Opinion
No. 50965-9-I.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-02150-2. Judgment or order under review. Date filed: 07/19/2002. Judge signing: Hon. Michael J Fox.
Counsel for Appellant(s), Catherine Lynn Floit, Attorney at Law, PO Box 27713, Seattle, WA 98165.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Cladio Velasquez (Appearing Pro Se), Doc# 811998, Washington State Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA 99362-1062.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Cladio Velasquez was convicted of three counts of rape in the second degree — domestic violence, and one count of felony harassment — domestic violence. He was sentenced to 185 months' incarceration and 36 to 48 months community custody. He appeals his conviction and sentencing on several grounds. We affirm.
FACTS
Cladio Velasquez was charged by amended information with three counts of rape in the second degree — domestic violence, and one count of felony harassment — domestic violence. The State had originally charged Velasquez with two counts of rape in the third degree — domestic violence, and one count of felony harassment-domestic violence.
During a pretrial hearing regarding the admissibility of ER 404(b) evidence, the trial judge heard testimony from Leticia Medina, Velasquez's and Medina's daughter, D.M., and the arresting officer, Officer Daniel Enriquez. All three witnesses testified about several incidents in which Velasquez had threatened and assaulted Medina. The trial judge ruled that their testimony was admissible against Velasquez under ER 404(b). The jury found Velasquez guilty on all four counts. The trial court imposed a standard range sentence of 185 months. The court also imposed a community custody range of 36 to 48 months `or for the entire period of earned early release awarded under [former] RCW 9.94A.150, whichever is longer.'
Former RCW 9.94A.150 (recodified as RCW 9.94A.728 by Laws 2001, ch. 10, sec. 6).
Velasquez appeals his conviction and sentencing on numerous grounds.
ANALYSIS I. Limiting Instruction
Velasquez asserts that the trial court erred in giving a limiting instruction on ER 404(b) evidence over defense counsel's objection. The trial court is required to give a limiting instruction when the party opposing admission of evidence requests a limiting instruction. ER 105; State v. Aaron, 57 Wn. App. 277, 281, 787 P.2d 949 (1990). Here, Velasquez did not request the limiting instruction; he opposed it. The instruction was given in the discretion of the court and we review that decision for an abuse of discretion. City of Tacoma v. Belasco, 114 Wn. App. 211, 214, 56 P.3d 618 (2002) (citing State v. Walker, 136 Wn.2d 767, 771, 966 P.2d 883 (1998)).
Over the course of a pretrial hearing, evidence including testimony regarding Velasquez's prior assaults and threats against Medina and one of her boyfriends was admitted. The trial judge proposed Jury Instruction 18 to limit the jury's use of that testimony. Jury Instruction 18 read: Testimony has been presented regarding alleged incidents of assault or threat by the defendant which are not charged as crimes in this case. You may consider the evidence for the purpose of determining: (1) whether Leticia Medina was in reasonable fear of the defendant carrying out any threats to kill her; (2) whether the defendant used forcible compulsion to have sexual intercourse with Leticia Medina; and (3) the state of mind of Leticia Medina at the time of the acts alleged in Counts I through Counts IV.
You may not consider the testimony for any other purpose. Defense counsel objected to Jury Instruction 18 on the grounds that it would `draw more attention' to the evidence. The trial judge responded to defense counsel's objection:
[W]hat concerns me here is that the jury may confuse the charged events with the testimony that was admitted for 404(b) purposes. And it seems to me that this would be sort of a limiting instruction, saying, `You can only consider these other events for specific purposes and not for whether it's direct evidence, for example, of these particular offenses.'
In State v. Fletcher, 30 Wn. App. 58, 631 P.2d 1026 (1981), relying on Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), this court found that the trial court did not err when the trial judge gave a limiting instruction over the objection of defense counsel. Fletcher, 30 Wn. App. at 62. In Lakeside, the Supreme Court explained that the right to counsel does not `confer upon defense counsel the power to veto the wholly permissible actions of the trial judge. It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and lawful trial.' Lakeside, 435 U.S. at 341. The Lakeside reasoning is applicable here.
In Lakeside, the trial judge instructed the jury that the defendant's failure to testify could not be considered in determining the question of guilt or innocence. Lakeside, 435 U.S. at 335. The defendant argued that a trial judge's refusal to grant his counsel's request not to give an instruction interfered with counsel's trial strategy and, therefore, with his constitutional right to counsel. Lakeside, 435 U.S. at 335.
In this case, the trial judge provided the jury with Instruction 18 in order to insure that Velasquez's trial was fair and lawful. The trial court did not abuse its discretion when it provided Instruction 18 to the jury over defense counsel's objections.
II. Community Custody
Velasquez also contends that section 4.7(c) of his judgment and sentence was `fatally imprecise' and, therefore, his case must be remanded for resentencing.
Interpretation of the Sentencing Reform Act of 1981 (SRA) is a question of law, and on appeal is reviewed de novo. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 245, 955 P.2d 798 (1998).
The jury convicted Velasquez of three counts of rape in the second degree — domestic violence, and one count of felony harassment — domestic violence. Velasquez was sentenced to 16 months for one count of felony harassment — domestic violence pursuant to RCW 9A.46.020(1), (2), and to 185 months' incarceration on each of three counts for rape in the second degree — domestic violence, pursuant to RCW 9A.44.050(1)(a), to run concurrently. Paragraph 4.7(c) of Velasquez's judgment and sentence orders him to community custody for a period of 36 to 48 months or `for the entire period of earned early release awarded under [former] RCW 9.94A.150, whichever is longer.'
`Community placement is `that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release. . . . RCW 9.94A.030(7).'' State v. Mitchell, 114 Wn. App. 713, 715 n. 1, 59 P.3d 717 (2002). `A term of community custody begins either upon completion of the term of confinement, or when an offender is transferred to community custody in lieu of earned release. RCW 9.94A.715(1).' Mitchell, 114 Wn. App. at 715. Former RCW 9.94A.150, explains that `the sentence of an offender committed to a correctional facility operated by the department may be reduced by earned release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined. The earned release time shall be for good behavior and good performance, as determined by the correctional agency having jurisdiction. . . .' Former RCW 9.94A.150(1). Under former RCW 9.94A.150(2)(b), a person convicted of a sex offense `committed on or after July 1, 2000, may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section.' Former RCW 9.94A.150(2)(b). Velasquez committed his crimes between January 1, 2002 and February 17, 2002.
Velasquez argues that under State v. Nelson, 100 Wn. App. 226, 996 P.2d 651 (2000), the sentencing court was required to calculate his maximum potential earned early release award under the former RCW 9.94A.150 and include that information in his judgment and sentence. In Nelson, `[t]he terms of Nelson's community placement [were] immediately ambiguous because the preprinted language . . . [stated] the applicable community placement period could be based on either a conviction for a `serious violent offense' or the `deadly weapon' finding.' Nelson, 100 Wn. App. at 230. Because the judgment and sentence did not specify whether the determination was based on the underlying crime or the deadly weapon enhancement, it was necessary to go outside of that document to determine Nelson's community placement. Nelson, 100 Wn. App. at 231-32. Thus, this court on appeal remanded for resentencing. Nelson, 100 Wn. App. at 232.
The State counters that State v. Mitchell, 114 Wn. App. 713, 59 P.3d 717 (2002), rather than Nelson, controls. The State is correct that in Mitchell the court stated, `when a term of community placement cannot be specifically determined and recorded at sentencing because of a contingency within the defendant's own control, a general awareness of that contingency will suffice. . . .' Mitchell, 114 Wn. App. at 718. However, Mitchell is not controlling. In Mitchell, the defendant could have potentially earned early release time greater than his community custody range. In contrast, Velasquez does not have the potential to earn early release time greater than his community custody range. Velasquez committed rape in the second degree — domestic violence, a class A felony. Former RCW 9.94A.150(1) states that for a sex offender, class A felony, `aggregate earned [early] release time may not exceed fifteen percent of the sentence.' Former RCW 9.94A.150(1). Under former RCW 9.94A.150(1), Velasquez's maximum earned early release is thus 15 percent of 185 months, his term of imprisonment, or approximately 27 months. Because this is less than the 36 to 48 month range for community custody, under the terms of Velasquez's judgment and sentence his community custody will be 36 to 48 months long.
In contrast to Nelson, there is no ambiguity in Velasquez's judgment and sentence. Velasquez's community custody range is not ambiguous. There is no reason to remand this case for resentencing.
III. Ineffective Assistance of Counsel
In a pro se supplemental brief, Velasquez argues that his conviction should be reversed because he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment and article I, section 22 of the Washington State Constitution.
On appeal we consider counsel's performance in light of the entire record and presume that it was within the broad range of reasonable professional assistance. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984). To establish ineffective assistance of counsel, a defendant must first show that his attorney's performance was deficient, and second that the deficiency prejudiced the defense. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong is met by showing that defense counsel's performance was not reasonably effective under prevailing professional norms guaranteed the defendant by the Sixth Amendment. State v. Glenn, 86 Wn. App. 40, 45, 935 P.2d 679, rev. denied, 134 Wn.2d 1003, 953 P.2d 96 (1997). The second prong is met by showing that there is a probability that but for counsel's errors, the result would have been different. Glenn, 86 Wn. App. at 44-45.
The trial court denied Velasquez's motion for new counsel at his pretrial hearing. The first of Velasquez's three claims of ineffective assistance of counsel on appeal reiterates his argument at trial that his defense counsel was ineffective because she `was attempting to coerce [him] into pleading guilty.' The record demonstrates that prior to trial, Velasquez's counsel and her supervisor had discussed with Velasquez the fact that the State would amend charges if Velasquez did not agree to a plea bargain. The record is devoid, however, of evidence that their conduct amounted to coercion.
Velasquez's second claim of ineffective counsel is that his counsel had not conducted discovery at the time of trial. He bases this claim on a gross misinterpretation of one of the trial judge's comments to his counsel at the May 1 pretrial hearing. There is virtually nothing else in the record to support Velasquez's claim that his counsel conducted no discovery. Velasquez's final claim of ineffective assistance of counsel is that his attorney disclosed privileged information to the prosecutor at trial. His claim refers to the following colloquy between his counsel and the prosecutor:
On May 1, 2002, at a 404(b) hearing, Velasquez's counsel asked Medina, his victim, if there was anyone other than Velasquez's ex-wife and her daughter living with Velasquez at the time she first met Velasquez. The State objected to the relevance of her questions. The trial judge sustained the objection and remarked that it was the kind of inquiry that should be conducted during discovery. The judge's comment did not establish that Velasquez's counsel had not engaged in discovery.
[State:] Your Honor, . . . I would like a clearer statement as to what the defense is in this case.
The Court: All right.
[State:] As to each count.
[Velasquez's counsel:] Your honor, part of the reason why it was not clearly stated before was we . . . weren't able to conduct the interviews until late Thursday night before the omnibus hearing and to sit down and explain to [the defendant] what is going on.
He basically says that any sexual relations he had with [the victim] have all been consensual, so we would be —
The Court: All right.
[State:] And as to felony harassment?
[Velasquez's counsel:] That's a denial.
As this colloquy shows, Velasquez's counsel's statements to the prosecutor were statements of defense, not disclosure of privileged information. All three of Velasquez's claims of ineffective assistance are unfounded. Because Velasquez has not demonstrated that his defense counsel's performance was deficient, he fails to meet the first prong of the Strickland test. Moreover, the record does not support a finding that Velasquez's counsel's conduct prejudiced him in any way. He thus also fails the second prong of the Strickland test. Thomas, 109 Wn.2d at 225-26.
IV. Prosecutorial Vindictiveness
Velasquez next asserts that the State acted vindictively by amending charges against him after he refused to plead guilty.
Initially, the State charged Velasquez with one count of felony harassment — domestic violence and one count of rape in the third degree — domestic violence. After abortive plea negotiations, the State amended the information to three counts of rape in the second degree — domestic violence, and one count of felony harassment — domestic violence. Prosecutorial vindictiveness is the ``intentional filing of a more serious crime in retaliation for a defendant's lawful exercise of a procedural right.' . . . But an initial charging decision does not freeze prosecutorial discretion. A prosecutor may increase an initial charge when a fully informed and represented defendant refuses to plead guilty to a lesser charge.' State v. Bonisisio, 92 Wn. App. 783, 790, 964 P.2d 1222 (1998) (quoting State v. Lee, 69 Wn. App. 31, 35, 847 P.2d 25 (1993)). `A defendant in a pretrial setting bears the burden of proving either `(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.'' Bonisisio, 92 Wn. App. at 791 (quoting U.S. v. Wall, 37 F.3d 1443, 1447 (10th Cir. 1994)); U.S. v. Goodwin, 457 U.S. 368, 378-80, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982).
Velasquez fails to establish prosecutorial vindictiveness. The record reflects that his counsel informed him of the repercussions of refusing a plea bargain. The April 26, 2002 pretrial hearing clearly shows that Velasquez was aware that the State would amend its charges against him if he refused a plea bargain. Velasquez was thus a `fully informed and represented defendant.' Bonisisio, 92 Wn. App. at 790. Accordingly, the prosecution did not exceed the parameters of its authority when it increased its initial charges against Velasquez after he refused to plead guilty to lesser charges. Bonisisio, 92 Wn. App. at 790.
V. Sufficiency of Evidence
Velasquez next argues that the evidence was insufficient to prove rape in the second degree — domestic violence, and felony harassment — domestic violence beyond a reasonable doubt. Specifically, he asserts that the State's only evidence was testimony from Medina, his victim, and that her testimony was not credible.
Constitutional due process requires the State to prove each element of a charged offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
"A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Romero, 113 Wn. App. 779, 797, 54 P.3d 1255 (2002) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). "The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." Romero, 113 Wn. App. at 797 (quoting Salinas, 119 Wn.2d at 201). The reviewing court considers circumstantial evidence to be as equally reliable as direct evidence. Romero, 113 Wn. App. at 798. `The reviewing court defers to the trier of fact on the credibility of witnesses and the persuasiveness of evidence.' Bonisisio, 92 Wn. App. at 794.
The evidence presented at trial was sufficient to support Velasquez's convictions. Medina testified that Velasquez forced her to have sexual intercourse against her will on at least three occasions between January 1, 2002 and February 17, 2002. She also testified that on at least one of those occasions, Velasquez told her that if she did not comply he was going to take their two daughters to Mexico and, while there, was going to hire someone to kill her. Moreover, other testimony by Officer Enriquez and D.M. supported Medina's testimony. Based on the evidence viewed in the light most favorable to the State, a rational trier of fact could have found Velasquez guilty beyond a reasonable doubt of the crimes with which he was charged. Romero, 113 Wn. App. at 797.
VI. Interpretive Services
Finally, Velasquez maintains that he was denied a fair trial because (1) the trial judge acted as an interpreter, and (2) the court-appointed interpreter was incompetent. The record supports neither of his claims.
The appointment of an interpreter is a matter within the discretion of the trial court and shall be disturbed only upon a showing of abuse. State v. Gonzales-Morales, 138 Wn.2d 374, 381, 979 P.2d 826 (1999).
To support his argument that the trial judge directed the prosecution by acting as an interpreter, Velasquez cites one passage during the pretrial hearing in which the judge sought to clarify a statement for the interpreter. The trial judge's clarification was not an abuse of discretion. To the contrary, it was directed at protecting Velasquez's interests by insuring that all parties understood the exchange and that its meaning was clearly preserved on the record.
The passage from the trial to which Velasquez cites states:
[State:] How did he verbally threaten you?
[Medina:] Telling me that he was going to kill me, that I could never leave him.
[Interpreter:] The interpreter lost the last sentence.
[Medina:] That I could never leave him, that — he threatened me to kill me and also by choking me.
[State:] Did he also threaten Roberto?
[Defendant's Counsel:] Objection; lack of foundation.
The Court: I'll sustain the objection to the question as presently phrased. It's not clear whether you are asking whether this was done in her presence or in the presence of Roberto.
[State:] Okay.
The Court: If the latter, there would have to be a foundational basis for it.
[State:] Did [Velasquez] ever make any threats to another person in front of you?
[Medina:] No.
[State:] Did he —
The Court: Hold on. Your question was whether there was a threat made regarding another person in the presence of this witness, right?
[State:] Yes.
The Court: Okay. Why don't you try that question again. I'm not sure, Madam Translator, if you translated it in that way. So go ahead.
Velasquez cites three passages in the record to support his claim that the interpreter was incompetent. None of the passages from the record to which he cites contain any evidence that the translator was incompetent. The record as a whole demonstrates that the court was particularly vigilant and sensitive to Velasquez's right to an interpreter. The court assigned two interpreters to assist Velasquez at trial. One interpreter was a native of Mexico, Velasquez's native country. Moreover, the trial judge was unusually attentive to the importance of nuance in translation, and reiterated throughout the trial that it was Velasquez's right to have an interpreter.
We note also that Velasquez wrote his statement waiving his rights in English. The court noted in its findings of fact and conclusions of law, `[a]lthough not fluent, the defendant understands English and is able to communicate in English, as evidenced by his handwritten statement,' and that `[w]hen the defendant was contacted by Officer Enriquez in 2000, the defendant stated he preferred to be spoken to in English, despite the fact that Officer Enriquez began speaking to him in Spanish.'
The following commentary by the trial judge, relating an incident from his years as a practicing attorney, attests to his awareness of the importance of competent translation:
I had many cases involving disputed issues of translation at depositions. . . . [M]y favorite story was one where a woman was overcome by fumes in a potato factory. And she testified . . . [in Spanish] `I was overcome by fumes.' [end Spanish]. But that was translated by someone who went to the Royal Academy in Spain as, `I was drunk in the factory,' which . . . would be an alternate meaning, but a totally different meaning, that she was drunk on the job as opposed to being overcome by these fumes.
So I would certainly encourage you to confer with one another. I don't know if we're going to get into idiomatic differences or not.
The record does not support Velasquez's claims that he was denied a fair trial either because (1) the trial judge acted as an interpreter, or (2) the court-appointed interpreter was incompetent.
We affirm Velasquez's conviction and sentencing.
SCHINDLER and BECKER, JJ., concur.