                                                            FILED
                                                        NOVEMBER 2, 2017
                                                    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. 34397-9-111
                                               )
                     Respondent,               )
                                               )
              V.                               )
                                               )          UNPUBLISHED OPINION
FRANCISCO JAVIER                               )
GUTIERREZ-VALDOVINOS,                          )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, J. -Francisco Gutierrez-Valdovinos appeals his conviction

for theft in the first degree. He argues the conviction must be dismissed because the trial

court violated his CrR 3.3 right to a speedy trial. Alternatively, he argues he is entitled to

a new trial because a deputy sheriff offered improper opinion testimony and because he

received ineffective assistance of counsel when his attorney failed to object to the

improper opinion testimony. We disagree and affirm.

                                           FACTS

       On April 22, 2015, Mr. Gutierrez-Valdovinos made a preliminary court appearance

on a potential charge of theft in the first degree. The trial court found probable cause to
No. 34397-9-III
State v. Gutierrez-Valdovinos


detain Mr. Gutierrez-Valdovinos, entered appropriate orders, and released him on his own

recognizance. The record reflects that Mr. Gutierrez-Valdovinos was out of custody at

least until trial commenced.

       Soon after the April 22, 2015 preliminary appearance, the State charged Mr.

Gutierrez-Valdovinos with one count of theft in the first degree. The State alleged that

Mr. Gutierrez-Valdovinos wrongfully obtained or exerted unauthorized control over cash

in the amount of $6,000 from a check written on the account of Alta Lake Golf Course

and later cashed.

       The trial court arraigned Mr. Gutierrez-Valdovinos on May 4, 2015 and set a status

conference for July 6. On that date and several times thereafter-including both

December 1, 2015 and February 10, 2016-Mr. Gutierrez-Valdovinos signed the court's

orders. Language above his signature stated that his signature acknowledged both receipt

of the order and understanding that his failure to object within 10 days of receipt of the

order waived any objection to the timeliness of the trial setting. In addition to these types

of continuances, the trial court continued the trial date at least once due to the

unavailability of a courtroom and twice due to the unavailability of different State

witnesses. It is undisputed that Mr. Gutierrez-Valdovinos did not object to any

continuance.


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State v. Gutierrez-Valdovinos


      Trial commenced April 5, 2016. At trial, Deputy Ron Oules testified about his

investigatory questioning of Mr. Gutierrez-Valdovinos. Deputy Oules stated that he and

another officer drove to Mr. Gutierrez-Valdovinos's house, that he invited them inside,

and that he admitted to cashing the $6,000 check. Deputy Oules responded to the State's

questions about how Mr. Gutierrez-Valdovinos claimed he received the check:

             [STATE]: Did he tell, did he tell you where he got the check?
             [DEPUTY OULES]: He did.
             [STATE]: What did he say?
             [DEPUTY OULES]: He said he got it in the mail. And I, I asked
      him from who, there was . . . The answers, questions and answers, there
      was some voluntary answers pretty well, but then when there was pointed
      questions that were, I guess, I could call them more of a, of a ... the answer
      would be a telling, you know, more specific about what you did, a lot of
      times there wasn't an answer, or you know, would just avoid answering that
      question. But generalized questioning, there was pretty free response.

1 Report of Proceedings (RP) at 193-94 (alterations in original).

      Later, the State asked Deputy Oules:

              [STATE]: And, again, what did he say he thought it was from?
              [DEPUTY OULES]: From working at the golf course in 2003 or
      2004.
            [STATE]: Okay.
            [DEPUTY OULES]: There was no other explanation. You know, I
      mean, "Well, was it for wages?" "I don't know. Maybe they just owed me
      the money or felt they need to give-" again, it was really generalized as
      where or how and why it came-




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State v. Gutierrez-Valdovinos


              [STATE]: He didn't have a copy of an envelope that it came in or
       anything like that?
              [DEPUTY OULES]: No, he didn't have anything like that.
              [STATE]: Okay. Did you ask him what he did with the money?
              [DEPUTY OULES]: I did.
              [STATE]: And what was his response?
              [DEPUTY OULES]: Again, those were the really evasive (sic), he
       just wouldn't answer. I had to probably press the hardest and try to get the
       information on that, and basically he came around to his words were he
       wasted it.

1 RP at 196-97.

       The defense rested without calling witnesses. In closing arguments, the defense

argued that Mr. Gutierrez-Valdovinos believed the check was a legitimate payment to him

because he previously worked at the golf course.

       The jury found Mr. Gutierrez-Valdovinos guilty of theft in the first degree, and he

later was sentenced. This appeal followed.

                                        ANALYSIS

       A.     ALLEGED SPEEDY TRIAL VIOLATIONS

       Mr. Gutierrez-Valdovinos argues that the trial court violated his right to a speedy

trial under CrR 3.3 for the December 1, 2015 and February 10, 2016 continuances. For

the December 1, 2015 continuance, Mr. Gutierrez-Valdovinos claims that the trial court

failed to adequately state its reasons for granting a continuance. Similarly, Mr. Gutierrez-

Valdovinos argues that the trial court failed to find that the February 10, 2016

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No. 34397-9-III
State v. Gutierrez-Valdovinos


continuance was required in the administration of justice and that he would not be

prejudiced.

        We review alleged violations of the CrR 3 .3 speedy trial rule de novo. State v.

Kenyon,_ 167 Wn.2d 130, 135, 216 P.3d 1024 (2009). A defendant's right to a speedy trial

is protected by both the federal and state constitutions and court rule. The constitutional

right to a speedy trial is broad. It is generally only implicated when a long period of time

passes between the filing of charges and trial. See State v. Iniguez, 167 Wn.2d 273,217

P.3d 768 (2009).

       Court rules are more specific and set forth standards for adjudicating cases under

fairly short time frames. To preserve a CrR 3.3 speedy trial challenge to a specific trial

setting, a defendant is required to move the trial court promptly after the challenged

setting for an order setting the trial date within speedy trial limits. CrR 3.3(d)(3). A party

who fails to file such a motion within 10 days from receipt of the challenged setting loses

his right to object to the trial setting. Id.

       Here, Mr. Gutierrez-Valdovinos signed that he received the December 1, 2015 and

the February 10, 2016 orders resetting trial dates. The orders warned Mr. Gutierrez-

Valdovinos that he waived his right to object to the new settings unless he objected to the

new settings within 10 days of receipt of the orders. Mr. Gutierrez-Valdovinos never



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No. 34397-9-III
State v. Gutierrez-Valdovinos


objected to these or any other new settings. He, therefore, has waived his objections to

these new settings.

       B.     ALLEGED IMPROPER OPINION TEST1MONY 1


       Mr. Gutierrez-Valdovinos argues that Deputy Oules's testimony was improper

opinion testimony about his credibility. Mr. Gutierrez-Valdovinos relies on State v.

Jones, 117 Wn. App. 89, 68 P.3d 1153 (2003). There, the court held that there is no

meaningful difference between allowing an officer to testify directly that he does not

believe the defendant and having the officer recount that he told the defendant that he did

not believe him during questioning. Id. at 92. We disagree that Jones is controlling.

       "[T]estimony that is not a direct comment on the defendant's guilt or on the

veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the

evidence is not improper opinion testimony." City of Seattle v. Heatley, 70 Wn. App.

573, 578, 854 P.2d 658 (1993). Here, Deputy Oules testified that Mr. Gutierrez-

Valdovinos did not answer or directly answer some questions. This was a factual

description, not an opinion. Toward the end of describing Mr. Gutierrez-Valdovinos's



       1
          An appellate court may refuse to review any claim of error that was not raised in
the trial court. RAP 2.5. Mr. Gutierrez-Valdovinos did not preserve this issue with an
objection below. Nevertheless, we choose to review this claim of error so as to assist our
discussion in the next section.

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No. 34397-9-111
State v. Gutierrez-Valdovinos


failure to answer questions, Deputy Oules stated that Mr. Gutierrez-Valdovinos was very

evasive. This descriptor is based on the facts described previously by the deputy. The

descriptor is not a direct comment on Mr. Gutierrez-Valdovinos's veracity. A person who

fails to initially answer questions can be described as evasive, even if that person

eventually provides truthful answers. Deputy Oules never expressed an opinion that he

thought Mr. Gutierrez-Valdovinos was lying.

       C.     ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL


       Mr. Gutierrez-Valdovinos next argues that he received ineffective assistance of

counsel by virtue of defense counsel's failure to object to Deputy Oules's testimony. We

disagree.

       The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 684-85, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "A claim of ineffective assistance

of counsel is an issue of constitutional magnitude that may be considered for the first time

on appeal." State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). This court reviews

ineffective assistance of counsel claims de nova. State v. Birch, 151 Wn. App. 504, 518,

213 P.3d 63 (2009).




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No. 34397-9-111
State v. Gutierrez-Valdovinos


       To prevail on a claim of ineffective assistance of counsel, a defendant carries the

burden of demonstrating (1) the attorney's performance was deficient-that is, it fell

below an objective standard of reasonableness, and (2) the deficiency prejudiced the

accused-that is, absent the deficiency there is a reasonable probability that the result of

the proceeding would have been different. State v. Humphries, 181 Wn.2d 708, 720, 336

P.3d 1121 (2014); accord State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251

(1995). "If either part of the test is not satisfied, the inquiry need go no further." State v.

Hendrickson, 129 Wn.2d 61, 78,917 P.2d 563 (1996).

       Because we have determined that Deputy Oules's testimony was not improper

opinion testimony, Mr. Gutierrez-Valdovinos cannot demonstrate that defense counsel's

performance was deficient by his failure to object. Therefore, Mr. Gutierrez-

Valdovinos' s ineffective assistance of counsel claim fails.

       D.     APP ELLA TE COSTS

       Mr. Gutierrez-Valdovinos requests that should he not substantially prevail on

appeal, no appellate costs be authorized under RAP 14.2. The State takes no position.




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No. 34397-9-111
State v. Gutierrez-Valdovinos


       RAP 14.2 governs the award of appellate costs. The rule generally requires an

award of appellate costs to the party that substantially prevails. RAP 14.2. The rule

permits an appellate court, in its decision, to decline an award of appellate costs or to

direct a commissioner or clerk to decide the issue. Id. A commissioner or clerk is

precluded from awarding appellate costs if he or she finds that the defendant lacks the

current or likely future ability to pay such costs. Id. If a trial court earlier found that the

defendant was indigent for purposes of appeal, that finding continues unless the

commissioner or clerk determines by a preponderance of the evidence that the

defendant's financial circumstances have significantly improved since the earlier finding.

Id.

       We defer the issue of appellate costs to our commissioner. Because the trial court

found that Mr. Gutierrez-Valdovinos is indigent for purposes of appeal, that finding

continues unless the commissioner finds by a preponderance of the evidence that Mr.

Gutierrez-Valdovinos' s financial circumstances have significantly improved. In the event

the State seeks an award of appellate costs, we direct our commissioner to enter an order

consistent with RAP 14.2.




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No. 34397-9-111
State v. Gutierrez-Valdovinos


                                     CONCLUSION

       We affirm Mr. Gutierrez-Valdovinos' s conviction.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Lawrence-Berrey, J.

WE CONCUR:
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