              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION ONE

THE STATE OF WASHNGTON,                        )       No. 78092-1-I

                              Respondent,

                    v.                         )       UNPUBLISHED OPINION

RALPH ARTIAGA,                                 )
                              Appellant.       )       FILED: July 22, 2019

       SCHINDLER, J.      —   Ralph Artiaga appeals his jury conviction for residential

burglary. Artiaga contends ineffective assistance of counsel deprived him of his Sixth

Amendment right to a fair trial. In a supplemental brief, Artiaga asks the court to

remand to strike the $100 DNA1 fee. We affirm the conviction but remand to strike the

DNAfee.

                                               FACTS

       Kelsea Pullin works for Microsoft and lives in an apartment in Kirkland. In

January 2016, PuIlin and Ralph Artiaga began dating. Pullin and Artiaga spent “almost

every day of the week” together. Pullin and Artiaga kept ‘separate apartments” but they

would “stay at each other’s places.”




       1   Deoxyribonucleic acid.
No. 78092-1-1/2

       Pullin had two copies of the key to her apartment. Artiaga often spent the night

at Pullin’s apartment and at “certain times he’d have a   —   the second key.” Artiaga had

access to Pullin’s apartment “when [she] would be at work.”

       The relationship became “toxic” and Pullin and Artiaga “broke up in May.” Pullin

told Artiaga to “get out, take your stuff,” and “blocked him on all outlets.” Pullin took her

key back and “didn’t talk to him for an extended period of time.”

       Pullin and Artiaga reconnected at the “[e]nd of June.” Pullin and Artiaga were

“taking it slow.” But soon Artiaga began “staying at [her] apartment again” almost every

night. Pullin gave Artiaga a key to her apartment.

       After an argument in July, Artiaga bought Pullin a puppy because Pullin told

Artiaga that she “always wanted a puppy.” Artiaga said it was a “birthday gift.” Pullin

was concerned that Artiaga would use the puppy as “manipulation” to stay together.

Pullin made it “very clear, like you bought her for me. I’m going to name her. I’m going

to put everything in my name. Like this is my dog.” Pullin made sure the puppy was

vaccinated and obtained pet insurance.

       Pullin testified that in August, they got into “another argument.” Pullin told

Artiaga to leave and “made that very clear” that she “wanted the key back.” Artiaga

refused to return the key.

       Pullin went on a vacation in August. Pullin asked her brother to watch the puppy

while she was gone.

       Pullin returned from vacation late at night on August 29. When she woke up the

next morning, Pullin called Artiaga to “ask for [her] key back.” Artiaga got upset.




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No. 78092-1-1/3

Artiaga “raised his voice” and “said, no, I’m not bringing the key back.” Artiaga told

Pullin, “You can come get it yourself.             .   .       .       {Y]ou should just get your locks changed.”

                   At around 9:00 or 10:00 p.m. on August 30, Pullin went out to “the Lodge” in

Kirkland with a male friend. Sometime after midnight, they went back to her apartment.

               Artiaga called Pullin and said he was “on his way over.” Pullin said “[N]o, you’re

not.   .   .       .   You’re not welcome.” Artiaga said, “[O]h, yes I am, watch me,” and “hung up

the phone.”

               At 1:00 or 1:30 am., as Pullin’s male friend opened the door to leave her

apartment, Artiaga “barge[d]” in. Artiaga went into the kitchen, “grab[bed} a butcher

knife,” and “started waving it around.” Artiaga called Pullin a “fucking slut” and told her

friend to “get the fuck out.” Artiaga “went into the living room” and “grabbed” the puppy.

As he “zoomed out the front door,” Artiaga said, “You’re never getting your dog back.”

               Pullin called 911. Kirkland Police Officer Michael Lisenby pulled into the

apartment complex in a “fully-marked police SUV”2 and saw a “newer black passenger

car out in front of the apartment complex that was kinda slowly rolling.” Officer Lisenby

saw “a female running towards the car,                     .       .   .   she was screaming.” The woman “[pjointed

    to the car” and said, “That’s him, that’s him.”

               Officer Lisenby started to get out of the police car “to get him to stop.” Officer

Lisenby wore his full police uniform. As the car was “continuing toward my vehicle,”

Officer Lisenby yelled, “[S]top, police.” The driver, later identified as Ralph Artiaga, did

not stop. Artiaga “hit the accelerator and drove off at high speed,” heading “southbound

onto the main thoroughfare of 124th Avenue.” Officer Lisenby “got back in my car to go

off after him.”
               2       Sport-utility vehicle.


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No. 78092-1-1/4

        Artiaga “made a turn onto      .   .   .   112th Place.” The car pulled over “on the side of

the road” and Artiaga got out of the car and “started running southbound.” Officer

Lisenby ran after him and yelled, “Stop, police.” Artiaga did not stop. Officer Lisenby

caught up with Artiaga and tried “to take him into custody.” Officer Lisenby grabbed

Artiaga and they “ended up going to the ground.” Corporal Cody Mann arrived and

helped Officer Lisenby detain Artiaga. Officer Lisenby arrested Artiaga. The officers

found the puppy in the car.

        Officer Lisenby read Artiaga his Miranda3 rights. Artiaga waived his Miranda

rights and agreed to talk. Corporal Mann returned the puppy to Pullin.

       The State charged Artiaga with residential burglary domestic violence and

attempting to elude a pursuing police vehicle. The State also charged Artiaga with

assault in the second degree domestic violence. The State later dismissed the assault

charge.

       Pullin, her neighbor Rebecca Johnson, Officer Lisenby, and Corporal Mann

testified at trial. Pullin testified that after the fight in August, she never asked Artiaga “to

come over” and “take care of the dog” and did not ask him to “watch the dog during [her]

trip.” Pullin testified that in July, Artiaga told her that the puppy is “mine, I bought her. I

paid for her.” Pullin told Artiaga, “[N]o, you gave her to me as a gift.”

       Pullin testified that when she was on vacation, she wanted to “end, solidly, what

was going on with him.” Pullin said that Artiaga “wasn’t sort of on the same page” and

continued to send text messages, ‘saying things like I miss you, I can’t wait for you to

come home.” Pullin testified that Artiaga went to her apartment while she was on

vacation to “get his stuff.”
       ~ Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                        4
No. 78092-1-1/5

       Pullin testified that when she asked for the key back after she returned from

vacation, she told Artiaga she “needed the key because my friend Erin was going to be

watching [the puppy] that week or night, whatever it was, so my friend needed access to

pick up” the puppy.

       On cross-examination, Pullin testified that she had to “clarify          .   .   .   with him over

and over again” that the dog was hers. Pullin said they had the “same conversation                              .




[m]ultiple times” and it was a “constant issue.” Pullin said she repeatedly told Artiaga

that “he has no ownership if he’s giving this dog to me as a gift.” Pullin had to “clarify

with him time and time again” because it was “[u]nclear to him.”

       On redirect, Pullin testified that Artiaga “signal[led] that he understood” their

conversations about the dog. Pullin said Artiaga sent a text message saying, “[S]he’s

yours.” Pullin testified, “[F]or the most part I felt like he understood.”

       Rebecca Johnson testified that she lived in the same apartment complex as

Pullin. Johnson said that “in the early morning hours of August 30th,” she heard “a

blood curdling sort of scream really, really loud outside my window.” Johnson testified

that she called 911.

       Officer Lisenby and Corporal Mann testified about the statements Artiaga made

after waiving his Miranda rights. Artiaga told Officer Lisenby:

       [Artiaga] and his on-and-off girlfriend were separated, but he  she had  —


       been wanting the key back that he still had. He wanted to get his dog,                          .   .


       which was at the apartment, and he said he figured that she wasn’t there,
       so he was going to go there to get the dog while hopefully she was gone.

Artiaga told Officer Lisenby that “when he got there,    .   .   .   he used the key to        .   .   .   open the

door, and as he was doing that, another male that was there op— continued to open the

door.” Artiaga “thought they were going to possibly fight, but they didn’t.” Artiaga told


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No. 78092-1-1/6

Officer Lisenby that “he wanted the dog and that he ended up taking the dog and left.”

Artiaga told Officer Lisenby that “there was no knife involved.” Corporal Mann testified

that Artiaga said he “believed that he was still in a dating relationship with Ms. Pullin”

and was “surprised to see another man there.”

       Kendrick Tipler testified for the defense. Tipler testified that he worked in a

sports bar called “the Dub Pub” next door to Pullin’s apartment. Tipler said that he and

Artiaga became friends. Tipler testified that Artiaga lived in the apartment “with his

girlfriend.” Tipler said he “hung out” with Artiaga “four or five nights a week” at either

“my house, or his house.” Tipler testified that he “remember[ed] the day when he got

the dog.” Tipler testified Artiaga would sometimes “bring the dog with him” to the pub.

       Because the State was “proceeding with the theft of the dog” as the underlying

crime, defense counsel proposed a residential burglary instruction that strikes the

language “against a person” and states only “to commit a crime against property

therein.” Defense counsel proposed giving instructions on “the theft definition as well as

the affirmative defense of theft.” Defense counsel requested a lesser included offense

instruction for attempting to elude a pursuing police vehicle of failure to obey an officer’s

commands.

       The court agreed to give the defense instruction on residential burglary,

instructions on theft and the defense of good faith claim of title, and the instruction on

the lesser included offense of failure to obey.

       In closing argument, the prosecutor argued the State proved beyond a

reasonable doubt that Artiaga unlawfully entered and remained in Pullin’s apartment

“with the intent to commit a crime against property” and commit theft of the puppy. The



                                              6
No. 78092-1-117

prosecutor argued that burglary can be “done by someone who was once welcome in

your home but is no longer welcome.” The prosecutor argued Pullin could “withdraw

her consent” and “that is precisely what she did.” The prosecutor argued Pullin “kicked

him out” and “tried to get that key back” in August.

         The prosecutor argued Artiaga “did not have a good-faith claim of title” to the

puppy.

                 So the big question is the dog. Is there an intent to commit a crime
         inside the apartment? We heard a lot of testimony about the dog. It’s
         very clear that everybody involved cares a lot about that dog. She’s a
         very cute little dog. But the question is whether or not the defendant had a
         good-faith claim on the dog, and the answer is no.

The prosecutor argued Artiaga “brought the dog home to [Pullin]” and it “was an early

birthday present.” The prosecutor argued Pullin “had a conversation with the defendant

the next day” and said, “[T]his is going to be my dog. It’s not our dog. It’s my dog. I’m

paying for it. I’m naming the dog, getting insurance, all of that.” The prosecutor argued,

“And this was reiterated on multiple occasions, clear as a bell.”

         The prosecutor argued that “after she kicked him out on August 9th and 10th,”

Artiaga “wasn’t taking care of the dog. Kelsea was having her friends help her.” The

prosecutor argued, “The defendant did not have possession of that dog. And Kelsea

had made it clear the dog belonged to her.”

         Defense counsel argued, “[T]he fact that Ralph believed he was allowed to be in

her apartment and that he went there with the key, and the fact that he clearly believed

this to be his dog, even if Ms. Pullin disagrees, these show that the State has failed to

meet its burden of proof on the charge of residential burglary.”




                                              7
No. 78092-1-1/8

       Defense counsel argued the evidence “shows that Ralph believed he could just

go there, that he could be there.” Defense counsel argued that in August, “they didn’t

entirely break up” and Artiaga “still had a key to her apartment.” Defense counsel

argued Pullin knew that Artiaga went to her apartment while she was on vacation and

he “would communicate with her in the same way, saying that he missed her, that he

can’t wait for her to come back. And she never said anything to lead him to believe

anything different.” Defense counsel argued that how Pullin “was feeling during that

time” was “not relevant” because Artiaga “didn’t know any of that. He didn’t know that

she wanted to break up with him.”

       Defense counsel argued that Artiaga went to Pullin’s apartment “to take

something that he believed was his, his dog Olivia, a dog that he bought, a dog that he

cared for, and that he took care of day in and day out.” Defense counsel argued that

the State “must prove that he entered and remained unlawfully in a dwelling, and the

State also has to prove that he did so with the intent to commit a crime against property

there, to commit a theft” of the dog. Defense counsel emphasized the evidence showed

Artiaga had a good faith claim of title to the puppy:

                 Now, we’ve heard the definition of theft, and then we’ve heard that
       there is a defense of theft, which is good-faith claim of title. And you can
       read about this definition in your jury instructions, but what it says is that it
       is a defense to theft if a person openly and avowedly by a good-faith claim
       of title, even if the claim is untenable. So this is about what Ralph
       believed was his, what he put forward to being his, and the State has to
       prove beyond a reasonable doubt that that’s not the case.

       Defense counsel argued it is “clear that both Ms. Pullin and Mr. Artiaga really

loved their dog.   .   .   .   You heard that he took care of the dog. You heard that he bought




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No. 78092-1-1/9

the dog.” Defense counsel argued that Artiaga “believed this to be his dog.” Defense

counsel said:

       She’s saying it’s my dog, and he’s saying, you know, I don’t agree with
       you. And this keeps coming up, argument after argument, she said at
       least five times in those two months. If he was agreeing with her, there
       would be no need to have these ongoing conversations.

Defense counsel argued Artiaga believed that “he had claim of title to the dog,   .   .   .   he

believed it was his.”

       The jury found Artiaga guilty of residential burglary. The jury found Artiaga not

guilty of attempting to elude a pursuing police vehicle. The jury convicted Artiaga of the

lesser included crime of failure to obey. By special verdict, the jury found that Artiaga

and Pullin were not “members of the same family or household prior to or at the time the

crime was committed.”

                                            ANALYSIS

Ineffective Assistance of Counsel

       Artiaga contends his attorney provided ineffective assistance of counsel by (1)

not requesting a jury instruction on the lesser included offense of criminal trespass in

the first degree for the charge of residential burglary and by (2) proposing an inaccurate

instruction on good faith claim of title.

       The Sixth Amendment to the United States Constitution and article I, section 22

of the Washington Constitution guarantee the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); Statev. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). We review claims of

ineffective assistance of counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204

P.3d 916 (2009).


                                               9
 No. 78092-1-1/10

          To establish a claim of ineffective assistance of counsel, Artiaga must show (1)

deficient performance that fell below an objective standard of reasonableness and (2)

but for counsel’s errors, there is a reasonable probability that the result of the trial would

have been different. Strickland, 466 U.S. at 687. If either prong of the test is not

satisfied, our inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563

(1996).

        A defendant alleging ineffective assistance of counsel must overcome” ‘a strong

presumption that counsel’s performance was reasonable.’        “   Grier, 171 Wn.2d at 33

(quoting Statev. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)). Counsel’s

performance is not deficient where it can be “‘characterized as legitimate trial strategy

or tactics.’   “   Grier, 171 Wn.2d at 33 (quoting Kyllo, 166 Wn.2d at 863). A defendant

“can rebut the presumption of reasonable performance by demonstrating that ‘there is

no conceivable legitimate tactic explaining counsel’s performance.’      “   Grier, 171 Wn.2d

at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

       “[A] fair assessment of attorney performance requires that every effort be
       made to eliminate the distorting effects of hindsight, to reconstruct the
       circumstances of counsel’s challenged conduct, and to evaluate the
       conduct from counsel’s perspective at the time.”

Grier, 171 Wn.2d at 34 (quoting Strickland, 466 U.S. at 689).

       (1) Lesser Included Instruction on Criminal Trespass

       Artiaga contends there is no strategy or tactical reason for not requesting the

lesser included jury instruction on criminal trespass. Failure to request a lesser

included-offense instruction is not deficient performance if the decision is part of an “all

or nothing” approach. Grier, 171 Wn.2d at 39. That a strategy is “ultimately proved




                                               10
 No. 78092-1-I/li

unsuccessful is immaterial to an assessment of defense counsel’s initial calculus;

hindsight has no place in an ineffective assistance analysis.” Grier, 171 Wn.2d at 43.

       To prove residential burglary, the State must prove beyond a reasonable doubt

that (1) Artiaga unlawfully entered or remained in a dwelling (2) with the intent to commit

a crime against property therein. RCW 9A.52.025(1). Criminal trespass in the first

degree is a lesser included offense of burglary in the second degree. State v. Olson,

182 Wn. App. 362, 375, 329 P.3d 121 (2014). A person is guilty of criminal trespass in

the first degree if “he or she knowingly enters or remains unlawfully in a building.” RCW

9A.52.070(1).

       Artiaga contends and the State does not dispute that had his attorney proposed

the lesser included instruction on criminal trespass, the court would have granted the

request under State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). But the record

shows defense counsel was aware that he could request a lesser included instruction

on criminal trespass and the decision not to request the instruction was strategic.

       At trial, Artiaga argued that he did not unlawfully enter Pullin’s apartment

because they were not broken up, he had a key, he believed he still had access to the

apartment, and he did not intend to commit a crime against property because he had a

good faith claim of title to the puppy.

       Pullin testified that she had not “officially” broken up with Artiaga and they were

not “on the same page” about the relationship. Pullin testified that Artiaga did not return

her key. Pullin testified they had multiple conversations about who owned the dog

because it was “[u]nclear” to Artiaga. Artiaga told Corporal Mann he “believed that he

was still in a dating relationship with Ms. Pullin.” Artiaga told Officer Lisenby he



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No. 78092-1-1/12

believed the puppy belonged to him and he went to Pullin’s apartment ‘to get the dog

while hopefully she was gone.”

       Had defense counsel requested an instruction on the lesser included offense of

criminal trespass, he would have had to argue that Artiaga unlawfully entered or

remained in Pullin’s home. This argument was contrary to Artiaga’s statements to the

police officers and the defense theory at trial that Artiaga believed he had permission to

be in the apartment and was there to retrieve the puppy that belonged to him.

       Because the decision not to request a lesser included instruction on criminal

trespass was a strategic decision, we conclude Artiaga has not carried his burden to

establish deficient performance and his claim of ineffective assistance of counsel fails.

       (‘2) Good Faith Claim of Title Defense

       Artiaga contends his attorney provided ineffective assistance of counsel by

proposing a deficient jury instruction on good faith claim of title and the instruction as

written relieved the State of its burden of proof.

       The State charged Artiaga with residential burglary, alleging he entered and

remained unlawfully in the dwelling of Pullin with intent to commit a crime against a

person orpropertytherein. In Statev. Bergeron, 105 Wn.2d 1, 16, 711 P.2d 1000

(1985),~ the Washington Supreme Court held that “the specific crime or crimes intended

to be committed inside burglarized premises is not an element of burglary that must be

included in the information, jury instructions or in the trial court’s findings and

conclusions.”

       In any event, the State’s theory at trial was that Artiaga entered and remained

unlawfully in Pullin’s apartment only with the intent to steal the puppy. At the request of
       ~ Emphasis in original.


                                              12
No. 78092-1-1/13

the defense, the court gave a to-convict instruction on residential burglary that stated

the jury must find beyond a reasonable doubt that the entering or remaining was with

intent only “to commit a crime against property therein.” Defense counsel also

proposed instructions that included the definition of theft and the good faith claim of title

defense to theft. The court agreed Artiaga is “entitled to all theft   .   .   .   instructions and the

affirmative defense.”

       Good faith claim of title is a statutory defense to theft. RCW 9A.56.020(2)(a).

ROW 9A.56.020(2)(a) states:

       In any prosecution for theft, it shall be a sufficient defense that:
              (a) The property or service was appropriated openly and avowedly
       under a claim of title made in good faith, even though the claim be
       untenable.

“This defense negates the element of intent to steal by providing that a defendant

cannot be guilty of theft if the defendant takes property from another ‘under the good

faith belief that he is the owner, or entitled to the possession, of the property.’         “   State v.

Ager, 128 Wn.2d 85, 92, 904 P.2d 715 (1995) (quoting State v. Hicks, 102 Wn.2d 182,

184, 683 P.2d 186 (1984)).

       The jury instructions accurately stated the law. The jury instructions define “theft”

as “to wrongfully obtain or exert unauthorized control over the property or services of

another, or the value thereof, with intent to deprive that person of such property or

services.” The jury instruction on the good faith claim of title states:

               It is a defense to a charge of theft that the property or service was
       appropriated openly and avowedly under a good faith claim of title, even if
       the claim is untenable.
               The State has the burden of proving beyond a reasonable doubt
       that the defendant did not appropriate the property openly and avowedly
       under a good faith claim of title. If you find that the State has not proved



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No. 78092-1-1/14

       the absence of this defense beyond a reasonable doubt, it will be your
       duty to return a verdict of not guilty as to this charge.

       Artiaga cites State v. Brown, 36 Wn. App. 549, 676 P.2d 525 (1984), to argue his

attorney provided ineffective assistance of counsel by not proposing an instruction

“stating that ‘good faith claim of title’ is a defense to a charge of burglary.”5 Brown does

not support Artiaga’s argument that he was entitled to an instruction that states good

faith claim of title “is a defense to burglary.”

       In Brown, the State charged the defendants with burglary in the first degree

where the “underlying crimes alleged were theft and assault.” Brown, 36 Wn. App. at

552. The defendants moved to instruct the jury on “the good faith claim of title defense

to theft.” Brown, 36 Wn. App. at 558-59. The trial court refused to give the instruction.

Brown, 36 Wn. App. at 558-59. On appeal, we affirmed because the record was

“devoid of evidence to support an instruction on the good faith claim of title defense.”

Brown, 36 Wn. App. at 559. The court held, “The good faith claim of title defense to

theft applies only when a claim of title can be made to the specific property acquired.”

Brown, 36 Wn. App. at 559.

       Artiaga also cannot show prejudice. The record shows that during closing

argument, both the prosecutor and defense counsel reiterated that if the jury found

Artiaga had a good faith claim of title to the puppy, then he did not have the intent to

commit a crime against property and must be acquitted of residential burglary.

       Artiaga also contends that because the “instructions did not correctly state the

law,” the State was relieved of its burden of proof. The jury instruction on good faith

claim of title states, “The State has the burden of proving beyond a reasonable doubt

       ~ Emphasis omitted; boldface omitted.

                                               14
No. 78092-1-1115

that the defendant did not appropriate the property openly and avowedly under a good

faith claim of title.” Because the instruction accurately stated the law and the State was

required to prove every element of the crime beyond a reasonable doubt, we conclude

the State was not relieved of its burden of proof.

DNA Fee

        Artiaga contends and the State concedes that the panel should remand to strike

imposition of the $1 00 DNA fee because the State previously collected Artiaga’s DNA

due to a prior conviction. A legislative amendment effective June 7, 2018 eliminated the

mandatory $100 DNA collection fee where “the state has previously collected the

offender’s DNA as a result of a prior conviction.    RCW 43.43.7541;   LAWS OF   2018, ch.

269,   § 18. This amendment applies prospectively to Artiaga due to his pending direct
appeal at the time of the amendment’s enactment. State v. Ramirez, 191 Wn.2d 732,

747, 426 P.3d 714 (2018). Accordingly we remand to strike the $100 DNA fee from the

judgment and sentence.

        We affirm.




WE CONCUR:




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