Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                  )
                                                      )  No.  65406-3-I
                       Respondent,                    )
                                                      )  DIVISION ONE
      v.                                              )
                                                      )
ANA CARY B. AYALA BUSTOS,                             )  UNPUBLISHED OPINION
                                                      )
                       Appellant.                     )  FILED:  March 12, 2012

       Leach, J.  --  Ana Ayala Bustos appeals from her conviction for second degree 

murder, alleging that trial counsel's representation was constitutionally deficient.  But 

under the circumstances of this case, counsel's failure to submit a limiting instruction 

on gang-affiliation evidence was a reasonable trial strategy.  And counsel's 

proposed special verdict instruction was consistent with the law in effect at the time 

of trial.  Because Ayala Bustos has not satisfied her burden of demonstrating that 

counsel's actions were deficient, we affirm.

                                           FACTS

       At about midnight on June 17, 2009, Marco Castillo and five acquaintances

got into a verbal confrontation with Antonio Marks near the Sultan City Hall.  Marks's 

clothing and tattoos indicated that he was a member of the South Land Villains, a 

street gang.  Castillo and several of his acquaintances, including 16-year-old Ana 

Cary Ayala Bustos, were members of another street gang, the Brown Pride Soldiers.   

No. 65406-3-I / 2

A nearby resident saw the confrontation from  his window.  A  surveillance  video 

camera recorded the incident.

       At some point, the verbal  confrontation escalated, and Castillo punched

Marks, knocking him to the ground.  Castillo repeatedly hit Marks and then stabbed 

him several times.  Several of Castillo's acquaintances, including Ayala Bustos, 

kicked Marks as he lay unconscious on the ground.  The assailants ran off before 

the police arrived.  

       Marks later died. A forensic pathologist concluded that the combined effect of 

blunt force trauma to the head and multiple stab wounds caused Marks's death.

       After her arrest, Ayala Bustos agreed to give a recorded statement that was 

later admitted at trial.  She admitted that she was present at the fight and had kicked 

Marks in the stomach.  She explained that she became angry when Marks "started 

sayin' like shit to us" and that it was "[h]is own fault" that Marks was dead.  Ayala

Bustos acknowledged she was a member of the Brown Pride Soldiers but claimed 

the assault was not gang-related.  

       The State charged Ayala Bustos with second degree murder.  The information 

also alleged that she had committed the crime "to obtain or maintain . . . her 

membership or to advance . . . her position in the hierarchy of an organization, 

association, or identifiable group," an aggravating sentencing factor.1

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No. 65406-3-I / 3

       At trial,2 Snohomish County Deputy Sheriff Beau Beckner testified as an 

expert about the general organization, culture, and identifying attributes of street 

gangs and gang members.         He also described gang recruitment activities in local 

schools.

       According to Beckner, the concept of respect is the "key component" of the 

"gang life-style":

       It's all about getting respect and earning respect and keeping that 
       respect.  And not just respect within each other, but more between your 
       set, your clique, and other sets or cliques.  Basically showing that if 
       you are well respected, you are feared, is what it comes down to.

If a person "disrespects"      a gang member, the response is generally violent

retaliation.

       The State maintained that Ayala Bustos's membership in the Brown Pride 

Soldiers was the motive for her participation in the assault on Marks.  Through her

participation, she sought to demonstrate that her gang was worthy of respect and its 

place in the gang hierarchy.  Ayala Bustos argued that she was not guilty of murder 

because she was not an accomplice to either the blunt force trauma or the stabbing 

that had killed Marks.

       The jury found Ayala Bustos guilty as charged of second degree murder and 

    1 RCW 9.94A.535(3)(s).
    2 All of the other assailants pleaded guilty to second degree murder prior to 
Ayala Bustos's trial.

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No. 65406-3-I / 4

also found that the State had established the aggravating factor.  The State did not, 

however, seek an exceptional sentence, and the court sentenced her to a mid-range 

term of 150 months.

                                        DECISION

       Ayala Bustos first contends that the trial court erred in failing to give a limiting 

instruction on gang-affiliation evidence under ER 404(b), even though defense 

counsel did not request such an instruction.  But after Ayala Bustos filed her opening 

brief, our Supreme Court reaffirmed the long-standing rule in Washington that the 

trial court "is not required to sua sponte give a limiting instruction for ER 404(b) 

evidence, absent a request for such a limiting instruction."3 The trial court did not err 

by failing to give a limiting instruction.

       In the alternative, Ayala      Bustos  asserts    that defense counsel provided 

ineffective assistance when she failed to request a limiting instruction on gang-

affiliation evidence, leaving the jury free to consider highly prejudicial evidence for 

all purposes.  Ayala Bustos argues that counsel's omission created a risk that the 

jury would find her guilty based merely on the belief that she was acting in conformity 

with the general criminal propensity commonly associated with gang membership.

       To prevail on a claim of ineffective assistance, Ayala Bustos must show both 

    3 State v. Russell, 171 Wn.2d 118, 124, 249 P.3d 604 (2011); see ER 105.

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No. 65406-3-I / 5

(1) that defense counsel's representation fell below an objective standard of 

reasonableness and (2) resulting prejudice, i.e., a reasonable probability that but for 

counsel's deficient performance, the result of the proceeding would have been 

different.4 If the defendant fails to establish either part of the test, "the inquiry need 

go no further."5

       We  must  begin our analysis with a          "strong presumption"     that counsel's 

performance was reasonable.6       To rebut this presumption, the defendant bears the 

burden of establishing the absence of any "'conceivable legitimate tactic explaining 

counsel's performance.'"7 We review ineffective assistance claims de novo.8

       The failure to request a limiting instruction "may be a legitimate tactical 

decision not to reemphasize damaging evidence."9  Defense counsel in this case 

vigorously opposed the admission of much of the gang-related evidence.  The trial 

court granted defense counsel's pretrial motion in part, excluding and limiting the 

scope of some of the State's proposed evidence.  Defense counsel also objected 

during trial, challenging whether the proffered evidence fell within the scope of the 

    4 State v. McFarland, 127 Wn.2d 322, 334 -- 35, 899 P.2d 1251 (1995).
    5 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
    6 State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
    7 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)).
    8 State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
    9 State v. Yarbrough, 151 Wn. App. 66, 90, 210 P.3d 1029 (2009).

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No. 65406-3-I / 6

pretrial ruling. Clearly, defense counsel was well aware of the potential prejudice of 

gang evidence, the relevant case law, and the possible limitations on the scope of 

the testimony.  We must therefore presume that defense counsel made a reasoned, 

strategic decision not to reemphasize the evidence by means of a limiting 

instruction.

       In a murder case, gang-related evidence is generally admissible to establish 

motive.10  During closing argument, the deputy prosecutor repeatedly argued that 

Ayala Bustos was acting to maintain her status with the Brown Pride Soldiers and 

that gang membership provided the motive for her to join the others in assaulting 

Marks.

       On appeal, Ayala Bustos does not challenge the admission of any of the gang-

related evidence.  Nor does she suggest that the State urged the jury to draw 

impermissible inferences from Ayala Bustos's gang membership.  Ayala Bustos also 

concedes that a limiting instruction would have expressly informed the jury that it 

could consider the gang evidence for determining motive.  Consequently, a limiting 

instruction would not have affected the evidence admitted at trial or the State's 

theory of the case.  And the deputy prosecutor would likely have pointed to the 

    10 Yarbrough, 151 Wn. App. at 83-84; see also State v. Boot, 89 Wn. App. 780, 
789, 950 P.2d 964 (1998); State v. Campbell, 78 Wn. App. 813, 821-22, 901 P.2d 
1050 (1995).

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No. 65406-3-I / 7

limiting instruction to underscore his argument on Ayala Bustos's motive.

       Given the nature of the evidence and the State's arguments, a limiting 

instruction would arguably have had little practical benefit  for Ayala             Bustos's 

defense, while potentially benefitting, if only subtly, the State's theory of the case.  

Under the circumstances, defense counsel's decision to forgo a limiting instruction

was a legitimate tactical decision.  Ayala Bustos has therefore failed to overcome the 

strong presumption that counsel provided effective assistance.

       Ayala   Bustos next contends that defense counsel  proposed a defective 

special verdict instruction.  Both the State and defense counsel proposed a special 

verdict instruction that provided, in pertinent part,

       Because this is a criminal case, all twelve of you must agree in order to 
       answer the special verdict form.  In order to answer the special verdict 
       form "yes," you must unanimously be satisfied beyond a reasonable 
       doubt that "yes" is the correct answer.  If you unanimously have a 
       reasonable doubt as to this question, you must answer "no."

       In State v. Bashaw,11 decided several months after Ayala Bustos's trial, our 

Supreme Court held that it was reversible error to instruct the jury that it must be 

unanimous to answer "no" on a special verdict form.  Ayala Bustos contends that 

defense counsel was nonetheless  deficient for proposing such an                  instruction

because the Bashaw court merely applied the concepts of its earlier  decision in 

    11 169 Wn.2d 133, 147, 234 P.3d 195 (2010).

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No. 65406-3-I / 8

State v. Goldberg.12 We disagree.

       At the time defense counsel submitted the special verdict instruction, the 

Court of Appeals in Bashaw had upheld an essentially identical instruction as valid 

in light of Goldberg.13   In reaching its decision, the Court of Appeals distinguished

both the facts and the specific instruction at issue in Goldberg.  After analyzing 

Goldberg in detail, the Court of Appeals concluded that "there is simply no indication 

that either the pattern instructions or the policy of unanimous special verdicts were at 

issue in Goldberg."14

       At the time of trial, the Court of Appeals in a published decision had reviewed 

the relevant law and determined that a comparable special verdict instruction was 

valid.  Ayala Bustos has not cited any authority suggesting that defense counsel's 

submission of an instruction consistent with current law constituted                deficient 

performance.  In assessing an attorney's performance, we must make every effort "to 

eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel's challenged conduct, and to evaluate the conduct from counsel's 

perspective at the time."15  Counsel's failure to anticipate changes in the law does 

    12 149 Wn.2d 888, 72 P.3d 1083 (2003).
    13 State v. Bashaw, 144 Wn. App. 196, 202-03, 182 P.3d 451 (2008), rev'd, 169 
Wn.2d 133, 234 P.3d 195 (2010).
    14 Bashaw, 144 Wn. App. at 202.
    15 Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 
674 (1984).

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No. 65406-3-I / 9

not constitute deficient performance.16  Ayala Bustos's claim of ineffective assistance 

therefore fails.

       In addition, the State did not seek an exceptional sentence based upon the 

jury's special verdict.  Because the trial court imposed a standard range sentence, 

Ayala Bustos cannot show prejudice.  Her claim of ineffective counsel also fails for 

this reason.  

       Affirmed.

WE CONCUR:

    16 See State v. Brown, 159 Wn. App. 366, 372, 245 P.3d 776 (defense counsel's 
failure to advise defendant during plea negotiations of pending decision in Arizona v. 
Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) did not constitute 
deficient performance), review denied, 171 Wn.2d 1025, 257 P.3d 664 (2011).

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