IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

JOSE ANTONIO CONTRERAS,

Appellant.

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No. 35975-1-III

UNPUBLISHED OPINION

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. 

FILED

JUNE 13, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35975-1-III

State v. Contreras

2

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 
No. 35975-1-III

State v. Contreras

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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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State v. Contreras

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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. 
No. 35975-1-III

State v. Contreras

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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 
No. 35975-1-III

State v. Contreras

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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 
No. 35975-1-III

State v. Contreras

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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 1251 
No. 35975-1-III

State v. Contreras

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(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 
No. 35975-1-III

State v. Contreras

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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 
No. 35975-1-III

State v. Contreras

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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, 
No. 35975-1-III

State v. Contreras

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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 
No. 35975-1-III 

State v. Contreras 

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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