IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. RODOLFO JEREZ-SOSA, Appellant. No. 71823-1-

UNPUBLISHED OPINION

FILED: August 10, 2015 

### Schindler, J. —Ajury convicted Rodolfo Jerez-Sosa ofrobbery inthe first degree while armed with a firearm. Jerez-Sosa seeks reversal, arguing the trial court erred indenying his motion for a mistrial. We disagree, and affirm.
FACTS Around 10:30 p.m. on September7, 2012, Yellow Cab driver Fasil Berhanu drove to Safeco Field after a Seattle Mariners game hadjustended. Two men, later identified as Asuan Santos-Valdez and Rodolfo Jerez-Sosa, hailed his cab. SantosValdez told Berhanu to drive to Beacon Hill. When Berhanu reached the intersection of Beacon Avenue South and 13th Avenue South, Santos-Valdez told Berhanu to turn left and park. After he stopped, Santos-Valdez told Berhanu, "Just give me everything,
. . . whateveryou have." When Berhanu turned around, Santos-Valdez said, "Just give me the money." Santos-Valdez71823-1-1/2 then hit Berhanu inthe face with a gun, breaking his cheekbone. Berhanu gave SantosValdez his wedding ring, his watch, and some cash. Santos-Valdez told Jerez-Sosa to "[t]ake everything." Jerez-Sosa took Berhanu's wallet, two cell phones, and a bag containing Berhanu's for-hire license and Good To Go! tollpass from the front passenger seat. Jerez-Sosa also took Berhanu's keys and sunglasses from the centerconsole, pulled outthe wires connecting the radio and dispatch computer, and obscured the cab's security camera with the sun visor. Bystander David Mitchell saw Berhanu "being robbed or being beaten up" by Jerez-Sosa and Santos-Valdez. Mitchell called 911. The State charged Jerez-Sosa and Santos-Valdez with robbery inthe first degree. Santos-Valdez entered into a plea agreement. As part ofthe agreement, Santos-Valdez agreed to testify against Jerez-Sosa. The State amended the 

### information to charge Jerez-Sosa with robbery inthe firstdegree while armed with a firearm. Jerez-Sosa notified the State that he intended to assert a duress defense based on the testimony offorensic psychologist Dr. Delton Young that Jerez-Sosa suffered from post-traumatic stress disorder (PTSD). Before trial, Jerez-Sosa moved to exclude evidence of prior bad acts under ER 404(b). Defense counsel stated that "inour interview ofMr. Santos-Valdez,
... he mentioned a numberoftimes purported criminal behaviorthat my client had participated 

### in prior to these allegations thatwe're here fortoday." The prosecutoragreed he would not elicitthe testimony "until a duress defense is actually formally offered or introduced to a jury." The prosecutor stated, "[l]fthe case does proceed as planned, we anticipate that some ofthat evidence will come in in order to rebut the duress defense and this71823-1-1/3 

### theory that Mr. Jerez-Sosa is afraid ofAsuan Santos-Valdez." The trial court ruled: [A]t least in itscase in chief, the State's witnesses will not refer to any [ER] 404(b) material with respect to Mr. Jerez-Sosa. 

### Ifduring the trialthe State believes that it may be admissible under 404(b), let's discuss that outside the presence ofthejury. But at least at this point, until we getto rebuttal, there should be no surprises interms of witnesses talking about404(b) material. Defense counsel addressed the duress defense during opening statement. 

### Defense counsel told thejurythat "Mr. Jerez-Sosa will testify in this case and he will say that he was threatened. He will tell you that he has been shot inthe pastand the threat ofbeing shot again was real and he was very, very scared." Defense counsel told the jury that Dr. Young "will explain to you the impact of a gun being brandished on a person who had been shottwice inthe past." A number ofwitnesses testified during the six-day trial, including Berhanu, Santos-Valdez, Mitchell, a Seattle Police Departmentdetective, a video specialistto authenticate the security camera video from the cab, and Dr. Young. Berhanu testified that Santos-Valdez and Jerez-Sosa spoke to each other in a 

### "normal tone" of voice during the cab ride. Berhanu did not hear Santos-Valdez raise his voice or make any threats to Jerez-Sosa, nor did he see Santos-Valdez point a gun atJerez-Sosa. Berhanu testified thatJerez-Sosa did not appear scared or frightened. 

### Berhanu said they were "workingtogether." Mitchell testified that Jerez-Sosa and Santos-Valdez "took offrunning together" 

### and "raced up" a nearby staircase. Mitchell stated that as Jerez-Sosa and SantosValdez ran off, the two men were "a foot ortwo" apart and appeared to be together. Mitchell also testified Santos-Valdez did not point a gun or make any threatening gestures at Jerez-Sosa.71823-1-1/4 Before Santos-Valdez tookthe stand, the prosecutortold Santos-Valdezthat he would not ask "about other robberies or other crimes that Mr. Jerez-Sosa is allegedly involved in." The prosecutor instructed Santos-Valdez to "not volunteerthat information or tellthat information to thejury," and to askthejudge ifhe had "any questions or
concerns about something I've asked." Santos-Valdez stated that he understood. The trial court also told Santos-Valdez, "So no mention of other alleged crimes that Mr. Jerez-Sosa was involved with unless we take up that matter outside the presence ofthe jury and Itell you specifically thatyou can say something aboutthose other areas, okay?"During direct examination, Santos-Valdez testified he had been friends with Jerez-Sosa, Oreste Duanes-Gonzales, Lazaro Valle-Matos, and "Jorge" since they were 

### teenagers living inthe same foster home. Santos-Valdez said that on the day of the robbery, the five men were driving around "pretty much looking for a victim and 

### somebody to rob money." Santos-Valdez explained, "We was looking for a victim to rob since — first of all, the gun was not even — itdidn't even belong to me, itbelonged to 

### them, and we was going to —the plan — well, we actually came up with a plan first." Inresponse to Santos-Valdez's testimony, "Wewanted to — I'm kind ofconfused here, because Idon't know ifI[am] supposed to say this, but we was actually going to 

### rob something different," the prosecutor said, "Okay." Santos-Valdeztestified, "Wewas going to —" and defense counsel objected. The trial court overruled the objection. 

### Santos-Valdezthen testified, "Okay. [Jerez-Sosa] wanted to rob the liquorstore and I didn't agree. He said that he got away withrobbing liquorstores before and was71823-1-1/5 

### successful at it, but—."1 Defense counsel objected as Santos-Valdez said,"— Ididn't wantto do it." The trial court again overruled the objection. Santos-Valdez said, "We 

### end[ed] up not doing it." Santos-Valdeztestified the men "came up with a plan" to go to Safeco Field. So somebody mentioned inthe van the taxi. Since itwasn't a busy day, the Mariners was playing, so it's pretty busy, they got money. So we all agree and we come up — we come up with a plan that me and him was going to be dropped off indowntown Seattle by the Safeco Field [by] Lazaro and Oreste and Jorge. Santos-Valdez described how he and Jerez-Sosa planned to take a cab from Safeco Field to the Lago Vista Apartments in Beacon Hill where there was a dark street with stairs nearby. There's stairs, so we could actually rob them, rob the taxi cab there, take his keys, his phones, whatever, and then run towards the stairs, which [are] really dark. He wouldn't— he couldn't— he wouldn't have been able to see whatway we went. According to Santos-Valdez, Jerez-Sosa agreed to the plan and never indicated 

### any reluctance to committhe robbery. Santos-Valdeztestified thatduring the cab ride, Jerez-Sosa called Duanes-Gonzales and Valle-Matos to confirm they were waiting in 

### the getaway car. Jerez-Sosa spoke inSpanish so that Berhanu would not understand what he was saying. As Santos-Valdez pointed the gun at Berhanu, Jerez-Sosa got out ofthe back seat and wentto the driver's side to "blockthe door so the guy wouldn't be 

### spooked andjust run out ofthere." Santos-Valdeztestified thatJerez-Sosa "took the 

### keys out of the car, he broke the radio, the things thatyou use to — what it's called, the walkie-talkie or whatever, he broked [sic] it." Santos-Valdez said Jerez-Sosa "on his

1 Emphasis added.71823-1-1/6

own . . . blocked the camera with that sun thing.
... Itwas something that he seen on his own and he covered." Jerez-Sosa and Santos-Valdez then fled "together." SantosValdez denied ever pointing a gun at Jerez-Sosa or threatening him inany way. Defense counsel cross-examined Santos-Valdez aboutthe testimony that he did not pointthe gun at Jerez-Sosa: Q And isn't ittrue, Mr. Santos-Valdez, thatyou pointed that gun at my client? A That's not true. Q Okay. You knew my client had been shot inthe past; right? He's got a mark on his neckwhere he's been shot. A From committing robberies, yes. 

### Q You knewthat he had been shot and you knew that he would be frightened of you when you pulled that gun? A That's

— that's a — Q It's a yes or no, yes or no? A That's not [the] truth. Q Thank you. Isn't ittrue that on September7th, 2002, (sic) thatyou pulled a gun on my client and you forced him to participate inthis robbery? 

### A That's not [the] truth.^ After defense counsel concluded cross-examination, the prosecutor asked to "address a potential issue ofopening the door outside the presence ofthejury." During the recess, the prosecutor stated: One ofthe questions asked of Mr. Santos-Valdez was whether he was aware ofthe Defendant being shot inthe neck.
. . . The response from Mr. Santos-Valdez was thatthe Defendant got shot committing a robbery. Obviously thatwas not something we intended to elicit, but Ithink itwas an appropriate response. The prosecutor argued that "a key part of Dr. Young's opinion inthis case is that, because the Defendantwas shot in the neck, that he has a heightened sensitivity to firearms and a heightened sense ofalarm," and sought approval to ask Santos-Valdez

2Emphasis added.71823-1-1/7 further questions about his knowledge ofJerez-Sosa being shot. Defense counsel argued Santos-Valdez "violated the pretrial agreement by bringing up [an ER] 404(b) accusation of prior misconduct" and moved for a mistrial. The trial court stated that "the waythings stand right now, Iwould be inclined to grant the mistrial motion," but recessed to allow parties to submit briefing. Well, I'm inclined to grantthe mistrial based on the significant prejudice that Ithink would be caused by thejury knowing that [Jerez-Sosa] had committed prior robberies. Ican'tthink ofanything more prejudicial. However, the only reason not to do it right now is ifthis type of testimony would come out anyway when Dr. Young testifies.
. . . And so ifthis type oftestimony were to come out anyway, then perhaps it's not as prejudicial as itappears atthis time. The following day, the trial court heard argument on the mistrial motion. Defense counsel asserted Santos-Valdez violated the trial court's order when he testified JerezSosa "said he got away with robbing a liquor store and was successful at it," and when Santos-Valdez testified Jerez-Sosa was shotwhile "committing robberies." The prosecutor argued both statements were admissible to rebut the claim ofduress. The trial courtdenied the motion for mistrial without prejudice, finding that itwas difficult to
assess the seriousness ofthe irregularity until the end of trial. Nonetheless, the trial court decided to give a curative instruction to thejury. When the trial reconvened, the trial court instructed thejury as follows: [C]ertain evidence has been admitted inthis case for only a limited purpose. During his testimony, Mr. Santos-Valdez referred to an alleged statement by the Defendant, Mr. Jerez-Sosa, that he, the Defendant, had successfully robbed a liquor store. Mr. Santos-Valdez also stated thatthe Defendanttold him that he was allegedly shot in the neck during the commission of a prior robbery. Ifyou find these statements credible, you may considerthem only forthe purpose ofassessing the Defendant's state of mind on September 7th, 2012, and for no other purpose. You may not considerthese statements for theirtruth, that is, whether or not the Defendant committed71823-1-1/8 

### other robberies. Any discussion ofthe evidence during your deliberations must be consistent with this limitation. When Santos-Valdez resumed the stand, the prosecutor asked whether SantosValdez had personal knowledge ofJerez-Sosa successfully robbing liquor stores and 

### being shot in the neckduring a robbery, orwhetherJerez-Sosa had merely told SantosValdez these things. Santos-Valdez stated that his testimony was based only on what
Jerez-Sosa had told him. Q
.... Inyour previous testimony, you said thatthe Defendanttold you that he wanted to rob a liquor store because he had been successful in the past; correct? A That's correct. Q But you have no firsthand knowledge of this. This is only whatthe Defendanttold you; correct? A That's correct. Q Inyour previous testimony, you also said the Defendantwas shot in the neck while committing robberies; correct? A That's correct. Q But again, you have no firsthand knowledge of this. This is only what the Defendanttold you; correct? A That's correct. 

### The trial court admitted intoevidence a CD3 containing 214 still images from the cab's security camera. The images show Jerez-Sosa making a phone call, Santos

### Valdez pointing a gun at Berhanu, and Jerez-Sosa entering the front seatof the cab. At no time during the footage does Santos-Valdez point the gun at Jerez-Sosa. At the end ofthe State's case, Jerez-Sosa renewed his motion for a mistrial. The 

### trialcourt denied the motion "withoutprejudice to your raising the issue inthe event of a conviction." Jerez-Sosa testified that on the day ofthe robbery, he had been working as a

3Compactdisc. 871823-1-1/9 

### mechanic inTacoma when he began experiencing pain in his neck. Jerez-Sosa said that he wentto Safeco Field to buy Percocet because "[t]here are people who sell 

### drugs" there. Jerez-Sosa said he saw Santos-Valdez at Safeco Field and knew he sold drugs. Jerez-Sosa testified he had met Santos-Valdez once before "but he was never 

### my friend. And Inever lived withhim." Jerez-Sosa denied tellingSantos-Valdezthat he had ever robbed a liquor store or been shotwhile committing a robbery. Jerez-Sosa denied planning the robbery with Santos-Valdez. Jerez-Sosa testified that after Santos-Valdez told him they could get drugs on 

### Beacon Hill, they decided to hail a cab. Jerez-Sosa said that when the cab driver parked on Beacon Hill, Santos-Valdez pulled out a gun. According to Jerez-Sosa, Santos-Valdeztold the driver to give him his wallet and money and then hitthe driver 

### with the gun. Jerez-Sosa testified that Santos-Valdezthen pointed the gun at him and said, "And you watch the front. Check, checkthe front." Jerez-Sosa testified he had been shotby strangers on two occasions, once inthe neck and once inthe foot, while walking around inthe Central District ofSeattle. Jerez

### Sosa stated he had nightmares about being shot, and being around guns made him scared and apprehensive. Jerez-Sosa testified he was afraid he would be shot ifhe did not do what Santos-Valdez said. "When he pointed the gun at me, Ihad this feeling inside like when one knows thatdeath is coming." Jerez-Sosa testified he grabbed a 

### bag from the frontseatof the cab and gave it to Santos-Valdez. Jerez-Sosatestified that he ran away fromSantos-Valdeztoward the lightrail station where he got on a
southbound train. 

### During cross-examination, the State introduced photographs from Valle-Matos'71823-1-1/10 Facebook page taken in2012. The photographs show Jerez-Sosa, Valle-Matos, and Duanes-Gonzalez posing and smiling with a gun. Jerez-Sosa admitted knowing that Valle-Matos had a gun and that he was having a good time when the photographs were taken. Dr. Young testified that he interviewed Jerez-Sosa and his stepmother, reviewed the charging document and the police reports, and administered two psychological tests. Jerez-Sosa told Dr. Young that he was "shot at random by a stranger" on two separate occasions in2008. Dr. Young testified that in his opinion, Jerez-Sosa 

### developed PTSD as a result ofbeing shotand was suffering from PTSD at the time of the robbery. Dr. Young testified that individuals suffering from PTSD "tend to bejumpy 

### and to have an exaggerated startle reflex ifsomething startles them," and are "wary and vigilant aboutwhat's going on around them thatthey fear might hurt them." Dr. Young testified, in pertinent part: For an individual with post-traumatic stress disorder, particular [sic] 

### PTSD stemming from being shot, he would probably be more reactive and more fearful than he would have been without the PTSD.
... I believe that PTSD renders him more vulnerable to that kind ofterrifying moment. 

### But Dr. Young admitted that ifJerez-Sosa "lied to me orfabricated a story, then

—then that line ofreasoning would be invalid." 

### The juryconvicted Jerez-Sosa of robbery in the firstdegree. The juryreturned a special verdict findingthatJerez-Sosa was armed with a firearm at the time of the
crime. Defense counsel renewed the motion for a mistrial. The trial court initially 

### granted the motion. The court expressed concern aboutthejury's abilityto distinguish between statements admitted for theirtruth and statements admitted for the purpose of 1071823-1-1/11 showing Jerez-Sosa's state of mind atthe time ofthe crime. However, on reconsideration, the trial court denied the motion for a mistrial. The
court concluded the statement that Jerez-Sosa told Santos-Valdez that he had 

### previously robbed a liquorstore would have been admitted "toshowthatthis was not a

— there was no duress, butthat Mr. Jerez-Sosa was a willingparticipant." As to the statementthat Jerez-Sosa told Santos-Valdez he was shotwhile committing robberies, the trial court concluded that "ifthe Defense had not raised this issue, having been shot 

### inthe neck, we might have a different situation. But this was a critical part of the 

### Defense argument." The trial court ruled the statementwould have been admissible to rebut Jerez-Sosa's claim that Santos-Valdez knowingly capitalized on the vulnerability 

### ofsomeone who had previously been shot, or to impeach Dr. Young, who based his 

### PTSDdiagnosis on Jerez-Sosa's claim that he was shot as an innocent bystander. The trial court ruled the testimony was probative and not outweighed by its potential for prejudice. Jerez-Sosa appeals. ANALYSIS 

### Jerez-Sosa argues the court erred in denying the motion for a mistrial. We 

### review a trial court's decision to deny a motion formistrial forabuse of discretion. State
v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003). A trial courtabuses its discretion 

### in denying a motion for a mistrial only ifits decision ismanifestly unreasonable or based
on untenable grounds. State v.Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). A trialcourt has broad discretion to rule on irregularities during the course of a trial. State v. Lewis, 130Wn.2d 700, 707, 927 P.2d 235 (1996). Determining whether


### an irregularity duringtrial is so prejudicial as to warrant a mistrial depends on (1) the

1171823-1-1/12 seriousness ofthe irregularity, (2) whetherthe statementwas cumulative ofother properly admitted evidence, and (3) whetherthe irregularity could be cured by an instruction. State v. Perez-Valdez. 172 Wn.2d 808, 818, 265 P.3d 853 (2011). The trial court is inthe best position to determine if a trial irregularity caused prejudice. Perez-Valdez. 172Wn.2d at 819. A mistrial should be granted "onlywhen the defendant has been so prejudiced that nothing shortof a new trial can insure that the defendant will be tried fairly." State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986). We will reverse the trial court only ifthere is a substantial likelihood the trial irregularity prompting the mistrial motion affected thejury's verdict. State v. Rodriguez, 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002). Jerez-Sosa contends the statements were a serious irregularity because the testimony violated the trial court's order in limine. The trial court's order prohibited witnesses from referring to any ER 404(b) misconduct "withrespectto Mr.Jerez-Sosa." ER 404(b) applies to prior misconduct offered as substantive evidence. State v. Wilson, 60 Wn. App. 887, 891, 808 P.2d 754 (1991). Santos-Valdez did not testify that JerezSosa actually committed other robberies or that he had been shot during a robbery. Instead, Santos-Valdez testified Jerez-Sosa told him about the prior robberies and the shooting. Santos-Valdez made clearthat he had no firsthand knowledge aboutwhat Jerez-Sosa told him. While Santos-Valdez's testimony was not cumulative, the statements were admissible to rebut the defense ofduress. Jerez-Sosa claimed he agreed to rob Berhanu because Santos-Valdez pointed a gun at him. Evidence that Jerez-Sosa told Santos-Valdez he had previously robbed a liquor store was relevantto rebutJerez1271823-1-1/13 Sosa's claim that he would not have participated inthe robbery except underduress. Dr. Young testified that his opinion thatJerez-Sosa acted under duress would be 

### "invalid" ifJerez-Sosa "lied to me orfabricated a story." Evidence thatJerez-Sosa told Santos-Valdez he was shotwhile committing a robbery cast doubt on Dr. Young's opinion thatJerez-Sosa was vulnerable to duress because of his PTSD. 

### Finally,the trialcourt instructed thejurythatthey could considerSantos-Valdez's 

### statements only forthe purpose ofassessing Jerez-Sosa's "state of mind" and not for theirtruth. We presume thejury follows the instructions ofthe court. State v. Montgomery. 163 Wn.2d 577, 596, 183 P.3d 267 (2008). The case Jerez-Sosa relies 

### on, State v. Escalona. 49 Wn. App. 251, 742 P.2d 190 (1987), is distinguishable. InEscalona, the State charged the defendantwithsecond degree assaultwith a knife. Escalona. 49 Wn. App. at 252. The trialcourt granted a defense motion to 

### exclude any mention of the defendant's prior conviction for the same crime. Escalona, 49 Wn. App. at 252. At trial, the victim testified that on the day ofthe assault, he was
nervous because the defendant" 'already has a record and had stabbed someone.'" 

### Escalona. 49 Wn. App. at 253. This court held the trial court erred in denying the defendant's requestfor a mistrial because of "the seriousness ofthe irregularity .
.. combined withthe weakness ofthe State's case and the logical relevance ofthe statement." Escalona. 49 Wn. App. at 256. Here, unlike Escalona, there was no evidence that Jerez-Sosa had previously 

### been convicted of robbery. And unlike inEscalona. here, the evidence was admissible to rebut the claim ofduress. Further, unlike Escalona. there was no "paucity ofcredible 

### evidence" supporting the conviction. Escalona. 49 Wn. App. at 255-56. Berhanu

1371823-1-1/14 testified that Jerez-Sosa demanded his wallet, took his cell phones, and took his bag, and that Jerez-Sosa and Santos-Valdez appeared to be working together. Berhanu also testified Santos-Valdez did notthreaten Jerez-Sosa. The security camera footage corroborated Berhanu's testimony. The fact that Jerez-Sosa disabled the cab's radio and security camera also contradicts his claim that he took items from Berhanu only because Santos-Valdez forced him to do so. Mitchell also testified that Jerez-Sosa and 

### Santos-Valdez appeared to be working together. The record supports the decision that Santos-Valdez's testimony did not amountto a serious trial irregularity thatwas so prejudicial as to deny Jerez-Sosa a fair trial. We conclude the trial court did not abuse its discretion in denying the motion for a mistrial, and affirm thejury conviction.

WE CONCUR: 

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