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                                                                 20USEP22 AH 10: 35
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                 No. 70808-2-1

                     Respondent,                     DIVISION ONE

              v.



GILDARDO ZALDIVAR-GUILLEN,                           UNPUBLISHED

                     Appellant.                      FILED: September 22. 2014




       Cox, J. — A jury convicted Gildardo Zaldivar-Guillen of commercial sex

abuse of a minor. He appeals and contends that the trial court abused its

discretion in admitting his incriminating statements to a law enforcement officer.

He also claims that he was deprived of the effective assistance of counsel

because trial counsel failed to file a motion to suppress evidence challenging the

legality of the investigatory stop. He further contends that the evidence does not

support his conviction. Because there is no error, we affirm.

      Around 10:00 p.m. on August 3, 2012, Detective Donyelle Frazier

responded to a call from another officer who had been watching a young female

on Pacific Highway South in the City of SeaTac and suspected she was

engaging in prostitution. Detective Frazier and two other law enforcement

officers parked their unmarked police vehicles nearby to observe the young

woman. The woman was initially in the parking lot of a donut shop, then moved

to a bus stop and sat down. After the first officer who was watching the woman
No. 70808-2-1/2


drove away in his marked police vehicle, the woman stood up and walked along

the edge of the roadway. She paid "close attention" to passing vehicles and tried

to look into the vehicles to make eye contact with occupants.

       A red pick-up truck pulled up along the side of the bus stop and the young

woman, later identified as Z.B., immediately got in. The driver drove on the

highway and then pulled into a dark parking lot outside of a closed business.

The driver parked and turned off the truck's lights. Detective Frazier and the

other officers followed the truck and parked nearby. When no one got out of the

truck after three or four minutes, the officers approached the truck.

       Detective Frazier approached the driver, later identified as Gildardo

Zaidivar-Guillen. Detective Frazier asked Zaidivar-Guillen to step out of the truck

and he complied. Zaidivar-Guillen was wearing shorts, and the Detective noticed

that he had an erection. After Detective Frazier advised Zaidivar-Guillen of his

Miranda1 rights, Zaidivar-Guillen told the officer that Z.B. was a friend he had

known for two months and he was driving her home. He could not then explain

why he took Z.B. to a closed business, not a home. Detective Frazier, who

recognized Z.B. as a prostitute from previous contacts, told Zaidivar-Guillen that

he knew Z.B. was a prostitute. Zaidivar-Guillen then admitted that he picked Z.B.

up knowing she was a prostitute, that he touched her breasts while they drove to

prove he was not a police officer, and they "talked about sex, but they did not

have enough time to talk about the price." Zaidivar-Guillen also said that Z.B.

told him she was "dating" or "working" and told Detective Frazier that although he



       1 Miranda v. Arizona. 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                           2
No. 70808-2-1/3


would find money on the dash of his truck, he had not offered Z.B. any money in

exchange for sex.

          The State charged Zaidivar-Guillen with commercial sex abuse of a minor

and attempted commercial sex abuse of a minor. At trial, the evidence

established and the parties also stipulated that Z.B. was 17 years-old at the time

of the August 2012 incident. Z.B. testified at trial and said Zaidivar-Guillen was

only giving her a ride home. But she admitted that, in a statement to the police at

the time, she said Zaidivar-Guillen offered her $10 for sex and she told him she

needed $60. Zaidivar-Guillen did not testify.

          The jury found Zaidivar-Guillen guilty as charged. The court dismissed the

attempt count.

          Zaidivar-Guillen appeals.

                     ADMISSION OF CUSTODIAL STATEMENTS

          Zaidivar-Guillen challenges the trial court's ruling that his incriminating

statements to Detective Frazier were admissible at trial. He claims that the court

improperly concluded that he validly waived his rights under Miranda because he

was not advised of those rights in Spanish, his native language. We disagree.

          A custodial statement is admissible if police advised the defendant of his

constitutional rights and the defendant knowingly, voluntarily, and intelligently

waived those rights.2 A suspect may validly waive his constitutional rights in

spite of language difficulties.3 For example, in State v. Teran, a translation of


          2 Miranda. 384 U.S. at 479; State v. Aten. 130 Wn.2d 640, 663, 927 P.2d 210
(1996).
          3 State v. Teran. 71 Wn. App. 668, 672, 862 P.2d 137 (1993), review denied. 123
Wn.2d 1021 (1994).
No. 70808-2-1/4


Miranda warnings into Spanish incorporating the use of a complex, uncommon

word did not render the defendant's waiver invalid because there was sufficient

evidence that he understood his rights.4 In determining whether a defendant

voluntarily waived Miranda rights, we consider the totality of the circumstances.5

       A reviewing court will not disturb a trial court's conclusion that a waiver

was voluntarily made if the trial court found, by a preponderance of the evidence,

that the statements were voluntary and substantial evidence in the record

supports the finding.6 Substantial evidence exists where there is a sufficient

quantity of evidence in the record to persuade a fair-minded, rational person of

the truth of the finding.7

       Pursuant to CrR 3.5(c), a trial court is required to enter written findings.

The record in this case does not include written findings. Nonetheless, the

absence of written findings is harmless if the oral ruling is sufficient to permit

appellate review.8 Here, the record is adequate to support our review and

neither party argues otherwise.

       Based on the testimony presented at the CrR 3.5 hearing, the trial court

determined there was "no evidence" that Zaidivar-Guillen did not comprehend

English well enough to understand his rights, and to the contrary, the evidence

indicated that he did, in fact, understand those rights. The court found that

Zaidivar-Guillen's waiver was voluntary, knowing, and intelligent and accordingly

concluded that his statements were admissible.


       4]d at 672-73.
       5 State v. Allen. 63 Wn. App. 623, 626, 821 P.2d 533 (1991).
       6 State v. Athan. 160 Wn.2d 354, 380, 158 P.3d 27 (2007).
       7 State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313(1994).
       8 State v. Miller. 92 Wn. App. 693, 703, 964 P.2d 1196 (1998).
No. 70808-2-1/5


       The court's findings are supported by Detective Frazier's testimony.

Detective Frazier testified that because Zaidivar-Guillen appeared to be Hispanic,

he immediately asked whether Zaidivar-Guillen understood English to ensure

there was no language barrier. Zaidivar-Guillen confirmed that he spoke English.

Detective Frazier then advised Zaidivar-Guillen of his Miranda rights in English.

Zaidivar-Guillen expressed no confusion about those rights and waived them.

According to Detective Frasier, he and Zaidivar-Guillen conversed for about 10 to

15 minutes and during their conversation, Zaidivar-Guillen spoke coherently,

responded appropriately to questions, and did not exhibit any difficulty speaking

or understanding English.

       The court's finding is also supported by the testimony of Deputy Joel

Banks who was also involved in the stop. Deputy Banks described hearing

Zaidivar-Guillen and Detective Frazier "speaking back and forth" and there did

not appear to be any language barrier. Deputy Banks primarily spoke with Z.B.,

and testified that Z.B. described her conversation in the truck with Zaidivar-

Guillen and did not report any problems communicating with him.

       Zaidivar-Guillen did not testify at the CrR 3.5 hearing.

       Zaidivar-Guillen relies on State v. Prok,9 and State v. Morales.10 to argue

that a suspect must be advised of constitutional rights in his or her native

language in all cases. Neither case stands for this proposition. In Prok, a state

trooper advised Prok, a Cambodian suspect who also appeared to be extremely

intoxicated, of his rights in English but never asked Prok whether he understood


       9107 Wn.2d 153, 727 P.2d 652 (1986).
       10173 Wn.2d 560, 269 P.3d 263 (2012).
No. 70808-2-1/6


English, nor did Prok's conduct provide any assurance that he did, in fact,

understand.11 The State admitted this was a violation Prok's right under JCrR

2.11(c)(1) to be advised of the right to an attorney.12

       In Morales, the suspect ran a stop sign, collided with another car and did

not stop until his car became inoperable. After arresting Morales, a trooper

transported him to the hospital but did not provide a "308 warning" in English to

advise Morales of his right to have additional blood tests administered by

someone of his own choosing.13 Instead, the trooper recruited a hospital

interpreter to provide the warning in Spanish. The interpreter did not testify, and

because the trooper did not speak Spanish, he could not testify that the hospital

employee actually gave the warning to Morales. The court held that the blood

test results were erroneously admitted because under these circumstances, the

State failed to prove that Morales was provided with the required warning.14

       Zaidivar-Guillen points to no cases suggesting that a non-native English

speaker must be advised of constitutional rights in his or her native tongue to

validly waive those rights.15 And here, while it appears that English is not

Zaidivar-Guillen's native language, Zaidivar-Guillen told Detective Frazier that he


       11 Prok. 107Wn.2dat155.
       12 JCrR 2.11(c)(1) has been replaced by CrRLJ 3.1(c)(1). The same protection is
afforded to adult defendants by CrR 3.1(c)(1).
       13 Morales. 173 Wn.2d at 569.
       14 jd
        15 Seee^. United States v. Crews. 502 F.3d 1130, 1140 (9th Cir. 2007) (valid
waiver where suspect advised of his rights in English, indicated he understood the rights
and did not require services of a translator); United States v. Bernard S., 795 F.2d 749,
752-53 (9th Cir. 1986) (waiver valid where Apache Indian suspect responded in English
that he understood Miranda rights and signed a written waiver but also demonstrated
some difficulty with English); Campaneria v. Reid. 891 F.2d 1014 (2nd Cir. 1989) (valid
waiver where Spanish-speaking suspect advised of Miranda rights in English only but
indicated he understood each of the rights).
No. 70808-2-1/7



understood English and specifically confirmed that he understood his Miranda

rights. As the trial court observed, nothing in the record indicates that Zaidivar-

Guillen exhibited difficulty understanding or communicating in English.

Notwithstanding any language barrier that may exist, substantial evidence

supports the trial court's findings that Zaidivar-Guillen was sufficiently fluent in

English to understand and voluntarily and intelligently waive his Miranda rights.

                   INEFFECTIVE ASSISTANCE OF COUNSEL

       Zaidivar-Guillen argues that he was deprived of the effective assistance of

trial counsel. He contends that counsel was ineffective for failing to move to

suppress incriminating statements on the basis that the warrantless investigatory

stop in this case was unlawful.

       A criminal defendant has a constitutional right to effective assistance of

counsel.16 In order to prevail on a claim of ineffective assistance of counsel,

Zaidivar-Guillen must demonstrate (1) deficient performance and (2) resulting

prejudice.17 If a defendant fails to establish either prong, we need not inquire

further.18 In this case, to establish that his attorney's performance was deficient

because he did not move to suppress evidence, Zaidivar-Guillen must show the

court would have granted such a motion.19




       16 Strickland v. Washington. 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d
674(1984).
       17 Strickland. 466 U.S. at 687; State v. Bowerman. 115 Wn.2d 794, 808, 802
P.2d 116(1990).
       18 State v. Hendrickson. 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
       19 Id at 79-80; see ajso State v. Brown. 159 Wn. App. 366, 371, 245 P.3d 776
(2011) (defense counsel has no duty to pursue arguments that appear unlikely to
succeed).
No. 70808-2-1/8


       Warrantless searches and seizures are per se unreasonable unless one of

the few narrowly-drawn exceptions to the warrant requirement applies.20 An

investigatory Terry21 stop is a well-established exception to the warrant

requirement.22 To be lawful, a Terry stop must be based on "'specific and

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant [the] intrusion.'"23 A reasonable suspicion may be based on

"commonsense judgments and inferences about human behavior."24

          Zaidivar-Guillen contends there were no specific facts giving rise to a

reasonable suspicion of criminal activity to justify the investigatory stop. He

claims that the police officers knew only that he was present in an area known for

prostitution activity, a female got into his car, and they stopped in a parking lot,

circumstances that could be consistent with any number of non-criminal

activities. Zaidivar-Guillen points out that the police officers did not see money

change hands or hear his conversation with Z.B., nor did they observe any

sexual conduct between the two. He argues that, as was the case in State v.

Diluzio. there were only "incomplete observations" which did not provide a

sufficient factual basis to justify stopping and detaining him.25

          We disagree. In Diluzio. a police officer stopped the defendant's vehicle

after seeing that he parked on the side of a road and had a short conversation


          20 State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).
          21 Terry v. Ohio. 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
          22 State v. Gatewood. 163 Wn.2d 534, 539, 182 P.3d 426 (2008).
        23 State v. Diluzio. 162 Wn. App. 585, 590, 254 P.3d 218 (2011) (alteration in
original) (quoting Terry. 392 U.S. at 21).
        24 Illinois v. Wardlow. 528 U.S. 119, 125, 120 S. Ct. 673, 145 L Ed. 2d 570
(2000).
          25162Wn. App. at 593.
                                               8
No. 70808-2-1/9


with a woman who then got into the passenger's seat.26 The officer saw no

money change hands and did not overhear any conversation between the driver

and the woman, neither of whom was known to be involved in prostitution or

solicitation activities. This court concluded that the totality of the circumstances

did not support a reasonable suspicion of criminal activity.27 This court further

concluded that the trial court should have granted Diluzio's motion to suppress

and reversed his convictions.

       There are several important distinctions in this case. Before they saw the

interaction between Z.B. and Zaidivar-Guillen, the officers here observed specific

behavior which led them to suspect that Z.B. was seeking to engage in

prostitution. The officers then saw Zaidivar-Guillen interact with Z.B. in a manner

consistent with patronizing a prostitute. Then, the officers followed Zaidivar-

Guillen's truck to a dark and secluded parking lot in front of a closed business

that is a "common area for Johns and prostitutes to go." Contrary to his

argument, the record does not indicate that Zaidivar-Guillen was detained merely

because of proximity to Z.B., who was suspected of criminal activity.28 Zaidivar-

Guillen's specific conduct, observed by the officers, gave rise to a reasonable

suspicion that he was also involved in criminal activity.

        On this record, Zaidivar-Guillen fails to establish that the trial court would

have granted a motion to suppress. He fails, therefore, to demonstrate that his


        26 Id
        27 Id
        28 See State v. Richardson. 64 Wn. App. 693, 697, 825 P.2d 754 (1992)
(investigative detention unlawful where at the time of the stop officer knew only that
defendant was in a high crime area, late at night, walking near a person suspected of
drug activity).
No. 70808-2-1/10


counsel was deficient. Thus, we need not decide whether he suffered any

resulting prejudice.

                       SUFFICIENCY OF THE EVIDENCE

       Finally, Zaidivar-Guillen contends there was insufficient evidence to

support the jury's verdict because there was no evidence tending to show that he

and Z.B. discussed sexual contact in exchange for money.

       To convict Zaidivar-Guillen of the crime of commercial sexual abuse of a

minor as charged under RCW 9.68A. 100(1), the State had to prove that he

solicited, offered, or requested Z.B. to engage in sexual conduct with him in

return for a fee.


       Evidence is sufficient to support a conviction if, 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.29 A claim of insufficiency admits the truth of the

State's evidence and all reasonable inferences that can be drawn from that

evidence.30 Circumstantial evidence and direct evidence are equally reliable.31

       Zaidivar-Guillen claims the evidence is insufficient because Z.B. said they

did not discuss sex and Zaidivar-Guillen never offered her money. He also

points out that it is not "unlawful to have cash in one's vehicle while driving in the

company of a prostitute." But while Z.B. did deny that Zaidivar-Guillen offered

her money in exchange for sex, the jury was not required to believe her,

especially in light of her admission that her statements to police officers at the



       29 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       30 id
       31 State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

                                          10
No. 70808-2-1/11


time were inconsistent with her trial testimony.32 The jury was also free to

disbelieve Zaidivar-Guillen's explanation that it was merely coincidental that he

had money on the dash just after he had just picked up a prostitute and driven

her to a dark and deserted location. The evidence was sufficient to give rise to a

reasonable inference that Zaidivar-Guillen solicited Z.B. to have sexual contact

with him for a fee and was therefore, sufficient to support his conviction

       We affirm the judgment and sentence.




WE CONCUR:




         mVtj^l




       32 State v. Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (credibility
determinations are for the trier of fact and unreviewable on appeal).

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