Opinion
65819-1-I
02-13-2012
STATE OF WASHINGTON, Respondent, v. ABRAM MICHAEL VELIZ, Appellant.
UNPUBLISHED OPINION
LEACH, A.C.J.
Abram Veliz appeals his conviction for second degree organized retail theft. He claims counsel provided ineffective assistance by failing to request a lesser included offense instruction on third degree theft. In a supplemental brief, he contends the State failed to prove he committed organized retail theft. Pro se, Veliz claims that his conviction violates ex post facto prohibitions and that standby counsel and the trial court improperly denied him access to law materials while he was representing himself before the start of his trial. Finding no merit in Veliz's arguments, we affirm.
Background
On June 21, 2009, Christopher Onyon, an assets protection associate at a Bellingham Walmart, responded to a report that discarded packaging had been found in the children's clothing department. There, he found three torn boxes that had contained high definition video cameras and several detached "spider wire" security devices. The cameras had a combined retail value of $479.52. Onyon then went to the store's camera room and reviewed that day's surveillance camera video footage. On the video, he saw an individual in the electronics department put three handheld video cameras into a cart and then head to the children's clothing department. The individual left the area with the cameras, exited the store without paying, and ran to a car waiting in the parking lot.
These devices consist of a wire attached to an alarm that can be adjusted to fit tightly around a product. The alarm sounds if the wire is cut. Spider wire also triggers an alarm if a person attempts to leave the store with protected merchandise.
Walmart's surveillance cameras captured similar incidents involving the same person in July and August. On July 7, another handheld video camera with a retail value of $129.84 was stolen. On July 15, the individual took five video games and a digital photograph display device. These items had a total retail value of $263.70. And on August 30, Onyon found discarded packaging from a multimedia recorder worth $299.00. In each incident, the individual left Walmart without paying for the taken items.
On September 18, while Onyon conducted a plainclothes floor walk looking for shoplifters, he saw the individual the surveillance video footage depicted stealing electronics. After Onyon notified his supervisor, Justice French, he followed and observed the individual, who was later identified as Veliz.
Onyon saw Veliz enter the girls' clothing department, where he quickly selected several items and placed them in a shopping cart. Veliz then moved to the men's clothing department, where he produced a large plastic bag and put the clothing into it. Onyon saw Veliz carry the bag out of the store without purchasing the clothing. He approached Veliz on the sidewalk outside the store's entrance, identified himself, and asked to speak with him about the unpaid merchandise. Veliz pushed Onyon and ran. Onyon and French, who had come outside to assist, pursued, caught, and handcuffed Veliz. Onyon recovered the bag containing the clothing and brought Veliz back inside the store and into a private office.
At some point during the struggle to apprehend Veliz, someone called the Bellingham Police Department, which dispatched Officer Christopher Brown. When Brown arrived at Walmart, he asked Onyon what he had observed. After Onyon related the above events, Brown placed Veliz under arrest. Then Brown advised Veliz of his rights, and Veliz consented to questioning. When Brown asked Veliz about the clothing, Veliz admitted to taking the items that day without paying for them.
During this questioning, Onyon told Brown, "I have been working on this case and this guy for a really long time." And he provided Brown with his case files from June 21, July 7, July 15, and August 30, which included photographic stills from the surveillance video and photographs of the discarded packaging. When Brown confronted Veliz with the photographs, Veliz admitted to stealing from the store on July 7, July 15, and August 30. Veliz, however, denied any involvement in the June 21 theft. The items taken during the five days had a total value of $1,407.56. In a search incident to arrest, Brown discovered on Veliz a bindle of heroin and drug paraphernalia.
The State charged Veliz with unlawful possession of a controlled substance and second degree organized retail theft, alleging that between June 1, 2009, and September 18, 2009, Veliz "did wrongfully obtain or exert unauthorized control over property with a cumulative value of at least seven hundred and fifty dollars ($750.00)."
RCW 69.50.4013.
At trial, Onyon testified to the above facts and identified the person in the surveillance videos as Veliz. Brown testified that when he interviewed Veliz and showed him the surveillance video stills, Veliz admitted to him that he was involved in the thefts on July 7, July 15, and August 30. On cross-examination, Brown told the jury that when he first contacted Veliz, Veliz provided him with two false names and then his real name. Brown testified that he was able to identify Veliz in part by a four-inch tattoo on the inside of his left arm that matched information he received from police dispatch.
The State proposed a to-convict instruction on organized retail theft modeled on former Washington Pattern Jury Instructions: Criminal. The parties and the trial judge discussed that the WPIC was technically out of date because of amendments to the organized retail theft statute since the instruction was drafted but agreed that it was still "satisfactory." Defense counsel did not object to the instruction or propose additional instructions.
11A Washington Practice: Washington Pattern Jury Instructions: Criminal (3d ed. 2008) (WPIC).
During closing arguments, defense counsel conceded that the State had proved Veliz committed theft on September 18 but argued that it had not proved that Veliz was involved in the other incidents:
The State has proven that on September 18th Mr. Veliz did commit a theft. He stole children's clothing. He was caught red-handed and admitted to that. But what the State cannot prove is that that person, the one that committed the thefts on September 18th is the same person that committed these very different types of thefts earlier in the summer. And, therefore, because they cannot prove beyond a reasonable doubt those earlier thefts, you must acquit my client and you must find Mr. Veliz not guilty.
Defense counsel claimed that the State had not proved that the man in the surveillance footage was Veliz because Veliz had an arm tattoo and the man in the surveillance footage did not. Defense counsel stated that she could not explain why Veliz admitted to Brown that he had committed the July and August thefts if he was innocent. Instead, she implied that Veliz made a false admission because of the influence of drugs or pressure exerted by Brown.
Nevertheless, a jury convicted Veliz as charged. Veliz moved to arrest judgment under CrR 7.4 or, in the alternative, for a new trial under CrR 7.5. In his motion, he argued that because an amended version of the organized retail theft statute became effective on September 1, 2009, the conviction violated ex post facto prohibitions. Veliz claimed that the thefts occurring before September 1 could be charged only as separate third degree thefts. The trial court denied Veliz's motion. He appeals.
Analysis
Veliz first contends that his attorney provided ineffective assistance of counsel by failing to request an instruction on the lesser included offense of third degree theft. We review this claim de novo.
In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
To prevail on a claim of ineffective assistance, a defendant must show both deficient performance and resulting prejudice. Counsel's performance is deficient if it fell below an objective standard of reasonableness. Our scrutiny of defense counsel's performance is highly deferential, and we employ a strong presumption of reasonableness. "To rebut this presumption, the defendant bears the burden of establishing the absence of any 'conceivable legitimate tactic explaining counsel's performance.'" To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have been different absent counsel's deficient performance. Failure on either prong of the test is fatal to a claim of ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995).
State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Strickland, 466 U.S. at 697.
"The decision to not request an instruction on a lesser included offense is not ineffective assistance of counsel if it can be characterized as part of a legitimate trial strategy to obtain an acquittal." In State v. Hassan, this court held that an "all-or-nothing" strategy was a legitimate trial tactic because "the only chance for an acquittal was to not request a lesser included instruction." And in State v. Grier, our Supreme Court rejected the defendant's ineffective assistance claim because "[a]lthough risky, an all or nothing approach was at least conceivably a legitimate strategy to secure an acquittal."
State v. Hassan, 151 Wn.App. 209, 218, 211 P.3d 441 (2009).
151 Wn.App. 209, 221, 211 P.3d 441 (2009).
171 Wn.2d 17, 42, 246 P.3d 1260 (2011).
As in Hassan and Grier, we can characterize defense counsel's decision here not to request a third degree theft instruction as a legitimate strategy to obtain acquittal. The State charged Veliz with second degree organized retail theft, requiring it to prove that Veliz stole at least $750 in Walmart merchandise within a 180-day period. Defense counsel's closing argument clearly shows that she decided to pursue an all-or-nothing strategy in an attempt to obtain an acquittal. She asserted that Veliz was not the man in the surveillance video recorded on June 21, July 7, July 15, and August 30. While the testimony was unequivocal that Veliz stole $235 in girls' clothing on September 18, the jurors could have chosen to believe that Veliz was not involved in the other incidents. Given the charge, which required the State to prove that a series of thefts had occurred, instead of the single theft on September 18, trial counsel's decision not to ask for a lesser included instruction was reasonable.
Veliz relies on our decision in State v. Ward. That decision, however, employed a three-step deficiency test that our Supreme Court rejected in Grier.To the extent we based our analysis in Ward on that now-rejected test, it is no longer good law, and we decline to rely on Ward here. Because Veliz has not established that his trial counsel was deficient, his ineffective assistance claim fails.
125 Wn.App. 243, 104 P.3d 670 (2004), abrogated by State v. Grier, 171 Wn.2d 17, 246 P.3d 1260 (2011).
Grier, 171 Wn.2d at 32 ("[T]he Court of Appeals sharply deviated from the standard for ineffective assistance the United States Supreme Court announced in Strickland. Today, we reaffirm our adherence to Strickland [and] reject the three-pronged test the Court of Appeals used to analyze Grier's claim.").
In a supplemental brief, Veliz claims that insufficient evidence supports his conviction. As charged here, a person is guilty of second degree organized retail theft if he or she commits a theft of property with a cumulative value of at least $750 but less than $5,000 from a mercantile establishment within a period of up to 180 days. In 2009, the legislature amended the statute, adding aggregation within 180 days as a separate means of committing organized retail theft.
Veliz argues that the State failed to prove that he stole at least $750 in merchandise from Walmart after September 1, the effective date of the amended statute. We reject Veliz's argument. Veliz essentially contends that the State charged him under the incorrect statute, not that the statute was factually inapplicable to his conduct. The alleged deficiency, therefore, is a defect in the State's information, not a failure of the State's proof at trial. We reject his claim based on insufficiency of the evidence.
See Montana v. Hall, 481 U.S. 400, 404, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987) (characterizing Hall's prosecution under the wrong statute as a defect in the charging instrument).
Veliz fails to assign error to the State's information or provide argument sufficient to raise a claim that a defect in the information deprived him of a constitutionally protected right. Therefore, without deciding if the information was deficient, we decline to consider this claim further.
RAP 10.3(a); Ang v. Martin, 154 Wn.2d 477, 487, 114 P.3d 637 (2005); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
In a reply brief, Veliz's appellate counsel asserts that his failure to assign error to the information constitutes deficient performance and requests that we appoint new appellate counsel. But argument and authority raised for the first time in reply come too late. Therefore, we decline to consider counsel's request. Should Veliz be dissatisfied with appellate counsel's representation, he may file a timely personal restraint petition.
"The right to appeal includes a defendant's right to effective assistance of counsel." State v. Rolax, 104 Wn.2d 129, 135, 702 P.2d 1185 (1985). To prevail on an ineffective assistance of appellate counsel claim, the appellant must demonstrate the merits of issues counsel failed to argue or argued inadequately. In re Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994).
RAP 10.3; State v. Wilson, 162 Wn.App. 409, 417 n.5, 253 P.3d 1143, review denied, 173 Wn.2d 1006 (2011).
See In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 777-78, 100 P.3d 279 (2004).
In a pro se letter to this court, Veliz raises an additional issue based on his Sixth Amendment right to counsel. Veliz claims that both the trial court and standby counsel impermissibly denied his requests for access to certain law materials when he acted pro se during pretrial proceedings. Veliz argues these actions "made my ability to represent myself ineffective, forcing me to relinquish my right to appear pro se."
Pro se defendants are entitled to reasonable access to legal materials.However, Veliz's assertion that he was denied such access lacks merit. Veliz supports his claims with letters from standby counsel and a trial court order resetting the trial date so that Veliz could have time to prepare a pretrial motion. None of these documents supports Veliz's claims that his requests for legal materials were denied. Rather, the documents demonstrate attempts to accommodate Veliz's requests. Veliz's claim fails.
State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987).
Additionally, state action is a necessary predicate to bringing a constitutional claim. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Southcenter Joint Venture v. Nat'l Democratic Policy Comm., 113 Wn.2d 413, 422-23, 780 P.2d 1282 (1989). Because standby counsel was not a state actor, she could not have violated Veliz's constitutional rights. See State v. Ollivier, 161 Wn.App. 307, 316, 254 P.3d 883 (2011), petition for review filed, No. 86633-3 (Wash. Oct. 17, 2011).
In a statement of additional grounds, Veliz contends his conviction violates ex post facto prohibitions. A defendant may not be prosecuted under a statute that (1) punishes as a crime an act that was lawful when committed, (2) makes more burdensome the punishment for a crime after its commission, or (3) deprives a defendant of any defense available by law at the time the act was committed. To violate ex post facto prohibitions, "[t]he law must be substantive and retrospective, and must disadvantage the person affected by it."
State v. Wilson, 117 Wn.App. 1, 9, 75 P.3d 573 (2003).
Wilson, 117 Wn.App. at 9.
Veliz argues, as he did in his CrR 7.4 motion, that his conviction under RCW 9A.56.350, as amended, made his punishment more burdensome. He contends that for the acts occurring before the statute was amended, the State could have charged him only with three counts of third degree theft. We disagree. Veliz would have been guilty of second degree organized retail theft even if the State had charged him under the former statute. Like the current statute, former RCW 9A.56.350 (2006) permitted aggregation within a 180-day period to determine the degree of organized retail theft involved. And under former RCW 9A.56.350, a person was guilty of second degree organized retail theft if that aggregated amount totaled between $250 and $1,500. Because Veliz stole nearly $1,200 in electronic goods before September 1, the effective date of the amended statute, Veliz could also have been charged with second degree organized retail theft under the former statute. Therefore, prosecution under the current version of RCW 9A.56.350 did not increase the burden of Veliz's punishment. We do not find merit in Veliz's statement of additional grounds for review.
Former RCW 9A.56.350 read in pertinent part,
For purposes of this section, a series of thefts committed by the same person from one or more mercantile establishment over a period of one hundred eighty days may be aggregated in one count and the sum of the value of all the property shall be the value considered in determining the degree of the organized retail theft involved.
Conclusion
Counsel did not provide ineffective assistance by failing to request a jury instruction on the lesser included offense of third degree theft. Veliz's insufficiency of the evidence claim lacks merit. And the additional pro se issues raised by Veliz are meritless as well. We affirm.