FILED 

April 8,2014 

In the Office of the Clerk of Court 


WA State Court of Appeals. 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JOSE GARCIA MORALES, ) UNPUBLISHED OPINION 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 Garcia Morales appeals his conviction as an accomplice 

to first degree murder, attempted first degree murder, and two counts of assault. He 

argues that the trial court abused its discretion in refusing to give five nonpattern jury 

instructions he contends were needed to clearly present the standard for accomplice 

liability. We disagree. The trial court reasonably concluded that the Washington pattern 

jury instruction on accomplice liability was an evenhanded and sufficient statement ofthe 

law from which Mr. Garcia Morales could present his defense. We affirm. 

FACTSANDPROCEDURALBACKGROlmD 

On a December night in 2008, brothers Ramon and Jose Garcia Morales traveled 

to the home ofAlfredo and Maria Garcia with a grievance to vent. Ramon, Jose, and the 

Garcias were all farm workers, but Alfredo had the additional responsibility of compiling 
No.30806-5-III 

State v. Garcia Morales 

the list ofworkers who would be hired to plant and top the onions for one ofthe local 

onion packing plants. l Ramon had not been included in the list of approved workers, was 

in a desperate financial situation, and blamed Alfredo, who was his relative by marriage.2 

Ramon would later tell detectives that the day before he and Jose went to see Alfredo, he 

told Jose and his sister Virginia that he planned to approach Alfredo the next day and 

demand money from him. IfAlfredo refused to pay at least part ofthe money Ramon 

believed he had missed out on, then he would kill Alfredo. 

The next night, the brothers went to the Garcia home. Both were armed with 

handguns. Five members of the Garcia family were home when Ramon and Jose arrived: 

Alfredo, Maria, and three of their 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. Maria heard the two brothers talking loudly with Alfredo about money but 

did not initially join them. When she did enter the living room, Alfredo explained to her 

that Ramon and Jose were demanding money because Ramon had not been called to 

work with the crew at the onion packing facility. Maria later testified that Alfredo 

I The members ofthe Garcia family and the two Garcia Morales brothers share a 

last name. To avoid confusion, we use their first names in the 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 of Proceedings (RP) at 607. 

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No. 30806-5-111 

State v. Garcia Morales 

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 left the room to call the police. That was the last thing she 

remembered. Evidence was later presented 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 after her call. 

Hearing gunshots, Erika and Maricela went to the living room and saw Ramonand perhaps Jose; Erika's testimony was inconsistent-shooting their parents. 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 six times, 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 left her unable to walk. 

The next morning Erika and Maricela identified Ramon and Jose from a 

photomontage. Both described Ramon as the person who had shot their parents. They 

3 Maria testified that her husband said, "[Y]ou don't need that, Ramon. You don't 

need that gun. We can just talk with words." RP at 524. 

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No. 30806-5-III 

State v. Garcia Morales 

described Jose as the person who was standing by 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 of bullets, he took Jose's handgun and fired additional shots 

with it. He was adamant that Jose never fired a shot, characterizing him as being a 

lookout. Ramon was separately tried and was convicted.4 

Jose was ultimately charged with the first degree murder ofAlfredo, the attempted 

first degree murder of Maria, and two counts of second degree assault of Erika and 

Maricela. The State sought firearm enhancements for each of the four counts.5 

At trial, the State argued that Jose was liable as an accomplice, pointing to 

evidence that he knew about his brother's plan to either get money from Alfredo or to 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 on the basis that while he was present at the 

scene, he did not assist in the crimes. To support the defense theory, Jose presented 

evidence showing his lack of motive (unlike Ramon, he had been given work in the 

fields) and statements Erika and Maricela made to the police shortly after the 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 of its case. 

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No. 30806-5-111 

State v. Garcia Morales 

indicating that Jose never fired shots, never pointed a gun at them, and stopped Ramon 

from shooting the girls. The girls contradicted some of those reported statements at trial. 

Jose proposed five nonpatternjury instructions on accomplice liability. His 

proposed instructions would have told the jury: 

Mere assent to the commission of a crime is not enough to make someone 

an accomplice. 

Clerk's Papers (CP) at 115. 

Neither is presence at the scene of a crime sufficient, even when coupled 

with knowledge that the presence [aids] in the crime's commission. 

CP at 116. 

For presence to rise to the level of complicity, 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 pattern jury instructions for criminal trials include a 

pattern instruction on accomplice liability, see 11 WASHINGTON PRACTICE: WASHINGTON 

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No. 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 the points 

raised in its proposed instructions. 

The jury 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 of confinement. He appeals. 

ANALYSIS 

The principal instructional concern ofthe defense was to be able to argue that the 

actions ofJose (whom we refer to hereafter as Mr. Garcia Morales) did not meet the 

standard for accomplice liability. But it is the role ofthe trial court, not a criminal 

defendant, to decide how best to instruct the jury. Jury instructions are proper if 

"substantial evidence supports them, they allow the parties to argue their theories ofthe 

case, and, when read as a whole, they properly inform the jury ofthe applicable law." 

State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). "[I]t is not error for a 

trial court to 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 oflaw in a jury instruction, we review the 

instruction de novo. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005). 

6 

No. 30806-5-111 

State v. Garcia Morales 

"Whether to give a particular 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 the jury: 

A person is guilty of a crime if it is committed by the conduct of 

another person for which he or she is legally accountable. A person is 

legally accountable for the conduct of another person when he or she is an 

accomplice of such other person in the commission ofthe crime. 

A person is an accomplice in the commission of a crime if, with 

knowledge that it will promote or facilitate the commission of the crime, he 

or she either: 

(1) solicits, commands, encourages, or requests another person to 

commit the crime; or 

(2) aids or agrees to aid another person 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 her presence is aiding in the commission of the 

crime. However, more than mere presence and knowledge of the criminal 

activity of another must be shown to establish that a person present 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 it correctly states the mental state required for an accomplice). The pattern 

7 

No. 30806-5-111 

State v. Garcia Morales 

instruction largely mirrors the language of the 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 or readiness 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 306,349,434 P.2d 10 (1967), vacated on other grounds 

by Wheat v. Washington, 392 U.S. 652, 88 S. Ct. 2302, 20 L. Ed. 2d 1357 (1968). 

The State does not dispute that Mr. Garcia Morales's proposed instructions were 

correct statements ofthe law, derived from published Washington decisions that he cited 

to the trial court as support.7 It does disagree-and rightly so-with Mr. Garcia 

6 The accomplice liability statute, RCW 9A.08.020, provides, in relevant part: 

(3) A person is an accomplice of another person in the commission 

of a crime if: 

(a) With knowledge that it will promote or facilitate the commission 

of the crime, he or she: 

(i) Solicits, commands, encourages, or requests such other person to 

commit it; or 

(ii) Aids or agrees to aid such other person 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) ("It is true that assent to the crime alone is not 

aiding and abetting."); State v. Rotunno, 95 Wn.2d 931,933,631 P.2d 951 (1981) 

('" something more than presence alone plus knowledge of ongoing activity must be 

shown to establish the intent requisite to finding [defendant] to be an accomplice'" 

(quoting In re Welfare o/Wilson, 91 Wn.2d 487,492, 588 P.2d 1161 (1979))); State v. 

8 

No. 30806-5-111 

State v. Garcia Morales 

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 that the fact that 

certain language is used in an appellate court decision does not mean that it can be 

properly incorporated into a jury 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) (noting that "language quoted from an appellate 

court opinion does not necessarily make a proper jury 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 of at least one oftwo contentions: 

(1) that the pattern instruction prevented him from arguing his defense theory that he was 

merely present 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 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.); State v. 

Robinson, 73 Wn. App. 851, 872 P.2d 43 (1994) (a person 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 Garcia home, or (2) that the pattern 

instruction was misleading and failed to accurately state the law of accomplice liability.s 

With this burden in mind, we review his proposed instructions. 

First proposed instruction: "Mere assent to the commission ofa crime is not 

enough to make someone an accomplice." The pattern instruction advised the jury that 

"more than mere presence and knowledge ofthe criminal activity of another must be 

shown to establish that a person present is an accomplice." CP at 57-58 (emphasis 

added). Mr. Garcia Morales nonetheless claims that the pattern instruction contradicts 

itself by defining "aid" as "all assistance whether given by words, acts, encouragement, 

support, or presence." CP at 57. The definition of "aid" further provides, however, that 

"[a] person who is present at the scene and ready to assist by his or her presence is aiding 

in the commission of the 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 held that instructing the jury that 

readiness to assist or- actual assistance is a required component of "aiding" avoided the 

S Mr. Garcia Morales emphasizes that there was conflicting evidence as to how 

Erika, Maricela, and Maria characterized his role in the crimes immediately after they 

occurred, at the trial of Ramon Garcia Morales, and in direct and cross-examination at his 

trial. He suggests that these contradictions heightened the need for instructions beyond 

the pattern instruction. The fact that there were conflicts in the evidence would increase 

the likelihood that an error was prejudicial if we were engaged in harmless error analysis. 

But it does not alter the analysis ofwhether the instructions given correctly stated the law 

and enabled the defense to argue its theory ofthe case. 

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No.30806-5-II1 

State v. Garcia Morales 

error of suggesting 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 enabled Mr. Garcia Morales to 

argue that mere assent to the commission ofa crime would not establish accomplice 

liability. 

Second proposed instruction: "Neither is presence at the scene ofa crime 

sufficient, even when coupled with knowledge that the presence [aids] in the crime's 

commission." Mr. Garcia Morales cites State v. Rotunno, 95 Wn.2d 931, 933, 631 P .2d 

951 (1981), which clearly supports this statement ofthe law-but Rotunno also observed 

that "[t]his interpretation ofthe law has been embodied in the Washington pattern 

instructions [at] WPIC 10.51." It was only because the trial court in Rotunno modified 

the instruction by eliminating its last sentence that the Supreme Court found it to be 

misleading. Rotunno implicitly establishes that when given in its complete, unmodified 

form, WPIC 10.51 encompasses the principle of law that Mr. Garcia Morales proposed as 

his second instruction. 

Third proposed instruction: "For presence to rise to the level ofcomplicity, the 

defendant must be ready to assist in the commission ofthe crime." This proposed 

instruction is functionally equivalent to Mr. Garcia Morales's second proposed 

instruction. As recognized in Rotunno and in Williams, 28 Wn. App. at 212, the last 

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No. 30806-5-111 

State v. Garcia Morales 

paragraph of WPIC 10.51 makes clear that the defendant must have been ready to assist 

in the crime, thereby allowing Mr. Garcia Morales to argue to the jury that while present, 

he was not ready to assist. 

Fourth proposed instruction: "Failure to act does not establish complicity. This 

remains true even ifthe person had a duty to act. For example a person'sfailure to 

protect his or her child from assault does not make the person 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 of law, the trial court committed error 

by modifying WPIC 10.51 to provide-incorrectly-that accomplice liability extends to 

a person based upon his or her failure to fulfill a duty to come to the aid of another. 

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 of defense without an instruction negating a 

basis for liability that was not suggested by the pattern instruction. 

Fifth proposed instruction: "A person is also not an accomplice ifthat person's 

sole involvement with the crime arises after the crime was committed." The language of 

the pattern instruction limits the temporal scope of accomplice liability to the planning 

12 

No. 30806-5-III 

State v. Garcia Morales 

and commission of a crime: it states that "[a] person is legally accountable for the 

conduct of another person when he or she is an accomplice of such other person 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-"with knowledge that it 

will promote or facilitate the commission of the crime"-he or she either (1) "solici~s, 

commands, encourages, or requests another person to commit the crime" or (2) "aids or 

agrees to aid another person in planning or committing the crime." Id. (emphasis added). 

This language limits a person's liability to conduct that occurs either before or during the 

commission of the crime. The State did not rely 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 instruction to argue that guilt must be 

based on acts preceding or occurring during the commission of the 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 of the panel has determined that this opinion will not be printed in the 

13 

No. 30806-5-111 

State v. Garcia Morales 

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