State of Washington v. Jose Antonio Contreras ( 2019 )

FILED
JUNE 13, 2019
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. 35975-1-III
Respondent, )
)
v. )
)
JOSE ANTONIO CONTRERAS, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, J. — On appeal, Jose Contreras challenges his conviction for first degree
arson on the basis of prosecutorial misconduct and ineffective assistance of counsel. We
reject his contentions and affirm his convictions. We remand, however, for the striking
of the criminal filing fee and DNA collection fee legal financial obligations.
FACTS
This prosecution arises out of the burning of the front door of Jose Contreras’
apartment complex neighbors by Contreras. Tim Navarro resides at a Kennewick
apartment with his father, fiancée, and his three children. Jose Contreras resides in
another apartment directly across the way from Navarro.
No. 35975-1-III
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At 3:00 a.m. on October 14, 2017, Tim Navarro awoke to someone loudly and
aggressively knocking on his apartment door. Navarro ran to the door, looked through
the peephole, and saw his neighbor, Jose Contreras, tampering with the outdoor light near
the door. Navarro asked his fiancée to call the police while he continued to surveil
Contreras through the peephole.
Tim Navarro watched as Jose Contreras acted bizarrely and as if Contreras was
high on methamphetamine. Navarro saw and smelled smoke. Kennewick Police Officer
Cory McGee arrived at the apartment complex. Officer McGee saw a fire near Navarro’s
front door and a male standing near the door of Navarro’s apartment staring at the flames.
According to Officer McGee, the flames climbed four feet high along the door of
Navarro’s apartment.
Officer Cory McGee identified himself as a police officer and inquired from Jose
Contreras about his activities. Contreras turned toward Officer McGee, produced a large
kitchen knife, and stated: “‘Who the f*** are you?’” Report of Proceedings (RP) at 125.
McGee again identified himself as a police officer. Contreras walked toward Officer
McGee with the knife pointed at McGee. McGee drew his gun and warned Contreras
that he would shoot if Contreras took any more steps forward.
Officer James Scott arrived at the apartment complex and noticed Jose Contreras
acting aggressively. Contreras held the knife in one hand with his other hand clenched in
a fist. He stood in a fighting stance. Contreras retreated into his apartment. The officers
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extinguished the fire and called for assistance. The fire had burned Navarro’s doormat
and had charred Navarro’s front door and apartment floor.
Kennewick Officer Aaron Hamel responded and surveilled the back of the
apartments. Officer Hamel espied Jose Contreras, holding a large knife, on a balcony.
Contreras threw objects at Officer Hamel while also repeatedly stabbing, with his knife,
the wooden railing on the deck. Hamel identified himself as a police officer and told
Contreras to drop the knife. Contreras snarled: “f*** you. I am going to kill all of you.”
RP at 110.
A SWAT team arrived at the Kennewick apartment complex. The team evacuated
Tim Navarro and his family from their apartment via a bedroom window. Eventually the
SWAT team gained entry to Contreras’ apartment and arrested him. A later toxicology
report confirmed the presence of methamphetamine in Contreras’ body.
PROCEDURE
The State of Washington charged Jose Contreras with first degree arson. The
information alleged that Contreras, while acting knowingly and maliciously, caused a fire
that manifestly endangered human life or damaged a dwelling.
At the conclusion of the evidence, the trial court instructed the jury on the
elements of first degree arson and, at the request of Jose Contreras, on the elements of
first degree reckless burning as a lesser included offense. According to one jury
instruction, to convict on the first degree arson charge, the jury had to find beyond
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reasonable doubt:
(1) That on or about October 14, 2017, the defendant caused a fire;
(2) That the fire
(a) was manifestly dangerous to human life, or
(b) damaged a dwelling; and
(3) That defendant acted knowingly and maliciously; and
(4) That this act occurred in the State of Washington.
Clerk’s Papers (CP) at 60. According to a second jury instruction, to convict on reckless
burning in the first degree, the jury had to find beyond reasonable doubt:
(1) That on or about October 14, 2017, the defendant caused a fire;
(2) That the fire damaged a building;
(3) That the defendant knowingly caused the fire;
(4) That the defendant recklessly caused the damage; and
(5) That this act occurred in the State of Washington.
CP at 67. Note the difference in mens rea for the two charges.
During the State’s closing argument, the prosecutor stated:
My colleague is going to talk to you and I will have another chance.
But I wanted to say one more thing about the reckless burning option and
that is an option and, you know, I think you can consider that. You should
consider it.
But I have to say that if you find the defendant caused the fire—
which is pretty straightforward. He definitely damaged a dwelling and that
fire was dangerous, manifestly dangerous to human life. I think it would be
more intellectually honest for you to just find the defendant not guilty than
find him guilty only of reckless burning.
You know, if you find him guilty, the appropriate charge should be
arson in the first degree.
RP at 159. Defense counsel did not object.
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Defense counsel responded in his closing argument by listing the elements of the
crimes, as listed in the jury instructions, of first degree arson and first degree reckless
burning.
And I guess what I am getting at here, what we are looking at, the
difference that we are looking at has to do with arson in the first degree,
deals with an individual having malicious intent. Malicious intent.
Reckless burning in the first degree has to do with an individual
acting recklessly and damaging a building. So is there a difference between
being reckless and causing damage or trying to actually maliciously cause
damage?
There are differences in the law in many situations. Talking about
manslaughter and murder. Manslaughter, you can act recklessly. You
don’t mean to hurt anybody but you are being a fool. You are being an
idiot. You are doing something stupid and somebody dies. Manslaughter.
Murder, you want to kill them. You are intending to. Okay? There
is a difference. Talking about intent. Okay?
RP at 164.
During his summation, defense counsel juxtaposed the concept of malicious intent
to the facts of the case and underscored that Jose Contreras uttered no threats to Tim
Navarro or his family. Contreras never threatened to harm the family or burn the
family’s apartment. Contreras never declared hatred toward the family and never
expressed a wish to cause family members harm. Defense counsel emphasized that
Navarro described Contreras as “‘[a] crazed man doing things he didn’t
understand. . . .’” RP at 166, 167. Defense counsel ended his argument:
This was not a case where the defendant, although admittedly doing
this sort of thing was manifestly dangerous to human life. Yeah.
Absolutely. Not only just human lives there in B10, but we know it was a
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four-plex. Okay?
Did it damage a dwelling? It sure did. But, again, that the defendant
had this malicious intent to do what he is accused of doing. We are asking
you to find that the evidence doesn’t support arson in the first degree but
rather supports the charge of reckless burning in the first degree. We are
asking you that your verdict so reflects. Thank you.
RP at 168.
The jury declared Jose Contreras guilty of the greater charge, first degree arson.
The jury also returned a special verdict that found damages to a dwelling and the setting
of a fire manifestly dangerous to human life.
During sentencing, the trial court sentenced Jose Contreras to a mid-range
sentence of 100 months’ confinement. The court found Contreras indigent and imposed
only mandatory legal financial obligations, including a $200 criminal filing fee and a
$100 DNA collection fee.
LAW AND ANALYSIS
Prosecutorial Misconduct
On appeal, Jose Contreras asserts misconduct for statements of the prosecuting
attorney during closing argument regarding the lesser included instruction. Contreras
complains of the prosecutor informing the jury that finding Contreras not guilty of any
crime, rather than finding him guilty of first degree reckless burning, served intellectual
honesty. Contreras essentially argues that the State’s attorney committed misconduct
when seeking to deny the accused the benefit of a jury instruction on a lesser included
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crime.
Jose Contreras’ brief cites no legal authority explaining prosecutorial misconduct
when the prosecuting attorney argues against convicting the accused of the lesser
included crime. We therefore deny review of this assignment of error. This court does
not review errors alleged but not argued, briefed, or supported with citation to authority.
RAP 10.3; Valente v. Bailey, 74 Wn.2d 857, 858, 447 P.2d 589 (1968); Avellaneda v.
State, 167 Wn. App. 474, 485 n.5, 273 P.3d 477 (2012).
Ineffective Assistance of Counsel
Jose Contreras next contends he received ineffective assistance of counsel due to:
(1) counsel’s failure to object to the prosecutor’s remarks in closing argument, (2) a
concession in defense counsel’s closing argument that the fire was manifestly dangerous
to human life, and (3) counsel’s failure to request a voluntary intoxication instruction.
We disagree with each contention.
To demonstrate ineffective assistance of counsel, a defendant must make two
showings. First, the defendant must show that defense counsel’s representation was
deficient, i.e., it fell below an objective standard of reasonableness based on
consideration of all the circumstances. Second, a defendant must show that defense
counsel’s representation prejudiced the defendant. This entails showing a reasonable
probability that, except for counsel’s unprofessional errors, the result of the proceedings
would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 12517
No. 35975-1-III
State v. Contreras
(1995).
We engage in a strong presumption that counsel’s performance was reasonable.
State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). When counsel’s conduct can
be characterized as legitimate trial strategy or tactics, the performance is not deficient.
State v. Kyllo, 166 Wn.2d at 863. Competency of counsel is determined based on the
entire record below. State v. McFarland, 127 Wn.2d at 335.
Jose Contreras first complains that his trial counsel performed deficiently when
failing to object to the State’s attorney’s argument that intellectual honesty required
acquitting Contreras of both charges rather than convicting him only of the lesser
included charge. As discussed above, the prosecutor’s statements did not constitute
misconduct so defense counsel was not deficient for failing to object to the remarks.
Jose Contreras next complains that trial counsel conceded that the fire endangered
human life and caused damage to a dwelling. He contends his counsel effectively
conceded his guilt to first degree arson and thereby withdrew from the jury the
consideration of finding Contreras guilty of the lesser included offense of reckless
burning.
We agree with Jose Contreras that the right to effective assistance of counsel
extends to closing arguments. State v. Kyllo, 166 Wn.2d at 870 (2009). Nevertheless, we
find no ineffective performance of counsel. Trial counsel aggressively requested that the
jury find Contreras not guilty of first degree arson because Contreras lacked any
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malicious intent. Counsel never conceded guilt of arson. Counsel conceded damage to a
dwelling and endangerment to life because the overwhelming facts supported these
elements of first degree arson. By conceding the obvious, counsel bolstered counsel’s
and Contreras’s credibility when arguing Contreras lacked malicious intent.
Jose Contreras also asserts deficient performance by trial counsel in that counsel
failed to request a voluntary intoxication instruction. To prevail on the basis that trial
counsel was ineffective for failure to request a jury instruction, the reviewing court must
find that the defendant was entitled to the instruction, that counsel’s performance was
deficient in failure to request the instruction, and that the failure to request the instruction
prejudiced the defendant. State v. Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007).
A criminal defendant is entitled to a voluntary intoxication instruction only if:
(1) the crime charged has a particular mental state as an element, (2) there is substantial
evidence of drinking or drug use, and (3) the defendant presents evidence that the
drinking or drug use affected his or her ability to acquire the required mental state. State
v. Gallegos, 65 Wn. App. 230, 238, 828 P.2d 37 (1992). Contreras fails the first prong
because case law previously foreclosed the ability of using a voluntary intoxication
instruction for first degree arson. State v. Nelson, 17 Wn. App. 66, 71-72, 561 P.2d 1093(1977).
In State v. Nelson, the court acknowledged that the arson statute contains the word
“maliciously,” but held that the term denotes only a general intent, not a specific mental
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state. State v. Nelson, 17 Wn. App. at 70. The Nelson court found no error when the trial
court refused to instruct the jury on voluntary intoxication because the defendant was not
entitled to the instruction.
Criminal Filing Fee
The trial court assessed legal financial obligations at sentencing of a $500 victim
penalty assessment fee, the $200 criminal filing fee, and the $100 DNA fee. Although
mandatory when imposed, the criminal filing fee and DNA fee are no longer mandatory
under new legislation as explained in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714(2018).
Jose Contreras has previous felony convictions that likely resulted in an earlier
DNA collection. He asks that the filing fee and DNA fee be struck. The State also
advocates for the fees to be struck. Pursuant to Ramirez, we remand for the trial court to
strike the two fees. Contreras need not be present at any hearing to strike the two
financial obligations.
Statement of Additional Grounds
Jose Contreras raises five issues in a statement of additional grounds (SAG). But,
in contravention of RAP 10.10, Contreras does not inform this court of the nature and
occurrence of the alleged errors. Contreras only cites federal statutes and civil court rules
to support his contentions, neither of which apply to his case. For example, Contreras
cites a civil court rule regarding speedy trial rights. Contreras does not explain, though,
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how or why he believes that right was violated. In his third ground, Contreras cites the
due process component of the Fifth and Fourteenth Amendments and then cites to civil
court rules stating that documents are to be signed and dated. We do not know how those
two theories connect and what error Contreras asserts.
In his first additional ground, Contreras cites the Fifth Amendment to the United
States Constitution and states that “for due process of law to take effect a crime has to be
committed.” SAG, ground 1. Contreras then cites to CR 12(b)(6) and highlights that
Tim Navarro never filed any complaint for damages against him. Contreras
misunderstands that the State’s filing of an information against him constitutes the
allegation that a crime was committed. The injured party need not file a civil complaint.
In his fourth additional ground, Contreras raises a federal statute dealing with
“Conspiracy to interfere with civil rights” and then accuses his appellate counsel of
assisting the trial court in “conduct that is in violation of applicable rules of Judicial
Conduct. . . .” SAG, ground 4. Contreras discusses ex parte communication, but
appellate counsel only represents Contreras on appeal. Another attorney represented
Contreras at trial. We do not know how or why appellate counsel would engage in
contact with the trial court.
CONCLUSIONS
We affirm Jose Contreras’ conviction for first degree arson. We remand to the
sentencing court to strike the criminal filing fee and the DNA collection fee. We
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otherwise affirm Contreras' sentence.
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.
Fe~\cr
WE CONCUR:
Siddoway, J.
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