FILED COURT OF APPEALS DIVISION ii 2014 AUG 26 AN U. 35 SP E WA TON

IN THE COURT OF APPEALS OF THE STATE OF WASHING

DIVISION II

STATE OF WASHINGTON No. 43358 -3 -II

Respondent, v. JERRO DE JON DAGRACA, UNPUBLISHED OPINION Appellant. STATE OF WASHINGTON, Consolidated with No. 43365 -6 -II Respondent, v. COREY DUAWAYN YOUNG, UNPUBLISHED OPINION Appellant. HUNT, J. — Jerro De Jon DaGraca and Corey Duawayn Young appeal their jury convictions and sentences for kidnapping and robbery, for which Young' s sentences include firearm enhancements. Young also appeals his separate conviction and sentence for first degree unlawful possession of a firearm. Both DaGraca and Young ( Defendants) argue that the trial court erred in ruling that the kidnapping was not " incidental to the ongoing armed robbery. "

Young separately argues that ( 1) the prosecutor committed misconduct by questioning him about a bullet located in the pocket of a red and black jacket that he wore during the crimes, and ( 2) his

counsel was ineffective in failing to object to the prosecutor' s questioning. DaGraca separately

1 Br. of Appellant ( Young) at 7.

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argues that RCW 13: 04. 030( 1)( e)( v)( A), under which he was tried in adult court instead of juvenile court, violates the Eighth Amendment to the United States Constitution. DaGraca also adopts and incorporates the arguments in Young' s initial and supplemental briefing.

In a Statement of Additional Grounds ( SAG), Young asserts that the trial court denied him a fair trial, compelled him to testify against himself, violated his time -for -rial rights, and t

committed other irregularities warranting reversal. In his SAG, DaGraca asserts that ( 1) his

counsel was ineffective for failing to object to jurisdiction and failing to request a remand to the juvenile court, and ( 2) his counsel' s deficient performance denied him a fair trial. We hold that

RCW 13. 04. 030( 1)( e)( v)(A) is not unconstitutional, the kidnapping was not incidental to the robbery, and the prosecutor' s misconduct during cross -examination was curable by an instruction.2 We affirm both defendants' convictions and sentences.

FACTS

I. ROBBERY AND KIDNAPPING

Early in the morning on November 19, 2011, Moua Yang was talking on the phone in his car in his apartment parking lot when Corey Duawayn Young and Jerro De Jon DaGraca3 One4

jumped over the parking lot fence and approached him. pointed a gun at him, said, " Today

is a bad day.... Give me all your money; give me anything you got," and took Yang' s cell

2 Defendants' other arguments fail. 3 At the time he committed these crime, DaGraca was still a juvenile, approximately one month and two days short of turning 18. The State charged him as an adult. RCW 13. 04. 030( 1)( e)( v)( A). 4 At trial, Yang positively identified both men as his assailants. In discussing this fact, Young' s brief of appellant notes that he was the man with the gun.

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phone and $ 117. 1 Verbatim Report of Proceedings ( VRP) at 115. The other told the first man

to search Yang' s pockets for credit cards. The first man, the one with the gun, found an

Electronic Benefit Transfer ( EBT) " Quest "5 food stamp card and a military identification card in

Yang' s pocket and demanded the personal identification number for the Quest card. Yang gave him a fictional number.

Apparently after checking the number on his phone, the man with the gun told Yang, It' s not working; you' re lying," hit Yang in the stomach, put the gun on Yang' s stomach, and

punched Yang in the face. 1 VRP at 119. Both men then ordered Yang, at gunpoint, to drive

them to a nearby 7- Eleven, saying, " Let' s go to 7- Eleven to get food and money. If you don' t

get money for us, you' re dead." 1 VRP at 119. They pulled Yang " back [ into] the car" and kept

the gun pointed at him while they directed Yang to drive for " about five[- ]seven minutes" to a 7-

Eleven store. 1 VRP at 121. During the drive, the men said that after they got the money, they

would kill Yang and " put [ him] in the lake so they [ could] have the car." 1 VRP at 121.

Several police officers, standing at the 7- Eleven, saw Yang pull into the lot " very

quickly," " slam ... on [ his] brakes," and " jump ... out and yell" that he was being robbed and

that "[ t] hey got guns." 1 VRP at 71. DaGraca and Young fled the vehicle, and the police gave

chase on foot. According to Officer Christopher Michael Bowl, the man " with a red hat and red and black jacket jumped out of the [ p] assenger front seat," and the other man, " in a black jacket,

jump[ ed] out of the rear passenger side of the car." 1 VRP at 73. 74. The two men split up as

the police chased them through the parking lot of an adjacent shopping mall. Bowl observed the man in the red hat and red and black jacket shed the jacket.

a continuance for time to prepare adequately. DaGraca himself objected to this continuance; No. 43358 -3 -II, consolidated with 43365 -6 -II No. 43358 -3 -II, consolidated with 43365 -6 -II

DaGraca testified that he and Young had been celebrating an upcoming music performance, were looking for someone to buy them alcohol, were not " familiar with " Yang,

but nevertheless approached him and asked " if he wanted to buy [ them] some alcohol." 2 VRP

at 149. Yang told them to get in his car; with DaGraca sitting behind Yang and Young sitting in the front passenger seat, Yang drove to the 7- Eleven. On the way, they asked to use Yang' s phone to arrange a marijuana purchase; Yang allowed them to use his phone and volunteered to

drive them to buy marijuana if Yang could try it with them. As they approached the 7- Eleven, Yang drove into the parking lot, where the police were standing, and told the police that he was being robbed.

On cross -examination, the prosecutor, asked Young whether he had another .bullet in his jacket, even though there was no evidence in the record that the police found an additional bullet in Young' s jacket. Young did not object to the questioning, but he denied knowledge of any bullet in the jacket.

Neither DaGraca nor Young objected to any of the court' s proposed jury instructions.

But after the trial court returned from recess, Young' s counsel moved for a mistrial, stating, Apparently, I misunderstood what [ Young] said. He apparently told me he did not want to

testify]. I thought he said he did want to [ testify]." 2 VRP at 181. The State objected. The trial court denied the motion for mistrial on grounds that counsel had had ample time to clarify whether Young would testify and that when Young took the stand, he did not express any desire not to testify.

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DaGraca and Young appeal their convictions and sentences.

ANALYSIS

I. DAGRACA: ADULT COURT JURISDICTION

DaGraca argues that RCW 13. 04. 030( 1)( e)( v)( A), under which he was tried as an adult court rather than as a juvenile, violates both the due process clause and the Eighth Amendment to

the United States Constitution ( cruel and unusual punishment). He contends that in automatically vesting the adult superior court exclusive original jurisdiction over the serious violent offenses he was charged with committing ( first degree robbery and first degree

kidnapping), the statute failed to take into account his youth. DaGraca' s constitutional challenges fail.

As our Washington Supreme Court has recently reiterated:

In adopting Washington Constitution article IV, section 6, the people of this state granted the superior courts original jurisdiction ` in all criminal cases amounting to felony' and in several other enumerated types of cases and proceedings. In these enumerated categories where the constitution specifically grants jurisdiction to the superior courts, the legislature cannot restrict the jurisdiction of the superior courts. See Blanchard v. Golden Age Brewing Co., 188 Wn. 396, 418, 63 P. 2d 397 ( 1936).

Article IV, section 6 also grants the superior courts residual jurisdiction over nonenumerated cases and proceedings, providing that superior courts ` shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court .. .

No. 43358 -3 -II, consolidated with 43365 -6 -II evolution of juvenile court as a "' division of the superior court, not a separate court, "' a committing first degree robbery and first degree kidnapping. Thus, the superior adult court had original jurisdiction over DaGraca for these offenses, contrary to DaGraca' s argument that this statute automatically removes jurisdiction from the juvenile court.

10 Posey, 174 Wn.2d at 137 ( quoting State v. Werner, 129 Wn.2d 485, 493, 918 P. 2d 916 ( 1996). 11 RCW 13. 04. 030 provides, in part: 1) Except as provided in this section, the juvenile courts in this state shall have exclusive original jurisdiction over all proceedings: e) Relating to juveniles alleged or found to have committed offenses ... unless: No. 43358 -3 -II, consolidated with 43365 -6 -II

DaGraca argues in general that our Supreme Court' s 1996 decision In re Boot, 130

Wn.2d 553, 925 P. 2d 964 ( 1996), upholding the constitutionality of a previous version of the juvenile court decline statute, " is no longer good law." Br. of Appellant ( DaGraca) at 8. He relies primarily on United States Supreme Court cases addressing whether statutes that impose the death penalty or life imprisonment without parole for juveniles violate the Eighth.

Amendment. Although DaGraca contends that RCW 13. 04. 030 runs afoul of the Eighth

Amendment, he never argues how his sentences were " cruel and unusual." U. S. CONST. amend.

VIII. On the contrary, the trial court sentenced DaGraca to 68 months of confinement for count I

first degree robbery) and 72 months for count II ( first degree kidnapping), far short of the " most

severe punishments" at issue in Graham. 13 Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011,

176 L. Ed. 2d 825 ( 2010). Furthermore, DaGraca fails to show that his standard range sentences No. 43358 -3 -II, consolidated with 43365 -6 -II No. 43358 -3 - II, consolidated with 43365 -6 -II

16 " P. 2d 628 ( 1980). Although rooted in merger doctrine, courts reviewing kidnapping charges

that are arguably merely incidental to another crime frequently borrow a sufficiency of the evidence analysis." State v. Elmore, 154 Wn. App. 885, 901, 228 P. 3d 760, review denied, 169

Wn.2d 1018 ( 2010). Thus, in general, whether " kidnapping is incidental to the commission of other crimes" involves both " a fact - specific determination" and a legal determination about No. 43358 -3 -II, consolidated with 43365 -6 -1I was neither " inherent" in nor " integral to [ the] commission" of the already completed robbery;'

rather, it was for the new purpose of obtaining money from Yang' s Quest card. By restraining

Yang at gunpoint and threatening to kill him during the drive to the 7- Eleven18, DaGraca and Young created a new danger separate from the already completed robbery. We hold that

DaGraca and Young have not shown that the kidnapping restraint " was so incidental to" the

robbery " that it could not support a separate conviction." Elmore, 154 Wn. App. at 903.

B. Kidnapping Not " Same Criminal Conduct" as Robbery

DaGraca and Young also argue that the trial court abused its discretion in not finding that

Yang' s kidnapping merged into the " same criminal conduct" as his robbery. Br. of Appellant

Young) at 9; Br. of Appellant ( DaGraca) at 18. For sentencing purposes, "` [ s] ame criminal No. 43358 -3 -II, consolidated with 43365 -6 -II

We review a trial court' s determination of " same criminal conduct" under RCW

9. 94A. 589( 1)( a) for abuse of discretion. State v. Graciano, 176 Wn.2d 531, 533, 295 P. 3d 219

2013). The defendant bears the burden of proving all three statutory elements of "same criminal

conduct." Graciano, 176 Wn.2d at 538; see RCW 9. 94A. 589( 1)( a). ""[ T]he statute is generally construed narrowly to disallow most claims that multiple offenses constitute the same criminal act. "' Graciano, 176 Wn.2d at 540 ( quoting State v. Porter, 133 Wn.2d 177, 181, 942 P. 2d 974

1997)).

Here, we need not decide whether DaGraca and Young' s objective intents changed after they took Yang' s wallet because the evidence shows that the kidnapping occurred after DaGraca

and Young had robbed Yang of his property and continued in Yang' s car when DaGraca and Young forced Yang to drive them to the 7- Eleven. Because the robbery and the kidnapping occurred at different times and in different locations ( stationary car for the robbery and moving car for the kidnapping), the trial court properly ruled that the crimes were not the same criminal conduct for sentencing purposes.

III. PROSECUTORIAL MISCONDUCT

A. No Prejudice

Defendants argue that the prosecutor committed misconduct by repeatedly questioning him about a bullet located in the red and black jacket that he wore during the crimes. Officers

had already testified that they found six bullets with the gun. While cross -examining Young, however, the prosecutor asserted that a . 22 caliber bullet had been found in the jacket and asked No. 43358 -3 - II, consolidated with 43365 -6 -I1 326 P. 3d 125 ( 2014). Assuming, without deciding, that the prosecutor' s misconduct was flagrant and ill-intentioned, Defendants fail to show how an instruction could not have cured any resulting prejudice if Young had timely objected. Young' s failure to object denied the trial court an opportunity to instruct the jury to disregard the now - challenged question. Thus,

Defendants' prosecutorial misconduct challenge fails.

No. 43358 -3 -II, consolidated with 43365 -6 -II overcome "' a strong presumption that counsel' s performance was reasonable. ,, State v. Grier,

171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011) ( quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d

177 ( 2009)), adhered to in part on remand, 168 Wn. App. 635, 278 P. 3d 225 ( 2012), petition for cert. filed, May 27, 2014.. " Deficient performance is not shown by matters that go to trial

strategy or tactics." State v. Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996). If

Here, the misconduct was harmless because, " look[ ing] only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt," we are " convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." State v. Guloy, 104 Wn.2d at 412, 426, 425, 705 P. 2d ( 1985). Even without the prosecutor' s improper question about the additional bullet, there was ample evidence of other bullets, Young and DaGraca did not present credible stories, and the evidence overwhelmingly supported the conclusion that they robbed and kidnapped Yang. Other evidence linked the firearm to Young and gave the jury a sufficient independent basis on which to convict him of unlawful possession of a firearm. The jury heard Officer Bowl' s testimony that the individual in a " red and black jacket" ( later identified as Young) jumped out of the front passenger seat, 1 VRP at 73; Yang' s testimony that the individual with the gun was in the front passenger seat; and Young' s testimony that he had discarded a " red jacket" while fleeing from the police. 2 VRP at 167. Furthermore, after this cross -examination, the prosecutor never again raised the issue of an additional bullet or otherwise again implied that Young had a bullet in his jacket. 25 We also presume that, under the circumstances, the alleged errors " might be considered sound trial strategy." Strickland, 466 U. S. at 689.

No. 43358 -3 -II, consolidated with 43365 -6 -II No. 43358 -3 - II, consolidated with 43365 -6 -II No. 43358 -3 - II, consolidated with 43365 -6 -II signified gang affiliation and that the juror' s comments reflected. bias. The record, however, does not support Young' s assertions: Nothing in the record shows that this juror was biased; on

the contrary, the juror' s statements reflected an ability to remain impartial. Young never raised an objection to the fairness of the proceedings. Furthermore, prospective juror 18 did not serve on the jury that found Young guilty. Thus, Young' s challenge lacks merit.

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1) Written Agreement. Upon written agreement of the parties ... the court may continue the trial date to a specified date. 2) Motion by the Court or a Party. On motion of the court or a party, the

court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the The bringing of such motion by or on behalf of any continuance. party waives that party' s objection to the requested delay.

CrR 3. 3( f).

At the January 9, 2012 continuance hearing, Defendants requested and the trial court

ordered the trial reset to February 23. Because the parties agreed to set the trial over until

February 23, ( 1) CrR 3. 3( f)( excluded the period between January 9 and February 23 from the 2) new time for trial calculation; and ( 2) thus, at the February 23 hearing, Defendants were only 49

days into their reset time for trial period. The subsequent continuances were excluded from the time for trial period, CrR 3. 3( e)( 3), and the time for trial would not have expired until 30 days

after the end of the last excluded period. CrR 3. 3( b)( 5). The record thus shows that, when

Defendants' trial began on March 27, 2012, Young was timely brought to trial.

Moreover, for Young to be able to raise time for trial violations on appeal, he must have

timely objected below to the trial date set by the trial court. CrR 3. 3( d)( 4). If a court sets a trial date outside the time for trial deadlines, CrR 3. 3( d)( 3) requires a defendant to object within 10

days after the court gives notice of the trial date, or the defendant loses the right to object. CrR

3. 3( d)( 4). The record reflects no such objection by Young. Thus, Young' s assertion fails on this ground as well.

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Not only has Young failed to show a CrR 3. 3 time for trial violation, but he also fails to show how the trial court violated his and federa131 constitutional speedy trial rights or how the continuances prejudiced him; thus, his Sixth Amendment claim fails. See State v. 011ivier, 178 Wn.2d 813, 826, 312 P. 3d 1 ( 2013), pet. for cent. filed, May 7, 2014. Nor can we surmise how Young might prevail on a constitutional speedy trial violation where the law and record show that he was timely brought to trial under the applicable court rules. See RAP 10. 10( c) ( " the appellate court is not obligated to search the record in support of claims made in a defendant / appellant' s statement of additional grounds for review. "). Thus, Young' s speedy trial challenges also fail. 6. Firearm sentencing enhancements Lastly, Young asserts that the trial court erred in adding two firearm enhancements to his sentence instead of one. He contends that chapter 9. 94A RCW ( the Sentencing Reform Act) provides that, when sentences run concurrently, the offender should be given only one firearm sentencing enhancement if he has no prior firearm offenses. Young is incorrect. 32, RCW 9. 94A. 533( 3) which governs firearm sentencing enhancements, provides in part: The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm ... and the offender is being sentenced [ for a crime eligible for firearm enhancements]. If the offender is being sentenced for more than one offense, the firearm . . . enhancements must be added to the total period of 30 WASH. CONST. art I, § 22. 31 U. S. CONST. amend. VI. 32 The legislature amended RCW 9. 94A. 533 numerous times since 2011. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute.

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confinement for all offenses. [ T] he following additional times shall be added to the standard sentence range ... : a) Five years for any felony defined under any law as a class A felony . .

e) Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements.

The jury convicted Young of first degree robbery, first degree kidnapping ( both Class A felonies), and first degree unlawful possession of a firearm ( a Class B felony). See RCW

33. 9A.56. 200( 2), 9A.40. 020( 2), 9. 41. 040( 1)( b) By special verdict form, the jury also found that

Young had committed both the robbery and kidnapping while armed with a firearm, thus

subjecting him to firearm sentencing enhancements under RCW 9. 94A.533( 3). The trial court

imposed ( 1) standard low end sentences for count I, first degree robbery ( 87 months) and for count II, first degree kidnapping ( 110 months), both Class A felonies; and ( 2) a standard high

end sentence for count III, unlawful possession of a firearm ( 54 months), a Class B felony.

Because both counts I and II were Class A felonies, RCW 9. 94A.533( 3)( a) required the trial

33 The legislature amended RCW 9. 41. 040 in 2014, LAWS OF 2014, ch. 111, § 1. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute.

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court to sentence Young to an additional 60 -month firearm enhancement for each of these two counts, to run consecutively. The trial court did not err in adding firearm enhancements to each of Young' s Class A felony standard range sentences. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: