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

v. FELIPE LUIS JR. Appellant. ) ) ) ) ) ) ) ) ) No. 38350

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UNPUBLISHED OPINION

P ENNELL , J.

— Felipe Luis J r. appeals his judgment and senten ce, imposed as

a result of his conviction for first degree manslaughter. Finding no error, we affirm. FACTS On December 9, 2018, Felipe Luis Jr. was housed in the Yakima County j ail’s Norteño gang unit, along with Julian Gonzales, Deryk Donato, and Jacob O zuna. A t around 11:30 p.m., a corrections officer l ooked into the unit and saw an inmate

on the ground, surrounded by other inmates. After calling for backup, several officers and medical staff entered the unit and found Mr. Ozuna on the floor unconscious , but still alive, and with extreme blunt force injuries. Officers observed pools of blood, as well as blood streaked on the walls, floor, and stairway, and on the hands of Mr. Luis,
Mr. Donato, and Mr. Gonzale s . Mr. Ozuna was transported to the hospital wh ere he died shortly after. 

### FILED DECEMBER 28, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 38350

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2 Description of the i ncident The attack on Mr. Ozuna was captured by nonaudio surveillance cameras. Video
f

ootage revealed Mr. Ozuna on the second floor of the unit talking to another inmate.
Mr. Luis, Mr. Donato, and Mr. Gonzales were downstairs and can be seen talking and shaking hands. Mr. Luis and the two other men then went upstairs, approached Mr. Ozuna from behind , and initiated an attack . For 12 minutes, the three men continuously punched , kicked , and stomped on Mr. Ozuna. When Mr. Ozuna tried to get away, he was cornered and taken to the ground. When Mr. Ozuna appeared to lose consciousness, the beating did not stop; the three assailants kept punching and kicking Mr. Ozuna’s body , including his face. Mr. Luis, Mr. Donato, a nd Mr. Gonzales briefly took a break to drag Mr. Ozuna along the hallway to the top of the stairs. When Mr. Ozuna started to move again, the beating resumed until Mr. Ozuna became nonresponsive. The three men then dragged
Mr. Ozuna by his feet down the sta irs of the unit, causing him to hit his head on each individual stair

. Once at the bottom of the stairs, Mr. Ozuna appeared to move his ar m. In response, Mr. Luis and his companions repeatedly kicked Mr. Ozuna in the face until he stopped moving. During th e attack, another inmate, Lindsey Albright, took items from Mr. Ozuna’s cell and brought them back to his own cell . When officers later asked for the items ,No. 38350

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3 Mr. Albright handed them , among other things, a document listing the “14 bonds” of the Norteño gang

. 1 Rep. of Proc. (RP) ( Nov. 12, 2020 ) at 125

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. Mr. Ozuna ’s autopsy revealed swelling around his head and face, bleeding in his nose and mouth, minor injuries to his hand and wrist, bruising on his neck, bruising on his chest, bruising and abrasions on h is upper extremities, bruising on his right abdomen and pelvic areas, broken ribs, a liter of blood in his chest cavity, a bruise to his heart lining , contusions to his lungs, a hemorrhage near his kidneys, a one and one

- half inch laceration on his scalp, and bruising and impact injuries on his skull. Although he had

no skull fractures or major vessels torn, the beating caused Mr. Ozuna’s brain to move around inside his skull and swell to the point where it cut off its own blood supply

. Mr. Ozuna’s official cause of death was rapid swelling of the brain resulting in respiratory failure. His official manner of death was homicide. Charges Mr. Luis, Mr. Donato, and Mr. Gonzale s were each charged with Mr. Ozuna’s murder. Their cases were joined for trial until t he court granted a motion to sever. The information filed against Mr. Luis charged two offenses. Count 1 charged aggravat e d first degree murder. One of the alleged aggravating circumstances was a gang aggravator under RCW 10.95.020(6)

. This aggravator alle ged the murder was “committedNo. 38350

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4 to obtain or maintain [ Mr. Luis’s ] membership or to advance [his] position in the hierarchy of an organization, association, or identifiable group.” Clerk’s Papers (CP) at 4.
Count 2 charged Mr. Luis with unaggravated first de gree murder. 1 This charge carried a gang enhancement that alleged the murder was committed “with intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for [ any ] criminal street gang as defined [ by ] RCW 9 .94A.030, its reputation, influence, or membership.” Id

. at 5. April 10, 2019 motion to continue Mr. Luis was arraigned on January 2, 2019. On January 31, 2019, Mr. Luis appeared in court and waived his right to a speedy trial . Although there is no transc ript of the January 31 hearing in the record on review , the parties agree the purpose of the continuance was to perform DNA testing. 2 Mr. Luis signed a speedy trial waiver, agreeing to a trial date of May 6, 2019 , with a readiness hearing s et for April 10, 2019

.

1 Aggravated first degree murder is punished by a ma ximum penalty of life imprisonment without the possibility of parole. RCW 10.95.030 . Unaggravated first degree murder is punished by a maximum penalty of life imprisonment. RCW 9A.32.030(2); RCW 9A.20.021(1)(a)

. An enhancement, if found by a jury, would al low the court to impose a sentence above the standard range. RCW 9.94A.535(3). 2 According to the State, a recording for the January 31, 2019 , hearing is not attainable. Br. of Resp’t at 7 n.3.No. 38350

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5 The parties appeared as scheduled on April 10 . At the beginning of the hearing, counsel for the State explained the Washington State Patrol Crime Laboratory was not done with its DNA analysis and the process would not likely be complete until June

. The d efense voiced concern that the State had not identified what efforts had been made to obtain the DNA testing in a timely manner. The State’s attorney did not provide an explanation, but stated that if Mr. Luis “wants to go to trial

. . . we can go t o trial” so long as defense counsel represented he was ready. 1 RP (Apr

. 10, 2019) at 9. Mr. Luis’s attorney did not say he was ready for trial, but he also did not specifically ask for a continuance. Rather, defense counsel said, “We’re not asking for [a continuance] at this time. We’re asking for the DNA [analysis] . And we’re asking for what efforts they’ve made to get the DNA [testing] done in a timely manner.” Id . at 9

- 10. Given defense counsel’s statements, the prosecutor asked for a continuance to all ow for the completion of DNA testing. The court then found good cause for a continuance. The court asked defense counsel if there would be any prejudice to Mr. Luis by the continuance. Defense counsel stated, “No.” Id . at 11. The court then continued the t rial date to August 12,
2019

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3 During the hearing Mr. Luis astutely asked, “What is the DN A [testing] for when there’s a video?” Id

. at 13. The trial court responded by advising Mr. Luis to confer with his counsel.No. 38350

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6 At a June 19, 2019 , readiness hearing, the court was informed the DNA analysis had been received. Brad y 4 m otion On April 13, 2021, Mr. Luis filed a Brady motion for discovery. Mr. Luis specifically asked for any exculpato ry or impeaching evidence related to Mr. Ozuna and his purported murder of Dario Alvarado. The State affirmed it had complied with the Brady requirements.
Motion in l imine and Knapsta d 5 m otion In a motion in limine, the State moved to admit gang associatio n evidence to establish its theory for motive. The State asserted Mr. Ozuna’s killing was gang related. Evidence revealed Mr. Ozuna had been in custody for the alleged murder of Dario Alvarado on May 10, 2018. The State claimed both Mr. Ozuna and Mr. Alvar ado were members of the Norteño gang. Expert testimony regarding the Norteños revealed they had a “constitution” called the “14 bonds

. ” 1 RP (Nov. 12, 2020) at 233. Norteño members
must abide by the 14 bonds or risk being punished. The State theorized Mr. Ozuna had broken one of the bonds by killing Mr. Alvarado, a fellow Norteño, and thus needed to

4 Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 5 State v. Knapstad , 107 Wn.2d 346, 729 P.2d 48 (1986).No. 38350

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7 be disciplined. Testimony revealed Mr. Luis and his codefendants are also Norteño gang members, who, the State claimed, were ordered to carry out the disciplin e. According to the State’s evidence, if a Norteño receives no repercussions for violating a bond, one could assume the bond was approved. Mr. Luis objected to the State’s motion, arguing the evidence failed to establish a nexus between Mr. Luis’s gang af filiation and the crime, and was prejudicial. Mr. Luis also joined his codefendants in filing a Knapstad motion to dismiss count 1, the aggravated murder charge, claiming the police testimony and gang expert testimony provided insufficient evidence, standi ng alone, to support an aggravating factor. The trial court held a consolidated hearing on the two motions, ultimately denying Mr. Luis’s motion to dismiss count 1 and granting the State’s motion to admit gang evidence. Trial The case proceeded to a jury t rial. The jury viewed the surveillance videos along with photographs depicting the scene and of Mr. Ozuna’s injuries. The jury also heard testimony from various law enforcement officers about gang membership and the State’s theory that Mr. Ozuna was killed for gang

- related reasons. This testimony was consistent with what had been set forth in the motion in limine.No. 38350

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8 In the defense case, Mr. Luis presented testimony from employees of the Yakima County Department of Corrections who admitted Mr. Alvarado int o custody in 2018. According to the witnesses, Mr. Alvarado identified himself as a “drop” during the intake
process. 4 RP (Jun. 4, 2021) at 1762

- 63, 1768; Ex

. 87. This meant he was no longer affiliated with a gang and should not be housed in a gang area

. Id

. Mr. Alvarado ’s intake paperwork not ed he had not been affiliated with a gang for approximately 10 years.
Ex. 87. Jury i nstructions , c onviction and s entencing The court granted a defense request for a jury instruction on manslaughter in the first degree , but denied an instruction based on manslaughter in the second degree, finding it was factually unwarranted . The jury convicted Mr. Luis of first degree manslaughter. It did not return a verdict on the gang enhancement

. Sentencing
The defense filed a moti on requesting an exceptional sentence below the standard guideline range based largely on Mr. Luis’s youth. The court recognized it had discretion to grant the motion, but declined to do so. The court reasoned Mr. Luis was “more sophisticated than most 19

- year olds.”
RP ( Jul. 15, 2021 ) at 42

- 43. Given the prolonged nature of the attack, the court foundNo. 38350

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9 Mr. Luis had not acted impetuously or without recognizing the consequences of his actions. The court did not find Mr. Luis’s actions were unduly influenced by his associates at the jail or by his difficult childhood. And the court noted Mr. Luis had already gone through the juvenile court system with no discernable progress toward rehabilitation. The court imposed the maximum of the standard range of 147 months. Mr. Luis timely appeals. ANALYSIS
G ang e vidence
Mr. Luis contends the trial court improperly allowed the State to present gang evidence under ER 404(b) . According to Mr. Luis, the claim that Mr. Ozuna’s murder was gang related was entirely speculat ive. Furthermore, he argues the State’s theory that Mr. Ozuna was killed as punishment for killing another gang member was undercut by evidence that Mr. Alvarado was actually a dropout. We review a trial court’s ER 404(b) decision for abuse of discretion. State v. Embry , 171 Wn. App. 714, 731, 287 P.3d 648 (2012). Even if a trial court abuses its discretion, reversal is unwarranted if the error was harmless. State v. Scott , 151 Wn. App. 520, 529 , 213 P.3d 71 (2009)

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10 We are not particularly swayed by the su bstance of Mr. Luis’s ER 404(b) claim

. Although the evidence supporting the State’s theory of the case was circumstantial, it was significant. The State’s evidence raised a reasonable inference that Mr. Ozuna was killed in an orchestrated manner in accorda nce with the Norteño code of conduct. While the defense produced some evidence that Mr. Alvarado had dropped out of the Norteño gang , t h e evidence was not so strong that it eviscerated the State’s theory. Thus , we are inclined to agree with the trial court that the State was entitled to present its gang evidence under ER 404(b)

. 6 But regardless of any ER 404(b) error , Mr. Luis cannot get past the State’s claim of harmless error. “Evidentiary error can be harmless if, within reasonable probability, it did n ot materially affect the verdict.” Scott , 151 Wn. App. at 529 (citing State v. Zwicker , 105 Wn.2d 228, 243, 713 P.2d 1101 (1986)). Mr. Luis was acquitted of aggravated first degree murder, which was predicated on a gang allegation. And the jury did not iss ue a gang enhancement. Thus, there is no direct basis for concluding the gang evidence negatively impacted Mr. Luis’s case.

6 A more thorough discussion of the ER 404(b) analysis is set forth in our decision in the companion case of State v. Donato , No. 38621

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- III ( Wash. Ct. App. Dec. 28, 2023 ) (unpublished), https://www.courts.wa.gov/opinions/pdf/38 6210 _unp.pdf

.No. 38350

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11 Mr. Luis argues the ER 404(b) evidence was harmful because it portrayed him in a negative light. We are unpersuaded. For one thing, the jury necessarily knew Mr. Luis was in jail at the time of the offense; thus, it was unavoidable he would not be perceived as someone free from any criminal association. But more importantly, the video evidence document ed Mr. Luis’s participation in a brutal , intentional beating that was prolonged and cruel. Given the strength of the video evidence, it is not reasonably probable the State’s gang evidence impacted the jury’s manslaughter verdict. Brady Mr. Luis contends the state violated its Brady obli gation to disclose exculpatory evidence when it failed to produce the jail records establishing Mr. Alvarado’s gang drop
out status. Our review is de novo. State v. Mullen , 171 Wn.2d 881, 894, 259 P.3d
158 (2011). Relief under Brady requires a showing of p rejudice. In re Pers. Restraint of
Stenson , 174 Wn.2d 474, 486

- 87, 276 P.3d 286 (2012). In this context, prejudice turns on whether it is reasonably probable that, with proper disclosure, the result of the proceeding would have been different

. In re Pers. Restraint of Mulamba , 199 Wn.2d 488, 498, 508 P.3d 645 (2022). Mr. Luis’s Brady claim fails for lack of prejudice. Regardless of whether the
State should have produced information about Mr. Alvarado before trial, there is not aNo. 38350

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12 reasonable probability that early disclosure would have yielded a different result. Mr. Luis had the information about Mr. Alvarado at trial and was able to use it in his case

- in

- chief. Perhaps based on Mr. Luis’s presentation of Mr. Alvarado’s gang drop status, the jury did
not return any gang related verdicts. Mr. Luis recognizes that he had the Alvarado information at trial and that the jury did not issue a gang

- related verdict; nevertheless, he insists there was prejudice because earlier disclosure would have prevented the trial court from allowing the presentation of gang evidence at trial. We reject Mr. Luis’s analysis. Even if the information regarding Mr. Alvarado would have changed the trial court’s decision to admit gang evidence, 7
the introduction of the gang evidence did n ot prejudice the outcome of Mr. Luis’s case.
Lesser

- included offense jury instruction Mr. Luis challenges the trial court’s refusal to instruct the theory on second degree manslaughter. A defendant is entitled to a lesser

- included offense jury instruction when

7 This propo sition is dubious. We disagree with Mr. Luis’s argument that the information about Mr. Alvarado was “thoroughly impeaching.” Am. Appellant’s Br

. at 32

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. Mr. Alvarado’s purported claim during 2018 that he had not been involved with gangs for 10 years was impeached by evidence demonstrating his gang involvement in 2011, 2014, and 2015. See 4 RP (Jun. 2, 2021) at 1523

- 28, 153 5

- 46, 1552

- 53. Additionally, at the time Mr. Alvarado was booked into jail in April 2018, his listed property included red shoes and a red shirt. 4 RP (Jun. 4, 2021) 1783. Red is a color association with the Norteño s. 3 RP (Jun. 2, 2021) 1453, 4 RP (Jun. 4, 2021) 1783

. There was no evidence at trial indicating Norteño s members viewed Mr. Alvarado as a dropout.No. 38350

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13 two prongs are met: ( 1) under the legal prong, each element of the lesser offense must be a necessary element of the charged offense , see RCW 10.61.006, and ( 2) under the factual prong, the evidence must support an inference that only the lesser crim e was committed. State v. Workman , 90 Wn.2d 443, 447

- 48, 584 P.2d 382 (1978)

. The parties agree that, under the legal prong of the analysis, second degree manslaughter is a lesser

- included offense of the charged crime s of aggravated first degree premeditat ed murder and first degree premeditated murder

. The disagreement pertains to the factua l prong

. The factual prong is satisfied if the facts of the case “raise a possible inference that the defendant committed the lesser offense but did not commit the char ged offense.” State v. Henderson , 180 Wn. App. 138,
144 , 321 P.3d 298 (2014) , aff’d , 182 Wn.2d 734, 344 P.3d 1207 (2015)

. If viewing the evidence in the light most favorable to the defense, “ ‘ the evidence would permit a jury
to rationally find a defendant guilty of the lesser offense and acquit him of the greater,

a lesser included offense instruction should be given. ’ ” Id

. ( quoting State v. Berlin , 133 Wn.2d 541, 551, 947 P.2d 700 (1997) )

. We review a trial court’s decision regarding whether to issue a les ser - included instruction under the factual prong for abuse of discretion. Id

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14 T he difference between the charged crimes of premeditated murder and the lesser

- included offense of second degree manslaugh t er pertains to the defendant’s mental state. Premedita ted murder requires proof of intent to kill

. RCW 9A.32.030(1)(a); see also RCW 10.95.020(6). In contrast, second degree manslaughter requires only that the defendant act ed with criminal negligence. RCW 9A.32.070(1). In this context, a person acts with crim inal negligence when they “fail [ ] to be aware of a substantial risk that a homicide may occur.” Henderson , 180 Wn. App. at 149

. 8
The video evidence doom s Mr. Luis’s theory of criminal negligence. The video shows the attack against Mr. Ozuna was deliberate, lengthy, and brutal. Mr. Luis and his associates repeatedly punched and kicked Mr. Ozuna to the point where Mr. Ozuna became unconscious. When Mr. Ozuna showed any sign of movement, the assault resumed until Mr. Ozuna was completely nonresponsive. Given t he egregious circumstances documented in the video , no rational jury could find Mr. Luis failed to be aware of a substantial risk Mr. Ozuna would die from the attack

. See Henderson , 180 Wn. App. at 149. Rather, the jury “must necessarily ” have at least fou nd “a conscious disregard of a substantial risk of homicide,” consistent with the conviction for first degree

8 In contrast, first degree manslaughter requires a mental state of recklessness. State v. Warden , 133 Wn.2d 559, 563 , 947 P.2d 708 (1997)

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15 manslaughter. Id

. The trial court did not abuse its discretion in refusing to give the lesser

included instruction for second degree manslaughter. Trial c ontinuance
Mr. Luis argues the trial court violated his speedy trial rights under CrR 3.3 when it granted a continuance in order to allow the State time to c omplete DNA testing. Under the speedy trial rule, the time for trial may be extended base d on a party’s motion for continuance. CrR 3.3(f)(2). We review a trial court’s decision on whether to grant a continuance for abuse of discretion. State v. Denton , 23 Wn. App. 2d 437, 449, 516 P.3d 422 (2022). A trial court abuses its discretion if it con tinues a trial over the defendant’s objection based on general concerns of congestion or backlogs. Id . at 451

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. 9 V iolation of the speedy trial rule requires dismissal with prejudice. CrR 3.3 (h)

. While founded on the constitutional right to a speedy tri al, the time for trial rule
set by CrR 3.3 “is not of constitutional magnitude.” State v. White , 94 Wn.2d 498, 501, 617 P.2d 998 (1980), abrogated on other grounds by State v. Walker , 199 Wn.2d 796,

9 Congestion or backlogs in the courts, prosecuting attorney’s office, or crime labs will justify a continuance over the defendant’s objection o nly in exceptional circumstances. Id

. at 450. If the State believes exceptional circumstances justify a continuance over the defendant’s objection it must specify the nature of the exceptional circumstances, what steps have been taken to address the conge stion or backlog, and “a reasonable time frame within which the case can be brought to trial.” Id

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16 805

- 06, 513 P.3d 111 (2022)

. Thus, error preservation is critical. See RAP 2.5(a). In order to preserve a rule

- based speedy trial argument for appeal, a defendant must assert a timely objection. State v. MacNeven , 173 Wn. App. 265, 268

- 69, 293 P.3d 1241 (2013). Preserving a speedy trial objection allows the cou rt to address speedy trial problems by “by resetting the trial date within the timely trial period or by determining whether there

was good cause for a continuance.” Id . at 269. When a defendant objects to the basis for a continuance, not merely the date s et, a written objection is not required under
CrR 3.3(d)(3). Denton , 23 Wn. App. 2d at 460 n.10. Nevertheless, an objection is still required. Id

. Here, Mr. Luis failed to articulate a valid objection to the court’s decision to grant the State’s continua nce motion. Mr. Luis was given the opportunity to proceed to trial as scheduled on May 6, 2019 , without the DNA evidence

. Yet he did not seize it

. He i nstead assert ed he wanted the DNA evidence

. Although Mr. Luis’s attorney said he was not asking for a con tinuance and he expressed dissatisfaction with the State’s failure to explain the delay with the crime lab, nothing in the record could be construed as indicating Mr. Luis wished to proceed to trial on May 6. This case contrasts with Denton where the defen dant stated he objected to the State’s continuance and wanted to go to trial without the DNA evidence that formedNo. 38350

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17 the basis for t he State’s continuance request

. Denton , 23 Wn. App. 2d at 444. Although Mr. Luis did personally question the need for DNA evide nce during his April 10 hearing, he never asserted that he wished to go to trial in May or that he wanted to go to trial without the DNA evidence. Furthermore, when it comes to a speedy trial objection, a defendant is bound by the representations of their attorney. Id . at 448

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. Based on the unique circumstances of this case, t he trial court did not abuse its discretion in finding good cause for a continuance. Sentencing Mr. Luis challenges his standard range sentence, arguing the trial court failed to

m eaningfully consider an exceptional sentence downward based on the mitigating circumstances of youth. We disagree. Appeals of standard range sentences are generally prohibited. RCW 9.94A.585(1). When a defendant challenges the denial of an exceptional sent ence downward, appellate review turns on proof of legal error, such as a categorical refusal to exercise discretion

or the mistaken belief of a lack of discretion to impose a nonguideline s entence. State v. McFarland , 189 Wn.2d 47, 5 6, 399 P.3d 1106 (2017) ; State v. Grayson , 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). We discern no legal error in the trial court’s denial of Mr. Luis’s request for anNo. 38350

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18 exceptional sentence downward. The court recognized its authority to impose an exceptional sentence based on Mr . Luis’s youth. See State v. O’Dell , 183 Wn.2d 680, 689, 358 P.3d 359 (2015). 10 It carefully reviewed Mr. Luis’s individual circumstances and concluded Mr. Luis’s culpability was not mitigated by his young age or immaturity.
Mr. Luis has not shown any legal error warranting review of the trial court’s standard range sentence

. CONCLUSION The judgment and sentence is affirmed

. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.

_________________________________ Pennell, J.
WE CONCUR:

______________________________ _________________________________ Staab, J. Cooney, J.

10 Because Mr. Luis was not a juvenile at the time of his offense , the court was not required to consider the mitigating qualities of youth as set forth in St ate v. Houston

- Sconiers , 188 Wn.2d 1, 391 P.3d 409 (2017).