Opinion
No. 32646-9-II.
Filed: April 18, 2006.
Appeal from Superior Court of Clark County. Docket No: 01-1-01852-3. Judgment or order under review. Date filed: 12/13/2004. Judge signing: Hon. Robert L. Harris.
Counsel for Appellant(s), James J. Sowder, Attorney at Law, 1600 Daniels, PO Box 27, Vancouver, WA 98666-0027.
Counsel for Respondent(s), Michael C. Kinnie, Attorney at Law, 1200 Franklin, PO Box 5000, Vancouver, WA 98666-5000.
UNPUBLISHED OPINION
Joseph Raymond David Vallejo appeals his convictions of two counts of first degree robbery and one count of first degree burglary, arguing that the trial court should have granted him his requested continuance when the State revealed new evidence shortly before trial. Vallejo also questions several evidence rulings and maintains that the court erred in calculating his offender score. Finding no reversible error, we affirm.
FACTS
Joseph Raymond David Vallejo, accompanied by two men, entered Matthew Turner's residence and held Turner, his girlfriend, and Glen Knight at gun point. Vallejo and his accomplices took personal property belonging to Turner and Knight, including about two pounds of marijuana.
The State charged Vallejo with first degree robbery of Matthew Turner, first degree robbery of Glen Knight, and first degree burglary of Turner's apartment.
A. Pre Trial
Four days before trial, the State informed Vallejo that (1) it would call Rachel Johnson, Vallejo's ex-girlfriend, to testify that Vallejo admitted the robbery to her, and (2) Turner and Knight would now testify that Vallejo stole approximately two pounds of marijuana from them in addition to other personal property. Vallejo moved for a continuance to investigate the State's revelations. The trial court denied the motion.
Initially, Turner and Knight claimed that Vallejo stole personal property from them, but they failed to tell police that Vallejo and his accomplices also stole their marijuana.
Before trial, Vallejo also moved to suppress all evidence police found in a search of Vallejo's residence, including property stolen from Turner and Knight. The trial court granted Vallejo's motion to suppress due to a deficient search warrant.
B. Vallejo's Trial
At trial, the State asked Turner to list the items that the robbers stole. Without objection from defense counsel, Turner listed some of the stolen property; but said nothing about whether the police recovered the property or, if so, where they found it.
While cross-examining Knight, defense counsel, over objection as to relevancy, asked how much an ounce of marijuana cost in 2001. The trial court sustained the objection, commenting that the State had no obligation to prove the value of property taken in a first degree robbery.
Later, Isaiah Jackson, one of Vallejo's accomplices in the robbery, testified that Vallejo accompanied him in the robbery. On cross-examination, defense counsel elicited that Jackson had entered a plea agreement. Detective Henderson, who arrested Jackson, testified that months before the plea bargain, Jackson told him Vallejo was an accomplice in the robberies and burglary. Over Vallejo's objection, the court admitted Henderson's testimony under ER 801(d)(1)(ii), ruling that the State offered the testimony to rebut a charge of recent fabrication or motive to fabricate.
In addition to the other evidence implicating Vallejo, Turner identified Vallejo as the person who held him and Knight at gunpoint while the others robbed them. Finally, Officer Kelli Gibson testified that when she initially interviewed Turner, he identified Vallejo as one of the robbers.
The jury convicted Vallejo of robbing Turner and Knight. It also convicted him of burglarizing Turner's apartment. In calculating Vallejo's offender score, the court considered three prior felony convictions, two bail jumps, and the current convictions to arrive at an offender score of nine. That offender score set Vallejo's standard range between 129 and 171 months. The trial court sentenced Vallejo to 160 months on each charge and ran the sentences concurrently.
ANALYSIS I. Vallejo's Motion for Continuance
Vallejo argues that the trial court should have granted him a continuance. At trial, Vallejo's counsel argued that a continuance 'would be beneficial' and that he would like to 'err on the [side] of . . . preparation,' because the State waited until four days before trial to disclose Rachel Johnson's, Turner's, and Knight's proposed testimony. IV Report of Proceedings (RP) at 221-22. The State argued that although it did not provide a summary of Rachel Johnson's statement, she was on the witness list and available for Vallejo's counsel to interview. And the State also offered to arrange an interview for Vallejo's counsel before the trial started. The State noted, and Vallejo agrees, that if Vallejo had not been on the run for 'a long time,' defense counsel would have been able to interview Johnson immediately after the State filed the information. IV RP at 224.
Vallejo did not argue in his appellate brief or at oral argument that Turner's decision to testify that Vallejo also stole marijuana necessitated a continuance. With respect to the continuance issue, Vallejo's argument on appeal pertains solely to Johnson's testimony and to the letter she claims that Vallejo sent her from jail.
Vallejo allegedly robbed Turner and Knight in 2001, fled the jurisdiction for an extended period of time, and did not stand trial until the fall of 2004.
We review a trial court's decision to deny a motion for continuance for a manifest abuse of discretion. State v. Williams, 104 Wn. App. 516, 520-21, 17 P.3d 648 (2001) (citing State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996)). A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005). Moreover, we will not reverse a decision to deny a continuance unless the appellant can show that the trial's result would likely have differed if the continuance had been granted. State v. Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123 (1994) (citing State v. Eller, 84 Wn.2d 90, 95-96, 524 P.2d 242 (1974)).
Vallejo claims that had the trial court granted his motion for continuance, he would have been able to further undermine Johnson's credibility. Johnson testified that Vallejo told her that 'he had taken care of the robbery and that the people that he had robbed deserved it.' V RP at 333. The State also introduced the letter that Johnson testified Vallejo wrote her from jail. The letter stated, 'The robbery has already been taken care of and I got most of my money back.' V RP at 336. Vallejo argues that, due to the short notice, he did not have the opportunity to have a handwriting expert analyze the letter or to produce evidence showing that he did not write the letter. He claims that this impeachment evidence would have changed the trial outcome because Johnson's testimony provided 'a powerful condemnation [of Vallejo] by saying [Vallejo] confessed to her.' Br. of Appellant at 13.
Vallejo assigns error to the trial court's denial of his motion for a new trial or, in the alternative, for arrest of judgment based on evidence that Vallejo did not have access to the yellow ruled paper that Rachel Johnson claims he wrote her a letter on. Vallejo's appellate brief fails to provide any argument regarding the motion for a new trial and instead focuses solely on the trial court's denial of his motion for continuance. Accordingly, we do not address whether the court erred in denying the motion for a new trial or, in the alternative, for arrest of judgment. RAP 10.3(a)(5).
But defense counsel successfully cast doubt on Johnson's credibility during cross-examination, despite being unable to produce evidence establishing that Vallejo did not write the letter. During cross-examination, Johnson initially claimed that she came across the letter while preparing to move. She also testified that turning the letter over to the prosecutor had nothing to do with trying to establish custody over her and Vallejo's child. Johnson later admitted that on the day she turned the letter over to the prosecutor, she also filed for a domestic violence protection order against Vallejo, seeking full custody of their child and denying Vallejo any visitation rights. Johnson also admitted that, while under oath, she gave the wrong dates regarding when Vallejo called her and admitted the robbery. Finally, Johnson admitted that she initially told investigators that she received the letter one year earlier than she actually did.
Despite Johnson's testimony and the letter, the record shows that a jury would likely have reached the same result had Johnson not testified or produced the letter. Turner testified that he recognized Vallejo by his cheekbones, his eyes and eyebrows, and by his voice. Officer Kelli Gibson, who responded to the robbery call, testified that Turner told her that he recognized the armed robber as Vallejo because of his eyes, cheekbones, and his voice when he spoke, despite the fact that Vallejo wore a bandana over part of his face. Knight, one of the other victims, testified that Turner said, 'That's Joey Vallejo,' immediately after the robbery. V RP at 305-06. And Jackson, one of Vallejo's accomplices in the robbery, identified Vallejo in court and testified that he and Vallejo robbed Turner and Knight. Jackson also testified that '[Joey Vallejo] brought the gun' to the robbery. V RP at 312. Additionally, Vancouver police detective Henderson testified that months before the prosecutor offered Jackson a plea bargain, Jackson told him that he, Vallejo, and another man committed the robbery.
Even without Johnson's testimony or the letter, oveArwhelming evidence shows that the outcome would not have been different if the trial court had granted his motion for continuance. The trial court did not err in denying Vallejo's motion for a continuance. See Tatum, 74 Wn. App. at 86 .
II. Cross-Examination Regarding the Value of Marijuana
While cross-examining Knight, defense counsel asked, over objection, how much an ounce of marijuana cost in 2001. The trial court sustained the objection, noting that first degree robbery is a 'valueless crime.' V RP at 300. Vallejo argues that the question was relevant to explore whether Turner or Knight actually possessed the marijuana that Vallejo allegedly stole.
We review a trial court's evidentiary rulings for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995) (citing Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 283, 840 P.2d 860 (1992)). As mentioned earlier, a court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Hughes, 154 Wn.2d at 154 .
Relevant evidence is evidence that has 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' ER 401. Facts that are 'of consequence' have some tendency to prove, qualify, or disprove an issue in the case. State v. Peterson, 35 Wn. App. 481, 484, 667 P.2d 645 (1983). Irrelevant evidence is inadmissible. ER 402.
Robbery is the unlawful taking of 'personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.' RCW 9A.56.190 . A person commits first degree robbery if, in the commission of a robbery or immediate flight therefrom, he or she: (1) is armed with a deadly weapon; or (2) displays what appears to be a firearm or other deadly weapon; or (3) inflicts bodily injury. RCW 9A.56.200 (1)(a)(i-iii). These statutes do not require the State to prove the value of the stolen items. Thus, the value of a stolen item is not a fact of consequence because it has no tendency to prove, qualify, or disprove whether Vallejo committed robbery. See Peterson, 35 Wn. App. at 484 . Accordingly, the trial court did not abuse its discretion in ruling that testimony regarding the value of marijuana is irrelevant and therefore inadmissible. See ER 402.
III. Detective Henderson's Testimony Regarding Jackson's Post-Arrest Statements
On cross-examination, Jackson testified that the State charged him in the robbery at issue. He testified that as part of his plea bargain, he agreed to give a truthful statement about the incident and, in exchange, the prosecutor would charge him with residential burglary instead of first degree burglary and with second degree assault instead of first degree robbery. Defense counsel also had Jackson acknowledge that the agreement reduced Jackson's potential sentence by 40 months. The State later called Detective Henderson to testify that Jackson told him, in a taped interview, that Vallejo helped commit the robbery. Henderson also testified that when he interviewed Jackson, Jackson said that he had not yet made a plea agreement in this case.
Vallejo objected to Henderson's testimony, arguing that the State improperly tried to present Jackson's testimony to the jury without subjecting Jackson to further cross-examination. The trial court admitted Henderson's testimony under ER 801(d)(1)(ii), not as substantive evidence but to rehabilitate Jackson's credibility after defense counsel called his credibility into question by eliciting testimony regarding Jackson's plea deal.
Although it does not affect the outcome in this case, we note that the trial court incorrectly ruled that Detective Henderson's testimony could not be admitted as substantive evidence. The comment to ER 801(d)(1)(ii) says that the rule 'makes statements admissible as substantive evidence which were previously admissible only to rehabilitate an impeached witness.' ER 801(d)(1)(ii) cmt. sec. (d) (citing 5 R. Meisenholder, Wash. Prac. sec. 306 (1965)).
ER 801(d)(1)(ii) provides that a prior statement is not hearsay if (1) the declarant testifies at trial; (2) the declarant is subject to cross-examination concerning the statement; (3) the statement is consistent with the declarant's trial testimony; and (4) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication.
Vallejo argues that since Jackson 'was well familiar with the criminal justice system,' he knew his testimony would be worth something in terms of a plea bargain from the moment police arrested him. Br. of Appellant at 17. Therefore, Vallejo reasons, Jackson made his statement to Henderson after he had a motive to fabricate, rendering ER 801(d)(1)(ii) inapplicable. For this novel proposition, Vallejo relies on State v. Ellison, 36 Wn. App. 564, 676 P.2d 531 (1984). But Ellison is not on point. In that case, the State attempted to introduce a statement that the declarant made after he had received a plea bargain. Ellison, 36 Wn. App. at 567 .
Here, Jackson testified that Vallejo helped him rob Turner and Knight. Counsel had an opportunity to cross-examine Jackson regarding that statement. Consistent with Jackson's testimony, Detective Henderson testified that when he arrested Jackson, Jackson told him that Vallejo helped commit the robbery. Defense counsel suggested that Jackson had an improper motive to testify when he said, 'So in exchange for you giving a statement to Mr. Vallejo, they cut your time down quite a bit, didn't they,' and 'So you made a plea bargain with the prosecutors that if you testified in . . . Mr. Vallejo['s case], they would give you a better deal.' V RP at 325. The State then offered Henderson's testimony regarding Jackson's statement to rebut the implied charge that Jackson fabricated a story because of his plea bargain. Under ER 801(d)(1)(ii), Henderson's testimony is not hearsay and the trial court did not err in admitting it.
IV. Turner's Testimony Regarding Items Stolen From His House
Vallejo argues that the trial court erred in allowing Turner to testify regarding specific items that he claimed the robbers stole from his house. The trial court granted Vallejo's motion to suppress all evidence that police obtained from a search of the house where Vallejo stayed. The suppressed evidence, which consisted of the items Turner claimed the robbers stole, included cash, a palm pilot, a video camera, a backpack, a silver chain necklace, a gold chain link necklace, Turner's checkbook, marijuana, and the gun Vallejo allegedly used during the robbery. At trial, the State asked Turner to list the items that the robbers stole. Turner listed the palm pilot, the video camera, the backpack, $200 cash, 'some tools,' his checkbook, his necklace, and marijuana. VI RP at 408.
The trial court did not err in allowing this testimony because it did not violate the court's suppression order. Turner was not describing items the officers found in searching Vallejo's house. Rather, he was listing property the robbers took from him.
IV. Same Criminal Conduct
Vallejo asserts that the trial court improperly applied the burglary anti-merger rule, RCW 9A.52.050, resulting in a four-point increase in Vallejo's offender score. He argues that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), supplants the anti-merger rule and that a jury should have determined whether the burglary and the robberies constituted the same criminal conduct. Vallejo is mistaken; the trial court correctly applied the burglary anti-merger rule.
Vallejo argues that under State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), he has the right to have the jury decide whether robbing Turner and Knight constituted the same criminal conduct for purposes of determining his offender score. The State argues that the jury expressly determined that there were two separate victims; therefore, the acts could not constitute the same criminal conduct under RCW 9.94A.589 (1)(a).
Hughes addressed the effect that the United States Supreme Court's decisions in Blakely, 542 U.S. 296, and Apprendi, 530 U.S. 466, had on a trial court's determination that a defendant's ongoing pattern of the same criminal conduct constituted an aggravating factor that allowed the court to impose an exceptional sentence. Vallejo's reliance on Hughes is misplaced because he did not receive an exceptional sentence and because, for the purposes of this case, whether Vallejo's acts constituted the same criminal conduct factors into the calculation of his offender score.
In State v. Cubias, our Supreme Court held that a trial court's determination that a defendant's convictions arose from separate and distinct criminal conduct did not trigger the concerns identified in either Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). State v. Cubias, 155 Wn.2d 549, 554, 120 P.3d 929 (2005) (while consecutive sentences increase a defendant's aggregate term of imprisonment, it is significant that the Blakely and Apprendi courts were not concerned with consecutive sentences). The court said, 'Although separate and distinct criminal conduct is not statutorily defined, it is well established that when an offense does not constitute the 'same criminal conduct,' the offense is necessarily separate and distinct. Our Supreme Court has determined that '[o]ffenses arise from separate and distinct [criminal] conduct when they involve separate victims." Cubias, 155 Wn.2d at 552 (citations omitted).
Although the issue here relates to calculating Vallejo's offender score and not imposing consecutive sentences, Cubias's reasoning controls. The jury convicted Vallejo for robbing Turner and for robbing Knight, necessarily determining that Vallejo committed crimes against separate victims. And since the crimes involved separate victims, the offenses arose from separate and distinct criminal conduct. See RCW 9.94A.589 (1)(a); see also Cubias, 155 Wn.2d at 552 . Because Vallejo's offenses arose from separate and distinct criminal conduct, the trial court did not err in adding two points to his offender score.
V. Statement of Additional Grounds for Review A. Recusal of the Trial Court Judge
Vallejo, along with two named plaintiffs and on behalf of other similarly situated persons, filed a class action lawsuit against Judge Harris, the Clark County Prosecutor, and the Clark County Clerk. He now argues, for the first time, that Judge Harris should have recused himself because of the potential conflict. But '[a] litigant who proceeds to a trial or hearing before a judge despite knowing of a reason for potential disqualification of the judge waives the objection and cannot challenge the court's qualifications on appeal.' Buckley v. Snapper Power Equip. Co., 61 Wn. App. 932, 939, 813 P.2d 125 (1991) (citations omitted). Vallejo filed the complaint in the class action lawsuit on September 17, 2003. Judge Harris first appeared in this case on September 23, 2004, and Vallejo did not object at that time. Vallejo cannot now assert that Judge Harris should have disqualified himself. See Buckley, 61 Wn. App. at 939 .
B. Two Jurors Admitted to Receiving Vallejo's Memorandum of Law/Motion to Suppress
Vallejo next argues that the trial court erred in denying his motion for a mistrial after learning that two jurors admitted receiving a copy of Vallejo's proposed findings of fact and conclusions of law on the suppression motion. But the trial court questioned both jurors and each denied reading anything more than Vallejo's name on the document. Vallejo argues that CrR 7.5(a)(1) requires a new trial where a jury member receives any evidence, paper, document, or book not allowed by the court. But CrR 7.5 says that the court may grant a new trial for that reason. Because the court assured itself that the jurors did not see anything that materially affected Vallejo's trial, the court did not abuse its discretion in denying the motion.
C. Trial Court's Failure to Instruct the Jury That Closing Argument Is Not Evidence
Vallejo argues that the trial court committed prejudicial error in failing to instruct the jury, before closing argument, that closing argument is not evidence. Although the trial judge did not instruct the jury, the first jury instruction states, 'The attorneys' remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.' Clerk's Papers (CP) at 163. And because we presume juries follow the instructions the court gives them, the court effectively instructed the jury not to consider the prosecutor's closing argument as substantive evidence. See State v. Teal, 152 Wn.2d 333, 342, 96 P.3d 974 (2004).
D. Prosecutorial Misconduct
Vallejo argues that the prosecutor, in closing argument, shifted the burden of proof when he said, 'There's no testimony, there's no evidence [that Vallejo] has made any efforts to get custody of the child.' V RP at 467.
The State bore the burden of proving that Vallejo committed first degree robbery against both Turner and Knight and that he also committed first degree burglary. The case does not concern the custody of Vallejo's child; therefore, the State had no burden to prove, or shift to Vallejo to prove, that Vallejo made efforts to get custody of his child.
Further, Vallejo bears the burden of establishing misconduct and resulting prejudice. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003) (citing State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999)). And we will not grant a new trial unless there is a substantial likelihood that the improper argument affected the verdict. Cheatam, 150 Wn.2d at 652 (citing Finch, 137 Wn.2d at 839). Vallejo does not argue that the alleged misconduct affected the verdict. His prosecutorial misconduct claim fails.
Vallejo also argued that the prosecutor committed misconduct when he said that the victims were not prosecuted for possession of marijuana because Vallejo stole the marijuana. But we decline to address that contention because Vallejo fails to provide any meaningful argument. RAP 10.3(a)(5).
We similarly decline to address any further errors asserted in Vallejo's appellate brief or in his statement of additional grounds for review because he fails to cite relevant legal authority and fails to provide a reasoned argument for any of the contentions. RAP 10.3(a)(5); see also Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (an argumentative assertion with a lack of reasoned argument does not merit judicial consideration).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and PENOYAR, J., concur.