Opinion
No. 26016-0-III.
June 3, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 06-1-01954-2, C. James Lust, J., entered March 26, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Korsmo, J., and Thompson, J. Pro Tem.
This prosecution for first degree theft and first degree trafficking in stolen property follows a defendant's self-help repossession of a car. The defendant had signed the title over to a third party and authorized that party to sell the car, and it was sold. The State showed that the defendant used deception to remove the car from a state registry of stolen vehicles and to solicit opinions that he could recover the car with impunity. And the State argued as much at trial. The evidence supports the conviction here and we affirm.
Facts
Ernest Lantis and Jose Castilleja had been friends. Mr. Lantis needed money. Mr. Castilleja loaned him $2,400. Mr. Lantis could not repay the loan. Mr. Lantis owned a yellow 1936 Chevrolet sedan. He took his sedan to Mr. Castilleja's business, Touch of Class, to sell the car in January 2005. Mr. Lantis gave Mr. Castilleja's business partner, Roel Esqueda, the signed title to the car. Mr. Lantis and Mr. Castilleja agreed upon a sale price of $4,500. They also agreed that Mr. Castilleja would take $2,400 of the proceeds to repay his loan to Mr. Lantis.
Robert Bartsch offered to buy the car for $3,000. Mr. Bartsch owned RB Auto Sales. Mr. Castilleja tried to contact Mr. Lantis to relay the offer. He was unable to do so. Mr. Castilleja sold the car for $3,250 to Mr. Bartsch five days later on July 6, 2005. Mr. Bartsch paid for the car by check. Mr. Castilleja gave Mr. Bartsch the signed title to the car. Mr. Bartsch repainted the car and parked it at his dealership.
Mr. Lantis learned the details of the transaction and went to the police station. He talked to Officer Angela Levno about repossessing the car. She told him that he needed to contact an attorney since this was a civil matter. And she also told him that he would be arrested for theft if he attempted to repossess the car by himself.
Mr. Lantis filed an affidavit of lost title with the Department of Licensing. He then contacted an attorney. The attorney told him that if he had good title he could repossess the car peacefully. Mr. Lantis told the lawyer that he had good title.
Mr. Lantis went to the car dealership at night. He used his keys to open the car'sdoor. And he drove the car to a friend's house. Mr. Bartsch filed a report for a stolen car.
Mr. Lantis went to the Department of Licensing after he did not receive the new title. He learned that the title did not arrive because the police department had flagged it as a stolen car. Mr. Lantis went to the police station and talked to Officer Monty McNearney. He told the officer that he had the car and needed a new title. The officer cleared the stolen report based upon Mr. Lantis's statements. He told the officer that he had title since he never signed the document transferring title.
Mr. Lantis sold the car to another person, Jesse Griggs, for $3,000 in November 2005. They went to the Department of Licensing and applied for a new title. Mr. Lantis and Officer Levno again spoke by telephone in January 2006. Mr. Lantis admitted he repossessed the car from the dealership. He told the officer that his attorney told him he could take it.
The State charged Mr. Lantis with one count of first degree theft and one count of trafficking in stolen properly in the first degree. The information charged Mr. Lantis with first degree theft by wrongfully obtaining or exerting unauthorized control over the car. The prosecution proceeded to trial before a jury.
During closing arguments, the prosecutor argued that another reason "that we knew [Mr. Lantis] stole the car . . . is because of his conversation with OfficerMcNearney." 3 Report of Proceedings (RP) at 411. The prosecutor noted that Mr. Lantis incorrectly told Officer McNearney that the title was not signed. In reality, he had signed the title before handing it over to be sold. The prosecutor stated that based on this inaccurate information the officer removed the stolen flag on the car. The prosecutor argued that this "shows a pattern of deception" on the part of Mr. Lantis. Id. at 412. He then clarified, "[i]t shows that he deceived Sgt. McNearney by not providing him with a key piece of information." Id. at 412-13.
The prosecutor also argued that Mr. Lantis took the car to a friend's house "because he thought it was a safe place . . . [and] he knew he'd stolen it." Id. at 410-11. The defense contended that Mr. Lantis took his attorney's advice when he repossessed the car. The prosecutor responded that Mr. Lantis incorrectly told the lawyer that he had title: "[I]t's not legitimate to say that he followed his lawyer's advice. You got to give the lawyer all the information before you can say, `I did what my lawyer told me to do.'" Id. at 427.
The trial court instructed the jury on the "good faith claim of title" defense. The instruction stated that the defense was applicable for both charges. The jury found Mr. Lantis guilty of first degree theft and first degree trafficking in stolen property. The trial court denied Mr. Lantis's motions to arrest judgment or for a new trial.
Discussion
Prosecutor's Comments During Final Argument Mr. Lantis contends that the prosecuting attorney argued a definition of theft (by color or aid of deception to obtain control over) in his closing and rebuttal arguments that were not included in the jury instructions nor included in the information filed against him. He argues that this was prosecutorial misconduct and violated his Sixth Amendment right to be informed of the nature and cause of the accusations against him. The State responds that the argument was appropriate and Mr. Lantis was aware of the charges against him.
Mr. Lantis claims that the effect of the prosecutor's argument was to deny him notice of the State's accusations against him. The record does not support his claim. The State charged him by information dated August 8, 2006, with first degree theft by wrongfully obtaining or exerting unauthorized control over the car in violation of RCW 9A.56.030(1)(a) and RCW 9A.56.020(1)(a) and first degree trafficking in stolen property in violation of RCW 9A.82.050(1). Clerk's Papers at 71. And those are the charges the jury convicted him of.
Nor do the prosecutor's remarks amount to the level of misconduct that we will review in the first instance here on appeal. State v. Henderson, 100 Wn. App. 794, 800, 998 P.2d 907 (2000). In fact, the comments do not amount to misconduct. We review a prosecutor's improper remarks in "`the context of the total argument, the issues in thecase, the evidence addressed in the argument, and the instructions given to the jury.'" State v. French, 101 Wn. App. 380, 385, 4 P.3d 857 (2000) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Here, the prosecutor never argued that the jury could find Mr. Lantis guilty of first degree theft or trafficking in stolen property if it found that he had deceived Officer McNearney, his attorney, the Department of Licensing, or Mr. Bartsch in obtaining the car. 3 RP at 410-15, 423-28. He instead argued fairly that Mr. Lantis had relayed inaccurate information to his attorney and Officer McNearney. Mr. Lantis told them both that he had good title to the car. Id. at 412, 426.
The prosecutor stated that based on this inaccurate information the officer removed the stolen flag on the car. Id. at 412. The prosecutor then argued that this "shows a pattern of deception" on the part of Mr. Lantis. Id. This "pattern of deception" had nothing to do with how he obtained the car. It was in reference to the statements to the police and his attorney. Id. at 413.
This is not misconduct. It is a fair comment on the facts of the case. Sufficiency of the Evidence-Good Faith Claim
Mr. Lantis next contends that he did not steal the car, because he subjectively believed it belonged to him. And he contends the State failed to disprove the defense. The State responds that it proved the absence of the good faith claim of title.
The question is whether the State failed to produce evidence sufficient to show the absence of good faith. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The "good faith claim of title" requires a showing that "[t]he property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable." RCW 9A.56.020(2). "The theory of the good faith claim of title defense is that the accused lacked the `animus furandi', or requisite intent to steal." State v. Hicks, 102 Wn.2d 182, 187, 683 P.2d 186 (1984).
Mr. Lantis argues that it was only through the prosecutor's inappropriate argument regarding "deception" that the good faith claim of title defense could be overcome. We have already answered that assignment of error. And the State made an ample showing that Mr. Lantis's claim to title was not made in good faith. Ineffective Assistance of Counsel
Mr. Lantis also makes a statement of additional ground regarding his representation. He argues that he received ineffective assistance of counsel because his attorney did not call any of his witnesses during trial. He must show two things to demonstrate ineffective assistance of counsel. State v. McFarland, 127 Wn.2d 322, 334-35,899 P.2d 1251 (1995). First, he must show defense counsel's representation was deficient. Id. In other words, it fell below an objective standard of reasonableness. Id. The second showing is that "but for" the counsel's errors, the result would have been different. Id.; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (applying the two-prong test in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Mr. Lantis has not proved either prong. He does not show how his attorney's representation fell below an objective standard of reasonableness. McFarland, 127 Wn.2d at 334-35. He also does not show how the results would have been different "but for" the alleged errors. Id. Counsel's trial tactics cannot serve as a basis for a general claim of ineffective assistance of counsel. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
We affirm the convictions for first degree theft and first degree trafficking in stolen property.
A majority of the panel has determined that 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.
KORSMO, J., Thompson, J. Pro Tem., concur.