STATE v. WEBER (2005)

¶ 1 A jury convicted Charles Weber of second degree attempted murder and first degree assault, both while armed with a firearm, and first degree unlawful possession of a firearm.   The trial court vacated the assault conviction based on double jeopardy.   Weber argues for reversal based on use of juvenile adjudications in sentencing without findings by the jury, prosecutorial misconduct, ineffective assistance of counsel, violation of fourth amendment rights, and jury instructional error.

¶ 2 The state cross-appeals that the trial court should have instead vacated Weber's attempted murder conviction as a remedy for double jeopardy, because the vacated assault conviction carried the longer standard range.   The state also argues that the trial court erred in excluding one of Weber's prior juvenile adjudications in calculating his offender score because it “washed out” under a prior version of the Sentencing Reform Act (SRA).

¶ 3 We reverse the vacation of the assault conviction, and vacate the conviction for attempted murder.   We hold that prior juvenile adjudications are entitled to be considered by the trial court at sentencing in the same manner as prior adult convictions.   We reverse the exclusion of the juvenile adjudication in calculating Weber's offender score.   We affirm on the remaining issues.   We remand for resentencing.

FACTS

¶ 4 On March 18, 2003, Gabriel Manzo-Vasquez (Manzo), Nick Renion, and Charles Weber were hanging out and drinking beer at their friend Rhonda Encina's apartment.   Manzo had met Weber once before at Encina's apartment, and knew Weber as “Guero Loco,” meaning “crazy white guy.”   Renion took Manzo's beer and argument ensued.   Renion tried to make Manzo go outside and fight.   Manzo refused.   Weber threatened Manzo by pointing a gun at Manzo's stomach.   Manzo fled out of a bedroom window.   Weber chased Manzo and shot at him as he ran to his car.   Many bullets struck Manzo's car as he drove away.   One grazed his stomach causing slight injury.

¶ 5 Manzo told the police that “Guero Loco” shot at him.   He provided the police with Weber's physical description, including a large distinctive tattoo of “206” on the back of his neck and his nickname.   Manzo identified Weber and Renion from photo montages.   He identified Weber with 80 percent certainty, and indicated he could be 100 percent certain if he could see the tattoos that had been blocked out on the photos.   Weber has the letters L-O-C-O tattooed across his knuckles, a large “206” on his neck, and “Wedo Loco” in cursive on his neck.   At trial Manzo identified Weber as the shooter and confirmed that Weber had the same tattoos he had seen before.

¶ 6 Prior to trial, the court granted a defense motion to “exclude any reference to gang-related membership or any kind of supposed expert testimony with respect to [gangs].”   The court also excluded testimony by Detective Alvarez that he had previously met Weber during a criminal investigation of Weber's brother, stating that any relevance of this evidence was unclear but that its prejudice was clear.   The court did not exclude the fact that Detective Alvarez had previous contact with Weber.

¶ 7 The state concedes that the prosecutor committed prosecutorial misconduct during Weber's trial.   The prosecutor elicited testimony from Detective Alvarez on evidence the trial court excluded in pretrial motions.   In addition, the prosecutor made an improper rebuttal closing argument.

¶ 8 Weber was charged with first degree attempted murder, first degree assault, first degree unlawful possession of a firearm, and delivery of cocaine.   The jury convicted Weber of the lesser included offense of second degree attempted murder.   The jury also convicted Weber of first degree assault.   The jury found that Weber was armed with a firearm at the time he committed both these offenses.   The jury also convicted Weber of unlawful possession of a firearm in the first degree.   Weber pled guilty to possession of cocaine with intent to deliver.

¶ 9 At sentencing, the trial court calculated Weber's offender score after excluding one of his prior juvenile adjudications from consideration.   The trial court concluded that this juvenile adjudication washed out under a previous version of the SRA. The trial court then vacated the first degree assault conviction to remedy the double jeopardy violation that would result if both the assault and attempted murder convictions were upheld.   The trial court sentenced Weber based on the second degree attempted murder count to a total of 290 months (230 months plus the 60-month firearm enhancement).   The shorter sentences for the unlawful possession of a firearm and the drug offense would run concurrently.   As part of the requirements of the judgment and sentence, Weber was ordered to provide a biological sample for DNA identification.

DISCUSSION

1. Double Jeopardy:  Which Offense to Strike

 ¶ 10 The double jeopardy clauses of the Fifth Amendment of the United States Constitution and article 1, section 9 of the Washington Constitution prohibit multiple punishments for the same offense.  State v. Calle, 125 Wash.2d 769, 888 P.2d 155 (1995);  State v. Maxfield, 125 Wash.2d 378, 886 P.2d 123 (1994).   The state concedes that the attempted murder and assault convictions obtained in this case constitute double jeopardy.

 ¶ 11 Weber argues that his protection against double jeopardy was violated when the judge allowed both the attempted murder charge and the assault charge to proceed to trial, after noting that convictions on both would violate double jeopardy.   In Ball v. United States, 470 U.S. 856, 859, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), the United States Supreme Court held that the government has “broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case.”  Ball, 470 U.S. at 859, 105 S.Ct. 1668.   In Ohio v. Johnson, the U.S. Supreme Court “held that even where the [Double Jeopardy] Clause bars cumulative punishment for a group of offenses, ‘the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution.’ ”  Ball, 470 U.S. at 860, 105 S.Ct. 1668 (citing Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984));  see also Calle, 125 Wash.2d at 773 n. 3, 888 P.2d 155. If sufficient proof supports both counts, the state is entitled to charge both counts.  Ball, 470 U.S. at 865, 105 S.Ct. 1668;  Calle, 125 Wash.2d at 773 n. 3, 888 P.2d 155. Therefore, Weber's argument fails.

 ¶ 12 The question is whether Weber received multiple punishments.   The remedy for convictions on two counts that together violate the protection against double jeopardy is to vacate the conviction on the lesser offense.   In the Matter of the Pers. Restraint of Burchfield, 111 Wash.App. 892, 899, 46 P.3d 840 (2002);  Ball, 470 U.S. at 865, 105 S.Ct. 1668.   Therefore, the double jeopardy violation is remedied by vacating either of the two counts.   Here, the trial court vacated Weber's assault conviction.   Therefore, Weber faces no double jeopardy violation.

¶ 13 However, by cross-appeal, the state argues that the trial court erred in vacating the first degree assault conviction as the “lesser” offense because it carried a higher standard range than the attempted second degree murder conviction.   The state urges that the trial court should have vacated the second degree attempted murder conviction instead as the lesser offense.

¶ 14 The trial court considered several factors to determine which was the lesser offense:  the standard sentence range, the classification and seriousness level of the crime under the SRA, and the mens rea of the underlying convictions.   The trial court noted that although the standard range for first degree assault was higher than the standard range for second degree attempted murder, they were not significantly different (approximately 10 months separated the high and low ends).   Second degree murder was classified as seriousness level 14, and first degree assault as level 12.   The court also stressed that the intent to cause death in the second degree attempted murder charge was much more serious than the intent to inflict great bodily harm required for assault.

¶ 15 In Burchfield, this court vacated a first degree manslaughter conviction as the less serious offense than assault “[b]ecause first degree manslaughter as charged [in Burchfield ] is a lesser class of felony, assigned a lower seriousness level, and has a lower standard sentencing range than assault.”  Burchfield, 111 Wash.App. at 900, 46 P.3d 840.   The court noted it would be atypical to find that the offense with a shorter standard range is the “more serious” offense.  Burchfield, 111 Wash.App. at 900, 46 P.3d 840.   However, although the court's discussion in Burchfield centered on the length of the sentence, it did not explicitly hold that in all cases, the crime with the longer sentence is the greater offense for double jeopardy purposes.   Rather, all three factors in Burchfield (standard sentence range, seriousness level, and class of felony) pointed to assault as the greater offense.   Therefore, although Burchfield supports a conclusion that the crime with the greater penalty is generally considered the greater offense, Burchfield is not dispositive.

¶ 16 Considering these three factors, as the trial court here noted, “this case is a much closer call.”   The class of felony factor favors neither attempted second degree murder or first degree assault as the more serious offense;  both are class A felonies.  RCW 9A.32.050;  9A.28.020;  9A.36.011. The standard sentence ranges for both, although close, favor assault as the more serious offense.   The range is 192.75 to 267.75 months for attempted second degree murder, and 209 to 277 months for first degree assault (both using an offender score of 8 as the trial court used).

¶ 17 The final consideration is the seriousness level assigned by the legislature, which favors the murder conviction as the more serious offense.   The seriousness of second degree murder is 14 and of first degree assault is 12.   But, the sentencing guidelines do not include seriousness levels for attempted offenses, only for completed offenses.   In the case of anticipatory offenses (non-VUCSA attempts, conspiracies, and solicitations), the guidelines provide that the standard sentence range is 75 percent of the range for the completed offense.

¶ 18 In several cases the court vacated the offense with the lesser possible punishment.   See State v. Valentine, 108 Wash.App. 24, 29, 29 P.3d 42 (2001);  State v. Read, 100 Wash.App. 776, 778, 793, 998 P.2d 897 (2000);  State v. Portrey, 102 Wash.App. 898, 901, 10 P.3d 481 (2000).   Although in each of these cases the court did vacate the offense that would have resulted in the lower sentence range, none of them explicitly noted that the sentence range was the basis for its decision.   For example, the Valentine court noted the longer standard sentence for the retained count, but did so in the context of discussing the exceptional sentence imposed, not in the context of explaining why it was vacating the other count.  Valentine, 108 Wash.App. at 29, 29 P.3d 42.   Therefore although these three cases did result in the outcome the state requests here, none of them explained the basis for choosing which crime to vacate.

¶ 19 The remedy for a double jeopardy violation should not create a paradoxical result or interfere with the interests of justice.   See People v. Davis, 122 Mich.App. 597, 333 N.W.2d 99, 104 (1983).   If Weber was charged with and convicted of only assault, he would have faced the longer sentence.   If the two convictions did not violate double jeopardy and were ordered to run concurrently, he would have faced the longer sentence.   But, by vacating the assault conviction, the trial court imposed the lesser sentence for attempted second degree murder.

¶ 20 Looking only to the seriousness level to determine which conviction to vacate will lead to inconsistent results.   Crimes with a higher seriousness level are not necessarily those with greater penalties or of higher class of felony.   The legislature has defined class A felonies as those carrying a maximum sentence for a first conviction of 20 or more years.  RCW 9.94A.035(1).   Class B felonies carry a first conviction maximum sentence of at least 8 years but less than 20 years, and class C felonies carry a first conviction maximum sentence of less than 8 years.  RCW 9.94A.035(2), (3).   However, on the SRA seriousness chart, some class B felonies have a higher seriousness level than some class A felonies.   For example, arson in the first degree is a class A felony with a seriousness level of 8, and assault of a child in the second degree is a class B felony with a seriousness level of 9. RCW 9A.36.130, RCW 9A.48.020. Therefore, seriousness levels will not always reflect the same categorization the legislature set forth in defining felony classes.

¶ 21 The sentence is the true indicator of the consequence for the offender and of the interests of justice.   The most serious offense is the offense with the most serious consequence for the offender.   The only way to consistently vacate the less serious offense is to look to the sentence to be imposed under the two offenses.   We therefore hold that to remedy a double jeopardy violation presented when two convictions punish the same offense, the court must vacate the crime carrying the lesser sentence.   In this case, both offenses were subject to mandatory firearm enhancements of 60 months.   Thus, comparing standard sentence ranges shows that the assault conviction has a more serious consequence for Weber, making second degree attempted murder the conviction to vacate.

2. Use of Juvenile Criminal History in Sentencing

¶ 22 In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403 (2004), the U.S. Supreme Court reiterated the rule set out in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000):  “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”   The Blakely Court clarified the meaning of “statutory maximum” for Apprendi purposes as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant ” without finding any additional facts.  Blakely, 124 S.Ct. at 2537.   Although the Court clarified the meaning of “statutory maximum,” it expressly retained the prior conviction exception in its recitation of the Apprendi rule.  Blakely, 124 S.Ct. at 2536.

 ¶ 23 Weber argues that the prior conviction exception has been eroded and that prior convictions should therefore be included in the facts a jury must find under Blakely.   The Washington Supreme Court has already considered and rejected this argument.   In State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 200-01, ¶ 22 (2005), the court held that “Blakely left in[ ]tact the validity of exceptional sentences based on prior convictions.”   Thus, under the exception for prior convictions, Weber's prior adult convictions were properly considered to calculate his offender score.   His offender score was then properly used to increase his standard range for the current crimes.   The Blakely decision does not require a contrary result.

 ¶ 24 Weber argues that even if the Apprendi exception for prior convictions remains valid, it does not extend to prior juvenile adjudications.   The state argues that a lack of a jury trial at the juvenile adjudication does not distinguish a juvenile adjudication from an adult conviction for purposes of the Apprendi exception.

¶ 25 Weber cites United States v. Tighe, 266 F.3d 1187 (9th Cir.2001).   In Tighe, the Ninth Circuit held that juvenile adjudications do not fit into the narrow Apprendi exception for prior convictions because they are not “subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions:  fair notice, reasonable doubt and the right to a jury trial.”  Tighe, 266 F.3d at 1193 (citing Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)).   The Tighe court noted that the Apprendi Court's continued adherence to the prior conviction exception was “premised on sentence-enhancing prior convictions being the product of proceedings that afford crucial procedural protections-particularly the right to a jury trial and proof beyond a reasonable doubt.”  Tighe, 266 F.3d at 1194.   Thus, the Tighe court concluded that the “ ‘prior conviction’ exception to Apprendi's general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.”  Tighe, 266 F.3d at 1194.

¶ 26 The dissent in Tighe countered that:

Where a juvenile received all the process constitutionally due at the delinquency proceeding stage, we found the later use of the of the juvenile adjudication for an adult enhancement to be constitutionally sound because “the conviction was constitutionally valid for purposes of imposing a sentence of imprisonment for the [juvenile] offense itself.”   To hold otherwise would have required the court “to hold that the enhancement of an adult criminal sentence requires a higher level of due process protection than the imposition of a juvenile sentence”-a notion the court squarely rejected.

Tighe, 266 F.3d at 1198-99 (Brunetti, J., dissenting) (quoting United States v. Williams, 891 F.2d 212 (9th Cir.1989)).   The Tighe dissent argued that the majority's reliance on Jones was flawed.  Tighe, 266 F.3d at 1200 (Brunetti, J., dissenting).   Rather than reading Jones to require that the right to jury trial attach to a prior juvenile adjudication before it fit into the Apprendi prior conviction exception, the Tighe dissent argued that:

The language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime.   For adults, this would indeed include the right to a jury trial.   For juveniles, it does not.

Tighe, 266 F.3d at 1200 (Brunetti, J., dissenting).   The Tighe dissent concluded that extending this “logic to juvenile adjudications, when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement.”  Tighe, 266 F.3d at 1200 (Brunetti, J., dissenting).

 ¶ 27 Juveniles have no right to a jury trial under either the Washington state or the federal constitution.  State v. Schaaf, 109 Wash.2d 1, 16, 743 P.2d 240 (1987);  McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).   A juvenile does have the due process protection of proof beyond a reasonable doubt, and the rights to counsel, to notice of the charges, to confront and cross-examine witnesses, and against self-incrimination. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).   These protections ensure the accuracy of the fact-finding proceedings without the need for a jury.  McKeiver, 403 U.S. at 543, 91 S.Ct. 1976.   The Washington courts agree that a juvenile does not have the right to a jury determination at an adjudicative hearing.  Schaaf, 109 Wash.2d at 16, 743 P.2d 240.   The punitive purpose of adult criminal proceedings is inapposite to the dual purposes of juvenile adjudications:  accountability and rehabilitation.  Schaaf, 109 Wash.2d at 4, 743 P.2d 240.

¶ 28 The Apprendi court upheld the exception for prior convictions based on the status of recidivism as a “traditional, if not the most traditional” factor considered by a sentencing court in increasing a sentence.  Apprendi, 530 U.S. at 488, 120 S.Ct. 2348 (quoting Almendarez-Torres, 523 U.S. at 244, 118 S.Ct. 1219).  “[R]ecidivism ‘does not relate to the commission of the offense’ ” itself;  it is an offender-related fact.  Apprendi, 530 U.S. at 488, 120 S.Ct. 2348 (quoting Almendarez-Torres, 523 U.S. at 244, 118 S.Ct. 1219).   The Apprendi court continued that:

Both the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that “fact” in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a “fact” increasing punishment beyond the maximum of the statutory range.

¶ 29 The Apprendi Court's concerns with procedural safeguards require a reliable fact-finding proceeding.   Under McKeiver and Schaaf, in the juvenile context a reliable fact-finding proceeding does not necessitate the right to a jury trial.   Therefore, the state argues that the Tighe court's requirement of a jury trial prior to application of the prior conviction exception is flawed in that it implied that non-jury juvenile adjudications are inherently unreliable.   Given the federal and Washington state cases holding that jury fact finding is not required to ensure accuracy in juvenile adjudications, we do not think the Tighe court's implication is well founded.

¶ 30 The state cites United States v. Smalley, 294 F.3d 1030 (8th Cir.2002), cert. denied, 537 U.S. 1114, 123 S.Ct. 870, 154 L.Ed.2d 790 (2003), as an example of one of several cases holding that juvenile adjudications fall within Apprendi “prior conviction” exception.   The Smalley court agreed with the Tighe dissent and concluded that the language in Jones, rather than requiring a jury trial in all proceedings under the Apprendi exception, required that the necessary constitutional safeguards be provided in prior proceedings.  Smalley, 294 F.3d at 1032.   The Smalley court held, as the state urges, that “juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption.”  Smalley, 294 F.3d at 1033.   Procedural safeguards in juvenile adjudications are “more than sufficient to ensure the reliability that Apprendi requires” and juvenile adjudications can be characterized as prior convictions for the Apprendi exception.  Smalley, 294 F.3d at 1033.

¶ 31 Weber does not argue that juvenile adjudications are unconstitutional for failing to provide the right to a jury trial, and such an argument would be difficult under McKeiver and Schaaf.   Weber also does not argue that it is improper or unconstitutional per se to use the fact of a prior juvenile adjudication to increase an adult sentence.   Weber argues only that because a jury trial was not provided at the juvenile proceeding, the fact of the prior adjudication must now be determined by a jury prior to being used to increase his sentence.   However, as the state notes, “requiring a jury to make the determination that an unreliable juvenile adjudication exists does nothing to cure the perceived unreliability of the non-jury adjudication.”

¶ 32 We agree with the Smalley court and disagree with the Tighe court.   We hold that juvenile adjudications that meet constitutionally-required safeguards fall within the prior conviction exception set out in Almendarez-Torres and upheld in Apprendi and Blakely.   See also State v. Hitt, 273 Kan. 224, 42 P.3d 732, 740 (2002) (disagreeing with Tighe and holding that the Apprendi exception for prior convictions encompasses juvenile adjudications);  People v. Lee, 111 Cal.App.4th 1310, 4 Cal.Rptr.3d 642, 647 (2003).   Weber does not contest the fact of his prior juvenile adjudications.   Under the exception for prior convictions, Weber's prior juvenile adjudications are properly considered to calculate his offender score.

¶ 33 The remainder of this opinion lacks precedential value and will not be published in the Washington Appellate Reports but will be filed of public record in accord with RCW 2.06.040.

3. Prosecutorial Misconduct

¶ 34 Weber identifies three instances of prosecutorial misconduct and argues that each instance separately, and the three instances cumulatively, deprived him of a fair trial.   In two instances, the prosecutor's questions elicited evidence that the trial court excluded by pretrial rulings.   Nevertheless, a defendant's conviction will be reversed for prosecutorial misconduct only if there is a substantial likelihood that the misconduct affected the jury's verdict.  State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997). The defendant bears the burden of establishing that the prosecutor's conduct was improper and that there was a substantial likelihood that it affected the jury's verdict.  Brown, 132 Wash.2d at 561, 940 P.2d 546.   In this case, although misconduct is conceded, Weber still bears the burden of showing a substantial likelihood that the misconduct affected the jury's verdict.   The court reviews alleged prosecutorial misconduct in the context of the total argument, the issues in the case, the evidence presented at trial, and the instructions given to the jury.  Brown, 132 Wash.2d at 561, 940 P.2d 546.

¶ 35 Failure to object to an improper comment or question generally constitutes waiver, even where the elicited testimony has already been excluded by a court order.  Brown, 132 Wash.2d at 561, 940 P.2d 546;  State v. Sullivan, 69 Wash.App. 167, 173, 847 P.2d 953 (1993).   A standing objection has been allowed only to the party losing the motion to exclude evidence.   Sullivan, 69 Wash.App. at 171, 847 P.2d 953 (gathering cases and distinguishing Fenimore v. Drake Constr. Co., 87 Wash.2d 85, 549 P.2d 483 (1976)).   But if the “questioning was in deliberate disregard of the trial court's ruling,” or if “an objection by itself would be so damaging as to be immune from any admonition or curative instruction by the trial court,” then there is an “unusual circumstance that makes it impossible to avoid the prejudicial impact of evidence that had previously been ruled inadmissible,” and the complaining party need not object to preserve the issue for appeal.   Sullivan, 69 Wash.App. at 173, 847 P.2d 953.

¶ 36 Prior to trial, the court granted Weber's motion to “exclude any reference to gang-related membership or any kind of supposed expert testimony with respect to [gangs].”   The court also excluded testimony by Detective Alvarez that he had previously met Weber during a criminal investigation of Weber's brother, stating that any relevance of this evidence was unclear but that its prejudice was clear.   The court did not exclude the fact that Detective Alvarez had previous contact with Weber.

A. First Instance of Misconduct

¶ 37 Under direct examination by the state, Detective Alvarez testified that another deputy identified Charles Weber as a suspect in the shooting.   9RP 9. This examination followed:

Q. Did that name mean anything to you?

A. Yes, it did.

Q. Explain why.

A.  Approximately a year prior to that, I was investigating or assisting with an investigation of a stabbing incident where Charles's brother was the prime suspect.   And I had contacted Charles during the course of that investigation.

¶ 38 The state concedes that this testimony violated the court's pretrial ruling.   But, the prosecutor's questioning did not deliberately disregard the trial court's ruling.   Detective Alvarez could have answered the question without providing the prohibited information.   And there is no showing that an objection would have been so damaging that the court could not cure any prejudice by giving an admonition or curative instruction.   See Sullivan, 69 Wash.App. at 173, 847 P.2d 953.   Thus, by failing to object at trial, Weber has waived this issue on appeal.  Brown, 132 Wash.2d at 561, 940 P.2d 546;  Sullivan, 69 Wash.App. at 173, 847 P.2d 953.

B. Second Instance of Misconduct

¶ 39 The state also examined Detective Alvarez as follows:

Q. Have you ever in your contacts with anyone as a patrol officer, ever observed anyone besides the defendant Charles Web[ ]er with a 206 tattoo on the back of his neck?

A. No.

Q. What about during the course of your duties as a special enforcement agent in investigating gangs, have you ever come across another individual with the tattoo of a 206 on the back of his neck?

A. Not of that size, no.

The state concedes that this question violated the court's pre-trial ruling excluding any reference to gang membership.1  Subsequent to these questions, the prosecutor asked Detective Alvarez questions about whether Weber's brother had a 206 on the back of his neck.   Alvarez responded that he had never contacted Weber's brother.

¶ 40 Although Weber did not object at trial, this questioning was in deliberate disregard of the trial court's ruling excluding any reference to gang membership.   Thus, Weber's failure to object at trial did not waive the issue.   See Sullivan, 69 Wash.App. at 173, 847 P.2d 953.   Weber argues that the prosecutor's misconduct implied that he and his brother were involved in gangs, and that this was reversible misconduct.   Weber bears the burden of showing a substantial likelihood that the misconduct affected the jury's verdict.   See Brown, 132 Wash.2d at 561, 940 P.2d 546.

¶ 41 Earlier in his testimony, Alvarez permissibly testified that he primarily handled gang cases.   The state argues that the testimony of three witnesses on the tattoo issue were admitted prior to Alvarez's testimony, without objection:  two other detectives and Manzo testified about the 206 tattoos.   Therefore, the state argues that Alvarez's testimony that he had seen such tattoos in his investigation of gang cases, but not of that size, was not particularly prejudicial.

¶ 42 Weber argues that it is the prosecutor's reference to the tattoos in the context of gang investigation, and not tattoos generally, that is prejudicial.   However, the trial court's exclusion was of evidence of gang membership and supposed expert testimony with respect to gangs, not of “all possible reference to gangs” as Weber alleges.   Further, it is Weber's burden to prove a substantial likelihood that the misconduct affected the jury's verdict.   Weber has not argued or shown the effect of this misconduct on the jury's verdict.   In light of the evidence supporting the jury's verdict, he has failed to meet his burden.

C. Third Instance of Misconduct

¶ 43 In closing argument, defense counsel highlighted evidence that the state did not produce at trial, and argued that there was insufficient evidence to convict Weber.   In rebuttal, the prosecutor argued:

MR. COLASURDO:  Now, there are cases that go before court all the time, like murders where there is no victim to explain what had happened.   No eyewitness to the crime.   Yet, we prove those.

In another unit in my office, SAU, the special assault unit where you deal with sex crimes-

MR. HALL:  Objection, your honor.   There is no foundation for that type of evidence.

THE COURT:  Overruled.

MR. COLASURDO:  You deal with crimes against small children, crimes where a child has been molested.

MR. HALL:  Objection, your honor.   Also, no foundation for that type of argument.

THE COURT:  Why don't you move on.

MR. COLASURDO:  It's a legitimate argument, your honor.

THE COURT:  Move on, counsel.

MR. COLASURDO:  There are times for which there are no witnesses and for which there are, as I just mentioned, no evidence.   Yet people are convicted of those crimes all the time.   Why? Because a jury finds someone credible.

The state concedes that the prosecutor's rebuttal argument was improper.

¶ 44 Weber argues that this argument was highly prejudicial and because the trial court initially overruled Weber's objection, it lent encouragement to the jury to decide the case based on the improper argument.   Weber argues that by failing to overturn its initial rejection of Weber's objection, the trial court worsened the prejudice by lending an “aura of legitimacy” to the improper argument.   See State v. Davenport, 100 Wash.2d 757, 762, 764, 675 P.2d 1213 (1984).   The state argues that although improper, the defense invited the argument by arguing in closing that the state had failed to produce specific types of evidence, and that the improper argument was not so prejudicial that the instructions to the jury were ineffective in curing the error.

The¶ 45 state cites State v. Farr-Lenzini, 93 Wash.App. 453, 471, 970 P.2d 313 (1999) as an example of a prosecutor's rebuttal argument overstepping the bounds of a reaction to a defense argument, but still not being so prejudicial as to require reversal.   In Farr-Lenzini, the defense argued that the defendant, charged with attempting to elude, did not fit the profile of an eluder.  Farr-Lenzini, 93 Wash.App. at 470, 970 P.2d 313.   The state argued on rebuttal that Ted Bundy did not fit the profile of a mass murderer.   Farr-Lenzini, 93 Wash.App. at 471, 970 P.2d 313.   The defense objected.   Farr-Lenzini, 93 Wash.App. at 471, 970 P.2d 313.   On appeal, the court noted the trial court's instructions to the jury that attorney's arguments are not evidence and the jury must disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court-the same instruction given here.  Farr-Lenzini, 93 Wash.App. at 470-71, 970 P.2d 313.   Holding that “[j]uries are presumed to heed the court's instructions,” the court concluded these instructions were sufficient to address the prosecutor's rebuttal argument.  Farr-Lenzini, 93 Wash.App. at 470-71, 970 P.2d 313 (quotations omitted).

¶ 46 Weber argues that if we adopt the reasoning of Farr-Lenzini and refuse to reverse, prosecutors will have no incentive to confine themselves to matters in the record and avoid including inflammatory and prejudicial material.   But, the Farr-Lenzini case sets forth a presumption that can be rebutted by a contrary showing of evidence. See Davenport, 100 Wash.2d at 763-64, 675 P.2d 1213.   Weber argues that the prosecutor invoked a form of peer pressure that could not have been cured by any instruction.   However, Weber did not seek a curative instruction.   Although the prosecutor's argument was improper, it was brief.   The trial court did not lend an aura of legitimacy to it under Davenport, because the trial court asked the prosecutor to “move on” upon Weber's second objection.   Weber has provided no evidence rebutting the presumption that the jury followed the court's instructions.   In light of the evidence supporting the jury's verdict, Weber has not met his burden of establishing that the argument was reversible error.

D. Cumulative Error

¶ 47 Weber argues that even if these instances of prosecutorial misconduct separately do not justify reversal, their cumulative effect does.   Weber argues that the reference to the investigation of Weber's brother, the implication that he and his brother were gang members, and the improper rebuttal argument encouraging the jury to convict Weber because the state was able to convict others for various crimes, collectively justify reversal.

¶ 48 The cumulative error doctrine applies when several trial errors occur which, standing alone, may not be sufficient to justify reversal but when combined may deny the defendant a fair trial.  State v. Greiff, 141 Wash.2d 910, 10 P.3d 390 (2000).   It does not apply where the errors are few and have little or no effect on the outcome of the trial.  Greiff, 141 Wash.2d at 929, 10 P.3d 390.   In Greiff, the prosecutor impermissibly failed to disclose that a witness would testify differently in a retrial than in the original trial, and the trial court erred in allowing the victim to testify that she was told there were no forensic rape results because the doctor performed the test incorrectly.  Greiff, 141 Wash.2d at 917, 926, 10 P.3d 390.   The Greiff court found that these were both errors, but that each had little or no effect on the outcome.  Greiff, 141 Wash.2d at 929, 10 P.3d 390.

¶ 49 The state argues that, as in Greiff, the errors here each had little or no effect at trial, so there was no accumulation of errors. The state contrasts the facts here with those in State v. Coe, 101 Wash.2d 772, 789, 684 P.2d 668 (1984), and State v. Alexander, 64 Wash.App. 147, 822 P.2d 1250 (1992), where the errors resulted in reversal based on cumulative error.   The errors in Coe and Alexander were much more egregious than the misconduct here.   In Coe, they included errors such as failure to disclose exculpatory evidence and failure to disclose that several witnesses had been hypnotized.   In Alexander, they included allowing a child's doctor to testify he believed the child was a victim of sexual abuse, allowing the child's counselor to impermissibly bolster the child's credibility and impermissibly suggest he filed a CPS report against the defendant, and allowing the child's counselor to testify he thought the child was not lying.

¶ 50 We hold that the errors in Weber's trial do not rise to the level of those in Coe or Alexander.   Instead, the misconduct is more similar to that in Greiff and does not implicate the cumulative error doctrine.

4. Ineffective Assistance of Counsel

¶ 51 Weber argues that to the extent defense counsel failed to seek a remedy at trial for the prosecutor's misconduct, Weber's trial counsel was ineffective.   A defendant claiming ineffective assistance of counsel must demonstrate (1) that his counsel's performance was so deficient that he was not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the defendant was prejudiced by reason of his counsel's actions such that he was deprived of a fair trial.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  see also State v. Jeffries, 105 Wash.2d 398, 417-18, 717 P.2d 722 (1986).   The strong presumption that counsel's representation was effective will be overcome only by a clear showing of ineffectiveness derived from the record as a whole.  State v. Lord, 117 Wash.2d 829, 889, 883, 822 P.2d 177 (1991);  State v. Hernandez, 53 Wash.App. 702, 708, 770 P.2d 642 (1989).

¶ 52 If the action the defendant complains of can fairly be characterized as a legitimate trial strategy or tactic, then that action cannot form the basis of an ineffective assistance of counsel claim.  State v. Garrett, 124 Wash.2d 504, 520, 881 P.2d 185 (1994). In such a case the first prong of the Strickland test is not met.  State v. McDonald, 138 Wash.2d 680, 697, 981 P.2d 443 (1999).   The second prong of Strickland requires the defendant prove there is a reasonable probability that the result of the proceeding would be different.  Lord, 117 Wash.2d at 883-84, 822 P.2d 177.

¶ 53 When the state improperly questioned Detective Alvarez on the topic of gang investigations, Weber's objection was automatically preserved for appeal.  Sullivan, 69 Wash.App. at 173, 847 P.2d 953.   There was no failure by counsel in this instance.

¶ 54 Weber's trial counsel's failure to object to Detective Alvarez's testimony about meeting Weber while investigating Weber's brother did waive that issue for review on appeal.   The state argues that Weber's trial counsel's choice to not object on the record, request a curative instruction, or request a mistrial was a legitimate trial strategy and a tactical decision.   The state points to trial counsel's other actions in the case that demonstrate trial counsel was aware of the available options.   Specifically, the state points to examples of trial counsel objecting appropriately and asking the court not to give the jury an instruction.

¶ 55 Further, the state argues that even if Weber's trial counsel was ineffective, there was no prejudice to Weber.   To prove prejudice, Weber must show there is a reasonable probability that the outcome of his trial would have been different if his attorney had objected, sought a curative instruction, or moved for a mistrial.   The state points to the substantial evidence supporting Weber's jury convictions.

¶ 56 Weber has not demonstrated that the outcome of his trial would probably have been different but for trial counsel's failure to object, and thus the second prong of the Strickland test is not met.   Therefore, Weber's ineffective assistance of counsel claim fails.

5. DNA Sample

¶ 57 Weber contended that RCW 43.43.754, which required him to provide a biological sample for DNA identification, violated his Fourth Amendment right against unreasonable searches.   We have already rejected this claim and held that such a requirement is not unconstitutional.  State v. Surge, 122 Wash.App. 448, 450-51, 94 P.3d 345 (2004).

6. Jury Instructions

¶ 58 In a statement of additional grounds for review, Weber argues that the trial court erred by not providing the jury with a definition of the word “enhancement” because he alleges the firearm enhancement is an element of the offenses with which he was charged.   Weber cites RCW 9.95.015, which requires the jury to find by special verdict that the defendant was armed with a deadly weapon at the time of the crime.   Here, the trial court properly instructed the jury on the elements of the crimes and provided the deadly weapon special verdict forms.   The word “enhancement” was not listed as an element of any crime.   The word enhancement did not appear in the jury instructions at all.   There was no instructional error.

7. Juvenile Adjudication Wash Out

¶ 59 The trial court found that Weber's juvenile adjudication for attempted first degree robbery should not be included in his offender score.   The trial court relied on the fact that the adjudication would have washed out under a prior version of the SRA. The state argues that because the legislature amended the SRA to include convictions that had washed out under prior versions, and because Weber committed the juvenile robbery after the amendments took effect, it should have been included in the calculation of his offender score.

¶ 60 In State v. Varga, 151 Wash.2d 179, 183, 86 P.3d 139 (2004), the Washington Supreme Court conclusively decided that

the 2002 SRA amendments properly and unambiguously require that sentencing courts include defendants' previously “washed out” prior convictions when calculating defendants' offender scores at sentencing for crimes committed on or after the amendments' effective date.

The 2002 SRA amendments went info effect on June 13, 2002.  RCW 9.94A.525, .030;  Varga, 151 Wash.2d at 185, 86 P.3d 139.  “The amendments apply prospectively at sentencing for crimes committed on or after June 13, 2002.”  Varga, 151 Wash.2d at 190-91, 86 P.3d 139.   Because Weber committed the current offenses on March 18, 2003, he must be sentenced according to the 2002 SRA amendments.

¶ 61 Under Varga, therefore, the trial court erred in excluding the juvenile adjudication for first degree attempted robbery in calculating Weber's offender score.   First degree attempted robbery is a class B felony.  RCW 9A.28.020(3)(b);  9A.56.200(2).   Class B felonies are included in a defendant's offender score absent a ten year felony-free period.  RCW 9.94A.030(13), .525(2).   Because Weber did not have a ten year felony-free period between his juvenile adjudication in 1992 and his current offenses, the juvenile adjudication must be included in his offender score.   As explained above, the Blakely decision does not require a different result.

¶ 62 We reverse the vacation of the assault conviction, and vacate the conviction for attempted murder.   We hold that prior juvenile adjudications are entitled to be considered by the trial court at sentencing in the same manner as prior adult convictions.   We reverse the exclusion of the juvenile adjudication.   We affirm on the remaining issues.   We remand for resentencing.

FOOTNOTES

FN1.  This concession is well taken.   The violation of the pretrial order is clear and inexcusable in this case..  FN1.  This concession is well taken.   The violation of the pretrial order is clear and inexcusable in this case.

APPELWICK, J.