FILED JULY 11, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39532-4-III Respondent, ) ) v. ) ) FERNANDO SIFUENTEZ, ) UNPUBLISHED OPINION ) Appellant. )
COONEY, J. — Fernando Sifuentez was convicted of second degree assault and
unlawful possession of a firearm. He appeals his convictions, claiming ineffective
assistance of counsel and cumulative errors deprived him of a fair trial. Mr. Sifuentez
further challenges the trial court’s imposition of the victim penalty assessment (VPA) and
DNA collection fee.
We affirm Mr. Sifuentez’s convictions but remand for the trial court to strike the
VPA and DNA collection fee from the judgment and sentence. No. 39532-4-III State v. Sifuentez
BACKGROUND
Mr. Sifuentez and Christine Olsen began a relationship in fall 2021. Shortly
thereafter, Mr. Sifuentez moved into Ms. Olsen’s home. Sometime between
Thanksgiving and December 3, 2021, their relationship ended. On December 3, the date
that elicited Mr. Sifuentez’s charges, Ms. Olsen was away from her home. Present at her
home were her brother, her mother, Debra Olsen,1 as well as a roommate, Blanca
Jacquez, and a friend Anna Dalton. Ms. Olsen placed Ms. Jacquez in charge of the house
while she was away.
Shortly before 6:00 p.m., Ms. Dalton called 911 to report “an unwanted guest in
the house and he’s abusive,” “an abusive ex to my friend and they have already had
police contact.” Rep. of Proc. (RP) at 154; Ex. 2, 4 sec. to 9 sec.; 1 min., 0 sec. to 1 min.,
6 sec. Ms. Dalton reported that Mr. Sifuentez had snuck into the house, had a shotgun,
cocked it, and was pointing it at someone. Ms. Dalton clarified to 911 that another
person had narrated the information to her.
In response to the 911 call, Officer Cody Albertin responded to Ms. Olsen’s
address. Upon arrival, Officer Albertin obtained statements from Ms. Dalton, Ms.
Jacquez, and Debra. Officer Albertin described both Ms. Dalton and Ms. Jacquez as
1 Debra Olsen is referred to by her first name for clarity. No disrespect is intended.
2 No. 39532-4-III State v. Sifuentez
“disturbed,” “in shock,” and “definitely afraid.” RP at 215. The officer reported Debra’s
demeanor as very odd.
Mr. Sifuentez was later charged with second degree assault and unlawful
possession of a firearm in the second degree. The trial court issued a warrant for Mr.
Sifuentez’s arrest. On January 3, 2022, Officer Jimmy George contacted Victor
Sifuentez,2 Mr. Sifuentez’s father, and requested permission to search his apartment for
Mr. Sifuentez. Victor consented. When officers entered Victor’s apartment, they found
Mr. Sifuentez hiding in a dark corner of the kitchen. Thereafter, the officers searched the
apartment and found a loaded 12-gauge shotgun, a large black suitcase, and documents
containing Mr. Sifuentez’s name. According to Officer George, the shotgun “was spray
painted kind of like Army green and black” and had a black pistol grip. Id. at 225.
In advance of trial, the court granted Mr. Sifuentez’s motion to exclude evidence
of domestic violence Mr. Sifuentez may have committed against Ms. Olsen. Mr.
Sifuentez also moved to exclude the recording of Ms. Dalton’s call to 911. The trial
court listened to a recording of Ms. Dalton’s call, made on December 3, as well as a call
Ms. Jacquez made to 911 on December 2. The trial court found Ms. Jacquez’s call was
not relevant and ordered it excluded from admission. Relying on the excited utterance
2 Victor Sifuentez is referred to by his first name for clarity. No disrespect is intended.
3 No. 39532-4-III State v. Sifuentez
and present sense impression exceptions to the hearsay rule, the trial court allowed for the
admission of Ms. Dalton’s call.
At trial, Ms. Dalton’s call was admitted into evidence and published to the jury.
At the conclusion of the recording, defense counsel objected to Ms. Dalton’s statements
that described Mr. Sifuentez as abusive and that referenced a prior altercation where Mr.
Sifuentez and Ms. Olsen had police contact. The court seemed puzzled that defense
counsel did not object to the alleged prejudicial statements during the motions in limine,
but granted Mr. Sifuentez’s motion to strike the statements and to provide a curative
instruction to the jury. The judge orally instructed the jury:
You heard evidence as to an alleged prior domestic violence. I’ve ruled that that evidence is inadmissible. Do not speculate as to the reason for my ruling. You are instructed to disregard that evidence and not consider it in your deliberations, the portion about the domestic violence, okay?
Id. at 161.
Ms. Jacquez testified that Ms. Olsen was not at the house on the evening of
December 3 because she went to “stay at a safe place.” Id. at 174. She testified that
while in a room with Ms. Dalton, she heard Mr. Sifuentez’s voice. When Ms. Jacquez
left the room to investigate, Mr. Sifuentez pointed a “gray and black[ . . . l]ike a greenish”
gun at her and cocked it. Id. at 175. Upon being presented a photograph of the shotgun
found in Victor’s apartment, Ms. Jacquez identified it as the gun Mr. Sifuentez had
pointed at her. Ms. Jacquez testified she was able to go back into her room and found
4 No. 39532-4-III State v. Sifuentez
Ms. Dalton under the bed on the phone with 911. She then relayed to Ms. Dalton what
had occurred.
The State inquired of Ms. Jacquez whether Mr. Sifuentez had returned to the
house at any point after December 3. In response, Ms. Jacquez provided an answer that
was unresponsive to the question:
[MS. JACQUEZ]: He came to drop off some cats that belonged to them. That⎯anyways, that’s another story that’s irrelevant . . . . [STATE]: Okay. [MS. JACQUEZ]: And he had a gun on his⎯on his like belt or⎯I don’t know what he was holding . . . . [STATE]: Okay. .... [MS. JACQUEZ]: I know it’s smaller than the one you showed me (indicating). [STATE]: The State has no further questions, your Honor.
Id. at 179-80 (emphasis added).
On cross-examination, defense counsel challenged Ms. Jacquez’s trial testimony
against previous statements she had provided to law enforcement and statements given in
a defense interview. Specifically, at trial Ms. Jacquez testified the gun was “gray and
black[ . . . l]ike a greenish.” Id. at 175. In a December 3 written statement, Ms. Jacquez
described the gun as “gray with [a] black handle.” Id. at 202. Similarly, during a defense
interview Ms. Jacquez recalled describing the gun as “gray and black.” Id. at 203.
Additionally, in response to a question from defense counsel, Ms. Jacquez admitted she
5 No. 39532-4-III State v. Sifuentez
had stated during the defense interview that she told the officers that Mr. Sifuentez was
“looking for some man” on December 3, not Ms. Olsen as she had earlier testified. Id. at
204.
Officer John McCauley testified that Mr. Sifuentez stated during an interview that
he had found the shotgun in the suitcase, admitted to handling it, and to placing it under
the bed. Mr. Sifuentez also admitted to being at Ms. Olsen’s residence in early
December. Mr. Sifuentez implied that his mother was at Ms. Olsen’s residence and
would confirm that he did not have a firearm during the incident.
Detective Dan Long testified that Mr. Sifuentez had suggested to him that he may
have been in Spokane visiting a friend on December 3. However, Mr. Sifuentez was
unable to provide Detective Long with his friend’s address or phone number.
During deliberations, the jury requested permission to listen to Ms. Dalton’s call to
911. The court granted the request, but directed the bailiff to read the curative instruction
to the jury before playing the recording.
Ultimately, the jury convicted Mr. Sifuentez as charged. During sentencing,
defense counsel argued that Mr. Sifuentez was indigent and asked the court to impose
only the mandatory legal financial obligations. In response, the court waived the criminal
filing fee and the court-appointed attorney fee. The court ordered Mr. Sifuentez to pay
the then-mandatory DNA collect fee and the VPA.
Mr. Sifuentez timely appeals.
6 No. 39532-4-III State v. Sifuentez
ANALYSIS
On appeal, Mr. Sifuentez argues he was afforded ineffective assistance of counsel,
that cumulative errors deprived him of a fair trial, and that the trial court improperly
ordered the DNA collection fee and VPA.
I. WHETHER MR. SIFUENTEZ’S TRIAL COUNSEL WAS INEFFECTIVE
Mr. Sifuentez contends he was afforded ineffective assistance of counsel based on
his trial attorney’s failure to request the “abusive” comments be redacted from the 911
recording and his attorney’s failure to object to Ms. Jacquez’s unsolicited statement that
Mr. Sifuentez possessed a smaller gun on a subsequent occasion. Br. of Appellant at 13-
14.
Defendants have a constitutionally guaranteed right to effective assistance of
counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez, 190 Wn.2d
104, 115, 410 P.3d 1117 (2018). A claim of ineffective assistance of counsel is an issue
of constitutional magnitude that may be considered for the first time on appeal. State v.
Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Ineffective assistance of counsel claims
are reviewed de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). In
reviewing the record, “Courts engage in a strong presumption counsel’s representation
was effective.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
To succeed on an ineffective assistance of counsel claim, a defendant bears the
burden of showing (1) that their counsel’s performance fell below an objective standard
7 No. 39532-4-III State v. Sifuentez
of reasonableness based on consideration of all the circumstances and, if so, (2) that there
is a reasonable probability that but for counsel’s poor performance, the outcome of the
proceedings would have been different. Id. at 334-35. If either element is not satisfied,
the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). On appeal,
“[i]f a defendant [appellant] centers their claim on ineffective assistance of counsel on
their attorney’s failure to object, then ‘the defendant must show that the objection would
likely have succeeded.’” State v. Vazquez, 198 Wn.2d 239, 248, 494 P.3d 424 (2021)
(quoting State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019)).
The reasonableness of counsel’s performance is to be evaluated from counsel’s
perspective at the time of the alleged error and in light of all the circumstances.
Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).
Defense counsel’s actions will not be viewed as ineffective or deficient when their
conduct can be classified as a legitimate trial strategy or tactic. Kyllo, 166 Wn.2d at 863.
“A classic example of trial tactics is when and how an attorney makes the decision to
object during trial testimony.” Vazquez, 198 Wn.2d at 248 (citing State v. Madison, 53
Wn. App. 754, 762-63, 770 P.2d 662 (1989)). “Only in egregious circumstances, on
testimony central to the State’s case, will the failure to object constitute incompetence of
counsel justifying reversal.” Id. at 250 (quoting Crow, 8 Wn. App. 2d at 508).
If there are legitimate trial tactics involved, “[a] few or even several failures to
object are not usually cause for finding that an attorney’s conduct has fallen below the
8 No. 39532-4-III State v. Sifuentez
objective standard of conduct.” Id. However, defense counsel’s failure to object to
inadmissible evidence will result in reversal only if a defendant can show the outcome of
the trial would likely have been different without the inadmissible evidence. Id. at 248-
49.
Even if a defendant can show counsel’s performance was deficient, they must also
affirmatively prove prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816
(1987). This requires more than simply showing that “the errors had some conceivable
effect on the outcome.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). A defendant demonstrates prejudice by showing that the
proceedings would have been different but for counsel’s deficient representation.
McFarland, 127 Wn.2d at 337.
A. TRIAL COUNSEL’S FAILURE TO REQUEST REDACTION OF THE “ABUSIVE” COMMENTS
Mr. Sifuentez contends his trial attorney was ineffective for failing to request
redaction of the “abusive” statements from the 911 recording. Although we agree
defense counsel’s performance was deficient, Mr. Sifuentez is unable to show prejudice.
The trial court granted Mr. Sifuentez’s motion to exclude prior acts of domestic
violence he may have committed against Ms. Olsen. In Ms. Dalton’s call to 911, she
described Mr. Sifuentez as “abusive” (Ex. 2, at 9 sec.) and “an abusive ex to my friend.”
Id. at 1 min. to1 min., 5 sec. Ms. Dalton added, “they have already had police contact.”
9 No. 39532-4-III State v. Sifuentez
Id. at 1 min., 4 sec. to 1 min., 7 sec. Because the statements related to a subject matter
that was earlier excluded from evidence, the trial court certainly would have ordered the
redaction of the prejudicial statements from the recording had a request been made.
Albeit defense counsel sought exclusion of the entire recording, considering the
trial court excluded evidence of Mr. Sifuentez’s prior act of domestic violence against
Ms. Olsen, it was unreasonable for defense counsel not to seek redaction of the
prejudicial statements. Consequently, defense counsel was deficient in failing to request
redaction of the “abusive” statements from the recordings.
However, to succeed on appeal, Mr. Sifuentez must still establish prejudice. In
other words, Mr. Sifuentez has the burden of demonstrating that had the jury not heard
the “abusive” comments, the outcome of the trial likely would have been different. In an
attempt to establish prejudice, Mr. Sifuentez contends the curative instruction was
“insufficient to mitigate the prejudice of the evidence that [he] was an abusive person”
and that Ms. Jacquez suffered credibility problems. Br. of Appellant at 16.
Absent a showing to the contrary, juries are presumed to follow curative
instructions. State v. Davenport, 100 Wn.2d 757, 763-64, 675 P.2d 1213 (1984).
Because juries are presumed to follow curative instructions, Mr. Sifuentez bears the
burden of rebutting the presumption with a contrary showing. Mr. Sifuentez contends the
911 recording was important to the jury’s decision-making because they requested to
10 No. 39532-4-III State v. Sifuentez
listen to the recording during deliberations, allowing them to hear the inadmissible
statements a second time, and because the State’s case was not strong.
The record does not show the jury considered the improper evidence it was twice
instructed to disregard. Because there is no showing that the jury considered the
inadmissible evidence in reaching its verdicts, Mr. Sifuentez has not overcome the
presumption that the jury followed the instructions.
As to the strength of the State’s case, Mr. Sifuentez argues that the State’s case
was weak due to Ms. Jacquez’s lack of credibility. Specifically, Mr. Sifuentez alleges
Ms. Jacquez gave varying accounts of the color of the shotgun, that she testified that Mr.
Sifuentez was looking for Ms. Olsen on December 3 after earlier telling defense counsel
that Mr. Sifuentez was looking for a man, and in testifying that Mr. Sifuentez broke into
the home after previously telling defense counsel he had used a key.3
“Credibility determinations are reserved for the trier of fact,” and an appellate
court “‘must defer to the [trier of fact] on issues of conflicting testimony, credibility of
witnesses, and persuasiveness of the evidence.’” State v. Rafay, 168 Wn. App. 734, 843,
285 P.3d 83 (2012) (alteration in original) (quoting State v. Liden, 138 Wn. App. 110,
3 As it relates to the means by which Mr. Sifuentez entered the home, Ms. Jacquez did not admit to making a prior inconsistent statement. Ms. Jacquez testified that Mr. Sifuentez “broke in.” RP at 202. When asked if she remembered ever telling the police Mr. Sifuentez had used a key, Ms. Jacquez responded, “No, I don’t remember that.” Id.
11 No. 39532-4-III State v. Sifuentez
117, 156 P.3d 259 (2007)). The jury was able to decide the weight to be given to Ms.
Jacquez’s testimony after considering the prior inconsistent statements.
Mr. Sifuentez has failed to establish a reasonable probability that the outcome of
the trial would have been different but for his trial counsel’s failure to request a redaction
of the recording.
B. FAILURE TO OBJECT TO AND MOVE TO STRIKE UNRESPONSIVE TESTIMONY
Mr. Sifuentez contends his counsel was ineffective for failing to object to Ms.
Jacquez’s unsolicited comment that he had possessed a smaller gun on a subsequent
occasion. Mr. Sifuentez asserts the testimony was irrelevant under ER 402 and
inadmissible propensity evidence under ER 404(b).
Evidence that Mr. Sifuentez possessed a smaller gun on a subsequent visit to Ms.
Olsen’s house was irrelevant and therefore inadmissible. Because the evidence was
inadmissible, had defense counsel objected, the trial court likely would have sustained the
objection. However, in recognizing the strong presumption that defense counsel’s
representation was effective, the failure to object to the unresponsive remark does not
amount to an egregious circumstance warranting reversal. Indeed, defense counsel’s
decision not to object was a legitimate trial tactic.
The challenged comment was unresponsive to the State’s question, “Did he come
back to the house at any point?” RP at 179. Unelicited by the State, Ms. Jacquez gave a
12 No. 39532-4-III State v. Sifuentez
lengthy answer primarily concerning cats only to conclude with, “[H]e had a gun on
his⎯on his like belt” “smaller than the one you showed me.” Id. at 180. The State did
not inquire any further and the jury was dismissed for the day. Defense counsel could
reasonably have decided not to object in order to avoid emphasizing the testimony only
for the jury to be instructed to disregard the testimony. Because the decision not to object
was a legitimate trial strategy, defense counsel’s performance was not deficient.
Even if defense counsel was deficient in failing to object, Mr. Sifuentez has failed
to establish he was prejudiced by the deficiency. Mr. Sifuentez cites State v. Freeburg
for the proposition that “[e]vidence of weapons is highly prejudicial, and courts have
‘uniformly condemned . . . evidence of . . . dangerous weapons, even though found in the
possession of a defendant, which have nothing to do with the crime charged.’” 105 Wn.
App. 492, 501, 20 P.3d 984 (2001) (alterations in original) (quoting United States v.
Warledo, 557 F.2d 721, 725 (10th Cir. 1977)). However, even if the irrelevant evidence
that Mr. Sifuentez carried a smaller gun on a subsequent occasion was considered, he
must still demonstrate prejudice.
The unsolicited gun comment was not central to the State’s case. The State
presented numerous witnesses, physical evidence, and statements made to law
enforcement officers by Mr. Sifuentez. Further, defense counsel reminded the jury
during summation that they could find Mr. Sifuentez guilty only if they believed he
possessed a shotgun on December 3.
13 No. 39532-4-III State v. Sifuentez
Mr. Sifuentez has failed to demonstrate that his trial counsel’s failure to object was
not a legitimate trial strategy. Even if defense counsel was deficient in failing to object,
Mr. Sifuentez has failed to establish a reasonable probability the outcome of the trial
would have been different but for trial counsel’s failure to object.
Mr. Sifuentez was not afforded ineffective assistance of counsel.
II. CUMULATIVE ERRORS
Mr. Sifuentez argues that the cumulative effect of the errors deprived him of a fair
trial. Because there is an absence of prejudicial errors, we disagree.
“‘The cumulative error doctrine applies where a combination of trial errors denies
the accused of a fair trial, even where any one of the errors, taken individually, would be
harmless.’” Rookstool v. Eaton, 12 Wn. App. 2d 301, 310, 457 P.3d 1144 (2020)
(quoting In re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014),
abrogated in part on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621
(2018)). To determine whether cumulative errors necessitate reversal of a defendant’s
conviction, courts contemplate whether “‘the totality of circumstances substantially
prejudiced the defendant and denied him a fair trial.’” Id.
Mr. Sifuentez contends that “[c]ounsel’s separate ineffectiveness described . . .
built upon each other augmenting their prejudicial effect.” Br. of Appellant at 24.
Having concluded that no prejudicial errors exist, Mr. Sifuentez’s argument fails.
14 No. 39532-4-III State v. Sifuentez
III. LEGAL FINANCIAL OBLIGATIONS
Mr. Sifuentez contends that due to recent changes in the law, the VPA and the
DNA collection fees must be struck from his judgment and sentence. The State
concedes. We accept the State’s concession.
Formerly, RCW 7.68.035(1)(a) (2016) required the imposition of a VPA on
any adult found guilty of a crime in superior court. On July 1, 2023, an amendment to
RCW 7.68.035 went into effect, requiring trial courts to refrain from imposing a penalty
assessment if, at the time of sentencing, the defendant was found to be indigent as
defined in RCW 10.01.160(3). See LAWS OF 2023, ch. 449, §§ 1, 4. Amendments to
statutes that impose costs upon conviction apply to cases pending on appeal. See In re
Per. Restraint of Eastmond, 173 Wn.2d 632, 638, 272 P.3d 188 (2012); State v. Ramirez,
191 Wn.2d 732, 748-49, 426 P.3d 714 (2018).
Similarly, under former RCW 43.43.7541 (2018), a sentencing court was required
to impose a DNA collection fee on every sentence imposed for the crimes specified in
RCW 43.43.754. Effective July 1, 2023, the legislature amended RCW 43.43.7541 by
removing language that authorized imposition of the DNA collection fee. See LAWS OF
2023, ch. 449, § 4.
Mr. Sifuentez’s case is pending on direct appeal and is not yet final. Although the
sentencing court did not check the indigency box on the judgment and sentence, it
seemed to have found him to be indigent based on its decision to impose only mandatory
15 No. 39532-4-III State v. Sifuentez
legal financial obligations. Therefore, the amended statutes apply. We direct the trial
court to strike the VPA and DNA collection fee from the judgment and sentence.
CONCLUSION
Mr. Sifuentez’s trial attorney was not deficient in her performance. In concluding
defense counsel was not ineffective, Mr. Sifuentez’s cumulative error argument fails. We
remand to the trial court to strike the VPA and DNA collection fee from the judgment
and sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Cooney, J.
WE CONCUR:
Lawrence-Berrey, C.J.
Staab, J.