### FILED OCTOBER 13, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) Respondent, ) ) V. ) ) MARCO ANTONIO GALLEGOS, ) ) Appellant. ) ) ) In the Matter ofthe Personal Restraint of ) ) MARCO ANTONIO GALLEGOS, ) ) Petitioner. ) No. 32841-4-111 (consolidated with No. 34425-8-111)

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- Marco Gallegos appeals his convictions oftwo counts of aggravated first degree murder and unlawful possession ofa firearm. He contendsthat (1) he received ineffective assistance ofcounsel whenhis trial lawyer did notrequest a cautionaryjuryinstruction on accomplice testimony, (2) insufficient evidence supports
one conviction for aggravated first degree murder, and (3) he was denied his constitutional rightto a speedytrial. We find no error, and thatthe evidencewas sufficientto supportthe conviction. Forthose reasons, andbecause Mr. Gallegos raises
no meritorious issues in a pro se statement ofadditional grounds ora consolidated personal restraintpetition (PRP), we affirm his convictions and dismiss the PRP.No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos
FACTS AND PROCEDURAL BACKGROUND OnDecember 21, 2012, the Kittitas County Sheriffs Office received a report ofa
car offthe road near a diversion dam on the YakimaRiverwith a body in the back seat. Onresponding, deputies found RyanPederson dead in the back seat ofa carthat belonged to his friend, Michael Eby. They soon found Mr. Eby's dead body wrapped in
a sheet inthe car's trunk. Bothmen had been shot. About six weeks later, while executing a search warrant for the home ofTroy Whalen in connection with a robbery and assault ofa friend ofMr. Eby's, detectives located materials similarto those used to wrap Mr. Eby's body. They applied for and obtained another searchwarrant for evidence related to the murder investigation. After their searchyielded a sheet matching the one used to wrap Eby's body, they administered Miranda 1warnings to Mr. Whalen, who agreedto talk and identified Jose Pineda, Heriberto Villa, and anotherMexican man he did not know as having been involved in the murders ofMr. Eby and Mr. Pedersen. Mr. Pinedawas arrested onFebruary 1 and, afterMiranda warnings, identified Whalen, Villa, and Marco Gallegos as having been involved. OnFebruary 6, 2013, all four men were charged, as principal or accomplice, with the aggravated first degree murders ofMr. Eby and Mr. Pederson, and alternatively, as to

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2No. 32841-4-III (consol. w/No. 34425-8-III) 

### State v. Gallegos
Mr. Pederson, with first degree felony murder in the course ofor in flight from a first or second degree kidnapping. Mr. Gallegos was also charged with first degree unlawful possession ofa firearm. Trial was set for April 1. 

### Events leading to the charges Mr. Gallegos and his three codefendants have a complicated history. Mr. Gallegos and Mr. Pinedawere both members ofLaRaza, a Nortefio gang. Mr. Pinedawas a drug dealer for the gang. He sold methamphetamine to Mr. Whalen, who was not a member of the gang, but in whose garage Mr. Pineda and others often hung out, and out ofwhich they ran drugs. In exchange for use ofhis garage, Mr. Whalen was providedwith drugs. Mr. Villa was not a member ofthe LaRaza gang. He and Mr. Pineda were friends because they used to "tag" (paint their graffiti "signatures" onpublic andprivate property) together. David Campos, a member ofa Surefio gang, a rival gang to the Nortefios, had also beenpart ofthe tagging group with Mr. Villa and Mr. Pineda. Mr. Campos andMr. Villa were friends. And despite being members ofrival gangs, Mr. Campos and Mr. Pinedawere also friends. The late Mr. Eb·y was a drug customer ofMr. Pineda's. Atthe time ofMr. Eby's death, the two had known each other for about eight months, saw each other about once a week, and often did drugs together in Mr. Whalen's garage. Mr. Eby was not a member ofthe LaRaza gang.

3No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos
Sometime before December 20, Mr. Pineda learned from Mr. Villa, who hadheard from Mr. Campos, that Mr. Eby tried to solicit Mr. Campos to rob Mr. Pineda. Angered by the information, Mr. Pineda decided to confrontMr. Eby. He contacted him on December 20 and, onthe pretext thathe wanted to payMr. Eby $600 that Mr. Pineda owed, arrangedto meet him atMr. Whalen's garage that evening. Depending onhow Mr. Eby reactedto the accusationthat he tried to sethim up, Mr. Pinedawas preparedto "check" Mr. Eby, meaning "jumphim
... [and b]eat him up." Report ofProceedings (RP) at 1452. Mr. Pineda arranged for Mr. Villato be at the garage as backup when he confronted Mr. Eby. When Mr. Pinedahappened to run into Marco Gallegos that afternoon, he brought him along as well. Mr. Gallegos was a member and front line soldier ofLaRaza, andpeople feared him. OnthatDecember20 evening, both Mr. Pineda and Mr. Gallegos were armed, as they usually were. After arriving at Mr. Whalen's garage onthe evening ofthe 20th, Mr. Pineda and Mr. Villa smoked methamphetamine. Mr. Gallegos, who did not do drugs, waited with them for Mr. Eby. When Mr. Eby arrived, he was accompanied by his friend, Ryan Pederson. Mr. Eby enteredthe garage and smoked andtalked withMr. Pineda. Mr. Pederson later entered andjoinedthem. After smoking and talking for a while, Mr. Pineda confrontedMr. Eby aboutthe reported robbery solicitation. Atthattime, Mr. Gallegos was standing at the door to the 4No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos
garage, blocking it. Mr. Eby admitted he mighthave once talked about setting up Mr. Pinedabut saidthat when he got to know him betterhe decided there was no reason for that. Mr. Pineda asked Mr. Villato call Mr. Campos and putthe call on a speakerphone
so Mr. Campos could confirm the solicitation by Mr. Eby. Mr. Villa was able to reach Mr. Campos, who confirmed it was Mr. Eby who tried to setMr. Pinedaup for robbery. When the phone call ended, Mr. Pineda said to Mr. Eby that "hewas gonna get fucked up" and tucked his shirt in to show his gun. RP at 1663. Instead, Mr. Eby preemptively attacked Mr. Pineda. Mr. Eby was able to push Mr. Pineda up against some motorcycles, where he straddled him and struck him in the face, using both fists. After Mr. Eby hit Mr. Pineda hard several times, Mr. Gallegos walked from the doorway to where Mr. Eby was straddling Mr. Pineda, and shot him at pointblankrange. Mr. Eby stopped moving and dropped onto Mr. Pineda. Mr. Gallegos grabbed Mr. Eby by the shirt, pulled him offofMr. Pineda, and shot Mr. Eby two more times. His shots were to the right side ofMr. Eby's head; to his upperright arm, with the bullet passingthrough the arm and into the chest; andto his mid-chest. The two shots to or through the chestpassed through Mr. Eby's heart. The forensic pathologistwho later performed an autopsy on Mr. Eby concluded that any ofthe three shots would have been fatal.



### 5No. 

### 32841-4-111 (consol. w/No. 

### 34425-8-111) State v. Gallegos
Mr. Pineda claims he never intended for Mr. Eby to get shot and when he asked Mr. Gallegos afterwards why he shot him, Mr. Gallegos answered that it was because Mr. Pineda "was getting fucked up." RP at 

### 1474. AfterMr. Eby was shot, Mr. Gallegos told Mr. Pinedato tell Mr. Villato kill Mr. Pederson, so there would be no witnesses. Mr. Pinedaunderstood that it was goodto have Mr. Villa "more involved," to keep him quiet. RP at 

### 1493. Mr. Eby's body was loaded into the trunk ofhis own car and Mr. Gallegos, Mr. Pineda, Mr. Villa, and Mr. Pederson-whowas still alive at that point-gotinto the car and drove to Roza Canyon, which Mr. Whalen suggested as a place where they could leave the car, since no one would bethere in December. Mr. Whalen drove there separately in Mr. Pineda's car. The two cars reached the area ofthe Roza diversion dam at around 

### 11 :00 p.m. or 12:00 a.m. Upon reaching the destination, Mr. Gallegos, Mr. Villa, and Mr. Pineda got out ofMr. Eby's car and Mr. Pinedahanded his gun to Mr. Villa. Mr. Villa, who would later claimhe was afraid thatMr. Gallegos would shoot him ifhe did not shoot Mr. Pederson, shot Mr. Pederson two times, killing him. Mr. Whalen then drove Messrs. Pineda, Gallegos, and Villa backto his home. Procedural history After being charged on February 6, 2013, Mr. Gallegos continuously asserted his

6

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### No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos 

### speedy trial rights. Overhis continued objection, but with the agreement ofat least one ofthe other defendants, trial was continued on eight occasions, as follows: Trial date April 1, 2013 June 24, 2013 November 25, 2013 December 16, 2013 April 14, 2014 May 5, 2014 July 14, 2014 August 20, 2014 Date request for continuance was granted March 21, 2013; new date: June 24, 2013 June 13, 2013; new date: November 25, 2013 November 14, 2013; new date: December 16, 2013 December 11, 2013; new date: April 14, 2014 April 11, 2014; new date: May 5, 2014 April 30, 2014; new date: July 14, 2014 Effectively on July 14, formalized on July 18, 2014: new date: August 20, 2014
Between October 4 and December 2, 2013, Mr. Whalen, Mr. Pineda, and Mr. Villa, participated in recorded "free talks" withthe State. At a status conference on December 11, 2013, the court and counsel began discussing the Bruton2 

### issues that would

2Bruton v. UnitedStates, 

### 391 U.S. 123, 88 S. Ct. 1620, 20 L. 

### Ed. 2d 476 (1968). In Bruton, 

### the United States Supreme Courtheld that the defendant's confrontation rights underthe Sixth Amendment to the United States Constitution were violated when he was "powerfully incriminat[ed]" by admission ofa pretrial statement ofhis codefendant, Evans, who did not take the stand at trial. Id. 

### at 135-37. 

### It held that the Sixth Amendment violation was not prevented by a limiting instruction that thejury could consider the confession only against Evans. 

### Id. at 137. In Richardson v. Marsh, 

### 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. 

### Ed. 2d 176 (1987), the Supreme Courtvalidated the use ofredactions ofa codefendant's statement, so that it contains no explicit or implicitreference to the complaining defendant, together 

### 7No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. 

### Gallegos
be present in the event there was ajointtrial in which a codefendant who had provided a statement did not testify. Lawyers for the defendants took the position that there was no amount ofsanitation ofthe recorded statements that would make ajointtrial possible, and that the cases shouldbe severed. While the charges had been filed against the defendantsjointly and it was their responsibility under CrR4.4(a)(l) to move to sever, the trial court believed thatthe issue ofseverance and any 

### Bruton issues could most effectively be resolved by having the State provide the court and the parties with an early, candid assessment ofwhether ajoint trial was possible, and, ifso, how it proposed to redact any recorded statements it proposedto offer. In the court's view, an understanding was reached at the hearing that took place on December 11, 2013, that the State would file a preliminary witness list and either concede the severance issue orpresent its proposal for ajointtrial by the time ofa January 31, 2014 status hearing. In hearings on January 31 and February 7, 2014, the court scoldedthe prosecutor for failing to file the requested materials and refusing to address the severance issue until and unless the defendants filed a motion. Frustrated by the delay in bringingthe severance issue to a head, the court established a briefing
with a limiting instruction, as means for protecting a criminal defendant's Sixth Amendment rights in most cases. The Supreme Court laterheld that a defendant's Sixth Amendment confrontation right was not protected where "[t]heblank space in an obviously redacted confession also points directly to the defendant," such that it had the same powerfully incriminating effect as in 

### Bruton. Gray v. 

### Maryland, 523 U.S. 185, 194, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998). 8

### No. 32841-4-III (consol. w/No. 34425-8-III) State v. Gallegos


### schedule underwhichthe defendants would file motions for severance and those, and any confrontation issues, wouldbe resolved at a hearing on March 7. The day before the severance hearing, Mr. Pineda and Mr. Whalen entered into agreements with the State to be cooperating witnesses, which the State asserted resolved Bruton 

### issues and made severance unnecessary. Mr. Gallegos and Mr. Villa continued to argue that severance would be required in light ofMr. Villa's intent to defend on an allegedly inconsistentbasis ofdiminished capacity, however.·On March 28, 2014, the court heard argument onthat basis for severance and denied the motion, concludingthat Mr. Gallegos and Mr. Villa had not yet demonstrated thattheir defenses would be inconsistent. Then, on June 26, 2014, afterthe State concededthat severance ofMr. Villa's and Mr. Gallegos's trials was 

### necessary, the court signed an order severingthe codefendants' cases. Mr. Gallegos's trial remained set for July 14. Continuances after the fifth, April 14 trial date were entered for a variety ofother
reasons. A principal reason was pleas entered into between the State and Mr. Gallegos's codefendants. During this time frame, the State also requested a continuance after belatedly discovering that the forensic pathologist who hadperformedthe autopsies on Mr. Pederson and Mr. Eby was out ofthe country until August, and it would cost over $20,000 for the county to fly himto Yakimato testify. The court denied that motion to continue. But after aplea agreement with Mr. Villa was entered on July 14, Mr. Gallegos's seventh trial date, the court granted a final continuance oftrial to August 20. 9

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# l i No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos
Mr. Gallegos's trial finally began over 18 months after the charges againsthim
were filed. Mr. Whalen, Mr. Pineda, and Mr. Villa eachtestified about Mr. Gallegos's involvement in the two murders. Although Mr. Gallegos's lawyer challengedthe three accomplices' credibility in cross-examination, he did not propose orrequest ajury instruction cautioningthejuryto carefully examine the testimony ofan accomplice. Atthe conclusion oftrial, thejury found Mr. Gallegos guilty on all counts. The court sentenced Mr. Gallegos to life imprisonment withoutthe possibility ofparole. He appeals. ANALYSIS Mr. Gallegos assigns errorto (1) ineffective assistance ofcounsel where his trial lawyer failed to propose orrequest an instruction cautioningjurors againstplacingtoo great a reliance ontestimony by accomplices, (2) the insufficiency ofevidence to establish that the murder ofMr. Ebywas premeditated, and (3) a violation ofhis constitutional right to a speedy trial. We address the assignments oferror in turn. I. Mr. Gallegos does notestablishprejudice from the absence of a cautionary instruction on accomplice testimony A Washingtonpatternjury instruction cautionsjurors, consistent with Washington

10No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. 

### Gallegos

case law, that the uncorroborated testimony ofan accomplice should be carefully examined: Testimony ofan accomplice, given on behalfofthe [State] [City] [County], should be subjected to careful examination in the light ofother evidence in the case, and should be acted upon with great caution. You shouldnot find the defendant guilty upon such testimony alone unless, after carefully consideringthe testimony, you are satisfied beyond a reasonable doubt ofits truth. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6.05, at 184 (3d ed. 2008) (WPIC). Mr. Gallegos's trial lawyer did notpropose or request that WPIC 6.05 or any similar instruction be given to thejury. Mr. Gallegos argues this constitutes ineffective assistance ofcounsel. We review ineffective assistance ofcounsel claims de novo, engaging in a twoprongtest announced in 

### Stricklandv. 

### Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

### State v. 

### Sutherby, 165 Wn.2d 870,883,204 P.3d 916 (2009). First, the defendant must show he received deficient representation. 

### State v. 

### Mierz, 127 Wn.2d 460,471, 901 P.2d 286 (1995) (citing

### Strickland, 466 U.S. at 688-89). Deficient performance is determined using an objective standard ofreasonableness. 

### State v. 

### Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). Second, the defendant must show he or she sufferedprejudice as a result ofthe deficientperformance. 

### Mierz, 127 Wn.2d at 471 (citing

### Strickland, 466 U.S. at 687). Prejudice will result if"'counsel's
errors were so serious as to deprive the defendant ofa fair trial.'" Id. (quoting
11No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. Gallegos Strickland, 466 U.S. at 687). "This showing is made when there is a reasonable probability that, but for counsel's errors, the result ofthe trial would have been different." 

### Id. (citing 

### State v. Thomas, 109 Wn.2d 222,226, 743 P.2d 816 (1987)). A reasonable probability is a probability sufficientto undermine confidence in the outcome; it does not require a showingthatthe outcome would more likely than not be altered. 

### State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003) (citing 

### Strickland, 466 U.S. at 693-94). Ifone ofthe two prongs ofthe 

### Stricklandtest is absent, this court need not inquire further. 

### State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). And "[i]fit is easierto dispose ofan ineffectiveness claim on the ground oflack ofsufficientprejudice

...that course should be followed." 

### Strickland, 466 U.S. at 697. The gist ofWPIC 6.05 is that accomplice testimony is suspect, and most suspect when it is uncorroborated. The instruction nonetheless permits thejuryto consider accomplice testimony "inthe light ofother evidence in the case" and evento rely on such testimony alone, if, "after carefully considering the testimony, [it is] satisfied beyond a reasonable doubt ofits truth." The State called over two dozen witnesses during Mr. Gallegos's trial. While three were accomplices, their testimony was materially consistent. Andthe collective recount ofthe accomplices was corroborated by otherwitnesses who were not accomplices, and by physical evidence, such as evidence ofMr. Eby's and Mr. Pineda's cell phone use and location on the night ofthe murders, and evidence connecting the 12No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos
materials used to wrap and tie Mr. Eby's body to materials in Mr. Whalen's home and garage. Thejurywas aware the accomplices had a motive that might lead them to lie. The evidence established, and Mr. Gallegos's trial lawyer argued, that Mr. Pineda and Mr. Villa initially made inconsistent statements to police, denying any involvement in the murders. Mr. Gallegos's lawyer cross-examinedthem about deals they made withthe State in exchange for testifying against his client. Beyondthat, Mr. Gallegos's trial lawyer established that Mr. Pineda and Mr. Villa were close friends-much closerthan they were to Mr. Gallegos, implicating a motive to lie to protect one, the other, or each other. He established on cross-examination that Mr. Villa had tried to use Mr. Gallegos
as a fall guy once before. Mr. Gallegos's lawyer highlighted the accomplices' drug use, and the fact that his
own client did notuse drugs. He elicited evidence on Mr. Villa's powerin the LaRaza gang, and Mr. Gallegos's lack ofpower. Although thejurors were not specially cautioned to closely examine the testimony ofaccomplices, they were instructed, generally, thatthey were "the solejudges ofthe credibility ofeach witness" and "the value or weightto be given to the testimony ofeach witness." Clerk's Papers (CP) at 1169 (WPIC 1.02). They were instructedthat "[i] n considering a witness's testimony, [they] may consider
... any personal interest that the witness might have in the outcome orthe issues; any bias orprejudice that the witness 13No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. Gallegos
may have shown
... and any other factors that affect your evaluation orbeliefofa witness oryour evaluation ofhis orhertestimony." Id. Where Mr. Gallegos's trial lawyer ensured thatjurorswere aware ofevidence casting doubt on the credibility ofthe accomplice testimony andthey received the general instruction that they should considerpersonal interest and bias, Mr. Gallegos fails to demonstrate a reasonable probability that the outcome oftrial would have been different hadthejurybeen given WPIC 6.05 or a similar instruction. 

### II. Sufficiency of evidence to supporta finding of premeditation Mr. Gallegos next argues the evidence was insufficientto support ajury finding thatMr. Eby's murder was premeditated, focusing onthe testimony ofMr. Pineda and Mr. Villa·that there was no planto shoot Mr. Eby, and Mr. Villa'stestimony that the shooting occurred in a "split second." Br. ofAppellant at 23. "Thetest for determining the sufficiency ofthe evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier offact couldhave found guiltbeyond a reasonable doubt." 

### State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992). A claim ofinsufficiency ofevidence admits the truth ofthe State's evidence and all inferences that can reasonably be drawn from it. 

### State v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015) (quoting 

### Salinas, 119 Wn.2d at 201). A person is guilty ofmurder in the first degree when "[w]ith a premeditated intent to cause the death ofanotherperson, he or she causes the death ofsuchperson or ofa 14No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. Gallegos
third person." RCW 9A.32.030(1)(a). A person is guilty ofsecond degree murder ifthey act withthe "intentto cause the death ofanotherpersonbutwithoutpremeditation." RCW 9A.32.050(1)(a). "The element ofpremeditation distinguishes first and second degree murder." 

### State v. Bingham, 105 Wn.2d 820, 823, 719 P.2d 109 (1986). "Premeditation" has been defined as "'the deliberate formation ofand reflection upon the intentto take a human life' and involves 'the mental process ofthinking beforehand, deliberation, reflection,·weighing or reasoning for a period oftime, however short."' 

### State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995) (quoting 

### State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105 (1995)). By statute, thepremeditation required in orderto support conviction ofthe crime ofmurder inthe first degree "must involve more than a moment inpoint oftime." RCW 9A.32.020(1). The time may be very short, provided it is a sufficientperiodwithin which to reflect or deliberate. 

### Bingham, 105 Wn.2d at 824, 827 (citing

### State v. Smith, 12 Wn. App. 720, 732-33, 531 P.2d 843 (1975), 

### aff'd, 88 Wn.2d 127, 559 P.2d 970 (1977)). Motive, evidence ofplanning, and the method ofkilling are particularly relevant to establishpremeditation. 

### Pirtle, 127 Wn.2d at 644. "Theplannedpresence ofa weapon necessary to facilitate a killing has been held to be adequate evidence to allow the issue ofpremeditationto go to thejury." 

### Bingham, 105 Wn.2d at 827. It has also been "held that evidence showing the victim was shotthree times in the head, two times after he had

15

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### j No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. Gallegos
fallen on the floor, was sufficientto establishpremeditation." 

### Gentry, 125 Wn.2d at 598 (citing

### State v. Rehak, 67 Wn. App. 157, 834 P.2d 651 (1992)). In

### State v. Condon, 182 Wn.2d 307, our Supreme Courtreiterated the reasoning of 

### Pirtle thatthe fact that a defendant embarked on a robbery with a loaded handgun is sufficient evidence from which a rationaljury could find premeditated murder, even ifthe defendant could not have foreseen theprecise eventthat would cause him to kill. It cited 

### State v. Miller, 164 Wash. 441,447, 2 P.2d 738 (1931), in which the court affirmed a conviction predicated onpremeditation where, when Miller entered an office, armed, intendingto rob it, and sawtwo menpresent, "he may have 

### very hastily concluded that it
was advisable to dispose of[the decedent] so he would have but one man to contend with." (Emphasis added.) In this case, Mr. Gallegos was in Mr. Whalen's garage, armed, withthe intentto provide backup ifMr. Pineda decided to "check"Mr. Eby. This is evidence from which premeditation may be inferred (even though it need notbe inferred), in the same sense as premeditation may be inferred where a murder is committed inthe course ofan armed robbery. A rationaljurorcould find that when it was Mr. Pinedawho got "checked," the murder ofMr. Eby was the unsurprising result ofthe reason 

### Mr. Gallegos was present and armed in the first place. It could find that the murder was the product ofreflection, since, according to Mr. Pineda's testimony, Mr. Gallegos waited long enough to see that 

### Mr. Pineda was onthe losing end ofa fight before he proceeded to where Mr. Eby was 16No. 32841-4-III (consol. w/No. 34425-8-III) 

### State v. Gallegos straddling Mr. Pineda, fired a foreseeably fatal shot at Mr. Eby, and thenpulled Mr. Eby offof

### Mr. Pineda in orderto get two cleaner, foreseeably fatal, shots. The evidence was sufficient. Ill. 

### Constitutional speedy trial right Boththe United States and the Washington Constitutions provide a criminal defendant with the right to a speedy trial. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. A defendant's speedy trial rights under article I, section 22 are coextensive with his
orher rights underthe SixthAmendment and the analysis is substantially the same. 

### State
v. 

### Iniguez, 167 Wn.2d 273,290, 217 P.3d 768 (2009). This court reviews a defendant's claim that his orher right to a speedy trial was violated de novo. 

### Id. at 280-81. Ifa defendant's constitutional right to a speedy trial is violated, the remedy is dismissal ofthe charges withprejudice. 

### Id. at 282 (citing

### Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. ~182, 33 L. Ed. 2d 101 (1972)). "'It is
... impossible to determine withprecisionwhen the right [ to a speedy trial] has been denied."' 

### Iniguez, 167 Wn.2d at 282 (alterations in original) (quoting

### Barker, 407 U.S. at 521). "[S]omepretrial delay is often 'inevitable and whollyjustifiable."' 

### Iniguez, 167 Wn.2d at 282 (quoting

### Doggettv. UnitedStates, 505 U.S. 647, 656, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). As a result, "any inquiry into a speedy trial claim necessitates a functional analysis ofthe right in the particular context ofthe case." 

### Barker, 407 U.S. at 522. 17No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. Gallegos
In 

### Barker, the United States Supreme Court adopted a balancingtestthat weighs the conduct ofthe State and the defendant in orderto determine whether speedy trial rights have been denied in a given case. It identified four nonexclusive factors as among those the court should weigh: 

### (1) the length ofdelay, (2) the reason for the delay, (3) the defendant's assertion ofhis speedy trial right, and (4) prejudice to the defendant. 407 U.S. at 529, 530. "The length ofthe delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors." Id. at 530. 

### Delay. Whether delay is presumptively prejudicial is a fact-specific inquiry. 

### Iniguez, 167 Wn.2d at 283,291. Commentators have observed that in speaking of "presumptiveprejudice," the Supreme Court appears not to mean a demonstration of actual prejudice orto contemplate a shiftto the prosecution ofthe burden of demonstrating an absence ofprejudice, but "'[p]robably
...that a claim ofdenial of speedy trial may be heard after the passage ofa period oftime which is, prima facie, unreasonable in the circumstances.'" 5 WAYNER. LAFAVE ET AL., CRIMINAL PROCEDURE§ 18.2(b) at 129 (4th ed. 2015) (quoting H. Richard Uviller, Barkerv. Wingo: 

### Speedy Trial Gets a Fast Shuffle, 72 COLUM. 

### L. REV. 1376, 1385 (1972)). In this connection, a court should considerthe length ofdelay, the complexity ofthe charges and the reliance on eyewitness testimony. 

### Iniguez, 167 Wn.2d at 292. Forexample, "a tolerable delay for trial on 'an ordinary street crime is considerably less than for a serious, 18

### No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. Gallegos complex conspiracy charge."' 

### Id. (quoting

### Barker, 407 U.S. at 531). Courts also consider whether the defendant was in custody as well as the amount set for bail. In

### Doggett, the Supreme Court observedthat "[d]epending on the nature ofthe charges, the lower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year." 505 U.S. 652 n.1 (citing 2 WAYNER. LAFAVE &

### JEROLD H. ISRAEL, CRIMINALPROCEDURE§ 18.2(b) at 405 (1984)). Our own Supreme Courthas criticized other courts' reliance on

### Doggett's reference to a one-year period as an abdication oftheir duty to engage in a fact-specific inquiry in each case. 

### Iniguez, 167 Wn.2d at 292. Applying a fact-specific approach, considerations here that indicate, prima facie,
an unreasonable passage oftime are that 18 months is a substantial period, that Mr. 

### Gallegos spentthe entire time in custody, and that eyewitness testimony came to be a critical part ofthe State's evidence. 

### CfId. (The relative importance in a case of eyewitness testimony "underscore[s] the importance ofavoiding delays that could result in witnesses becoming unavailable ortheir memories fading."). Considerations that indicate, prima facie, thatpretrial activity in this case would reasonably take more time than usual are that it involved multiple actors, which

### Iniguez recognized as presenting the potential for greaterpretrial delay, 

### see id.; the related prospect ofnegotiations and plea agreements that couldtransform the character ofthe case; and, failing that, and with recorded confessions in hand, the State's understandable effort, iffeasible, to prepare for 19

### No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. 

### Gallegos

ajointtrial that it (and the law) would favor. Considering all, we find the roughly 18- month delay was sufficientto trigger a full 

### Barker examination. "'[T]he length ofdelay is both the trigger for analysis and one ofthe factors to be considered."' 

### State v. 

### Ollivier, 178 Wn.2d 813,828,312 P.3d 

### I (2013) (quoting 

### United States v. 

### Colombo, 852 F.2d 19, 24 (1st Cir. 1988)). Having determined that the roughly 18-month delay was presumptively prejudicial, we consider "the extentto which [it] stretches beyond the bare minimum needed to triggerjudicial examination ofthe claim." 

### Doggett, 505 U.S. at 652. "[T]he longer the pretrial delay, the closer a court should scrutinize the circumstances surrounding the delay." 

### Iniguez, 167 Wn.2d at 293. Given the circumstances that suggested that pretrial activities would reasonably take longer than usual, the roughly 18-month lapse between arrest and trial in this case is only minimally out ofline with other cases with similar complexities. This factor weighs only slightly against the State. 

### Reason for delay. The second factor is the reason for delay. 

### Iniguez, 167 Wn.2d at 284. "'[D]ifferentweights [are to be] assigned to different reasons' for delay." Id. 

### (quoting

### Doggett, 505 U.S. at 657) (alterations original). Ifthe State deliberately causes the delay in orderto frustrate the defense, the delay will be weighed heavily against it. 

### Iniguez, 167 Wn.2d at 284. "Delay
... due to institutional dysfunctions attributable to the State" by contrast, weighs less heavily against the State. 

### Ollivier, 178 Wn.2d at 837.

20No. 32841-4-III (consol. w/No. 34425-8-III) 

### State v. Gallegos Delay attributable to mere negligence on the part ofthe State or overcrowded courts similarly weighs against the State, to a reduced extent. 

### Iniguez, 167 Wn.2d at 284. Ifthe delay is at the defendant's request, or ifthe defendant agrees to the delay, then he or she is deemed to have waived his orher speedy trial rights as long as the waiverwas knowing and voluntary. Id. "Because 'the attorney is the [defendant's] agent when acting, or failing to act, in furtherance ofthe litigation,' delay caused by the defendant's counsel is also charged against the defendant." 

### Vermont v. Brillon, 556 U.S. 81, 90-91, 129 S. Ct. 1283, 173 L. Ed. 2d 231 (2009) (quoting 

### Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991)). In

### Iniguez, the defendant objected to four continuances. As in this case, some delays were requested by the State because it had already agreed with a codefendantto continue trial and it wanted to try the cases together. Id. at 294. Another was due to the State's need to interview witnesses. Yet another continuance was due to the State's discovery that a key witness had left the country and was unavailable for trial. Our Supreme Court determined that "[o]nbalance, none ofthe continuances can be described
as unreasonable, especially in light ofthe 'policy favoringjointtrials,' [ 

### State v.] 

### Dent, 123 Wn.2d [467,] 484, [869 P.2d 392 (1994)], and thejugglingthattrial courts must do to accommodate the schedules ofmultiple lawyers and multiple witnesses." 

### Iniguez, 167 Wn.2d at 294.

21

### No. 32841-4-111 

### (consol. w/No. 34425-8-111) State 

### v. Gallegos


### In this case, a number ofcontinuances were granted in orderto allow the State to prepare for trial. Trial was reset from April 2013 

### to June 2013, 

### from June 2013 

### to November 2013, 

### from November 2013 

### to December 2013, 

### and from December 2013 

### to April 2014, 

### with the agreement ofsome other defendants, ifnot Mr. Gallegos, in orderto allow the State to continue investigating and receive additional testing from crime labs. The forensic evidence needed and other investigation and preparation required to prosecute two aggravated murder charges against four defendants can reasonably be expected to require considerably more pretrial work than a typical prosecution. Mr. 

### Gallegos nonetheless argues that this factor should be weighed heavily against the State because ofwhathe characterizes as gamesmanship on the part ofthe State over whethertrial ofthe defendants would be severed. He can pointto the trial court's unhappiness with the State for failing to candidly assess the need for severance between the December 2013 

### hearing and early 2014. 

### Nonetheless, other developments in the case during that time frame either changed the complexion ofthe case or required resolution. They include the cooperation and plea agreements reached with Messrs. Whalen and Pineda; Mr. Villa's retention ofan expert and assertion ofa diminished capacity defense; the defendants' requests (including Mr. Gallegos's request) to make several motions that would be briefed and ready to be heard in late June 2014, 

### at the earliest; and-priorto the time that Mr. Villa reached aplea agreement-a dispute between him and the State over whether his recorded statement must be producedto Mr. 

### Gallegos. 22No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. Gallegos
While the trial court was clearly unhappy with the State's failure to comply with its request that the State prepare an early and candid assessment ofwhether and howthe
cases could bejointlytried, it was Mr. Gallegos whomthe criminal rules required to make a motion to sever. It was always within his powerto do so and thereby to force the State's hand. Ifany passage oftime counts againstthe State for failing to comply with the trial court's request for a candid assessment ofthe severance issue, it weighs minimally against the State. 

### Defendant's assertion of speedy trial right. The third factor identified in

### Barker is whetherthe defendant asserted his speedy trial right. 

### Barker, 407 U.S. at 528-29. Mr. Gallegos demanded a speedy trial and consistently objectedto continuances. The State contends the continuances were requested by Mr. Gallegos's counsel. Butthe trial courtperceived defense counsel asjoining in only the request for the first continuance, from April 1, 2013 to June 24, 2013. AfterMr. Gallegos complainedthat his lawyer's agreement to the continuance presented a conflict ofinterest, Mr. Gallegos's lawyer did notjoin in any further continuance request. 3 Most continuances were either

3 The State argues, incorrectly, that "OnMarch 28, 2014, Gallegos informed the Courtthat the parties were in ongoing negotiations," citing "CP 182." Br. ofResp't at 29. The cited record indicates that at the March 28 hearing the court asked whether there were ongoing negotiations. 

### Theprosecutor responded, "Both counsel have asked me to make offers." CP at 182. ButMr. Gallegos's lawyer disputed that negotiations were ongoing, and stated: 23No. 32841-4-111 (consol. w/No. 34425-8-111) 

### State v. Gallegos requested by the State or deemed necessary by the court, and the record shows over and
over again that Mr. Gallegos personally, and through his counsel, contested the continuances. Mr. Gallegos's opposition to delay was consistent, and it was discussed and emphasized at nearly every hearing. This factor weighs againstthe State. 

### Prejudice. The last factor identified by

### Barker is prejudice to the defendant. "Prejudice isjudgedby looking at the effect on the interests protectedbythe right to a speedy trial: (1) to preventharshpretrial incarceration, (2) to minimize the defendant's anxiety and worry, and (3) to limit impairment to the defense." 

### Iniguez, 167 Wn.2d at 295. Unless a defendanthas been subjectedto extreme delay (more than five years), the defendant must set forth particularizedprejudice that wouldweighheavily againstthe State. 

### Ollivier, 178 Wn.2d at 842-44. Here, the actual prejudice alleged by Mr. Gallegos is that delay enabledthe State to fortify its case against him by persuading codefendants to testify as cooperating witnesses. Butexperience tells us that often, the impetus for agreementto cooperate is an
We'retwo weeks out for trial. We're over a year into it, and we've neverhad an offer. Forthe courtto ask ifnegotiations are ongoing, there really haven't been. Nor do I think there will be meaningful negotiations with regard to Mr. Gallegos. I thinkthe only offerthatwe will conceivably get is plead guilty to murder. 

### I knowthat he's not going to take that. Just to be frank with the court, I'm not real concernedwith trying to have time to settle the case. I don'tthink it's going to happen. I think that all the issues that are outstanding should have been resolved by now. CP at 191. 24No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos upcoming trial date, notthe mere passage oftime. Mr. Gallegos offers no evidence or argument why, ifthere had been an earlier firm trial date, his accomplices would not earlierhave become cooperating witnesses. His suggestionthatMessrs. Whalen, Pineda, and Villa would not have testified against him ifthe trial occurred earlier is not only speculative, but doubtful. This factor weighs in favor ofthe State. Onbalance, the circumstances leading to roughly an 18-month delay in Mr. Gallegos's trial do not support a finding ofa speedy trial violation ofconstitutional magnitude that wouldjustify dismissal with prejudice ofthe charges against him. STATEMENT OF ADDITIONAL GROUNDS In a pro se statement ofadditional grounds for review (SAG), Mr. Gallegos raises
a number ofalleged errors, some related, which we consolidate where appropriate. Prior conviction stipulation. 4 Mr. Gallegos argues he received ineffective assistance ofcounsel when his trial lawyer suggested he sign a stipulation for the unlawful possession ofa firearm charge. The record includes Mr. Gallegos's stipulation that "defendanthas [a] prior conviction for a serious offense." CP at 405-06. Mr. Gallegos argues thatby stipulating, he conceded his guilt on the homicide charge. He requests an evidentiary hearing in order to determine how much prejudice he suffered as

4 SAG no. I, at 3.

25No. 32841-4-III (consol. w/No. 34425-8-III) State 

### v. Gallegos

a result ofcounsel's purportedly deficient performance.5 The stipulation signed by Mr. Gallegos conceded one element ofthe crime of possession ofa firearm, but did not concede he had committedthat crime, let alone that he had committed homicide. Where aprior conviction is an element ofa charge and can be proved, it is a common defense practice to stipulate to the conviction, thereby avoiding presentation to thejury ofmore damaging details ofthe prior offense. Trial counsel's performance was not deficient. Accomplice instruction. 6 Mr. Gallegos alleges the court's instruction to thejury regarding accomplice liability deprived him ofhis due process right to have every element ofthe offense established beyond a reasonable doubt. He argues that in combination with the complained-ofstipulation on the firearm charge the instruction createdprejudicial error. Asjustexplained, there was no stipulationto the firearm charge. The instruction on accomplice liability, appearing at Clerk's Papers 1177 and based on WPIC 10.51, is an accurate statement ofthe law. We see no way in which the stipulation, thejury instruction, orboth in combination, can be contendedto have deprived Mr. Gallegos ofhis due process right or

5 SAG no. III, at 3; SAG no. VI, at 14. 6 SAG no. II, at 4.


### 26

# I 

# I I 

# I I 

# I i No. 32841-4-111 (consol. w/No. 34425-8-111) State 

### v. Gallegos prejudiced him. Even where error is claimed in a SAG, we do not consider it ifit is unsupportedby argument or citationto legal authority. RAP 10.3(a)(6). Gang evidence. Mr. Gallegos argues that the admission ofgang evidence at his trial requires reversal. It was the State's theory that the motive for Mr. Pineda's threatened assault ofMr. Eby was thatMr. Eby solicited a member ofa rival gang to rob Mr. Pineda, and, when Mr. Eby began beating Mr. Pineda, that Mr. Gallegos was motivated by gang allegiance toprotectMr. Pinedaby shooting Mr. Eby. Just before the pretrial hearing held on August 20, 2014, Mr. Gallegos's lawyer concededthat gang evidence was admissible. Mr. Gallegos asserts his lawyer's concession impinged onMr. Gallegos's decision making authority7 and requests an evidentiary hearing in orderto determine whetherhis trial lawyer was ineffective.8 To the extent Mr. Gallegos is alleging ineffective assistance by his trial lawyer9 in conceding the admissibility ofthe evidence, the record reflects the concessionwas prompted inpartbythe lawyer's beliefthe evidence wouldberuled admissible, but also by strategic self-interest: It's, you know, this, this is a case where you can'treally separate the testimony without involving the gang evidence and, and it cuts both ways. There'sportions ofthat are very helpful to us and, and, youknow, interplay between, you know, Villa and Pineda and different things and the different, you know, things that happened not involving Mr. Gallegos.

7 SAG no. V, at 11. 8 SAG no. VI, at 14-17. 9 SAG no. IV, at 8; SAGno. V, at 11. 27

### No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos
RP at 98. Recall that Mr. Gallegos's lawyer elicited evidence that it was Mr. 

### Villa, not Mr. 

### Gallegos, who had power in the LaRaza gang. Additionally, the record reflects the fact that Mr. Gallegos has conspicuous gang-related tattoos on his face. Even Mr. Gallegos's SAG states, "Mr. 

### Gallegos has tattoos allover [sic] his face and a mongol haircut." SAG at 12. According to the record, he is proud ofthe tattoos and did not want to attempt covering them during trial. As atrial-tactic decision, conceding the admissibility ofthe gang evidence was within the trial lawyer's authority. And Mr. Gallegos fails to demonstrate thatthe concession was not legitimate trial strategy. He also fails to demonstrate that the court would have excluded the evidence but for his lawyer's concession. He fails to demonstrate eitherprong required to establish ineffective assistance ofcounsel. Alibiwitness. Mr. Gallegos makes references to having received ineffective assistance ofcounsel because his trial lawyer did not interview certain witnesses. Because the issue involves factual allegations outside the record ofthis appeal, his remedy is to seekreliefthrough a personal restraint petition. State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991). Affirmed. PERSONAL RESTRAINT PETITION Mr. Gallegos seeks relieffrom personal restraint imposed for his convictions at

28

### No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos


### issue in the direct appeal. As part ofthejudgment and sentence, the court imposed legal financial obligations (LFOs) totaling $13,514.15. They include $11,764.15 in restitution,
a $500.00 crime penalty assessment (victim's penalty assessment), a $200.00 filing fee, $600.00 for court appointed counsel, a $100.00 DNA10 

### collection fee, a $250.00jury fee, and a $100.00 crime lab fee. Citing State v. Blazina, 

### 182 Wn.2d 827, 344 P.3d 680 (2015), Mr. Gallegos claims for the first time by collateral attack that the sentencing courtunlawfully imposed the LFOs because it failed to considerhis present or future ability to pay. Because he is alleging a nonconstitutional error, he must show that a fundamental defect in his sentence attributable to the LFOs has inherently resulted in a complete miscarriage of justice. In
re Pers. Restraint of Cook, 

### 114 Wn.2d 802, 813, 792 P.2d 506 (1990). In Blazina, 

### the courtheld that RCW 10.01.160(3) requires the sentencingjudgeto engage in an individualized inquiry on the record into the defendant's current and future ability to pay before imposing discretionary LFOs. 182 Wn.2d at 837, 839. ButRCW 10.01.160(3) does not apply to mandatory LFOs. State v. Lundy, 

### 176 Wn. App. 96, 103, 308 P.3d 755 (2013). With the exception ofthe $600.00 court appointed attorney recoupment and the $250.00jury demand fee 11 , 

### all ofthe LFOs imposed on Mr. Gallegos

10 

### Deoxyribonucleic acid. 11 

### The discretionary or mandatory character ofthejury demand fee remains unclear. See State v. Clark, 

### No. 32839-2-111, slip op. at 4 (Wash. Ct. App. Sept. 8, 2016), http://www.courts.wa.gov/opinions/pdf/328392_pub.pdf. 29 

# '

### No. 32841-4-111 (consol. w/No. 34425-8-111) State v. Gallegos

are mandatory. RCW 7.68.035; RCW 36.18.020(2)(h); RCW 43.43.7541; RCW 43.43.690(1). With respect to the two discretionary LFOs, since Mr. Gallegos did not object to the trial court's finding that he had the present and future ability to pay, he has not preserved the asserted error for appeal. RAP 2.5(a). Because Mr. Gallegos's lifetime sentence without the possibility ofparole means that the LFOs will neverhinder his reentry into society, we decline to exercise our discretion to review his challenge to the trial court's failure to comply with RCW 10.01.160(3). We dismiss the petition as frivolous under RAP 16.ll(b) and RCW 10.73.140. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. 

# ?zdhcu. } ' \ 

### doway,J.

# ~ WE 

### CONCUR:

30