STATE v. FAIN, 146 Wn. App. 1050 (2008)

No. 36390-9-II.The Court of Appeals of Washington, Division Two.
September 9, 2008.

Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03812-8, Beverly G. Grant, J., entered May 25, 2007.

PENOYAR, A.C.J.

Anthony Fain appeals his second degree assault conviction against Valeria Jiles. The State charged Fain with first degree assault against Christopher and Valeria Jiles. The jury was unable to reach a verdict with respect to Valeria. The trial court declared a mistrial at Fain’s request, but before a new trial was scheduled the State lowered the charge to second degree assault and Fain pled guilty. Fain now argues that the trial court erred by failing to dismiss the charge for insufficiency of the evidence. Fain also argues in a statement of additional grounds for review that (1) he received ineffective assistance of counsel; (2) the testimony at trial was inconsistent; (3) the trial court erred by not giving the jury a lesser included offense instruction on second degree assault for the first degree assault charge against Jiles; (4) the jury instruction on self-defense improperly relieved the State of its burden of proof; (5) the State failed to prove the first degree assault charge against Jiles beyond a reasonable doubt; and (6) his offender score was miscalculated. We affirm Fain’s conviction and sentence.

FACTS

As Jiles and his wife, Valeria, returned home on August 11, 2006, they turned into their driveway and saw two young men walking across the pavement in front of their driveway. After the young men passed, Jiles pulled into the driveway and parked the car. When Jiles got out of the car, he and Fain, one of the young men, began arguing. Jiles moved closer to the young men and Fain pulled a gun out of his pocket. When Jiles attempted to grab the gun, Fain began shooting and hit Jiles in the lower chest. When Valeria got out of the car, she saw Fain running away shooting a gun while her husband stood with his hands in the air. Valeria was standing about eight feet behind Jiles and slightly to one side when the shooting began. The bullets did not come near her and she did not see Fain aim at her. At the hospital, a doctor examined Jiles and determined that the bullet had entered through his lower chest and lodged in his back muscles without causing any lethal injury.

The State charged Fain with attempted first degree murder and first degree assault against Jiles, first degree assault against Valeria, and first degree unlawful possession of a firearm while the other charges proceeded to trial. Fain pled guilty to unlawful possession of a firearm. At the close of the State’s case, Fain filed a motion to dismiss the attempted first degree murder charge against Jiles and first degree assault charge against Valeria for insufficiency of the evidence. Fain again filed a motion to dismiss the same charges at the close of the defense’s case. The trial court denied both motions. For the first degree assault charge against Jiles, Fain did not dispute the fact that he intentionally shot Jiles, but he argued that he acted in self-defense.

On May 10, 2007, the jury found Fain guilty of first degree assault against Jiles. The jury was unable to reach a unanimous verdict for attempted first degree murder against Jiles or first degree assault against Valeria. At Fain’s request, the trial court declared a mistrial for those two charges. Before a new trial date was set, Fain agreed to plead guilty to second degree assault against Valeria, and the State dropped the charge of attempted first degree murder against Jiles. On May 25, 2007, the State filed an amended information that reflected this agreement, and Fain pled guilty to second degree assault against Valeria.

Before the trial court accepted Fain’s guilty plea, defense counsel stated that he and Fain had discussed the plea and the implications of pleading guilty, and he believed that Fain entered his guilty plea “knowingly, intelligently and voluntarily.” Report of Proceedings (RP) (May 25, 2007) at 5. The trial court questioned Fain on his understanding of the consequences associated with a guilty plea, and Fain stated that he understood the standard sentencing range, maximum penalties, and sentence recommendations of the parties. The plea statement included the constitutional rights Fain was waiving by pleading guilty, including “[t]he right to appeal a finding of guilt” after trial, and Fain stated that he understood the rights he was waiving. Clerk’s Papers (CP) at 132.

The trial court also recited the elements of second degree assault, and Fain stated that he understood them. Paragraph 11 of the guilty plea states “on [August] 11, 2006, in Pierce [County, Washington], I intentionally assaulted Valeria Jiles with a handgun.” CP at 137. The trial court read this statement and observed that Fain had signed his initials to the left of the paragraph, and Fain acknowledged that he had read the statement, he understood the statement, and he agreed with the content of the statement. Fain also stated that no one had induced him to plead guilty with threats or promises. After concluding that Fain made his plea freely and voluntarily, the trail court accepted his guilty plea.

Fain now appeals.

ANALYSIS

I. Appellant’s Right to Appeal Sufficiency of the Evidence

Fain argues that the trial court erred by denying his motion to dismiss the first degree assault charge against Valeria for insufficiency of the evidence. In response, the State argues that Fain waived his right to appeal the sufficiency of the evidence by pleading guilty. Fain contends that he preserved his right to appeal the trial court’s denial of his motion by renewing the motion at the close of all the evidence, before the court gave the jury their instructions.

A defendant may appeal from a final judgment entered in any action or proceeding in superior court. RAP 2.2(a)(1). Where a mistrial is granted, “it renders the trial nugatory, [1] and the defendant may be placed on trial for a second time.” 12 Washington Practice: Criminal Practice and Procedure § 2109, at 470 (3d ed. 2004); see also, City of Seattle v. Crockett, 87 Wn.2d 253, 255, 551 P.2d 740 (1976) (“A trial de novo in superior court as the result of a conviction and appeal taken in municipal court does not signal the initiation of an entirely new criminal process or procedure. The slate has not been wiped clean as, for example, where the defendant is to be tried again following a mistrial or order granting a new trial.”) (Emphasis added). In accordance with this principle, Washington courts have long recognized that:

where, at the conclusion of the plaintiff’s case, the defendant . . . challenges the legal sufficiency of the evidence and asks the discharge of the jury, and the . . . challenge so made is denied and the cause proceeds, and subsequently a mistrial occurs, the defendant does not have a right to appeal . . . the decision of the court upon the motion which questions the sufficiency of the evidence to take the case to the jury.

State v. Spokane County Superior Court, 97 Wn. 172, 176, 166 P. 69 (1917). Additionally, a defendant generally waives the right to appeal by pleading guilty. See State v. DeRosia, 124 Wn. App. 138, 143, 100 P.3d 331 (2004) (citing State v. Majors, 94 Wn.2d 354, 356, 616 P.2d 1237 (1980)). A guilty plea “waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government’s legal power to prosecute regardless of factual guilt.” In re Pers. Restraint of Bybee, 142 Wn. App. 260, 268, 175 P.3d 589 (2007). In Menna v. New York, the United States Supreme Court stated, “[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case . . . [and] therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt.” 423 U.S. 61, 63 n. 2, 96 S. Ct. 241, 46 L. Ed. 2d 195
(1975). A guilty plea thus provides a sufficient and independent factual basis for conviction and punishment Bybee, 142 Wn. App. at 268 (citing Haring v. Prosise, 462 U.S. 306, 321, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983)). We recently applied these principles i Bybee and held that a voluntary guilty plea waives a defendant’s right to appeal sufficiency of the evidence. 142 Wn. App. at 268. As a result of the mistrial and of waiver by plea, we do not address the sufficiency of the evidence at the trial.

II. Validity of Appellant’s Guilty Plea

Fain assigns error to the trial court’s denial of his motion to dismiss, but his arguments question the validity of his guilty plea. Citing CrR 4.2, Fain contends that it is a “manifest injustice to allow a guilty plea to stand when the State had no authority to press the charge in the first place.” Br. of Appellant at 12. Therefore, Fain concludes, his guilty plea is invalid.

Although Fain correctly quotes CrR 4.2(f), which states “[t]he court shall allow a defendant to withdraw [his] plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice,” this rule is of little use here because Fain never filed a motion to withdraw his guilty plea See CrR 4.2(f); CrR 7.8. However, a defendant may challenge a guilty plea’s validity if there is an insufficient factual basis to support the plea. See CrR 4.2(d) (stating that a court “shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”). Fain’s arguments appear to challenge the validity of his guilty plea on this ground.

Generally, we do not review issues raised for the first time on appeal unless the issue involves a manifest error affecting a constitutional right. RAP 2.5(a)(3). Fain did not make a motion to withdraw his guilty plea for lack of a sufficient factual basis at the trial court, therefore we may only review the plea if there has been a manifest error affecting a constitutional right. The constitutional requirements of a voluntary guilty plea are that (1) the defendant is aware that he is waiving his right to remain silent, right to confront his accusers, and right to a jury trial; (2) the defendant is aware of the essential elements of the offense charged; and (3) the defendant is aware of the direct consequences of pleading guilty. In re Pers. Restraint of Hilyard, 39 Wn. App. 723, 727, 695 P.2d 596 (1985) (citing State v. Holsworth, 93 Wn.2d 148, 153-57, 607 P.2d 845 (1980). The factual basis requirement in CrR 4.2(d) is a procedural requirement that is not constitutionally mandated. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). However, the factual basis of a plea may be constitutionally significant where it relates to the defendant’s understanding of his plea In re Pers. Restraint of Hews, 108 Wn.2d 579, 591-92, 741 P.2d 983 (1987). The factual basis requirement does not require a trial court to be convinced beyond a reasonable doubt that a defendant is in fact guilty. State v. Easterlin, 159 Wn.2d 203, 210, 149 P.3d 366 (2006). The requirement is satisfied if there is sufficient evidence for a trier of fact to conclude that the defendant is guilty Easterlin, 159 Wn.2d at 210. The factual basis may come from the admissions of the defendant or any source in the record that the trial court finds reliable. In re Pers. Restraint of Fuamaila, 131 Wn. App. 908, 924, 131 P.3d 318
(2006) (citing State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682 (1976)).

Fain does not argue that he did not understand the plea. Rather, he argues that the evidence was insufficient to show that he committed second degree assault against Valeria. The record clearly demonstrates that Fain understood the plea and that he entered it knowingly and voluntarily. Because Fain does not allege that he did not understand his guilty plea, the factual basis of the plea is not constitutionally significant and Fain has not alleged that a manifest error affecting a constitutional right occurred. See Branch, 129 Wn.2d at 642; Hews, 108 Wn.2d at 591-92. Thus, we decline to review the validity of Fain’s guilty plea.

III. Appellant’s Statement of Additional Grounds

A. Ineffective Assistance of Counsel

Fain argues that he received ineffective assistance of counsel because defense counsel (1) failed to impeach a witness that Fain believed was lying and (2) failed to show Fain discovery materials when he asked to see them.

The U.S. Constitution and the Washington Constitution guarantee effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22. See State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). We maintain a strong presumption that counsel’s representation was effective State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251
(1995). In order to establish ineffective assistance of counsel, the defendant must show (1) defense counsel’s performance was deficient, and (2) the defense counsel’s errors were so serious that they deprived the defendant of a fair trial. Strickland v. Washington, 466 U.S. 688, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

First, Fain’s allegation that defense counsel’s performance was deficient for failing to impeach a witness that Fain believed was lying is not sufficiently specific for the court to determine whether defense counsel’s performance was deficient. We will not review a defendant’s statement of additional grounds for review (SAG) if it does not identify the “nature and occurrence” of the alleged error with enough specificity to allow the court to find it in the record. RAP 10.10(c). Fain does not explain which witness he believed defense counsel should have impeached or what evidence defense counsel should have used to impeach the witness. Without specific details, it is impossible for us to review his claim.

Second, defense counsel’s performance was not deficient for failing to allow Fain to inspect discovery materials. The rules governing discovery in a criminal trial state:

Any materials furnished to an attorney pursuant to these rules shall remain in the exclusive custody of the attorney and be used only for the purposes of conducting the party’s side of the case, unless otherwise agreed by the parties or ordered by the court . . . Further, a defense attorney shall be permitted to provide a copy of the materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court.

CrR 4.7(h)(3) (emphasis added). This rule requires a defense attorney to retain “exclusive custody” of discovery materials. CrR 4.7(h)(3). While the rule permits a defendant to inspect discovery materials, it does not give a defendant th right to inspect discovery materials. CrR 4.7(h)(3). Defense counsel’s performance was not deficient for failing to show Fain requested discovery materials because the rules of discovery required defense counsel to retain exclusive custody of the materials and prohibited him from providing copies to Fain without the prosecuting attorney’s approval or an order from the court.[2] We decline to overturn Fain’s conviction on this ground.

B. Inconsistent Testimony

Fain argues that the testimony at trial was inconsistent because each witness testified to a different version of the argument between Fain and Jiles on August 11, 2006. While this may be true, it is the jury’s task to determine which witnesses are credible. A jury is “free to believe or disbelieve a witness” because “credibility determinations are solely for the trier of fact.” Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). We do not review credibility determinations on appeal. Morse, 149 Wn.2d at 574.

C. Second Degree Assault Jury Instruction

Before closing arguments, the trial court instructed the jury that if it was not satisfied beyond a reasonable doubt that Fain was guilty of first degree assault against Valeria, then the jury may find Fain guilty of the lesser included offense of second degree assault. Fain argues that the court erred by not giving the jury this lesser included offense instruction for the first degree assault charge against Jiles. Failure to give a lesser included offense instruction is not error if neither party requests the instruction. State v. Red, 105 Wn. App. 62, 65, 18 P.3d 615 (2001) (citing State v. Hoffman, 116 Wn.2d 51, 111-12, 804 P.2d 577 (1991)). Since neither party requested the lesser included offense instruction for the assault charge against Jiles, the trial court committed no error by not involving such an instruction. We decline to overturn Fain’s conviction on this ground.

D. Self-Defense Jury Instruction

Fain also contends that the jury’s self-defense instruction improperly relieved the State of its burden of proof for the first degree assault charge against Jiles. Where a defendant has offered evidence of self-defense, the jury instructions must clearly inform the jury that the State bears the burden of proving the absence of self-defense beyond a reasonable doubt State v. Redwine, 72 Wn. App. 625, 630-31, 865 P.2d 552 (1994) (citing State v. Acosta, 101 Wn.2d 612, 621, 683 P.2d 1069 (1984)). Here, the self-defense instruction submitted to the jury is identical to 11 Washington Pattern Jury Instructions: Criminal (WPIC) 17.02, at 196-98 (2d ed. 1994).

This instruction clearly informs the jury that the State bears the burden of proving beyond a reasonable doubt that Fain did not reasonably believe he was about to be injured and his use of force was therefore unlawful. The instruction did not relieve the State of its burden of proof, and we decline to overturn Fain’s conviction on this ground.

E. Sufficiency of the Evidence for First Degree Assault Conviction

Fain argues that the State failed to prove the first degree assault charge against Jiles and the absence of self-defense beyond a reasonable doubt.

Evidence is sufficient to support a conviction if it permits a rational trier of fact to find the essential elements of the crime when viewed in the light most favorable to the prosecution. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency of the evidence admits the truth of the State’s evidence and all inferences that a rational trier of fact could reasonably draw from the evidence. Salinas, 119 Wn.2d at 201. The court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).

When viewed in the light most favorable to the prosecution, the evidence is sufficient to permit a rational trier of fact to find that Fain committed first degree assault against Jiles. RCW 9A.36.011 defines first degree assault as assaulting another with a firearm, with intent to inflict great bodily harm. At trial, Fain admitted that he intentionally shot Jiles. A rational trier of fact could conclude that by intentionally shooting Jiles, Fain intended to inflict great bodily harm.

However, the use of force upon another person is not unlawful when “used by a party about to be injured” as long as “the force is not more than is necessary.” RCW 9A.16.020(3). Fain testified that Jiles approached him and he was worried Jiles might hit him. According to Fain, he told Jiles to stop walking towards him, and when Jiles continued to approach he took his gun out of his pocket and warned Jiles to “stop coming at me or I’ll pop [you].” RP (May 7, 2007) at 97. Jiles continued to approach Fain and attempted to grab the gun, so Fain pulled the trigger. Fain testified, “I didn’t want to shoot him, [but] if I didn’t shoot him he was going to probably beat me up or take my gun.” RP (May 7, 2007) at 102.

Fain’s version of events was contradicted by other testimony. Bobby Hall, the young man walking with Fain, testified that Fain appeared to be angry because Jiles almost hit them with the car when he turned into the driveway. According to Hall, shooting Jiles was “pointless” and Fain didn’t need to shoot Jiles to defend himself. RP (May 7, 2007) at 22. Jiles testified that he approached Fain because Fain was talking to him and he couldn’t hear what Fain was saying. Also, he wanted to know what Fain and Hall were doing in his driveway. According to Jiles, Fain was “aggressive” and told him, “You don’t want to mess with me. You don’t know who I am.” RP (May 2, 2007) at 304. Valeria testified that she did not hear Jiles say anything to Fain or Hall prior to the shooting, and that Jiles did not appear upset before the incident occurred. A neighbor who witnessed the incident testified that Fain and Hall were swearing at Jiles and he never heard Jiles threaten Fain or Hall.

When viewed in the light most favorable to the State, the testimony of Hall, Jiles, Valeria, and Jiles’ neighbor was sufficient for a rationale trier of fact to conclude that Fain’s use of force was not lawful under RCW 9A.16.020(3) because Fain was not about to be injured or he used more force than necessary. Based on this evidence, the jury could have concluded that Fain was the aggressor in the confrontation, Jiles was not about to injure Fain, and Fain did not need to shoot Jiles in order to extricate himself from the confrontation. Although Fain’s testimony contradicts this evidence, we defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Walton, 64 Wn. App. at 415-16. Accordingly, we decline to overturn Fain’s conviction on this ground.

F. Offender Score

Finally, Fain contends that his offender score calculation is incorrect because two of his prior crimes encompassed the same criminal conduct and should be counted as one offense under RCW 9.94A.589(a)(1). However, Fain waived his right to appeal this issue by voluntarily and affirmatively stipulating to the offender score as part of his guilty plea. CP at 139-141. A defendant waives his right to appeal a miscalculated offender score “where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). Determining whether conduct constitutes the same criminal conduct under RCW 9.94A.589(a)(1) involves both factual determinations and trial court discretion. Goodwin, 146 Wn.2d at 875. Therefore, “a defendant who stipulates to his Washington convictions may waive the right to argue on appeal that several of those earlier convictions should have been counted as the same criminal conduct.” State v. Hickman, 116 Wn. App. 902, 907-08, 68 P.3d 1156 (2003) (citing Goodwin, 146 Wn.2d at 875). We decline to review Fain’s offender score.

Affirmed.

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 pursuant to RCW 2.06.040, it is so ordered.

Armstrong, J., Hunt, J., concur.