IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

## STATEOFWASHINGTON, j No. 75233-2-1 po Respondent, ) DIVISION ONE G~; i CO V. t CARLOS AVALOS, UNPUBLISHED up Appellant. ) FILED: Auqust 8. 2016 CO re



### Cox, J. — Carlos Avalos appeals hisjudgment and sentence based on his 

### conviction ofsecond-degree assault. The trial court did not abuse its discretion 

### by limiting closing argumentforeach side to about 30 minutes. There was no 

### prosecutorial misconduct. The court properlyexercised its discretion in 

### determining the amount ofrestitution. But the courtfailed to determine whether priorjuvenile adjudications constituted the same criminal conductforsentencing purposes in this case. We affirm, in part, vacate in part, and remand for resentencing. 

### The State charged Avalos withfirst-degree assault and sought sentencing enhancements for use of a deadly weapon and an egregious lack ofremorse. 

### The charges were based on an incidentinvolving a correctional officer at theNo. 75233-2-1/2 facilitywhere Avalos is incarcerated. At trial, the court also instructed thejury on the lesser included offenses of second-degree assault and custodial assault. Thejury found Avalos guilty only of second-degree assault. Itdetermined that he was not armed with a deadly weapon and did not display an egregious lack of remorse. The trial court sentenced Avalos, but did not determine whether his prior juvenile adjudications constituted the same criminal conduct in calculating his offender score. The court also ordered him to pay restitution to the correctional officer and the Department of Labor and Industries, which had paid the officer's time-loss and medical benefits. Avalos appeals. CLOSING ARGUMENT 

### Avalos argues that the trial court abused its discretion by limiting his closing argument to 30 minutes. We disagree. Under the Sixth Amendment, defendants have a right to present a closing 

### argumentto the jury.1 Butthe trial court has broad discretion to limitthe duration 

### of closing argument.2 InState v. Cecotti, James Cecotti argued that the trial courtviolated his 

### SixthAmendment rights bylimiting his closing argument to 30 minutes.3 This court disagreed, noting thatthe trial took less than three days and Cecotti did

1 Herring v. New York, 422 U.S. 853, 858, 95 S. Ct. 2550, 45 L Ed. 2d 593(1975). 2]± at 862; State v. Jack, 63 Wn.2d 632, 638-39, 388 P.2d 566 (1964). 

### 331 Wn. App. 179, 183, 639 P.2d 243 (1982). 2No. 75233-2-1/3 "not specifically identify] any issues he was not permitted to address" in closing 

### argument.4 Thus, the trial court did not abuse its discretion inlimiting closing argumentto 30 minutes.5 Similarly, in State v. Jack, the supreme court held that the trial court did not abuse its discretion by limiting each ofthree defendants to 20 minutes of 

### closing argumentfor a total of 60 minutes.6 The court noted thatthe case was "not particularly complicated, eitherfrom the standpoint ofthe state or the defense."7 Here, based on the factors considered in these two cases, we conclude thatthis trial court did not abuse its discretion by limitingthe closing argument of each side to about 30 minutes. The presentation ofevidence in this case lasted less than three days. In his briefing on appeal, Avalos does not "specifically 

### identify]any issues he was not permitted to address" in closing argument.8 At oral argument of this case, however, Avalos argued that he had 

### inadequate time to address custodial assault. After our review ofthe record, we simply disagree with that argument. 

### This case was not overly complex—Avalos was charged only with first

### degree assault and allegations for sentencing enhancement. During his

4]o\ 5lcL 663 Wn.2d 632, 638-39, 388 P.2d 566 (1964). 7ld, 8Cecotti, 31 Wn. App. at 183.No. 75233-2-1/4 testimony, Avalos admitted to sharpening a piece ofmetal and using it to attack the correctional officer. Accordingly, the issues before thejury included whether the State had proven either degree of assault or a lesser crime thatAvalos committed, whether the piece of metal was a deadly weapon, and whether he displayed an egregious lack of remorse. Thus, applying the relevantfactors, we conclude the trial court did not abuse its discretion by limiting the defense's closing argumentto about 30 minutes. 

### Avalos relies on State v. Willis9 to argue thatthe court abused its discretion by limiting the duration of closing argument. That reliance is misplaced. First, the supreme court decided Willis on othergrounds and "f[ou]nd it unnecessary to discuss this subject as the question [wajs not likely to arise again 

### upon the next trial."10 Accordingly, any discussion on the duration of closing argument is not binding precedent. Second, while the supreme court expressed disapproval ofthe limitation of closing argument inthat case, it did not explain why. Itmerely stated itwas "impressed with the contention of counsel.

.. [that] his allotted time for argument

was too limited."11 Because each case has different facts, we see no reason to extend that brief comment in that case to this one.

937 Wn.2d 274, 223 P.2d 453 (1950). 

### 10jd, at 280. 11 Id, at 281. 4No. 75233-2-1/5 

### Avalos also argues thatthe trial court had not previously informed counsel that closing argumentwould be limited to 30 minutes per side. ButAvalos's citation to the record does not supportthis proposition. And nothing inthe record indicates that defense counsel was unaware prior to closing argument that it would be limited to 30 minutes. PROSECUTORIAL MISCONDUCT 

### Avalos argues thatthe prosecutor committed misconductduring closing argument. We hold there was no such misconduct. To prevail on a claim ofprosecutorial misconduct, the defense must 

### establish that the prosecutor's conduct was bothimproper and prejudicial.12 It is generallyimproperfor the prosecutor to call the defendant a "liar."13 It is also improper for the prosecutorto express a personal opinionaboutthe defendant's guilt.14

### During closing argument, prosecutors have wide latitude to draw and 

### express reasonable inferencesfrom the evidence.15 Thus, a prosecutor may argue that the defendantwas nottruthful "because his testimonyconflicted with that ofotherwitnesses."16 Similarly, a prosecutor may argue thatthe evidence

12 State v. Emery, 174 Wn.2d 741, 756-59, 278 P.3d 653 (2012). 

### 13 See, e^, State v. Monday, 171 Wn.2d 667, 677, 257 P.3d 551 (2011); State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984). 14 State v. McKenzie. 157 Wn.2d 44, 53, 134 P.3d 221 (2006). 15 In re Yates, 177Wn.2d 1, 58, 296 P.3d 872 (2013). 16 State v. Copeland, 130 Wn.2d 244, 292, 922 P.2d 1304 (1996).No. 75233-2-1/6 

### shows thatthe defendant is guilty.17 "[T]here is a distinction between the individual opinion ofthe prosecuting attorney, as an independentfact, and an 

### opinionbased upon ordeduced from the testimony in the case."18 It is only the prosecutor's personal opinion that may not be expressed. To determine whether a prosecutor improperly expressed a personal 

### opinion, we review the argument incontext.19 "It is not uncommon for statements to be made in final arguments 

### which, standing alone, sound like an expression ofpersonal opinion. However, whenjudged inthe light ofthe total argument, the issues in the case, the evidence discussed during the 

### argument, and the court's instructions, it is usually apparent that counsel is trying to convince thejury ofcertain ultimate facts and conclusions to be drawn from the evidence. Prejudicial error does not occur until such time as it is clear and unmistakable that 

### counsel is not arguing an inference from the evidence, but is 

### expressing a personal opinion."[20] Here, the prosecutor did not commit misconduct. The prosecutor 

### summarized Avalos's testimony about his altercation withthe correctional officer 

### and stated that most of it"ma[de] quite a bitofsense, except for one thing."21 The prosecutor continued, "One thing that [Avalos] kept repeating that is absolute nonsense, that is absolutely 100 percent not true and you know what that thing

17 McKenzie, 157 Wn.2d at 53. 

### 18 Id (emphasis omitted) (quotingState v. Armstrong, 37 Wash. 51, 54-55, 79 P. 490(1905)).

19 Id. 

### 20 Id, at 53-54 (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d59(1983)). 

### 21 Report ofProceedings (February 12, 2015) at 564.No. 75233-2-1/7 

### was? Ibet you can guess what that thing was, Ididn't intend to kill, Ionly 

### intended to inflict minorinjuries."22 At that point, Avalos objected, and the court sustained the objection.23 When the prosecutor continued afterthe objection, he argued: Those answers repeated, Idid not intend to kill, Ionly intended to inflictminor wounds, minor injuries, robotically repeated several times during the testimony. Well, it's yourjob to determine whether or not that makes any sense in light ofthe rest ofthe evidence that you heard. Whether or not that makes any sense in light ofthe actions that Mr. Avalos does admitto, grinding a sharpened piece of metal, sneaking up behind somebody and jamming itrepeatedly into the back oftheir neck. Do those statements, Idid not intend to kill, Ionly intended to inflictminor injuries, make any sense at all when you think about what was going on? The State believes thatthe evidence shows that those 

### statements don't make any sense.[24] Here, the prosecutor's argument was not improper. The prosecutordid not call Avalos a "liar," but rather stated that his testimony was nottrue. Before 

### the objection, itwas not "clear and unmistakable" thatthe prosecutorwas expressing a personal opinion ratherthan asking thejury to draw an inference from the evidence. And afterthe objection, the prosecutor's arguments were permissible inferences from the evidence. Moreover, even ifthe prosecutor's comments were improper, Avalos 

### cannot establish that he was prejudiced. When a defendant successfully objects

22 Id, 23 id, at 564-65. 24 Id. at 568.

7No. 75233-2-1/8


### to improper argument, we consider "whetherthere was a substantial likelihood 

### that the statements affected the jury."25 In this case, the court gave curative instructions to thejury immediately afterthe prosecutor's statement. The court instructed thejury that: As Iindicated in one of the earlier instructions the argument and comments ofattorneys are not evidence for you to consider in terms ofdetermining what the evidence shows. You folks are the sole determiner ofwhat's true and not true, so Iwant to impress 

### upon the jury that that's exclusively yourprovince.1261 AtAvalos's request, the courtfurther instructed thejury that: Expressions ofopinions, Ithink that's included within the comment 

### withregard to any comments from attorneys in their argument^] are not evidence. So, should an attorney express an opinion as to that 

### attorney's belief in what the evidence is, [it] is to be disregarded. You are to look at the evidence independently inthejury room and 

### yourown conclusions of the value of that evidence, ifany.[27] We presume that the juryfollows the court's instructions.28 Here, the trial court's curative instructions immediately afterthe allegedly improper statement 

### cured any prejudice. The court clearly instructed the jurythat it alone was to determine credibility and to disregard an attorney's expressed opinion. This was sufficient to cure any prejudice arising from the prosecutor's isolated statement. 

### At oral argument of this case, Avalos advanced a modified argumentfor the first time. He contended that there was no basis for the prosecutorto



### 25 State v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009). 

### 26 Report ofProceedings (February 12, 2015) at 567. 27 ]d. at 567-68. 28 Anderson, 153 Wn. App. at428. 8No. 75233-2-1/9 challenge his credibility during closing. We disagree. Nothing the prosecutor said during closing was outside the bounds of legitimate closing argument. SENTENCE Avalos argues that the trial court improperly calculated his offender score. Because the State properly concedes that the courtfailed to considerwhether Avalos's two priorjuvenile offenses constituted the same criminal conduct, we vacate this sentence and remand for resentencing. Courts calculate a defendant's offender score under RCW 9.94A.525. 

### RCW 9.94A.525(5)(a)(i) requires the sentencing courtto determine whether 

### "priorjuvenile offenses for which sentences were served consecutively" constitute the same criminal conduct and thus should count as one offense. 

### In 2004, as a juvenile, Avalos pleaded guilty to one countof burglary and

one count oftheft. He received consecutive community supervision 

### adjudications forthese offenses. In the sentence, the juvenile court did not mark the boxindicating that both offenses were part of the "same course of conduct." Here, the sentencing court did notdetermine whetherAvalos's prior 

### juvenile adjudications constituted the same criminal conduct. Instead, the court relied on the fact that the juvenile court had failed tofind that the twooffenses 

### were part of the "same course of conduct." This was an abuse of discretion. Under RCW 9.94A.525(5)(a)(i)'s plain terms, the "current sentencing court shall determine" whetherthese priorjuvenile offenses constitute the same 

### criminal conduct. Thus, the sentencing court was required to determine whether 

### Avalos's prior juvenile offenses were the same criminalconduct.No. 75233-2-1/10 

### The State properly concedes that RCW 9.94A.525(5)(a)(i) requires the courtto make this inquiry, and thatthe court did not do so in this case. Accordingly, we vacate the sentence and remand for resentencing so that the 

### trial court may determine whetherAvalos'sjuvenile adjudications constituted the

same criminal conduct for sentencing purposes. RESTITUTION 

### Avalos argues thatthe sentencing court abused its discretion when it determined the amount of restitution. We disagree. 

### RCW 9.94A.753(5) requires sentencing courts to order restitution in certain circumstances. Avalos does not dispute that the court properly ordered 

### him to pay restitution. He disputes only the amount of the restitution. We review for abuse ofdiscretion the amount of a restitution award.29 The amount of restitution must be "based on easily ascertainable 

### damages forinjuryto or loss ofproperty, actual expenses incurred for treatment 

### for injuryto persons, andlostwagesresulting from injury."30 Here, the sentencing court ordered Avalos to pay restitution to two victims: $3,391.54 to the correctional officer, and $45,984.81 to the Department of Labor and Industries. The restitution to the Department ofLabor and Industries was based on the amount of "time loss and medical benefits" it paid to the officer. 

### The amount of restitution paid to the officerwas based on costs incurred in 

### traveling to medical appointmentsforthe injuries he incurred during the assault

29 State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). 30 RCW 9.94A.753(3).

10No. 75233-2-1/11 

### and the additional wages the officer would have received if he chose to work on certain paid holidays. The officer provided a declaration stating that he would have worked on those holidays if he had not been injured. Avalos argued that the court should not have awarded restitution to the 

### officer. He argued that any damages that the officer incurred were offset bythe expenses he saved in not having to commute to work while he was injured. 

### Thus, because the officer received essentially the same salary while incurring fewer expenses, the officer received a windfall offsetting any additional damages that he incurred. 

### The trial court rejected this argument and awarded the officer restitution 

### for the damages previously described. This was not an abuse of discretion. The $3,391.54 to the correctional officer was for lost wages and expenses incurred in 

### the treatment of his injuries. And $45,984.81 to the Department of Labor and Industries was based on the time-loss and medical benefits itpaid because ofthe 

### officer's injury. Thus, the trial court's award compliedwith RCW 9.94A.753. And Avalos did not cite any law indicatingthatthe type of offset he soughtwas appropriate. 

### On appeal, Avalosargues that the trial court ordered erroneously awarded the officertravel expenses that he did notincur. But Avalos misunderstands the court's order. The court ordered restitution to the Department of Labor and 

### Industries for the amount it paid to the officerand for the officer's medical treatment. And itordered restitution to the officerfor the damages that he 

### incurred in traveling to medical appointments and losing the opportunity to earn

11No. 75233-2-1/12 

### extra pay by working on holidays. The trial court merely declined to offsetthe 

### award to the officer by the amountthat Avalos claimed the officersaved by not having to commute to work. The trial court did not orderAvalos to pay the officer forthe expenses that he did not incur. Thus, this argument is unpersuasive. We affirmthe conviction, vacate the sentence forthe reasons explained, and remand for resentencing. We also affirm the restitution order. 

# ^7(,J

WE CONCUR: 

# IrCcico^ ftu3

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