                                                                                            FILED
                                                                                 COURT OF APPEALS
                                                                                       DIVISION II
                                                                               2015 JAN 13 MI
                                                                                                            16

                                                                                STATE OF WASHINGTON
                                                                               13Y-
      IN THE COURT OF APPEALS OF THE STATE OF                                                   I IN             ON

                                                    DIVISION II

 STATE OF WASHINGTON,                                                             No. 45119 -1 - II


                                      Respondent,


         v.



 RAYNARD SANTOS CHARGUALAF,                                                 UNPUBLISHED OPINION


                                      Appellant.




         WoRSwICK, P. J. —        Raynard Santos Chargualaf appeals the trial court' s restitution order.


Chargualaf argues that he received ineffective assistance of counsel because his defense counsel

refused to agree to a continuance after the late disclosure of evidence. This court disagrees and

affirms. 1

                                                       FACTS


         A jury found Chargualaf guilty of one count of first degree burglary, one count of first

degree robbery, four counts of first degree kidnapping, and one count of unlawful possession of a

firearm.2 On November 5, 2012, the trial court held a restitution hearing. During the hearing,




1 A commissioner of this court initially heard this appeal as a motion on the merits under RAP
18. 14 and then transferred it to a panel of judges.

2
    Chargualaf   appealed   his   conviction   in   cause number    43502 -1 - II (filed   May 6,   2014). This
court affirmed    his   conviction and   his   petition   for   review   to the Supreme Court       was   denied.
No. 45119 -1 - II




the State moved to introduce evidence compiled by the victim to support her valuation of the

stolen or damaged items. Chargualaf had not seen the evidence prior to the hearing.

         Defense counsel objected to the admission of the evidence on the basis of late disclosure.

The trial court declined to exclude the evidence, but stated that it would grant a continuance if


requested by defense counsel. Defense counsel declined the continuance and proceeded with the

restitution hearing. The victim testified to the value of the stolen items and, in part, relied on the

admitted evidence    to   support    her   valuation of    the   items. She testified that she had received an


insurance   payout of $1,   700. Chargualaf and his codefendants argued that the amount of


restitution should not exceed the valuation by the insurance company and that there was no way

to know the accuracy of the victim' s valuation. The trial court disagreed and ordered restitution

in the   amount requested        by the   victim: $   26, 124. 02.


                                                       ANALYSIS


          Chargualaf appeals arguing that he received ineffective assistance of counsel because his

defense counsel did not agree to a continuance. To prevail on an ineffective assistance of

counsel claim the defendant must establish that ( 1) defense counsel' s performance was deficient

and ( 2) defense counsel' s deficient performance prejudiced the defendant. Strickland v.

Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                 Failure to establish


either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.

          Our scrutiny of counsel' s performance is highly deferential. We strongly presume

reasonableness.     State   v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).            To establish


prejudice, a defendant must show a reasonable probability that the outcome would have differed

absent the deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987).




                                                              2
No. 45119 -1 - II




        First, Chargualaf cannot demonstrate deficient performance. He argues that counsel' s


performance was deficient because, if counsel had agreed to the continuance, counsel would


have had additional time to find information to undermine the accuracy of the victim' s

information. But counsel was able to undermine the accuracy of the information without the

additional time. It was established that the information came from internet web sites and was not


for exactly the same items that had been stolen. Because defense counsel was able to attack the

accuracy of the information without a continuance, the decision not to agree to a continuance

was not unreasonable. Accordingly, Chargualafs ineffective assistance of counsel claim fails.

        Second, even if counsel' s performance was deficient, Chargualaf has not met his burden

to show prejudice. Although Chargualaf lists numerous things that defense counsel could have

done with additional time, he does not explain how those things would have changed the result


of the hearing. Additional time would not have resulted in the evidence being suppressed. And,

the potential inaccuracy of the valuation was pointed out to the trial court. It does not appear that

there would be a reasonable probability that the outcome of the hearing would have been

different if defense counsel had taken more time to find additional information to undermine the


accuracy of the evidence.

        Chargualaf has failed to demonstrate that his counsel' s performance was deficient or


prejudicial. Because he cannot meet his burden to prove either prong of the Strickland test,

Chargualaf s ineffective   assistance of counsel claim   fails.
No. 45119 -1 - II




        We affirm the restitution order.


        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.



                                                                                        dwa'.
                                                                      Worswick, P. J.
 We concur:




Sutton, J.




                                                   4
