FILED

COURT OP APPEALS DIVISION II

2014 C1=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UNPUBLISHED OPINION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 of others instruction because lawful use of force in defense of others 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 his legal financial obligations. Finally, in his statement of additional 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. Hewas 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 a bag of methamphetamine. Wade told them he would think about it, but he

did not purchase any methamphetamine at that time. 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 of methamphetamine 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

mark that 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

at trial. Her testimony was consistent with Wade' s up to the 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. 

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No. 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 offmy bitch," and then he hit Wade. 1B

Report ofProceedings ( RP) at 239. He denied attempting to take money from Wade and denied

that Torres 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 the jury 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) That the act was done with the intent to 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 of these elements has been proved

beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. 

On the other hand, ifafter weighing all the evidence, you have a reasonable

doubt as to any one of these elements, then it will be your duty to return a verdict

of not guilty. 

Suppl. Clerk' s Papers ( SCP) at 45. The jury 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

The jury found Hernandez guilty of attempted first degree robbery. The trial court imposed

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 court found that "the defendant has the ability or likely future ability to pay the 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 that the trial court erred by refusing to instruct the jury on the 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 that the lawful use of force in self - defense is not a defense to robbery because

robbery does not require an intent to 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, rather than a completed first degree robbery, there is an intent element that can be negated

by the lawful use of force. Hernandez is mistaken. 

Attempted first degree robbery requires that the State prove that. Hernandez acted with the

intent to commit first degree robbery. RCW 9A.28.020( 1). The elements of first degree robbery

are ( 1) the defendant committed the robbery and ( 2) in the course of the robbery the defendant
No. 44771 - 1 - II

inflicts bodily injury. RCW 9A.56. 200.2 Based on the reasoning that this court employed in Lewis, 

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 first degree robbery does not require the specific intent to

inflict bodily injury; therefore, there is no intent element that can be negated by a claim oflawful

use of force. 156 Wn. App. at 239. 

And, to the extent Hernandez argues the defense of others is distinguishable from self - 

defense, we disagree. The purpose of the 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 the jury on the lawful use of force in defense of others. 

2

Robbery is defined as: 

A person commits robbery when he or she unlawfully takes personal property from

the person of another or in his or her presence against his or her 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 of which cases the degree of force 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 by the use of force or fear. 

RCW 9A.56. 190. 

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No. 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 of this 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). 

Hernandez also 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 of the crime beyond a reasonable doubt. The

trial court gave the jury the 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 of law violation that is protected under the holding

ofBrandenburg." 164 Wn. App. at 376. 

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No. 44771 -1 - II

SCP at 43. Hernandez argues that the jury instruction relieved the State of its 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

appellant may raise an issue for the first time on appeal ifthe error is a " manifest error affecting a

constitutional right." RAP 2.5( a)( 3). An alleged error to a jury instruction may be a manifest error

affecting a constitutional right that may be raised for the first time on appeal. State v. Stearns, 119

Wn.2d 247, 250, 830 P.2d 355 ( 1992). But, "[ a] s long as the instructions properly inform the jury

of the elements of the 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 —it further defines the element of substantial step. Therefore, Hernandez

may not raise a challenge to the " substantial step" jury instruction for the first time on appeal.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 were to address Hernandez' s claim on the merits, his claim would fail under our recent

decision in State v. 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 the jury 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. 

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No. 44771 -1 - II

Hernandez attempts to frame this issue as a violation ofhis right to counsel, but his argument belies

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

costs unless it finds that the 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, under State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492, review granted, 

178 Wn.2d 1010 ( 2013), Hernandez may not raise a challenge to the trial court' s finding that he

has the present or future ability to 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 decline to consider it. 

E. SAG- INEFFECTIVE ASSISTANCE OF COUNSEL

Hernandez alleges that he received ineffective assistance of counsel because his defense

counsel breached the terms of his 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 a conflict ofinterest

5 RCW 9. 94A.570, 030( 37). 

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No. 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 for which 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 of total confinement for life

without the possibility ofrelease." 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 of the offense under ( a) of this subsection, 

been convicted as an offender on at least two separate occasions, whether in this

state or elsewhere, of felonies 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 offender was 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 of the 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 in the first degree; or (C) an attempt to 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, of an 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) of this 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 only when the offender was eighteen years

of age or older when the offender committed the offense. 

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No. 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: 

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