IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ALBERTO ALVAREZ,

Appellant.

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No. 37418-1-III

UNPUBLISHED OPINION

FEARING, J. — A jury convicted Alberto Alvarez of extortion in the second 

degree. On appeal, we affirm his conviction. We direct the superior court to strike the 

imposition of community custody supervision fees imposed on Alvarez. 

FACTS

Alberto Alvarez engaged in an intimate relationship with Esther, a pseudonym. 

After the relationship ended, Alvarez sent intimate pictures of Esther to third parties and 

posted them to social media accounts created in her name, in an attempt to extort money 

from her. 

PROCEDURE

The State of Washington charged Alberto Alvarez, by information, with one count 

each of extortion in the second degree, disclosing intimate images, and cyberstalking. 

FILED

DECEMBER 9, 2021

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 37418-1-III

State v. Alvarez

2

The State later filed a substantively similar amended information. 

On the first day of trial, the State submitted a second amended information. This 

second amendment replaced the word “photographs” with the word “money” in the 

description for the count of second degree extortion. The modified language read that 

Alberto Alvarez “obtained or attempted to obtain property or services, money, from 

[Esther].” Clerk’s Papers (CP) at 37 (emphasis added). Alvarez objected to the State’s 

last-minute amendment to the information. The trial court reasoned that the late 

amendment did not prejudice Alvarez because the information, as amended, remained

consistent with the probable cause affidavit. Still, the court allowed defense counsel to 

request a continuance. Defense counsel responded that Alvarez desired to proceed to trial 

that day. 

During jury selection, defense counsel moved to exclude juror 72, former 

prosecutor Kevin Page, for cause. Counsel explained that Page previously prosecuted 

him for driving under the influence (DUI). The State agreed to exclude Page. RP 59. 

The trial court granted defense counsel’s request. 

During Esther’s testimony, the State asked her about events occurring before she 

and Alberto Alvarez ended their intimate relationship:

And then things got—out of hand, abusively, and—one day 

particular [sic]—he put his hands on me and—
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3

Report of Proceedings (RP) (Jan. 30, 2020) at 185. In the middle of Esther’s answer, 

defense counsel objected and moved to strike Esther’s statement based on a previous 

order in limine prohibiting discussion of Alvarez’s prior bad acts. Esther’s response 

would likely have mentioned an incident, about which the State charged Alvarez with 

assault. The State later dismissed the assault charge. With defense counsel’s objection, 

the trial court removed the jury from the courtroom. 

The appellate record does not contain the motion or order in limine defense 

counsel referenced. Although the trial court granted the motion in limine, the court, 

during Esther’s testimony, did not recall the motion being as specific as counsel claimed. 

The court remembered the order as only excluding events related to pending charges 

against Alvarez for prior domestic violence against Esther. Defense counsel insisted that 

he specifically sought to exclude mention of all of Alvarez’s earlier bad conduct. After 

the jury returned following a recess, a prudent trial court sustained defense counsel’s 

objection and instructed the jury to disregard Esther’s “last response.” RP (Jan. 30, 2020) 

at 226. 

At trial, the State presented, as evidence, more than 500 printout pages of snippets 

of texts between Alberto Alvarez and Esther. During the State’s direct examination of 

Esther, the prosecuting attorney asked about specific text messages with Alvarez. 

Defense counsel, finding the State’s strategy problematic, moved to publish the entirety 
No. 37418-1-III

State v. Alvarez

4

of exhibits 8 through 11 and requested the court to direct the jury to read through the 

entire exhibits. The trial court granted defense counsel’s request. 

The State sought to publish social media messages sent between Alberto Alvarez 

and Esther with photographs of Esther redacted. Defense counsel objected to redacting 

the photos. The State withdrew its request to publish redacted versions of the photos. 

At the prosecution’s request, Esther read aloud, to the jury, a portion of the social 

media messages between her and Alberto Alvarez:

I [Esther] said, “No, you’re trying to fuck me over,” and he 

[Alvarez] said, “Lazy.” And I said, “Like I can’t defend myself.” 

And he said, “Said the bitch breaking windows.” 

And then I said “LMAO,” laugh my ass off, “You’re threatening me 

for money.[”] 

And he said, “Fuck you. My money.”

RP (Jan. 31, 2020) at 54-55 (emphasis added). The State sought to establish that Alberto 

Alvarez’s motive for extorting Esther for money was based on his belief that Esther’s 

brother broke Alvarez’s car windows. 

After the State rested its case, the trial court questioned whether the State had 

failed to establish a jurisdictional element for the charge of disclosing intimate images. 

But the court dismissed the charge anyway due to insufficient evidence that any third 

parties received the images Alberto Alvarez allegedly sent. 

The trial court asked Alberto Alvarez a series of questions to verify his 

understanding about his right to testify. RP (Jan. 31, 2020). Alvarez affirmed that he 
No. 37418-1-III

State v. Alvarez

5

understood his rights and that defense counsel addressed all of his questions about his 

right. 

During its closing argument, the State argued:

Pictures were sent out in the context of that demand, “Give me more 

money.” And the—the threat was made explicit: “If you give me money 

I’ll stop sending out the pictures.”

. . . .

But again, it’s in the evidence. It’s in the text messages.

RP (Feb. 3, 2020) at 275 (emphasis added). Defense counsel did not object to the State’s 

remarks.

The jury could not reach a verdict on the charge of cyberstalking. Thus, the trial 

court declared a mistrial on that count. The jury returned a verdict of guilty on the 

remaining count of extortion in the second degree. 

The trial court held a sentencing hearing on February 21, 2020. The court 

sentenced Alberto Alvarez to fourteen months’ confinement and twelve months’ 

community custody on his sole conviction for second degree extortion. 

At the end of the sentencing hearing, the trial court discussed the imposition of 

legal financial obligations. The court imposed the mandatory $500 victim penalty 

assessment. Then, pursuant to State v. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680 

(2015), the sentencing court inquired into Alberto Alvarez’s ability to pay discretionary 

costs. The court found Alvarez indigent and waived all discretionary financial 
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State v. Alvarez

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obligations. The trial court stated:

And with regard to the Blazina factors, Mr. Alvarez, it looks like the 

only finding is that the fine that is requesting to be imposed is mandatory, 

so I don’t think I have to make so much of an assessment as far as your 

ability to pay.

RP (Feb. 21, 2020) at 7 (emphasis added).

In the judgment and sentence, all of the provisions in the “Community Custody” 

section were marked as applicable. One of these provisions ordered that, while on 

community custody, Alberto Alvarez must pay supervision fees as determined by the 

Department of Corrections. 

LAW AND ANALYSIS

Community Custody Fees

Alberto Alvarez requests, based on his indigency, we remand to the sentencing 

court to vacate his obligation to pay community custody supervision fees. The State 

correctly concedes the need for the vacation in accordance with State v. Dillon, 12 Wn. 

App. 2d 133, 152, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198 (2020). 

We reverse and remand for this sole purpose.

STATEMENT OF ADDITIONAL GROUNDS

Alberto Alvarez assigns a plethora of errors in a statement of additional grounds. 
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Probable Cause

Alberto Alvarez argues that the State wrongfully filed charges against him without 

sufficient probable cause. He cites RPC 3.8(a), which demands that a prosecutor “refrain 

from prosecuting a charge that the prosecutor knows is not supported by probable cause.” 

Alvarez maintains that the trial court recognized that an erroneous probable cause 

statement was filed against him. 

Alberto Alvarez did not object on probable cause grounds before the trial court,

probably since no error occurred. At the beginning of trial, the superior court 

acknowledged that the clerk’s file included an erroneous probable cause affidavit. 

Nevertheless, defense counsel recognized he possessed a correct probable cause affidavit. 

The State then filed the correct affidavit. Alvarez suffered no prejudice by the filing 

error. 

Removal of Prosecutor

Alberto Alvarez contends that the trial court erred by not removing the prosecutor, 

Brooke Wright, from this prosecution because of Alvarez’s pending § 1983 lawsuit 

against her. Alvarez further contends that the outcome of the prosecution against him 

greatly impacted the lawsuit against Wright. Our record lacks any motion Alberto 

Alvarez filed demanding Brooke Wright’s removal from the case. Alvarez also fails to 

explain how the outcome of this case impacted the suit against Wright. 
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This court will not review claims brought on direct appeal when the claims involve 

matters outside of the trial court. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 

1251 (1995). Accordingly, we refuse to address the merits of this argument.

Due Process Violations

Alberto Alvarez asserts three due process violations. First, he maintains that, 

because the State filed its second amended information on the day that his trial began, he 

was faced with the choice of either going forward with the trial unprepared or waiving his 

right to a speedy trial in order to prepare his defense. Second, Alvarez contends that the 

State violated his right to a fair trial by failing to secure a material witness, Ivan Han, 

thus eliminating his opportunity to cross-examine Han. He claims that, if he could have 

examined Han, the narrative of the trial would have changed. Third, Alvarez contends 

that the State erred by charging him with disclosing intimate images when the trial court 

later ruled it had no jurisdiction over that charge. He argues that, although the court 

dismissed this charge, he was prejudiced from the jury’s knowledge of the charge. 

The State first filed charges against Alberto Alvarez on November 28, 2016. The 

State amended its information on December 5, 2016. Finally, on January 29, 2020, the 

State filed its second amended information. The only determinable alteration made to the 

first amended information is the replacement of the word “photographs” with the word 

“money” to the count of second degree extortion. CP at 37. The modified language 
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State v. Alvarez

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reads that Alvarez “obtained or attempted to obtain property or services, money, from 

[Esther].” CP at 37 (emphasis added). 

Defense counsel objected to the State’s late amendment to the information. The 

trial court concluded that the late filing did not prejudice Alberto Alvarez since the 

amendment to the information jibed with the probable cause statement. Nonetheless, the 

cautious court offered defense counsel the opportunity to request a continuance to give 

him time to prepare. Defense counsel responded that Alvarez felt adamant about 

proceeding to trial that day. 

Alberto Alvarez could have requested a continuance to allow himself time to 

prepare in light of the late amendment to the information assuming such was needed. He 

chose not to. The charging document did not mislead Alvarez. Alvarez identifies no 

prejudice suffered as a result of the late amendment. 

Alberto Alvarez speculates that cross-examination of Ivan Han would have 

assisted his defense without explaining why. Alvarez could have subpoenaed Han as his 

own witness if he deemed Han’s testimony critical. Because Han did not testify, this 

claim involves matters outside of the record. We refuse to otherwise address it. State v. 

McFarland, 127 Wn.2d 322, 335 (1995). 

The trial court did not conclude it lacked jurisdiction over the charge of disclosing 

intimate images. The court questioned whether the State proved a jurisdictional element, 

but dismissed the charge due to insufficient evidence that Alberto Alvarez disclosed any 
No. 37418-1-III

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images to a third party. Because probable cause supported the charge, the State did not 

err by bringing the charge against Alvarez. Alvarez cites to no authority holding that 

prejudice results because the jury heard evidence supporting a dismissed charge.

Inadmissible Testimony

Alberto Alvarez argues that the State committed misconduct by knowingly 

eliciting inadmissible testimony from Esther about his prior domestic violence against 

her. 

To prove prosecutorial misconduct, a defendant must show that “the prosecuting 

attorney’s conduct was both improper and prejudicial.” State v. Weber, 159 Wn.2d 252, 

270, 149 P.3d 646 (2006). Such conduct is prejudicial when there is “‘a substantial 

likelihood the misconduct affected the jury’s verdict.’” State v. Weber, 159 Wn.2d at 

270 (quoting In re Personal Restraint of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 

(1998). In analyzing this issue, an appellate court should review a prosecutor’s actions 

“in the context of the total argument, the issues in the case, the evidence addressed in the 

argument, and the instructions given.” State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 

747 (1994). 

During the State’s direct examination of Esther, she began to relate events 

occurring before she and Alberto Alvarez ceased being intimate. Defense counsel 

immediately objected and moved to strike Esther’s statement based on his previous

motion in limine prohibiting discussion of Alvarez’s prior bad acts. The trial court 
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granted defense counsel’s objection and instructed the jury to disregard Esther’s “last 

response.” RP (Jan. 30, 2020) at 226. 

Esther’s testimony about earlier abuse was isolated and immediately objected to 

by defense counsel. The jury heard no details of any prior abuse. The trial court 

provided a curative instruction when the jury returned. Alvarez suffered no prejudice. 

Inadmissible Electronic Messages

Alberto Alvarez contends that the trial court erred in admitting social media 

messages into evidence after previously ruling that the messages were inadmissible.

Alvarez complains that the court admitted all 500 plus pages worth of messages. 

Alberto Alvarez does not identify the exhibit numbers of the exhibits about which 

he complains. Exhibits 8, 9, 10, and 11 are printouts of Alvarez’s and Esther’s 

conversations. Defense counsel disliked the State’s dividing portions of the messages 

and moved to publish the entirety of exhibits 8 through 11. Counsel also requested that 

the trial court direct the jury to read all messages. The trial court obliged. 

Since defense counsel requested to admit the entirety of the electronic 

communications between Alberto Alvarez and Esther, we refuse to address Alvarez’s 

assignment of error. 
No. 37418-1-III

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Access to Discovery

Alberto Alvarez asserts that the jury reviewed social media messages not 

introduced into evidence nor presented in open court. He proclaims a lack of knowledge 

of what documents the jury reviewed during deliberations. 

Defense counsel had access to the 500+ pages of messages between Alberto 

Alvarez and Esther. When cross-examining Esther, defense counsel even handed the 

witness the exhibits. Alvarez cites to no authority requiring that all admitted exhibits be 

presented in open court. Additionally, the trial court directed the jury to read the 

messages at defense counsel’s request. 

Jury Misconduct

Alberto Alvarez maintains that venireman Kevin Page could have informed other 

jurors that he previously prosecuted defense counsel. Thus, according to Alvarez, he 

lacked an impartial jury. 

During jury selection, defense counsel requested to exclude Kevin Page for cause, 

because Page previously prosecuted defense counsel for DUI. The trial court granted the

request. 

Alberto Alvarez may mistakenly believe that Kevin Page served on the jury. 

Moreover, defense counsel volunteered the information that Page previously prosecuted 

him for DUI. In the unlikely event that Page shared any details about the DUI to other 
No. 37418-1-III

State v. Alvarez

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members of the jury pool, such facts remain outside the record. State v. McFarland, 127 

Wn.2d 322, 335 (1995). 

Speedy Trial Violation

Alberto Alvarez argues that his right to a speedy trial was violated on multiple 

occasions. When asserting that he objected to continuances, he cites indexes in the trial

record that do not appear in the appellate record. Because we cannot address this 

assignment of error without considering materials outside of the appellate record, we 

refuse to consider it. State v. McFarland, 127 Wn.2d at 335. 

Ineffective Assistance of Counsel

Alberto Alvarez contends that trial defense counsel five times provided ineffective 

assistance. First, counsel failed to request a continuance when the State moved to amend 

the complaint on the day of trial. Second, counsel failed to request suppression of 

Alvarez’s prior bad acts of domestic violence against Esther. Third, counsel failed to 

seek a mistrial when the State elicited inadmissible testimony about his prior bad acts. 

Fourth, counsel failed to show Alvarez the State’s discovery, discuss strategies, or 

explain what he should expect if he chose to take the stand. Fifth, counsel failed to 

overturn the jury’s verdict based on the numerous errors at trial and the fact the jury 

could not reach a verdict after deliberating twice. 

To prevail on an ineffective assistance of counsel claim, the defendant must 

demonstrate “both (1) that defense counsel’s representation was deficient and (2) that the 
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deficient representation prejudiced the defendant.” State v. Estes, 193 Wn. App. 479, 

488, 372 P.3d 163 (2016), aff’d, 188 Wn.2d 450, 395 P.3d 1045 (2017). Representation 

is deficient if, after considering all the circumstances, the performance falls below an 

objective standard of reasonableness. State v. Estes, 193 Wn. App. 479, 488 (2016). 

Prejudice exists if there is a reasonable probability that except for counsel’s errors, the 

result of the proceeding would have differed. State v. Estes, 193 Wn. App. at 488. 

Criminal defendants may rebut the presumption of reasonable performance by 

demonstrating no conceivable legitimate tactic explaining counsel’s performance. State 

v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). Counsel’s failure to move to suppress 

evidence on one ground can be undermined by some degree if counsel moved to suppress 

on another ground. State v. Nichols, 161 Wn.2d 1, 15, 162 P.3d 1122 (2007). 

Even if defense counsel erred by not requesting a continuance to further prepare 

for trial, the trial court found no prejudice to the defense when the State sought to amend

the information for the second time. Defense counsel decided not to request a 

continuance based on Alberto Alvarez’s adamance. Alvarez identifies no additional 

preparation needed as a result of the amendment. 

The trial court granted a motion in limine barring, at least, testimony of pending 

charges against Alberto Alvarez. Defense counsel urged the court that his motion 

excluded testimony relating to any of Alvarez’s bad acts. Although the trial court 

preliminarily disagreed with defense counsel, it sustained his objection to Esther’s 
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testimony about Alvarez’s prior assault against her. The record does not show the 

specificity of the motion in limine. Nonetheless, the trial court gave defense counsel the 

benefit of the doubt. Thus, even if the motion did not bar the challenged testimony, the 

court precluded the testimony anyway. 

Assuming defense counsel should have moved for a mistrial when the State 

elicited testimony from Esther about Alberto Alvarez’s prior acts of domestic violence, 

the trial court would likely not have granted the motion. Defense counsel immediately 

objected to the inadmissible testimony. On the jury’s return, the trial court ordered 

Esther’s last response be disregarded and struck from the record. 

Alberto Alvarez fails to explain why his lack of familiarity with the State’s 

discovery and defense counsel’s strategy prejudiced him. Moreover, the trial court asked 

Alvarez whether defense counsel had answered all of his questions about his right to 

testify and whether he understood this right. Alvarez responded in the affirmative. 

Finally, the jury’s inability to reach a verdict actually benefitted Alberto Alvarez, 

as it led to a mistrial on the cyberstalking charge. 

Prosecutorial Misconduct during Closing

During closing, the State’s attorney remarked:

Pictures were sent out in the context of that demand, “Give me more 

money.” And the—the threat was made explicit: “If you give me money 

I’ll stop sending out the pictures.”. . .

. . . .

But again, it’s in the evidence. It’s in the text messages.
No. 37418-1-III

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RP (Feb. 3, 2020) at 275 (emphasis added). Alberto Alvarez asserts that these comments 

amounted to flagrant and ill-intentioned misconduct as nothing in the record supports the 

prosecutor’s comments. 

When a defendant fails to object to alleged prosecutorial misconduct, the 

defendant must demonstrate that the misconduct was so flagrant and ill intentioned that 

an instruction would not have cured the prejudice. In re Personal Restraint of 

Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). The absence of a motion for 

mistrial at the time of the argument strongly suggests to a court that the argument or 

event in question did not appear critically prejudicial to an appellant in the context of the 

trial. State v. Swan, 114 Wn.2d 613, 635, 790 P.2d 610 (1990). 

Our record lacks the transcripts of the messages between Alberto Alvarez and 

Esther. So we cannot confirm the validity of Alvarez’s argument. 

Incorrect Jury Instructions

Alberto Alvarez maintains that the jury could not reach a verdict on the charges 

against him due to the trial court’s inability to properly instruct them. Alvarez fails to 

identify the purported mistaken instructions. The jury’s inability to reach a verdict on 

cyberstalking served as a victory for Alvarez.
No. 37418-1-III

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Prosecutor’s Meeting with Esther

Alberto Alvarez argues that the prosecutor committed misconduct by meeting 

alone with the alleged victim, Esther. He contends that Wright met with Esther to induce 

her to commit perjury. Alvarez attaches, as an appendix, a printout of a scheduled 

appointment between Wright and Esther set for January 17, 2020. 

This court will not review claims brought on direct appeal when the claims 

involve matters outside of the trial court. State v. McFarland, 127 Wn.2d 322, 335 

(1995). Because the document on which Alberto Alvarez relies is not included in the 

record, it lies outside this court’s purview. Even if this court chose to review the 

document, the printout only demonstrates that Brooke Wright planned to meet Esther, not 

that a meeting took place. 

Alberto Alvarez fails to cite authority prohibiting a prosecuting attorney from 

meeting with an alleged victim one-on-one. He relies on State v. Schmitt, 124 Wn. App. 

662, 102 P.3d 856 (2004), without explaining the case’s relevance. In Schmitt, the trial 

court ordered disqualification of a deputy prosecuting attorney pursuant to RPC 3.7, 

deeming the prosecuting attorney a necessary witness for trial. 

Erroneous No-Contact Order

Alberto Alvarez asserts that the trial court erred when entering a no-contact order 

on December 5, 2016, because the affidavit of probable cause supporting the order was 

falsified and had no bearing on the charges against him. Alvarez does not state what 
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relief he seeks from this court for this alleged error. The record bears no mention of a nocontact order. State v. McFarland, 127 Wn.2d 322, 335 (1995). 

Esther’s Authentication of the Social Media Messages

Alberto Alvarez cites a January 30, 2021 trial brief, arguing that the brief indicates 

Esther would testify as to her knowledge of the social media messages containing 

evidence of Alvarez’s alleged extortion. He maintains the brief does not read that Esther 

would initial each page of the printouts of the messages as the State directed her to do in 

open court. 

Our record does not contain the trial brief. State v. McFarland, 127 Wn.2d at 335. 

By January 30, 2021, nearly one year had elapsed since Alvarez’s trial concluded. 

Perhaps Alvarez’s SAG contains a scrivener’s error, and he meant to write January 30, 

2020. Even if the record contained the brief, Alvarez fails to explain why the document’s 

lack of language directing Esther to initial each of the pages of social media messages 

between her and Alvarez created a problem. Presumably, Alvarez is challenging the 

authenticity of the message printouts. If so, Alvarez waived this contention when his 

counsel moved the trial court to publish the entirety of the social media messages, which 

request the court granted. 

Inadmissible Social Media Messages

Alberto Alvarez again cites to the supposed January 30, 2021 trial brief, 

highlighting the State’s intention to “‘admit all’” of the social media messages. 
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Supplemental SAG at 2. Because not every social media message exhibit was entered 

into evidence, Alvarez argues that none of the message exhibits should have been 

admitted. 

Not only is the trial brief outside of the record, but Alberto Alvarez provides no 

support for his illogical argument. State v. McFarland, 127 Wn.2d 322, 335 (1995). One 

exhibit’s inadmissibility does not affect another exhibit’s admissibility. 

Alberto Alvarez also argues that the social media exhibits should have been ruled 

inadmissible, because the State redacted the photos of Esther when the exhibits were 

published, in violation of the trial court’s ruling that they not be redacted. The social 

media exhibits at issue are not in the record. State v. McFarland, 127 Wn.2d at 335. The 

record does not confirm Alberto Alvarez’s claim that the published version of the social 

media exhibits contained redacted photos of Esther. 

Excluded Witnesses

Alberto Alvarez contends that the trial court should have barred Detective Mark 

Williams’ testimony, because Williams testified about the social media messages 

between Alvarez and Esther before the messages were admitted into evidence. While 

Williams mentioned the social media messages before their introduction into evidence, 

Alvarez did not object to the testimony then, nor does he now cite authority explaining 

why Williams’ testimony was inadmissible.
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Motion in Limine Violation

Alberto Alvarez asserts that the trial court should have excluded both Detective 

Mark Williams’ and Esther’s testimony because defense counsel’s first motion in limine, 

agreed to by both parties, governed the “‘[e]xclusion of witnesses.’” Supplemental SAG 

at 3. Alvarez suggests that, since the motion in limine did not specify which witnesses 

were to be excluded, the court should have barred all witnesses.

Literalist Alberto Alvarez supplies no support for his argument. We refuse to 

address this claim because of its silly nature, because of his failure to object before the 

trial court, and because our record does not include the motion in limine. State v. 

McFarland, 127 Wn.2d 322, 335 (1995).

Esther’s Perjury

Alberto Alvarez maintains that Esther committed perjury when averring that his 

motivation for extorting her was retaliation for her brother’s smashing Alvarez’s car 

windows. Esther only testified once about windows: when she read, in open court, a 

message she received from Alvarez, stating:

“Said the bitch breaking windows.”

RP (Jan. 31, 2020) at 54 (emphasis added). We cannot conclude that Esther prevaricated 

during her testimony because she did not offer the statement as the truth of the matter. 

She simply read a statement written by Alvarez. 
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Subornation of Perjury

Alberto Alvarez argues that prosecutor Brooke Wright induced Esther to lie during 

her testimony. Alvarez explains that, at the time of trial, Alvarez filed lawsuits against 

both Brooke and Esther. Thus, they had a motive to collude with one another to ensure 

Alvarez’s conviction. Alvarez cites to nowhere in the record that demonstrates any 

perjury or prosecutorial misconduct arising from inducing perjury. 

Brady Violation

Alberto Alvarez contends that the State, in violation of Brady v. Maryland, 373 

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), failed to provide him with crucial, 

exculpatory evidence. He lists the following documents as withheld: 

1. Coban of Police interaction with alleged victim on 11-18-2016 

resulting in charges being filed.

2. Smith affidavit of alleged victim[.]

3. Detective follow-up report of Detective Dulce Diaz

4. Sanction information of Dectective [sic] Dulce Diaz resulting in 

being stripped of Detective status and now a patrol officer.

5. Payment receipt, incentives, threats, and/or promises made by the 

state to the alleged victim for testifying.

Supplemental SAG at 5.

Under due process principles, the State must disclose evidence favorable to the 

accused and material to the accused’s guilt or punishment. State v. Mullen, 171 Wn.2d 

881, 894, 259 P.3d 158 (2011). Evidence is material if there is a reasonable probability 

that, if it had been disclosed to the defendant, the proceeding result would have been 
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different. State v. Mullen, 171 Wn.2d 881, 894 (2011). To demonstrate a Brady

violation, the defendant must establish that the suppression of the evidence prejudiced the 

defendant. State v. Mullen, 171 Wn.2d at 895. 

Alberto Alvarez fails to establish a Brady violation. He does not explain why the 

listed documents would have altered the outcome of the trial. He also does not argue that 

the State, whether purposely or not, withheld the evidence. Alvarez fails to demonstrate 

prejudice as a result of any alleged suppression of evidence.

Prosecutor’s Relationship with a Juror

Alberto Alvarez asserts that Brooke Wright personally knew juror 10, the 

foreperson, and that she connived to place this person on the jury. He provides no 

citation to the record to support this claim. 

Erroneous Sentencing Memorandum

Finally, Alberto Alvarez maintains that the State committed prosecutorial 

misconduct during sentencing by including a police report from a different jurisdiction in 

its sentencing memorandum. In the memorandum, the State indicated that “‘Alvarez was 

convicted in 2016 of disseminating intimate photographs.’” Supplemental SAG at 6. He 

emphasizes that the prosecuting authority dismissed the charge. 

Our record does not contain the sentencing memorandum. State v. McFarland, 

127 Wn.2d 322, 335 (1995). Therefore, we decline to address this alleged error. 
No. 37418-1-III

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CONCLUSION

We grant Alberto Alvarez’s one request on appeal to direct the superior court to 

vacate his obligation to pay for community custody supervision fees. The trial court may 

strike the obligation without Alvarez’s presence at a hearing. We reject all of Alvarez’s 

statement of additional grounds. 

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.

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Pennell, C.J.

______________________________

Staab, J.