### FILED April 8,2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals. Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 30806-5-111 Respondent, ) ) 

### v. ) ) JOSE GARCIA MORALES, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- Jose GarciaMorales appeals his conviction as an accomplice to first degree murder, attempted first degree murder, and two counts ofassault. He argues that the trial court abused its discretion in refusing to give five nonpatternjury instructions he contends were neededto clearly presentthe standard for accomplice liability. We disagree. The trial court reasonably concluded thatthe Washingtonpattern juryinstruction on accomplice liability was an evenhanded and sufficient statement ofthe law from which Mr. GarciaMorales could presenthis defense. We affirm. FACTSANDPROCEDURALBACKGROlmD On a Decembernight in 2008, brothers Ramon andJose Garcia Morales traveled tothe home ofAlfredo and Maria Garciawith a grievance to vent. Ramon, Jose, and the Garcias were all farm workers, butAlfredo hadthe additional responsibility ofcompilingNo.30806-5-III State 

### v. Garcia Morales

the list ofworkers who would be hired toplant andtop the onions for one ofthe local onionpacking plants. l Ramon had not been included in the list ofapproved workers, was in a desperate financial situation, and blamed Alfredo, who was his relative by marriage.2 Ramonwould latertell detectives thatthe day before he and Jose wentto see Alfredo, he told Jose andhis sister Virginia that heplanned to approach Alfredo the next day and demand money from him. IfAlfredo refused to pay at leastpart ofthemoney Ramon believed he hadmissed out on, then he would kill Alfredo. The next night, the brothers wentto the Garcia home. Both were armed with handguns. Five members ofthe Garcia family were home when Ramon andJose arrived: Alfredo, Maria, and three oftheir children: two teenaged daughters, Erika and Maricela, and Kimberly, an infant. Alfredo was the only member ofthe family in the living room when Ramon and Jose arrived. Mariaheardthe two brothers talking loudly with Alfredo about money but did not initiallyjointhem. When she did enterthe living room, Alfredo explainedto her thatRamon and Jose were demanding money because Ramon hadnot been calledto workwith the crew at the onionpacking facility. Maria latertestified that Alfredo

I The members ofthe Garcia family andthe two Garcia Morales brothers share a lastname. To avoid confusion, we use their first names inthe statement offacts. No disrespect is intended. 2 Jose and Ramon are brothers ofAlfredo's brother's wife. Alfredo's daughter Erika described them as "family members." Report ofProceedings (RP) at 607. 2

### No. 30806-5-111 State v. GarciaMorales

offered to take them to the foreman's house the next day, but Ramon demanded to go there immediately. When she heard Alfredo say something to the brothers about not needing their guns,3 she leftthe room to call thepolice. That was the last thing she remembered. Evidence was laterpresented that her 911 call was answered, she made statements in Spanish to the dispatcher, and then hung up; the dispatcher's attempt to call her back was not answered. Apparently Ramon began firing at her and Alfredo very shortly afterher call. Hearing gunshots, Erika and Maricelawent to the living room and sawRamonand perhaps Jose; Erika's testimony was inconsistent-shootingtheirparents. Both would later testifY that Ramon and Jose pointed guns at them at one point, in response to which their father told the brothers not to shoot the girls. While Ramon then fired additional shots at her father, the brothers did not shoot at the two girls. Erika called 911 as soon as Ramon and Jose left. By the time help arrived, Alfredo, who had been shot sixtimes, was dead. Maria was alive but unresponsive and barely breathing. She had been shot four times, including once to the face, twice to the chest, and once to the left lung. Her injuries lefther unable to walk. The next morning Erika and Maricela identified Ramon and Jose from a photomontage. Both described Ramon as the person who had shottheirparents. They

3 Maria testified that her husband said, "[Y]ou don'tneed that, Ramon. You don't need that gun. We canjusttalk withwords." RP at 524. 3No. 30806-5-III State 

### v. GarciaMorales

described Jose as the personwho was standingby the door, holding a gun, and acting like

a lookout. Ramon and Jose were arrested the next day, and Ramon confessed two days after the shooting. He told detectives that he was the only one who did any shooting and that when his handgun ran out ofbullets, he took Jose's handgun and fired additional shots with it. He was adamant that Jose never fired a shot, characterizinghim as being a lookout. Ramon was separately tried and was convicted.4 Jose was ultimately charged withthe first degree murder ofAlfredo, the attempted first degree murder ofMaria, and two counts ofsecond degree assault ofErika and Maricela. The State sought firearm enhancements for each ofthe four counts.5 Attrial, the State argued that Jose was liable as an accomplice, pointingto evidence that he knew abouthis brother's planto either get money from Alfredo orto kill him, brought his own gun into the Garcias' home, supplied Ramon with either bullets or a gun, and acted as a lookout. Jose defended onthe basis that while he was present at the scene, he did not assist in the crimes. To supportthe defense theory, Jose presented evidence showing his lack ofmotive (unlike Ramon, he had been given work in the fields) and statements Erika and Maricela made to the police shortly afterthe shooting

4 State 

### v. Morales, noted at 177 Wn. App. 1026 (2013), review denied, No. 89659­ 3 (Wash. Mar. 5,2014). 5 The State also charged Jose with rendering criminal assistance in the first degree, but withdrew the charge at the close ofits case. 4No. 30806-5-111 State v. Garcia Morales indicating that Jose never fired shots, neverpointed a gun at them, and stopped Ramon from shooting the girls. The girls contradicted some ofthose reported statements at trial. Jose proposed five nonpatternjury instructions on accomplice liability. His proposed instructions would have told thejury: Mere assent to the commission ofa crime is not enough to make someone an accomplice. Clerk's Papers (CP) at 115. Neither is presence at the scene ofa crime sufficient, even when coupled with knowledge thatthe presence [aids] in the crime's commission. CP at 116. Forpresence to rise to the level ofcomplicity, the defendant must be ready to assist in the commission ofthe crime. CP at 117. Failure to act does not establish complicity. This remains true even ifthe person had a duty to act. For example a person's failure to protect his or her child from assault does not make the person an accomplice in that assault. CP at 118. And, A person is also not an accomplice ifthat person's sole involvement with the crime arises after the crime was committed. CP at 119. Although the Washington patternjury instructions for criminal trials include a pattern instruction on accomplice liability, see 11 WASHINGTON PRACTICE: WASHINGTON



### 5No. 30806-5-111 State v. Garcia Morales

PAITERN JURY INSTRUCTIONS: CRIMINAL 10.51 (3d ed. 2008) (WPIC), Jose did not include it in his proposed instructions. The court refused to give Jose's proposed instructions, ruling that the pattern instruction, WPIC 10.51, was sufficient and would enable the defense to argue thepoints raised in its proposed instructions. Thejury found Jose guilty on all counts and returned special verdicts that he was armed with a firearm at the time he committed each crime. He was sentenced to 906.5 months ofconfinement. He appeals. ANALYSIS Theprincipal instructional concern ofthe defense was to be able to argue that the actions ofJose (whom we referto hereafter as Mr. Garcia Morales) did not meet the standard for accomplice liability. But it is the role ofthetrial court, not a criminal defendant, to decide how bestto instruct thejury. Jury instructions areproperif "substantial evidence supports them, they allow the parties to argue their theories ofthe case, and, when read as a whole, theyproperly inform thejury ofthe applicable law." State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). "[I]t is not error for a trial courtto refuse a specific instruction when a more general instruction adequately explains the law and allows each party to argue its case theory." Id. Where a defendant alleges an error of law in ajury instruction, we review the instruction de novo. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005). 

### 6No. 30806-5-111 State v. Garcia Morales

"Whether to give aparticular jury instruction," on the other hand, "is within the trial court's discretion." Boeing Co. v. Key, 101 Wn. App. 629, 632,5 P.3d 16 (2000) (emphasis added). The Washington pattern instruction on accomplice liability given by the trial court informed thejury: A person is guilty ofa crime ifit is committed by the conduct of another person for which he or she is legally accountable. A person is legally accountable for the conduct ofanother person when he or she is an accomplice ofsuch other person in the commission ofthe crime. A person is an accomplice in the commission ofa crime if, with knowledge that it will promote or facilitate the commission ofthe crime, he or she either: (1) solicits, commands, encourages, orrequests another person to commit the crime; or (2) aids or agrees to aid anotherperson in planning or committing the crime. The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or herpresence is aiding in the commission ofthe crime. However, more than mere presence and knowledge ofthe criminal activity ofanother must be shown to establish that a personpresent is an accomplice. CP at 57-58. As noted in State v. Hoffman, WPIC 10.51 "is drawn directly from the accomplice statute." 116 Wn.2d 51, 102-04, 804 P.2d 577 (1991) (finding no error in the instruction insofar as itcorrectly states the mental state required for an accomplice). Thepattern

7No. 30806-5-111 State v. Garcia Morales

instruction largely mirrors the language ofthe accomplice statute,6 adding a definition of the term "aid." State v. Williams, 28 Wn. App. 209,211,622 P.2d 885 (1981). Its definition of"aid" as requiring assistance orreadiness to assist is consistent with Washington case law. Id.; In re Welfare o/Wilson, 91 Wn.2d 487,491,588 P.2d 1161 (1979); State v. Aiken, 72 Wn.2d 306,349,434P.2d 10 (1967), vacatedon othergrounds by Wheat v. Washington, 392 U.S. 652, 88 S. Ct. 2302, 20 L. Ed. 2d 1357 (1968). The State does not dispute thatMr. Garcia Morales'sproposed instructions were correct statements ofthe law, derived from published Washington decisions that he cited to the trial court as support.7 Itdoes disagree-andrightly so-withMr. Garcia

6The accomplice liability statute, RCW 9A.08.020, provides, in relevantpart: (3) A person is an accomplice ofanotherperson in the commission ofa crime if: (a) With knowledge that itwill promote or facilitate the commission ofthe crime, he or she: (i) Solicits, commands, encourages, orrequests such otherperson to commit it; or (ii) Aids or agrees to aid such otherperson in planning or committing it; or (b) His or her conduct is expressly declared by law to establish his or her complicity. We quote the current version ofRCW 9A.08.020, which was amended by Laws of2011, chapter 336, section 351 to make the language gender neutraL 7 As support for his instructions, Mr. Garcia Morales cited State v. Renneberg, 83 Wn.2d 735, 739, 522 P.2d 835 (1974) ("Itis true that assentto the crime alone is not aiding and abetting."); State v. Rotunno, 95 Wn.2d 931,933,631 P.2d 951 (1981) ('" something more thanpresence alone plusknowledge ofongoing activity must be shownto establishthe intent requisite to finding [defendant] to be an accomplice'" (quotingIn re Welfare o/Wilson, 91 Wn.2d 487,492, 588 P.2d 1161 (1979))); State v. 8No. 30806-5-111 State v. GarciaMorales

Morales's argument that ifthe instructions he requested accurately stated the law, then the trial court should have given them. "The law is well established thatthe fact that certain language is used in an appellate court decision does not mean that it canbe properly incorporated into ajury instruction." State v. Alexander, 7 Wn. App. 329, 335, 499 P.2d 263 (1972); accord Williams, 28 Wn. App. at212; State v. Dunning, 8 Wn. App. 340, 342 n.2, 506 P.2d 321 (1973) (notingthat "language quoted from an appellate court opinion does not necessarily make a properjury instruction"). 

### In particular, "[t]he refusal to give a requested instruction is not error when the subject matter is adequately covered in the court's other instructions." State v. Etheridge, 74 Wn.2d 102, 110,443 P.2d 536 (1968). Mr. Garcia Morales must therefore persuade us ofat least one oftwo contentions: (1) that the pattern instruction preventedhim from arguing his defense theory that he was merelypresent and, at most, failed to stop his brother from acting and rendered assistance

Robinson, 35 Wn. App. 898,903,671 P.2d 256 (1983) ("The evidence must show both presence and readiness (intent to assist) before a person can be found guilty as an accomplice."); State v. Jackson, 87 Wn. App. 801,944 P.2d 403 (1997), ajJ'd, 137 Wn.2d 712,976 P.2d 1229 (1999) (Failure to act does not establish complicity. This remains true even ifthe personhad a duty to act. For example a person's failure to protecthis or her child from assault does not make the person an accomplice in that assault.); State v. Robinson, 73 Wn. App. 851, 872 P.2d43 (1994) (aperson is also not an accomplice if that person's sole involvement with the crime arises after the crime was committed). 9

### No. 30806-5-111 State v. Garcia Morales

after the fact by retrieving the two handguns from the Garciahome, or (2)thatthe pattern instruction was misleading and failed to accurately statethe law ofaccomplice liability.s With this burden in mind, we review his proposed instructions. Firstproposed instruction: "Mere assent to the commission of a crime is not enough to make someone an accomplice." The pattern instruction advisedthejurythat "more than merepresence andknowledge ofthe criminal activity ofanothermust be shownto establish that a personpresent is an accomplice." CP at 

### 57-58 (emphasis added). Mr. Garcia Morales nonetheless claims thatthe pattern instruction contradicts itselfby defining "aid" as "all assistance whether given by words, acts, encouragement, support, orpresence." CP at 

### 57. The definition of"aid" further provides, however, that "[a] person who is present at the scene andready to assist byhis or herpresence is aiding in the commission ofthe crime." Id. (emphasis added). A critical, consistent concept in the definition of"aid" is that of"assistance," which Mr. Garcia Morales chooses to ignore. In State v. Renneberg, our Supreme Court heldthat instructing thejurythat readiness to assist or- actual assistance is a required component of"aiding" avoided the

SMr. Garcia Morales emphasizes thatthere was conflicting evidence as to how Erika, Maricela, and Maria characterizedhis role in the crimes immediately after they occurred, at the trial ofRamon Garcia Morales, and in direct and cross-examination at his trial. He suggests thatthese contradictions heightenedthe need for instructions beyond the pattern instruction. The fact thatthere were conflicts in the evidence would increase the likelihoodthat an errorwas prejudicial ifwe were engaged in harmless error analysis. But it does not alter the analysis ofwhetherthe instructions given correctly stated the law and enabled the defense to argue its theory ofthe case. 

### 10No.30806-5-II1 State v. GarciaMorales

error ofsuggesting that "mere assent" could establish complicity. 83 Wn.2d 735, 739, 522 P.2d 835 (1974) (contrasting what it held to be correct instruction from the instruction held to be error in State v. Peasley, 80 Wash. 99, 141 P. 316 (1914)). The pattern instruction is not internally contradictory and enabledMr. GarciaMorales to argue that mere assent tothe commission ofa crime would not establish accomplice liability. Secondproposed instruction: "Neither ispresence at the scene of a crime sufficient, even when coupledwith knowledge that thepresence [aids] in the crime's commission." Mr. GarciaMorales cites State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981), which clearly supports this statement ofthe law-butRotunno also observed that "[t]his interpretation ofthe law has been embodied in the Washingtonpattern instructions [at] WPIC 10.51." Itwas only becausethe trial court inRotunno modified the instruction by eliminating its last sentence thattheSupreme Court found it to be misleading. Rotunno implicitly establishes thatwhen given in its complete, unmodified form, WPIC 10.51 encompasses theprinciple oflaw that Mr. GarciaMorales proposed as his second instruction. Third proposed instruction: "Forpresence to rise to the level of complicity, the defendant must be ready to assist in the commission of the crime." Thisproposed instruction is functionally equivalentto Mr. GarciaMorales's second proposed instruction. As recognized in Rotunno and in Williams, 28 Wn. App. at 212, the last 11No. 30806-5-111 State v. Garcia Morales paragraph ofWPIC 10.51 makes clearthat the defendant must have been ready to assist in the crime, thereby allowing Mr. Garcia Morales to argue to thejury thatwhile present, he was not ready to assist. Fourth proposed instruction: "Failure to actdoes notestablish complicity. This remains true even 

## if theperson hada duty to act. For example aperson's failure to protecthis or her child from assaultdoes notmake theperson an accomplice in that assault." The pattern instruction nowhere states or suggests that a failure to act suffices

as complicity. In State 

### v. Jackson, l37 Wn.2d 712, 720-22, 976 P.2d 1229 (1999), which Mr. Garcia Morales relies upon for this statement oflaw, the trial court committed error by modifying WPIC 10.51 to provide-incorrectly-that accomplice liability extends to

a person based upon his orher failure to fulfill a duty to come to the aid ofanother. Jackson characterized the modification as a "notable expansion on the reach ofthe statute," because "such a basis for accomplice liability does not appear in the statute." Id. at 722 (emphasis added). Such a basis for liability does not appear in the pattern instruction, either, and was not suggested by the State as a basis for accomplice liability. Mr. Garcia Morales could argue his theory ofdefense without an instruction negating a basis for liability that was not suggested by thepattern instruction. Fifth proposed instruction: "Aperson is also notan accomplice 

## if thatperson's sole involvementwith the crime arises after the crime was committed." The language of the pattern instruction limits the temporal scope ofaccomplice liability to the planning 12

### No. 30806-5-III State 

### v. Garcia Morales

and commission ofa crime: it states that "[a] person is legally accountable for the conduct ofanother person when he or she is an accomplice ofsuch otherperson 

### in the commission o/the crime." CP at 57 (emphasis added). It further provides that a person
can only be an accomplice in the commission ofthe crime if-"withknowledge 

### that it willpromote or facilitate the commission ofthe crime"-he or she either (1)**"solici~s,** commands, encourages, orrequests another person 

### to commit the crime" or (2) "aids or agrees to aid anotherperson 

### inplanning or committing the crime." Id. (emphasis added). This language limits a person's liability to conductthat occurs either before orduring the commission ofthe crime. The State did notrely upon 

### Mr. Garcia Morales's acts following commission ofthe crimes as a basis for his guilt; in any event, he was free to point to the temporal references in the pattern instructionto argue that guilt must be based on acts preceding or occurring during the commission ofthe crime. Since the legal principles reflected in Mr. Garcia Morales's proposed instructions

on accomplice liability were all encompassed in the pattern instruction, the trial court did not abuse its discretion by giving only the pattern instruction. Affirmed. A majority ofthe panel has determined that this opinion will notbe printed inthe



### 13No. 30806-5-111 State v. GarciaMorales Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

/ /;

/ / Siddoway, C.J.

# ~ WE CONCUR:

Brown, 

### J.

14