State v. Weber , 159 Wash. 2d 252 ( 2006 )

¶1 — A jury convicted petitioner Charles Walter Weber of first degree assault and second degree attempted murder stemming from the same shooting incident. Weber argues that the inclusion of his prior juvenile adjudications in his offender score during sentencing violates his due process rights and his right to a jury trial. He also argues that the Court of Appeals erred by vacating his second degree attempted murder conviction rather than his first degree assault conviction as the lesser offense for double jeopardy purposes. Finally, he argues that the prosecuting attorney committed three instances of misconduct requiring reversal of his convictions.

Fairhurst, J.

¶2 We hold that prior juvenile adjudications fall under the “prior conviction” exception in Apprendi v. New Jersey, 530 U.S. 466, 490,120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and are not facts that a jury must find under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We also hold that, in this case, the lesser offense for double jeopardy purposes is the offense that carries the lesser sentence, which was Weber’s attempted murder conviction. Finally, we hold that the prosecuting attorney did not commit misconduct that constitutes reversible error. We affirm the Court of Appeals.

I. FACTUAL AND PROCEDURAL HISTORY

¶3 In the early morning of March 18, 2003, Weber was at a friend’s apartment with several people drinking beer. Weber and his friend, Nick Renion, started to argue with Gabriel Manzo-Vasquez (Manzo). During the argument, Weber pulled a gun on Manzo. Manzo escaped the apartment by jumping out of a bedroom window and ran to his vehicle. Weber followed Manzo outside and fired multiple shots at Manzo’s vehicle. One of the bullets grazed Manzo’s side, causing a slight injury.

¶4 When the police investigated the incident, Manzo told them that a man he knew as “Güero Loco” shot him. Verbatim Report of Proceedings (VRP) (June 17, 2003) at 39; VRP (June 19, 2003) at 25-26. “Güero Loco” translates as “crazy white guy” in English. VRP (June 17, 2003) at 41. Manzo provided the police with a physical description of Weber, including a description of the distinctive tattoo of “206” on the back of his neck. Id. at 39. Manzo identified Weber in a photo montage with 80 percent certainty and stated that he could be only 80 percent certain because he could not see the blacked out tattoo. At trial, Manzo identified Weber as his shooter and confirmed that he had the correct tattoo.

¶5 In a pretrial hearing, the trial court excluded testimony by Detective George Alvarez that he had previously met Weber specifically while investigating a crime involving Weber’s brother but did not exclude evidence that the detective had previously met Weber. The trial court also excluded any evidence of gang membership but did not exclude evidence of “any marks that may have been observed by any witness or testimony of any marks that may currently be present on Mr. Webber [sic].” VRP (June 11, 2003) at 10. The State concedes that the prosecuting attorney committed misconduct by eliciting evidence covered by the motions to exclude and by making an improper argument in rebuttal closing argument but argues that the misconduct did not affect the outcome of Weber’s trial. Br. of Resp’t at 11, 15, 17.

¶6 The prosecuting attorney charged Weber with first degree attempted murder with a firearm, first degree assault with a firearm, first degree unlawful possession of a firearm, and possession of cocaine with intent to manufacture or deliver. Weber pleaded guilty to possession of cocaine with intent to deliver. Ajury acquitted Weber of first degree attempted murder and instead found him guilty of second degree attempted murder with a firearm, as well as first degree assault with a firearm and first degree unlawful possession of a firearm.

¶7 At sentencing, the trial court declined to include Weber’s prior juvenile adjudication for first degree attempted robbery in his offender score because it had “washed out” under a previous version of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. VRP (Aug. 8, 2003) at 15; Clerk’s Papers (CP) at 171. The trial court also noted that Weber’s other juvenile adjudication, for taking a motor vehicle without permission, was only “half a point” and did not factor into his offender score. VRP (Aug. 8, 2003) at 16. The trial court found that Weber’s convictions for attempted murder and assault constituted double jeopardy and vacated the assault conviction as the lesser offense.

¶8 Weber appealed his convictions to the Court of Appeals, arguing that three instances of prosecutorial misconduct constituted reversible error. Br. of Appellant at 8-14. The State filed a cross appeal challenging the trial court’s decision to vacate Weber’s assault conviction as the lesser offense and the trial court’s finding that Weber’s juvenile attempted robbery adjudication “washed out.” Br. of Resp’t at 43-51. Weber replied that the inclusion of his prior juvenile adjudications in his offender score would violate his due process rights under the Fifth and Fourteenth Amendments and his right to a jury trial under the Sixth Amendment. Reply Br. of Appellant at 2-12.

¶9 In a partially published opinion, the Court of Appeals held that Weber’s prior juvenile adjudication did not wash out and should have been included in his offender score. State v. Weber, No. 53911-1-1, slip op. (unpublished portion) at 25 (Wash. Ct. App. June 6, 2005). In so holding, the court concluded that juvenile adjudications fall under the prior conviction exception in Apprendi and that Weber’s juvenile adjudications were “properly considered to calculate his offender score.” State v. Weber, 127 Wn. App. 879, 892-93, ¶ 32, 112 P.3d 1287 (2005). The court reversed the trial court and vacated the attempted murder conviction as the lesser offense for double jeopardy purposes and reinstated Weber’s assault conviction. Id. at 882, ¶ 3. Finally, the court held that although the prosecuting attorney committed misconduct, that misconduct did not constitute reversible error. Weber, No. 52911-1-I at 15-22. We granted Weber’s subsequent petition for review on all three issues. State v. Weber, 156 Wn.2d 1010, 132 P.3d 147 (2006).

II. ISSUES

A. Whether under Apprendi’s prior conviction exception a trial court may include prior juvenile adjudications in an offender score calculation.

B. Whether second degree attempted murder or first degree assault is the “lesser” offense for double jeopardy purposes.

C. Whether prosecutorial misconduct caused Weber prejudice requiring reversal of his convictions.

III. ANALYSIS

A. Whether under Apprendi’s prior conviction exception a trial court may include prior juvenile adjudications in an offender score calculation

¶10 Weber argues that the trial court’s inclusion of his prior juvenile adjudications in his offender score violates his due process rights under the Fifth and Fourteenth Amendments,¹ and his jury trial rights under the Sixth Amendment² to the United States Constitution. In Appren-di, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added). In Blakely, the Court clarified that the relevant “statutory maximum” for Apprendi purposes “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303. In other words, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 303-04.

f 11 Inclusion of Weber’s juvenile adjudications in his offender score would undeniably increase his maximum sentence above the sentence supported by the jury’s verdict. However, under Apprendi, only facts “[o]ther than the fact of a prior conviction” that increase a defendant’s maximum sentence violate that defendant’s constitutional rights. 530 U.S. at 490. Thus, we must consider whether Weber’s juvenile adjudications qualify as “prior convictions” under Apprendi’s prior conviction exception.

¶12 The United States Supreme Court first carved out an exception for prior convictions in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). The Court held that recidivism is not a fact that a jury must find in order for a defendant’s prior conviction to be used to enhance his or her sentence.

[T]he sentencing factor at issue here — recidivism—is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. . . . [T]o hold that the Constitution requires that recidivism be deemed an “element” of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as “go[ing] to the punishment only.”

Id. at 243-44 (fourth alteration in original) (citations omitted) (quoting Graham v. West Virginia, 224 U.S. 616, 629, 32 S. Ct. 583, 56 L. Ed. 917 (1912)). In Apprendi, the Court again recognized an exception for prior convictions based on Almendarez-Torres and observed that:

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

530 U.S. at 488. Thus, the Apprendi Court reasoned that when prior convictions are used to increase a defendant’s punishment above the statutory maximum sentence, a jury need not find those facts because they already carry sufficient procedural safeguards.

¶13 As in Almendarez-Torres, Weber does not challenge the “fact” of his juvenile adjudication, but he does argue that a juvenile adjudication does not carry the same procedural safeguards as a prior conviction.³ Weber argues that the Supreme Court’s decision in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), clarifies that the prior conviction exemption in Almendarez-Torres was predicated on the right to a jury trial. Because juvenile adjudications do not carry the right to a jury trial, Weber argues that they do not fall under the prior conviction exception. The dissent agrees that Jones is the key to understanding Apprendi’s, prior conviction exception because Jones explains why “it was permissible, in Almendarez-Torres v. United States, to use a prior conviction as a sentencing factor to increase a statutorily mandated maximum punishment.” Dissent at 281 (citation omitted).

¶14 The Jones Court, after noting the “emphasis on the distinctive significance of recidivism” in Almendarez-Torres, stated:

One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense, ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.

526 U.S. at 249 (emphasis added). Jones thus advances the guaranties of “fair notice, reasonable doubt, and jury trial” as one possible, not the exclusive, basis for the distinctive constitutional treatment of recidivism. Id. The dissent concludes that to fall within Apprendi’s prior conviction exception, “a juvenile adjudication must have had the same constitutional safeguards in place as in Jones, in particular the right to trial by jury and proof beyond a reasonable doubt.” Dissent at 282 (emphasis added). However, Jones did not authoritatively pronounce that “fair notice, reasonable doubt, and jury trial” represented the minimal procedural safeguards sufficient for the prior conviction exception announced in Apprendi the following year.

¶15 The United States Court of Appeals for the Ninth Circuit has held that juvenile adjudications may not be used to enhance a sentence without violating a defendant’s constitutional rights.

Thus, as we read Jones and Apprendi, the “prior conviction” exception to Apprendi’s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi’s “prior conviction” exception.

United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001). Other jurisdictions have also held that juvenile adjudications do not fall within Apprendi’s prior conviction exception. See, e.g., State v. Brown, 03-2788 (La. 7/6/04), 879 So. 2d 1276, 1289 (holding that juvenile adjudications are not convictions for the purposes of the prior conviction exception), cert. denied, 543 U.S. 1177 (2005); State v. Harris, 339 Or. 157, 172-75, 118 P.3d 236 (2005) (holding that juvenile adjudications are not convictions under Oregon law and may not be used as sentence enhancement factors unless admitted by the defendant or proved to a jury).

¶16 However, the majority of jurisdictions that have considered this issue have reached the opposite conclusion and held that juvenile adjudications fall under the prior conviction exception. See, e.g., United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003) (juvenile proceedings provide sufficient procedural safeguards to qualify under the prior conviction exception), cert. denied, 540 U.S. 1150 (2004); United States v. Smalley, 294 F.3d 1030, 1032-33 (8th Cir. 2002) (juvenile adjudications are prior convictions for Apprendi purposes); United States v. Burge, 407 F.3d 1183, 1190 (11th Cir.) (holding, based on Jones and Smalley, that juvenile adjudications provide sufficient procedural safeguards to qualify as prior conviction), cert. denied, 546 U.S. 981 (2005); People v. Superior Court, 113 Cal. App. 4th 817, 834, 7 Cal. Rptr. 3d 74 (2003) (juvenile adjudications may be used as a “strike” for the purposes of a “three strikes” law), cert. denied sub nom. Andrades v. California, 543 U.S. 884 (2004); Nichols v. State, 910 So. 2d 863, 864-65 (Fla. Dist. Ct. App. 2005) (juvenile adjudications may be included in a defendant’s “scoresheet” unless he or she can prove they are “constitutionally infirm”); State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002) (juvenile adjudications “are included within the historical cloak of recidivism”); Ryle v. State, 842 N.E.2d 320 (Ind. 2005) (juvenile adjudications may be used to enhance a sentence), cert. denied, 127 S. Ct. 90 (2006).

¶17 Weber argues that our decision in State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), dictates that this court recognize that the prior conviction exception is based only on convictions found by a jury. In Hughes, we observed that the reason for the prior conviction exception “likely is because of the objective nature and the inherent protections associated with the existence of prior convictions — the defendant already had the facts regarding his prior conviction found by a jury beyond a reasonable doubt.” Id. at 137 n.5. However, as in Apprendi, the Hughes court did not specifically consider whether the protections associated with juvenile adjudications would also qualify them under the prior conviction exception.

f 18 As the United States Court of Appeals for the Eighth Circuit noted in Smalley, Apprendi recognized “that prior convictions are excluded from the general rule because of the ‘certainty that procedural safeguards’ ” afford them. Smalley, 294 F.3d at 1032 (quoting Apprendi, 530 U.S. at 488). However, the Apprendi Court did not specifically identify a jury trial as being a required procedural safeguard. As the Eighth Circuit observed:

[W]hile the Court [in Apprendi] established what constitutes sufficient procedural safeguards (a right to jury trial and proof beyond a reasonable doubt), and what does not (judge-made

findings under a lesser standard of proof), the Court did not take a position on possibilities that lie in between these two poles.

Id. As a result, the Smalley court concluded that:

[T]he question of whether juvenile adjudications should be exempt from Apprendi’s general rule should not turn on the narrow parsing of words, but on an examination of whether juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption. We believe that they are.

Id. at 1032-33.

¶19 The State argues that juvenile adjudications carry sufficient procedural safeguards to qualify them as prior convictions under the Apprendi exception. Washington courts have a long history of considering juvenile adjudications in sentencing hearings. In State v. Dainard, 85 Wn.2d 624, 627-28, 537 P.2d 760 (1975), this court held that a trial court may consider an adult defendant’s juvenile record in a sentencing hearing. The legislature has dictated that juvenile adjudications may be included in an adult offender’s criminal history and, in some circumstances, that a court may score juvenile adjudications as equivalent to adult offenses. RCW 9.94A.030(14), .525(8), (9), (16). Finally, the Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW, specifically mandates numerous safeguards for juvenile adjudications, such as the right to notice, counsel, discovery, an opportunity to be heard, confrontation of witnesses, and an unbiased fact finder. RCW 13.40.140.⁴

¶20 Despite the evidence of the reliability of and the historical reliance on juvenile adjudications, Weber maintains that juvenile adjudications do not fall under the Apprendi exception because they are not convictions. Weber argues that the focus of the juvenile justice system “is on rehabilitation rather than assigning criminal responsibility and punishment.” Pet. for Review at 10 (citing In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966); McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971)). However, as Weber himself notes, “[s]ubsequent amendments to the JJA have altered the statute’s focus and imposed more traditional criminal punishment following an adjudication of guilt.” Suppl. Br. of Pet’r at 14 n.15. A 1997 amendment to the JJA provides, “ ‘[adjudication’ has the same meaning as ‘conviction’ in RCW 9.94A.030, and the terms must be construed identically and used interchangeably.” RCW 13.04.011(1).

¶21 While a goal of juvenile adjudication is rehabilitation, our State’s system anticipates that individuals who are not rehabilitated and who reoffend as adults may be punished in a manner that considers their preceding juvenile criminal behavior. In the absence of authoritative instruction from the United States Supreme Court that juvenile adjudications are not prior convictions, and in light of the aforementioned strong state indicators, we hold that juvenile adjudications are convictions for the purposes of Apprendi’s prior conviction exception. Therefore, we affirm the Court of Appeals determination that Weber’s due process and jury trial rights are not violated by including Weber’s juvenile adjudication in his offender score.⁵

B. Whether second degree attempted murder or first degree assault is the “lesser” offense for double jeopardy purposes \

¶2^ The United States Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Washington Constitution provides that no person shall “be twice put in jeopardy for the same offense.” Wash. Const, art. I, § 9. “The federal and state [double jeopardy] provisions afford the same protections and are ‘identical in thought, substance, and purpose.’ ” In re Pers. Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000) (quoting State v. Schoel, 54 Wn.2d 388, 391, 341 P.2d 481 (1959)). The prohibition against double jeopardy “ ‘protect[s] against multiple punishments for the same offense, as well as against a subsequent prosecution for the same offense after acquittal or conviction.’ ” State v. Graham, 153 Wn.2d 400, 404, 103 P.3d 1238 (2005) (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004)). Division One of the Court of Appeals has held that the proper remedy for multiple punishments for the same offense is to vacate the “lesser” offense. In re Pers. Restraint of Burchfield, 111 Wn. App. 892, 899, 46 P.3d 840 (2002).

123 In a pretrial hearing before the trial court, the State conceded that if the jury convicted Weber of both the attempted murder and the assault charges, the convictions would constitute double jeopardy because both convictions would punish Weber for the same offense. VRP (June 11, 2003) at 62. The State promised that if the jury convicted Weber on both charges, it would ask the court to vacate the lesser offense. Id. After the jury found Weber guilty of both second degree attempted murder and first degree assault, the trial court vacated the assault conviction because the attempted murder conviction carried the greater seriousness level and required greater intent. VRP (Aug. 8, 2003) at 24. The Court of Appeals reversed, vacating the second degree attempted murder conviction and reinstating the first degree assault conviction because the assault conviction carried the longer sentence. Weber, 127 Wn. App. at 882, ¶ 3.

f 24 Both Weber and the State agree that the remedy for double jeopardy is to vacate the conviction for the lesser offense, but they dispute which of Weber’s two convictions constitutes the lesser offense in this case. Under Washington law, assault is not a lesser included offense of attempted murder. State v. Harris, 121 Wn.2d 317, 321, 849 P.2d 1216 (1993). The State argues that when neither offense is a lesser included offense, the lesser offense for double jeopardy purposes is the offense that carries the lesser sentence. Suppl. Br. of Resp’t at 23-27. The standard sentence range for first degree assault is slightly higher than the standard sentence range for attempted second degree murder.⁶ Therefore, the State argues that second degree attempted murder is the lesser offense in this case.

¶25 Weber, on the other hand, asserts that the proper remedy for a double jeopardy violation is still “to vacate the conviction for the crime that forms part of the proof of the other unless the Legislature has expressly stated its intent that the crimes be punished separately or the constituent offense stand.” Suppl. Br. of Pet’r at 24 (citing Whalen v. United States, 445 U.S. 684, 692, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980); State v. Freeman, 153 Wn.2d 765, 775, 108 P.3d 753 (2005)). However, Whalen guides only the determination of whether to impose multiple punishments, not the determination of which conviction a court should vacate once the court has determined that multiple punishments are improper, as is the case here. 445 U.S. at 692.

¶26 Moreover, contrary to Weber’s argument, Freeman supports the proposition that the length of sentence is an important consideration in determining which conviction to vacate. In Freeman, this court considered whether the legislature authorized separate punishments for assault and robbery. 153 Wn.2d at 771. In so considering, the court reasoned that the legislature would not have intended the double jeopardy doctrine to operate in a way that would allow the defendant to receive the lesser sentence.

As the legislature is well aware, when a court vacates a conviction on double jeopardy grounds, it usually vacates the conviction for the crime that forms part of the proof of the other. This is because the greater offense “typically carries a penalty that incorporates punishment for the lesser included offense.” Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1, 28 (1995). But when a first degree assault raises a robbery to first degree robbery, the case is atypical. The standard sentence for first degree assault (in this case, 111 months) is considerably longer than the standard sentence for first degree robbery (in this case, 41 months). Given the fact of the current sentencing schema, it is unlikely the legislature intended this result. While this is not necessarily dispositive, it does weigh upon our analysis. Cf. Burchfield, 111 Wn. App. at 900 (considering the seriousness level assigned by the legislature when determining how the legislature intended two related crimes to be treated).

Id. at 775-76 (citations omitted).

¶27 In Burchfield, Division One of the Court of Appeals similarly focused on length of sentence, in addition to seriousness level and degree of felony, in determining which offense to vacate as the lesser offense. 111 Wn. App. at 900. The court rejected Burchfield’s argument that assault was the lesser offense because it results only in injury, whereas manslaughter results in death. Id. at 899. “If we were to accept Burchfield’s argument, resentencing for the ‘more serious’ offense would require a reduction of his sentence from 135 months, the standard range for first degree assault with a weapon enhancement, to 53 months, the standard range for his first degree manslaughter conviction.” Id. at 900. However, Burchfield does not present the same situation as this case because in Burchfield, other factors, such as seriousness level and class of felony, also favored vacating manslaughter as the lesser offense.

¶28 Because second degree attempted murder and first degree assault are both class A felonies, Weber argues that the lesser offense should consist of the offense that carries the lesser seriousness level and intent requirement. Suppl. Br. of Pet’r at 25-27. However, as the State notes, “the seriousness level is only another, less direct way of examining which crime involves greater punishment” because “[u]nder the SRA, the sole purpose of a crime’s seriousness level is to calculate the standard range.” Suppl. Br. of Resp’t at 26 (citing RCW 9.94A.510, .520). Moreover, the sentencing guidelines do not provide a seriousness level for attempted offenses, making this comparison impossible.⁷ Additionally, as the State notes, anticipatory crimes may necessarily require greater intent than a completed crime because they may include the element of “intent to commit the completed crime.” Suppl. Br. of Resp’t at 27.

¶29 Weber also points to State v. Valentine, 108 Wn. App. 24, 26-27, 29 P.3d 42 (2001), in which Division One of the Court of Appeals considered the remedy for double jeopardy involving the same convictions as in this case — second degree attempted murder and first degree assault. Pet. for Review at 17-18. The Valentine court summarily vacated the assault conviction without any analysis as to why it constituted the lesser offense. 108 Wn. App. at 29. However, Valentine is distinguishable from this case because the standard sentence range for the attempted murder conviction was higher than the standard range for the assault conviction in that case. Id.

f 30 Other jurisdictions have also held that the “lesser” crime for double jeopardy purposes is the conviction that carries the lesser punishment. See, e.g., People v. Driggers, 812 P.2d 702, 704 (Colo. Ct. App. 1991) (vacating crime with lesser punishment as remedy for double jeopardy); State v. Dillon, 2001 S.D. 97, 632 N.W.2d 37, 46-47 (2001) (vacating first degree rape conviction because it had “lower minimum penalty”); People v. Davis, 122 Mich. App. 597, 608-09, 333 N.W.2d 99 (1983) (holding that where lesser included offense provided for longer prison term, remedy for double jeopardy was vacation of greater offense); Landers v. State, 957 S.W.2d 558, 559-61 (Tex. Crim. App. 1997) (adopting the “most serious punishment” test in determining which conviction to retain).

¶31 Additionally, we note that if Weber had received concurrent sentences for his two convictions, he would be required to serve the longer of the two sentences. RCW 9.94A.589. Thus, retaining the offense that carries the greater sentence is the commonsense approach. The facts of this case dictate that we follow the straightforward approach of vacating the offense that carries the lesser sentence as the lesser offense. As a result, we hold that the lesser offense for double jeopardy purposes in this case is second degree attempted murder and affirm the Court of Appeals decision to vacate the second degree murder conviction and reinstate the first degree assault conviction.

C. Whether prosecutorial misconduct caused Weber prejudice requiring reversal of his convictions

¶32 To prove prosecutorial misconduct, the defendant bears the burden of proving that the prosecuting attorney’s conduct was both improper and prejudicial. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)). In order to prove the conduct was prejudicial, the defendant must prove there is a “ ‘substantial likelihood the misconduct affected the jury’s verdict.’ ” In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995)). Reversal is not required “ ‘unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.’ ” State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)).

¶33 If the defendant does not object to alleged misconduct at trial, the issue of prosecutorial misconduct is usually waived unless the misconduct was “so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997) (citing State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995)). Weber did not object to the first two alleged instances of misconduct. VRP (June 25, 2003) at 9-11. At the Court of Appeals, the State argued that Weber did not need to object to the prosecuting attorney’s improper questions because the court had already granted Weber’s motion in limine to exclude the admitted testimony, citing Fenimore v. Donald M. Drake Construction Co., 87 Wn.2d 85, 92, 549 P.2d 483 (1976), and State v. Smith, 189 Wash. 422, 65 P.2d 1075 (1937). Br. of Resp’t at 11 n.4. However, in this court, the State changes its position and argues that defense counsel failed to object, which it interprets as an indication that “any possible prejudice was minimal.” Suppl. Br. of Resp’t at 29. Because the State changed its position and its original argument reflects a misreading, or at least an overstatement, of the law, we resolve the issue of whether or not Weber’s failure to object should be held against him.

134 The State’s argument at the Court of Appeals reflects a misreading of Fenimore and a possible overstatement of the rule from Smith. Fenimore stands for the proposition that when a trial court properly denies a party’s motion to exclude evidence and instructs that party to object to the evidence when offered at trial, the party is not “relieved of the burden of objecting to evidence which he believed to be inadmissible.” 87 Wn.2d at 92. Following Fenimore, this court held that a party losing a motion to exclude evidence has a standing objection to the admission of that evidence at trial unless instructed by the court to continue to object. State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984) (citing State v. Koloske, 100 Wn.2d 889, 676 P.2d 456 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988)). These cases do not guide the determination of whether Weber was required to object because Weber’s motion to exclude evidence was granted, not denied.

¶35 In a 1937 case, this court held that a party’s failure to object to evidence already excluded by a pretrial motion was “not controlling” and did not prevent the defendant from receiving a new trial. Smith, 189 Wash, at 429. However, the Court of Appeals has concluded that the rule from Smith should apply only in limited circumstances because in that case the State demonstrated a “deliberate disregard” for the pretrial order and because an objection “was likely more damaging than almost any answer” in that case. State v. Sullivan, 69 Wn. App. 167, 173, 847 P.2d 953 (1993). The Court of Appeals reasoned that the complaining party must continue to object because even if the trial court has determined that certain evidence is inadmissible, the court may not have considered how prejudicial the evidence is or what the remedy for its admission should be. Id. at 172. Additionally, as the Court of Appeals noted, there is great potential for abuse when a party does not object because “[a] party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.” Id. In this case, the Court of Appeals considered Sullivan in determining whether Weber was required to object despite winning his pretrial motions. Weber, No. 52911-1-1 at 15-16.

¶36 We follow the commonsense approach of the Court of Appeals and consider Weber’s failure to object even though he received pretrial orders that allegedly excluded the admitted evidence. Without an objection, the trial court never had an opportunity to determine whether the evidence would even have been covered by the pretrial motions or, if it was covered by the motions, whether the court could have cured any potential prejudice through an instruction. Thus, even when the trial court has already excluded evidence through a pretrial order, the complaining party should object to the admission of the allegedly inadmissible evidence in order to preserve the issue for review, unless an unusual circumstance exists “that makes it impossible to avoid the prejudicial impact of evidence that had previously been ruled inadmissible.” Sullivan, 69 Wn. App. at 173. Examples of such unusual circumstances are when the other party’s questions were “in deliberate disregard of the trial court’s ruling” or “an objection by itself would be so damaging as to be immune from any admonition or curative instruction by the trial court.” Id.; see Smith, 189 Wash, at 428-29. Here, it is not clear that the State’s questions were in deliberate disregard of the court’s ruling or that an objection from Weber would have been so damaging that an instruction would not have cured any prejudice.

f 37 Weber maintains that the prosecuting attorney committed misconduct that constitutes reversible error in three ways. First, the prosecuting attorney disregarded a pretrial order by soliciting evidence that Detective Alvarez had previously met Weber while investigating his brother for a crime. Pet. for Review at 19. Second, the prosecuting attorney disregarded another pretrial order by introducing evidence of gang membership. Id. at 20. Third, the prosecuting attorney made improper arguments during rebuttal closing argument. Id. at 21-22. Finally, Weber argues that even if each individual instance of misconduct does not constitute reversible error, the cumulative error doctrine applies. Id. at 23. The State concedes that the prosecuting attorney did commit misconduct in the three instances identified by Weber but asserts that the misconduct was not prejudicial and, therefore, does not constitute reversible error and that Weber’s cumulative error claim fails. Br. of Resp’t at 11, 15, 17, 21.

1. Evidence that the detective met Weber while investigating his brother

¶38 Weber asserts that the prosecuting attorney committed misconduct by disregarding a pretrial order that excluded evidence that Detective Alvarez met Weber while investigating his brother as a suspect in a stabbing incident. Pet. for Review at 19. During the prosecuting attorney’s direct examination of Detective Alvarez, the following exchange occurred:

Q. Who was that?

A. Charles Webber [sic],

Q. Did that name mean anything to you?

A. Yes, it did.

Q. Explain why.

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

VRP (June 25, 2003) at 9.

¶39 In a pretrial hearing, the trial court excluded evidence that Detective Alvarez had previously met Weber while investigating a crime involving Weber’s brother. VRP (June 11, 2003) at 25. However, the court explicitly did not exclude evidence that the detective had previously met Weber. Id. The State concedes that Detective Alvarez’s testimony violated the pretrial order but argues that Weber still must prove that the error likely affected the jury’s verdict. Br. of Resp’t at 11-12.

¶40 At trial, Weber’s attorney failed to object to the error, request a curative instruction, or move for a mistrial. The Court of Appeals determined that the prosecuting attorney did not deliberately disregard the pretrial order. Weber, No. 52911-1-1 at 17. We agree that the prosecuting attorney did not so clearly act in deliberate disregard of the pretrial order that Weber was excused from objecting. The pretrial order did not exclude evidence that the detective had previous contact with Weber, and the prosecuting attorney’s questions conceivably could have been targeted only at soliciting that information.

¶41 Additionally, even if we do not hold Weber’s failure to object against him, Weber has failed to prove that the prosecutor’s questions caused him prejudice that affected the outcome of his trial. As the State notes, the content of Detective Alvarez’s testimony may have been more helpful to Weber than prejudicial. Suppl. Br. of Resp’t at 29. During the pretrial hearing, the trial court observed that if the jury heard that Alvarez had previous contact with Weber, the jury might make the inference that Alvarez knew Weber from previous arrests or criminal activity. VRP (June 11, 2003) at 18. Defense counsel agreed and acknowledged that he might later “choose to introduce the context in which he knows Mr. Webber [sic].” Id.

¶42 Weber failed to preserve the error on appeal by not objecting. He also failed to carry his burden of proving that there is a substantial likelihood that the prosecutor’s misconduct affected the jury’s verdict. As a result, we hold that the prosecuting attorney did not commit misconduct warranting a new trial in this instance.

2. Evidence of gang membership

¶43 Second, Weber asserts that the prosecuting attorney committed misconduct by violating a pretrial order excluding evidence of gang membership. The following exchange also occurred during the prosecuting attorney’s direct examination of Alvarez:

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

A. No.

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

A. Not of that size, no.

VRP (June 25, 2003) at 10-11.

¶44 In a pretrial hearing, the trial court excluded all evidence of gang membership but did not exclude evidence of “any marks that may have been observed by any witness or testimony of any marks that may currently be present on Mr. Webber [sic].” VRP (June 10, 2003) at 147; VRP (June 11, 2003) at 10. The State concedes that the prosecuting attorney’s question violated the pretrial order but argues that it was not so prejudicial that it likely affected the jury’s verdict. Br. of Resp’t at 15.

¶45 Again, Weber’s attorney failed to object to the error, request a curative instruction, or move for a mistrial. And again, the record does not so clearly indicate that the prosecuting attorney deliberately disregarded the pretrial order as to excuse Weber’s failure to preserve the error on appeal. The pretrial order did not exclude evidence of “marks that may have been observed by any witness,” and the prosecuting attorney’s questions conceivably could have been targeted only at soliciting that information.

¶46 Previously, Alvarez testified that he “primarily handle[s] gang cases or gang incidents.” VRP (June 25, 2003) at 7. It is clear from the record that the prosecuting attorney’s questions about the tattoos were targeted at establishing how common “206” tattoos are in the effort to identify Weber as the shooter. The questions were not clearly targeted at establishing that Weber was a gang member. Additionally, Alvarez’s answer indicated that he had not seen a “206” tattoo the size of Weber’s in his work investigating gangs, an answer that resulted in minimal, if any, prejudice.

¶47 Moreover, as the State notes, Alvarez’s testimony that he primarily investigates gang incidents “was not the subject of a motion in limine, nor was it objected to.” Br. of Resp’t at 16; VRP (June 25, 2003) at 7. Several other witnesses testified regarding the tattoo on Weber’s neck, including Manzo, who testified without objection that the “206” tattoo stood for “the area that you live in.” VRP (June 18, 2003) at 131-32. The “admission of testimony that is otherwise excludable is not prejudicial error where similar testimony was admitted earlier without objection.” Ashley v. Hall, 138 Wn.2d 151, 159, 978 P.2d 1055 (1999).

¶48 Thus, even if we do not hold Weber’s failure to object against him, Weber has failed to prove that Alvarez’s testimony affected the outcome of his case. This is particularly true in light of the other testimony that the trial court admitted regarding “206” tattoos and gang activity, and in light of the other evidence presented against Weber at trial. As a result, we hold that Weber has failed to prove that the prosecutor’s questions caused him prejudice that affected the outcome of his trial.

3. Improper argument in rebuttal closing argument

¶49 Third, Weber argues that the prosecuting attorney committed misconduct by making prejudicial statements in rebuttal closing argument. Weber asserts that although prosecuting attorneys have some latitude to argue facts and inferences from the evidence, they are not permitted to make prejudicial statements not supported by the record. State v. Rose, 62 Wn.2d 309, 312, 382 P.2d 513 (1963) (citing State v. Heaton, 149 Wash. 452, 271 P. 89 (1928); Rogers v. Kangley Timber Co., 74 Wash. 48, 132 P. 731 (1913)). However, even improper remarks by the prosecutor are not grounds for reversal “if they were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective.” Russell, 125 Wn.2d at 86 (citing State v. Dennison, 72 Wn.2d 842, 849, 435 P.2d 526 (1967); State v. Graham, 59 Wn. App. 418, 428-29, 798 P.2d 314 (1990)).

¶50 The State concedes that the prosecuting attorney’s remarks in rebuttal closing argument were improper but asserts that they were unlikely to have affected the jury’s verdict. Br. of Resp’t at 17. In rebuttal closing argument, the prosecuting attorney, Andy Colasurdo, made the following statements:

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

In another unit in my office, SAU, the Special Assault Unit where you deal with sex crimes—

Mr. Hall: Objection, your honor. There is no foundation for that type of evidence.

The court: Overruled.

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

Mr. Hall: Objection, your honor. Also, no foundation for that type of argument.

The court: Why don’t you move on.

Mr. Colasurdo: It’s a legitimate argument, your honor.

The court: Move on, counsel.

Mr. Colasurdo: There are times for which there are no witnesses and for which there are, as I just mentioned, no evidence. Yet people are convicted of those crimes all the time.

"Why? Because a jury finds someone credible.

VRP (June 30, 2003) at 70-71. However, defense counsel, Randall Hall, made the following statements in his earlier closing argument:

Ladies and gentlemen, please take just 20 seconds and imagine, if you can, someone that you are very close to being accused of committing an awful crime, and what you would expect the jury to hear as evidence.

Well, you would certainly expect to hear from eyewitnesses, wouldn’t you? This case had eyewitnesses as well. But did you hear from them? No.

That is the state’s obligation to bring these witnesses in.

Id. at 47-48. And defense counsel continued:

Well, besides witnesses, wouldn’t you like to hear or see something about physical evidence. . . .

What didn’t you see? You didn’t see a gun. You didn’t see fingerprints.

How about a thorough search.

They didn’t do it. Why? They either didn’t want you to have the information or they were negligent about how they conducted the investigation.

The end result is the same. You don’t have the information that you need to be able to make a decision in this case.

Id. at 49-51.

¶51 The State argues that the prosecuting attorney’s argument, although improper, was made in response to defense counsel’s argument about the type of evidence that the State was required to produce. Br. of Resp’t at 18. The State cites State v. Farr-Lenzini, 93 Wn. App. 453, 471, 970 P.2d 313 (1999), in which the prosecuting attorney responded to defense counsel’s argument that the defendant did not fit the profile of an eluder by stating that Ted Bundy did not fit the profile of a mass murderer. The Court of Appeals held that the prosecuting attorney’s remarks were a “rhetorical overreaction to a defense argument” but that they did not deny the defendant a fair trial because they were addressed through the jury instructions. Id.

¶52 In this case, the prosecuting attorney’s argument was clearly a response to defense counsel’s argument. Additionally, the court instructed the jury to base its decision only on the testimony of witnesses and exhibits in the case and that the attorneys’ arguments were not evidence. CP at 45-46. As a result, we hold that Weber has failed to prove that the prosecuting attorney’s remarks were so prejudicial that they could not be cured by the jury instructions.

4. Cumulative error doctrine

¶53 Finally, Weber asserts that the cumulative error doctrine applies to the prosecutor’s misconduct. Cumulative error may warrant reversal, even if each error standing alone would otherwise be considered harmless. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The doctrine does not apply where the errors are few and have little or no effect on the outcome of the trial. Id. As discussed above, Weber has failed to prove how each alleged instance of misconduct affected the outcome of his trial. Similarly, Weber has not indicated how these combined instances of misconduct affected the outcome of his trial. As a result, we hold that Weber’s cumulative error doctrine claim fails in this case and that the prosecuting attorney did not commit misconduct that constituted reversible error.

IV. CONCLUSION

¶54 We hold that the inclusion of Weber’s juvenile adjudications in his offender score fell under Apprendi’ s prior conviction exception and did not violate Blakely. We also hold that, in this case, the proper remedy for Weber’s double jeopardy violation is to vacate the conviction that carries the lesser sentence. Finally, we hold that the prosecuting attorney did not commit misconduct warranting a new trial. We affirm the Court of Appeals and remand the case to the trial court for resentencing consistent with this opinion.

Alexander, C.J., and Bridge, Owens, and J.M. Johnson, JJ., concur.

1 The Fifth Amendment provides, in relevant part, that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Fourteenth Amendment provides, in relevant part, that “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1.

2 The Sixth Amendment guarantees a criminal defendant the right to “a speedy and public trial, by an impartial jury.” U.S. Const, amend. VI.

3 Weber’s juvenile adjudication for attempted first degree robbery was an element of the charge of unlawful possession of a firearm in the first degree, one of his convictions. VRP (June 30, 2003) at 7; CP at 35. Weber stipulated to the existence of this prior adjudication but later argued that it “washed out.” CP at 157-58. The Court of Appeals held that the adjudication did not wash out. Weber, slip op. (unpublished portion) at 24-25. Weber has never argued that his prior adjudication was invalid.

4 Weber argues that juvenile adjudications are less reliable than adult convictions. Pet. for Review at 12-14; Suppl. Br. of Pet’r at 16-17. However, Weber does not provide any proof that juvenile adjudications are less reliable, nor does he specifically analyze juvenile proceedings in Washington. Additionally, this argument does not refute the long-standing policy of the legislature and Washington courts to utilize juvenile adjudications in sentencing.

5 We note that even if we were to hold that a jury must find the fact that a juvenile adjudication occurred, the underlying juvenile adjudication would still not be the result of a jury trial. Thus, under Weber’s analysis, we would have to hold that the juvenile adjudication itself must be the result of a jury trial in order for the adjudication to be used to enhance a defendant’s sentence based on recidivism. Suppl. Br. of Pet’r at 23. This we decline to do.

6 The trial court assigned Weber an offender score of 8, which produced a standard range of 209 to 277 months for first degree assault and 192.75 to 267.75 months for attempted second degree murder. RCW 9.94A.510. However, that offender score did not include Weber’s juvenile adjudication for attempted first degree robbery, which we hold should be included in the offender score. With the juvenile adjudication, Weber would have an offender score of 9 or more, which would produce a standard range of240 to 318 months for first degree assault and 223.5 to 297.75 months for attempted second degree murder. Id.

7 The State suggests that because the SRA. provides that the standard sentence range for an attempted offense is 75 percent of the standard range for a completed offense, the seriousness level for attempted second degree murder could be 75 percent of the seriousness level for second degree murder (which carries a seriousness level of 14), computing to a seriousness level of 10.5. Suppl. Br. of Resp’t at 26; see RCW 9.94A.510, .515. Therefore, first degree assault, which carries a seriousness level of 12, would have the greater seriousness level. RCW 9.94A.515.