Nos. 24641-4-II (consolidated with) 24727-5-II.The Court of Appeals of Washington, Division Two.
Filed: May 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 97-1-03063-5, Hon. John A. McCarthy, May 3, 1999, Judgment or order under review.
Counsel for Appellant(s), Patricia A. Pethick, Attorney At Law, P.O. Box 111952, Tacoma, WA 98411-1952.
Pattie Mhoon, Attorney At Law, Ste 488, 949 Market St, Tacoma, WA 98402.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Deputy Pros Atty, Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.
J. DEAN MORGAN, J.
Herman Joseph Ramos and Anthony James Godfrey appeal their convictions and sentences for first degree murder. We affirm the convictions and Ramos’ sentence, but reverse Godfrey’s sentence.
In the early evening of April 18, 1997, Carlos Joseph Villamore, Tapeaka Roberts, and LaFreda Hill went to Barbara Harrison’s apartment in Lakewood. Godfrey was there, brandishing a 9 mm handgun. Godfrey was wearing tan or light green pants and a checkered shirt over a white tank top. Godfrey and Villamore got into an argument about selling drugs. Godfrey then refused to let anyone leave until Ramos got there. While holding his gun, Godfrey said he was going to kill everyone in the apartment.
Ramos arrived and placed a .380 automatic handgun on the table. He was wearing a blue sweat suit. After he talked with Villamore, Godfrey let Villamore, Roberts, and Hill leave. Villamore went to a nearby apartment, got a gun, then left again. A few minutes later, Harrison’s apartment was struck by bullets. Ramos, Godfrey, and the others still in Harrison’s apartment hit the floor.
When the shooting stopped, Godfrey asked his girlfriend, Erickia Small, where Villamore lived. He and Ramos then put their guns in the trunk of Small’s car, and she drove them around. After telling her to stop, they took their guns from the trunk and set off on foot.
About 9:45 p.m. that night, a couple was driving along Bridgeport Way in Lakewood when a man later identified as Villamore `jumped out in front of [their] car.’[1] The driver slammed on the brakes, and Villamore pleaded, “Help me. Help me.’ . . . `They are going to kill me.”[2] As he spoke, Villamore gestured toward two other men standing against a nearby building.
The driver and passenger could see that one of those men was wearing a blue sweat suit and had a gun.
When the two men started toward the car, the driver sped away. Villamore tried to run after the car but could not keep up. Turning back to watch, the passenger saw the man in the blue sweat suit tackle Villamore. A few seconds later, she heard shots but did not see who was firing. Using the rear view mirror, the driver made similar observations. After travelling less than a block, the driver pulled into a gas station and called 911.
Villamore’s body was found in the road. He had been shot twice in the head from `point-blank’ range.[3] The police recovered two shells from a .380 handgun.
At about 10 p.m., the police found and arrested Godfrey not far from where the shooting occurred. He did not have a weapon on him. The next day, the police recovered a jammed 9 mm handgun, together with a bullet for it, near the location where Godfrey had been arrested.
The driver and passenger from the car were not able to identify the two men whom they had seen. The driver stated, however, that each man was black, in his early 20s, and about the same size as the other. One `was wearing like a light royal blue like sweat top and pants, and the other one was wearing a white T-shirt.’[4]
On July 24, 1997, the State charged both Ramos and Godfrey with first degree murder. Neither was released before trial. While awaiting trial, Ramos told his cellmate, according to the cellmate, that Ramos had shot Villamore twice after tackling him, that the gun was a .380, and that the police would never find it.[5] While awaiting trial, Godfrey told an inmate in the cell adjacent to his, according to that inmate, that Godfrey had participated in killing Villamore.
A jury trial commenced in late January 1999. The State called Tshambe Blake, Harrison’s son, as one of its witnesses. Blake asserted his Fifth Amendment right against self-incrimination, but the court denied his claim and required him to testify. He went on to state, among other things, that Godfrey took a .380 handgun from him the day before Villamore’s death.
At the end of the evidence, Ramos requested a lesser included offense instruction on second degree murder. He also sought a mistrial based on the prosecutor’s closing argument. The trial court denied both requests.
On March 17, 1999, the jury found both Godfrey and Ramos guilty of first degree murder. The trial court sentenced Godfrey to 504 months, and Ramos to 420 months. Each then filed a notice of appeal to this court.
Both Ramos and Godfrey argue on appeal that the trial court should not have required Blake to testify, that the evidence is insufficient to support their convictions, and that their offender scores were improperly calculated. Ramos alone argues that the trial court erred by denying a lesser included instruction on second degree murder, and by denying a mistrial due to improper closing argument by the prosecutor. We take the trial arguments before the offender score argument.
I.
Both Ramos and Godfrey contend that the trial court erred by overruling Blake’s claim of self-incrimination. The State responds that neither Ramos nor Godfrey has standing to maintain such a contention, for Blake’s claim belonged only to him. Under federal law, `the privilege against self-incrimination is personal to the witness’;[6] thus, `[w]here the witness is not the party, the party may not claim the privilege nor take advantage of an error of the court in overruling it.’[7] Neither Ramos nor Godfrey shows any difference between federal and state law, and we do not perceive any. We conclude that neither Ramos nor Godfrey has standing to claim Blake’s right against self incrimination.
II.
Godfrey claims that the evidence is insufficient to support his conviction for first degree murder. Ramos claims that the evidence is insufficient to support the element of premeditation. Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find beyond a reasonable doubt each essential element of the crime.[8] The evidence recited above clearly meets this test as to both defendants.
III.
Ramos claims the trial court erred by not instructing on the lesser included offense of second degree murder. A defendant is entitled to such an instruction if (1) each element of the lesser offense is a necessary element of the charged offense (legal prong) and (2) the evidence supports an inference that the defendant committed the lesser offense instead of the charged offense (factual prong).[9] The legal prong is conceded, so we focus on the factual prong. According to the record in this case, Ramos was wearing a blue sweat suit and was in possession of a .380 gun on the night in question. Two men, one in a blue sweat suit with a gun, chased Villamore on Bridgeport Way. After one or both men tackled Villamore, a man with a .380 gun essentially executed Villamore by shooting him twice in the head at point blank range. Godfrey had a 9 mm gun, and Ramos claimed to a cellmate that he had disposed of a .380 gun where the police would never find it. Even taken in the light most favorable to Ramos, this evidence will not support an inference that the man who executed Villamore acted without premeditation. Accordingly, the trial court did not err.
IV.
Ramos argues that he was denied a fair trial `when the prosecutor, in closing argument, improperly shifted the burden of proof[.]’[10] The State responds that Ramos failed to preserve his claim by not timely seeking a mistrial, and by not objecting to the trial court’s curative instruction.
During closing argument, the prosecutor stated in part:
Now, ladies and gentlemen, one thing you need to remember, first of all, it’s the State’s burden in this case to prove every element of the charge beyond a reasonable doubt, and it’s a burden we accept willingly.
But the defendant Herman Ramos has elected to put on evidence in this case. He called Detective Farrar as a witness. And when the defendant puts on evidence, their evidence comes under the same level of scrutiny as our evidence. And it’s safe to assume that as the defendant sits here standing trial for first degree murder, he’s going to put on the best evidence you heard possible, and you heard no testimony about an alibi.[11]
Defense counsel then interjected, `I am going to object to this. This is outrageous, Your Honor.’[12] After excusing the jury, the judge stated:
`I have some real concerns. I am not sure what remedy you are seeking, [defense counsel]. My position is, perhaps, that I should . . . sustain the objection and instruct the jury to disregard the last statement made by the State.’[13]
Defense counsel responded: `I believe that would be the minimal appropriate remedy, Your Honor . . . I don’t want to ask for a mistrial at this point. I will talk to my client over the recess and maybe look at case law.’[14]
When the jury came back, the judge instructed:
`Members of the jury, just before the recess, [defense counsel] objected and the Court has sustained his objection, and I am going to ask you to disregard the very last comment of the State at this time.’[15]
The next day, defense counsel reopened the matter by stating, `I said I was going to wait about asking for a mistrial. I do want to move for a mistrial at this point.’[16] When the court asked if counsel wanted to argue the motion, counsel responded: `No, Your Honor. I believe I know what Your Honor’s answer is going to be. I just wanted to preserve that for the record.’[17] The trial court then ruled: `I think in the way the matter was handled yesterday, excusing the jury from the courtroom at the recess and then instructing them that the objection was sustained and to disregard the very last argument and not draw any undue attention to the statements that were made has in effect to a substantial degree resulted in curing any prosecutorial misconduct or alleged argument of the same, so the Court will deny the motion for mistrial at this time.’[18]
Under the law, `the [defendant] bears the burden of establishing the impropriety of the prosecuting attorney’s comments as well as their prejudicial effect.’[19] The State, however, has the burden of proving each element of the charge beyond a reasonable doubt, and it may not shift that burden to the defendant.[20] We review the State’s comments `in the context of the entire argument, the issues in the case, the evidence addressed in the argument and the instructions given.’[21]
In State v. Perez-Arellano,[22] a case similar to this one, Division One stated:
The jury was instructed that the defendant is presumed innocent, and that he had no burden of proof. We presume that the jury followed this instruction. (citation omitted). Moreover, the trial court sustained [defense counsel’s] objection to the prosecutor’s remark. The objection reiterated the rule that there is no burden on the defense. In this situation, without a more definite or detailed showing of prejudice, we are unwilling to hold that the prosecutor’s singular improper comment deprived [defendant] of a fair trial.[23]
In this case, the State reiterated its burden before making its allegedly improper comment. The judge quickly called a recess. The judge quickly sustained the objection and gave a curative instruction. The jury had before it written instructions that clearly allocated and defined the burden of proof. The trial court acted within its discretion, and there was no reversible error.
V.
Godfrey argues that the trial court erred by including numerous California convictions in his offender score without first comparing them to Washington law. As a result, he says, we should remand for that to be done.
The State `concedes that remand is necessary to make a determination regarding the prior concurrently served convictions under State v. Lara, 66 Wn. App. 927, 932, 834 P.2d 70 (1992).’[24] We agree and remand for that purpose.
The State concedes `that no comparability determination was done below regarding his out-of-state convictions’;[25] `that there is insufficient information in the record regarding [his] two 1988 convictions for `Personate to make others liable’; and that a remand is necessary to address, at least, those two convictions.’[26] We agree and remand for that purpose.
The State concedes `that no comparability determination was done below regarding [Godfrey’s] out-of-state convictions,’ but it resists a remand for the purpose of comparing his remaining California convictions to Washington law.[27] Instead, it asks us to make the comparison in the first instance. We might grant the request if doing so would avoid a remand and facilitate judicial economy; but we decline to grant it where (a) remand is needed anyway and (b) it is properly the task of the trial court to make the comparison in the first instance. On remand then, the trial court shall comply with State v. Weiand[28] and its progeny, and also with State v. Lara[29] and its progeny.
VI.
Like Godfrey, Ramos asserts on appeal that the trial court erred by including out-of-state convictions in his offender score. Unlike Godfrey, however, Ramos affirmatively represented to the trial court that his offender score was correct. His counsel told the trial court:
We agree with the Court’s analysis that the firearm sentence enhancement only includes 60 months and not 120 months, and we also agree with the State’s sentence range based upon a criminal history which includes one 1991 — and I am not certain what the conviction date was but I believe that 1991 is the release date of a manslaughter, and another prior drug charge, unlawful possession of a controlled substance.
With this current offense, it gives my client an offender score of five which would be a sentence range of 291 to 388 months.[30]
Even now, Ramos does not argue to the contrary; rather, he argues only that `the [trial] court did not put its reasoning on the record[.]’[31]
With no more than is offered here, we decline to order that Ramos be resentenced.
Ramos’ conviction and sentence are affirmed. Godfrey’s conviction is affirmed, his sentence is reversed, and his case is remanded for resentencing.
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.
WE CONCUR: BRIDGEWATER, J., HUNT, A.C.J.
(1997); State v. Berlin, 133 Wn.2d 541, 545-548, 947 P.2d 700 (1997); State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978); State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992).
(2000).