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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                    No. 65819-1-I
                       Respondent,
        v.                                          DIVISION ONE

 ABRAM MICHAEL VELIZ,                               UNPUBLISHED OPINION

                       Appellant.                   FILED:  February 13, 2012

        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  

No. 65819-1-I / 2

"spider wire" security devices.1     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.

       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 

       1 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.
                                           -2- 

No. 65819-1-I / 3

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 

                                           -3- 

No. 65819-1-I / 4

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 

substance2 and second degree organized retail theft,3 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)."

       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.4          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 

       2 RCW 69.50.4013.
       3 RCW 9A.56.350.
       4 11A Washington Practice: Washington Pattern Jury Instructions: 
Criminal (3d ed. 2008) (WPIC).
                                           -4- 

No. 65819-1-I / 5

drafted but agreed that it was still "satisfactory."  Defense counsel did not object 

to the instruction or propose additional instructions.

       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 

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No. 65819-1-I / 6

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.5  

       To prevail on a claim of ineffective assistance, a defendant must show 

both deficient performance and resulting prejudice.6        Counsel's performance is 

deficient if it fell below an objective standard of reasonableness.7 Our scrutiny of 

defense counsel's performance is highly deferential, and we employ a strong

presumption of reasonableness.8   "To rebut this presumption, the defendant 

bears the burden of establishing the absence of any 'conceivable legitimate 

tactic explaining counsel's performance.'"9  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.10  Failure on either prong 

of the test is fatal to a claim of ineffective assistance of counsel.11

       "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 

       5 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
       6 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 
2d 674 (1984).
       7 State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
       8 Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335-
36, 899 P.2d 1251 (1995).
       9 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)).
       10 State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
       11 Strickland, 466 U.S. at 697. 

                                           -6- 

No. 65819-1-I / 7

legitimate trial strategy to obtain an acquittal."12  In State v. Hassan,13 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,14 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."

       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.15       That decision, however, 

       12 State v. Hassan, 151 Wn. App. 209, 218, 211 P.3d 441 (2009).
       13 151 Wn. App. 209, 221, 211 P.3d 441 (2009).
       14 171 Wn.2d 17, 42, 246 P.3d 1260 (2011). 
       15 125 Wn. App. 243, 104 P.3d 670 (2004), abrogated by State v. Grier, 

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No. 65819-1-I / 8

employed a three-step deficiency test that our Supreme Court rejected in Grier.16  

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.

       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.17      In 2009, the legislature amended the statute, adding 

aggregation within 180 days as a separate means of committing organized retail 

theft.18

       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.19 We reject his claim 

171 Wn.2d 17, 246 P.3d 1260 (2011). 
       16 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.").
       17 RCW 9A.56.350.
       18 RCW 9A.56.350(1)(c).  

                                           -8- 

No. 65819-1-I / 9

based on insufficiency of the evidence.

       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.20

       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.21      But argument and authority raised for the first 

time in reply come too late.22       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.23  

       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 

       19 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).
       20 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). 
       21"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).
       22 RAP 10.3; State v. Wilson, 162 Wn. App. 409, 417 n.5, 253 P.3d 1143, 
review denied, 173 Wn.2d 1006 (2011). 
       23 See In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 777-78, 100 P.3d 
279 (2004). 
                                           -9- 

No. 65819-1-I / 10

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.24  

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.25

       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.26 To violate ex post facto prohibitions, "[t]he law must be substantive 

and retrospective, and must disadvantage the person affected by it."27  

       24 State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987). 
       25 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).
       26 State v. Wilson, 117 Wn. App. 1, 9, 75 P.3d 573 (2003).
       27 Wilson, 117 Wn. App. at 9.

                                          -10- 

No. 65819-1-I / 11

       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.28         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.

                                      Conclusion

       Counsel did not provide ineffective assistance by failing to request a jury 

       28 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.
                                          -11- 

No. 65819-1-I / 12

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.

WE CONCUR:

                                          -12-