State of Washington v. Jorge Luis Quintanilla

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
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Respondent, )
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v. )
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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
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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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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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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 Wash. 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 Wash. 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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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 Wash. 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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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 Wash. 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 Wash. 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 Wash. 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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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
Wash. 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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