### FILED 

# COURTOPAPPEALS DIVISION II 

# 2014C1=C 16 MIS 8:33 IN THE COURT OF APPEALS OF THE STATE OF WASHMT S N F \ 45111, TON
STATE OF WASHINGTON, DIVISION II BY
Respondent,

v. KIRK MICHAEL HERNANDEZ, JR., Appellant. No. 44771 -1 - II

UNPUBLISHED OPINION

LEE, J. — 

### A jury found Kirk Michael Hernandez, Jr. guilty of attempted first degree robbery. 

### Hernandez appeals arguing that (1) the trial court erred by refusing to instruct the jury

on the lawful use of force in defense of others, ( 2) 

### the accomplice liability instruction is constitutionally overbroad, ( 3) the " 

### substantial step" jury instruction relieved the State of its burden of proof, and ( 4) the trial court erred by imposing legal financial obligations without 

### determining Hernandez's ability to pay. The trial court did not err by refusing to give the lawful use offorce in defense ofothers instruction because lawful use offorce in defense ofothers is not

a defense to attempted robbery. 

### Hernandez' s challenges to the accomplice liability statute and 

### substantial step" jury instruction lack merit. And,we decline to address Hernandez' s challenge 

### to hislegal financial obligations. Finally,inhisstatementofadditional grounds (SAG)1 Hernandez alleges that he received ineffective assistance of counsel. Hernandez' s ineffective assistance of counsel claim fails. We affirm.

1 RAP 10. 10.No. 44771 -1 - II FACTS 

### In September 2012, Patrick Wade was drinking at the Hideaway in Vancouver, WA. He

### was paying for all his drinks in cash because he had recently cashed his paycheck. When he was outside smoking,two Hispanic males, later identified as Hernandez and Rene Castillo, approached 

### him and showed him abag ofmethamphetamine. Wadetoldthem hewouldthinkabout it,buthe did not purchase any methamphetamine atthattime. A short time later, a Hispanic woman, later identified as Hernandez' s girlfriend Stephanie Torres, approached Wade. Torres stated that she was associated with Hernandez and Castillo, and she could sell him some methamphetamine. 

### Wade agreed to buy $20 ofmethamphetamine from Torres. Wade and Torres left the Hideaway and walked across the street to perform the drug transaction. 

### After the drug transaction was complete, Wade saw Hernandez and Castillo jump

over a nearby fence. Hernandez punched Wade in the head, and Torres demanded that Wade empty his pockets. 

### But, Wade started backing away and then Hernandez, Castillo, and Torres turned and walked away. Wade called 911 and reported the incident. Hernandez' s punch left a markthat hurt for a few days after the incident. The State charged Hernandez with one count of attempted first degree robbery as both a principle and an accomplice. At trial, Wade testified to the facts stated above. Torres also testified 

### attrial. Hertestimonywas consistentwith Wade' s up tothe point she and Wade crossed the street. Torres testified that after she and Wade crossed the street, Hernandez and Castillo walked up and 

### joined them. When the drug deal was complete, Wade reached out and groped her breast. When Hernandez saw Wade grope her breast, he shoved Wade back away from Torres. Torres denied 

### that she took any money from Wade' s pockets.
2No. 44771 -1 - II 

### Hernandez testified at trial. His testimony was also consistent with Wade' s up to the point
when Wade left the bar with Torres. He testified that he followed Wade and Torres across the
street because he wanted to 

### keep an eye on Torres. 

### After the drug deal was completed, he saw Wade grope Torres' s breast. Hernandez testified that when he saw Wade grope Torres he felt disrespected, told Wade to " What the — 

### keep your hand off my bitch," and then he hit Wade. 1B Report of Proceedings ( RP) at 239. 

### He denied attempting to take money from Wade and denied thatTorres told Wade to empty his pockets. 

### Hernandez requested that the trial court instruct the jury on the lawful use of force in defense of others. The trial court declined to give Hernandez' s proposed instruction. The trial 

### court instructed thejury that:

To convict the defendant of the crime of Attempted Robbery in the First 

### Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

1) That between September 20, 2012 and September 21, 2012, the defendant or an accomplice did an act that was a substantial step toward the 

### commission of Robbery in the First Degree;

2) 

### Thatthe actwas done with the intentto commit Robbery in the First Degree; and

3) That the act occurred in the State of Washington. If you find from the evidence that each ofthese elements has been proved beyond a reasonable doubt, then itwill be your duty to return averdict of guilty. 

### On the otherhand, ifafterweighing all the evidence, you have a reasonable 

### doubt as to any one ofthese elements, then it will be your duty to return a verdict of not guilty. Suppl. Clerk' s Papers ( SCP) at 45. 

### Thejury instructions defined " substantial step" as " conduct that strongly indicates a criminal purpose and that is more than mere preparation." SCP at 43. Hernandez did not object to either instruction.No. 44771 -1 - II



### Thejuryfound Hernandezguilty ofattempted firstdegree robbery. Thetrial courtimposed

a standard range sentence. 

### The trial court also imposed legal financial obligations, including 1, 500 for "[flees for court appointed attorney and trial per diem." Clerk' s Papers (CP) at 10. The 

### trial courtfound that "the defendant has the ability or likelyfuture abilityto paythe legal financial obligations imposed herein." . CP at 8. Hernandez did not object to either the legal financial 

### obligations or the trial court's finding that he had the present or likely future ability to pay legal financial obligations. Hernandez appeals. ANALYSIS A. LAWFUL USE OF FORCE IN DEFENSE OF OTHERS JURY INSTRUCTION 

### Hernandez argues thatthetrial court erred by refusing to instructthejury onthe lawful use of force in defense of others. We disagree. 

### In State v. Lewis, 156 Wn. App. 230, 239, 233 P.3d 891 ( 2010), 

### we held thatthe lawful use offorce in self - defense is not a defense to robbery because 

### robbery does not require an intentto inflict bodily harm that can be negated by the lawful use of force. Hernandez seems to argue that, because he was charged with attempted first degree 

### robbery,ratherthan acompleted firstdegree robbery,there is an intentelementthatcan be negated bythe lawful use offorce. Hernandez is mistaken. Attempted first degree robbery requires thatthe State prove that.Hernandez acted with the intent to commit first degree robbery. RCW 9A.28.020( 1). 

### The elements offirst degree robbery are ( 1) the defendant committed the robbery and ( 2) in the course of the robbery the defendantNo. 44771 -1 - II



## inflictsbodilyinjury. RCW9A.56.200.2 Basedonthe reasoningthatthiscourtemployed inLewis,

we see no reason to address attempted robbery any 

### differently than robbery. An attempted first degree robbery does not require that the defendant intend to inflict 

### bodily injury. Rather, the 

### defendant had to intend to commit robbery and in the course of intending to commit robbery cause 

### bodily injury. Like in Lewis, attempted firstdegree robbery does not requirethe specific intentto inflict bodily injury;therefore, there is no intent element that can be negated by a claim oflawful use offorce. 156 Wn.App. at 239. And, to the extent Hernandez argues the defense of others is distinguishable from self - defense, we disagree. The purpose ofthe defense of lawful use of forceto negate the intent to inflict bodily harm — does not change based on whether the force was used in defense of self or in defense of others. See RCW 9A. 16. 020(3). 

### Accordingly, we reject Hernandez' s claim that the 

### trial court erred by refusing to instruct thejury on the lawful use offorce in defense ofothers.

2 

### Robbery is defined as: 

### Aperson commits robberywhen he or she unlawfullytakes personal property from the person ofanother or in his or her presence against his orher will by the use or 

### threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome 

### resistance to the taking; in either ofwhich cases the degree offorce is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was 

### fully completed without the knowledge of the person from whom taken, such knowledge was prevented bythe use offorce orfear. RCW 9A.56. 190.

5No. 44771 -1 - II

B. ACCOMPLICE LIABILITY STATUTE 

### Hernandez argues that the accomplice liability statute is unconstitutional because it is
overbroad and punishes protected speech. We have considered, and rejected, the argument that 

### the accomplice liability statute is overly broad. In State v. Coleman, 155 Wn.App. 951, 960 - 61, 231 P.3d 212 (2010), review denied, 170 Wn.2d 1016 ( 2011), Division One ofthis court held that the accomplice liability instruction was not unconstitutionally broad. And we explicitly adopted Division One' s 

### holding in State v. Ferguson, 164 Wn.App. 370, 376, 264 P.3d 575 (2011), review denied, 173 Wn.2d 1035 (2012). 

### Hernandezalso argues that Coleman and Ferguson were wrongly decided because they did 

### not apply the appropriate standard that the United States Supreme Court articulated in Brandenberg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 ( 1969). We disagree.3 We reject Hernandez' s argument and follow this court's established precedent holding that the 

### accomplice liability statute is not unconstitutionally broad. C. " SUBSTANTIAL STEP" INSTRUCTION Hernandez argues that the trial court' s instruction on the definition of "substantial step" relieved the State of its burden to prove all elements ofthe crime beyond a reasonable doubt. The 

### trial court gave thejurythe following instruction regarding a " substantial step ":

A substantial step is conduct that strongly indicates a criminal purpose and that is more than mere preparation.



### 3 In Ferguson, we explicitly held that the accomplice liability statute is not unconstitutional because " it does not forbid the mere advocacy oflawviolation that is protected underthe holding ofBrandenburg." 164 Wn.App. at 376. 6No. 44771 -1 - II

SCP at 43. 

### Hernandez argues thatthejury instruction relieved the State ofits burden to prove,all
elements ofthe crime beyond a reasonable doubt because it uses the term " indicate[ s]" rather than corroborate[ s]," and because it uses the term " criminal purpose" instead of "the crime." Br. of Appellant at 19 -20. 

### As an initial matter, Hernandez failed to object to the " substantial step" jury instruction. Generally, a party may not raise an issue for the first time on appeal. RAP 2.5( a). However, an 

### appellantmay raise an issue forthe first time on appeal ifthe error is a "manifest error affecting a
constitutional right." RAP 2.5( a)(3). 

### An alleged errorto ajury instruction maybe amanifest error 

### affecting a constitutional rightthatmaybe raised forthe firsttime on appeal. State v. Stearns, 119 Wn.2d 247, 250, 830 P.2d 355 ( 1992). But, "[

### a]s long as the instructions properly inform thejury 

### ofthe elements ofthe charged crime, any error in further defining terms used in the elements is
not of constitutional magnitude." Stearns, 119 Wn.2d at 250. Here, the challenged instruction is

a definitional instruction — 

### itfurther definesthe element ofsubstantial step. Therefore, Hernandez 

## maynotraise achallengetothe "substantial step"juryinstructionforthefirsttime onappeal.4 D. LEGAL FINANCIAL OBLIGATIONS 

### Hernandez claims that the trial court erred by imposing costs for his court-appointed 

### attorney without making a finding that Hernandez has the present or future ability to pay.
4 Even ifwe wereto address Hernandez' s claim on the merits, his claim would fail under our recent 

### decision in Statev. Davis, 174 Wn.App. 623, 635 -38, 300 P.3d 465, review denied, 178 Wn.2d 1012 ( 2013). 

### In Davis, we explicitly considered and rejected both of Hernandez' s arguments; specifically, Hernandez' s assertion that Workman, 90 Wn.2d 443, 584 P. 2d 382 ( 1978), requires the 

### jury instruction to use the word " corroborate" rather than " indicate" and that Roberts, 142 Wn.2d 471, 14 P. 3d 713 ( 2000), 

### requires thejury instruction to state with particularity the crime rather than criminal purpose. 174 Wn. App. at 636 - 37'. Hernandez does not offer any argument that we did not consider and reject in Davis. 7No. 44771 -1 - II

Hernandez attempts to frame this issue as aviolation ofhis rightto counsel, but his argument belies 

### this assertion. Hernandez is correct that the trial court may not impose court-appointed attorney 

### costs unless it finds thatthe defendant has the present or future ability to pay. Fuller v. Oregon, 417 U. S. 40, 45, 94 S. Ct. 2116, 40 L. Ed. 2d 642 ( 1974); RCW 10. 01. 160(3). But the trial court did find that Hernandez had the present or future ability to pay. 

### Hernandez appears to argue that the trial court's finding is not supported by substantial 

### evidence. However,underStatev.Blazina, 174 Wn.App. 906, 911, 301 P.3d492, reviewgranted, 178 Wn.2d 1010 ( 2013), 

### Hernandez may not raise a challenge to the trial court' s finding that he has the present or future abilityto pay for the first time on appeal. And, as we explained in State

v. Lundy, 176 Wn. App. 96, 108, 308 P. 3d 755 ( 2013), Hernandez' s claim is not ripe for review
until the State attempts to collect the ordered legal financial obligations. Accordingly, 

### Hernandez' s claim that the trial court erred by imposing court-appointed attorney costs is not 

### properly before us, and we declineto consider it. E. SAG- INEFFECTIVE ASSISTANCE OF COUNSEL Hernandez alleges that he received ineffective assistance of counsel because his defense counsel breached the terms ofhis contract agreement with Clark County. Specifically, Hernandez argues that, under the contract, his defense counsel was not qualified to represent him on charges which are considered a " strike offense" under the Persistent Offender Accountability Act POAA).5 SAG at 13 -14. Hernandez also alleges that his defense counsel had aconflict ofinterest

5 RCW 9.94A.570, 030(37). 8No. 44771 -1 - II



### because, under the terms of his contract, his defense counsel would have been required to repay 

### collected fees paid for handling a case forwhich his defense counsel was unqualified. Assuming, without 

### deciding, that Hernandez' s contentions regarding trial counsel' s contract are correct, Hernandez' s claim lacks merit because his case is not a POAA case. Under RCW 9.94A.570 " a persistent offender shall be sentenced to a term oftotal confinement for life
without the possibility of release." A "persistent offender" is an offender who:



### a)( i) Has been convicted in this state of any felony considered a most serious offense; and

ii) Has, before the commission ofthe offense under (a) ofthis subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, offelonies that under the laws ofthis state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.525; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offenderwas previously convicted; or

b)( i) Has been convicted of: ( A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties 

### by forcible compulsion; ( B) 

### any ofthe following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, assault of a child in the 

### second degree, or burglary inthe first degree; or (C) an attemptto commit any crime listed in this subsection (37)( b)( i); and

ii) Has, before the commission of the offense under ( b)( i) of this subsection, been convicted as an offender on at least one occasion, whether in this 

### state or elsewhere, ofan offense listed in (b)( i) ofthis subsection or any federal or out - of - state offense or offense under prior Washington law that is comparable to the offenses listed in (b)( i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under (b)( i) ofthis subsection only when the offender was sixteen years of age or older when the offender committed the offense. A conviction for rape of a child in the second degree constitutes a conviction under (b)(i) ofthis subsection onlywhen the offenderwas eighteenyears of age or older when the offender committed the offense.

9No. 44771 -1 - II

RCW 9. 94A.030(37). A POAA case is a case in which the offender will be sentenced as a persistent offender if convicted of the offense charged. Here, Hernandez was not sentenced as a persistent offender; therefore, his case was not a POAA case. Hernandez' s ineffective assistance of counsel claim is predicated on the mistaken assertion that his case is a POAA case; therefore, his ineffective assistance of counsel claim fails.

We affirm. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will instead be filed for public record in accordance with RCW 2. 06.040, it is so ordered.

We concur:

10