[Copyrighted Material Omitted]
Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.
Thomas Charles Roberts, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.
[177 Wn.App. 771] ¶ 1 Johnny Garcia appeals his convictions for first degree assault, first degree unlawful possession of a firearm, and unlawful possession of a controlled substance. At trial, he stipulated that he had committed a " serious offense" for purposes of the unlawful possession of a firearm charge to prevent the State from introducing evidence of his prior first degree robbery conviction. However, the jury instructions inadvertently included an instruction stating that the jury had to find that Garcia committed first degree robbery in order to convict on the first degree unlawful possession of a firearm charge. The trial court replaced the erroneous instruction and instructed the jury to disregard it. The trial court then denied Garcia's motion for a mistrial. On appeal, Garcia argues that (1) the trial court abused its discretion in denying his mistrial motion, (2) the trial court improperly admitted " gang" evidence and [177 Wn.App. 772] the cumulative effect of this evidence and the erroneous instruction deprived him of his right to a fair trial, and (3) on remand we should appoint different counsel because trial counsel was ineffective.
¶ 2 We hold that the trial court did not abuse its discretion when it denied Garcia's mistrial motion because the jury's temporary exposure to the improper instruction was not such a serious trial irregularity that it could not be cured by an instruction to disregard. We also hold that Garcia's gang evidence and cumulative error claims fail because he failed to preserve for review his challenge to the gang evidence. And because we do not remand, we do not address Garcia's request to appoint new trial counsel. Accordingly, we affirm Garcia's convictions.
¶ 3 On April 23, 2011, Mark McCloud, his cousin Tara McCloud Shanta, and his friend Phillip Noel were in the garage behind a friend's house. Garcia arrived at the garage and argued with Shanta. McCloud and Garcia also began to argue. Garcia shot McCloud in the abdomen and arm, and then fled.
¶ 4 Shortly after the shooting, Noel identified Garcia from a photo montage. Tacoma Police Department officers later located Garcia and arrested him. During a search incident to arrest, the officers discovered methamphetamine in Garcia's pants pocket. The State charged Garcia with first degree assault under RCW 9A.36.011(1)(a), first degree unlawful possession of a firearm under RCW 9.41.040(1)(a), and unlawful possession of methamphetamine under RCW 69.50.4013(1).
¶ 5 At trial, part of the State's burden on the firearm charge was to prove that Garcia previously had been convicted of a " serious offense." To satisfy this burden, the State sought to admit Garcia's judgment and sentence for a prior first degree robbery conviction. Garcia objected and [177 Wn.App. 773] offered to stipulate that he had committed a serious offense without revealing that the offense was first degree robbery. The trial court accepted the stipulation and instructed the jury:
This is a stipulation of the parties. The parties have agreed that the following evidence will be presented to you: As of April 23rd, 2011, the defendant, Johnny Michael Garcia, had previously been convicted of a crime that is a serious offense and that makes him ineligible to possess a firearm as is required to be proven beyond a reasonable doubt by the State of Washington as an element of Count II, Unlawful Possession of a Firearm in the First Degree. This is evidence that you will evaluate and weigh with all the other evidence.
7 Report of Proceedings (RP) at 62-63.
¶ 6 During trial, three witnesses mentioned the word " gang." A Puyallup Tribal Police Department officer said that when he was dispatched in response to Noel's 911 call, he " knew that there was a garage behind the house at 2218 East 32nd that's a known gang hangout." 1 RP at 77. A Tacoma Police Department officer who arrived at the scene of Garcia's arrest testified that he was a part
of " [t]he gang unit." 4 RP at 7. Another Tacoma Police Department officer testified that on the evening of Garcia's arrest, he " was requested to meet with our gang unit officers regarding the operation they were involved with." 6 RP at 63. And during closing argument, the State told the jury that Garcia " pull[ed] out a gun and d[id] the gangster shoot." 8 RP at 9.
¶ 7 Before closing argument, the trial court asked counsel if there were any objections to the jury instructions. Neither the State nor defense counsel objected to the proposed instructions, and the trial court distributed copies of its instructions to the jury. The trial court then read the instructions. Instruction 20, the " to convict" instruction for the first degree unlawful possession of a firearm charge, read as follows:
To convict the defendant of the crime of unlawful possession of a firearm in the first degree, as charged in Count II, each of [177 Wn.App. 774] the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 23rd day of April, 2011, the defendant knowingly had a firearm in his possession or control;
(2) That the defendant had previously been convicted of Robbery in the First Degree, a serious offense; and
(3) That the possession or control of the firearm occurred in the State of Washington.
Clerk's Papers (CP) at 202 (emphasis added). Apparently neither the trial court nor counsel had noticed that the instruction specifically referenced first degree robbery as a " serious offense" despite Garcia's stipulation. 
¶ 8 During closing argument, the State projected an image of instruction 20 for the jury to view. Despite what the instruction stated, the State did not mention robbery and told the jury that it needed to find that Garcia had " been convicted of a prior serious offense." 8 RP at 16.
¶ 9 After finishing closing argument, the State informed the trial court that instruction 20 was incorrect and asked that the court amend it to state " a serious offense" instead of " Robbery in the First Degree." 8 RP at 21-22. The State also told the trial court that it had noticed the incorrect instruction and had tried to " sanitize [the mistake] in the midst of the argument by using the other statutory language and then pulling it off the overhead as quickly as I could without looking too obvious about it." 8 RP at 22. Defense counsel said that he " didn't catch this either." 8 RP at 22. The parties agreed to replace the jury's copy of instruction 20 with the proper instruction.
¶ 10 The trial court also determined that it had read the incorrect version of this instruction to the jury. Accordingly, the parties agreed that in addition to providing the jury [177 Wn.App. 775] with a corrected copy of the instruction, the trial court would read the proper instruction to the jury and inform the jury that it " misspoke" the first time it read the instruction. 8 RP at 25.
¶ 11 When the trial court collected the incorrect copies of instruction 20 from the jury, it noticed that one juror had placed a star next to " Robbery" and another juror had underlined " Robbery" and placed a question mark next to that portion of the instruction. Garcia then moved for a mistrial. Garcia noted that the State also had projected the incorrect instruction " for several minutes," to which the State responded,
I don't know that we actually had several minutes. Basically, I looked up, saw the error, [and] as soon as I saw that I tried to engage the jury with eye contact to divert them away from it and tried as gracefully as possible to remove that from the overhead. But it certainly was on the overhead long enough to look up and see the robbery words on the instruction.
8 RP at 29-30. The trial court denied the mistrial motion.
¶ 12 The trial court gave the jury corrected copies of instruction 20, reread the correct version of the ...