                                                                             FILED 

                                                                           DEC. 03, 2013 

                                                                  In the Office of the Clerk of Court 

                                                                 WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                           )         No. 30769-7-11 I
                                               )
                     Respondent,               )
                                               )
              v.                               )
                                               )
JORGE L. QUINTANILLA,                          )         PUBLISHED OPINION
                                               )
                     Appellant.                )

       BROWN, J. - Jorge L. Quintanilla appeals his conviction and sentence for use of

extortionate means to collect extensions of credit. He contends (1) sufficient evidence

does not exist to support his conviction, (2) he was denied effective assistance of

counsel, and (3) the sentencing court erred in failing to total his legal financial

obligations (LFOs). We find no error, and affirm.

                                           FACTS

       On the surface, Mr. Quintanilla operated a seafood distribution business.

According to Mr. Quintanilla, a man he briefly knew as Miguel Gonzalez (initially known

to Mr. Quintanilla by other names) invested $5,000 in Mr. Quintanilla's business. Later,

Enrique Salas persuaded Mr. Quintanilla to give him money ($5,000 to $17,000, the

amount was disputed), ostensibly in support of Mr. Salas's import business. Some
No. 30769-7-111
State v. Quintanilla


amounts received by Mr. Salas from Mr. Quintanilla were shown in bank records

produced at trial. Whether or not Mr. Quintanilla considered the investment money a

loan or an investment later became a fact question in a jury trial where the State

produced evidence to show its theory that the transactions were made below the

surface in the context of illicit narcotics distribution. In any event. according to Mr.

Salas. "He [Mr. Quintanilla] invested money on the company and. yes, I borrowed

$1000 from him." Report of Proceedings (RP) at 109. The loan was not disputed and

was apparently "for the bail." Clerk's Papers (CP) at 54.

       Mr. Gonzalez later approached Mr. Quintanilla and told him he wanted his $5,000

back. Mr. Quintanilla informed Mr. Gonzalez that he did not have it because he had in

turn invested it with Mr. Salas. Then, Mr. Quintanilla, Mr. Gonzalez, and an unknown

third man went to Mr. Salas's office where Mr. Quintanilla asked Mr. Salas, "Where is
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the money?" CP at 60. Mr. Salas explained that he had some other debts to payoff

first. Mr. Salas asked Mr. Gonzalez and the other man to leave, triggering a fight

between Mr. Salas and the two men in which Mr. Salas sustained multiple facial injuries
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and facial fractures requiring hospitalization.

       The State charged Mr. Quintanilla with one count of first degree assault and one
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count of use of extortionate means to collect extensions of credit. At trial, the jury heard

evidence showing Mr. Quintanilla had given Mr. Salas money to further Mr. Salas's

business, but the amounts and purposes were disputed. Mr. Quintanilla considered his

investment as money owed by Mr. Salas. Mr. Quintanilla identified $5,000 as having

come from Mr. Gonzalez and $12,000 as having come personally from him. Mr. Salas               i
reported having received not more than $6,000 from Mr. Quintanilla. Mr. Salas testified

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No. 30769-7-111
State v. Quintanilla


without dispute that Mr. Quintanilla had additionally loaned him $1,000 for personal

reasons. The State elicited testimony in support of its drug distribution theory and

theorized that the two men who beat Mr. Salas were Mr. Quintanilla's musclemen. Mr.

Quintanilla testified that Mr. Gonzalez had indeed suggested his involvement in a drug

distribution scheme between Los Angeles and the Tri-Cities, but he related that was

unrelated to the assault and he had, nevertheless rejected the scheme, choosing

instead to report that to law enforcement after the assault.

       In closing arguments, the State asserted the money Mr. Quintanilla gave to Mr.

Salas for investment was in actuality a loan, rather than an investment given to enlist

support in the drug distribution scheme. Defense counsel did not distinguish between

the sums purportedly invested or loaned to Mr. Salas, and referred to all the money as

being loaned during his response argument.

       The jury found Mr. Quintanilla not guilty of the assault and guilty of use of

extortionate means to collect extensions of credit.
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       Posttrial, defense counsel moved to arrest judgment or, in the alternative, moved

for a new trial. Among other posttrial arguments, defense counsel argued he was

ineffective at trial regarding the extortionate means charge because he failed to elicit

evidence showing the money Mr. Quintanilla gave to Mr. Salas was an investment. In

support, defense counsel submitted an affidavit partly stating that prior to trial, he

received information showing the money Mr. Quintanilla gave to Mr. Salas was an

investment, not a loan. Defense counsel stated, "During trial I did not submit any

documents from the State indicating my client was a part owner of Mr. Solis's [sic]

business. I also did not elicit testimony from the victim related to the characterization of

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State v. Quintanilla


the funds as an investment. I had knowledge that both the documents existed and of

the victim's previous statements indicating that it was an investment." CP at 85. The

trial court denied defense counsel's posttrial motion.

       At sentencing, the trial court imposed LFOs. The trial court did not total the

separately listed LFOs owed by Mr. Quintanilla in the judgment and sentence. Mr.

Quintanilla did not object. Mr. Quintanilla appealed his conviction and sentence.

                                         ANALYSIS

                                  A. Evidence Sufficiency

       The issue is whether sufficient evidence supports Mr. Quintanilla's extortionate

means to collect extensions of credit conviction.

       Evidence is sufficient if any rational trier of fact could find the essential elements.

of the crime beyond a reasonable doubt; evidence is viewed in the light most favorable

to the State. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A defendant

claiming evidence insufficiency admits the truth of the State's evidence and all

reasonable inferences that may be drawn 'from it. State v. Salinas, 119 Wn.2d 192,

201,829 P.2d 1068 (1992).

       Circumstantial evidence and direct evidence are equally reliable. State v.

Delmarter, 94 Wn.2d 634,638,618 P.2d 99 (1980). We defer to the trier of fact on

issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. State v. Walton, 64 Wn. App. 410,415-16,824 P.2d 533 (1992).

       Under RCW 9A.82.040, a person is guilty of use of extortionate means to collect

extensions of credit if U[a] person who knowingly participates in any way in the use of

any extortionate means to collect or attempt to collect any extensions of credit or to

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State v. Quintanilla


punish any person for the nonrepayment thereof." '''To extend credit' means to make or

renew a loan or to enter into an agreement, tacit or express, whereby the repayment or

satisfaction of a debt or claim, whether acknowledged or disputed, valid or invalid, and

however arising, mayor shall be deferred." RCW 9A.82.010(18).

       While it is disputed Mr. Quintanilla invested several thousand dollars in Mr.

Salas's business, undisputed evidence shows Mr. Quintanilla additionally made a

$1,000 personal loan to Mr. Salas. This loan was clearly an extension of credit under

unchallenged instruction 19, which provided, '''To extend credit' means to make or

renew a loan or enter into an agreement, tacit or express, whereby the repayment or

satisfaction of a debt or claim, whether acknowledged or disputed, valid or invalid, and

however arising, mayor shall be deferred." CP at 111.

      As Mr. Quintanilla argues in his brief, a "loan" is defined at common law as "an

advancement of money or other personal property to a person, under a contract or

stipulation, express or implied, whereby the person to whom the advancement is made

binds himself to repay it at some future time, together with such other sum as may be

agreed upon for the use of the money or thing advanced." Baxter v. Stevens, 54 Wn.         I
App. 456, 459, 773 P.2d 890 (1989). The $1,000 that Mr. Salas borrowed from Mr.

Quintanilla was unquestionably a loan.
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      Mr. Quintanilla asked Mr. Salas, "[W]here is the money?" and did not ask for any

specific amount of money. RP at 113. Mr. Quintanilla believed he was entitled to

repayment as though he was owed the money. This is circumstantial evidence of an

extension of credit. Mr. Salas consistently testified he owed Mr. Quintanilla money, the

exact amount did not have to be proved. The State aptly argues no evidence shows Mr.

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State v. Quintanilla


Quintanilla was due to receive a stock dividend or a share of profits that would

necessitate a demand of money on the investment. Isolated statements in the

testimony may provide sufficient evidence to sustain a criminal conviction. See State        v.
Trout, 125 Wn. App. 403, 425, 105 P.3d 69 (2005) (affirming criminal conviction despite

dissent's complaint that State's theory of the case was supported by isolated statements

in the testimony).

       In sum, the State argued its theory that the investments were really loans made

in the context of illicit narcotics. The jury was left to decide matters of credibility and the

persuasiveness of the evidence and returned a verdict supported by the record.

Apparently, the jury found the State's theory persuasive beyond a reasonable doubt.

Viewing the evidence in a light most favorable to the State and drawing all reasonable

inferences in the State's favor, we conclude the verdict and the court's conviction are

supported by sufficient evidence.

                                 B. Assistance of Counsel

       Mr. Quintanilla contends he was denied effective assistance of counsel because

his attorney failed to argue the money given to Mr. Salas was not a loan.

       To demonstrate ineffective assistance of counsel, a defendant must show that

his lawyer's representation was deficient and the deficient performance prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). Representation is deficient if it falls below an objective standard of

reasonableness based on consideration of all the circumstances. State v. McFarland,

127 Wn.2d 322,334-35,899 P.2d 1251 (1995). Prejudice occurs when but for

counsel's deficient performance, the result of the proceeding would have been different.

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Id. at 335. If a party fails to satisfy either prong, we need not consider both prongs.

State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

       We are highly deferential to counsel's performance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action might

be considered sound trial strategy. Strickland, 466 U.S. at 689. Tactical decisions

cannot form the basis for a claim of deficient performance. McFarland, 127 Wn.2d at

336. Tactical decisions include selecting witnesses, conducting cross-examination,

selecting jurors, making trial motions, and introducing evidence, among others. State v.

Grier, 171 Wn.2d 17,31,246 P.3d 1260 (2011).

       Here, defense counsel presented evidence showing Mr. Quintanilla had invested

in Mr. Salas's business. Defense counsel emphasized that point in both his cross-

examination of Mr. Salas and direct examination of Mr. Quintanilla. In his affidavit

supporting Mr. Quintanilla's posttrial motions, defense counsel referred to two checks

that Mr. Quintanilla had given to Mr. Salas as investments in his company. The State

admitted the checks during its case in chief. More documents showing Mr. Quintanilla

had an ownership interest in the business would have been merely cumulative. Given

all, failing to argue the point further did not amount to representation that fell below an
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objective standard of reasonableness. Thus, defense counsel's performance was not

deficient.
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       Even assuming Mr. Quintanilla established deficient performance, he cannot             I
show prejudice. The State did not dispute that Mr. Quintanilla had invested several           i
thousand dollars into Mr. Salas's business. Instead, the State stressed the $1,000
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No. 30769-7-111
State v. Quintanilla


personal loan satisfied the charge's extensions-of-credit element. Accordingly, we

conclude Mr. Quintanilla was not denied effective assistance of counsel.

                              C. Legal Financial Obligations

       The issue is whether the trial court's failure to total the LFOs on the judgment

and sentence warrants remand for correction. Mr. Quintanilla contends the court

violated RCW 9.94A.760(1) by failing to total the amount for LFOs.

       Preliminarily, the State argues this issue may not be raised for the first time on

appeal. Under RAP 2.5(a)(3), manifest errors implicating a specifically identified

constitutional right may be raised for the first time on appeal. In State v. Blazina, 174

Wn. App. 906, 911, 301 P.3d 492, review granted, _        Wn.2d _     (2013), Division Two

of this court held that LFO issues may not be raised for the first time on appeal. The

Supreme Court recently granted review of Blazina.

       Here, the LFO error raised appears purely clerical and is not, in any event, a

manifest error implicating a specifically identified constitutional right. Although not

totaled, each of the individual LFOs is separately listed on the face of the judgment and

sentence. Moreover, under RCW 9.94A.760(1) the court may total the amount of LFOs

on either "the judgment and sentence or on a subsequent order to pay." (Emphasis

added.) A subsequent order is typically entered when an offender begins paying LFOs.

Thus, this clerical omission can, in the interests of judicial economy, be corrected at a

later time without prejudice to Mr. Quintanilla. Accordingly, there is no reversible error.   !
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       Affirmed.




                            Brown. J.
WE CONCUR:



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K,brsmo. C.J.
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