Opinion
No. 35962-6-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-01643-4, Ronald E. Culpepper, J., entered February 16, 2007.
Affirmed in part and remanded by unpublished opinion per Penoyar, A.C.J., concurred in by Armstrong and Quinn-Brintnall, JJ.
A jury convicted Adrian Contreras-Rebollar of two counts of first degree assault and returned special verdicts finding that he was armed with a firearm during the commission of those crimes. Contreras now appeals, arguing that (1) the trial court erred by denying his motion for a mistrial; (2) the State did not produce sufficient evidence to prove beyond a reasonable doubt that he was not acting in self defense; and (3) the trial court erred by sentencing him based on a criminal history and offender score the State did not prove. Contreras also argues in a statement of additional grounds for review that he was denied effective assistance of counsel. We affirm Contreras's convictions, but remand for resentencing.
The record indicates that the appellant's full name is "Adrian Contreras-Rebollar." However, we refer to him as "Contreras" throughout this opinion and mean no disrespect in doing so.
FACTS
On the afternoon of April 11, 2006, Contreras, Nicholas Solis, Regina Hernandez, and Ahria Kelly were at a friend's house in Tacoma where they drank alcohol and smoked methamphetamine. Contreras, Solis, Hernandez, and Kelly disagree as to some of what followed that evening.
Around five or six o'clock in the evening, Contreras, Solis, Hernandez, and Kelly left their friend's house and went to a place described as "Wolfie's alley," so Solis could pick up a vehicle. Report of Proceedings (RP) (Jan. 23, 2007) at 254. Contreras and Hernandez left Wolfie's alley to go drive around; Solis and Kelly followed in the car that Solis had just retrieved. Hernandez alleged that Contreras flagged Solis to stop, got out of his vehicle, and argued with Solis about a "sack of dope" and a Palm Pilot. RP (Jan. 23, 2007) at 259. According to Hernandez, Contreras returned to his vehicle, said, "[T]his mother fucker is getting on my nerves; I'm going to do him in[,]" and retrieved a gun from the backseat of the car. RP (Jan. 23, 2007) at 261. After going back to Wolfie's alley, Contreras and Hernandez subsequently drove to Yessica Rosas's house.
Hernandez claimed that, during their second visit to Wolfie's alley, Solis, while wearing a bandana over his face, pointed a gun at Contreras who responded by firing shots in Solis's direction. Kelly, however, testified that he did not see Solis wearing a bandana over his face or see Contreras and Solis pull guns on each other.
After arriving at Rosas's house, Rosas and Hernandez were talking in Rosas's bedroom when Contreras went outside to his car. Contreras returned wearing dark clothes and sunglasses, carrying a gun. Rosas testified that Contreras appeared nervous and looked like he was wearing a disguise. Rosas's father, Jose Rosas, heard people talking and he asked Hernandez and Contreras to leave. Jose testified that he watched Hernandez and Contreras drive away before returning to bed.
Contreras sat in the driver's seat and Hernandez sat in the front passenger seat when they left Rosas's house. Hernandez testified that she was looking at CDs when she heard Contreras say, "[T]here those mother fuckers are." RP (Jan. 23, 2007) at 289. The two were only a short distance from Rosas's house when Contreras started shooting at the oncoming vehicle. After Contreras finished shooting, Hernandez heard him say, "I just dumped on those fools." RP (Jan. 23, 2007) at 290. Hernandez testified that Contreras did not appear afraid; instead, he appeared brave, calm, and cool. Further, Hernandez testified that she had her head down looking at CDs and did not see Solis's vehicle approach; she looked up after Contreras started shooting and saw only the taillights of Solis's vehicle. Contreras, however, relayed a different story at trial. Contreras claimed that he saw Solis's vehicle speed up and the headlights turn off. He also claimed to see Solis wearing a bandana and raise the barrel of a gun. Based on this information, Contreras believed that Solis was preparing to commit a drive-by shooting. Contreras testified that he feared for his life, reached for his gun, ducked, and fired towards Solis's vehicle.
Hernandez testified that Surenos tie bandanas over their faces when they are preparing to commit a drive-by shooting or assault.
Solis was driving with Kelly in the passenger seat when Contreras shot at them. Kelly testified that he yelled "[d]uck" when he saw the flash of a gun firing from the driver's window of a parked vehicle with no headlights. RP (Jan. 24, 2007) at 501. Solis did not see Contreras's vehicle and only remembered seeing gunfire sparks at the time of the shooting. One bullet struck Kelly in the shoulder and at least one bullet struck Solis. As a result of the shooting, Solis is paralyzed from the chest down.
Shortly after the shooting, Kim Say-Ye was returning home when she saw a vehicle parked on the grass in front of her neighbor's house. The vehicle caught her attention because she saw shattered glass and because both the windshield wipers and headlights were on. She thought the driver was drunk and was about to call the police when Officer Timothy Caber showed up.
Caber, who had received the dispatch call for the shooting around 1:00 a.m., briefly spoke to Say-Ye when he arrived at the scene. Caber found the vehicle still running and stopped against landscaping railroad ties on the lawn. He also observed that the windshield wipers and headlights were on. Caber found Solis inside, slumped over; a rifle lay wedged between the driver and passenger seats with the barrel pointing toward the dash.
Edward Robinson, a firearm examiner at the Washington State Patrol Crime Laboratory, determined that the gun was a black powder rifle. Robinson received the rifle without a ram rod and without any wadding, projectiles, and gun powder inside the rifle's chamber or otherwise in a container associated with the rifle. Solis testified that he traded dope for the rifle on the day of the shooting and that he thought the rifle was inoperable.
On April 12, 2006, the police arrested Contreras at a Motel 6. The State charged him with two counts of first degree assault, with firearm enhancements, and one count of second degree unlawful possession of a firearm. On November 30, 2006, defense counsel Jay Berneburg filed a notice of association in this case. Contreras hired Berneburg to supplement appointed counsel James Schoenberger at trial. At trial, Berneburg gave the opening statement and cross examined three witnesses. He also assisted Schoenberger with preparations outside of trial. On January 17, 2007, Contreras pleaded guilty to second degree unlawful possession of a firearm.
On January 17, 2007, trial began. Both parties focused on credibility throughout the trial, as many of the witnesses were habitual methamphetamine users who admitted to having a poor memory. On January 23, 2007, Hernandez testified that she did not see the headlights on Solis's vehicle. When the prosecution questioned her, Hernandez acknowledged that her testimony conflicted with a statement she made to police officers shortly after the shooting. However, she claimed that Berneburg had told her the headlights were off. On direct, Hernandez denied that Berneburg told her to say the headlights were off, but on cross examination she claimed he had. On January 25, 2007, Contreras argued that Hernandez's testimony shattered his counsel's credibility and moved for a mistrial. The trial court denied the motion, but agreed to add Berneburg to Contreras's witness list for the sole purpose of rebutting Hernandez's allegation. Now a witness, the trial court excluded Berneburg from the courtroom. On February 1, 2007, the jury found Contreras guilty on both counts of first degree assault and found that he was armed with a firearm during the commission of both crimes.
For example, Hernandez testified that she often hallucinates and hears things when she is "on a come-down" from taking drugs. RP (Jan. 23, 2007) at 241.
On February 16, 2007, the trial court held a sentencing hearing during which the State alleged that Contreras had two prior adult felony convictions and one prior juvenile felony conviction. The State also alleged that Contreras was on community custody at the time of the offenses. The trial court sentenced Contreras to a total of 380 months' confinement. Contreras refused to sign any documents at his sentencing, including the stipulation on prior record and offender score and the judgment and sentence. Contreras appeals.
ANALYSIS
I. Motion for Mistrial
Contreras first argues that the trial court abused its discretion by denying his motion for a mistrial. He claims that he did not receive a fair trial because Hernandez's testimony challenged Berneburg's credibility and because the trial court removed Berneburg from the proceedings. We disagree.
We review the trial court's denial of a motion for a mistrial for abuse of discretion. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). "An appellate court finds abuse only `when no reasonable judge would have reached the same conclusion.'" Hopson, 113 Wn.2d at 284 (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711 (1989)). Trial courts should grant a mistrial "only when the defendant has been so prejudiced that nothing short of a new trial can insure that [the] defendant will be tried fairly." State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979). The trial judge is best situated to assess the prejudice of a statement. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). When an irregularity occurs at trial, we review the irregularity to determine whether it may have influenced the jury. State v. Weber, 99 Wn.2d 158, 165, 659 P.2d 1102 (1983). To determine the effect of the trial irregularity, we examine (1) the seriousness of the irregularity; (2) whether the irregularity was cumulative of other evidence properly admitted; and (3) whether the trial court could cure the irregularity by an instruction to disregard the remark. Hopson, 113 Wn.2d at 284; Weber, 99 Wn.2d at 165-66.
In determining whether a mistrial is appropriate, State v. Greiff, 141 Wn.2d 910, 10 P.3d 390 (2000), is instructive. In that case, Greiff argued that the trial court erred by denying his motion for a mistrial. Greiff, 141 Wn.2d at 918. At trial, the State failed to inform Greiff about the expected change in the testimony of an officer who had previously testified at Greiff's first trial that ended in a hung jury. Greiff, 141 Wn.2d at 916-18. As a result of not realizing that the officer may testify differently, Greiff's opening argument at the second trial was inconsistent with the officer's subsequent testimony. Greiff, 141 Wn.2d at 918. The officer testified that his prior testimony was inconsistent because he had made a mistake at the first trial. Greiff, 141 Wn.2d at 922. The trial judge denied Greiff's motion for a mistrial, but admitted a transcript of the officer's testimony from the first trial, which "the jury [was permitted to] consider . . . in its entirety in order to judge [the officer's] credibility." Greiff, 141 Wn.2d at 918. Division Three of this court affirmed Greiff's conviction, holding that the trial court did not abuse its discretion by denying his motion for a mistrial. Greiff, 141 Wn.2d at 918.
On appeal to the Washington Supreme Court, Greiff argued that the omission violated CrR 4.7(a)(1)(i), which denied him due process and effective assistance of counsel. Greiff, 141 Wn.2d at 918-19. Greiff contended that his counsel's credibility was "undoubtedly damaged" because his attorney promised in opening to elicit certain testimony from the officer and then failed to deliver on that promise. Greiff, 141 Wn.2d at 921. The Supreme Court applied the Hopson criteria and concluded that there was not a "substantial likelihood" that the State's violation of CrR 4.7 affected the trial outcome because the inconsistency between the attorney's opening statement and the witness's testimony was not significantly prejudicial. Greiff, 141 Wn.2d at 921. The court reasoned that the record supported the trial court's conclusion that the jury would find that the reason the officer did not testify the way Greiff said he would was because the officer had made a mistake in his earlier statements. Greiff, 141 Wn.2d at 922.
CrR 4.7(a)(1)(i) states, in part, that:
[T]he prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney's possession or control no later than the omnibus hearing: (i) the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses[.]
The rule is not at issue in this case.
Here, Berneburg said in his opening statement that Solis's vehicle's headlights were off, but Hernandez testified on cross that Berneburg told her to say that Solis's vehicle's headlights were off. As in Greiff, where the defendant argued that inconsistent testimony damaged his attorney's credibility, Contreras argues that Hernandez's allegations made the jury question Berneburg's credibility. However, in denying Contreras's motion for a mistrial, the trial court found that the issue was Hernandez's credibility, not Berneburg's. "The material issue, it seems to me, is Ms. Hernandez and her credibility and what she saw . . . I don't think anybody is accusing Mr. Berneburg . . . [of] committing a felony." RP (Jan. 25, 2007) at 682. Notably, the record supports the trial court's finding: on direct, Hernandez testified that Berneburg did not tell her to testify that Solis's headlights were off, whereas on cross, she testified that Berneburg told her to testify that Solis's headlights were off. Contreras cannot show that there is a substantial likelihood that Hernandez's testimony prejudiced him to such an extent that nothing short of a new trial could ensure fairness. The Greiff court also held that even if the defendant suffered some prejudice, the trial court took appropriate curative steps. In particular, the trial court admitted the officer's testimony from Greiff's first trial and instructed the jury to consider that testimony in judging the officer's credibility. This had the effect of showing how his inconsistent testimony was the result of the his eleventh-hour epiphany, not defense counsel's deceiving tactics. Greiff, 141 Wn.2d at 922. In this case, even if Hernandez's testimony slightly prejudiced Contreras, the trial court took appropriate curative steps by permitting Berneburg to testify to rebut Hernandez's allegation and by limiting Berneburg's testimony with the following instruction:
On direct:
Prosecutor: When did he visit you?
Hernandez: The day before yesterday.
Prosecutor: He didn't tell you to say [that the Solis's vehicle headlights were off], did he?
Hernandez: No. RP (Jan. 23, 2007) at 299-300.
On cross:
Defense: And we didn't tell you the headlights were off, did we? We said were the headlights on or off; isn't that right?
Hernandez: Mr. Berneburg told me that the lights were off and to say that when I got to court.
RP (Jan. 23, 2007) at 305.
Before the testimony of Mr. Berneburg is allowed, the Court advises you that you may consider the testimony regarding Mr. Berneburg's contact with Regina Hernandez only for the purpose of assessing her credibility. You must not consider the testimony for any other purpose.
RP (Jan. 25, 2007) at 812-13. Berneburg's testimony served to rebut Hernandez's allegation and the instruction limited the scope of his testimony to the purpose of assessing Hernandez's credibility. Juries are presumed to follow the trial court's instructions. State v. Ingle, 64 Wn.2d 491, 499, 392 P.2d 442 (1964). Thus, the trial court's curative steps cured any prejudice Hernandez's testimony may have created, further supporting our conclusion that Contreras received a fair trial.
Contreras also argues that the trial court denied his right to effective assistance of counsel in excluding Berneburg from the courtroom. The constitutional right to counsel promises a defendant an attorney who can provide "reasonably effective assistance." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We give exceptional deference to counsel's decisions and such decisions cannot serve as a basis for an ineffective assistance of counsel claim if counsel's decisions are a legitimate trial strategy or tactic. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Here, Schoenberger represented Contreras at all times during the trial, and the trial court only excluded Berneburg when the defense requested that the trial court add him to the witness list. The defense sought Berneburg as a witness to rebut Hernandez's testimony, which was a legitimate trial strategy and this strategic action did not deny Contreras his right to effective assistance of counsel.
II. Sufficiency of the Evidence
Contreras next argues that the State did not present sufficient evidence to disprove Contreras's claim that he was acting in self defense. We disagree.
We review a challenge to the sufficiency of the evidence to determine whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). When the sufficiency of evidence is challenged in a criminal case, we draw all reasonable inferences from the evidence in the State's favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 907, 567 P.2d 1136 (1977). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer 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). We consider circumstantial and direct evidence to be equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Taking the evidence in the light most favorable to the State, a jury could reasonably find that Contreras did not believe that he was about to be injured. First, the jury heard testimony from Rosas that Contreras appeared nervous at her house and that he looked like he was wearing a disguise. Second, Hernandez testified that she heard Contreras say "[t]here those mother fuckers are" before the shooting and "I just dumped on those fools" after the shooting. RP (Jan. 23, 2007) at 289-290. Hernandez also testified that Contreras did not appear afraid at the time of the shooting; rather, he appeared brave, calm, and cool. Third, both Say-Ye and Caber testified that Solis's vehicle's headlights were on. Finally, Solis testified that he traded dope for the rifle and that he thought it was inoperable. In fact, the Washington State Patrol Crime Lab received the rifle without a ram rod and without any wadding, projectiles, and gun powder inside the rifle's chamber or otherwise in a container associated with the rifle. Based on this evidence, the jury had sufficient evidence to reasonably find that Contreras did not act in self defense.
III. Sentencing
Contreras finally argues that we should reverse his sentence and remand his case for resentencing. We agree and remand this case for resentencing so that the State can produce evidence of Contreras's prior convictions and community custody status.
Fundamental principles of due process require "that in imposing sentence, the facts relied upon by the trial court must have some basis in the record." State v. Ford, 137 Wn.2d 472, 482, 973 P.2d 452 (1999) (quoting State v. Bresolin, 13 Wn. App. 386, 396, 534 P.2d 1394 (1975)). Although the State bears the burden of proving the existence of prior convictions by a preponderance of the evidence, State v. Bergstrom, 162 Wn.2d 87, 93, 169 P.3d 816 (2007), the trial court also has a statutory obligation to ensure that the State properly establishes the defendant's criminal history. RCW 9.94A.500(1). A certified copy of the prior judgment and sentence is the best evidence to establish a defendant's prior conviction. Bergstrom, 162 Wn.2d at 93. When the State alleges the existence of prior convictions and the defendant fails to "specifically object" before the trial court imposes the sentence, the State lacks notice of any apparent defects and the appellate court must remand the case for resentencing. Bergstrom, 162 Wn.2d at 93 (quoting State v. Lopez, 147 Wn.2d 515, 520, 55 P.3d 609 (2002)). In this situation, the State may introduce new evidence at resentencing. Bergstrom, 162 Wn.2d at 93.
RCW 9.94A.500, provides in relevant part:
(1) Before imposing a sentence upon a defendant, the court shall conduct a sentencing hearing.
. . .
If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record.
Here, Contreras did not "specifically object" to the State's allegations of his prior convictions and community custody status. Instead, he merely declined to sign both the stipulation on prior record and offender score and the judgment and sentence. Because defense counsel signed these documents, the State's allegations went unchallenged. Although the State did not provide evidence at sentencing to support its allegations, it did not have adequate notice of any alleged defect until this appeal, and we remand the case for resentencing.
IV. Statement of Additional Grounds
In a statement of additional grounds for review (SAG), Contreras also argues that he received ineffective assistance of counsel because defense counsel (1) failed to propose a "defense of another" instruction; (2) proposed assault instructions in which the phrase "great bodily harm" was defined but also proposed act on appearance instructions in which the phrase "great personal injury" was not defined; and (3) proposed a "no duty to retreat" instruction.
Every defendant has the right to effective assistance of counsel at trial. U.S. Const. amend. VI ; Wash. Const. art. I, § 22. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, i.e., it fell below an objective standard of reasonableness; and (2) the deficient performance was prejudicial, i.e., there is a reasonable probability that the outcome would have been different but for the deficient representation. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland, 466 U.S. at 687). Failure to establish either prong is fatal to the claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697. We give exceptional deference to counsel's professional decisions and such decisions cannot serve as a basis for an ineffective assistance of counsel claim if counsel's decisions are a legitimate trial strategy or tactic. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Contreras first argues that his counsel was ineffective because he failed to propose a "defense of another" instruction. SAG at 12. He maintains that a defendant is entitled to have the trial court instruct the jury on his case theory when the evidence supports that theory, State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997), and effective assistance of counsel includes a request of pertinent instructions supported by the evidence. State v. Kruger, 116 Wn. App. 685, 688, 67 P.3d 1147 (2003) (citing State v. Finley, 97 Wn. App. 129, 134, 982 P.2d 681 (1999)). However, Contreras fails to distinguish the procedural posture of this case from the line of cases he cites to support his argument. The longstanding rule that a defendant is entitled to have the trial court instruct the jury on his case theory when evidence supports that theory arises primarily in cases in which the trial court refused the defendant's proposed instructions. See, e.g., State v. Griffith, 91 Wn.2d 572, 589 P.2d 799 (1979) (trial court refused defendant's proposed instruction on the issue of self defense and the Supreme Court held that defendant was entitled to have his case theory submitted to the jury); Langan v. Valicopters, Inc., 88 Wn.2d 855, 567 P.2d 218 (1977) (trial court instructed the jury on wanton misconduct and the Supreme Court held each party is entitled to have their case theory presented). In this case, defense counsel's decision not to propose a "defense of another" instruction to the jury could have been a tactical decision to focus Contreras's self defense case theory. For example, Contreras argues in his SAG that he was defending Hernandez; however, she was a witness for the State who testified that Contreras did not appear afraid during the shooting and that he said "I just dumped on those fools" after the shooting. RP (Jan. 23, 2007) at 290. In light of her adverse testimony, defense counsel's decision not to propose this instruction was likely a tactical decision to focus on Contreras's stronger self defense theory.
Contreras next contends that his counsel was deficient because he proposed assault instructions in which the phrase "great bodily harm" was defined but also proposed act on appearance instructions in which the phrase "great personal injury" was not defined. Contreras improperly relies on State v. Rodriguez, 121 Wn. App. 180, 87 P.3d 1201 (2004), to support his contention. In Rodriguez, Division Three of this court held that the trial court erred by giving assault instructions in which "great bodily harm" was a definitional element while also giving self defense instructions in which "great bodily harm" was the threshold of harm the defendant must have reasonably feared to act on appearances in self defense. Rodriguez, 121 Wn. App. at 186. The court held that the definition of "great bodily harm," when read into the act on appearance instruction, decreased the State's burden to disprove self defense. The court reasoned that with "great bodily harm" defined as "bodily injury that creates a probability of death," the act on appearance instruction may have required the jury to find that the defendant reasonably feared a higher threshold of harm then necessary, i.e., great bodily harm. See Rodriguez, 121 Wn. App. at 186.
In instruction 8, the trial court defined "great bodily harm" as follows:
Great bodily harm means bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
Clerk's Papers (CP) at 91.
In instruction 19, the trial court provided:
A person is entitled to act on appearances in defending himself if that person believes in good faith and on reasonable grounds that he is in actual danger of great personal injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
CP at 102.
In determining whether a homicide was justifiable, the phrase "great personal injury" means "an injury that the slayer reasonably believed, in light of all the facts and circumstances known at the time, would produce severe pain and suffering if it were inflicted upon either the slayer or another person." 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 2.04.01, at 30-31 (3d ed. 2008) (WPIC).
In this case, the trial court properly gave instructions that used "great bodily harm" for assault and "great personal injury" for self defense. See accord State v. Walden, 131 Wn.2d 469, 475 n. 3, 932 P.2d 1237 (1997) (finding that "great bodily harm" is an element of first degree assault and is distinctly defined in that context and therefore should not be used simultaneously in instructions on self defense). Defense counsel's failure to propose a definition for "great personal injury" was not prejudicial. Even if the jury had received a definition for "great personal injury," the trial outcome would not have been materially affected. Because Contreras claimed he feared for his life in an alleged drive-by shooting, the harm he claimed to have feared would clearly have satisfied both the standards of "great bodily harm" and "great personal injury." See e.g., State v. Freeburg, 105 Wn. App 492, 505, 20 P.3d 984 (2001) (holding that using "great bodily harm" language did not prejudice the outcome of the case because defendant feared the threat of a gunshot at close range). Had the jury believed Contreras's theory, it would have also believed that he faced a threat of "great bodily harm." Thus, Contreras was not prejudiced by his defense counsel's failure to propose a definition for "great personal injury." The defense failed because the jury did not believe Contreras.
Finally, Contreras argues that his counsel was ineffective because he proposed a "no duty to retreat" instruction when there was "no evidence that the defendant could have avoided the use of force through a timely retreat." SAG at 23-24. Contreras, however, fundamentally misunderstands the purpose of the "no duty to retreat" instruction as imposing an affirmative duty to retreat. The "no duty to retreat" instruction, based on WPIC 16.08, provides:
It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by use of lawful force. The law does not impose a duty to retreat.
CP at 103; Instr. 20. Defense counsel properly proposed a "no duty to retreat" instruction because there was evidence that Contreras was in a place where he had a right to be and evidence that he may have had reasonable grounds to believe that he was being attacked. The "no duty to retreat" instruction was proper given the facts of the case and defense counsel did not perform deficiently by proposing the instruction. We affirm Contreras's conviction, but remand 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.
ARMSTRONG, J. and QUINN-BRINTNALL, J., concur.