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 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                                    Respondent,                        UNPUBLISHED OPINION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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No. 45487 -4 -II



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



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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


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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



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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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No. 45487 -4 -II



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.




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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.




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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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No. 45487 -4 -II



          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

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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




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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.



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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




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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




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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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