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        IN CLERKS OFFICII                                      at     r/ oO NY\ on Ou_; IS):bal(p
IIIJPRl!ME COURT, STATE OF WASHIIIGroM


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                                                                       SUSAN l. CARLSON
                                                                     SUPREME COURT CLERK




              IN THE SUPREME COURT OF THE STATE OF WASHINGTON


  In re the Personal Restraint of                     )
                                                      )     No. 89585-6
  NOEL EVAN CALDELLIS,                                )
                                                      )
                                  Petitioner.         )     En Bane
                                                      )
                                                      )     Filed __
                                                                   :._:::_:_1_:_•_ __
                                                      )
                                                      )

            GONZALEZ,             J. -Noel Caldellis shot into a crowd of people outside a party,

  killing one. He was charged with first degree murder "[u]nder circumstances

  manifesting an extreme indifference to hwnan life" under RCW 9A.32.030(l)(b).

  The jury was given a to-convict instruction modeled on the relevant pattern jury

  instruction, which itself was modeled on subsection (l)(b). After Caldellis's trial,

  the pattern jury committee amended the relevant pattern instruction to require an

  additional "element" that "the defendant knew of and disregarded the grave risk of

  death." Among other things, Caldellis contends his conviction should be set aside

  because the jury was not required to find this new "element" in his case. We hold

  that the instruction given in Caldellis's trial included the required elements of the
In re Pers. Restraint ofCaldellis, No. 89585-6

crime and was sufficient. Caldellis also asks for an evidentiary hearing to develop

the factual basis for some of his claims. We conclude he has not made the

requisite showing for such a hearing. Accordingly, we dismiss his personal

restraint petition as meritless.

                                        BACKGROUND
       One fall night in September 2006, Caldellis and a group of friends were

driving to a house party in Seattle where they expected to watch two people fight. 1

On their way to the party, the group stopped at a store to buy food and get

directions. Two members of the group got into a heated argument. One pulled a

handgun. Caldellis stepped in and took the gun away.

       Eventually, the group arrived at the party. As Caldellis and his friends

approached the house, approximately 30 people flooded outside, yelling profanities

and racial slurs. A brawl immediately broke out. One witness testified that he saw

someone run up to Caldellis as if to attack him and that Caldellis dodged and

punched the attacker. Caldellis then pulled out a gun and fired it twice in the air.

He waved the gun briefly before firing at least two horizontal-and ultimately

fatal-shots into a group of people. One witness testified she saw "somebody fall"

to the ground "in the driveway." 11 Verbatim Report of Proceedings (VRP) (Nov.

26, 2007) at 1605,1604.


1
 A full statement of the facts ofthe underlying crimes is available in the Court of Appeals'
unpublished opinion, State v. Calde/lis, noted at 151 Wash. App. 1012,2009 WL 2151856.
                                                 2
In re Pers. Restraint ofCaldellis, No. 89585-6

      After shots were fired, Caldellis and others left in their cars. In the

"pandemonium" of the fighting and gunshots, many of the partygoers rushed back

into the house and called the police. 8 VRP (Nov. 19, 2007) at 1118. Snohomish

County police officers arrived at the house and found Jay Clements lying on the

ground with two gunshot wounds.

      The next day, police arrested Caldellis. After being advised of his

constitutional rights, Caldellis admitted that he had taken the gun with him to the

party and brandished it when the fighting began. He also told the police that he

fired two shots into the air and then fired into a crowd of people. Caldellis recalled

that he did such a "stupid" thing because he was drunk. 12 VRP (Nov. 27, 2007)

at 2013.

      The State charged Caldellis with murder and assault. At trial, Caldellis

argued self-defense as to the assault charges and that he fired the fatal shot

accidentally because he feared he would be attacked. Caldellis was convicted of

first degree murder based on extreme indifference to life and two counts of second

degree assault. The jury found he committed these crimes while armed with a

firearm. Caldellis appealed, and in an unpublished decision, the Court of Appeals

affirmed his murder conviction and reversed the assault convictions for reasons

that are not before us. State v. Cal dell is, noted at 151 Wash. App. 1012, 2009 WL
2151856.


                                           3
In re Pers. Restraint ofCaldellis, No. 89585-6

       In 2011, Caldellis filed a timely personal restraint petition (PRP) challenging

his first degree murder conviction. Caldellis argues that the prosecutor committed

misconduct and violated due process of law by stating the law permits conviction

on less proof than legally required and improperly commented on Caldellis's right

not to testify. He also contends his trial counsel provided ineffective assistance for

failing to propose an instruction containing all elements of murder by extreme

indifference, propose a self-defense instruction for that charge, notice jury

members and the judge sleeping and move for a mistrial, and object to and move

for a mistrial based on the prosecutor's remarks. Finally, he contends his murder

conviction should be reversed or he should be given a reference hearing based on

his claim that the judge and jurors slept during his trial. 2




2
  The State moved that this court require Caldellis to designate his issues for review, noting that
no statement of issues was presented in his motion for discretionary review. We granted the
State's motion. Caldellis submitted a supplemental brief addressing many, but not all, ofthe
issues raised in his motion for discretionary review. In his original PRP, Caldellis argued that his
public trial rights were violated when the judge allowed a confidential jury questionnaire to be
used injury selection without first making the State v. Bone-Club, 128 Wn.2d 254,259, 906 P.2d
325 (1995), inquiry and that his attorney was ineffective for failing to prevent him from waiving
that right. Caldellis does not specifically designate the public trial issues in his supplemental
briet: although they were raised in his motion for discretionary review. Caldellis also argues that
his trial counsel was ineffective for failing to object to the allegedly sleeping judge and jurors
and moving for a mistrial. Caldellis' s PRP alleges that the to-convict instruction was defective
because it failed to inform the jury that Caldellis had to have acted with extreme indifference to
human life in general, not only to the victim's life. He further contends the prosecutor misstated
the law by implying Caldellis need only manifest indifference to the victim. But because
Caldellis does not specifically designate these issues for review, they are not properly before this
comt and we decline to reach them.
                                                 4
In re Pers. Restraint of Caldellis, No. 89585-6

      In 2013, the acting chief judge of the Court of Appeals dismissed the

petition in a 17 -page ruling. The order did not explicitly state that Caldellis' s

petition was frivolous, but under the Rules of Appellate Procedure, only frivolous

PRPs are dismissed by order of a single judge. Order of Dismissal, In re Pers.

Restraint ofCaldellis, No. 67090-5-1 (Wash. Ct. App. Oct. 25, 2013) (appended to

Mot. for Discr. Review, In re Pers. Restraint ofCaldellis, No. 89585-6 (Wash.

Nov. 25, 2013)) (citing RAP 16.11(b)); In re Pers. Restraint ofKhan, 184 Wash. 2d
679, 684, 363 P.3d 679 (2015). Caldellis moved for discretionary review, arguing

procedurally that his case should have been either referred to a panel of judges for

consideration on the merits or remanded to the Court of Appeals for an evidentiary

hearing. On the merits, Caldellis renewed the majority of his claims for relief. We

accepted review. In re Pers. Restraint ofCaldellis, _ Wn.2d _, 367 P.3d 1083

(2016).

                                       ANALYSIS
       1. RAP 16.11(b) AND NONFRIVOLOUS PETITIONS

       The acting chief judge dismissed Caldellis's petition under RAP 16.11 (b).

Under this rule, the chief judge or acting chief judge of the Court of Appeals may

dismiss a PRP if it is "frivolous." If the PRP is not frivolous and can be decided on

the record, the chief judge "will" refer the petition to a panel of judges for

consideration on the merits. RAP 16.11 (b). In Khan, we held that "a personal

restraint petition is frivolous where it fails to present an arguable basis for
                                             5
In re Pers. Restraint of Caldellis, No. 89585-6

collateral relief either in law or in fact, given the constraints of the personal

restraint petition vehicle." 184 Wash. 2d at 686-87 (citing Neitzke v. Williams, 490
U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)). A petition that raises

issues grounded on an arguable basis for relief and is not procedurally barred is not

frivolous under RAP 16.11(b). ld. at 687. Caldellis's PRP was not referred to a

panel under RAP 16.11 (b), thus we infer the chief judge found it to be frivolous.

As will be discussed below, Caldellis's jury instruction and prosecutorial

misconduct claims presented arguable bases for relief and were not procedurally

barred. Therefore, it was error to dismiss his PRP as frivolous under RAP 16.11 (b)

instead of referring it to a panel of judges for determination on the merits.

However, this error is not grounds for relief on the underlying PRP or grounds for

a do-over at the Court of Appeals. As with Khan, we elect to reach the merits

ourselves. See id. (citing RAP 13.5A(a)(l); RAP 13.4(b)).

       2. JURY INSTRUCTIONS AND INEFFECTNE ASSISTANCE OF COUNSEL

       Caldellis contends that he was denied due process because the to-convict

instruction omitted an allegedly essential knowledge element, that he "knew of and

disregarded" the grave risk of death. Mot. for Discr. Review at 3-9. Caldellis also

argues his trial and appellate counsel were ineffective in failing to propose a

"correct" instruction and for failing to raise the issue on direct review. ld. at 6.




                                            6
In re Pers. Restraint ofCaldellis, No. 89585-6

        Elements of a crime are the constituent parts of a crime, usually consisting

of conduct, knowledge, and causation. See State v. Fisher, 165 Wash. 2d 727, 754,

202 P.3d 937 (2009) (quoting BLACK'S LAW DICTIONARY 559 (8th ed. 2004)). "At

common law it was said that 'to constitute a crime against human laws, there must

be, first, a vitious will; and, secondly, an unlawful act consequent upon such

vitious will."' State v. Eaton, 168 Wash. 2d 476, 481, 229 P.3d 704 (2010) (quoting 5

WILLIAM BLACKSTONE, COMMENTARIES *21 ). A trial court must instruct the jury

on all essential elements of the charged crime. State v. Linehan, 147 Wash. 2d 638,

653-54, 56 P .3d 542 (2002). Failure to do so relieves the State of its burden of

proving every element of the crime beyond a reasonable doubt. Id. This is

reversible error unless the court is convinced, beyond a reasonable doubt, that the

error did not contribute to the verdict. State v. Brown, 147 Wash. 2d 330, 340-41, 58
P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827,

144 L. Ed. 2d 35 (1999)).

        The first degree murder by extreme indifference statute states in relevant

part:

        (1) A person is guilty of murder in the first degree when:

               (b) Under circumstances manifesting an extreme indifference to
        hwnan life, he or she engages in conduct which creates a grave risk of
        death to any person, and thereby causes the death of a person.

RCW 9A.32.030(1)(b).


                                            7
In re Pers. Restraint of Caldellis, No. 89585-6

      In Caldellis's case, the trial court gave the following instruction on murder

by extreme indifference:

            (l) That on or about the 3rd day of September, 2006, the defendant
      discharged a firearm;
            (2) That the conduct of the defendant created a grave risk of death to
      another person;
            (3) That the defendant engaged in that conduct under circumstances
      manifesting an extreme indifference to human life;
            (4) That Jay Daniel Clements died as a result of defendant's acts; and
            (5) That the acts occurred in the State of Washington.

Resp. to PRP, Ex. 2, at 7 (Instr. 4).

      This instruction was based on the then-current Washington pattern jury

instructions and tracks the statutory elements of murder by extreme indifference.

See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

CRIMINAL 26.06 (2d ed. 1994) (WPIC); RCW 9A.32.030(1)(b). In 2008, the

committee on pattern instructions changed the WPIC, adding the element that "the

defendant knew of and disregarded the grave risk of death." 11 WASHINGTON

PRACTICE: WASHINGTON PATfERN JURY INSTRUCTIONS: CRIMINAL 26.06, at 373

(3d ed. 2008).

       The revised instruction provides in relevant part:
   (1) That on or about (date), the defendant created a grave risk of death to
       another person;
   (2) That the defendant knew of and disregarded the grave risk of death;
   (3) That the defendant engaged in that conduct under circumstances manifesting
       an extreme indifference to human life; [and]
   (4) That (name of decedent) died as a result of defendant's acts.

!d. (emphasis added).
                                          8
In re Pers. Restraint ofCaldellis, No. 89585-6

      The committee explained that the new "requirement" reflected Division

Three's holding in State v. Barstad, 93 Wash. App. 553, 568, 970 P.2d 324 (1999).

11 WPIC 26.06, at 374 (3d ed. 2008). In Barstad the defendant was convicted of

first degree murder by extreme indifference for killing two people in a multicar

collision while driving intoxicated. 93 Wash. App. at 555-56. Barstad challenged a

definitional instruction given in his case that said in part that"' [a] person engages

in conduct manifesting an extreme indifference to human life when ... [that

person] knows of and disregards the grave risk of death to others."' !d. at 564-65

(quoting record). Barstad had proposed an instruction that would have said, "'A

person manifests an extreme indifference to human life when [that person] acts in a

manner calculated to put the lives of many persons in jeopardy, with full

consciousness of the probable consequences."' !d. at 565 (quoting record). The

Court of Appeals found that the trial court did not err in rejecting Barstad's

proposed instruction and that he was able to argue his theory of the case to the jury

under the instructions given. !d. at 565-66. The "knew of and disregarded" grave

risk of death to others instruction was not requested or given in Caldellis' s trial.

      Calde !lis argues his to-convict instruction conflicts with Barstad and by

omitting the "knew and disregarded" language, the instruction was constitutionally

defective.   In its order dismissing Caldellis's petition, the Court of Appeals

concluded, and the State echoes in its response brief, that the instructions in


                                            9
In re Pers. Restraint ofCaldellis, No. 89585-6

Caldellis's case accurately stated the knowledge requirement of extreme

indifference and characterized the 2008 revision as adding a "definitional

element." Order of Dismissal at 6; Resp. to PRP at 11-14.

       But Barstad simply does not hold that "murder by extreme indifference"

jury instructions are constitutionally deficient ifthey do not contain the "knew of

and disregarded" instruction. That question was not before the Barstad court, and

no subsequent opinions we have found have so held. Perhaps out of an excess of

caution, the pattern jury instruction committee added the Barstad language.

Nevertheless, it stretches credulity to call the 2008 revised language an additional

"element" to the crime of extreme indifference murder. 3 The State correctly notes

that post-Barstad, courts have held that the elements of first degree murder under

RCW 9A.32.030(l)(b) remain unchanged. State v. Yarbrough, 151 Wash. App. 66,

82, 210 P.3d 1029 (2009); State v. Asaeli, 150 Wash. App. 543, 580, 208 P.3d 1136

(2009).

       Indeed, the comment to WPIC 26.06 states that the revised instruction

includes not an additional "element," but rather "a requirement that the defendant

knew of and disregarded the grave risk of death." 11 WPIC 26.06, at 374 (3d ed.

2008) (emphasis added). Mere "[c]larification of the standard instruction does not




3 We are not asked to decide whether the addition of the "knew of and disregarded" language to
the revised WPIC is an improvement. We note in passing we are not sanguine that it is.
                                              10
In re Pers. Restraint ofCaldellis, No. 89585-6

amount to an indictment of earlier versions." State v. Holzknecht, 157 Wash. App.
754, 765, 238 P.3d 1233 (2010).

      We conclude that not including the "knew of and disregarded" language in

Caldellis's jury instructions was not error. The jury instructions appropriately

tracked RCW 9A.32.030(1)(b) and contained the required mens rea element-

"manifesting an extreme indifference to human life." Therefore, the instructions

were sufficient.

      Caldellis also argues that he is entitled to relief due to the "defective" jury

instructions described above because his trial counsel failed to object or propose a

legally correct instruction and because his appellate counsel was ineffective for

failing to raise the issue on direct appeal. To establish ineffective assistance,

Caldellis bears the burden of showing both ( 1) his defense counsel's performance

fell below an objective standard of reasonableness and, if so, (2) that counsel's

poor work prejudiced him. Khan, 184 Wash. 2d at 688 (citing State v. A.N.J., 168
Wash. 2d 91, 109, 225 P.3d 956 (2010)). Since the instruction that was given was

correct and since Caldellis fails to show why he could not argue his theory of the

case to the jury under it, these claims fail.




                                            11
In re Pers. Restraint of Caldellis, No. 89585-6

    3. FAILURE To REQUEST A SELF-DEFENSE INSTRUCTION

       At trial, Caldellis sought and received self-defense instructions for the two

assault charges. 4 He did not ask for a self-defense instruction for the murder

charge. Caldellis contends that his attorney incorrectly believed the claim of

accidental shooting precluded an instruction for self-defense. He argues that the

evidence at trial would have supported a self-defense instruction for the murder

charge, and that the failure to request such an instruction was deficient performance

and prejudicial. We disagree.

       Again, to establish ineffective assistance, Caldellis must show (1) his

defense counsel's performance fell below an objective standard of reasonableness

and, if so, (2) that counsel's poor work prejudiced him. Khan, 184 Wash. 2d at 688

(citing A.NJ, 168 Wash. 2d at 109). The threshold for the deficient performance

prong is high, given the deference afforded to decisions of defense counsel in the

course of representation. To prevail on an ineffective assistance claim, a defendant

alleging ineffective assistance must overcome "a strong presumption that counsel's

performance was reasonable." State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177

(2009). Accordingly, the defendant bears the burden of establishing deficient

performance. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).




4
  Both assault charges were reversed on appeal for failure to give the "no duty to retreat"
instruction. Caldellis, 2009 WL 2151856, at *7.
                                                12
In re Pers. Restraint ofCaldellis, No. 89585-6

"Reasonable conduct for an attorney includes the duty to research relevant law."

Kyllo, 166 Wash. 2d at 862 (citing Strickland v. Washington, 466 U.S. 668, 690-91,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

      "When counsel's conduct can be characterized as legitimate trial strategy or

tactics, performance is not deficient." Id. at 863; State v. Garrett, 124 Wash. 2d 504,

520, 881 P.2d 185 (1994) ("[T]his court will not find ineffective assistance of

counsel if 'the actions of counsel complained of go to the theory of the case or to

trial tactics."' (quoting State v. Renfro, 96 Wash. 2d 902, 909, 639 P.2d 737 (1982))).

A criminal defendant can rebut the presumption of reasonable performance by

demonstrating that "there is no conceivable legitimate tactic explaining counsel's

performance." State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004).

Not all defense counsel's strategies or tactics are immune from attack. "'The

relevant question is not whether counsel's choices were strategic, but whether they

were reasonable."' State v. Grier, 171 Wash. 2d 17, 34, 246 P.3d 1260 (2011)

(quoting Roe v. Flares-Ortega, 528 U.S. 470,481, 120 S. Ct. 1029, 145 L. Ed. 2d
985 (2000)).

      Prejudice is established when there is a reasonable probability that but for

counsel's errors, the result of the trial would have been different. In re Pers.

Restraint ofBrett, 142 Wash. 2d 868, 873, 16 P.3d 601 (2000). "A reasonable




                                          13
In re Pers. Restraint ofCaldellis, No. 89585-6

probability is a probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694.

      Caldellis relies exclusively on trial counsel's declaration that he

characterizes as a mistake. He argues his attorney "candidly admit[ ted]" that there

was "no tactical reason" not to seek a self-defense instruction as to the murder

count. PRP at 33. But defense counsel's declaration does not state that no tactical

reason existed for failing to seek a self-defense instruction. Instead, it states that

trial counsel believed there was "no tactical reason ... not to propose an

instruction making it clear that the defendant must endanger human lives, as

opposed to a human life." PRP, App. B para. 12 (McFarland Decl.). The

declaration states that the only instruction "that fit the evidence and the defense

theory of the case were instructions related to excusable homicide." !d. para. 10.

       At trial, the defense argued primarily that the State failed to prove

Caldellis's shots caused Clements's death. The defense also argued that if the

shots did cause Clements's death, it was excusable homicide because Caldellis did

not intend to shoot him and "the shots were fired in lawful defense of others." !d.

para. 9. The evidence offered at trial, if believed by the jury, supported Caldellis' s

excusable homicide theory: Caldellis admitted that he shot into the crowd when it

did not disperse; he was not aiming at anyone specifically; witnesses testified that

he shot into the air first, then horizontally toward the group. Trial counsel


                                           14
In re Pers. Restraint ofCaldellis, No. 89585-6

emphasized these points in closing arguments, and excusable homicide instructions

were given to the jury.

       The decision not to request a self-defense instruction in light ofthe defense's

theory of excusable homicide was a legitimate trial strategy. See Kyllo, 166 Wash. 2d

at 863. "While a defendant may take actions in self-defense that lead to an

accidental homicide," under controlling law, one cannot "kill by accident and

claim that the homicide was justifiable." State v. Brightman, 155 Wash. 2d 506, 525,

122 P.3d 150 (2005). Where a homicide is committed by accident, excusable

homicide is the proper defense. Id. 5 Trial counsel successfully and reasonably

advocated for an excusable homicide instruction and ably argued the theory to the

jury. He did not render deficient performance.

    4. PROSECUTOR'S COMMENTS ON CALDELLIS'S RIGHT NOT To TESTIFY AND
       INEFFECTIVE ASSISTANCE OF COUNSEL

       Caldellis contends that the prosecutor improperly told the jury to infer guilt

based on Caldellis's decision not to testify. He also contends that his trial and

appellate counsel were ineffective for failing to object to the comments or raise

them on appeal. We find that these contentions are based on a strained


5
  We recognize that, theoretically, a situation may occur where the lawful use of force results in
an accidental death, perhaps allowing a self-defense argument for accidental killing. Brightman,
155 Wash. 2d at 525. Caldellis argues that he fired his gm1 because he feared bodily injury or
death, he was intoxicated, and he was reacting to the chaotic melee occurring around him. He
further asserts that because he did not shoot to kill, he was not intentionally using lethal force.
But Caldellis admitted to firing shots into a group of people. That is lethal force. Caldellis has
not shown that his use of force was lawful.
                                                15
In re Pers. Restraint ofCaldellis, No. 89585-6

characterization of the State's argument. The prosecutor's comments were a fair

response to defense counsel's closing arguments.

      Those charged with a crime have a constitutional right not to testify against

themselves. U.S. CONST. amend. V; WASH. CONST. art. I, sec. 9. It is improper for

the State to make closing arguments inferring guilt from a defendant's silence.

State v. French, 101 Wn. App. 380,386,4 P.3d 857 (2000) (citing Griffin v.

California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)); State v. Easter,

130 Wash. 2d 228, 236, 922 P.2d 1285 (1996) (citing State v. Foster, 91 Wash. 2d 466,

473, 589 P.2d 789 (1979)). The State is, however, entitled to make a fair response

to the defense attorney's arguments. State v. Russell, 125 Wash. 2d 24, 87, 882 P.2d
747 (1994). The claimed misconduct is reviewed in light of all the arguments,

issues, evidence, and jury instructions. State v. Davis, 141 Wash. 2d 798, 872, 10
P.3d 977 (2000) (citing State v. Gentry, 125 Wash. 2d 570, 640, 888 P.2d 1105

(1995)). If counsel does not object at trial, the claim is waived unless conduct is

"so flagrant and ill-intentioned that it causes an enduring and resulting prejudice

that could not have been neutralized by a curative instruction to the jury." State v.

Brown, 132 Wn.2d 529,561,940 P.2d 546 (1997) (citing Russell, 125 Wash. 2d at

86). To establish ineffective assistance of appellate counsel, Caldellis must show

any legal issue his counsel failed to raise was meritorious and demonstrate

prejudice.


                                          16
In re Pers. Restraint ofCaldellis, No. 89585-6

      During closing arguments, defense counsel suggested many reasons why

Caldellis might not testify in his trial. Defense counsel mentioned Caldellis's age

(only 18 at the time of the trial), immaturity, inability to express himself,

nervousness and fear of testifying, and perhaps avoiding distressing cross-

examination. In response, the prosecutor argued that defense counsel "forgot a

big" reason why Caldellis did not testify, stating that he could "think of one more."

20 VRP (Dec. 10, 2007) at 3275-76. The defense objected but withdrew the

objection almost immediately.

      Caldellis contends that the "big" reason suggested by the prosecutor that he

did not testify was because he was guilty. The State argues that the prosecutor

meant that Caldellis did not testify because he had nothing to say that would help

him. We find the defense's argument invited the fair response given.

       Similarly, as this was not error, neither trial nor appellate cmmsel was

deficient for failing to object to the prosecutor's comments or assign error on

appeal. The jury in Caldellis's case received an instruction explaining that "[t]he

defendant is not compelled to testify, and the fact the defendant has not testified

cannot be used to infer guilt or prejudice him in any way." Resp. to PRP, Ex. 2, at

28 (Instr. 25). The jury was also instructed that they "must disregard any remark,

statement, or argument that is not supported by the evidence or the law in [the]

instructions." Id. at 3 (Instr. 1). Caldellis argues that withdrawing trial counsel's


                                           17
In re Pers. Restraint ofCaldellis, No. 89585-6

objection to the prosecutor's comments "could have only signaled that there was

nothing improper about this argument." PRP at 50. He also asserts that his

appellate counsel provided ineffective assistance by failing to assign error on

appeal. But Caldellis does not show how the result of his trial would have been

different had defense counsel maintained his objection, especially in light ofthe

curative instructions that were given to the jury. Caldellis fails to demonstrate

prejudice. This claim is meritless.

   5. STRUCTURAL ERROR AND ALLEGEDLY SLEEPING TRIAL JUDGE AND JURORS

      Lastly, Caldellis claims that structural error occurred at trial due to allegedly

sleeping judge and jurors. Alternatively, he argues he should be given an

evidentiary hearing to develop the factual record regarding those claims. In

support, Caldellis provides affidavits from his parents and aunt, and a declaration

from his trial attorney that suggest the judge and jurors fell asleep. The trial judge,

parents of the victim, prosecutor, and lead detective assigned to Caldellis's case

provided affidavits denying that the judge or any jurors slept at the trial.

      First, Caldellis fails to show that this was structural error, mandating reversal

without any showing of prejudice. He simply asserts that it is. But very few errors

are structural, and very few errors are presumed prejudicial. Khan, 184 Wash. 2d at

691 (citing Washington v. Recuenco, 548 U.S. 212, 218, 126 S. Ct. 2546, 165 L.

Ed. 2d 466 (2006); United States v. Cronic, 466 U.S. 648, 666, 104 S. Ct. 2039, 80


                                           18
In re Pers. Restraint ofCaldellis, No. 89585-6

L. Ed. 2d 657 (1984)). 6 Even the failure to instruct the jury on an element of the

crime charged or basing a sentence on a fact not charged and proved to the trier of

fact have not been found to be structural error by the United States Supreme Court.

Recuenco, 548 U.S. at 220. Caldellis claims that because the judge slept through

portions of the trial, he was functionally absent. But taking all reasonable

inferences from the declarations he provides, Caldellis failed to show that the trial

judge slept through any critical testimony or parts of the trial. Nor does he argue

that the trial judge failed to make a ruling or made a ruling that was impacted by

any sleeping during trial. 7 Caldellis's claim that the trial judge was effectively

absent isconclusory, which is insufficient to merit review in a personal restraint

petition. In re Pers. Restraint ofRice, 118 Wash. 2d 876, 886, 828 P .2d 1086 (1992).




6
  We caution, however, that having a judge or juror sleep during a trial could be structural
error. Several courts have fmmd ineffective assistance of counsel when defense cotmsel has
slept through substantial or critical portions of a trial. Burdine v. Johnson, 262 F.3d 336, 348
(5th Cir. 2001) (m1conscious counsel functionally absent throughout critical stages of trial
warranted presumption of prejudice); Javor v. United States, 724 F.2d 831, 833 (9th Cir. 1984)
(functionally treating sleeping defense counsel as structural error). A sleeping defense attorney,
which implicates the right to counsel, was not at issue in this case, and the analysis of a sleeping
judge or juror maybe different. Here, however, none ofCaldellis's declarations establish that the
judge or jurors slept through a substantial portion of his trial.

7
 Division Two of the Court of Appeals recently rejected an identical argument in the
tmpublished portion of In re Pers. Restraint ofSchreiber, 189 Wn. App. 110,357 P.3d 668
(2015). Schreiber, like Caldellis, argued that the judge slept during trial and was thus
functionally absent. Schreiber, No. 40553-9-II, slip op. (unpublished portion) at 13-14 (Wash.
Ct. App. July 28, 2015), http://www.courts.wa.gov/opinions/. The Court of Appeals declined to
adopt Schreiber's invitation to apply structural error to this claim. Id.
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In re Pers. Restraint ofCaldellis, No. 89585-6

      Second, Caldellis claims that multiple jurors slept during trial. A sleeping

juror may prejudice the defendant's due process rights and right to an impartial

jury. State v. Hughes, 106 Wash. 2d 176, 204, 721 P.2d 902 (1986); see also Tanner

v. United States, 483 U.S. 107, 126-27, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987).

Caldellis does not state how long the jurors slept or what specific testimony they

missed by sleeping. He has not shown specific evidence of prejudice due to the

drowsiness of any juror. See Hughes, 106 Wash. 2d at 204.

      Caldellis also argues that he has presented sufficient evidence to justify an

evidentiary hearing regarding the alleged sleeping jurors and trial judge. A hearing

is not warranted based on the evidence presented. A petitioner must state with

particularity facts that, if proved, would entitle the petitioner to relief. Rice, 118
Wash. 2d at 886. "Bald assertions and conclusory allegations" are not sufficient. Id.

If the evidence is based on knowledge in the possession of others, the petitioner

must present their affidavits with admissible statements or other corroborative

evidence. I d. And only by showing that the petitioner has admissible evidence

supporting the facts stated in the petition may the petitioner obtain a reference

hearing to resolve factual disputes. Id.; see also In re Pers. Restraint of Yates, 177
Wash. 2d 1, 18,296 P.3d 872 (2013).

       Though Caldellis has shown a dispute of fact as to a sleeping judge and

jurors, he fails to show a dispute of material fact that, if proved, would entitle him


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In re Pers. Restraint ofCaldellis, No. 89585-6

to relief. He has not demonstrated how the judge's alleged sleeping caused

specific error or what specific testimony was missed. Without specific details of

error, Caldellis's evidence is conclusory and insufficient for an evidentiary

hearing. Rice, 118 Wash. 2d at 886; Yates, 177 Wash. 2d at 18.

                                     CONCLUSION

      Caldellis's PRP raised numerous issues, both procedural and substantive.

His claims regarding defective jury instruction and improper prosecutor comments

presented arguable bases for relief; and the petition was not procedurally barred.

Thus, it was error to dismiss Caldellis's petition as frivolous tmder RAP 16.11(b).

But since Caldellis's claims are meritless, there is no relief we can give.

Additionally, Caldellis fails to present sufficient facts to warrant a reference

hearing on whether the judge or jurors slept during his trial. We dismiss

Caldellis's PRP.




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In re Pers. Restraint ofCaldellis, No. 89585-6




WE CONCUR:




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