                                                                   c:H:-ior appcAls nr


                                                                    2QI'iNOV 10 AM 9:00




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   DIVISION ONE


              Respondent,
                                                   No. 70099-5-1
                                                   (consol. with No. 70697-7-1)
         v.
                                                   UNPUBLISHED OPINION
AMALIA M. CASTILLO,
a.k.a. AMALIA M. CERVANTES,

              Appellant.                           FILED: November 10, 2014



       Dwyer, J. — Amalia Castillo was charged with and convicted of multiple

felonies for her role in an armed kidnapping. After the jury in her first trial failed

to reach a unanimous verdict with regard to one of the charges—conspiracy to

commit murder in the first degree—she was subsequently retried and convicted.

In this consolidated appeal from both judgments, she challenges (1) the

constitutional adequacy of the charging document in her second trial, (2) the

constitutional sufficiency of the evidence to support her conviction of unlawful

possession of a firearm in the second degree in her first trial, and (3) the trial
court's calculation of her offender score at sentencing. We find no error and,

therefore, affirm.
No. 70099-5-1 (consol. with No. 70697-7-l)/2


                                              I


        On September 30, 2011, Francisco Mendoza-Gomez1 told Castillo, who

was in his employ,2 to kill a man named Juan Zuozo-Moreno.3 Mendoza-

Gomez's directive to Castillo came after he discovered Zuozo-Moreno engaged

in sexual relations with Mendoza-Gomez's sister-in-law at her SeaTac apartment.

        Shortly thereafter, Castillo and a man named Agalega Pua—who was

compensated by Mendoza-Gomez to assist Castillo—forced Zuozo-Moreno, at

gunpoint, to enter a black Acura sport utility vehicle (SUV). Castillo then drove

the SUV to Federal Way to pick up a man named Eric Tharp. Tharp suggested

that Fort Lewis would be a suitable place to dispose of Zuozo-Moreno.

        While still in Federal Way, however, the SUV began to experience

mechanical difficulties. Capitalizing on the resultant distraction, Zuozo-Moreno

was able to escape from the SUV and find temporary refuge in a gas station

convenience store. However, Tharp and Pua followed Zuozo-Moreno into the

store where they repeatedly beat and kicked him before fleeing from the scene in

the SUV.

        During the ensuing investigation, a King County detective stopped a Jeep

Cherokee that was being driven by Tharp.4 Castillo was seated in the front

passenger seat and her infant child was seated directly behind her in the rear


        1 Mendoza-Gomez's nickname is "Chaparro."
        2Castillo's duties ranged from running errands for Mendoza-Gomez to assisting him in
selling drugs.
        3 Also known as Isais Lozano.
        4 Castillo testified that the Jeep belonged to Mendoza-Gomez. The State offered
testimony that the Jeep belonged to someone named "Nicole." No evidence was presented that
Castillo was the owner of the Jeep.
No. 70099-5-1 (consol. with No. 70697-7-l)/3


passenger seat. A man known to Castillo as "Status" was seated in the rear

passenger seat behind Tharp.

       Castillo and Tharp were arrested and a search of the vehicle was

conducted. A .380 caliber pistol was recovered from the floorboard behind

Castillo's seat. Another .380 caliber pistol was found between the driver's seat

and the center console. Two rifles were found in the storage area in the rear of

the Jeep. Additionally, a .45 caliber pistol was found in a laptop bag in the

storage area in the rear of the Jeep. Although Castillo admitted that the laptop

bag belonged to her, she testified that someone else had placed the pistol in her

laptop bag and that she had no knowledge of the presence of any of the firearms

that were found in the Jeep.

       Castillo was searched incident to her arrest. Items and substances found

either in her purse or on her person included cocaine, methamphetamine, $4,000

in cash, and a loaded .380 caliber pistol. However, the pistol did not have a firing

pin.

       Thereafter, Castillo was charged by third amended information with (1)

conspiracy to commit murder in the first degree, with a firearm enhancement

allegation, (2) kidnapping in the first degree, with a firearm enhancement

allegation, (3) unlawful possession of a firearm in the second degree, and (4)

violation of the Uniform Controlled Substances Act (VUCSA)—specifically,

possession of methamphetamine with intent to deliver or manufacture. See,

RCW 69.50.401(1), (2)(b).

       After being tried alone, Castillo was found guilty by jury verdict of

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kidnapping in the first degree, with a firearm enhancement; of unlawful

possession of a firearm in the second degree; and, of the lesser charge of simple

possession of methamphetamine. However, when the jury was unable to reach

a unanimous verdict as to the conspiracy charge, the judge declared a mistrial as

to that count.

       At the sentencing hearing following her first trial, Castillo, when queried,

agreed (through her counsel) that she had an offender score of four.

       THE COURT: All right. Thank you. And, Ms. Cruz, before I hear
       from you, do you agree that the offender score of 4 is accurate?

       MS. CRUZ: That is correct, Your Honor.

       THE COURT: All right. Thank you.

       MS. CRUZ: We do agree. ... If you look at her priors, she has
       one prior with two counts, and those were indeed for prior VUCSAs.

       Thereafter, Castillo was charged—this time along with Mendoza-Gomez—

by fifth amended information. The fifth amended information included, in

pertinent part, a charge of conspiracy to commit murder in the first degree that
was identical to the conspiracy charge that was contained within the third

amended information—the charging document in Castillo's first trial.

               I, Daniel T. Satterberg, Prosecuting Attorney for King County
       in the name and by the authority of the State of Washington, do
       accuse AMALIA M. CASTILLO AKA AMALIA M. CERVANTES and
       FRANCISCO MENDOZA-GOMEZ, and each of them, of the crime
       of Conspiracy to Commit Murder in the First Degree, a crime of
       the same or similar character as another crime charged herein,
       which crimes were part of a common scheme or plan and which
       crimes were so closely connected in respect to time, place and
        occasion that it would be difficult to separate proof of one charge
       from proof of the other, committed as follows:
No. 70099-5-1 (consol. with No. 70697-7-l)/5


              That the defendants AMALIA M. CASTILLO AKA AMALIA M.
       CERVANTES and FRANCISCO MENDOZA-GOMEZ, and each of
      them, together with others, in King County, Washington, on or
      about September 30, 2011, with intent that conduct constituting the
      crime of Murder in the First Degree of Isais Lozano aka Juan
      Zuozo-Moreno, to-wit: with premeditated intent to cause the death
      of Isais Lozano aka Juan Zuozo-Moreno, be performed, agreed
      with to engage in or cause the performance of such conduct, and
      the defendant or took a substantial step in the pursuance of such
       agreement.

       On April 26, 2013, Castillo was found guilty by jury verdict of conspiracy to

commit murder in the first degree while armed with a firearm.

      At the sentencing hearing following her retrial, Castillo, through her

counsel, did not repudiate her prior assent when she was asked whether she

agreed that her offender score was four.

       THE COURT: ... As I've said, I think that brings the Offender's
       Score to a 4 for Ms. Cervantes, and I think if you do the calculations
       with the Conspiracy for Murder I and multiply it by .75, I think it gets
       us to a standard range of 211.5 to 280.5 months prior to the
       application of the firearms enhancements. So I'll just ask counsel
       to look over those numbers and make sure they're correct.

       MS. CRUZ: I was getting 210.75, Your Honor, so you rounded
       up—you had 211 and a half.

       THE COURT: I had 211.5. So I have the standard range at an
       Offender's Score of 4 on a Murder I at 282 to 374.

       MS. CRUZ: Okay.

       Thereafter, the trial court imposed a standard-range sentence based on

Castillo's offender score of four.

       Castillo appealed from the felony judgment and sentence entered

following her first trial and the felony judgment and sentence entered following

her second trial. The cause numbers corresponding to her two appeals were

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then consolidated into a single appeal, which we resolve herein.

                                         II


      Castillo contends—for the first time on appeal—that the fifth amended

information omitted essential elements of the charged crime of conspiracy to

commit murder in the first degree. Absent from the charging document, she

avers, were the following two elements of criminal conspiracy: (1) that she

agreed with one or more persons to commit a crime, and (2) that any one of

those who were in accord took a "substantial step" toward the completion of the

agreement. We disagree.

      "A person is guilty of criminal conspiracy when, with intent that conduct

constituting a crime be performed, he or she agrees with one or more persons to

engage in or cause the performance of such conduct, and any one of them takes

a substantial step in pursuance of such agreement." RCW 9A.28.040(1).

       Given the nature of Castillo's challenge, we must determine whether any

of the essential elements of the aforementioned statutory provision were omitted

from the fifth amended information.

       Familiar principles direct our analysis. In a criminal prosecution, the

accused has a constitutional right to be informed of the charge she is to meet at

trial. State v. Pelkev, 109 Wn.2d 484, 487, 745 P.2d 854 (1987). For that

reason, the charging document must include all essential elements of a crime in
order to apprise the accused of the charges and facilitate the preparation of a
defense. State v. Pineda-Pineda, 154 Wn. App. 653, 670, 226 P.3d 164 (2010).

However, in order to discourage defendants from the practice of waiting until

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after verdict to challenge the constitutional adequacy of a charging document,

our Supreme Court has adopted a standard of review—applicable to postverdict

challenges—that provides us with "considerable leeway to imply the necessary

allegations from the language of the charging document." State v. Kiorsvik, 117

Wn.2d 93, 102-06, 812 P.2d 86 (1991). Consequently, when analyzing a

posttrial challenge, a charging document will be found constitutionally adequate
so long as there is "some language in the document giving at least some

indication of the missing element." Pineda-Pineda, 154 Wn. App. at 670.
        When a challenge to the information is made for the first time on appeal,
the following two-part test is used in determining whether the information passes
constitutional muster: "(1) do the necessary facts appear in any form, or by fair
construction can they be found, in the charging document; and, if so, (2) can the
defendant show that he or she was nonetheless actually prejudiced by the

inartful language which caused a lack of notice?"5 Kiorsvik, 117 Wn.2d at 103,
105-06.

        Turning to the first element alleged by Castillo to be absent from the
charging document, we conclude that the necessary facts may, indeed, be found
in the charging document, meaning that she was provided with adequate notice
as to the first challenged element. Taken together, the word "conspiracy" and the
phrase "That the defendants . . . agreed with to engage in or cause the
 performance of such conduct"—both of which were included in the charging

        5"If an essential element is completely omitted from the information, prejudice is
 presumed." Pineda-Pineda, 154Wn. App. at 670.

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document—provided ample notice to Castillo that the State would attempt to

prove that she agreed with one or more persons to cause Zuozo-Moreno's death.

See State v. Morgan, 163 Wn. App. 341, 347, 261 P.3d 167 (2011) ('"[T]he term

"conspiracy" implies the involvement of two or more people.'" (quoting State v.

McCartv, 140 Wn.2d 420, 427, 998 P.2d 296 (2000))), review denied, 175 Wn.2d

1013 (2012).6 Thus, notwithstanding a charging document that, as the State

concedes, was "somewhat poorly drafted," it was nonetheless adequate to

apprise Castillo of the crime with which she was charged; more specifically, it

provided satisfactory notice that the charge involved agreeing with one or more

persons to engage in conduct constituting a crime—namely, the killing of another

human being.

           As to the second element alleged by Castillo to be absent from the

charging document, we again conclude that the necessary facts may be found in

the charging document, which provided her with adequate notice as to the

second challenged element. We have previously held—and do so again here—

that a failure to articulate the "substantial step" requirement does not warrant

reversal where there are sufficient facts in the information to constitute adequate

notice to the defendant. See Pineda-Pineda, 154 Wn. App. at 670-71. In

Pineda-Pineda, the defendant was charged both with delivery of a controlled

substance and with conspiracy to deliver a controlled substance. 154 Wn. App.

         6In arguing that the information omitted the essential element of agreement with one or
more persons, Castillo alludes to the fact that the information does not make use of the statutory
language of RCW 9A.28.040(1). However, "[t]he information need notset forth the exact
statutory language defining the crime." Morgan. 163 Wn. App. at 347 (citing Kiorsvik. 117 Wn.2d
at 108).

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at 671. However, the information did not "articulate the substantial step

requirement." Pineda-Pineda, 154 Wn. App. at 670. Nevertheless, we

considered the other related charges and held that the defendant was provided

with adequate notice vis-a-vis the substantial step requirement because the date

range of the conspiracy charge "encompassed" the date of delivery that was

specified in the delivery charge, "which supported] a reasonable inference that

Pineda-Pineda took a substantial step in the conspiracy to deliver." Pineda-

Pineda, 154 Wn. App. at 671.

       While the particular facts here differ from the facts in Pineda-Pineda, they

do not lead to a conclusion that is at variance with our decision in that case.

Here, the fifth amended information named two defendants and alleged that "the

defendant or [sic] took a substantial step in the pursuance of such agreement."

Unquestionably, this language is unartful; yet, two defendants were named in the

charging document and it was alleged that the "defendant" took a "substantial

step." Given that Castillo was one of two named defendants, the facts contained

within the fifth amended information provided adequate notice that she could be

found guilty of the crime with which she and her co-defendant had been charged

if it was found that either one of them had taken a "substantial step" toward the

completion of the agreement.

       Moreover, because the second part of the two-part test permits us to "look

beyond the face of the charging document to determine if the accused actually

received notice of the charges he or she must have been prepared to defend
No. 70099-5-1 (consol. with No. 70697-7-l)/10


against,"7 we may examine the trial court record to assess whether Castillo was

actually prejudiced. Kiorsvik, 117 Wn.2d at 106. The procedural history is

telling. Because Castillo was twice charged with conspiracy to commit murder in

the first degree, she had, by the time of the second trial, been apprised of the

State's theory of the case and the manner in which it intended to establish her

culpability. Given Castillo's acquaintance with the State's theory of the case

during her first trial, we decline to conclude that Castillo failed to receive actual

notice of the essential elements of the conspiracy charge prior to the second trial.

        Our liberal construction of the fifth amended information reveals that,

although it left something to be desired, it was not constitutionally inadequate.

Moreover, the procedural history of this case discloses that Castillo was not, in

actuality, prejudiced by the unartful language contained within the charging

document. Therefore, we decline Castillo's request to reverse her conviction and

to dismiss the charge without prejudice and, instead, affirm her conviction of

conspiracy to commit murder in the first degree.

                                                Ill


        Castillo next contends that, with regard to her conviction of unlawful

possession of a firearm in the second degree, the State failed to carry its burden
of proof. The evidence adduced by the State was constitutionally insufficient,
she asserts, because it failed to show either that (1) the handgun found in her

purse was operational, or that (2) she had possession or control over any ofthe


        7We note that the second part of this test may only be reached in the event that the first
part is satisfied, which is the case here.

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other guns found in the Jeep.

      The State does not attempt to refute Castillo's first assertion. Instead, it

"recognizes that there was scant evidence presented to the jury regarding the

steps that would need to be taken to make this pistol functional as a firearm," and

that, "[i]n his closing argument, the deputy prosecutor deemphasized the gun

found in Castillo's purse, observing that it was not immediately operational." In

recognition of the State's apparent concession, we turn our attention to Castillo's

second assertion.

       When reviewing a challenge to the sufficiency of the evidence, we must

determine "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). All reasonable inferences are drawn in

favor of the verdict and interpreted most strongly against the defendant. State v.

Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105(1995).

       As charged, the State was required to prove beyond a reasonable doubt

that, on the day that she was arrested, Castillo "knowingly had a firearm in her

possession or control." See RCW 9.41.040(2)(a)(i).

       "Possession of property may be either actual or constructive." State v.

Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Constructive possession is

established when the person charged with possession of contraband has

dominion and control over either the contraband or the premises upon which the

contraband was found. State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942

                                       -11 -
No. 70099-5-1 (consol. with No. 70697-7-l)/12


(1971); see also State v. Potts, 1 Wn. App. 614, 617, 464 P.2d 742 (1969) (an

automobile may be considered a premises). "Courts have found sufficient

evidence of constructive possession, and dominion and control, in cases in which

the defendant was either the owner of the premises or the driver/owner of the

vehicle where contraband was found." State v. Chouinard, 169 Wn. App. 895,

899-900, 282 P.3d 117 (2012). review denied, 176Wn.2d 1003, 297 P.3d 67

(2013). However, it is not necessary—in order to adequately support a finding of

constructive possession—that the defendant be either the owner or the operator

of the vehicle. Rather, it is well-settled that the proximity of a passenger in a

vehicle to contraband, "coupled with the other circumstances linking" the

passenger to the contraband, may constitute sufficient evidence to support a

jury's finding that the passenger constructively possessed the contraband. See,
e.g., Mathews, 4 Wn. App. at 658.

       A straightforward application of this well-settled rule disposes of this issue.

There is no dispute that Castillo was in close proximity to all of the guns that

were located in the Jeep. Moreover, the State adduced evidence that a .45

caliber pistol was discovered in Castillo's laptop bag. This evidence provides the
requisite circumstances linking Castillo to one of the guns.8 While Castillo was
neither the owner nor the operator of the Jeep in which the guns were found, she

was—admittedly—the owner of the laptop bag in which one of the guns was

found. Therefore, notwithstanding her testimony that she was not responsible for


       8In order to adequately support Castillo's conviction, the State needed only to adduce
evidence that she possessed one or more of the guns found in the Jeep.

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the presence of the .45 caliber pistol in her bag and that she did not know that it

had been placed there—testimony that the jury was not required to credit9—the

presence of the gun in her bag, coupled with her propinquity to it, constituted

sufficient evidence to support a finding that she constructively possessed the

gun.

                                                  VI


        Castillo next contends that the trial court erred in imposing a sentence that

was calculated using an offender score of four. This is so, she asserts, because

(1) the State did not carry its burden of proving the facts necessary to determine

whether two alleged prior VUCSA convictions should be included in calculating

her offender score, and (2) the trial court did not independently determine

whether the two alleged prior convictions constituted the same criminal conduct.

Rather than addressing the merits of her contention, the State argues that

Castillo, by affirmatively acknowledging that the offender score calculated by the
trial court was correct, waived her ability to bring this challenge on appeal. We

agree with the State.

        As a general matter, "[ijllegal or erroneous sentences . . . may be
challenged for the first time on appeal." State v. Nitsch, 100 Wn. App. 512, 519,
997 P.2d 1000 (2000). However, where an alleged sentencing error "involves an

agreement to facts, later disputed, orwhere the alleged error involves a matter of
trial court discretion," the error may not be raised for the first time on appeal, in


        9See, e&, State v. Bencivenqa. 137 Wn.2d 703, 709, 974 P.2d 832 (1999) ("[T]he finder
of fact is the sole and exclusive judge of. . . the credibility of witnesses.").

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re Pers. Restraint of Goodwin. 146 Wn.2d 861, 874, 50 P.3d 618 (2002); State v.

Wilson. 170 Wn.2d 682, 689, 244 P.3d 950 (2010). Because "[amplication of the

same criminal conduct statute involves both factual determinations and the

exercise of discretion," a defendant's affirmative acknowledgement in the trial

court that her offender score was properly calculated prevents her from arguing

for the first time on appeal that particular convictions, which were counted in the

calculation of that score, amount to the same criminal conduct. Nitsch, 100 Wn.

App. at 518-26; see also In re Pers. Restraint of Shale, 160 Wn.2d 489, 494-96,

158 P.3d 588 (2007) (adopting our reasoning in Nitsch and holding that waiver

may apply where a defendant argues for the first time on appeal that two prior

convictions constituted the same criminal conduct), overruling on other grounds

recognized by In re Newlun, 158 Wn. App. 28, 34, 240 P.3d 795 (2010).

        Both parties agree (and the record confirms) that Castillo, through her

counsel, agreed that her offender score was four. Therefore, Castillo, by

affirmatively acknowledging her offender score in the trial court, waived—insofar

as she asserts that her two alleged prior convictions amounted to the same

criminal conduct—her opportunity to challenge her offender score on appeal.10




         10 It is the defendant's burden to establish that two crimes constitute the same criminal
conduct. State v. Aldana Graciano. 176 Wn.2d 531, 540, 295 P.3d 219 (2013). Thus, by failing
to raise this issue in the trial court, Castillo—in addition to waiving her ability to challenge her
offender score on appeal—failed to meet her burden of proof in the trial court.

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No. 70099-5-1 (consol. with No. 70697-7-1)715


      Affirmed.


                                            j ^ - ^ j—UU.
We concur:




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