Opinion
66746-7-I
07-23-2012
STATE OF WASHINGTON, Respondent, v. JUSTIN CASTILLO, Appellant.
UNPUBLISHED OPINION
LAU, J.
A defendant who is a minor at the time of an offense but is over 18 when it is reported and charged must be tried as an adult and has no right to a hearing on juvenile court jurisdiction. Because Justin Castillo was 26 years old when offenses he may have committed as a minor were reported and charged, he was not denied due process when he was tried in adult court without a hearing on juvenile court jurisdiction. Because Castillo also fails to demonstrate that his trial in adult court violated equal protection, that he received ineffective assistance of counsel, or that his sentence amounted to cruel and unusual punishment, we affirm his convictions and sentence for rape of a child and child molestation.
FACTS
Based on allegations that Castillo raped and caused a third person to molest his niece, P, the State charged him with two counts of first degree rape of a child and one count of first degree child molestation. Castillo was a minor during a portion of the charging period, but was 26 years old when the allegations were made and 27 years old when charges were filed.
The jury in Castillo's first trial was unable to reach a verdict, and the court declared a mistrial. At the second trial, the State's evidence established that P and her mother resided with Castillo for most of four years. Castillo often cared for P and her cousin A, who also lived in the home.
P testified that Castillo raped her when she was five or six years old. They were driving to McDonald's with A, who was also five. Castillo, who was then 17 or 18 years old, stopped in a parking lot and had P perform oral sex on him. Castillo told P that if she told anyone, he would hurt her mother. A testified that he did not remember this incident.
P testified that another incident of oral sex in a car occurred sometime during the next year. A was not present during this incident. P recalled kneeling under the steering wheel in order to perform the act.
During this same time, P alleged that Castillo would come into the bedroom she shared with her mother and tell P to come with him. They would then have intercourse in the living room. P testified that this happened many times, but she had a complete memory of only one occasion.
P did not tell anyone about the rapes because Castillo had told her he would hurt her mother if she did. She was also afraid that disclosing the incidents would divide her family.
P first disclosed the rapes to several friends in 2006. In November 2006, P's father found a note in which P and a school friend traded comments about P being sexually abused. He took P to a medical clinic for a sexual assault examination. P told a pediatric nurse practitioner that she had been sexually abused for several years by her uncle who had moved to California. The nurse notified Child Protective Services (CPS). CPS contacted police.
P's cousin, A, testified that he and P were roughly the same age and lived in the same house with Castillo. A alleged that Castillo forced him to have sexual contact with P in the garage when he was between 4 and 6 years old. A said Castillo guided his penis into P's vagina. Immediately afterward, Castillo asked P to perform oral sex on him and directed A to act as a lookout. P testified that she did not recall this incident.
A did not disclose this incident until the 2007 investigation of P's rape allegations. P alleged other sexual assaults by Castillo in Pierce County and California, but the defense succeeded in excluding them.
In closing arguments, both counsel focused on P's and A's credibility and memory issues. Defense counsel emphasized the "awfully vague and contradictory" testimony of P and A, P's reluctance to be physically examined or counseled, the implausibility of her testimony that numerous rapes occurred in the living room without anyone noticing, and her inability to remember.
The jury convicted Castillo as charged. He appeals.
ANALYSIS
Castillo contends he received ineffective assistance of counsel at trial. To prevail on this claim, he must demonstrate both deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We strongly presume that defense counsel was effective, McFarland, 127 Wn.2d at 335, and Castillo must establish "the absence of any 'conceivable legitimate tactic explaining counsel's performance.'" 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)); McFarland, 127 Wn.2d at 335-36. Castillo fails to demonstrate either deficient performance or prejudice.
Castillo claims his counsel was ineffective in three respects. First, he contends counsel was deficient for failing "to retain an expert to assist the jury in assessing the credibility of the witnesses." Appellant's Br. at 9. Generally, whether to call a witness is a matter of legitimate trial tactics, State v. Maurice, 79 Wn.App. 544, 552, 903 P.2d 514 (1995), and the failure to provide expert testimony is deficient only if an expert was necessary to explain something lay witnesses could not. State v. Thomas, 109 Wn.2d 222, 231-32, 743 P.2d 816 (1987). Castillo argues in conclusory fashion that "an expert in the area of the development of childhood memories, suggestibility of children and memory sources would have assisted the trier of fact to understand the evidence" and evaluate the witnesses' credibility. Appellant's Br. at 12-13. In support, Castillo cites articles discussing the accuracy and suggestibility of children's memories. But he cites no authority supporting his assertion that juries need expert testimony to assist them on this subject. Nor does he demonstrate that expert testimony was necessary under the specific facts of this case. A review of the record indicates that expert testimony was unnecessary.
We note that in State v. Willis, 151 Wn.2d 255, 87 P.3d 1164 (2004), our Supreme Court reaffirmed that "the general principle that younger children are more susceptible to suggestion is 'well within the understanding of the jury.'" Willis, 151 Wn.2d at 261 (quoting State v. Swan, 114 Wn.2d 613, 656, 790 P.2d 610 (1990)).
The record is replete with bases on which to challenge the accuracy of the victims' memories and testimony. As Castillo himself notes, "[P's] credibility to accurately recount what occurred is consistently undermined throughout her testimony." Appellant's Br. at 12. Defense counsel repeatedly attacked the memories of P and A at trial, pointing out inconsistencies and memory gaps in their testimony. These deficiencies were clearly established without expert testimony. Significantly, counsel succeeded in obtaining a hung jury in the first trial without any expert testimony on children's memories. Castillo fails to demonstrate that expert testimony was necessary to assist the jury.
He also fails to demonstrate either deficient performance or prejudice because he makes no showing that expert testimony would have been admitted had it been offered. See State v. Robinson, 89 Wn.App. 530, 538, 953 P.2d 97 (1997). In fact, he offers no declaration or offer of proof as to what an expert would have said. Absent an offer of proof in the record, Castillo cannot carry his burden, and his claim involves matters outside the record. McFarland, 127 Wn.2d at 335, 338 n.5.
Second, Castillo contends defense counsel was ineffective for failing to object to medical testimony repeating the victim's identification of the perpetrator. This contention is meritless. Although statements to medical providers identifying the perpetrator of a crime are generally inadmissible hearsay, courts have made an exception for child patients. State v. Ashcraft, 71 Wn.App. 444, 456, 859 P.2d 60 (1993). Statements regarding the identity of a child's abuser are necessary to the child's medical treatment and therefore come within the medical diagnosis and treatment exception, "because the child may have possible psychological injuries and also may be in further danger, due to the continued presence of the abuser in the child's home." Ashcraft, 71 Wn.App. at 456; State v. Hopkins, 134 Wn.App. 780, 142 P.3d 1104 (2006).
Contrary to Castillo's assertions, the concerns underlying the exception apply in this case. P could have suffered psychological injury from the alleged abuse. And while Castillo claims the continued presence of the perpetrator was not an issue because P's father told the nurse that P accused someone she did not live with, a medical practitioner cannot assume that a parent's identification of the perpetrator is accurate or would be the same as the child's. For all the practitioner knows, the parent could be the perpetrator or could be providing false information to protect someone else. The identification of P's abuser was a necessary part of her diagnosis and treatment, and defense counsel was not ineffective for failing to object to the admission of the identification.
We note that the decision of when or whether to object is generally a matter of trial tactics and only in egregious circumstances will the failure to object constitute ineffective assistance of counsel. See State v. Madison, 53 Wn.App. 754, 763, 770 P.2d 662 (1989).
Third, Castillo contends defense counsel's cross-examination of P was deficient because it "elicited testimony tending to prove that the sexual abuse was part of a continuing pattern and occurred on a regular basis." Appellant's Br. at 16. He also claims his counsel elicited damaging testimony that A told P that Castillo sexually abused him. The State counters, and we concur, that Castillo has not demonstrated the absence of any legitimate strategic reason for counsel's performance.
The principal defense strategy in this case was to discredit P's testimony by revealing her memory problems and demonstrating inconsistencies and implausibilities in her statements. P testified on direct examination that in addition to the specific incidents she described, Castillo abused her on "many other occasions." Report of Proceedings (RP) (Dec. 13, 2010) at 215. Thus, the ongoing nature of the abuse was first elicited by the State, not defense counsel. When P again alluded to vague additional incidents in several nonresponsive answers during cross-examination, defense counsel immediately challenged the allegations with questions designed to show that P either was fabricating or had an unreliable memory. Given P's testimony on direct and her nonresponsive answers on cross-examination, counsel's decision to challenge that testimony with additional questions was a legitimate tactic.
Counsel asked, "So, is it your theory now that it may have happened before this time, but you just forgot about it?" RP (Dec. 13, 2010) at 255. When P answered, "Yes, " counsel asked, "[I]f you don't remember it, how do you know it happened at all?" RP (Dec. 13, 2010) at 256. Counsel then asked how many times the alleged abuse occurred in the house. When P committed herself to a frequency that totaled 20 to 25 rapes in a year, counsel was able to point out the implausibility of that number of rapes going undetected by others in the house. Counsel was also able to argue that the number was significantly different from the frequency P reported at other times.
Castillo's claim that defense counsel was deficient for eliciting evidence of Castillo's abuse of A is similarly flawed. Counsel challenged P's report that A told her to "get it over with" when Castillo demanded that P perform oral sex on Castillo in the car. RP 240. Counsel expressed disbelief that five-year-old A would know what was happening. P then speculated, stating, "[T]he only remote explanation that I ever came up with is that [Castillo] had done something to [A] . . . ." RP (Dec. 13, 2010) at 240. When pressed as to what her theory was based on, P said A told her at some unspecified point in time that Castillo did unknown "sexual things" to A. RP (Dec. 13, 2012) at 241. Defense counsel immediately attacked P's "theory, " stating, "[Y]ou are telling this jury that it's your theory that [A] knew what was supposed to happen in the car because [A] told you at some time, that you don't remember, [Castillo] had done something to him?" RP (Dec. 13, 2012) at 241-42. Counsel later used P's "theory" in closing to support his argument that P was simply not credible. Castillo has not demonstrated the absence of any legitimate tactical basis for the challenged cross-examination.
Castillo next asserts that trying him as an adult violated due process. He argues:
[W]here the State has made an election to include a period of time when the defendant is a juvenile in its charging period, it is a denial of . . . due process automatically to vest jurisdiction in adult court which divests him of the opportunity to be punished in accordance with his ability to make reasoned decisions at the time of his acts.
Appellant's Br. at 19. But "'[t]here is no constitutional right to be tried in a juvenile court, '" In re Matter of Boot, 130 Wn.2d 553, 571, 925 P.2d 964 (1996) (quoting State v. Dixon, 114 Wn.2d 857, 860, 792 P.2d 137 (1990)), and a right to a hearing on juvenile versus adult court jurisdiction exists only when courts have statutorily authorized discretion to determine such jurisdiction. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Boot, 130 Wn.2d at 570. Juvenile courts have no jurisdiction over a defendant who is over 18 when the offenses are first reported and charged. See RCW 13.40.300(1); State v. Dion, 160 Wn.2d 605, 609, 159 P.3d 404 (2007) ("Whether a juvenile court has jurisdiction over a particular proceeding depends on when the State initiates proceedings . . ., not when the juvenile commits the offense."); State v. Salavea, 151 Wn.2d 133, 141-42, 86 P.2d 125 (2004) (jurisdiction over offenses committed by juvenile is determined when proceedings are commenced); State v. Calderon, 102 Wn.2d 348, 684 P. 1293 (1984) (juvenile court had no jurisdiction because Calderon was over 18 when charge was filed and jurisdiction over an offense committed by a juvenile is determined at the time proceedings are initiated against the defendant). Castillo thus had no right to a hearing and was not denied due process. See Boot, 130 Wn.2d 570-72.
And once one criminal charge falls under adult court jurisdiction, all related charges fall under adult court jurisdiction. Salavea, 151 Wn.2d at 141.
Castillo also argues that trying him in adult court denied him equal protection of the law, stating:
[P]ersons convicted of crimes which are alleged to have occurred during said person's minority but not charged until said person was an adult [are] similarly situated to a juvenile charged with the same offense during said person's minority and therefore, . . . entitled to equal protection of the law. This would include, at a minimum, a declination hearing . . . .
Appellant's Br. at 21. Even assuming the groups Castillo refers to are similarly situated, he has not shown a violation of equal protection.
Because juveniles are neither a suspect class nor a semisuspect class, Castillo's equal protection challenge is analyzed under the rational relationship test. State v. Ford, 99 Wn.App. 682, 688-89, 995 P.2d 93 (2000). Under this "most relaxed and tolerant" scrutiny, the challenged classification is upheld "'unless it rests on grounds wholly irrelevant to achievement of legitimate state objectives.'" Ford, 99 Wn.App. at 689 (quoting State v. Blilie, 132 Wn.2d 484, 494, 939 P.2d 691 (1997)). We presume that the law is constitutional, and Castillo has the burden of proving that it violates equal protection. Ford, at 689.
Castillo fails to articulate any reasoned basis for concluding that the statutes relating to juvenile court jurisdiction violate equal protection. The State, on the other hand, points out, and Castillo does not dispute, that the different purposes of the adult and juvenile systems provide a rational basis for prosecuting adults in adult court rather juvenile court. A primary purpose of the juvenile system is to respond to the needs of juvenile offenders, in light of their age and relative vulnerability. RCW 13.40.010(2); State v. Kuhlman, 135 Wn.App. 527, 531, 144 P.3d 1214 (2006) ("primary responsibility of the juvenile justice system is to respond to the needs of juvenile offenders" due to their "age and vulnerability"); State v. Meade, 129 Wn.App. 918, 922, 120 P.3d 975 (2005) (Juvenile Justice Act's policy of responding to needs of offenders is critical distinction between adult and juvenile systems and juvenile court must consider numerous factors that may not be relevant to adult sentencing); State v. J.H., 96 Wn.App. 167, 184, 978 P.2d 1121 (1999) (because juvenile system focuses on rehabilitation while adult system focuses on punishment, juvenile offenders are given special protections that should not be jeopardized by making juvenile proceedings identical to adult proceedings). Adults do not need the special protections of the juvenile system, and putting adults in the juvenile system could put juveniles at risk. Moreover, adults may not be amenable to a rehabilitative system that is designed specifically for juveniles.
There is thus a rational basis for prosecuting adults who were minors at the time of their offenses in adult court. Castillo was not denied equal protection.
Finally, Castillo contends his sentence violates state and federal prohibitions on cruel and unusual punishment because he received 170 months in adult court but could only have received 103 to 129 weeks in juvenile court. Again, Castillo fails to carry his burden.
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments, " and article I, section 14 of the Washington State Constitution prohibits the infliction of "cruel punishment." A sentence violates article I, section 14 of the Washington State Constitution when it is grossly disproportionate to the crime for which it is imposed. State v. Morin, 100 Wn.App. 25, 29, 995 P.2d 113 (2000). The state constitution provides greater protection than the federal constitution; thus, if the state provision is not violated, the statute violates neither constitution. Morin, 100 Wn.App. at 29. A punishment is grossly disproportionate "if the punishment is clearly arbitrary and shocking to the sense of justice." State v. Smith, 93 Wn.2d 329, 344-45, 610 P.2d 869 (1980). To determine whether a sentence is grossly disproportionate, we consider the following factors: (1) the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the punishment imposed for other offenses in the same jurisdiction. State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980).
Castillo fails to apply the Fain factors to his sentence or otherwise demonstrate that his sentence is so grossly disproportionate to the gravity of his offense as to be arbitrary and shocking to the sense of justice. He also ignores the fact that a sentence within the guidelines provided by law is not arbitrary and shocking to the sense of justice. See State v. Farmer, 116 Wn.2d 414, 434, 805 P.2d 200, 812 P.2d 858 (1991). Instead, Castillo simply argues, without citation to supporting authority, that the sentence an offender could have received in juvenile court is relevant to whether the offender's sentence in adult court is cruel and unusual punishment. Our Supreme Court has rejected this proposition. Boot, 130 Wn.2d at 569-70 (Eighth Amendment is not violated simply because a juvenile offender is tried as an adult and receives an adult sentence). Castillo fails to demonstrate that his sentence is cruel and unusual punishment.
Affirmed.