State v. Sanchez-Radilla - Murder Conviction Affirmed

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

MAXA, J. - Adrian Sanchez-Radilla appeals his convictions of first degree murder, four counts of first degree assault, unlawful possession of a firearm, and drive-by shooting, and the firearm enhancements associated with each of his murder and assault convictions. Sanchez- Radilla's convictions arose from an incident in which he and an accomplice shot at least 20 bullets at an SUV they believed was following them. There were five people in the SUV, including two young children. One of the occupants was struck and killed, but the others were uninjured. We hold that the State presented sufficient evidence that Sanchez-Radilla assaulted the two young children even though there was no evidence that they were placed in apprehension of harm. In the unpublished portion of this opinion, we reject Sanchez-Radilla's additional arguments except for a scrivener's error in the judgment and sentence. Accordingly, we affirm Filed Washington State Court of Appeals Division Two Appellant.

1. STATE OF WASHINGTON, Respondent, ADRIAN SANCHEZ-RADILLA, PART PUBLISHED OPINION April 7, 2026 Sanchez-Radilla's convictions, but we remand for the trial court to correct a scrivener's error in the judgment and sentence. FACTS

Background

In May 2022, Nancy Zuniga, Samuel Garza, Gennaro Sandoval, and Sandoval's two children, MS and AS (ages four and three), were driving in an SUV through Tacoma in the late evening. They were in the neighborhood near the intersection of 34th Street and McKinley Avenue. Zuniga was driving, Garza was in the passenger seat, and Sandoval was in the back seat with the two children. That night, Sanchez-Radilla, Bismar Andres, Johnathan Garcilazo-Lucht, and Martin Solorzano-Cruz were driving in a truck near the same intersection. At some point, they noticed an SUV pass them coming from the opposite direction and then make a U-turn. Some of the people in the truck thought the SUV was following them. The truck sped up and made turns to get away, but the SUV stayed behind them. A series of surveillance videos depicts what happened next. The truck made a left turn onto a street and stopped. Sanchez-Radilla and Garcilazo-Lucht exited the truck and stood on the passenger side. Eight seconds after the truck turned left onto the street, the SUV turned onto the street and slowed down. Sanchez-Radilla and Garcilazo-Lucht began firing their guns at the SUV roughly 12 seconds after it turned onto the street. In total, Sanchez-Radilla and Garcilazo- Lucht fired at least 20 shots at the SUV. (20 bullet casings recovered at the scene). After the shooting began, the SUV reversed back down the street. Zuniga recalls hearing loud bangs and seeing smoke during the shooting. There was blood in the car. Sandoval was crying and holding his children as they left the scene. Garza told

Zuniga he was shot and needed to go to the hospital. Zuniga drove to the hospital, and Garza stopped responding before they got there. Garza died because of a gunshot wound to his neck. Other than Garza, none of the other occupants of the SUV were injured. And there was no direct evidence that MS or AS were placed in apprehension of harm. Sanchez-Radilla and Garcilazo-Lucht got back into the truck, and it left the scene. Later that evening, investigators saw the truck driving in the area. They arrested the driver, Andres, who was alone in the vehicle at the time. Law enforcement connected Sanchez-Radilla to the truck and the shooting using DNA and fingerprint evidence, and data from his phone records. At trial, Solorzano-Cruz testified that Sanchez-Radilla was one of the gunmen. The State charged Sanchez-Radilla with first and second degree murder of Garza, four counts of first degree assault regarding Zuniga, Sandoval, MS and AS, unlawful possession of a firearm, and drive-by shooting. Each of the murder and assault charges included a firearm sentencing enhancement and gang aggravator.

Jury Instructions and Verdict

The to-convict instructions for first degree assault of MS and AS stated that the State had to prove that Sanchz-Radilla assaulted them, the assault was committed with a firearm, and he acted with the intent to cause great bodily harm. The trial court gave the following instruction on assault: An assault is an intentional shooting of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A shooting is offensive if the shooting would offend an ordinary person who is not unduly sensitive.

An assault is also an act done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.

An assault is also an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. Clerk's Papers (CP) at 646 (emphasis added). In addition, the trial court gave the following instruction regarding transferred intent: "If a person acts with intent to kill or assault another, but the act harms a third person, the actor is also deemed to have acted with intent to kill or assault the third person." CP at 648. The jury returned a guilty verdict on all charged counts. And the jury found that the firearm sentencing enhancements applied for the murder and assault charges. At sentencing, the Sanchez-Radilla argued that the assault charges associated with the children should be dismissed because the State did not present evidence of their apprehension of harm. The trial court denied the motion. Sanchez-Radilla appeals his convictions and sentence. ANALYSIS Sanchez-Radilla argues that there was insufficient evidence to prove beyond a reasonable doubt that he assaulted MS and AS because there was no evidence that they were harmed or had an apprehension of harm. We disagree.

1. STANDARD OF REVIEW When evaluating the sufficiency of evidence for a conviction, we view the evidence in the light most favorable to the State and ask whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Bergstrom, 199 Wn.2d 23, 40-41, 502 P.3d 837 (2022). We assume the truth of the State's evidence and all reasonable inferences that may be drawn therefrom. Id. at 41. These inferences must be construed in the State's favor and strongly against the defendant. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019). And

we defer to the trier of fact's resolution of conflicting testimony, witness credibility, and the persuasiveness of the evidence. Bergstrom, 199 Wn.2d at 41.

1. LEGAL PRINCIPLES A person commits first degree assault if they, "with intent to inflict great bodily harm: (a) Assault[] another with a firearm." RCW 9A.36.011(1)(a). The statute does not define assault, so we use its common law definition. State v. Johnson, 29 Wn. App. 2d 401, 410, 540 P.3d 831,

review denied, 2 Wn.3d 1035 (2024). We recognize three common law definitions of assault:

"(1) an unlawful touching (actual battery); (2) an attempt with unlawful force to inflict bodily injury upon another, tending but failing to accomplish it (attempted battery); and (3) putting another in apprehension of harm." State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009); see

also In re Pers. Restraint of Arntsen, 2 Wn.3d 716, 724-25 543 P.3d 821 (2024).

When a defendant commits an assault under the second definition, attempted battery, it is not necessary to show that the victim was physically harmed or put in apprehension of harm.

State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996); State v. Frazier, 81 Wn.2d 628,

631, 503 P.2d 1073 (1972). Assault in the first degree is a specific intent crime. Elmi, 166 Wn.2d at 215. "Specific intent is defined as intent to produce a specific result," rather than the intent to do the act that produces the result. Id. Therefore, as long as the defendant had the specific intent to commit an assault, "[f]irst degree assault does not, under all circumstances, require that the specific intent match a specific victim." Id. Specific intent may be inferred from the defendant's conduct when that conduct plainly indicates such an intent. Arntsen, 2 Wn.3d at 726. The doctrine of transferred intent applies when an accidental or unintended victim is involved. State v. Cortes Aguilar, 176 Wn. App 264, 275, 308 P.3d 778 (2013). Under the

doctrine of transferred intent, if the State can establish the defendant's intent to assault an intended victim, that intent "transfers to any other victim who is actually assaulted." Id.

1. APPLICABLE CASES The issue here is whether when a defendant fires shots into an occupied vehicle, the State must prove that each person in the vehicle was harmed or had an apprehension of harm to support first degree assault convictions regarding all the occupants. The parties reference three primary cases that address a defendant shooting into an occupied house and being convicted of assaulting unknown or unintended victims. In Elmi, the defendant fired several shots into a house occupied by his estranged wife and three young children, although no one was injured. 166 Wn.2d at 212. The State charged the defendant with four counts of first degree assault. Id. The defendant argued that the evidence was insufficient to convict him of assaulting the children because his specific intent did not match a specific victim. Id. at 216. Initially, the court noted that the case implicated the attempted battery definition of assault. Id. at 217. The court stated that "whether the unintended victim is actually battered . . . or not (like in this case) is irrelevant for purposes of determining whether an assault occurred."

Id. at 218.

The court stated that "RCW 9A.36.011 provides that once the mens rea is established, any unintended victim is assaulted if they fall within the terms and conditions of the statute." Id. Therefore, "once the intent to inflict great bodily harm is established, usually by proving that the defendant intended to inflict great bodily harm on a specific person, the mens rea is transferred under RCW 9A.36.011 to any unintended victim." Id. "Because RCW 9A.36.011 encompasses

transferred intent," the court did not need to analyze the issue under the transferred intent doctrine. Id. The court concluded, Where a defendant intends to shoot into and to hit someone occupying a house, a tavern, or a car, she or he certainly bears the risk of multiple convictions when several victims are present, regardless of whether the defendant knows of their presence. And, because the intent is the same, criminal culpability should be the same where a number of persons are present but physically unharmed.

The court did not specifically address whether the State must prove that the unknown victims suffered an apprehension of harm when they were physically unharmed. But the court determined that there was sufficient evidence that the three children were placed in apprehension of harm. Id. In State v. Frasquillo, the defendants shot out the windows of a couple's bedroom, who suffered an apprehension of harm. 161 Wn. App. 907, 912, 255 P.3d 813 (2011). There were three others in the house, but there was no evidence that two of the others were frightened by the incident and the third slept through the shooting. Id. The State charged the defendants with three counts of attempted second degree assault regarding the three others in the house. Id. at

1. The defendants argued that these people were not harmed or put in apprehension of harm. Id. at 915.

This court noted that Elmi held that "when a person shoots into a building intending to harm a certain occupant, under the assault statute this intent transfers to any victims who were unintentionally harmed or put in apprehension of harm." Id. at 916. The court stated, "From

Elmi, it is clear that the intent to assault one victim transfers to all victims who are

unintentionally harmed or put in apprehension of harm. The logical corollary of Elmi is that

intent does not transfer to 'victims' who are neither harmed nor put in apprehension of harm."

The court determined that "because the shooter fired into the house intending to assault more than one victim within, there was sufficient evidence to find that he intended to assault all likely occupants of the house." Id. at 917-18. However, the court stated that because three of the victims were not harmed or put in apprehension of harm, the defendants were guilty of attempted assault rather than a completed assault. Id. at 918. In State v. Mancilla, the defendants fired shots into an occupied house. 197 Wn. App. 631, 638, 391 P.3d 507 (2017). Several people were in the house, although nobody was injured.

Id. The State charged the defendants with seven counts of first degree assault. Id. at 640. The

defendants argued that the to-convict instruction - which stated that the State must prove that the defendant acted with intent to inflict great bodily harm - misstated the intent required. Id. at

647.

Citing Elmi, the court stated, The court's instructions were not required to specify that the defendants intended to harm a specific person or persons. While the State certainly can present proof of intent to harm a specific person, doing so is unnecessary. All the statute requires is proof the defendant intended to inflict great bodily harm on someone, even if that someone is unknown.

Id. at 647-48. However, the court clarified that even though mens rea for first degree assault is

established if the defendant has a generalized intent to harm someone, "proof that an actual person was in fact assaulted is necessary to complete the crime." Id. at 648. "Although proof as to a specific victim is not required, . . . the State must prove the defendants intended harm to an actual person." Id. at 649.

The court held that there was sufficient evidence to prove intent because the shooting happened at 4:00 AM and there were cars parked outside, so the defendants could be expected to know that the house was occupied. Id. And because the home was small, the defendants would know that injuries were likely. Id. The court did not address whether there was evidence that the occupants were placed in apprehension of harm.

1. ANALYSIS The evidence here was sufficient to prove that Sanchez-Radilla intended to inflict great bodily harm on at least the driver and front seat passenger of the SUV - Zuniga and Garza. The video depicts Sanchez-Radilla and his accomplice aiming their weapons directly at the SUV. They fired at least 20 gunshots at the vehicle. Several of those shots struck the vehicle and one of the shots struck and killed Garza. Therefore, this intent was transferred to MS and AS even if Sanchez-Radilla did not know that they were in the SUV. Elmi, 166 Wn.2d at 218; Mancilla, 197 Wn. App. at 647-48; Frasquillo, 161 Wn. App. at 916, 918. But even if the State proved the requisite intent, the to-convict instruction still required the State to prove that Sanchez-Radilla assaulted MS and AS. Sanchez-Radilla argues that the State needed to prove that the children either were physically harmed or put in apprehension of bodily harm to convict him of first degree assault.

Elmi is somewhat ambiguous on this issue. The court stated that when a defendant shoots

into a house or a car, they bear the risk of multiple convictions even for unknown victims. Elmi, 166 Wn.2d at 218. The court concluded that "because the intent is the same, criminal culpability should be the same where a number of persons are present but physically unharmed." Id. (emphasis added). But then the court proceeded to address whether the three young children in that case were placed in apprehension of harm. Id.

This court in Frasquillo interpreted Elmi as holding that "the intent to assault one victim transfers to all victims who are unintentionally harmed or put in apprehension of harm." 161 Wn. App. at 916 (emphasis added). The court adopted a corollary of the rule in Elmi that "intent does not transfer to 'victims' who are neither harmed nor put in apprehension of harm." Id. The court concluded that if a person was not injured or placed in apprehension of harm, the defendant could only be convicted of attempted assault. Id. at 918. However, we disagree with the court's interpretation of Elmi. The court in Elmi did not expressly state that the State had to prove actual harm or apprehension of harm to convict a defendant who shot into an occupied house or car.

See 166 Wn.2d at 218.

In addition, in Frasquillo this court did not consider one of the three common law definitions of assault. An assault occurs if the victim is actually harmed or is put in apprehension of harm. Elmi, 166 Wn.2d at 215. But the third definition is "an attempt with unlawful force to inflict bodily injury upon another, tending but failing to accomplish it (attempted battery)." Id. Significantly, this definition of assault does not require the victim to experience physical harm or fear in fact. Eastmond, 129 Wn.2d at 500. Under this definition, "whether the unintended victim is actually battered . . . or not . . . is irrelevant for purposes of determining whether an assault occurred." Elmi, 166 Wn.2d at 218. Here, the jury was instructed regarding the attempted battery definition of assault: "An assault is . . . an act done with intent to inflict bodily injury upon another, tending but failing to accomplish it" and "[i]t is not necessary that bodily injury be inflicted." CP at 646. The evidence shows that Sanchez-Radilla attempted to inflict bodily injury on people in the SUV. Therefore, he "[bore] the risk of multiple convictions when several victims [were] present, regardless of whether [he] [knew] of their presence." Elmi, 166 Wn.2d at 218. The fact that he

failed to accomplish the infliction of bodily injury on MS and AS is irrelevant under the attempted battery definition of assault. Therefore, we hold that the evidence was sufficient to convict Sanchez-Radilla of first degree assault regarding MS and AS. CONCLUSION We affirm Sanchez-Radilla's convictions, but we remand for the trial court to correct a scrivener's error in the judgment and sentence. A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered. In the unpublished portion of this opinion, we hold that (1) the trial court did not err when it admitted gang association evidence; (2) Sanchez-Radilla was not entitled to a first degree manslaughter instruction; (3) Sanchez-Radilla's statement of additional grounds (SAG) claims have no merit or cannot be considered on direct appeal; and (4) as the State concedes, that there is a scrivener's error in the judgment and sentence that the trial court should correct. ADDITIONAL FACTS

Admission of Gang Evidence

Before trial, the State moved to admit evidence that Sanchez-Radilla and the other people in the truck were members of the Sureños gang. The State argued that this evidence was admissible to prove motive, intent, concerted action, and the gang aggravators. In its motion, the State indicated it would introduce evidence that the Sureños and Norteños were rival gangs in the area. The State's motion described that Sureños are associated with the color blue and that Norteños are associated with the color red. The State stated that shooting at people wearing

Norteños colors in Sureños claimed territory was a way to advance and secure a person's position in the gang. The State stated that the evidence would show that (1) at least two victims, Garza and Sandoval, had connections to the Norteños gang; (2) the shooting occurred in Sureños claimed territory in Tacoma; (3) two of the victims were wearing red, the chosen color of the Sureños' rival gang; (4) Sanchez-Radilla knew Garza and Zuniga; and (5) Garza and Sanchez-Radilla had a feud after one of Sanchez-Radilla's friends, also a Sureño, assaulted Zuniga. Sanchez-Radilla opposed admission of evidence relating to his membership in a gang. The trial court granted the State's motion to admit the gang association evidence. The court found by a preponderance of the evidence that Sanchez-Radilla was a member of the Sureños gang. The court stated that the evidence was admissible to show motive, intent, concerted action, and to prove the charged gang aggravators. The evidence was relevant for these purposes because it could explain both why the SUV followed the truck and why the truck's occupants responded in the way they did. Finally, the court determined that the probative value of the gang evidence outweighed the prejudice because it explained both Sanchez-Radilla's and the victims' actions leading up to the shooting.

Trial

At trial, Tacoma Police Sergeant Ryan Bradley testified as the State's expert witness on gang activity. He stated that gangs claim territory to establish which gang has more power and respect among other gangs. Gang members will shoot at or assault one another over territory disputes. Bradley testified that Sureños and Norteños are rival gangs and have issues with each other in Tacoma specifically. Sureños are associated with the color blue and Norteños are associated with the color red. Bradley stated that several different gangs claimed the

neighborhood surrounding 34th and McKinley in Tacoma, and that the Sureño group to which Sanchez-Radilla belonged was active in that neighborhood. Bradley stated that following a rival gang member would be viewed as a disrespectful act. He stated that if a Sureños gang member did not take action in response to being followed, they would be viewed as a coward. If a person did not act in response to a sign of disrespect, other gang members would hold that person in low regard. Bradley testified that at a minimum, a physically violent response, including shooting, would be authorized as a response to a rival gang member following a Sureños gang member. He stated that if a gang member fires a gun at a rival gang member, their status within the group is elevated. Bradley testified that he did research into the gang membership status of various parties involved in the case. He stated that Sanchez-Radilla was an admitted Sureños gang member. He also stated that the other three people in the truck on the night of the shooting were Sureños gang members. Bradley stated that Sandoval was a member of the Norteños. But he stated that Garza was not a member of a gang. Bradley testified that if somebody followed your car aggressively in their car in the area in which the shooting occurred, it could cause fear of imminent harm. Solorzano-Cruz testified that he, Sanchez-Radilla, and Garcilazo-Lucht were members of the Sureños. Solorzano-Cruz stated that the Norteños were the Sureños' rivals. Solorzano-Cruz testified that if a rival gang member followed you and you did not respond, you would be perceived as a coward and lose the respect of fellow gang members He testified that it was important to maintain respect because people, like the other people in the truck, were watching. Solorzano-Cruz testified that on the night of the shooting, he was hanging out with Sanchez-Radilla, Garcilazo-Lucht, and Andres. They were driving near the intersection of 34th

and McKinley when either Sanchez-Radilla or Garcilazo-Lucht noticed a vehicle drive past them and make a U-turn. People in the truck thought the vehicle was following them. Solorzano-Cruz stated that no one in the truck mentioned recognizing anyone or seeing anyone wearing red in the vehicle that was following them. He stated that he was not scared when the vehicle was following the truck. Zuniga testified that although Garza was not in a gang, his father and cousins were associated with the Norteños. Zuniga stated that she knew Sanchez-Radilla, and that they had socialized. She stated that she and Garza stopped socializing with Sanchez-Radilla when one of Sanchez-Radilla's gang associates knocked her to the ground, and Sanchez-Radilla did not do anything about it. Zuniga stated that on the day of the shooting, she, Garza, Sandoval, and Sandoval's children went to the area of 34th and McKinley to visit a cousin who lived nearby. The cousin was not home, so they went to look for the cousin at another place. Zuniga was wearing a red shirt under a black jacket and Garza was wearing a red hat. When Zuniga arrived at the hospital after the shooting, her black jacket was unzipped and the red shirt was visible. At one point, Zuniga made a U-turn with her SUV. After making the U-turn, Zuniga noticed a white truck. Zuniga estimated that she was behind the truck for around one to two minutes. Zuniga testified that nobody in the SUV told her to follow the truck. She stated that Garza did not mention that he recognized anyone in the truck. And Zuniga could not see in the truck. But Zuniga stated that Garza told her to turn where the truck turned. And she stated that that she sped up when the truck sped up.

Zuniga stated that tailgating a car in the area in which the shooting occurred could be perceived as a threat. However, Zuniga stated that she did not tailgate or get close to the truck and did not flash the SUV's lights. Zuniga stated that after she made a turn, she saw the truck was stopped in the road, so she slowed down and almost stopped. Zuniga stated that she saw a person standing outside the truck. She wanted to drive around the stopped truck, but there was an oncoming car. At that point, she heard loud bangs and saw smoke, and Garza told her to reverse.

Jury Instructions and Verdict

The trial court gave the following instruction regarding gang affiliation evidence: Certain evidence has been admitted in this case for only a limited purpose. This evidence consists of evidence of the defendant's and others' gang affiliations. This evidence may be considered by you only for the purpose of determining motive, intent, that the defendant and others were acting in concert, and for the charged aggravators. You may not consider it for any other purpose. Any discussion of the evidence during your deliberations must be consistent with this limitation. CP at 639. Sanchez-Radilla asked the trial court to instruct the jury on the lesser included offense of first degree manslaughter. He argued that there was evidence that the shooting took place in a 1 high-crime area, and being followed in this area could cause reasonable fear of harm. Sanchez- Radilla contended that this evidence supported an instruction on manslaughter because it showed he reasonably believed he was in imminent danger but recklessly deployed more force than necessary for the circumstances. After hearing argument regarding the lesser included offense of manslaughter, the trial court stated,

First degree manslaughter requires proof that the defendant recklessly caused the death of 1 another. RCW 9A.32.060(1)(a).

In this case, I've kind of gone through what Mr. Cruz has said about what was happening. That yes, they were being followed. Nobody said, really, anything, other than that they were being followed. He was surprised when the car stopped. Two people got out, they shot 22 rounds in five seconds: 14 from one, eight from the other. Car was hit - - or the SUV was hit. Mr. Garza was killed. I don't think there's facts that have been presented that justify giving a lesser of manslaughter in the first degree or manslaughter in the second degree, so the Court's going to decline to give lessers to Count I. Rep. of Proc. (RP) at 1501. The trial court also declined to give a justifiable homicide instruction, stating, The defense wants to argue circumstantial evidence based upon the neighborhood, that there was a belief or there should have been a belief, but nobody has testified to that. There is no evidence, so the subjective prong is not met. The slayer and accomplice has to reasonably believe that there was imminent danger of such harm being accomplished. Again, that hasn't been met. There is no evidence to support that. And then we get to the objective test, which is that the slayer or an accomplice employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer or an accomplice at the time of the incident. RP at 1508-09. The jury returned a guilty verdict on all of the charged counts. The jury did not find that the gang aggravators applied. The trial court sentenced Sanchez-Radilla to 374 months for first degree murder. It sentenced him to 93 months for each of the first degree assault counts, or 372 months total. The murder and assault convictions each included a 60 month firearm enhancement, for a total of 300 months. These sentences and enhancements were run consecutively, resulting in a total of 1,046 months of incarceration. However, the judgment and sentence stated that his total term of 2 incarceration was 1,049 months. The trial court also sentenced Sanchez-Radilla to 89 months for the unlawful possession of a 2 firearm conviction, and 116 months for the drive-by shooting conviction. These sentences were run consecutively to the other convictions.

Sanchez-Radilla appeals his convictions and sentence.

1. GANG AFFILIATION EVIDENCE
   Sanchez-Radilla argues that the trial court abused its discretion when it admitted gang affiliation evidence because there was no evidence showing a connection between his gang affiliation and the crimes. We disagree.

2. Legal Principles
   The First Amendment to the United States Constitution protects membership in social organizations, including membership in gangs. State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009). Under the First Amendment, gang association evidence may not be used to prove a defendant's abstract beliefs alone. Id. In addition, ER 404(b) prohibits a court from admitting "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." But such evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b). Gang affiliation evidence is limited under ER 404(b) because it may cause jurors to perceive a defendant as someone who has a propensity to break the law based on their negative stereotypes associated with gang membership. Mancilla, 197 Wn. App. at 643-44; see also State

3. Mee, 168 Wn. App. 144, 160-61, 275 P.3d 1192 (2012). Gang affiliation evidence is
   considered inherently prejudicial and requires "close judicial scrutiny." Mancilla, 197 Wn. App. at 644, 637. Gang affiliation evidence is impermissible if it is "untethered to the specifics of the case on trial" or presented simply to portray the defendant as a bad person. Id. at 644.

However, gang affiliation evidence can be admissible if its probative value outweighs the prejudice associated with the evidence. See Mancilla, 197 Wn. App. at 644; State v. Embry, 171 Wn. App. 714, 732, 287 P.3d 648 (2012); State v. Yarbrough,151 Wn. App. 66, 82, 210 P.3d 1029 (2009). Courts regularly admit gang affiliation evidence to explain a defendant's motive, to prove intent, and to demonstrate that a group of defendants acted in concert. Mancilla, 197 Wn. App. 643-44; Embry, 171 Wn. App. at 732. To admit gang evidence, the trial court must (1) find by a preponderance of the evidence that the defendant was a member of the gang, (2) identify a permissible reason to introduce the evidence, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh its probative value against its prejudicial effect. Embry, 171 Wn. App. at 732. To be relevant, there must be a connection between the gang's culture and the crime. Id;

see also Mancilla, 197 Wn. App. at 644 (sufficient connection between gang evidence and crime

where it is supported by objective evidence such as the colors worn by involved parties). In

State v. Campbell, this court affirmed a trial court's finding that there was a sufficient nexus

between gang culture and the crimes. 78 Wn. App. 813, 815-17, 822-23, 901 P.2d 1050 (1995). In that case, the evidence showed that the defendant was a member of a gang, that in the culture of the defendant's gang disrespect was "grounds for retaliation and murder," that the gang was territorial, and that the victims had shown disrespect to the defendant. Id. at 822. In Scott, the State established a sufficient connection between the crime and gang affiliation at a pretrial hearing, but failed to establish this connection at trial. 151 Wn. App. at 527-28. At the pretrial hearing, the State predicted expert testimony on how important respect is in gang culture, and that "violence was a recognized response to 'disrespect.' " Id. at 528. This

evidence helped explain the attack. Id. at 527. But the State never introduced this evidence at trial, and had it done so, there would have been no error. Id. at 528-29. We review a trial court's evidentiary rulings for abuse of discretion. Mancilla, 197 Wn. App. at 643.

1. Analysis Here, the trial court admitted evidence of Sanchez-Radilla and his accomplice's gang affiliation to show a motive for the shooting and his intent, and to prove the gang aggravators. The gang aggravators required the State to prove beyond a reasonable doubt that Sanchez- Radilla "committed the offense to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group," RCW 9.94A.535(3)(s), or "committed the offense with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang as defined in RCW 9.94A.030, its reputation, influence, or membership." RCW 9.94A.535(3)(aa). Sanchez-Radilla argues that admitting evidence of his association with a gang was an abuse of discretion because there was no evidence of a connection between his gang affiliation and the shooting. First, he contends that the State relied on generalized police testimony to establish the relevance of gang testimony before trial. But in both the pretrial hearing and at trial, the State identified and introduced specific evidence that tied Sanchez-Radilla's association with the Sureños to the shooting. This evidence included that (1) Sanchez-Radilla and his accomplices were members of the Sureños, (2) the shooting was in the Sureños claimed territory in Tacoma, CP 510, (3) the victims of the shooting were wearing rival gang colors and following the truck, and (4) shooting at rival gang members in their gang's claimed territory would benefit and

advance their membership in the gang and failure to do so would harm their reputation in the gang. At trial, the State introduced evidence that Sureño culture required a response if someone in rival gang colors followed you in your territory. This evidence was sufficient to connect the gang's culture and expectations to the shooting. Second, Sanchez-Radilla argues that the evidence at trial did not establish a connection between the shooting and his association with the gang because there is no evidence that Sanchez-Radilla actually saw people wearing red in the SUV or recognized Garza. But although circumstantial, there is evidence that Sanchez-Radilla or his accomplices saw red-clad passengers in the SUV before the shooting. Both Sergeant Bradley and Solorzano-Cruz testified that in Sureño culture, a physically violent response would be expected if someone wearing rival colors was following you. The evidence showed that the people in the front seat of the SUV had red on, the SUV was following the truck, and the Sureños in the truck responded with violence. Sanchez-Radilla and his accomplice's extreme response to the SUV following the truck also suggests that they thought rival gang members were in the SUV. The people in the truck had ample time to observe the passengers in the SUV when it drove past them before making a U- turn. And they had an opportunity to observe the passengers in the SUV while the SUV followed them and before they started shooting. This evidence showed that there was a sufficient connection between the gang association evidence and the shooting. Sanchez-Radilla also points out that there are potential non-gang-related explanations for the shooting. But these explanations have no bearing on whether the gang evidence was relevant to proving the State's theory regarding his motive and intent, and whether the shooting was committed to further the purposes of the Sureños gang.

Accordingly, we hold that the trial court did not abuse its discretion when it permitted the State to introduce gang association evidence at trial.

1. MANSLAUGHTER JURY INSTRUCTION
   Sanchez-Radilla argues that the trial court erred in refusing to instruct the jury on the lesser included offense of first degree manslaughter. We disagree.

2. Legal Principles
   RCW 9A.32.060(1)(a) states that a person is guilty of first degree manslaughter when "[h]e or she recklessly causes the death of another person." "A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation." RCW 9A.08.010(1)(c); see also State

3. Avington, 2 Wn.3d 245, 264, 536 P.3d 161 (2023).
   A defendant is entitled to an instruction on manslaughter when they reasonably believe that they are in imminent danger and must act in self-defense, but recklessly use more force than necessary to respond to the danger. State v. Sanchez, 29 Wn. App. 2d 382, 395, 546 P.3d 436,

review denied, 3 Wn.3d 1007 (2024); State v. Schaffer, 135 Wn.2d 355, 358, 957 P.2d 214

(1998). "A defendant's use of force is lawful and self-defense can be asserted as a defense if the defendant subjectively and reasonably believes that the victim will inflict imminent harm." State

1. Zeigler, 30 Wn. App. 2d 780, 790, 546 P.3d 534 (2024). Defendants have a statutory right to lesser included offense instructions, but they are not automatically entitled to them. Avington, 2 Wn.3d at 258. To receive a lesser included offense instruction, a defendant must establish: " '(1) each of the elements of the lesser offense is a necessary element of the offense charged (legal prong) and (2) evidence in the case supports an

inference that the lesser crime was committed (factual prong).' " Id. (quoting State v. Coryell, 197 Wn.2d 397, 400, 483 P.3d 98 (2021)). Only the factual prong is at issue here. The factual prong requires "that some evidence must be presented - from whatever source, including cross-examination - that affirmatively establishes the defendant's theory before an instruction will be given." Avington, 2 Wn.3d. at 259. Relevant conflicting evidence presents a question for the jury, whose role is to judge the credibility and weight of the evidence. Id. When a trial court's decision on a lesser included offense is based on a factual determination, we apply an abuse of discretion standard. Id. at 260. A trial court abuses its discretion when its decision is manifestly unreasonable, or based on untenable grounds such as factual findings that are unsupported by the record. State v. Carter, 3 Wn. 3d 198, 212, 548 P.3d 935 (2024). We review the evidence in the light most favorable to the party that requested the instruction. Zeigler, 30 Wn. App. 2d at 792.

1. Analysis Sanchez-Radilla argues that, under Schaffer, he was entitled to a lesser included offense instruction on first degree manslaughter because he reasonably believed that he was in imminent danger and needed to act in self-defense, but recklessly used "more force than was necessary to repel the attack." 135 Wn.2d at 358. In Schaffer, the court held that the trial court should have given a manslaughter instruction as a lesser included offense to the first degree murder. 135 Wn.2d at 358. But in that case the State conceded that the defendant "acted in the reasonable belief he was in imminent danger." Id. By contrast, the trial court here found that an instruction regarding justifiable homicide was not appropriate because the evidence did not show that it was subjectively or objectively reasonable for Sanchez-Radilla to believe he was in danger of imminent harm.

Sanchez-Radilla argues that he reasonably feared imminent harm because Sergeant Bradley testified that a person could fear imminent harm if they were being aggressively followed in that part of Tacoma and Zuniga testified that tailgating another car in that neighborhood could be perceived as a threat. However, even viewing the evidence in the light most favorable to Sanchez-Radilla, the video of the shooting makes it clear that Sanchez-Radilla was not responding to an imminent threat of bodily harm. The truck stopped in the middle of the road, and Sanchez-Radilla got out with a gun and waited for several seconds for the SUV to turn onto the road. And there is no evidence that Sanchez-Radilla subjectively feared that an attack of any kind was imminent when the shooting began. There was no evidence that Sanchez-Radilla reasonably believed that he was in imminent danger and must act in self-defense. See Zeigler, 30 Wn. App. 2d at 790 (discussing that force is lawful where a defendant "subjectively and reasonably" believes they face imminent harm). Because Sanchez-Radilla was not acting in reasonable self-defense, an instruction on first degree manslaughter associated with the degree of force he used in reasonable self-defense was not appropriate. Accordingly, we hold that the trial court did not abuse its discretion when it denied his request for a first-degree manslaughter instruction.

1. SAG CLAIMS
   Sanchez-Radilla asserts 10 claims in his SAG. We either conclude that the claims have no merit or decline to consider the claims.

2. Clearly Without Merit
   In claim one, Sanchez-Radilla asserts that his trial counsel was ineffective at the sentencing hearing because he appeared remotely and failed to argue post-trial motions. The record does not support this assertion. The record shows Sanchez-Radilla's trial counsel filed written post-trial motions and argued them at the sentencing hearing. It also appears that his trial counsel was physically present. In claim five, Sanchez-Radilla asserts that his defense counsel was ineffective because he withdrew a Knapstad motion based on the State's promise that a codefendant would testify. But 3

it was reasonable for his trial counsel to abandon his argument because the codefendant's proffered testimony undermined the Knapstad motion. And defense counsel stated that they would reassert the motion if the codefendant was unable to testify at trial. This argument is clearly without merit. In claim seven, Sanchez-Radilla asserts that the prosecutor committed misconduct by improperly influencing the jury when they used two PowerPoint slides titled "THE AMBUSH." Ex. 416. Prosecutors have "wide latitude" to assert reasonable inferences from the evidence.

State v. Slater, 197 Wn.2d 660, 680, 486 P.3d 873 (2021). Given the circumstances of the

shooting, it was reasonable to characterize it as an ambush. Therefore, the text on the PowerPoint clearly does not constitute misconduct.

1. Vague Claims Under RAP 10.10(c), we will not consider a SAG "if it does not inform the court of the nature and occurrence of alleged errors." "[T]he appellate court is not obligated to search the

State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). This case states that a trial court has 3 the power to dismiss a charge when the undisputed facts are insufficient to support a finding of guilt. Id. at 351.

record in support of claims made in a defendant's statement of additional grounds for review." RAP 10.10(c). In claim two, Sanchez-Radilla asserts that Zuniga's identification of him was suggestive and lacked reliability, and that her initial identification was vague. But it does not explain why it lacked reliability or was suggestive. In claim three, Sanchez-Radilla asserts that the prosecutors improperly invoked sympathy for the children in the SUV. But he does not explain how the prosecution did this. In claim four, Sanchez-Radilla asserts that the State introduced excluded evidence that was illegally seized from his car. But he does not state what evidence was excluded and when it was referenced during the trial. In claim nine, Sanchez-Radilla asserts that the July 19, 2022, search warrant lacked particularity. But he does not explain how or why it lacked particularity. Because these SAG claims do not "inform the court of the nature and occurrence of alleged errors," we decline to address them. RAP 10.10(c).

1. Claim Outside of the Record
   In claim six, Sanchez-Radilla asserts that his counsel was ineffective because he failed to call alibi witnesses. But this assertion relies entirely on matters outside the record. As a result, we cannot consider them on direct appeal. State v. Ramos, 24 Wn. App. 2d 204, 233, 520 P.3d 65 (2022). This assertion is more properly raised in a personal restraint petition. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). Therefore, we decline to consider this claim.

2. Cumulative Error
   In claim 10, Sanchez-Radilla asserts that cumulative errors resulted in an unfair trial. Because we find no error associated with his SAG claims, this claim is clearly without merit.

3. SCRIVENER'S ERROR
   Sanchez-Radilla argues, and the State concedes, that his judgment and sentence misstates the total period of incarceration. Sanchez-Radilla's judgment and sentence states that his total term of incarceration is 1,049 months, but the trial court sentenced him to a total period of incarceration of 1,046 months. The State concedes that this case should be remanded to correct the scrivener's error. CONCLUSION We affirm Sanchez-Radilla's convictions, but we remand for the trial court to correct a scrivener's error in his judgment and sentence.

VELJACIC, C.J. PRICE, J. We concur: MAXA, J.