Filed Washington State Court of Appeals Division Two
May 6, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58855-2-II
Respondent,
v. UNPUBLISHED OPINION
CATALINA MARIE GUILLEN,
Appellant.
CHE, J. — Catalina Marie Guillen appeals a jury trial conviction for 10 counts of identity
theft in the second degree and one count of forgery. Guillen also appeals a guilty plea for one
count of theft in the third degree and one count of failure to appear.
Guillen stole a sweatshirt from a store. Law enforcement officers later found counterfeit
$100 bills in her possession and, in the car Guillen had been a passenger, a notebook containing
financial information of several individuals. Prior to trial, Guillen pleaded guilty to one count
each of theft in the third degree and failure to appear. Guillen proceeded to trial on the second
degree identity theft and forgery charges.
Guillen argues that (1) her pleas of guilty to third degree theft and failure to appear were
involuntary, (2) the prosecutor committed reversible misconduct by relying on gender bias
and/or misstating the presumption of innocence and burden of proof during jury selection,
opening arguments, and closing arguments, (3) the prosecutor violated her right to be free from No. 58855-2-II
gender discrimination under Washington’s Equal Rights Amendment (ERA), and (4) she was
denied effective assistance of counsel when defense counsel improperly stated the burden of
proof during voir dire and failed to object to the prosecutor’s allegedly improper statements.
We accept the State’s concession that Guillen’s guilty plea for failure to appear was
involuntary and, thus, warrants reversal. For Guillen’s remaining claims, we hold that Guillen
fails to establish that (1) her guilty plea for third degree theft was involuntary, (2) the prosecutor
committed reversible misconduct, (3) the prosecutor violated her rights under the ERA, or (4)
Guillen’s counsel rendered ineffective assistance of counsel.
Accordingly, we affirm Guillen’s convictions for identity theft in the second degree,
forgery, and third degree theft, but reverse Guillen’s conviction for failure to appear and remand
for further proceedings.
FACTS
BACKGROUND
Sergeant Patty Finch and Officer Daniel Cox were dispatched to a store at a mall “for a
suspicious circumstance” involving a certain car. Rep. of Proc. (RP) at 108. When Officer Cox
arrived at the mall, he found the car with no person but two dogs in it.1 Officer Cox entered the
store and contacted the reporting party. The individual pointed out Guillen and a man, who
appeared to be together. Officer Cox observed Guillen and the man leave the store, with Guillen
heading toward the car and the man walking in the opposite direction of the car.
1 The dogs were later determined to be Guillen’s.
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Once outside the store, Guillen was contacted by Officer Cox and Sergeant Finch, who
arrived later. Guillen had a brown purse and a black laundry bag, which had a sweatshirt in it.
Attached to the sweatshirt was a security sensor and a price tag reflecting a price of about $181.
Guillen initially said that the sweatshirt was hers, but then admitted to stealing it despite stating
that she had money to pay for it. After the officers confirmed that the sweatshirt was stolen from
the store, the officers placed Guillen under arrest.
Guillen explained that she left the store with a man named Alonzo, who had picked up
her and her dogs and driven them to the mall in order for Alonzo and Guillen to go shopping.
Other than Alonzo’s first name, Guillen did not know anything else about him, and the officers
were unable to find the man after arresting Guillen.
The search incident to arrest revealed $82 dollars and in Guillen’s purse three $100 bills,
which the officers immediately identified as counterfeit based on off-centered printing, feel, and
the same serial number on each $100 bill. According to Guillen, she received the money from
someone who she and Alonzo had met with when selling some of Guillen’s belongings. Guillen
had not noticed anything unusual about the bills and did not realize they were fake.
When Officer Andrew Huerta searched the car pursuant to a search warrant, he
discovered a notebook containing “various usernames, passwords, email accounts, social security
numbers, debit card numbers, names of subjects,” and checks. RP at 144; see also Ex. 19-56.
The notebook contained “means of identification and/or financial information” of 10 individuals
who “did not give their permission for any of their information to be included in the notebook.”
RP at 161-62. Some of the 10 individuals owned accounts associated with blank or partially
filled out checks within the notebook. The notebook pages also contained a letter regarding the
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possible continuation of an apparent romantic relationship written to a person named “Brian,”
who at times was referred to as “Sandy” and “Sandyballs.”2 Suppl. Clerk’s Papers (CP), Ex. 53,
at [144] (PDF at 67). Officer Huerta observed that the writing in the notebook, including the
letter, primarily appeared to be from the same person.
Officer Huerta found the notebook on the front passenger side of the vehicle. Guillen
denied seeing the notebook or its contents despite sitting in the front passenger seat when Alonzo
drove them to the mall. Guillen also denied any involvement in writing down the notebook’s
information even though the letter in the notebook matched the first name of her ex-boyfriend,
Bryan Sandoval.3
PROCEDURAL HISTORY
The State charged Guillen with three counts of second degree identity theft, forgery, and
third degree theft. For the third degree theft charge, the information provided that Guillen “with
intent to deprive another of property, to-wit: a sweatshirt, did wrongfully obtain such property
belonging to [store].” CP at 3.
On June 1, 2023, the trial court arraigned Guillen and set a court date for June 15. There
is no document in the appeal record that shows Guillen received written notice to appear at the
June 15 court date. On June 15, Guillen failed to appear in court. In July 2023, the State filed an
amended information adding seven more counts of second degree identity theft and one count of
2 In closing, the State argued the references to “Sandy” and “Sandyballs” was a “[p]et name” for Sandoval, Guillen’s ex-boyfriend’s last name. RP at 238. 3 The RPs reflect Guillen’s ex-boyfriend’s first name as “Bryan” instead of “Brian,” as found in the notebook, but the RPs do not reflect the court reporter obtaining the proper spelling for the name.
4 No. 58855-2-II
failure to appear.4 The amended information provided, for the failure to appear charge, that
Guillen, “being held for, charged with, or convicted of a crime that is classified as a felony, and
having been released by court order or admitted to bail, has received written notice of the
requirement of a subsequent personal appearance before . . . the Lewis County Superior Court [in
cause number] did fail to appear as required and [] [w]ithin thirty days of the issuance of a
warrant for failure to appear or surrender, does not make a motion with the court to quash the
warrant.” CP at 121.
At a hearing on July 20, the court clerk’s minute entries reflect “Cond[itions] of release
addressed 75,000 cash or surety,” and “Cont[inued] to 7/27/23 Arraign[ment] on amended
info[rmation].” CP at 123. In October 2023, the State filed a third amended information adding
an aggravator for multiple current offenses to the 10 counts of second degree identity theft.
Prior to trial, Guillen pleaded guilty to third degree theft and failure to appear. In the
single plea form, Guillen stated that she was informed of and understood that she was being
charged with theft in the third degree and that the charge included the elements of “wrongfully
obtain[ing] property of another.” CP at 15. Guillen also stated that she was informed of and
understood that the charge of failure to appear included the elements of “[a]fter having been
charged with a felony and released by court order with a date certain to return to court,
knowingly failed to appear and within 30 days failed to motion the court to clear the warrant.”
CP at 15. Guillen admitted to committing theft in the third degree and failure to appear per the
third amended information and stated that she made such plea “freely and voluntarily.” CP at
4 There appears to be a second amended information dated August 24, but that is not contained in our appeal record. Further, there is no transcribed record or court notes of the July 6 or August 24 court proceedings. The record contains the third amended information.
5 No. 58855-2-II
25-26. In stating what she did that made her guilty of the crimes, Guillen wrote, “On 5-19-2023
in Lewis County, WA, I stole property from the [] store and after being charged with a felony
and released by court and ordered to appear [] I knowingly failed to appear and had not made
arrangements to clear the warrant within 30 days.” CP at 26.
At the plea hearing, the trial court confirmed with Guillen that her attorney had read her
the guilty plea form, she and her attorney had reviewed the elements required for the charges, she
did not have any questions regarding any element or what it meant to commit the offenses, and
believed she fully understood the plea form’s content and consequences. The trial court
additionally confirmed with Guillen that her statement regarding the actions underlying her
guilty plea was accurate. The trial court then found that Guillen’s pleas were knowingly,
intelligently, and voluntarily made “with a full understanding of the nature of the offense[] and
the consequences to pleading guilty.” RP at 31.
At trial, witnesses testified consistently with the facts outlined above and the trial court
admitted three items into evidence: the $100 bills, the notebook, and photo copies of the
notebook’s pages.
During voir dire, the State’s prosecutor had the following unobjected-to exchange with a
prospective juror:
[PROSECUTOR] Well, let me ask you this. Have you ever heard of “presumption of innocence”?
[POTENTIAL JUROR] No.
[PROSECUTOR] So you might have – you might not know exactly what I’m talking about, but have you ever heard the saying that a person is innocent until proven guilty?
[POTENTIAL JUROR] I do know that, yes.
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[PROSECUTOR] So that’s what I mean by the “presumption of innocence.” Everybody, even -- everyone is presumed innocent until I as the State prove beyond a reasonable doubt that the person was guilty. So as it sits now, [] Guillen is completely innocent of these charges.
RP at 70.
Later on, Guillen’s counsel had the following conversation with another prospective
juror:
[DEFENSE COUNSEL] So [the prosecutor] mentioned the idea of “innocent until proven guilty” as a criminal law foundation for us. Does anybody disagree with that, think it should be the reverse? ....
[POTENTIAL JUROR] Most of the times when you’re arrested, you’re guilty until proven innocent. You’re going to come in here and present your half and hope to beat the sentence.
[DEFENSE COUNSEL] So you don’t agree --
[DEFENSE COUNSEL] -- that it works that way?
[DEFENSE COUNSEL] Okay. Do you disagree with the foundation that somebody should be innocent until proven guilty?
[POTENTIAL JUROR] No; I believe you should be innocent until proven guilty.
RP at 81-82.
During the opening statements, when the prosecutor mentioned the notebook he stated:
Of note is a notebook, also, that Officer Huerta finds on the passenger side floorboard of the vehicle. You’ll get to see pictures of the contents of this notebook. I hope nobody’s offended by this, but it’s apparent that it’s written by a female’s hand. The handwriting is consistent throughout the entirety of the notebook.
7 No. 58855-2-II
RP at 101. Guillen did not object to this statement.
When both sides had rested, the trial court provided instruction to the jury which included
the following:
You are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In assessing credibility, you must avoid bias, conscious or unconscious, including bias based on religion, ethnicity, race, sexual orientation, gender or disability. ....
It is important [] for you to remember that the lawyers’ statements are not evidence. The evidence is the testimony and the exhibits.
CP at 30 (emphasis added).
The defendant has entered a plea of not guilty. That plea puts in issue every element of each crime charged. The State . . . has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists as to these elements.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
CP at 32 (emphasis added). No party requested a missing witness instruction and the trial court
did not include such a jury instruction.
During closing argument, the State argued, “The defendant told you that she’s from the
Seattle area and a person by the name of Alonzo drove her down to the [] mall[].” RP at 214.
Shortly thereafter, the State continued with, “[Guillen] also never testified about anyone else
being associated with the vehicle, just her and Alonzo.” RP at 214-15.
While discussing the elements of the charged crimes, the prosecutor stated:
Financial information and means of identification are contained in the notebook. There’s nothing to say that the four sets of four digits were anything else
8 No. 58855-2-II
than credit card numbers. There’s nothing to say that the dates associated with those four sets of digits was the expiration date. Nothing saying that the three numbers -- contradicting that the three numbers were the security code. . . . All of that information is there. There’s really no contesting that that’s what that information was.
And as far as the [forgery], there’s no contesting that [] Guillen actually possessed the counterfeit money.
RP at 217.
Toward the end of the State’s argument, the State addressed how “[Guillen’s] explanation
for how she obtained the money is a little suspicious.” RP at 227. He stated:
So [] Guillen told you that she acquired the three 100-dollar bills after selling some property on [an online sale platform]. Again, it’s this Alonzo person who was there to witness this transaction, and [] Guillen says that she received that money from somebody during that transaction. And that’s all that you have to establish her story, is that version of events.
RP at 227.
During rebuttal, the State described the notebook, as well as the question of whether
Guillen knew of the notebook’s existence as “the crux of the case.” RP at 237. The prosecutor
argued that the handwriting in the notebook was the same as that of a letter addressed to “Brian”
who shared the same name as Guillen’s admitted ex-boyfriend. RP at 237-38. Guillen did not
object to any of these statements by the prosecutor in closing.
Sometime during the prosecutor’s closing arguments, the prosecutor also showed the jury
a visual presentation that included a slide titled “Common / Not in Dispute” and stated “[s]ome
elements are not in dispute . . . [f]inancial information / means of identification [and] [p]ossessed
9 No. 58855-2-II
counterfeit money.”5 Suppl. CP at 93. The prosecutor also stated multiple times that it was the
State’s burden to prove each element beyond a reasonable doubt.
The jury returned a verdict of guilty on 10 counts of identity theft in the second degree
and one count of forgery. The trial court sentenced Guillen to 43 months of total confinement
and 12 months of community custody.
Guillen appeals.
ANALYSIS
Guillen argues that (1) her pleas of guilty to third degree theft and failure to appear were
involuntary, (2) the prosecutor committed reversible misconduct by relying on gender bias
and/or misstating the presumption of innocence and burden of proof during jury selection,
opening arguments, and closing arguments, (3) the prosecutor violated her right to be free from
gender discrimination under the ERA, and (4) Guillen was denied effective assistance of counsel
when defense counsel improperly stated the burden of proof in voir dire, thereby improperly
suggesting that the State met its burden of proof, and failed to object to the prosecutor’s
allegedly improper statements.
I. INVOLUNTARY PLEA
Guillen argues that both her convictions for third degree theft and failure to appear should
be set aside because her guilty pleas were not constitutionally valid as she did not understand the
law in relation to the facts.
5 There is no evidence in the record that Guillen objected to the presentation or the presentation’s contents.
10 No. 58855-2-II
When a defendant challenges the constitutionality of a guilty plea, even post-judgment,
we review such claims de novo. State v. Buckman, 190 Wn.2d 51, 57, 509 P.3d 193 (2018).
Because a defendant waives crucial constitutional rights when entering a guilty plea, a
defendant’s plea must be made knowingly, intelligently, and voluntarily to be valid. State v.
Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996); see also State v. Codiga, 162 Wn.2d 912,
922, 175 P.3d 1082 (2008) (“Due process requires that a defendant’s guilty plea must be
knowing, intelligent, and voluntary.”). We determine whether a plea is knowingly, intelligently,
and voluntarily made based on the totality of circumstances. State v. Snider, 199 Wn.2d 435,
444, 508 P.3d 1014 (2022). These requirements must be shown affirmatively, and the State
bears the burden of proving a guilty plea is valid. State v. Ross, 129 Wn.2d 279, 284, 287, 916
P.2d 405 (1996).
“A guilty plea ‘cannot be truly voluntary unless the defendant possesses an understanding
of the law in relation to the facts.’” In re Pers. Restraint of Elmore, 162 Wn.2d 236, 271, 172
P.3d 335 (2007) (quoting McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166 (1969)).
A defendant does not make a plea intelligently “unless [the] defendant first receives ‘real notice
of the true nature of the charge against him.’” Snider, 199 Wn.2d at 444 (quoting Bousley v.
United States, 523 U.S. 614, 618, 118 S. Ct. 1604 (1998)). At a minimum, the State must show
that the defendant was aware of the specific acts and state of mind required by the charged
offense, i.e., the elements of the crime. See Snider, 199 Wn.2d at 444.
A valid guilty plea does not require a defendant to admit every element of the charged
crime, but instead the defendant must understand the critical elements of the crime and admit to
conduct which satisfies those elements. In re Pers. Restraint of Hews, 108 Wn.2d 579, 596, 741
11 No. 58855-2-II
P.2d 983 (1987). When a defendant signs a plea agreement, “strong evidence” arises that a plea
is voluntary. State v. Pugh, 153 Wn. App. 569, 577, 222 P.3d 821 (2009); see also Branch, 129
Wn.2d at 642. Additionally, when the trial court then inquires into the voluntariness of the plea
on the record and the defendant admits to reading, understanding, and signing the plea
agreement, there is a strong presumption that the plea was made voluntarily. Pugh, 153 Wn.
App. at 577; State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).6 Further, when relevant
documents, including the information, accurately describe the crime’s elements, we presume the
plea is valid, “subject to a showing that the defendant was affirmatively misled.” Snider, 199
Wn.2d at 445.
A. Third Degree Theft
Guillen argues specifically that she did not understand the intent requirement in third
degree theft and that she never admitted to acting with the requisite intent to deprive. We
disagree.
A defendant commits theft in the third degree, among other ways, when they wrongfully
obtain or exert unauthorized control over the property or services of another, with the intent to
deprive [the owner] of such property or services, and the property’s value does not exceed $750.
RCW 9A.56.050(1)(a); RCW 9A.56.020(1)(a).
Here, Guillen signed a guilty plea, agreeing that she was informed of and understood that
she was being charged with third degree theft and that the charge included the element of
“wrongfully obtain[ing] property of another.” CP at 15. Guillen admitted to committing third
6 See also State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982) (“When the judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.”).
12 No. 58855-2-II
degree theft per the third amended information and stated that she made such plea “freely and
voluntarily.” CP at 25. The original, amended, as well as the third amended information
included “intent to deprive another of property” as an element of the charged crime and
specifically provided that Guillen “wrongfully obtain[ed] [a sweatshirt] belonging to [store
name].” CP at 3.
Additionally, in Guillen’s statement of what made her guilty of the crime, Guillen
admitted that she “stole property from the [] store.” CP at 26. “Stole” is the past participle of
“steal,” which is analogous to the “felonious taking and removing of personal property with
intent to deprive the rightful owner of it.” WEBSTER’S THIRD NEW INT’L DICTIONARY 2232,
2248, 2369 (2002). Thus, implicit in her statement is the intent to deprive.
Further, at a hearing regarding the plea, the trial court confirmed with Guillen that she
and her attorney had reviewed the required elements for third degree theft, she did not have any
questions regarding any element or what it meant to commit the offense, and she fully
understood the plea agreement’s content and consequences. The trial court additionally
confirmed with Guillen that her statement regarding the actions underlying her guilty plea was
accurate. Based on Guillen’s statements, the trial court found that Guillen’s guilty plea was
knowingly, intelligently, and voluntarily made “with a full understanding of the nature of the
offense[] and the consequences to pleading guilty.” RP at 31.
The totality of the circumstances shows that Guillen pleaded guilty to third degree theft,
understanding that the “intent to deprive another of property” was an element of the crime and
that her guilty plea admitted conduct meeting such element. The record supports a strong
presumption that Guillen pleaded voluntarily: the charging documents accurately described each
13 No. 58855-2-II
element of third degree theft, Guillen signed the plea, and the trial court confirmed with Guillen
that she was advised of the crime’s elements, did not have questions regarding the necessary
elements or conduct, and fully understood the plea. Pugh, 153 Wn. App. at 577; Smith, 134
Wn.2d at 852; Snider, 199 Wn.2d at 445. Guillen points to no facts that overcome this
presumption or demonstrate that she was affirmatively misled. See Snider, 199 Wn.2d at 449.
Considering the totality of the circumstances and the strong presumption that the plea was
voluntarily made, we hold that Guillen fails to show that her guilty plea for third degree theft was
made involuntarily.
B. Failure to Appear
Guillen contends the plea form did not include the required written notice element for the
crime of failure to appear. The State agrees that Guillen’s guilty plea lacked the requirement of
written notice and Guillen’s factual statement did not contain an acknowledgement that she
received written notice. Thus, the State concedes that Guillen’s conviction for that crime should
be set aside. We accept the State’s concession.
For the crime of failure to appear, receiving written notice of the requirement to appear
before the court is an element of the crime. See RCW 9A.76.190(1)(a). The State has the burden
of establishing that Guillen’s guilty plea to failure to appear was made knowingly, intelligently,
and voluntarily. Ross, 129 Wn.2d 279, 284. While a strong presumption of validity arises from
nearly the same facts as discussed above, this presumption is overcome by the parties’ assertion
that Guillen’s plea should be set aside because the plea form did not mention the written notice
requirement as an element of the crime nor did Guillen’s factual statement acknowledge she
received written notice of the requirement to appear. See CP at 15 (describing the elements of
14 No. 58855-2-II
failure to appear as “[a]fter having been charged with a felony and released by court order with a
date certain to return to court, knowingly failed to appear and within 30 days failed to motion the
court to clear the warrant.”); see also CP at 26 (Guillen’s statement of what she did to be guilty
of the crime omitting any mention of written notice). Because the State bears the burden of
establishing that Guillen’s plea was made knowingly, voluntarily, and intelligently, we accept
the State’s concession and reverse Guillen’s conviction for failure to appear. Ross, 129 Wn.2d
279, 284.
II. PROSECUTORIAL MISCONDUCT
Guillen argues, for the first time on appeal, that reversible prosecutorial misconduct
occurred during voir dire, the State’s opening statement, and the State’s closing arguments.
First, Guillen contends that the prosecutor impermissibly told prospective jurors in voir dire that
“defendants are considered innocent ‘until’ proven guilty.” Br. of Appellant at 16. Second,
Guillen argues that the prosecutor relied on gender bias through their statement made in opening.
Third, Guillen argues that the prosecutor impermissibly shifted the burden of proof in closing
arguments. Additionally, Guillen argues that the combined effect of these instances of
prosecutorial misconduct prejudiced her case. We disagree.
A. Legal Principles
To prevail on a claim of prosecutorial misconduct, the defendant bears the burden of
showing that the prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174
Wn.2d 741, 756, 278 P.3d 653 (2012). For prosecutorial misconduct claims related to a
prosecutor’s comments, we review the challenged statements “in the context of the whole
argument, the issues of the case, the evidence addressed in argument, and the instructions given
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to the jury.” State v. Scherf, 192 Wn.2d 350, 394, 429 P.3d 776 (2018); see also State v. Gouley,
19 Wn. App. 2d 185, 200, 494 P.3d 458 (2021).
To determine whether reversal is required due to prosecutorial misconduct, we employ
one of two tests depending on whether the defendant objected below. Gouley, 19 Wn. App. 2d at
200. If the defendant objected to the prosecutor’s remarks, the defendant must show that (1) the
remarks were improper, and (2) there is a substantial likelihood the misconduct affected the
verdict. Id. If the defendant did not object below—as occurred here—the prosecutorial
misconduct claim is waived unless the defendant can show “(1) that comments were improper,
(2) that the prosecutor’s comments were both flagrant and ill-intentioned, (3) that the effect of
the improper comments could not have been obviated by a curative instruction, and (4) that a
substantial likelihood the misconduct affected the verdict.” Id. at 201.
In evaluating whether the defendant has overcome waiver when they did not object
below, we “‘focus less on whether the prosecutor’s misconduct was flagrant or ill intentioned
and more on whether the resulting prejudice could have been cured.’” Id. (quoting Emery, 174
Wn.2d at 762, n.14). If the defendant fails to show that any improper remarks were incurable,
their claim “‘necessarily fails, and our analysis need go no further.’” Id. (quoting Emery, 174
Wn.2d at 764).
B. The Prosecutor Did Not Misstate the Presumption of Innocence and Burden of Proof
During Voir Dire
First, Guillen argues that the prosecutor committed misconduct during voir dire by telling
prospective jurors that defendants are considered innocent “until” proven guilty, which Guillen
16 No. 58855-2-II
argues implies that Guillen’s conviction was inevitable and conflicted with the trial court’s
instructions. Br. of Appellant at 16. We disagree.
Certainly, two bedrock principles of our criminal legal system are a defendant’s
presumption of innocence and the State’s burden to prove every element of the charged crime
beyond a reasonable doubt. State v. Chacon, 192 Wn.2d 545, 548-49, 431 P.3d 477 (2018).
During voir dire, the State referred to the presumption of innocence as “a person is
innocent until proven guilty.” RP at 70. The jury instructions described the presumption of
innocence as one that “continues throughout the entire trial unless during your deliberations you
find it has been overcome by the evidence beyond a reasonable doubt.” CP at 32.
It is not apparent how the prosecutor’s use of the term “until” undermined the
presumption of innocence or misstated the presumption. In context, the prosecutor’s use of the
term “until” suggested that Guillen’s presumption of innocence continued up to a moment, if it
ever occurred, when the State met its burden of proof.7 See RP at 70.
Additionally, Washington case law does not proscribe the use of “until,” even in a trial
court’s instructions to a jury. See State v. Williams, 49 Wn.2d 354, 361, 301 P.2d 769 (1956)
(declining to hold that the phrase ‘until proven guilty’ as included in jury instructions is
erroneous when defendant argued that the instruction presupposes that a jury will find him
guilty).
Guillen relies on Coffin v. United States, 156 U.S. 432, 15 S. Ct. 394, 39 L. Ed. 481
(1895), to contend that the constitution mandates the presumption of innocence to state that the
7 As commonly used, “until” refers to the continuance of a condition up to a particular time. WEBSTER’S THIRD NEW INT’L DICTIONARY 2513 (2002).
17 No. 58855-2-II
defendant is innocent “unless” proven to be guilty and, thus, that the prosecutor’s use of “until”
amounts to misconduct. Br. of Appellant at 16. However, Guillen mischaracterizes Coffin’s
holding.
In Coffin, a trial court refused to instruct the jury as to the presumption of innocence at
all. 156 U.S. at 453. And so the United States Supreme Court considered the question of
whether the instruction the court used—that there cannot be a conviction unless the proof shows
guilt beyond a reasonable doubt—“embodie[d] the statement of presumption of innocence as to
justify” the court’s refusal to explicitly instruct on the presumption. 156 U.S. at 457. This
inquiry prompted the Court to discuss the difference between the presumption of innocence and
reasonable doubt principles. In doing so, the court provided the language which Guillen relies
on: “the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by
virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is
proven to be guilty.” 156 U.S. at 458-59 (emphasis added). However, the Court immediately
after stated, “In other words, this presumption is an instrument of proof . . . whereby [an
accused’s] innocence is established until sufficient evidence is introduced to overcome the
proof.” 156 U.S. at 459 (emphasis added).
Contrary to Guillen’s contention, Coffin does not prohibit the use of the term “until”
when describing a defendant’s presumption of innocence. Instead, Coffin even used the term
“until” when providing an additional construction of the presumption of innocence. And an
examination of our State’s case law reveals a statehood-long history of including “innocent until
proven guilty” as a commonly understood meaning of the presumption of innocence. See, e.g.,
State v. Brooks, 4 Wash. 328, 333, 30 Pac. 147 (1892); State v. Odom, 83 Wn.2d 541, 545-46,
18 No. 58855-2-II
520 P.2d 152 (1974); State v. Cox, 94 Wn.2d 170, 174, 615 P.2d 465 (1980); State v. Pierce, 134
Wn. App. 763, 772, 142 P.3d 610 (2006); see also State v. Chacon, 192 Wn.2d at 553. Even our
legislature’s expression of the presumption of innocence includes the term “until.” See RCW
10.58.020 (“Every person charged with the commission of a crime shall be presumed innocent
until the contrary is proved by competent evidence beyond a reasonable doubt.”).
Because Guillen cites no other authorities holding the term “until” is an improper
expression of a defendant’s presumption of innocence, we hold that Guillen fails to show that the
prosecutor misstated the law or conflicted with the trial court’s instructions.
B. Guillen Fails to Show the Prosecutor’s Statement in Opening Was Improper
Next, Guillen argues that the prosecutor committed misconduct by relying on gender bias
during the State’s opening statement. While the State’s conduct is ill-advised, Guillen fails to
show that the prosecutor’s single statement in opening amounted to misconduct.
During the State’s opening statement, a prosecutor may present “an outline of the
anticipated material evidence[] and [any] reasonable inferences to be drawn therefrom” so long
as counsel has a good faith belief that such evidence would be presented at trial. State v.
Campbell, 103 Wn.2d 1, 15-16, 691 P.2d 929 (1984); Washington v. Farnsworth, 185 Wn.2d
768, 785-86, 374 P.3d 1152 (2016). The defendant bears the burden of showing that the
prosecutor acted in bad faith. Campbell, 103 Wn.2d at 16; Farnsworth, 185 Wn.2d at 785.
When addressing the jury during opening statements, the prosecutor mentioned the
notebook—evidence the prosecutor later described as “the crux” of the State’s case—in the
following way:
Of note is a notebook, also, that Officer Huerta finds on the passenger side floorboard of the vehicle. You’ll get to see pictures of the contents of this notebook.
19 No. 58855-2-II
I hope nobody’s offended by this, but it’s apparent that it’s written by a female’s hand.
RP at 101, 237. During trial, the trial court admitted the notebook into evidence and the State
presented testimony from Officer Huerta that the writing in the notebook, including a letter
addressed to someone with the same name as Guillen’s ex-boyfriend, primarily appeared to be
from the same person.
Guillen asserts that the prosecutor’s statements were improper because the prosecutor
relied on gender bias; however, Guillen presents no argument explaining how the prosecutor’s
statements, while certainly ill-advised, were made in bad faith. Given the fact that such a
statement was only made once, the notebook was eventually admitted as evidence, the jury could
compare the handwriting in the notebook and the letter for itself, and the notebook’s contents—
including the handwriting—were testified to by witnesses, and because Guillen does not meet
her burden of showing bad faith on the prosecutor’s part, Guillen fails to show that the
inappropriate statements nevertheless amounted to misconduct. See Campbell, 103 Wn.2d at 16.
C. Guillen Fails to Show That the Prosecutor Committed Misconduct in Closing Argument
Guillen argues that the prosecutor impermissibly shifted the burden to Guillen in closing
arguments by (1) suggesting that Guillen had some burden to prove that the notebook contained
“a means of identification or financial information,” (2) presenting to the jury a visual slide
which stated “[s]ome elements are not in dispute” and underneath it listed “[p]ossessed
counterfeit money,” and (3) “suggest[ing] that [] Guillen should have called ‘Alonzo’ to testify.”
Br. of Appellant at 20, 21, 18. We disagree.
In a criminal case, the State bears the burden of proving every element of the crime
beyond a reasonable doubt. State v. Restvedt, 26 Wn. App. 2d 102, 127, 527 P.3d 171 (2023).
20 No. 58855-2-II
Thus, it is improper for a prosecutor to comment on a defendant’s lack of evidence and infer that
the defendant has a duty to present evidence. State v. Sundberg, 185 Wn.2d 147, 153, 370 P.3d 1
(2016). However, a prosecutor has “wide latitude to argue reasonable inferences from the
evidence” so long as they do not shift the burden of proof onto the defendant. State v.
Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011). Additionally, we have long held that
when a defendant decides to testify on their own behalf, a prosecutor may treat them in the same
way as any other witness for the purposes of challenging their credibility. State v. Graham, 59
Wn. App. 418, 427, 798 P.2d 314 (1990); State v. Etheridge, 74 Wn.2d 102, 113, 443 P.2d 536
(1968).
A defendant commits second degree identity theft if the State proves that the defendant
knowingly possessed a means of identification or financial information of another person with
the intent to commit, aid, or abet a crime and neither obtains value in excess of $1,500 or
knowingly targets a senior or vulnerable individual. State v. Christian, 200 Wn. App. 861, 864,
403 P.3d 925 (2017); RCW 9.35.020. “Financial information” includes account numbers, codes,
passwords, social security numbers, and “other information held for the purpose of account
access or transaction initiation.” RCW 9.35.005(1). A “ ‘means of identification’ means
information or an item that is not describing finances or credit but is personal to or identifiable
with an individual or other person,” including a social security number or a person’s name.
RCW 9.35.005(3).
A defendant commits forgery when they possess a written instrument which they know to
be forged and do so with the intent to injure or defraud. RCW 9A.60.020. A forged written
21 No. 58855-2-II
instrument includes any paper or document that either falsely made, completed, or altered. RCW
9A.60.010(6), (7).
i. No Contrary Evidence or Not in Dispute
Guillen argues that in closing argument, the State relieved itself of its burden to prove
that Guillen possessed a means of identification or financial information, a required element
under the identity theft statute, when it argued to the jury “[t]here’s nothing to say that” the
sequences of numbers and letters listed in the notebook reflected anything but credit card
numbers, expiration dates, security codes, social security numbers, addresses, and phone
numbers. Br. of Appellant at 20. And by doing so, the State suggested that Guillen had some
burden to prove that the information in the notebook did not amount to identification or financial
information. Guillen also argues that the prosecutor committed misconduct when they argued
that for the forgery charge, possessing counterfeit money was not in dispute. We disagree.
With regard to the prosecutor’s statement about the notebook’s contents, Guillen asserts
that the State “did not present testimony showing that the[] numbers and dates amounted to ‘a
means of identification or financial information’ “and, therefore, improperly argued that the
“digits,” “dates,” and “numbers” met an element for the identity theft charges. Br. of Appellant
at 20. But the record does not support Guillen’s assertion. Officer Huerta, who found the
notebook, testified that the notebook contained the names, usernames, passwords, email
accounts, social security numbers, debit card numbers, and checks of people who had not given
their permission for such information to be present there. The parties stipulated that 10 named
individuals each were “a real person and their means of identification and/or financial
information was contained within the notebook . . . [and] they did not give their permission for
22 No. 58855-2-II
any of their information to be included in the notebook.” CP at 5. Additionally, the notebook,
and the blank and filled-out checks, were admitted into evidence.
Also, in viewing the prosecutor’s statement in the context of its entire closing argument,
the prosecutor did not impermissibly shift the burden onto Guillen. The prosecutor argued that
the notebook contained “[f]inancial information and means of identification,” stated his “there’s
nothing to say that” arguments, then ended the argument with “[t]here’s really no contesting that
that’s what that information was.” RP at 217. Ultimately, the prosecutor argued that the none of
the financial and identification evidence consisted of contrary evidence. The prosecutor did not
argue that Guillen should have or had the burden to present any contrary evidence. Thus, the
prosecutor’s argument did not shift any burden onto Guillen to produce any evidence.
Even if the State’s argument was improper, considering the trial court instructed the jury
on the State’s burden of proof and Guillen having no burden, the evidence that was presented,
and the context of the prosecutor’s entire closing argument repeatedly noting the State’s burden
of proof, Guillen fails to show that no instruction could have cured any potentially resulting
prejudice. See Gouley, 19 Wn. App. 2d at 201.
Similarly, Guillen fails to show that the prosecutor’s statement in its visual slide that the
element of possessing counterfeit money was not in dispute amounted to misconduct. Both
responding officers testified that they immediately recognized the $100 bills as being counterfeit
bills. Sergeant Finch testified that she could tell the bills were fake because they felt waxy,
contained the same serial number, and were printed unevenly on the paper. Officer Cox
additionally testified that the bills were “obviously counterfeit” due to their texture and
appearance. RP at 138. While Guillen denied knowing the $100 bills were counterfeit, she did
23 No. 58855-2-II
not dispute either that she possessed the $100 bills or that they were indeed counterfeit $100
bills. Thus, the prosecutor’s statement was based on the evidence or a reasonable inference from
the evidence.
Guillen contends that, since the State presented only lay testimony about the $100 bills
being counterfeit, the prosecutor’s statement is false. Like the notebook and its contents, the
$100 bills themselves were also admitted into evidence for the jury to examine and come to their
own conclusions regarding the authenticity of the bills. Given the evidence presented, the visual
slide was not improper conduct.
We hold that the challenged statements were based on the evidence or reasonable
inferences from the evidence and, thus, not improper conduct.
ii. Missing Witness Argument
Guillen also argues that the prosecutor impermissibly suggested during closing arguments
that Guillen should have presented Alonzo as a witness and, thus, improperly shifted the burden
of proof. We disagree.
When a defendant chooses to defend themselves, their theory “is not immunized from
attack.” State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114 (1990). Under the missing
witness doctrine, a prosecutor may “point out the absence of a ‘natural witness’” and argue “that
the absent witness’s testimony would have been unfavorable to the defendant” so long as some
limitations are met. State v. Montgomery, 163 Wn.2d 577, 598, 183 P.3d 267 (2008). First, the
potential testimony is material and not cumulative. Id. Second, the missing witness is
particularly available to the defendant. Id. at 598-99. Third, the witness’s absence is not
24 No. 58855-2-II
satisfactorily explained. Id. at 599. Finally, the prosecutor’s statements must not infringe on a
criminal defendant’s right to silence or shift the burden of proof. Id.
Here, the prosecutor commented about Alonzo three times in closing arguments. First,
the prosecutor stated, “The defendant told you that she’s from the Seattle area and a person by
the name of Alonzo drove her down to the [] mall[].” RP at 214. Closely after, the prosecutor
then commented, “[Guillen] also never testified about anyone else being associated with the
vehicle, just her and Alonzo.” RP at 214-15. Finally, during rebuttal, the prosecutor stated:
So [] Guillen told you that she acquired the three 100-dollar bills after selling some property on [an online sale platform]. Again, it’s this Alonzo person who was there to witness this transaction, and [] Guillen says that she received that money from somebody during that transaction. And that’s all that you have to establish her story, is that version of events.
RP at 227. In each of these instances, the prosecutor mentions Alonzo, an individual only
brought up in trial once Guillen testified, as a reference to Guillen’s own testimony. Contrary to
Guillen’s contention, the prosecutor did not suggest that Guillen should have called Alonzo as a
witness, a suggestion that would have invoked the missing witness doctrine, but, instead,
repeated Guillen’s own testimony which is not improper. Contreras, 57 Wn. App. at 476
(“When a defendant advances a theory exculpating [her], the theory is not immunized from
attack. On the contrary, the evidence supporting a defendant’s theory of the case is subject to the
same searching examination as the State’s evidence.”).
Guillen relies on State v. Stotts to support her argument that the prosecutor invoked the
missing witness doctrine.8 However, her reliance on Stotts is misplaced.
8 26 Wn. App. 2d 154, 527 P.3d 842 (2023).
25 No. 58855-2-II
In Stotts, Division III held that a prosecutor’s statements in closing improperly invoked
the missing witness doctrine because, instead of merely “point[ing] out that there is no evidence
to corroborate a defendant’s testimony,” the prosecutor instead “suggest[ed] adverse inferences
from a missing witness.” 26 Wn. App. 2d at 173. The prosecutor in Stotts invoked the missing
witness doctrine by explicitly arguing that the defendant’s testimony was not corroborated by an
absent witness and rhetorically asking “whether it would make sense [the absent witness] would
come forward to corroborate [the defendant’s] testimony.” Id. at 170, 173. Unlike the
prosecutor in Stotts, the prosecutor here did not argue explicitly that the jury should infer
Alonzo’s absence as meaning he would have testified adversely to Guillen. Instead, the State
only referred to Alonzo by repeating Guillen’s testimony.
The prosecutor’s statements did not impermissibly invoke the missing witness doctrine.
Even if the prosecutor did invoke the missing witness doctrine, any error could have been cured
by a jury instruction. See Blair, 117 Wn.2d at 491-92 (holding jury instructions regarding
counsel’s remarks not being evidence, the State’s burden of proof, and the defendant’s
presumption of innocence as minimizing any shifting of the burden of proof resulting from
improper missing witness statements). We hold that Guillen fails to show that the prosecutor
improperly shifted the burden of proof with the statements referencing Alonzo.
Because Guillen fails to show that any of the challenged conduct amounts to
prosecutorial misconduct, Guillen’s contention that cumulative error occurred necessarily fails.
State v. Racus, 7 Wn. App. 2d 287, 303, 433 P.3d 830 (2019) (“To support a cumulative error
claim, the appellant must demonstrate multiple errors.”). We hold that Guillen’s prosecutorial
misconduct claims fail.
26 No. 58855-2-II
III. GENDER DISCRIMINATION
For the first time on appeal, Guillen argues that the prosecutor’s statement in opening
separately violated Guillen’s constitutional right to be free from gender discrimination under the
ERA.9 The State concedes that the alleged error is a manifest constitutional error. We reject the
State’s concession and conclude that Guillen fails to establish any error was manifest
constitutional error.
Under RAP 2.5(a), we may decline to review unpreserved errors, even those reaching
constitutional issues. This rule exists to “‘encourag[e] the efficient use of judicial resources. The
appellate courts will not sanction a party’s failure to point out at trial an error which the trial
court, if given the opportunity, might have been able to correct to avoid an appeal and a
consequent new trial.’” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009) (alteration in
original) (quoting State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)).
Under an exception to this general rule, a party may raise an unpreserved error by
showing it constitutes a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). To be
manifest, the party claiming such error must show actual prejudice—that the claimed error
plausibly had practical and identifiable consequences at trial. State v. Dimas, 30 Wn. App. 2d
213, 221, 544 P.3d 597 (2024). For this part of the inquiry, we focus on assessing whether the
error was “so obvious on the record that [it] warrants appellate review” and place ourselves “in
the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the
court could have corrected the error.” O’Hara, 167 Wn.2d at 99-100.
9 Section 1 of article 31 of the Washington Constitution, commonly referred to as the ERA, provides that “[e]quality of rights . . . shall not be denied or abridged on account of sex.” See e.g., Guard v. Jackson, 132 Wn.2d 660, 663, 940 P.2d 642 (1997).
27 No. 58855-2-II
Assuming without deciding that Guillen’s claim implicates a constitutional right, it is not
clear from the record that the prosecutor’s single statement in opening actually prejudiced
Guillen’s case. The only argument Guillen provides regarding prejudice is noting the fact that
Guillen testified that she was not the only occupant of the car. She contends that the prosecutor’s
statement suggested that Guillen, and not the male driver, wrote the information in the notebook.
However, the State provided significant evidence that Guillen at least had constructive
possession of the notebook and some evidence that she likely wrote portions of the notebook’s
contents. The trial court admitted the notebook itself as well as photocopies of each page into
evidence. Inside the notebook was a letter addressed to someone with the same first name as
Guillen’s ex-boyfriend.
Although Guillen testified that she had never seen the notebook before, her credibility
was in issue. A reasonable jury could have found her testimony not credible in light of the letter,
the notebook containing consistent handwriting, her lying to police about the sweatshirt being
hers and then changing her story to contend that she intended to pay for it. Moreover, the jury
instructions specifically told the jury “[i]n assessing credibility, you must avoid bias, conscious
or unconscious, including bias based on . . . gender” and that the attorney’s arguments are not
evidence. CP at 30. We presume the jury followed the court’s instructions given to it, and
Guillen provides no facts to rebut this presumption. State v. Kalebaugh, 183 Wn.2d 578, 586,
355 P.3d 253 (2015). Considering the strength of the State’s evidence and the instructions
provided to the jury, Guillen fails to show how the prosecutor’s single statement in opening had
practical and identifiable consequences at her trial that could not have been corrected by a timely
objection. See O’Hara, 167 Wn.2d at 99-100.
28 No. 58855-2-II
Thus, we hold that Guillen fails to establish the alleged error was manifest and
warranting our consideration of her claim.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Guillen argues that she was denied effective assistance of counsel when her counsel
stated that a defendant is innocent “until” proven guilty during voir dire, suggested the State
would be able to prove its case, and failed to object to the prosecutor’s misconduct. Br. of
Appellant at 33. We disagree.
Both the Sixth Amendment to the United States Constitution and article 1, section 22 of
the Washington Constitution guarantee defendants effective assistance of counsel. State v.
Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). However, we give “great deference to trial
counsel’s performance and begin[] the analysis with a strong presumption that counsel was
effective.” State v. Crow, 8 Wn. App. 2d 480, 507, 438 P.3d 541 (2019).
To demonstrate that counsel’s performance was constitutionally ineffective, a defendant
must show that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. State v. Cienfuegos, 144 Wn.2d 222, 226-27, 25 P.3d 1011 (2001). A
defendant demonstrates deficient performance by showing that counsel’s performance “fell
below an objective standard of reasonableness based on consideration of all the circumstances.”
Crow, 8 Wn. App. 2d at 507. A defendant demonstrates prejudice by showing that “there is a
reasonable probability that the outcome would have been different” but for counsel’s deficient
performance. Cienfuegos, 144 Wn.2d at 227. Because a defendant must establish both deficient
performance and prejudicial effect, “the failure to demonstrate either prong will end our
inquiry.” State v. Case, 13 Wn. App. 2d 657, 673, 466 P.3d 799 (2020).
29 No. 58855-2-II
Guillen argues that her counsel deficiently performed by failing to object to any of the
alleged instances of prosecutorial misconduct.
If the defendant’s ineffective assistance of counsel claim is based on their attorney’s
failure to object, then they must show the objection would likely have been successful. State v.
Vazquez, 198 Wn.2d 239, 248, 494 P.3d 424 (2021). “Only in egregious circumstances, on
testimony central to the State’s case, will the failure to object constitute incompetence of counsel
justifying reversal.” Id. Because Guillen fails to show the prosecutor’s statements were
improper, Guillen cannot show that there was a reasonable probability that an objection by
defense counsel would have been successful. We hold that Guillen fails to meet her burden to
show deficient performance by her counsel.
Additionally, Guillen argues her counsel performed deficiently by, as the prosecutor did,
using the term “until” when referring to the presumption of innocence. Br. of Appellant at 33.
As discussed above, because Guillen fails to show how “until” changes the presumption of
innocence, we hold that Guillen fails to show that her counsel deficiently performed in using the
term “until” in reference to the presumption of innocence.
Guillen fails to show that defense counsel performed deficiently, and even if her counsel
had objected to each of the prosecutor’s statements, she fails to show the outcome of her case
30 No. 58855-2-II
would have been reasonably different and fails to establish deficient performance in her
counsel’s own statements. We hold that Guillen’s ineffective assistance of counsel claim fails.10
CONCLUSION
We reverse Guillen’s failure to appear conviction but affirm all other convictions and
remand to the trial court for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Che, J. We concur:
Lee, P.J.
Glasgow, J.
10 To the extent that Guillen argues that her counsel also performed deficiently by doing little to advocate for Guillen throughout trial, by failing to communicate a State’s plea offer, not seeking suppression of evidence, waiving a CrR 3.5 hearing, agreeing that numerous bad acts could be admitted under Evidence Rule 404(b), stipulating to testimony from 10 witnesses who were not called to testify, not proposing jury instructions, failing to make an opening statement, and not raising a single objection, we decline to consider the merits of such arguments. Aside from using these arguments to analogize her case with that in Stotts for the purpose of Guillen’s prosecutorial misconduct claim, Guillen provides only passing treatment of these arguments. Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290, rev. denied 136 Wn.2d 1015 (1998) (“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”).