                                                                                                               FILED
                                                                                                          COURT OF APPEALS
                                                                                                             DIV! SkO N j
                                                                                                      2014 JUN 17 AM 8: 36

                                                                                                                    51-14 G ,   1
      IN THE COURT OF APPEALS OF THE STATE OF WAS

                                                        DIVISION II


STATE OF WASHINGTON,                                                                   No. 44992 -7 -II


                                              Respondent,


            v.



FRANCISCO G. CASTRO,                                                            UNPUBLISHED OPINION


                                              Appellant.


            WoRSwIcK, J. —          Francisco Castro was convicted of one count of first degree malicious


mischief and one count of bail jumping. He appeals, arguing that ( 1) the evidence was

insufficient to support his bail jumping conviction, (2) he received ineffective assistance of

counsel, and ( 3) the trial court erred by admitting extrinsic evidence to impeach his testimony on

collateral matters. We disagree and affirm.


                                                                FACTS


            Francisco Castro and Jennifer Fox married in 2007 and had two children. They separated

in   July   2012       and   divorced in 2013.      Fox lived next to Island Lake in Mason County.

            One morning while they were separated, Fox awoke at about 5: 00 A.M. to the sound of

loud music coming from her driveway. Remaining in bed, Fox assumed that Castro was playing

the music "[          b] ecause it wouldn' t have been the first time that [ Castro] carne to my house in the

morning          or   the   middle of   the   night since we'   d been   separated."   Report of Proceedings ( RP) at


31.
No. 44992 -7 -II



          Fox finally got up and looked out her front window after hearing a car " burning out" of

her   driveway.   RP     at   31.    Although she could see only the car' s taillights as it sped away, she saw

that her car was no longer parked in her driveway. From a back window, Fox then saw that her

car was floating in the lake with its driver' s door open and headlights on.

          Fox   called   911.       She also noticed that during the night, she had missed Castro' s phone

calls, including one call about 15 minutes before she found her car in the lake.

          The car sank, and a dive team eventually pulled it out of the lake. Fox' s insurer declared

the car a total loss and paid her $26, 554.

          The State    initially      charged   Castro   with one count of         first degree   malicious mischief.       By

signing the trial court' s scheduling order and notice, Castro promised to personally appear at

several   hearings,   including        a pretrial   hearing   set   for December 24, 2012. But Castro did not


appear at that hearing. The trial court issued a bench warrant for Castro' s arrest.

          According to Castro, he came to the courthouse on December 24 but found the assigned

courtroom empty. He further claimed that he went to the clerk' s office and spoke with a staff

member who told him he could address the warrant the next day when the court was open.

Castro appeared on December 26, and the bench warrant was quashed that day. By second

amended information, the State also charged Castro with bail jumping.

          At trial, Castro testified in his own defense. On cross -examination, the State asked

whether Fox had been at his house the night before the incident and, if so, what had happened.

Castro    answered, "     We just have dinner         and sex and       have   a   little fun   with   the   kids." RP at 84.




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No. 44992 -7 -II


        After Castro testified, the State sought to call Fox and Fox' s friend as rebuttal witnesses


to contradict Castro' s testimony about the night before the incident. Over Castro' s objection, the

trial court allowed the State to elicit this testimony.

        On rebuttal, Fox denied having dinner with Castro or having sex with him. Instead, she

testified that she had dinner with a friend, who later accompanied her to Castro' s house to pick


up Fox' s children. Fox testified that she stayed at the house for 10 to 15 minutes and that the

friend was with her the entire time. Fox further testified that at one point Castro pulled her down

onto a bed in the living room, but the friend helped her get up. During her own testimony, Fox' s

friend corroborated this account.


        The jury found Castro guilty of both counts, and the trial court entered convictions

accordingly. Castro appeals.

                                              ANALYSIS


                                  I. SUFFICIENCY OF THE EVIDENCE


        Castro first argues that the evidence is insufficient to support his conviction for bail

jumping. We disagree.

        When a defendant challenges the sufficiency of the evidence supporting his conviction,

we examine the record to decide whether any rational fact -finder could have found that the State

proved each element of the offense beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,

221, 616 P. 2d 628 ( 1980).   In a sufficiency of the evidence challenge, the defendant admits the

truth of all the State' s evidence; therefore we consider the evidence and all reasonable inferences

from it in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d




                                                    3
No. 44992 -7 -II



1068 ( 1992).       Further, direct evidence and circumstantial evidence are equally reliable. State v.

Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).


          A   person commits           bail jumping if, "
                                                        having            been released by court order or admitted to

bail with knowledge of the requirement of a subsequent personal appearance before any court of

this   state,"   he fails to      appear     in   court as required.'     RCW 9A. 76. 170( 1).    Here, the to- convict


instruction referred only to a release by court order, omitting any mention of an admission to

bail.2 Thus, under the law of the case doctrine, the State was required to prove that Castro had

been released by court order. See State v. Hickman, 135 Wn.2d 97, 99, 954 P. 2d 900 ( 1998);

State v. Medina, 112 Wn. App. 40, 45, 48 P. 3d 1005 ( 2002).

           Castro claims that the evidence is insufficient to show both ( 1) that he had been released


by court order and ( 2) that he knew he was required to personally appear. We disagree.
           First, the evidence is sufficient to support a reasonable inference that Castro had been

released by court order. The State concedes that it introduced no direct evidence on this point,

and the record could have been clearer. Nonetheless, at Castro' s arraignment, the State served

him with the original information, and the trial court entered a scheduling order and notice


    Quoting      State   v.   Downing,       122 Wn.       App.   185, 192, 93 P. 3d 900 ( 2004), the State     asserts, "'   The

elements of bail jumping are satisfied if the defendant ( 1) was held for, charged with, or
convicted of a particular crime; (                 2) had knowledge of the requirement of a subsequent personal
appearance; and (             3) failed to   appear as required. "'       Br. of Resp' t at 3 -4. But the State also
concedes that a bail jumping conviction requires proof that the defendant was released by court
order or admitted to bail. We accept this concession because other cases have recited the
elements of bail jumping to. include that the defendant " was released by court order or admitted
to bail."     See State v. Pope, 100 Wn. App. 624, 627, 999 P. 2d 51 ( 2000).
2
    The to- convict instruction            stated    the   relevant element of   bail jumping    as: "   That the defendant

had been released by court order with knowledge of the requirement of a subsequent personal
appearance        before that       court."       2 CP at 20.




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No. 44992 -7 -II



setting pretrial hearings at which Castro promised to appear. Further, Castro testified that he had
been arrested after Fox' s car was found in the lake, but on December 24 he came to court for his


pretrial hearing and visited the clerk' s office after finding the courtroom empty. From the

reasonable inferences drawn from this evidence, a rational fact -
                                                                finder could determine beyond a

reasonable doubt that Castro had been released by court order.

       Castro' s second claim also fails because the evidence was sufficient to prove that he

knew his personal appearance was required. The State may prove this knowledge with evidence

showing the defendant was notified of the date of the required personal appearance. State v.
Fredrick, 123 Wn.     App.   347, 353, 97 P. 3d 47 ( 2004). Here Castro' s signature appears on the


scheduling   order and notice   immediately below   the   statement, "   I promise to appear on the dates


set out above."    Ex. 9. From this promise, a rational fact -
                                                             finder could determine beyond a

reasonable doubt that Castro knew he was required to personally appear.

                                II. INEFFECTIVE ASSISTANCE OF COUNSEL


        Castro next argues that he received ineffective assistance of counsel because his attorney

failed to call a staff member of the court clerk' s office to testify on his behalf. We disagree.

        Whether a defendant received ineffective assistance of counsel is a mixed question of law

and fact, which we review de novo. In re Pers. Restraint ofFleming, 142 Wn.2d 853, 865, 16

P. 3d 610 ( 2001).   To prevail on his ineffective assistance of counsel claim, Castro must show

both that ( 1) his counsel' s performance was deficient and ( 2) the deficient performance

prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 ( 1984). Failure to   make either   showing is fatal to the   claim.   Strickland, 466 U. S.   at   700.
No. 44992 -7 -II



            In reviewing claims of ineffective assistance, we begin with a strong presumption of

counsel' s effectiveness.         Strickland, 466 U. S.   at   689. Counsel' s performance is deficient if it


falls below an objective standard of reasonableness under all the circumstances. Strickland, 466

U.S. at 688, 690. But counsel' s performance is not deficient if it can be characterized as a

legitimate trial tactic. State       v.   Kyllo, 166 Wn.2d 856, 863, 215 P. 3d 177 ( 2009). In general, the .


decision of whether to call a specific witness is presumed to be a matter of legitimate trial tactics.

In   re   Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101 P. 3d 1 ( 2004). This presumption can be


overcome by showing that counsel failed to investigate the available defenses, adequately

prepare for trial, or subpoena necessary witnesses. Davis, 152 Wn.2d at 742.

            Castro fails to overcome our presumption that his counsel performed effectively. The

record shows that counsel investigated Castro' s claim that he found the courtroom empty and

then spoke with staff from the clerk' s office. Counsel identified the staff member who spoke

with Castro, but she could not remember when their conversation occurred. On the record,

counsel explained that the staff member' s inability to remember the date of their conversation " is

the   problem as    far   as   calling her   as a witness."    RP at 70. In other words, counsel decided not to


call the staff member because her testimony, if it was admissible, would provide only weak

support for Castro' s version of events. This decision can be characterized as a legitimate trial

tactic. See Kyllo, 166 Wn.2d at 863.

            Because counsel' s decision did not fall below an objective standard of reasonableness,


counsel' s performance was not deficient. See Strickland, 466 U.S. at 688. Therefore Castro' s

ineffective assistance claim fails. See Strickland, 466 U. S. at 700.




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No. 44992 -7 -II


                    III. EXTRINSIC EVIDENCE ADMITTED To PROVE COLLATERAL MATTERS


          Lastly, Castro argues that the trial court erred by admitting extrinsic evidence of a

collateral matter to contradict his testimony. We disagree.

          We review evidentiary rulings for an abuse of discretion. State v. Darden, 145 Wn.2d

612, 619, 41 P. 3d 1189 ( 2002).         A trial court abuses its discretion when its decision is manifestly

unreasonable, based on untenable grounds, or made for untenable reasons. Darden, 145 Wn.2d


at 619. A trial court necessarily abuses its discretion when basing its ruling on an error of law.

State v. Quismundo, 164 Wn.2d 499, 504, 192 P. 3d 342 ( 2008).


          Extrinsic evidence of collateral matters may not be offered to impeach a witness. State v.

Fisher, 165 Wn.2d 727, 750, 202 P. 3d 937 ( 2009);            State v. Carlson, 61 Wn. App. 865, 876, 812

P. 2d 536 ( 1991).       Evidence pertains to a collateral matter if it lacks direct relevance to the issues


being tried and serves only to contradict a witness. State v. Descoteaux, 94 Wn.2d 31, 37 -38,

614 P. 2d 179 ( 1980),       overruled on other grounds by State v. Danforth, 97 Wn.2d 255, 257 n. 1,

643 P. 2d 882 ( 1982);       State v. Fankhouser, 133 Wn. App. 689, 693, 138 P. 3d 140 ( 2006).

          Here, Castro testified that Fox had been at his house the night before the incident and that

Fox and Castro ate dinner together and had sex. The trial court allowed the State to call two

rebuttal witnesses, Fox and Fox' s friend, who each contradicted Castro' s account of what


happened       at   his house.   Specifically, Fox and Fox' s friend testified that ( 1) Fox stayed at

Castro'   s   house for 10 to 15     minutes while   picking up their   children   from Castro, ( 2)    during this

time Castro pulled Fox down onto a bed in the living room, and ( 3) Fox and Castro did not eat

dinner together or have sex during this time. The trial court reasoned that Castro had opened the

door to testimony        about whether    he   was amicable   toward Fox   on   the   night   before the incident,
No. 44992 -7 -II



but " this door does not open extremely wide because we are not going to be trying a case

involving what happened the night before, because then it wouldthen it would be unduly

prejudicial."   RP at 87.


        In making this ruling, the trial court properly exercised its discretion. Castro' s relations

with Fox at the time of the incident were directly relevant to his motive for driving her car into

the lake. Because the testimony was directly relevant to the issues being tried, it was not a

purely collateral matter. The ruling allowing Fox and her friend to testify in rebuttal was not

manifestly unreasonable, based on untenable grounds, or made for untenable reasons. Therefore

the trial court did not err. Darden, 145 Wn.2d at 619.

        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 in accordance with RCW


2. 06. 040, it is so ordered.




We   concur:
