Cu , 4T FfLED G PPEALS IN THE COURT OF APPEALS OF THE STATE OF WASHINGT61 '' S' OS II 5- 1 4 II "' 9 9: 57 D ST, 1f tw rpt 571l Vttti STATE OF WASHINGTON, No. 45487 -4 -IIP,y_ K E Respondent, UNPUBLISHED OPINION
V.
LEOVIGILDO PEREZ GUTIERREZ JR.,
W
BJORGEN, A. C. J. — A jury found Leovigildo Perez Gutierrez Jr. guilty of forgery, second
degree possession of stolen property, and two counts of second degree identity theft, based in
part on the acts of an alleged accomplice. Gutierrez appeals the convictions and sentence,
contending that ( 1) insufficient evidence supports the convictions, ( 2) the deputy prosecutor
committed flagrant and ill -intentioned misconduct in closing argument, ( 3) he received
ineffective assistance of counsel, and ( 4) the sentencing court imposed discretionary legal
financial obligations ( LFOs) without considering Gutierrez' s ability to pay them.- We reverse the
second degree identity theft conviction arising from Gutierrez' s possession of a credit card,
affirm his other convictions, and remand for resentencing.
FACTS
The charges at issue here arose out of a February 2013 incident at Checkmate, a pay day
loan business in Fife. Gutierrez arrived at the Checkmate in a vehicle with Jimmy Visario.
Visario approached the teller' s window while Gutierrez sat in the waiting area.
Visario presented a check made out by Valley Medical Center and gave the teller his
identification. The teller remembered Visario from a previous payday loan transaction, in which No. 45487 -4 -II
he had claimed to work for a different employer. The teller called Valley Medical Center to
verify that it had issued the check to Visario. After "transferring [ her] from person to person" for
around 10 minutes, the medical center' s staff told the teller that Visario did not work there and
that the check had actually been issued to a Mary Franklin. 2 Verbatim Report of Proceedings
VRP) at 305.
The teller told Visario she would have to call the police. Gutierrez, who had stood up
and approached the window, then became angry and demanded that the teller return Visario' s
identification, saying that " they didn' t want to cash a check with" Checkmate and wished to
leave right away. 2 VRP at 294- 95, 305. The teller refused to return the identification and called
the police.
Fife Police Patrol Commander David Woods and Detectives Jeff Nolta, Michael Malave,
and Thomas Gow soon arrived on the scene and arrested Visario and Gutierrez. Gutierrez first
tried to pull away from Malave, " and there was like a little wrestle with the cops," 2 VRP at 296,
but he became compliant once Malave " put hands on him." 3 VRP at 362. The detectives
searched Gutierrez and found in his wallet a credit card issued to a Wilbur Bowen. The
detectives also found on Gutierrez' s person an insurance billing statement issued to Visario and a
Sandra Cardena, as well as a money transfer order partially filled out with Gutierrez' s name.
Nolta determined that Visario was the owner or driver of the vehicle involved and
obtained his consent to search it. In the center console, in plain view and accessible from any
seat in the vehicle, Nolta found a brown vinyl envelope containing " a number of checks and
other documents with writing." 2 VRP at 239- 40, 255.
The papers in the vinyl envelope included: ( 1) two apparently valid checks with
Visario' s account information, ( 2) a check bearing Credit One Bank' s account information with
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the payee information erased, and ( 3) a check bearing North Meridian Contract Collection' s
account information with the original payee similarly erased and replaced with Visario' s name.
The envelope also contained ( 4) an American Express credit card application filled out with the
name and personal information of a Vickie Friend, except a different phone number had been
entered and the original mailing address had been crossed out and replaced with the address
appearing on Gutierrez' s driver' s license.
PROCEDURAL HISTORY
The State charged Gutierrez with ( 1) one count of second degree identity theft based on
possessing Franklin' s check issued from Valley Medical Center, ( 2) one count of forgery based
on Visario' s presentation of the Valley Medical Center check at Checkmate, ( 3) one count of
second degree identity theft based on possessing Friend' s personal information, (4) one count of
forgery based on the Friend credit card application, ( 5) one count of second degree possession of
stolen property based on, possessing Bowen' s credit card, and ( 6) one count of second degree
identity theft based on the Bowen credit card. The information alleged that the crimes were
based on the same conduct or on a series of acts connected together or constituting parts of a
single scheme or plan." Clerk' s Papers ( CP) at 59- 61.
At trial, the State presented the testimony of an accountant from Valley Medical Center,
the Checkmate teller, and the Fife police officers involved, who testified to the facts set forth
above. Friend, Bowen, and Franklin also testified, stating that they did not know Visario or
Gutierrez and had not given either man the items at issue or permission to use their personal
information. Franklin testified that, prior to this incident, she ordinarily received her paychecks
in the mail, but that the check at issue never arrived. Bowen recalled ordering a replacement
credit card about a year prior that never arrived, requiring him to cancel it and have a new one
3 No. 45487 -4 -II
issued, but did not recall discovering any unauthorized charges. Friend did not know of any
American Express credit card having been issued to her with the information on the application
found in the vinyl envelope.
Gutierrez did not testify. The defense rested without presenting any evidence.
The deputy prosecutor began his closing argument as he had begun his opening
statement, with the sayings " when you are in for a penny, you are in for a pound" and
sometimes when you lie down with dogs, you get fleas." 3 VRP at 406. He then argued that
Visario and Gutierrez " were working together that day" and " because of that, they become
responsible for each other' s criminal activities." 3 VRP at 407.
The prosecutor then went on to explain the law of accomplice liability using the court' s
instruction:
The instruction explains that a person is an accomplice in the commission of a crime if with the knowledge that it will promote or facilitate the commission of the crime he or she either solicits, commands, encourages or requests another person to
commit the crime, or two, aids or agrees to aid another person in planning on [ sic] committing the crime.
3 VRP at 407. Gutierrez did not object to this portion of the prosecutor' s argument or to the jury
instruction that the argument largely tracked.
The jury returned guilty verdicts on the counts involving the Valley Medical Center
check and Bowen' s credit card, but did not reach unanimous agreement on the two counts,
forgery and identity theft, involving the American Express application. The court entered
convictions on the jury' s verdicts, imposing concurrent sentences resulting in 12 months'
confinement and 12 months' community supervision.
As part of the sentence, the court imposed LFOs, including $ 1, 500 in " Court -Appointed
Attorney Fees and Defense Costs." CP at 113. Other than a preprinted finding in the judgment
R No. 45487 -4 -II
and sentence, no evidence in the record suggests that the court considered Gutierrez' s present or
future ability to pay, but he did not object to this finding in the sentencing proceeding or to the
imposition of the LFOs. Gutierrez appeals.
ANALYSIS
Because Gutierrez' s challenge to the sufficiency of the evidence, if successful, could
obviate the need to consider other claims, we begin there, then turn to his claims of prosecutorial
misconduct and ineffective assistance of counsel. Because we remand for resentencing, we
decline to address Gutierrez' s claim that the trial court erred in failing to consider his ability to
pay certain LFOs.
I. SUFFICIENCY OF THE EVIDENCE
Gutierrez contends that insufficient evidence supports the forgery and identity theft
convictions based on the Valley Medical Center check, because the State failed to establish facts
from which the jury could properly hold him liable as an accomplice. He further contends that
insufficient evidence supports the identity theft and possession of stolen property convictions
based on the Bowen credit card, because the State presented no evidence of the requisite mens
rea for the crimes other than Gutierrez' s possession of the card itself.
After setting forth the standard of review, we address Gutierrez' s claim concerning
accomplice liability for the check charges. We then turn to his claim regarding the criminal
charges based on the Bowen credit card.
A. Standard of Review
In evaluating the sufficiency of the evidence, we review the record in the light most
favorable to the State. State v. Ehrhardt, 167 Wn. App. 934, 943, 276 P. 3d 332 ( 2012) ( citing
State v. Drum, 168 Wn.2d 23, 34, 225 P. 3d 237 ( 2010)). We ask "` whether any rational fact
5 No. 45487 -4 -II
finder could have found the essential elements of the crime beyond a reasonable doubt."' Drum,
168 Wn.2d at 34- 35 ( quoting State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d 282 ( 2003)).
An appellant who claims that insufficient evidence supports his conviction " admits the
truth of the State' s evidence and all reasonable inferences therefrom." Ehrhardt, 167 Wn. App.
at 943 ( citing Drum, 168 Wn.2d at 35). Where " the inferences and underlying evidence are
strong enough to permit a rational fact finder to find guilt beyond a reasonable doubt, a
conviction may be properly based on ` pyramiding inferences."' State v. Bencivenga, 137 Wn.2d
703, 711, 974 P. 2d 832 ( 1999) ( quoting 1 CLIFFORD S. FISHMAN, JONES ON EVIDENCE: CIVIL AND
CRIMINAL § 5. 17, at 450 ( 7th ed. 1992)). Inferences drawn from circumstantial evidence " must
be reasonable and cannot be based on speculation." State v. Vasquez, 178 Wn.2d 1, 16, 309 P. 3d
318 ( 2013) ( citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
1979)).
B. Accomplice Liability for Visario' s Attempt To Cash the Check
As relevant, the accomplice liability statute provides that "[ a] person is guilty of a crime
if it is committed by the conduct of another person for which he or she is legally accountable,"
namely, " when... [ h] e or she is an accomplice of such other person in the commission of the
crime." RCW 9A.08. 020( 1), ( 2)( c). The statute specifies that
a] person is an accomplice of another person in the commission of a crime if: a) With knowledge that it will promote or facilitate the commission of the crime, he or she: i) Solicits, commands, encourages, or requests such other person to commit it; or ii) Aids or agrees to aid such other person in planning or committing it.
RCW 9A. 08. 020( 3). The trial court instructed the jury accordingly.
Our Supreme Court has made clear that, to be liable as an accomplice, the defendant
must have acted with knowledge that he or she was promoting or facilitating the crime for
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which [ he] was eventually charged." State v. Cronin, 142 Wn.2d 568, 579, 14 P. 3d 752 ( 2000).
Specifically, the defendant must "` have the purpose to promote or facilitate the particular
conduct that forms the basis for the charge"' and "` will not be liable for conduct that does not
fall within this purpose."' State v. Roberts, 142 Wn.2d 471, 510- 11, 14 P. 3d 713 ( 2000) ( quoting
MODEL PENAL CODE § 2. 06 cmt. 6( b) ( 1985)) ( emphasis omitted).
Thus, " one' s presence at the commission of a crime, even coupled with a knowledge that
one' s presence would aid in the commission of the crime, will not subject an accused to
accomplice liability." State v. Rotunno, 95 Wn.2d 931, 933, 631 P. 2d 951 ( 1981). Instead, for
accomplice liability to attach, the evidence must show that the merely present defendant at least
stood " ready to assist." Rotunno, 95 Wn.2d at 933 ( internal quotation marks omitted).
Gutierrez contends that the evidence showed only that he was present at the Checkmate
while Visario presented the check and that he sought the return of Visario' s identification when
the teller said she would call the police. He points out that the evidence is equally consistent
with his simply having become impatient with the delay, and that, because Visario drove the car
in which the men arrived, he could quite innocently have demanded the return of the
identification so that he could go about his business. From this he argues that the State failed to
prove that he knew about Visario' s criminal aim, let alone that he had the purpose to promote or
facilitate it or stood ready to assist.
The jury could reasonably infer from the evidence that Gutierrez not only stood ready to
assist, but that he actually did assist by angrily demanding the return of Visario' s identification
once the teller said she would call police. Thus, the only issue is whether the jury could properly
infer from the evidence that Gutierrez knew Visario was presenting a forged check.
7 No. 45487 -4 -II
Gutierrez' s anger itself when the teller mentioned the police suggests that he knew
Visario' s purpose. Gutierrez' s initial resistance to Malave' s effort to detain him also tends to
suggest he knew that Visario was doing something illegal, albeit only weakly: an innocent
person could also reasonably take umbrage at being arrested.
However, in light of the discovery of the incriminating documents inside the vehicle in
which both men arrived, Gutierrez' s conduct in the Checkmate gives rise to a much stronger
inference that he knew Visario was presenting an altered check. Viewing the evidence and.
drawing all reasonable inferences favorably to the State, the jury could properly have inferred
beyond a reasonable doubt that Gutierrez knew Visario was engaging in the criminal conduct
that gave rise to the identity theft and forgery charges involving the Valley Medical Center
check. Because Gutierrez did not just passively stand by, but stood ready and actually sought to
assist Visario, we therefore hold that sufficient evidence supports his convictions as an
accomplice to the identity theft and forgery charges based on Visario' s presentation of the check.
C. Evidence of Knowledge and Intent as to the Charges Based on the Credit Card
Gutierrez was convicted of one count of second degree possession of stolen property and
one count of second degree identity theft based on his possession of the Bowen credit card. The
criminal code defines possession of stolen property in relevant part as " knowingly to receive,
retain, [ or] possess ... stolen property knowing that it has been stolen and to withhold or
appropriate the same." RCW 9A. 56. 140( 1). The identity theft statute requires the State to prove
that the defendant " knowingly obtain[ ed], possess[ ed], use[ ed], or transfer[ ed] a.means of
identification or financial information of another person, living or dead, with the intent to
commit, or to aid or abet, any crime." RCW 9. 35. 020( 1). No. 45487 -4 -II
As to the possession of stolen property charge based on Bowen' s credit card, Gutierrez
contends the State presented no evidence that he knew the card had been stolen other than the
fact of his possession itself, which is insufficient as a matter of law. As to the identity theft
charge, he argues that the State presented insufficient evidence not only to show that he knew it
was stolen, but that he intended to commit, aid, or abet a crime. We address each claim in turn.
1. Knowledge That the Card Was Stolen
Our Supreme Court has held that, where a criminal statute requires knowledge that
property is stolen, " bare possession of recently stolen property alone is not sufficient to justify a
conviction." State v. Couet, 71 Wn.2d 773, 775, 430 P. 2d 974 ( 1967). The court noted,
however, that "[ w]hen a person is found in possession of recently stolen property, slight
corroborative evidence of other inculpatory circumstances tending to show his guilt will support
a conviction." Couet, 71 Wn.2d at 776 ( internal quotation marks omitted).
The circumstances here give rise to a reasonable inference that someone stole the card
from Bowen' s mailbox less than a year before police discovered it in Gutierrez' s wallet. As
shown above, the jury could properly have inferred that Gutierrez acted as an accomplice to the
crimes involving the Valley Medical Center check, which someone apparently took from
Franklin' s mailbox. The evidence also showed that the vinyl envelope contained similarly
altered checks, one showing Visario as payee, and a suspicious credit card application containing
Friend' s personal information but Gutierrez' s address.
This provides at least " slight corroborative evidence" that Gutierrez knew that the Bowen
credit card was stolen. Couet, 71 Wn.2d at 776 ( internal quotation marks omitted). Thus, under
Couet sufficient evidence supports the inference that Gutierrez knew that the card was stolen.
9 No. 45487 -4 -II
With that, Gutierrez' s challenge to the sufficiency of the evidence supporting his conviction for
possession of stolen property must fail.
2. Intent to Commit, Aid, or Abet a Crime for Purposes of Identity Theft
Our Supreme Court recently discussed the degree of proof necessary to. infer criminal
intent in the context of a challenge to the sufficiency of the evidence supporting a forgery
conviction:
When intent is an element of intent to commit a crime may be the crime, "
inferred if the defendant' s conduct and surrounding facts and circumstances plainly indicate such an intent as a matter of logical probability." State v. Woods, 63 Wn.
App. 588, 591, 821 P. 2d 1235 ( 1991). Though intent is typically proved through circumstantial evidence, "[ i] ntent may not be inferred from evidence that is patently equivocal'." [ Woods, 63 Wn. App.] at 592 ( quoting State v. Bergeron, 105 Wn.2d 1, 20, 711 P. 2d 1000 ( 1985); State v. Couch, 44 Wn. App. 26, 32, 720 P. 2d 1387 ( 1986)).
Vasquez, 178 Wn.2d at 8. The Vasquez court held that Vasquez' s possession of forged
identification cards, together with his statement to a security guard that the cards were his and
evidence that Vasquez held a job, was insufficient to support the necessary inference of intent to
injure or defraud. 178 Wn.2d at 14- 18.
In reaching this conclusion, the Vasquez court relied in part on the New York Court of
Appeals' decision in People v. Bailey, 13 N.Y. 3d 67, 915 N.E. 2d 611 ( 2009), which is also
instructive here. Vasquez, 178 Wn.2d at 10. Police arrested Bailey after observing him attempt
to pickpocket restaurant patrons, searched him, and found money that Bailey admitted knowing
was counterfeit. Bailey, 13 N.Y.3d at 69. The trial court convicted Bailey of first degree
criminal possession of a forged instrument, requiring intent to defraud, deceive or proof of "`
injure another."' Bailey, 13 N.Y.3d at 69- 70 ( quoting McKrNNEY' s PENAL LAW § 170. 30). New
York' s intermediate appellate court affirmed,
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reason[ ing] that the totality of the evidence, including defendant' s statement to the police evincing a consciousness of guilt, and the lack of any reason for the defendant to be carrying counterfeit bills in a shopping district other than to pass them, supported the inference that he possessed the bills with the requisite intent.
Bailey, 13 N.Y.3d at 70.
The Court of Appeals reversed, rejecting the argument that " the requisite intent for
possessing a forged instrument can be drawn from defendant' s presence in a shopping district,
his possession of counterfeit bills, and his larcenous intent." Bailey, 13 N.Y.3d at 72. The court
relied on the principle that " the intent to commit a crime must be specific to the crime charged."
Bailey, 13 N.Y.3d at 72. That is, Bailey' s attempts to pick pockets did not adequately support
the inference that he intended to pass counterfeit currency, even though he knew the bills were
fake and possessed them in a retail shopping area. Bailey, 13 N.Y.3d at 72.
Similarly, Gutierrez' s conduct at the Checkmate, together with the surrounding facts and
circumstances, does not plainly indicate intent to commit, aid, or abet, a crime involving the
Bowen credit card " as a matter of logical probability." Vasquez, 178 Wn.2d at 8 ( internal
quotation marks omitted). In light of Vasquez and Bailey, Gutierrez' s apparent intent to help
Visario pass a forged check does not properly support the inference that he intended to commit
or abet a crime involving Bowen' s credit card, even though the jury could properly infer he knew
it was stolen. Even when viewed in the light most favorable to the State, the evidence- supporting
the necessary inference remains " patently equivocal." Vasquez, 178 Wn.2d at 8 ( internal
quotations marks omitted). Consequently, insufficient evidence supports the identity theft
conviction based on the Bowen credit card.
II. PROSECUTORIAL MISCONDUCT
Gutierrez contends that the prosecutor committed flagrant and ill -intentioned misconduct
by using the sayings " when you are in for a penny, you are in for a pound" and " sometimes when
11 No. 45487 -4 -II
you lie down with dogs, you get fleas" in his opening statement and closing argument. Br. of
Appellant at 10- 14. Specifically, Gutierrez argues that ( 1) these remarks misstated the law and
invited the jury to decide the case on. an improper basis, ( 2) case law clearly proscribed such
statements at the time of his trial, and ( 3) no instruction could have cured the resulting prejudice.
In the alternative, Gutierrez argues that his trial counsel rendered ineffective assistance by not
objecting to these remarks'.
A. The Remarks Were Improper, but Were Not Prejudicial and Could Have Been Cured by an Instruction
To prevail on a prosecutorial misconduct claim, a defendant must show that the
prosecutor' s conduct was both improper and prejudicial " in the context of the record and all of
the circumstances of the trial." In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286
P. 3d 673 ( 2012), petition for cert, filed July 8, 2015. To establish prejudice, the defendant must
show a substantial likelihood that the misconduct affected the jury verdict." Glasmann, 175
Wn.2d at 704. A defendant who failed to object at trial must also establish " that the misconduct
was so flagrant and ill intentioned that an instruction would not have cured the prejudice."
Glasmann, 175 Wn.2d at 704. Prosecutors enjoy " wide latitude to argue reasonable inferences
from the evidence." Glasmann, 175 Wn.2d at 704. A prosecutor commits misconduct, however,
by misstating the law. State v. Fleming, 83 Wn. App. 209, 213, 921 P. 2d 1076 ( 1996).
Gutierrez relies primarily on Cronin, 142 Wn.2d at 577, where the prosecutor used the
expression " in for penny, in for a pound," and our Supreme Court ultimately reversed. The
Court, however, reversed Cronin' s murder conviction because the trial court had instructed the
jury that it could convict " if it found that he knew he promoted or facilitated the commission of a
crime," thus relieving the State of its burden to prove the essential element that he " acted with
12 No. 45487 -4 -II
knowledge that his or her conduct would promote or facilitate the crime" for which he was
charged. Cronin, 142 Wn.2d at 578- 79, 582 ( internal quotation marks omitted).
Unlike Cronin, this case does not involve an erroneous jury instruction. The challenged
statements by the prosecutor, though, invited the jury to find accomplice liability based on
association or presence alone, a standard rejected by Rotunno, 95 Wn.2d at 933. The statements
also invited the jury to find liability based on Gutierrez' s knowledge that his actions would
promote any crime, a standard rejected by Cronin. Thus, the prosecutor' s remarks misstated the
law and constituted misconduct.
However, even if the prosecutor' s argument constituted misconduct, we fail to see how
the improper remarks could have prejudiced Gutierrez. The charged offenses comprised the only
criminal conduct he could have intended to aid Visario in committing under the evidence
presented. Nothing in the record suggested he may have believed that Visario only planned to
commit some lesser offense. Thus, any suggestion that Gutierrez' s liability could rest on
knowledge he. was facilitating any crime would have no practical effect.
Further, although the deputy prosecutor began by suggesting that Visario and Gutierrez
bec[ a] me responsible.for each other' s criminal activities" merely because they " were working
together that day," he immediately proceeded to properly explain the law of accomplice liability
using the trial court' s instruction. 3 VRP at 407. That instruction accurately informed the jury
that "[ a] person is an accomplice in the commission of a crime if, with knowledge that it will
promote or facilitate the commission of the crime, he ... aids or agrees to aid another person in
planning or committing the crime." CP at 77; see Cronin, 142 Wn.2d at 579.
Most importantly, our Supreme Court has held that a curative instruction could remedy
the prejudice flowing even from a prosecutor' s serious misstatement of the law. E.g., State v.
13 No. 45487 -4 -II
Emery, 174 Wn.2d 741, 764, 278 P. 3d 653 ( 2012); State v. Warren, 165 Wn.2d 17, 28, 195 P. 3d
1940 ( 2008). As noted, because Gutierrez failed to object at trial, he must also establish " that the
misconduct was so flagrant and ill intentioned that an instruction would not have cured the
prejudice." Glasmann, 175 Wn.2d at 704. This he cannot do. Therefore, his prosecutorial
misconduct claim fails.
B. No Ineffective Assistance of Counsel
Gutierrez also contends that his attorney' s failure to object to the prosecutor' s remarks
amounted to ineffective assistance because " the bulk of the prosecution' s case ... was based on
the theory of accomplice liability," and therefore " the prosecutor' s repeated evocative
misstatements of the requirements for such liability were extremely likely to have a highly
prejudicial effect." Br. of Appellant at 14. We disagree.
Claims of ineffective assistance of counsel present mixed questions of law and fact that
we review de novo. State v. A. N.J., 168 Wn.2d 91, 109, 225 P. 3d 956 ( 2010). " The benchmark
for judging any claim of ineffectiveness must be whether counsel' s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having produced .
a just result." Strickland v. Washington, 466 U.S. 668; 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
1984). A defendant who raises an ineffective assistance claim " bears the burden of showing
that ( 1) his counsel' s performance fell below an objective standard of reasonableness and, if so,
2) that counsel' s poor work prejudiced him." A.N.J., 168 Wn.2d at 109.
With respect to the first prong, "[ t]here is a strong presumption that defense counsel' s
conduct is not deficient," but the defendant rebuts that presumption if "no conceivable legitimate
tactic explain[ s] counsel' s performance." State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d
80 ( 2004). To meet the prejudice prong, a defendant must show, " based on the record developed
14 No. 45487 -4 -II
in the trial court, that the result of the proceeding would have been different but for counsel' s
deficient representation." State v. McFarland, 127 Wn.2d 322, 337, 899 P. 2d 1251 ( 1995).
As discussed above, Gutierrez' s claim that the prosecutor' s remarks caused any prejudice
appears tenuous at best. He does not explain what other crime the jury may have concluded he.
intended to facilitate in finding accomplice liability, nor does he rebut the presumption that the
jury followed the court' s instruction to disregard remarks that conflicted with the law as
explained by the court. Given that the prosecutor followed the remarks with an accurate
statement of the law, it is difficult to see what more an objection and request for a curative
instruction could have accomplished.
Under these circumstances, furthermore, defense counsel' s decision not to object could
conceivably have resulted from legitimate tactical considerations. Indeed, the record shows that
defense counsel sought in his own closing argument to use the improper remarks to undermine
the prosecutor' s credibility with the jury, pointing out that they did not comport with the court' s
instructions.
Gutierrez can neither rebut the presumption of competent performance nor demonstrate
prejudice. His claim of ineffective assistance fails.
CONCLUSION
We reverse the second degree identity theft conviction arising from Gutierrez' s
possession of the Bowen credit card, affirm his other convictions, and remand for resentencing.
Because we remand for resentencing, we decline to address Gutierrez' s claim regarding the
imposition of LFOs, except to note that the sentencing court must consider his ability to pay on
15 No. 45487 -4 -II
remand consistently with our Supreme Court' s recent opinion in State v. Blazina, 182 Wn.2d
827, 344 P. 3d 680 ( 2015) ( affirming Court of Appeals' exercise of discretion to refuse to address
issue raised for the first time on appeal, but exercising its own discretion to reach the issue and .
remand to 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.
B RG r A. CT
We concur:
I a
SUTTON, J.
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