 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                                             as
                                                      No. 70419-2-1          en

                     Respondent,
                                                      DIVISION ONE
                                                                              o

                                                      UNPUBLISHED OPINION              t r- i"-'"-


JUAN CRUZ-GRUALVA, aka JUAN
ALEXANDER CRUZ,
                                                      FILED: January 20, 201 S£.
                     Appellant.


      Appelwick, J. — Cruz-Grijalva appeals his conviction for robbery.           He

contends that the trial court abused its discretion in denying his motions for new

counsel and erred in admitting statements he made to police before and after his

arrest. We affirm.


                                     FACTS


       On the evening of January 6, 2012, Linda Geer called 911 to report being

robbed by a young Hispanic man wearing a light green hooded jacket and a dark

New York baseball cap. The man threatened her with a knife and demanded her

iPhone.   Shortly thereafter, Seattle Police Officer Scott Luckie saw a man

matching Geer's description of the robber near the scene of the crime. Officer

Luckie told the man, Juan Cruz-Grijalva, to come to the front of his patrol car,

where he conducted a frisk for weapons. Officer Luckie left Cruz-Grijalva with

other officers and searched along the sidewalk and nearby yards, where he

found a New York Yankees baseball cap and black knit gloves. Officer Luckie

returned to his patrol car and arrested Cruz-Grijalva and put him in handcuffs.
No. 70419-2-1/2



Another officer arrived with Geer, who identified Cruz-Grijalva as the man who

robbed her.


       The State charged Cruz-Grijalva with first degree robbery while armed

with a deadly weapon. Prior to trial, Cruz-Grijalva twice requested new counsel.

At a hearing on November 21, 2012, Cruz-Grijalva claimed counsel was "not

doing what he needs to do to prove my innocence. And I refuse to talk to him

about my case, and ... we have a conflict of interest." Cruz-Grijalva complained

that counsel "goes against" all his choices; tried to "force [him] to take a deal"; did

not visit him or answer his calls; and only asked for continuances. He wanted an

attorney "that will actually show that he's, you know, really trying for me." The

trial court denied his request.

       On the first day of trial, March 18, 2013, Cruz-Grijalva again requested a

new attorney, claiming that counsel would not explain his trial strategy and

"actually withheld some evidence from" him. Cruz-Grijalva also stated, "[l]f you

guys don't want to give me a new public defender... at least can I have some

time to get a paid attorney?" He also insisted that his attorney did not tell him

that any previous continuance had been granted to allow him to obtain private

counsel and indicated that his sister was helping him so he could obtain private

counsel within one week. The trial court denied his motion for new counsel or a

continuance.

       At a CrR 3.5 hearing, Officer Luckie testified that he did not recall whether

Cruz-Grijalva made any statements when he initially detained him and frisked

him for weapons. When he returned from searching the area, Officer Luckie
No. 70419-2-1/3




placed Cruz-Grijalva in handcuffs and advised him of his Miranda rights.        See

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

Officer Luckie testified that Cruz-Grijalva indicated that he understood his rights.

In response to the officer's questions, Cruz-Grijalva offered various descriptions

of his destination and his routes. When asked why he had "ditched his hat,"

Cruz-Grijalva claimed he was afraid the police would believe it was stolen

because someone had accused him of stealing it.

       Officer Erin Nicholson testified that she stood with Cruz-Grijalva at the

patrol car before his arrest and asked him where he had been before being

detained by Officer Luckie.    Cruz-Grijalva said he had been to Safeway after

getting off the bus. After informing Cruz-Grijalva that the officers had stopped

him because he fit the description of someone for whom they were searching,

Officer Nicholson joined Officer Luckie in searching the area

       The State argued that Cruz-Grijalva's statements to both officers were

admissible, because he was not under arrest when he answered Officer

Nicholson's questions and he had been advised of his Miranda rights when he

answered Officer Luckie's questions.          Cruz-Grijalva argued that Officer

Nicholson's questions constituted an improper custodial interrogation and that

Officer Luckie failed to properly determine whether he intended to waive his

rights before questioning him.    The trial court determined that Cruz-Grijalva's

statements were admissible because he was detained but not in custody when

he spoke to Officer Nicholson, Officer Luckie properly advised him of his Miranda

rights before questioning him, and he validly waived his rights.
No. 70419-2-1/4




        Following trial, the jury found Cruz-Grijalva guilty as charged. The trial

court imposed a standard range sentence.

        Cruz-Grijalva appeals.

                                     DISCUSSION


        Cruz-Grijalva first contends the trial court erred by denying his motion for

a new attorney in November 2012 and again on the first day of trial, March 18,

2013.


        Although criminal defendants are guaranteed the right to representation

by counsel under the constitution, they are not guaranteed to representation by

particular counsel of their choosing. State v. Stenson. 132 Wn.2d 668, 733, 940

P.2d 1239 (1997). The decision of whether a defendant's dissatisfaction with his

counsel is meritorious and justifies the appointment of new counsel is an issue

within the discretion of the trial court. Id. The Stenson Court elaborated:


              A criminal defendant who is dissatisfied with appointed
        counsel must show good cause to warrant substitution of counsel,
        such as a conflict of interest, an irreconcilable conflict, or a
        complete breakdown in communication between the attorney and
        the defendant. Attorney-client conflicts justify the grant of a
        substitution motion only when counsel and defendant are so at
        odds as to prevent presentation of an adequate defense. The
        general loss of confidence or trust alone is not sufficient to
        substitute new counsel.

                Factors to be considered in a decision to grant or deny a
        motion to substitute counsel are (1) the reasons given for the
        dissatisfaction, (2) the court's own evaluation of counsel, and (3)
        the effect of any substitution upon the scheduled proceedings.

Jd. at 734 (internal citations omitted).
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        In reviewing a denial of a request for new counsel, we consider (1) the

extent of the conflict between the defendant and counsel, (2) the adequacy of the

trial court's inquiry, and (3) the timeliness of the motion. State v. Harris. 181 Wn.

App. 969, 977, 327 P.3d 1276 (2014).

        Cruz-Grijalva contends that the trial court abused its discretion by failing to

adequately inquire into the reasons for his conflict with counsel. He complains

that the first judge asked "only two open-ended questions," and the second judge

questioned him only regarding his previous request and "simply listened to [his]

concerns."    But, the first judge asked Cruz-Grijalva to describe the conflict of

interest and then asked whether "something in particular" was "going wrong

between" him and counsel.           And, the judge asked defense counsel and the

prosecutor to comment on Cruz-Grijalva's complaints and the preparation of the

case.    The second judge asked Cruz-Grijalva, defense counsel, and the

prosecutor about previous requests, and then allowed Cruz-Grijalva to state the

reasons for his request at length on the record.       Because each judge allowed

Cruz-Grijalva and counsel to fully express any concerns, Cruz-Grijalva fails to

establish that the inquiry was inadequate. State v. Schaller. 143 Wn. App. 258,

271, 177 P.3d 1139 (2007) ("[A] trial court conducts adequate inquiry by allowing

the defendant and counsel to express their concerns fully," and "[f]ormal inquiry

is not always essential where the defendant otherwise states his reasons for

dissatisfaction on the record.").

        Similarly, Cruz-Grijalva fails to demonstrate a conflict of interest, an

irreconcilable conflict, or a complete breakdown in communication requiring
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substitution of counsel. At the November 2012 hearing, Cruz-Grijalva indicated a

general loss of confidence and trust, insufficient opportunities for communication,

and dissatisfaction with counsel's preparation of the defense case.        Given the

trial court's determination that "everything is getting ready for trial" in the manner

expected, Cruz-Grijalva's allegations, even if supported, would not necessitate

the substitution of counsel. State v. Varqa. 151 Wn.2d 179, 200-01, 86 P.3d 139

(2004) (defendant's general dissatisfaction and distrust insufficient to warrant

substitution of counsel).

       At the March 18, 2013 hearing, Cruz-Grijalva complained that his attorney

failed to "explain to me our strategy we're going to take during trial," despite his

desire "to come prepared and understand what's going on." He added that when

he received his "discovery last month," he "found out that" his attorney "actually

withheld some evidence" and "didn't really explain to me all the stuff that they

had against me, or like what could help me out."             But, vague allegations

suggesting a general lack of accord regarding trial preparation and strategy do

not establish a complete collapse of communication between counsel and client.

See State v. Cross. 156 Wn.2d 580, 606-09, 132 P.3d 80 (2006) (strategic

disagreement between counsel and client regarding use of mental health

defense did not demonstrate legally cognizable conflict requiring new counsel).

       Under these circumstances, Cruz-Grijalva fails to demonstrate abuse of

discretion in the trial court's denial of his motion for new counsel at either the

November 2012 or the March 2013 hearing.
No. 70419-2-1/7




       Cruz-Grijalva next contends the trial court violated his Fifth Amendment

rights by admitting statements he made to Officer Nicholson and Officer Luckie.

       We review the trial court's decision following a CrR 3.5 hearing to

determine whether substantial evidence supports the findings of fact.     State v.

Broadawav, 133 Wn.2d 118, 130-31, 942 P.2d 363 (1997).              Unchallenged

findings of fact are verities on appeal. State v. Hill. 123 Wn.2d 641, 644, 870

P.2d 313 (1994).     The trial court's determination as to whether questioning

constituted custodial interrogation is a conclusion of law that we review de novo.

State v. Lorenz. 152 Wn.2d 22, 36, 93 P.3d 133 (2004).

       Miranda warnings are required prior to the initiation of "custodial

interrogation." State v. Heritage. 152 Wn.2d 210, 214, 95 P.3d 345 (2004). The

test for determining whether a defendant is in custody for purposes of Miranda is

an objective one: "whether a reasonable person in the individual's position would

believe he or she was in police custody to a degree associated with formal

arrest." Lorenz. 152 Wn.2d at 36-37.

       Consistent with the Fourth Amendment and article I, section 7 of the

Washington Constitution, a police officer may conduct a brief investigatory

detention if the officer has a reasonable and articulable suspicion that an

individual is involved in criminal activity. State v. Sieler, 95 Wn.2d 43, 46, 621

P.2d 1272 (1980); see also Terrv v. Ohio. 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L.

Ed. 2d 889 (1968).    During the course of a Terrv stop, the officer may ask a

moderate number of questions "to confirm or dispel the officer's suspicions."

Heritage, 152 Wn.2d at 218. Because Terrv stops generally are brief and occur
No. 70419-2-1/8




in public, "they are 'substantially less police dominated' than the police

interrogations contemplated by Miranda." Id. (internal quotation marks omitted)

(quoting Berkemer v. McCartv, 468 U.S. 420, 439, 440, 104 S. Ct. 3138, 82 L. Ed.

2d 317 (1984)). Consequently, a routine investigatory detention is not custodial

for purposes of Miranda. Id.

       Here, when Officer Luckie called Cruz-Grijalva over to his car, he knew

that Cruz-Grijalva matched the description of the robber, was walking away from

the general vicinity of the crime scene, and had removed his hat since Officer

Luckie first passed by in his patrol car minutes earlier.     These facts justified

Officer Luckie's decision to briefly detain Cruz-Grijalva to determine whether he

might have committed the robbery. After conducting a Terrv frisk for weapons

while Cruz-Grijalva had his hands on the hood of the patrol car,1 Officer Luckie

allowed him "to stand freely" in front of the car while the investigation continued.

Cruz-Grijalva was not handcuffed and had not been told he was under arrest.

Officer Luckie obtained Cruz-Grijalva's identification and knew that he was under

18 years old.

       As Officer Luckie finished the frisk and began to search the area, Officer

Nicholson arrived and briefly asked Cruz-Grijalva about where he had been

before being stopped by Officer Luckie. After Cruz-Grijalva answered this single

question, Officer Nicholson told him he was being detained for the robbery

investigation, but she did not tell him he was under arrest. The officers searched

      1 Cruz-Grijalva does not contend that the frisk exceeded the permissible
scope of an investigatory detention. See State v. Day, 161 Wn.2d 889, 895, 168
P.3d 1265(2007).


                                         8
No. 70419-2-1/9




the area for 5 to 10 minutes. The trial court found that during that time, Cruz-

Grijalva "was not free to leave, but was allowed to remain standing in front of

Officer Luckie's patrol car" with other officers nearby.      When Officer Luckie

returned, he placed Cruz-Grijalva in handcuffs, informed him he was under arrest,

and advised him of his Miranda rights.

       Cruz-Grijalva argues that the trial court failed to consider his age and to

determine whether a reasonable juvenile in his position would have felt free to

leave at the time Officer Nicholson asked her single question. But, when a police

officer questions a suspect during a valid investigatory detention, the fact that the

suspect is not necessarily free to leave does not elevate the encounter into a

custodial interrogation. See Berkemer, 468 U.S. at 439-40 (Fourth Amendment

seizure of suspect for routine Terrv stop does not rise to the level of "custody" for

purposes of Miranda); Heritage, 152 Wn.2d at 218; State v. Walton. 67 Wn. App.

127, 130, 834 P.2d 624 (1992). The relevant question is whether a reasonable

person in Cruz-Grijalva's position would have believed his freedom was curtailed

to a degree associated with arrest at the time officers questioned him. Heritage.

152Wn.2dat218.


       The trial court's unchallenged findings are that police (1) did not handcuff

Cruz-Grijalva, (2) did not tell him he was under arrest, (3) allowed him to stand

freely near the patrol car while they searched the area, and (4) asked him just

one brief question regarding his activity before the stop. These findings support

the conclusion that he was detained but that his freedom of movement had not

been curtailed to a degree associated with formal arrest. Cruz-Grijalva fails to
No. 70419-2-1/10




demonstrate how his youth would "ultimately modify this otherwise noncustodial

encounter into a custodial one."      Heritage. 152 Wn.2d at 219.       Given the

circumstances described in the unchallenged factual findings, the trial court did

not err in concluding that Cruz-Grijalva was not in custody for purposes of

Miranda and admitting his statements to Officer Nicholson.

       As to his statements to Officer Luckie after he was advised of his Miranda

rights, Cruz-Grijalva contends the State failed to prove that he voluntarily waived

his rights. Cruz-Grijalva does not dispute the trial court's findings that Officer

Luckie (1) read the statement of rights to him, (2) "properly included the extra

juvenile warning," and (3) asked him whether he understood his rights. He also

does not dispute the finding that he orally indicated to Officer Luckie that he

understood his rights. Instead, Cruz-Grijalva argues that Officer Luckie failed to

do anything to additionally confirm that he actually understood his rights or

specifically ask whether he wanted to waive his rights before beginning to

question him.

       Whether a juvenile has effectively waived his Miranda rights depends on

the totality of the circumstances, including the juvenile's age, experience,

background, intelligence, and his capacity to effect a voluntary waiver. State v.

Blair. 56 Wn. App. 209, 212, 783 P.2d 102 (1989). Waiver of Miranda rights may

be inferred when a juvenile indicates an understanding of his rights and

voluntarily discusses the charged crime with police officers. See State v. Ellison.

36 Wn. App. 564, 571, 676 P.2d 531 (1984) (where juvenile acknowledged

understanding rights, appeared to understand rights, and responded to questions


                                        10
No. 70419-2-1/11




after initialing rights on card, waiver valid despite police failure to specifically ask

for waiver or obtain signature on waiver form and despite evidence that juvenile

had eleventh grade education, was in special education program, and had

difficulties with reading and comprehension).

       Here, the trial court found that Officer Luckie advised Cruz-Grijalva of his

rights and asked him if he understood them.          Cruz-Grijalva indicated that he

understood his rights, "was neither hesitant nor reluctant to speak" with Officer

Luckie but "willingly participated in" conversation with him, and eventually

"declined . . . to provide any more information about this alleged incident."

Nothing in the record indicates that Cruz-Grijalva's age, experience, education,

background, intelligence, or capacity actually prevented him from waiving his

rights. Thus, the trial court properly determined that Cruz-Grijalva voluntarily

waived his rights and properly admitted his statements.

       We affirm.




WE CONCUR:




                                                     ^,-T.




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