arriving atthe Motel 6, Ramos and Medina began searching for Collins. After speaking with several witnesses, they knocked on his door. When Collins answered, Medina asked him if he "had a problem with Maria." Before 

### Collins could answer, either Ramos or Medina shot him inthe head, killing him. In 1999, the State charged both Ramos and Medina with first degree intentional murder. Thejury found them guilty of the lesser included offense of 

### second degree felony murder, based on the predicate offense of second degree assault. 

### Both Ramos andMedina appealed.2 Theirappealswere then stayed, pending theoutcome of several supremecourtcases.3 In reAndress. one of these decisions, held that a conviction for second degree felony murder could not 

### be based upon a predicatecrime ofassault.4 Based on thisdecision, this court vacated both convictions of Medina and Ramos, which were based on the 

### predicate offense ofsecond degree assault.5 On remand, the State charged both Medina and Ramos with first degree manslaughter. Both defendants moved to dismiss this charge, alleging that it 

### violated double jeopardyand the mandatoryjoinderrule.6 The supreme court

2See State v. Ramos. 124Wn. App. 334, 101 P.3d 872 (2004). 3lg\ at 337. 4 147Wn.2d 602, 604, 56 P.3d 981 (2002), superseded bvstatute. RCW 9A.32.050. 

### 5Ramos. 124Wn.App. at 343. 6See State v. Ramos. 163 Wn.2d 654, 659, 184 P.3d 1256 (2008).No. 67757-8-1 (Consolidated with No. 67758-6-l)/4 took direct review and held that the first degree manslaughtercharges did not 

### violate eitherprovision.7 In2010, following remand, the State moved to amend the priorcharging document. The trial court granted the State's motion, and Medina and Ramos
were both charged with second degree intentional murder. 

### Both men were tried before the samejury inJune 2011. Thejury found Medina guilty of second degree intentional murder. But itfound Ramos guilty of the lesser included offense of first degree manslaughter. Both Ramos and Medina appeal. AMENDMENT OF INFORMATION Medina argues that the trial court abused its discretion by permitting the State to amend the prior information to include second degree murder. Although the amendment was five years after the initial charging document, itwas over a year prior to trial. Because Medinafails to establish prejudice, there was no abuse ofdiscretion in permitting amendment. Superior Court Criminal Rule (CrR) 2.1(d) allows a courtto permitthe State to amend an information "at any time before verdict orfinding ifsubstantial rights of the defendant are not prejudiced." Echoing the United States Supreme Court, our supreme court has recognized: "[A] prosecutor should remain free before trial to exercise the broad discretion entrusted to him [or her] to determine the extent ofthe societal interest in prosecution. An initialdecision should notfreeze future conduct.... [T]he initial charges filed by a prosecutor may

7 Id. at 661-62.

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/5

not reflect the extent to which an individual is legitimately subjectto 

### prosecution."® Such an amendment is within the court's discretion, and it is consequently 

### reviewed by an appellate courtfor an abuse ofdiscretion.9 CrR 2.1(d)'s provision for liberal amendment of a charging document is "tempered by article I, section 22 of the Washington Constitution, which requires 

### that the accused be adequately informed of the charge to be met attrial."10 This requirement ensures that a defendant is sufficiently apprised ofthe charges 

### againsthim so that he can prepare a defense.11 Generally, "[a] defendant cannot claim errorfrom the amendment of an 

### information unless he can show he was prejudiced thereby."12 Typicallythe prejudice that CrR 2.1 (d) addresses is whether the amendment leaves the 

### defendantwithouttime to prepare a defense to a newcharge.13

8Statev. James. 108Wn.2d 483, 488-89, 739P.2d 699 (1987) (some alterations in original) (quoting United States v. Goodwin. 457 U.S. 368, 382,102 S. Ct. 2485, 73 L Ed. 2d 74 (1982)). 9 Id at 490. 

### 10 State v.Zieoler. 138Wn. App. 804, 808, 158 P.3d 647 (2007). 11 State v. Kosewicz, 174Wn.2d 683, 691, 278 P.3d 184 (2012). 12 State v. Jones. 26Wn. App. 1,6, 612 P.2d 404 (1980) (citing State v. Brown. 74 Wn.2d 799, 447 P.2d 82 (1968)). 

### 13 State v. Larson. 160Wn. App. 577, 594, 249 P.3d 669, review denied. 172 Wn.2d 1002 (2011): see also State v. Murbach. 68 Wn. App. 509, 512, 843 P.2d551 (1993).No. 67757-8-1 (Consolidated with No. 67758-6-l)/6 

### For example, the supreme court has held thatthe possibility of a harsher 

### penaltydid notresult in prejudice.14 In Statev. James,the Stateoriginally chargedJames with second degree murder.15 Amonth later, afterJames made

a tape recorded confession, the State moved to amend the charge to firstdegree 

### murder.16 In the sameproceeding, Jamesattempted to withdraw his original plea and pleadguiltyto theoriginal charge.17 Priorto the State's amendment, the State and James's counsel engaged in plea discussions during which the State 

### made clear thatitwasconsidering amending the charge againstJames.18 The supreme court held that the amendment of the information was not prejudicial: While James has a conditional right to withdraw his not guilty plea, he has failed to sustain his burden of demonstrating specific prejudice resulting from the information amendment. James does not claim surprise or an inability to prepare a defense because of the trial court's ruling. At trial, James argued that being subject to the harsher penalty accompanying a first degree murder charge constituted specific prejudice [But] we find that thepossibility 

### ofa harsherpenalty, standingalone, cannotconstitute 

### specificprejudice.1 ] The James court did note that because "the prosecution reached its decision to amend with reasonable dispatch, [and] without any suggestion of bad
14 James. 108 Wn.2d at 484. 

### 15id, at484-85. 16Ig\at485. 17 Id at 485-86. 

### 18kL 19 kl at 489-90 (emphasis added) (citations omitted).

### No. 67757-8-1 (Consolidated with No. 67758-6-IJ/7 faith.
... [V]indictiveness, which the United States Supreme Court has viewed

as prejudicial in the decision to charge, played no role in the State's motion to amend."20 

### Here, the amendment ofthe information to charge second degree murder followed a period of uncertainty on what charges could property be made. Those uncertainties were finally resolved by the supreme court, the stay ofthe appeals

was lifted, and the State moved to amend the information in February 2010. Medina's trial did not begin untilJune 2011, over a year later. Thus, Medina had

more than ample time prior to trial to prepare a defense to the new charges against him. There is nothing in this record to suggestthat he had insufficient time to prepare a defense to the amended charge. Likewise, there is nothing to suggestthe loss ofwitnesses or other evidence that would support a showing of prejudice to Medina by allowing the amendment ofthe information. And there is

no showing of vindictiveness by the State amending the charge against him. As in James, the mere fact that the State's amendment increased the possible penalty Medina would face if convicted was not, by itself, prejudicial. The State's amendment of the information appears to have been motivated by 

### thesupreme court's opinion in this case, notby anyvindictiveness.21 The supreme court clarified that the prior jury verdict did not preclude a charge of

20 Id. at 490. 

### 21 See State's Motion to Amend Information, Medina2012 Clerk's Papers at 160-61 ("Once the proper analysis underthe principles ofalternative means was apparent, the State indicated the intentto amend the charges to intentional murder.").

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/8 

### first-degree manslaughterunderthealternative means analysis.22 Thus, afterthe court's decision in this case in 2008, the State determined that, under the alternative means analysis applied by the supreme court, itcould stillcharge Medina with murder. It then moved to amend the information. Medina argues that his case is distinguishable from James for three

reasons. None are persuasive. First, he argues that James did not, in fact, create a "per se rule and does not preclude Medina from arguing that the circumstances of his case ... demonstrate prejudice." We agree. James involved both the question ofwhen a defendant may withdraw a plea andwhen amendment ofan information is prejudicial. And that court "evaluated the specific circumstances ofJames' case 

### indeciding he could not show prejudice [by the amendment]." But this fact does not change the supreme court's holding, that "the possibility of a harsher penalty, 

### standing alone, cannotconstitute specific prejudice."23 Medina's argument is, essentially, that the possibility of a harsher penalty, occurring five years afterthe original information, is prejudicial. This argument is directly refuted by James. Second, Medina argues that the "policy considerations" implicated in James are not present here, pointing out that the James court was concerned with balancing the State's interest in adapting to an ongoing investigation and the 

### defendant's right to withdraw a plea. But similar policy considerations with

22 Ramos. 163 Wn.2d at 660-62. 23 James. 108 Wn.2d at 489-90. 8

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/9 regard to the State's interests are represented here. The State amended Medina's information only afterthe supreme court made clearthat itcould do 

## so.24 Like theJamescourt's interestin allowing the Stateflexibility toadaptto an ongoing investigation, the State has an interest inadapting to a clarified legal landscape. Third, Medina contends that unlike the defendant in James, he was 

### prejudiced by the State's representations at his 2005 arraignmentthat he would only be charged for first degree manslaughter. It is true that inJames, the 

### defendant appears to have had some knowledge thatthe State was at least 

### considering altering the charge againsthim.25 Butthe mere factthat the State did not provide Medina a warning before the amendment does not, by itself, result in prejudice. There is no indication that the State sought a plea deal with Medina during the second trial. Thus, Medina fails to persuade us how lack of 

### knowledge ofthe amended charge, prior to the State's official motion, prejudiced him. 

### Medina also asserts that the amendmentofthe information five years after his initialcharge is itself prejudicial. But he cites no authority to support the



### 24 See Medina2012 Clerk's Papers at 160-61 ("Once theproperanalysis under the principles of alternative means was apparent, the State indicated the intent to amend the charges to intentional murder."). 25 James. 108 Wn.2d at485.

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/10 contention that passage of time, well before trial, constitutes prejudice to a 

### defendant. Medina relies on Statev. Ziealer.26 butthis case isnothelpful. There, the supreme court concluded that the amendment ofthe counts for 

### child rapemidtrialprejudiced Ziegler.27 Thecourtpermitted the State to amend the information during trial, changing the firstdegree child rape charge to a first 

### degree child molestation charge and adding two first degree rapecharges.28 Thus, because ofthe midtrial amendment, Zieglerwas not able to properly 

### prepare a defense and was prejudiced.29 That is notthe case here. It is true that in holding thatthe amendmentwas prejudicial to Ziegler and thus an abuse ofdiscretion, the supreme court stated that "[a]dding two child rape charges during trial affected Ziegler's ability to prepare his defense. His trial 

### strategy andplea negotiations with the State would likelyhave been different 

### had he known therewould betwo additional child rapecharges."30 We are not convinced thatthis passing mention ofplea negotiations means that anytime the State increases a charge against a defendant by amendment ofthe information, he or she is prejudiced by a demonstration that a plea would have been taken before amendment.



### 26 138Wn. App. 804, 158 P.3d 647 (2007). 27 ]d at 810-11. 28 Id,at 807. 29 Ji at 811. 

### 30]a\(emphasisadded). 10No. 67757-8-1 (Consolidated with No. 67758-6-l)/11 Finally, Medina points to the United States Supreme Court's recent 

### decision in Missouri v. Frve,31 arguing thatits enunciation oftheimportance of plea bargaining in the criminaljustice system somehow trumps our state court's interpretation of CrR 2.1 (d). Itdoes not. Frve addressed whether a defendant received ineffective assistance of 

### counsel where his attorney failed to inform him of two plea bargains offered by 

### theState.32 The Supreme Courtheld thatsuch action by anattorneyfell below the proper standard ofrepresentation.33 In contrast, there is no evidence here that a plea bargain was everoffered to Medina. Thus, Frve is inapplicable. CREDIT FOR TIME SERVED Medina next argues that he is entitled to credit against his sentence because the time he spent before sentencing in King County's CCAP Enhanced qualifies under governing statutes. We disagree. An offender sentenced to a term of confinement has both a constitutional and a statutory right to receive creditfor confinementfor time served before 

### sentencing.34 Thefailure toprovide creditfortime servedin confinementviolates

31

_ U.S. _, 132 S. Ct. 1399, 182 L Ed. 2d 379(2012). 32 Id at 1404, 1409. 

### 33 ]d at 1408-09. 34 RCW 9.94A.505; State v. Speaks. 119 Wn.2d 204, 206, 829 P.2d 1096 (1992). 11No. 67757-8-1 (Consolidated with No. 67758-6-l)/12 

### due process, equal protection, and the doublejeopardy prohibition against 

### multiple punishments.35 Under RCW 9.94A.345, "[a]ny sentence imposed under [the SRA] shall be determined in accordance with the law in effect when the current offense was 

### committed." "Generally statutes are presumed to apply prospectively, unless 

### there is some legislative indication to thecontrary."36 Underthe SRA, The sentencing court shall give the offender credit for all confinementtime served 

### before the sentencing ifthat confinementwas solely in regard to the offense for 

### which theoffenderisbeing sentenced."37 "'Confinement' meanstotal orpartial confinementas defined in [the SRA]."38

35 In rePers. RestraintofCostello. 131 Wn. App. 828, 832, 129P.3d 827 (2006). But see Harris v. Charles. 151 Wn. App. 929, 936-37, 214 P.3d 962 (2009) (holding thatfailure to credittime served inelectronic home monitoring to misdemeanor sentence was not a violation ofdefendant's equal protection rights because there is a rational basis for treating misdemeanants differently than felons). 

### 36 Statev. Humphrey. 139 Wn.2d 53, 57, 983P.2d 1118(1999); Howell v. Spokane & Inland Empire Blood Bank. 114 Wn.2d 42, 47, 785 P.2d 815 (1990) ("Statutory amendments are ... presumed to be prospective unless there is a legislative intentto the contrary orthe amendment is clearly curative."); State v. Doutv. 92 Wn.2d 930, 935, 603 P.2d 373 (1979) ("It is a fundamental rule of statutory construction that a statute is presumed to operate prospectively and ought not to be construed to operate retrospectively in the absence of language clearly indicating such a legislative intent." (quoting Earle v. Froedtert Grain & Malting Co.. 197 Wash. 341, 344, 85 P.2d 264 (1938))). 

### 37 Former RCW 9.94A.120(16) (1988); see also RCW 9.94A.680. 38 Former RCW 9.94A.030(8) (1988). 12No. 67757-8-1 (Consolidated with No. 67758-6-l)/13 

### We may affirm on any ground supported by the record even ifthat ground 

### was notargued to thetrial court.39 Here, thetrial courtimposed a sentence of183months.40 Medina sought credit against this sentence for 1,505 days served prior to sentencing in King 

### County's CCAP Enhanced.41 In doing so, herelied exclusivelyonRCW 9.94A.680, a statute that provides foralternatives to total confinement.42 The record shows that he was in this local program during 2007 and after, 

### following serving time in prison.43 Thetrial courtdenied crediton the basis that this statute, by its terms, applies only to offenders withsentences ofone yearor 

### less.44 Because Medina's 183month sentence exceeded thatterm, thetrial court denied his requestfor credit under CCAPEnhanced.45 But the trialcourt granted creditto Medina for 1,084 days time actually 

### servedin confinementin the King CountyJail priortosentencing.46 This part of the sentence is not at issue on appeal.



### 39 LaMon v. Butler. 112Wn.2d 193, 200-01, 770 P.2d 1027 (1989). 40 Medina 2012Clerk's Papers at 188. 

### 41 Sentencing Hearing, ReportofProceedings (Sept. 30,2011) at4-5,19. 42 lg\ at 7. 

### 43 ]g\ at 13; Medina 2012Clerk's Papers at 179-189. 44 ReportofProceedings (Sept. 30,2011) at 15,19. 45 Jg\ at 15-16. 

### 48 Medina 2012Clerk's Papers at 188. 13

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/14 Here, Medina contends that his time spent prior to sentencing in King County's CCAP Enhanced constitutes "confinement" for which he is entitled to credit against his sentence under governing statutes. We conclude that neither the record nor the governing statutes supports this claim. 

### First, RCW 9.94A.680, on which Medina primarily relies, was not enacted until 1999. This was well afterthe time ofMedina's crime in September 1997. 

### Accordingly, RCW 9.94A.345 bars application of this statute to this sentencing because it was not in effect at the time of Medina's crime. Second, there is nothing in RCW 9.94A.680 that indicates that ithas retroactive effect. 

### For these reasons, this statute has no bearing on the question that we mustdecide: whethercreditfor time served prior to sentencing inCCAP Enhanced should be applied to Medina's sentence for his September 1997 crime. Medina argues that CCAP Enhanced constitutes "partial confinement" for 

### which he is entitled to credit against his sentence. We are not persuaded that this is correct. The question ofwhat activities qualify for creditfor time served is one of statutory interpretation. When engaging in statutory interpretation, an appellate 

### courtlooksfirst to the statute's plain language.47 Ifthe statute's meaning isplain 

### onits face, theinquiryends.48 Astatute isambiguous when itissusceptibleto

47 Statev. Armendariz. 160Wn.2d 106, 110, 156P.3d201 (2007). 48jg\ 14No. 67757-8-1 (Consolidated with No. 67758-6-l)/15 

### two ormore reasonable interpretations.49 Buta statute isnotambiguous merely because different interpretations are possible.50 Themeaning of a statute is a question of lawthat an appellate courtreviews de novo.51 As we have already explained, for purposes of sentencing credit, the applicable definition of "confinement" was that existing at the time of Medina's crime in September 1997. Underthe SRA, as itthen read, confinement included 

### "total orpartial confinement."52 "Partial confinement," which is at issue here, was then defined as: confinementfor no more than oneyearin a facility or institution operatedorutilizedunder contract by the state or any otherunitof government, or, ifhome detention or work crew has been ordered by the court, in an approved residence, for a substantialportion ofeach day with the balance of the day spent in the community. Partial confinement includes work release, home detention, work crew, and a combination ofwork crew and home 

### detention as defined inthis section.1531 The above emphasized language shows that there were temporal requirements to qualify for partial confinement at the time of Medina's crime. As 

### the State argues, there does not appear to be any definition in this statute of the phrase "a substantial portion of each day," one ofthese temporal requirements.



### 49 HomeStreet. Inc. v. Deo't ofRevenue. 166 Wn.2d 444, 452, 210 P.3d 297 (2009) (quoting State v. Hahn. 83 Wn. App. 825, 831, 924 P.2d 392 (1996)). 

### 50 !i 51 Okeson v. CityofSeattle. 150 Wn.2d 540, 548-49, 78 P.3d 1279 (2003). 

### 52 FormerRCW 9.94A.030(8) (1988). 53 FormerRCW 9.94A.030(26) (1991) (emphasis added).

15

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/16 Butthe State correctly argues that former RCW 9.94A.180(1) (1988) provides as follows: An offender sentenced to a term of partial confinement shallbe 

### confined in thefacilityforat least eight hours perday... .[54} Harmonizing these statutes, to qualify for time served in partial confinement an offender must demonstrate that this partial confinement included 

### at least eight hours perday in a "facility." There is nothing inthis record to substantiate that Medina met the eight hour daily minimum requirement in CCAP Enhanced. This failure is fatal to his claim for credit for time served. 

### Citing RCW 9.94A.030(35), a currentdefinitional provision ofthe SRA, Medina argues thatthe varied requirements of partial confinement programs do not require participation for a specific minimum number ofhours perday or per 

### week.55 Theprograms towhich he refers include workrelease, workcrew, home detention, and a combination ofwork crew and home detention. We cannot agree. As we previously stated in this opinion, the controlling definitional 

### provision for determining Medina's sentencing credit was the definitional section of the SRA in effect at the time of Medina's crime. That statute
was former RCW 9.94A.030(26) (1991), which stated: Partial confinement includes work release, home detention, work crew, and a combination ofwork crew and home detention as defined in [the SRA].



### 54 (Emphasis added.) 55 BriefofAppellantat 16 et seq. 16

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/17 Although the language of the current and former provisions is identical, Medina has not pointed to anything in this record to substantiate that he was either in any ofthese individual programs or a "combination of work crew and 

### home detention" for the relevanttime. This failure is also fatal to his argument. Medina also appears to argue that his participation in CCAP Enhanced in 2007 and after is sufficiently similarto the programs specified informer RCW 9.94A.030(26) (1991) to qualify as confinementfor purposes ofcredit for time served. We again disagree. 

### "Work crew" was defined underformer RCW 9.94A.030(34) (1991) as: [A] program of partial confinement consisting of civic improvement tasks for the benefit ofthe community of not less than thirty-five hours perweekthat complies with RCW 9.94A.135 Only those offenders sentenced to a facility operated or utilized under contract 

### by a countyor the state are eligible to participate on a workcrew.[56] Underformer RCW 9.94A.135 (1991): An offenderwho has successfully completed four weeks ofwork crew at thirty-five hours per week shall thereafter receive credit towards the work crew sentence for hours worked at approved, verified employment. Such employment credit may be earned for up to twenty-four hours actual employment perweek, provided, however, that every such offender shall continue active participation inwork crews projects according to a schedule approved by a work crew supervisor until the work crew sentence has been served. "Work release" was defined in the 1997 SRA as: [A] program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school. Participation in work release shall be conditioned upon the



### 56 Former RCW 9.94A.030(39) (1995).

17

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/18 

### offender attending work or school at regularly defined hours and 

### abiding bytherules oftheworkreleasefacility.[57] Generally, one is partially confined in a residential facility during work release.58 Medina has failed to establish in this record that his participation inCCAP 

### Enhanced was sufficiently similar to the above programs to qualify for credit. The section ofthe KingCounty Municipal Code enacting the general CCAP program provides: A. The community corrections division ofthe department of 

### adult andjuvenile detention shall provide a county supervised community option for offenders convicted of nonviolent and non-sex 

### offenses with sentences ofone yearor less as provided in RCW 9.94A.680. B. For the purposes ofthis section, "county supervised option" means an alternative to confinement program inwhich an 

### offender must participate for a minimum of six hours perday of structured programs offered through, or approved by, the community corrections division. The structured programs may include, but are not limited to: life management skills development; substance abuse assessment and treatment services; mental health assessment and treatment services; counseling; basic adult education and related services; vocational training services; and job 

### placementservices.[59] The King County Department of Adult and Juvenile Detention further outlines 

### CCAP as a program that "holds offenders accountable to a weekly itinerary

57 Former RCW 9.94A.030(41) (1997). 

### 58 See Citizens for Fair Share v. State Dep'tofCorr.. 117Wn. App. 411, 423, 72 P.3d 206 (2003) (deferring to the Departmentof Corrections interpretation that a "facility" is a residentialfacility when considering work release programs). 

### 59 King County Code § 5.12.010, available at http://www.kinQCOuntv.QQv/council/leQislation/kc code/08 Title 5.aspx.

18No. 67757-8-1 (Consolidated with No. 67758-6-l)/19 

### directed atinvolving the offenderin a continuum ofstructured programs."60 CCAP is aimed at providing offenders with the services thatfittheir needs: 

### The goal of CCAP is to assist offenders inchanging those behaviors that have contributed to their being charged with a crime. CCAP provides on-site services as well as referrals to community-based services. Random drug tests are conducted to monitorfor illegal drug use and consumption of alcohol. Offenders participating in CCAP receive an individual needs assessment and 

### are scheduledfor avariety ofprograms.1611 Consistent withstate statutes, this program only requires six hours per day—not the eight hour minimum required underformer RCW 9.94A.180(1) (1988). Significantly, there is nothing in this record to show what Medina did or 

### for how long during his time in CCAP Enhanced. The above description of CCAP does nothing to fill this gap. Withoutsuch information, there is no way to show that this program is sufficiently similarto partial confinement, as defined in 1997 by state statute. 

### Given this sparse appellate record, the adequacy of which is Medina's burden to provide, he is not entitled to pre-sentencing credit under governing law. While neither party addresses the point, there is another reason why Medina is not entitled to credit for time served in CCAP Enhanced. Former RCW 

### 9.94A.380 (1988), the statute thatwas in effect at the time of his September 1997 crime, provided as follows: Alternatives to total confinement are available for offenders with sentences ofone year or less. These alternatives include the 

### 60 King County DepartmentofAdultandJuvenile Detention, available at http://www.kingcountv.gov/courts/detention/communitv corrections/programs.asp x#ccap. 

### 61jg\ 19

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/20 following sentence conditions that the court may order as substitutes for total confinement: 

### (1) One day of partial confinement may be substituted for one day of total confinement; (2) In addition, for offenders convicted of nonviolent offenses only, eight hours of community service may be substituted for one day oftotal confinement, with a maximum conversion limit of two 

### hundred forty hours or thirty days. Community service hours must be completed within the period ofcommunity supervision or a time 

### period specified by the court, which shall not exceed twenty-four months, pursuantto a schedule determined by the department. For sentences ofnonviolent offenders for one yearor less, the court shall consider and give priority to available alternatives to 

### total confinementand shall state its reasons in writing on the judgment and sentence form ifthe alternatives are not used. The plain words of this statute buttress our conclusion that Medina was not entitled to credit for time served. His confinement was for more than one year. Murder, the offense for which he was convicted, is not a "nonviolent offense." And his failure to qualify under both ofthese criteria made him ineligible for "available alternatives to total confinement." To summarize, RCW 9.94A.680, on which Medina primarily relies does not control the question of whether he is entitled to time served in CCAP Enhanced because itwas not in effect at the time of his September 1997 crime. 

### Rather, former RCW 9.94A.380 (1988) is the controlling statute. Significantly, Medina fails to show that his activities in CCAP Enhanced qualify for creditfor time served either under the provisions of RCW 9.94A.380 or under the more general provisions of the SRA.

20

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/21 Rule ofLenity 

### Medina argues that, to the extentthatthe applicable statutes could be 

### ambiguous as to credit for time served in CCAP Enhanced, the rule of lenity applies. Because the governing statutes that we have discussed are clear, the rule of lenity has no place here. 

### "The rule of lenityrequires [a court] to interpret an ambiguous criminal 

### statuteinfavorof the defendant absent legislative intentto thecontrary."62 For the reasons previously explained, the statutes are not ambiguous. They are not susceptible to two or more reasonable readings. 

### We have already discussed what statutes govern and why. There is no 

### ambiguity inthese statutes that requires us to considerthe rule of lenity. EqualProtection and Double Jeopardy Finally, Medina contends that the trial court's failure to credit his time 

### spent inCCAP Enhanced violates doublejeopardy and his right to equal protection. This is not the case. 

### UnderNorth Carolina v. Pearce.63 a case on which Medina relies, the Fifth Amendment guarantee against doublejeopardy "is violated when punishment already exacted for an offense is notfully 'credited' in imposing sentence upon a 

### new conviction for the same offense."64 Thus, theprotection againstdouble

62 Statev. Mandanas. 168Wn.2d 84, 88, 228 P.3d 13 (2010). 63 395U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656(1969), overruled in part bv Ala, v. Smith. 490 U.S. 794, 801, 109 S. Ct. 2201, 104 L Ed. 2d 865 (1989). 64 Id. at 718.

21No. 67757-8-1 (Consolidated with No. 67758-6-l)/22 jeopardy "requires that punishment already exacted must be fully 'credited' in 

### imposing sentence upon a newconvictionfor the same offense."65 Here, Medina is not entitled to creditfor time served before sentencing in CCAP Enhanced for the reasons we explained previously in this opinion. Thus, there is no question of him being subjected to doublejeopardy. Pearce does not require a different result. 

### Similarly, Medina's equal protection argument depends on him being entitled to credit for time served under CCAP Enhanced. Under State v. 

### Anderson66 and State v. Swiaer.67 the supreme courtheld that a condition that would qualify as confinement pre-conviction must also qualify as such post 

### conviction.68 Buthere, as explained previously in this opinion, Medinaisnot entitled to time served presentence in CCAP Enhanced. There is no equal protection violation. We next consider the claims of Ramos. JURY INSTRUCTION Ramos argues that the trial court's first degree manslaughterjury instruction violated his right to due process because itlowered the State's burden of proof. While thejury instruction given by the court did lowerthe burden of



### 65 ]g\ at718-19. 

### 66 132Wn.2d 203, 937 P.2d 581 (1997). 67 159Wn.2d 224, 149 P.3d 372 (2006). 68 Id at 229-30; Anderson. 132 Wn.2d at 207-08.

22

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/23 

### proof, his counsel agreed to it. Thus, this claim oferror is barred bythe invited

error doctrine. 

### Under State v. Gamble69and State v. Peters.70 to convict a defendant of first degree manslaughter "requires the State to prove beyond a reasonable doubt that the defendant knew of and disregarded a substantial risk that death 

### may occur."71 This courtheld in Peters that ajury instruction that defines reckless to mean [the defendant] knew of and 

### disregarded "a substantial riskthat a wrongful act may occur," ratherthan "a substantial riskthatdeath may occur," is contrary to Gamble and WPIC 10.03. The instruction impermissibly relieve[s] the State ofthe burden of proving beyond a reasonable doubt that [the defendant] knew ofand disregarded a substantial riskthat death may occur, and allowed thejury to convict [the defendant] of 

### only a wrongful act.1721 Whether a jury instruction has impermissibly lowered the State's burden of 

### proof is a question oflaw that this court reviews de novo.73 The State concedes that the supreme court's decision in Gamble and our 

### decision in Peters require a correctjury instruction for firstdegree manslaughter,

one otherthan that used here. Nevertheless, Ramos's own counsel proposed instructions that included the "wrongful act" language in the first degree manslaughter instructions. Thus, the invited error doctrine precludes Ramos's appeal based on this error. 

### 69 154 Wn.2d 457, 114 P.3d 646 (2005). 

### 70 163 Wn. App. 836, 261 P.3d 199 (2011). 71 Id at 848 (citing Gamble. 154Wn.2d at467-68). 72 Id at 849-50. 

### 73 id at 847. 23

### No. 67757-8-1 (Consolidated with No. 67758-6-l)/24 

### Under the doctrine of invited error, a party is prohibited from "'setting up 

### an errorattrial and thencomplaining ofitonappeal.'"74 Thus, a court"will deem an errorwaived iftheparty asserting such errormateriallycontributed thereto."75 The invited error doctrine generally requires a defendant's affirmative actto have set up the complained oferror, that is, a voluntary and knowing action. The 

### supreme court has made clearthatthis includes requested instructions. "'[A] party may not request an instruction and later complain on appeal that the 

### requestedinstructionwas given.'"76 Here, Ramos's counsel proposed the complained-of instruction. Consequently, Ramos cannot now argue thatthis error should result in a vacation of his sentence. Ramos argues that Peters requires reversal of his conviction, but he fails to note the significance of who proposed the improper instructions in that case. There, the trial court disagreed with the State and defense's proposed 

### instructions, andit suggested and theninstructed on the improperstandard.77 That is not the case here, where Ramos's counsel proposed the improper instruction.



### 74 State v.Wakefield. 130Wn.2d 464, 475, 925 P.2d 183 (1996) (quoting Statev.Pam. 101 Wn.2d 507, 511, 680 P.2d 762 (1984)). 

### 75 In re Dependency ofK.R.. 128 Wn.2d 129, 147, 904 P.2d 1132 (1995). 

### 76 State v. Studd. 137Wn.2d 533, 546, 973 P.2d 1049(1999) (quoting State v. Henderson. 114 Wn.2d 867, 870, 792 P.2d 514 (1990)). 

### 77 Peters. 163Wn. App. at844.

24No. 67757-8-1 (Consolidated with No. 67758-6-l)/25

INEFFECTIVE ASSISTANCE OF COUNSEL Ramos next argues that his defense counsel's failure to research the relevant law and consequent proposal ofan improperjury instruction for first degree manslaughter resulted in ineffective assistance of counsel and requires reversal. We agree. To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness based on consideration of all circumstances and that the 

### deficientperformance prejudiced thetrial.78 The reasonableness inquiry presumes effective representation and requires the defendantto show the 

### absence oflegitimate strategic ortactical reasonsforthechallenged conduct.79 In orderto show prejudice, the defendant must prove that, butfor the deficient performance, there is a reasonable probability that the outcome would have been different.80 Aclaim of ineffective assistance of counsel presents a mixed question of 

### fact and lawthat an appellate courtreviews de novo.81 Here, the State does not dispute that Ramos's lawyer's performance was deficient. "Both Gamble and the comment regarding the WPIC were published 

### 78 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L Ed. 2d 674 (1984); State v. Nichols. 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). 

### 79 State v.McFarland. 127Wn.2d322, 336, 899 P.2d 1251 (1995). 80 In re Pers. Restraint of Pirtle. 136Wn.2d 467, 487, 965 P.2d 593 (1998). 

### 81 State v. Sutherbv. 165Wn.2d 870, 883, 204 P.3d916 (2009).

25No. 67757-8-1 (Consolidated with No. 67758-6-l)/26 before [the 2011 trial]. Therefore, itwas deficient performance for Ramos's 

### lawyers to propose the standard version of WPIC 10.03 instead of drafting the instruction in accordance with Gamble and the WPIC comment."82 

### The State argues that Ramos's counsel's deficient performance was not prejudicial. We disagree. In convicting Ramos of first degree manslaughter here, thejury concluded 

### that Ramos knew ofand disregarded the substantial riskthat a wrongful act would occur. It did not considerwhether he disregarded the substantial risk that 

### death would occur. As Ramos notes, ittakes much less to disregard a substantial risk ofany wrongful actthan itdoes to disregard a substantial risk of death. Therein lies the consequence of the instructional error. At trial, the State presented evidence to show that (1) Ramos and Medina 

### agreed to go to Motel 6 to confront Collins; (2) Ramos changed clothes before going to the hotel; (3) one ofthe men took a gun, ammunition, and otherweapon supplies with them to the motel; (4) at least some ofthese supplies had been purchased at Camp Pendleton, where Ramos was stationed when he was in the Marines; (5) Ramos drove to the motel; (6) when Ramos and Medina arrived, they started looking around the motel for Collins; (7) together, they knocked on Collins's apartment door; (8) either Medina or Ramos shot Collins; (9) the pair then ran from Motel 6; (10) Ramos lied to a witness the night ofthe shooting and later to police officers about his presence at the motel. Laterthat night at a



### 82 Briefof Respondent at 14. 26No. 67757-8-1 (Consolidated with No. 67758-6-l)/27 friend's apartment, Ramos asked "What should Ido?" When he learned that 

### Medina had confessed, he became visibly angry. As the State recognizes, because thejury convicted Medina ofsecond degree murder, itappears that they concluded that Medina was the shooter. Given this conclusion and the above evidence presented at trial, there is a 

### reasonable probability that, but for his attorney's deficient performance, the jury would not have convicted Ramos of first degree manslaughter. Thejury appears to have believed Medina's confession, in which he claimed that he alone obtained Ramos's gun from his closet. And the above evidence does not demonstrate a reasonable probability that a jury would have found Ramos acted recklessly, ifrecklessly had been properly defined. The State presented no evidence that demonstrated that Ramos disregarded a substantial risk ofdeath— thejury's determination would indicate that they accepted that Ramos did not know of Medina's plan to murder Collins. Thus, Ramos's counsel was both 

### deficient and his deficient performance was prejudicial. Consequently, Ramos's conviction must be reversed.83 The State argues that, given the evidence itpresented attrial, "Ramos cannot demonstrate that there is a reasonable probability that thejury's verdict would have been different ifthe instruction" had been proper. But, as explained above, the evidence was not overwhelming. The evidence presented by the State demonstrates that Ramos may have had knowledge when he drove to



### 83 Strickland. 466 U.S. at 694; State v. Hendrickson. 129Wn.2d61, 78, 917 P.2d 563 (1996). 27No. 67757-8-1 (Consolidated with No. 67758-6-l)/28 Motel 6 that there was a substantial risk that a wrongful actcould occur. But the evidence did not overwhelmingly demonstrate he knew of a substantial risk of death occurring. 

### Reversal ofthe conviction is the proper remedy for counsel's deficient performance in proposing an improper instruction. STATEMENT OF ADDITIONAL GROUNDS Ramos submitted a statementofadditional grounds for review. His arguments, which focus on the first degree manslaughter instructional error and 

### consequent relief ofthe State's burden of proof, are adequately addressed in his appellate counsel's brief. We will not separately discuss this again. We affirm Medina's conviction and sentence. We reverse Ramos's conviction and remand for a new trial. 

# ^qX,vJ.

WE CONCUR:

28