                                                                                                   FILED
                                                                                          COURT OF •APPEALS
                                                                                                 DIVISION II

                                                                                         2015 JAN 13       Mi 1° 1: 17
                                                                                         STATE OF WASHINGTON


    IN THE COURT OF APPEALS OF THE STATE

                                                   DIVISION II

STATE OF WASHINGTON,                                                                 No. 45277 -4 -II


                                        Respondent,


        v.

                                                                             UNPUBLISHED OPINION
RAUL THATER CASTRO,


                                        Appellant.




       MAxA, J. — Raul Castro was convicted of first degree theft and two counts of unlawful


 issuance    of   bank   checks ( UIBC).       He argues on appeal that ( 1) the charging information

 provided    insufficient    notice of   the   first degree theft   charge, (   2) the prosecutor engaged in


 prosecutorial misconduct, and ( 3) the trial court erred in treating each of Castro' s convictions

 as separate offenses for sentencing purposes. The State concedes, and we agree, that the

 information was insufficient as to the first degree theft charge. Therefore, we reverse the


 resulting conviction and dismiss that charge without prejudice. We reject Castro' s other

 arguments and affirm his two UIBC convictions, but remand for resentencing.

                                                           FACTS


       On two       consecutive      days – December 31, 2011         and    January     1, 2012 – Castro wrote a


check for $5, 000 and deposited it into his TwinStar Credit Union checking account at an

automatic teller machine (ATM) in Vancouver. Each time, the $ 5, 000 was made immediately

available   to Castro,    and   he   withdrew   the full   amount   later   each   day   in   several   transactions   at.
45277 -4 -II



casinos and an ATM in La Center. Castro wrote the checks on a closed account, and they were

dishonored. As a result, TwinStar suffered a loss of $10, 024. 23.


        After police contacted Castro' s family about the checks, Castro came to the police

station. There he orally confessed to writing and depositing the two bad checks and then

withdrawing the funds. He then wrote and signed a confession in the presence of police.

        The State charged Castro with first degree theft and two UIBC counts. The proceedings


were stayed pending Castro' s participation in a pretrial diversion program. As part of the

program, Castro met with diversion counselor Sheila Vann. At Castro' s first meeting with Vann,

he discussed his crimes and signed paperwork confessing to and detailing those crimes.

        The State later moved to revoke the stay of proceedings when Castro failed to make

restitution payments required by the diversion program. The trial court granted the motion, and

the case went to trial. At trial, Vann testified as to her interactions with Castro and his signing of

the written confession. The jury found Castro guilty on all counts.

        At sentencing, Castro argued that all three convictions stemmed from the same criminal

conduct. The trial court disagreed and treated each crime as a separate offense for purposes of


calculating Castro' s offender score. The trial court ultimately sentenced Castro to 90 days
confinement.




        Castro appeals his convictions and sentence.

                                             ANALYSIS


A.      INSUFFICIENT INFORMATION


         Castro claims that the information provided insufficient notice of the first degree theft


charge because it did not explain that the State was treating all of Castro' s withdrawals as part of


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a common scheme or plan for the purpose of aggregating the total amount of money he

misappropriated. The State concedes this issue and recommends reversal of the theft conviction.


We agree with the parties.


             Former RCW 9A. 56. 030( 1)(       a) (   2009) 1 provides that first degree theft constitutes the theft

of   property    or services      exceeding $ 5, 000 in   value.   Under RCW 9A. 56. 010( 21)(      c),   the State can


aggregate a series of transactions that constitute theft in one count and use the aggregate value of


the transactions in determining the degree of theft. Aggregation is permitted only if the State can

show that the transactions are part of a criminal episode or a common scheme or plan. RCW

9A.56. 010( 21)(       c).   If the State aggregates value to reach a statutory value threshold, a common

scheme or plan is an essential element of a crime that must be included in the information. See

State   v.   Rivas, 168 Wn.       App.   882, 890 -91, 278 P. 3d 686 ( 2012), review denied, 176 Wn.2d 1007


 2013) (     applying the rule to second degree malicious mischief charge).

             Here, the State charged Castro with first degree theft. Because each check was for


exactly $5, 000, the State had to aggregate the amounts of both checks in order to meet the $ 5, 000

threshold for first degree theft. However, Count 1 ( first degree theft) of the information does not


mention or imply a common scheme or plan, and no fair reading of the information reveals that

necessary element. Therefore, we hold that the information was insufficient as to Count 1,




1•
     RCW 9A. 56. 030         was amended    in 2012 ( LAWS      OF   2012,   ch.   233, § 2) and again in 2013 ( LAws
OF    2013,    ch.   322, § 2).    These amendments do not affect the subsection cited.



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reverse Castro' s conviction for first degree theft, and dismiss that charge without prejudice.2

B.       PROSECUTORIAL MISCONDUCT


         Castro argues that the prosecutor engaged in prosecutorial misconduct, infringing his

constitutional right to a fair trial. He asserts that the prosecutor ( 1) argued facts not in evidence,


 2) misstated the law, and ( 3) inappropriately disparaged defense counsel. He also argues that

the cumulative effect of this misconduct requires reversal. We reject the first of these


misconduct claims because Castro waived it by failing to object below, and we reject the other

claims because the conduct at issue was not improper.


         To prevail on a claim of prosecutorial misconduct, a defendant must show that in the

context of the record and all of the circumstances of the trial, the prosecutor' s conduct was both

improper    and prejudicial.         State   v.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011).     We


examine the prosecutor' s conduct and whether prejudice resulted therefrom " by examining that

conduct in the full trial context, including the evidence presented, ` the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the instructions


given   to the   jury.' "   State    v.   Monday,    171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal


quotation marks omitted) (           quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006)).

Misconduct is prejudicial if there is a substantial likelihood it affected the verdict. State v.


Emery, 174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012).




2 The State asks for reversal and remand. But the case law establishes that dismissal without
prejudice is the correct remedy where the charging document provides insufficient notice of a
required element.       State   v.   Brown, 169 Wn.2d 195, 198, 234 P. 3d 212 ( 2010); Rivas, 168 Wn.

App. at 887.
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          However, a defendant waives any error by failing to object to the prosecutor' s improper

conduct, unless that conduct was so flagrant and ill-intentioned that an instruction could not have

cured   the resulting   prejudice.     Emery,   174 Wn.2d       at   760 -61.   In assessing whether a failure to

object should operate as a waiver, we " focus less on whether the prosecutor' s misconduct was

flagrant or ill intentioned and more on whether the resulting prejudice could have been cured."

Id. at 762. Therefore, to avoid waiver the defendant must show that no curative instruction

would    have   eliminated   the   prejudicial effect of   the   prosecutor' s conduct.     Id. at 760 -61.   This is


the case only where the misconduct " engendered an incurable feeling of prejudice in the mind of

the   jury."   Id. at 762.


          1.     Arguing Facts Not in Evidence

          Castro argues that the prosecutor committed misconduct by bolstering Vann' s credibility

during closing argument using facts not in evidence. Although we agree that this argument was

improper, Castro did not object to the prosecutor' s argument at trial. Because a curative


instruction would have prevented any prejudice, we hold that Castro waived his misconduct

claim.




          It is improper for a prosecutor to submit to the jury during closing argument facts not

admitted as evidence during the trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704-

05, 286 P. 3d673 ( 2012).          It is particularly improper to bolster a witness' s credibility at closing

argument with facts not in evidence. See State v. Jones, 144 Wn. App. 284, 293 -94, 183 P. 3d

307 ( 2008).


          Castro primarily argues that the prosecutor committed misconduct by arguing that Vann

should be believed because she would suffer professional repercussions for allowing an


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intoxicated client to sign a confession statement. One of the key issues at trial was whether

Castro had been intoxicated at the time he signed the confession in Vann' s presence. Vann

testified that Castro appeared to be sober and lucid when he signed the confession. But she did

not testify as to whether she could or would suffer professional repercussions for allowing an

intoxicated client to write and sign a confession, and the State produced no evidence of any such

repercussions.




        During closing argument, the prosecutor argued to the jury that the witness should be

believed because her employment status depended on it:

        Sheila Vann is - -   works   for the county. Her job is   on   the line.   She had someone
        write a confession; they better know what' s going on, they better understand it, or
        she can be in trouble if she has an intoxicated person or someone who doesn' t
        understand signing a written confession under penalty of perjury.

Report of Proceedings ( RP) at 254. When viewed in context, it appears the prosecutor was


asking the jury to consider the general possibility of professional repercussions. But even this

sort of generalized inferential argument constitutes improper bolstering. See Jones, 144 Wn.

App. at 293 -94.

         Castro also argues that the prosecutor committed misconduct by telling the jury Vann had

prior experience with intoxicated clients lying about their.intoxication. In arguing that Vann was

especially perceptive of intoxication due to her professional experience as a probation officer, the

prosecutor stated:



         She'   s a probation officer.   She probably had a lot of clients try to tell her they
         weren' t intoxicated, and she could tell if they were.




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45277 -4 -I1




RP at 262. Vann testified that she had been a probation officer and had dealt with intoxicated

clients, but she never mentioned any intoxicated clients telling her they weren' t intoxicated.

Once again, the prosecutor' s argument was not based on any evidence and was improper.

        However, Castro did not object below to either portion of the prosecutor' s argument. He

therefore waived his claim if a curative instruction would have eliminated any resulting

prejudice.     See   Emery,    174 Wn.2d      at   760 -61. Here, if Castro had objected the trial court could


have struck the prosecutor' s arguments from the record and instructed the jury to disregard any

arguments that the evidence did not support. This would have cured the prejudice. Therefore,

we hold that Castro waived his right to claim misconduct on the basis of these statements.

        2.       Misstating the Law

        Castro argues that the prosecutor committed misconduct by telling the jury it could not

find Castro not guilty because it felt bad for him. We disagree.

        Castro argues that the prosecutor misstated the law by failing to account for the

possibility of jury nullification. During closing argument, the prosecutor addressed jury
instruction 1,    which stated: "        You must not let your emotions overcome your rational thought


process. You must reach your decision based on the facts proved to you and on the law given to

you."   Clerk'   s   Papers   at   18.   The prosecutor noted that the defendant may be a sympathetic

figure and then told the jury:

         You' re     not   here to decide if he'      s a good    guy. You' re not here to decide if he' s a
         bad guy. You' re not here to decide based on sympathy for him.

         I   ask you - -    you to divorce yourself from emotion. I ask you to do it based on the
         facts    and   the law that       were provided     to      you. ...   You   cannot   say " not guilty"
         because you feel bad for him. That' s not in our system of justice, and that' s not in
         these instructions         you all agreed    to - - to follow.




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RP at 256 -57.


         We hold that the prosecutor' s argument was not improper. The prosecutor did not

mischaracterize the jury instruction, but merely applied it to the type of sympathies that might

reasonably arise among the jurors in this case.

         Castro claims that the statement misstated the law because a jury can acquit for any

reason. It is true that juries possess the power to acquit a defendant despite lacking any

reasonable doubt as to the defendant' s guilt. This is commonly known as jury nullification. See

generally Andrew D. Leipold,             Rethinking Jury Nullification,         82 VA. L. REV. 253 ( 1996). But


that power does not stem from any legal right.3 State v. Brown, 130 Wn. App. 767, 771, 124

P. 3d 663 ( 2005).       In fact, juries have a duty to find the defendant guilty if they determine that the

State has      proved   its   case   beyond   a reasonable   doubt. Id.   at   771.   Therefore, a jury can engage in

nullification but has no legal right to do so. The prosecutor in this case was doing little more

than reminding the jury of their duty not to nullify. We hold that this argument was not

improper.


          3.     Disparaging Defense Counsel

          Castro argues that the prosecutor committed misconduct by disparaging defense counsel

during closing argument. We disagree.




3 The power stems from courts' unwillingness to inquire into the content of jurors' deliberations.
State v. Elmore, 155 Wn. 2d 758, 771, 123 P. 3d 72 ( 2005). Because a court will not generally
investigate jurors' reasons for reaching a particular verdict, jurors can agree to acquit on virtually
any basis without court knowledge. See id. at 773 -74. Jury nullification therefore is properly
characterized as a byproduct of a court' s limited ability to enforce jurors' legal duties, not as a
legal   right.
45277 -4 -II




             Disparaging the role of defense counsel during closing argument in order to make it

appear that only the prosecutor is serving the cause ofjustice is improper prosecutorial conduct.

State   v.   Gonzales, 111 Wn.       App.   276, 282 -84, 45 P. 3d 205 ( 2002).        A closing argument may not

 draw the cloak of righteousness around the prosecutor in his personal status as government


attorney      and   impugn[] the   integrity     of   defense   counsel."   Id. at 283 ( quoting United States v.

Frascone, 747 F. 2d 953, 957 -58 ( 5th Cir. 1984)).                   The impropriety is rooted both in the

promotion of the prosecutor as the champion of justice and the disparagement of defense counsel


as an obstacle to justice. See Gonzales, 111 Wn. App. at 283 -84.

             Castro points to one of the prosecutor' s statements during closing argument as

improperly disparaging. After summarizing the State' s evidence of Castro' s guilt, the prosecutor

said:



             Now, Defense        is going to          get   up here,    they' re going to try to point out
             insufficiencies or problems with the State' s case, and that' s what they do. That' s -
              that' s his job. That' s what he' s here for. But I want you to remember, the State
             doesn' t have to prove the case beyond all doubt; it' s beyond a reasonable doubt.


                Defense is going to get into semantics. They' re going to try to get you to chase
             them down the      rabbit   hole. I would ask that you remain focused on the fact that
             that bank is   out $ 10, 000. 00,   and [ Castro] is responsible for it.


RP at 251 -52.


             The prosecutor did not attempt to convey the impression that the defense attorney was

impeding the cause ofjustice. The prosecutor noted that it is the defense attorney' s job to attack

the State' s case. But unlike the situation addressed in Gonzales, the prosecutor was not


attempting to impugn the defense counsel' s integrity. When viewed in context, the argument

instead appears to have been an anticipatory framing of the defense argument. The prosecutor



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implored the jury to remain focused on the State' s overwhelming evidence instead of the

defendant' s argument. We hold that the prosecutor' s argument was not improper.

        4.     Cumulative Error


        Finally, Castro argues that even if none of the aforementioned conduct is sufficient to

sustain his prosecutorial misconduct claim, the cumulative impact of the conduct deprived him of

a fair trial. However, as stated above, the prosecutor engaged in misconduct only in arguing two

facts not in evidence. Therefore, we hold that there was no " cumulative" error.

C.      OFFENDER SCORE


        Castro argues that the trial court abused its discretion by treating his three convictions as

separate offenses for purposes of calculating his offender score. Because we reverse the theft

conviction, the only issue is whether the two UIBC offenses constitute the same criminal

conduct. We hold that they do not because the crimes involved distinct criminal intent and were

committed at different times.


        When a defendant is convicted of multiple crimes, each is treated like a prior conviction


for purposes of calculating the defendant' s offender score unless the crimes constitute the same

criminal conduct.     RCW 9. 94A. 589( 1)(    a).    A sentencing court must find that the crimes

constitute the same criminal conduct if the crimes " require the same criminal intent, are

committed at    the   same   time   and place, and   involve the   same victim."   Id. If the defendant fails to


prove any of those three elements, the crimes should not be considered the same criminal

conduct. State v. Aldana Graciano, 176 Wn.2d 531, 540, 295 P. 3d 219 ( 2013).

         If the sentencing court finds that multiple crimes do not constitute the same criminal

conduct, we will not disturb that finding unless the sentencing court abused its discretion or


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misapplied     the law. Id.   at   536. Moreover,' "[ t]he   statute is generally construed narrowly to

disallow   most claims     that    multiple offenses constitute   the   same criminal act."         Id. at 540 ( quoting

State v. Porter, 133 Wn.2d 177, 181, 942 P. 2d 974 ( 1997)).

         Castro argues that he had the same criminal intent because both of the UIBC acts were in

furtherance of a common goal. He points to State v. Williams, 135 Wn.2d 365, 369, 957 P. 2d


216 ( 1998), in which we held that where multiple crimes require the same mens rea and are


committed      in   an " uninterrupted sequence,"     each may fall within the same overarching criminal

intent. However, the " uninterrupted sequence" discussed in Williams referred to a transaction


comprising     immediately     successive acts without significant        intervening       time   or conduct.   135


Wn.2d at 367 -68. In contrast, Castro' s two acts of writing a bad check were separated by an

entire day. The criminal acts were not immediately successive, and Castro had to independently

decide to continue his scheme after committing the first one. Because he chose to do so, the trial

court appropriately assigned each a different criminal intent.

         The offenses also did not occur at the same time. Castro cites Williams for the


proposition that they need not have occurred at the exact same time and place. Although the

court in Williams focused on the intent requirement, it held that two offenses that were not


temporally simultaneous but were committed in immediate succession in the same location

constituted    the   same criminal conduct.      135 Wn.2d at 367 -69. But Castro, unlike the defendant


in Williams, did not commit his offenses in immediate succession. In effect, Castro asks us to

extend   the   holding   in Williams    and allow a   two -day   period   to   constitute   the " same time."    We


decline because this would stretch the bounds of the statutory language and substantially broaden

the range of offenses that may be considered part of the same criminal conduct.


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        Castro asserts, and the State concedes, that the UIBC crimes involved the same victim —


TwinStar. But because Castro cannot establish that the offenses involved the same criminal


intent and occurred at the same time, we hold that the trial court did not abuse its discretion in


treating each crime as a separate offense.

        We reverse Castro' s first degree theft conviction and dismiss the first degree theft charge


without prejudice, affirm Castro' s two UIBC convictions, and remand for resentencing.

        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:




      4/wWi
SUTTON, ,J.




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