                                                                                 FILED 

                                                                              June 25, 2015 

                                                                    In the Office of the Clerk of Court 

                                                                   WA State Court of Appeals, Division III 





               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION THREE
I    STATE OF WASHINGTON, 	                       )         No. 32168-1-111
j	                                                )
1                        Respondent,              )
                                                  )
                  v. 	                            )
                                                  )
     MAXIMINO CASTILLO-MURCIA,                    )         PUBLISHED OPINION
                                                  )
                         Appellant.               )

           BROWN, J. -   Maximino Castillo-Murcia appeals his convictions for luring,

     communicating with a minor for immoral purposes, and indecent exposure. Mr. Castillo-

     Murcia contends (1) insufficient evidence supports the "unknown" element of RCW

     9A.40.090(1)(c) to establish luring and (2) his jury waiver is invalid. We disagree with

     both contentions and affirm.

                                              FACTS

           On April 17, 2013, 13-year-old J.M.A.-H. was playing basketball in a Kennewick,

     Washington park with M.S. and H.A. Mr. Castillo-Murcia, an ice cream truck operator,

     drove to the park. J.M.A.-H. recognized Mr. Castillo-Murcia as the ice cream man.

     J.M.A.-H. testified she had spoken with Mr. Castillo-Murcia on two prior occaSions, but

     beyond exchanging greetings, she knew nothing about him. On one of those
I    No. 32168-1-111
     State v. Castillo-Murcia

I
I
     occasions, Mr. Castillo-Murcia gave J.M.A.-H. a free ice cream. Mr. Castillo-Murcia

     testified his interactions with J.M.A.-H. were more detailed and numerous. 


I
          J.M.A.-H. and H.A. approached the truck while M.S. left to get money. After Mr.

     Castillo-Murcia gave J.M.A.-H. and H.A. free ice cream, H.A. left, leaving J.M.A.-H.

     alone with Mr. Castillo-Murcia. Mr. Castillo-Murcia then told J.M.A.-H. she was pretty,

     had a nice body, and he wished she was his son's girlfriend. He asked to see her

     phone and tried to hold her hand when she handed it to him. He asked her to turn

     around several times before inviting her into his truck. He offered her hot Cheetos or

     anything she wanted if she got into the truck, but, despite her refusal to get in the truck,

     he gave her the Cheetos. When H.A. returned, Mr. Castillo-Murcia told J.M.A.-H. to ask

     H.A. to leave, but J.M.A.-H. refused. At this point, J.M.A.-H. saw Mr. Castillo-Murcia

     masturbating through a window shelf. J.M.A.-H. threw her ice cream and Cheetos at

     Mr. Castillo-Murcia, grabbed H.A., and ran away.

            The following day, J.M.A.-H. reported the incident to her school's security officer.

     When two police officers picked J.M.A.-H. up to drive her around the area so she could

     identify the man, she identified Mr. Castillo-Murcia.

            Mr. Castillo-Murcia signed a jury waiver. Despite the fact a Spanish interpreter

     was present during pretrial proceedings and was requested for trial, the court

     questioned Mr. Castillo-Murcia about his waiver without an interpreter present. The

     court convicted Mr. Castillo-Murcia of luring, communication with a minor for immoral

     purposes, and indecent exposure. Mr. Castillo-Murcia appealed.



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No. 32168-1-111
State v. Castillo-Murcia


                                         ANALYSIS

               A. Whether Mr. Castillo-Murcia was "unknown" to J.M.A.-H.

       The issue is whether sufficient evidence supports Mr. Castillo-Murcia's luring

conviction. He contends the State failed to prove he was "unknown" to J.M.A.-H. as

required by RCW 9A.40.090(1)(c). Mr. Castillo-Murcia assigned error to findings offact

5, 6, 9, and 10 but does not separately argue them; the facts are included in our facts

recitation because each is supported by evidence in our record.

       Evidence is sufficient to support a guilty finding if '''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.'" State v. Green, 94 Wn.2d

216,221,616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443

U.S. 307,319,99 S. Ct. 2781,61 L. Ed. 2d 560 (1979». An evidence sufficiency

challenge "admits the truth of the State's evidence and all inferences that reasonably

can be drawn therefrom." State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992).

We defer to the fact finder's assessment of conflicting testimony, witness credibility, and

evidence weight. State v. Carver, 113 Wn.2d 591,604,781 P.2d 1308,789 P.2d 306

(1989).

      A person commits the crime of luring if he attempts to lure a minor into a motor

vehicle, does not have the consent of the minor's parent, and is unknown to the minor.

RCW 9A.40.090(1). The sole element at issue in this appeal is whether Mr. Castillo-

Murcia was "unknown" to J.M.A.-H. Neither RCW 9A.40.090 nor any Washington cases



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State v. Castillo-Murcia


discuss the meaning of "unknown." Thus, we must interpret what the legislature meant

by using the word "unknown."

       "Questions of statutory interpretation are questions of law that are reviewed de

novo." Bostain v. Food Express, Inc., 159 Wn.2d 700, 708,153 P.3d 846 (2007).

Statutory interpretation is used "to determine and give effect to the intent of the

legislature." State v. Reeves, 184 Wn. App. 154, 158,336 P.3d 105 (2014) (quoting

State v. Evans, 177 Wn.2d 186, 192,298 P.3d 724 (2013». To determine the intent of

the legislature, appellate courts "first look to the plain language of the statute

considering the text of the provision in question, the context of the statute, and the

statutory scheme as a whole." Id. Undefined terms are given "their plain and ordinary

meaning unless a contrary legislative intent is indicated." Id. Dictionary definitions help

when dealing with nontechnical statutory terms. State v. Kintz, 169 Wn.2d 537, 547,

238 P.3d 470 (2010).

       A statute is ambiguous if its plain language is susceptible to more than one

reasonable interpretation. Reeves, 184 Wn. App. at 158. In resolving the ambiguity,

appellate courts "resort[ ] to other indicia of legislative intent, including principles of

statutory construction, legislative history, and relevant case law." Id. If legislative intent

still cannot be determined, we must interpret the ambiguous statute in favor of the

defendant pursuant to the rule of lenity. Id. at 158-59.

       "Unknown" is defined as "not known: such as strange, unfamiliar." WEBSTER'S

THIRD NEW INTERNATIONAL DICTIONARY 2502 (1993). This definition seemingly supports



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State v. Castillo-Murcia


Mr. Castillo-Murcia's argument that he is not unknown to J.M.A.-H. because he is

familiar to her. But another definition of "unknown" is "lacking an established or normal

status[;] having no formal recognition." Id. This definition supports the State's argument

that Mr. Castillo-Murcia was unknown to J.M.A.-H. because she merely recognized him

as the "ice cream man" and had two limited interactions with him. Without more, RCW

9A.40.090 could be considered ambiguous.

      However, when we look to the statutory context of RCW 9A.40.090, it is clear the

legislature intended "unknown" to be interpreted in the manner posited by the State.

RCW 9A.04.020 states:

   (1) The general purposes of the provisions governing the definition of 

       offenses are: 

   (a) To forbid and prevent conduct that inflicts or threatens substantial harm to 

       individual or public interests; 

   (b) To safeguard conduct that is without culpability from condemnation as 

       criminal; 

   (c) To give fair warning of the nature of the conduct declared to constitute an 

       offense; 


   (2) The provisions of this title shall be construed according to the fair import of 

       their terms but when the language is susceptible of differing constructions 

       it shall be interpreted to further the general purposes stated in this title. 


      Ultimately, the luring statute seeks to prevent harm to vulnerable minors from

those people with whom the minors have no relationship. If RCW 9A.40.090 is read as

Mr. Castillo-Murcia suggests, the statute does not further the general purposes of

chapter 9A RCyv. RCW 9A.40.090 is clearly aimed at culpable conduct similar to Mr.

Castillo-Murcia's, which can and did cause substantial harm to J.M.A.-H. The purposes




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No. 32168-1-111
State v. Castillo-Murcia


of the statute are not furthered by excepting a class of individuals from the luring statute

who cultivated a brief superficial relationship with a minor.

       Moreover, even if the meaning of "unknown" was ambiguous, the State's

interpretation is further supported when looking at principles of statutory construction.

First, "[w]here the legislature uses certain statutory language in one statute and different

language in another, a difference in legislative intent is evidenced." In re Forfeiture of

One 1970 Chevel/e, 166 Wn.2d 834, 842, 215 P.3d 166 (2009). Thus, when the

legislature uses different words, appellate courts "deem the legislature to have intended

different meanings." Id. The legislature used the word "unknown"; it did not use the

word "stranger," which is defined in RCW 9.94A.030(50) as someone the victim did not

know 24 hours before the offense. That the legislature did not use the word "stranger"

lends further credence to the State's position. Moreover, it would be absurd to draw the

line at saying a person is known to a minor merely because they have said "hello"

during a business transaction. See State v. McDonald, 183 Wn. App. 272, 278, 333

P.3d 451 (2014) (appellate courts "must avoid constructions that yield unlikely, strange

or absurd consequences") (quoting State v. Contreras, 747,880 P.2d 1000 (1994».

      Despite this, Mr. Castillo-Murcia relies on four cases to argue "unknown" means

a stranger or someone the victim has not seen before. See State v. Homan, 181 Wn.2d

102,330 P.3d 182 (2014); State v. McReynolds, 142 Wn. App. 941,176 P.3d 616

(2008); State v. McSorley, 128 Wn. App. 598, 116 P.3d 431 (2005); State v. Dana, 84

Wn. App. 166,926 P.2d 344 (1996). But those cases are all factually dissimilar as no



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State v. Castillo-Murcia


factual dispute existed over whether the defendants were "unknown" to the victims.

Homan, 181 Wn.2d at 107; McReynolds, 142 Wn. App. at 944,948; McSorley, 128 Wn.

App. at 433-39; Dana, 84 Wn. App. at 169-70, 174, 177-78. Thus, no need arose to

discuss what the legislature intended by using "unknown."

       When "unknown" is understood to mean "lacking an established or normal

status," Mr. Castillo-Murcia's sufficiency of the evidence challenge fails. Admitting the

truth of the State's evidence shows the following: (1) J.M.A.-H. recognized Mr. Castillo-

Murcia only as the ice cream man who drove around her house, (2) on two prior

occasions, J.M.A.-H. had talked with Mr. Castillo-Murcia but this conversation was

limited to him asking her where she lived and giving her a free ice cream, (3) J.M.A.-H.

exchanged greetings with Mr. Castillo-Murcia on the day in question, and (4) . .I.M.A.-H.

recognized Mr. Castillo-Murcia two days after the incident. As the trial court noted,

J.M.A.-H. solely knew Mr. Castillo-Murcia as the ice cream man and exchanged

pleasantries with him; she did not know any other information about him. Mr. Castillo-

Murcia was "unknown" to J.M.A.-H. Sufficient evidence supports his luring conviction.

                 B. Whether Mr. Castillo-Murcia's jury waiver was valid.

       The issue is whether Mr. Castillo-Murcia validly waived his right to a jury trial.

Mr. Castillo-Murcia contends his waiver was not knowing, intelligent, and voluntary

because (1) no interpreter was present during his oral waiver, (2) his signed waiver was

in English, and (3) his written waiver was signed shortly after the trial court rejected

defense counsel's motion to withdraw.



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No. 32168-1-111
State v. Castillo-Murcia


       Criminal defendants have the right to a jury trial under both the Washington and

federal constitution. State v. Ramirez-Dominguez, 140 Wn. App. 233, 239, 165 P.3d

391 (2007). Because waiver of the right to a jury trial is a constitutional right, our review

is de novo. Id. A waiver is valid if the defendant acted knowingly, intelligently, and

voluntarily. State v. Pierce, 134 Wn. App. 763,771,142 P.3d 610 (2006). Appellate

courts do not presume the defendant waived his right to a jury trial unless there is "an

adequate record showing that the waiver occurred." Id. Because Washington only

requires a personal expression of waiver from the defendant, the right to a jury trial is

easier to waive than other constitutional rights. Id. at 771-72.

       The State must prove the waiver was valid. Ramirez-Dominguez, 140 Wn. App.

at 240. We consider several factors in deciding whether a defendant validly waived a

jury trial: (1) whether the trial court informed the defendant of the right to a jury trial, (2)

whether the defendant signed a written waiver, and (3) whether defense counsel

affirmatively stated the defendant waived the right. Pierce, 134 Wn. App. at 771. As to

the first factor, a trial court is not required to conduct an extended colloquy with the

defendant. Id. As to the second factor, a written waiver "is strong evidence that the

defendant validly waived the jury trial right." Id. The defendant's experience and

capabilities are also taken into consideration. Ramirez-Dominguez, 140 Wn. App. at

240.

       Mr. Castillo-Murcia argues an interpreter needed to be present at the colloquy

where he waived his jury trial right because there is nothing in the record to gauge his



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No. 32168-1-111
State v. Castillo-Murcia


comprehension of the English language; to support this, he points to the presence of an

interpreter at all pretrial proceedings and trial. Contrary to Mr. Castillo-Murcia's

assertion, the record before us indicates he had an adequate grasp of the English

language. During the colloquy, he unequivocally answered "yes" to each of the court's

questions. He confirmed he wanted to waive his rightl he wanted to have his case tried

to a judge, and he understood one person instead of a unanimous 12 would decide his

case. While on the witness stand, Mr. Castillo-Murcia had to be asked to wait for the

interpreter to translate before he answered counsel's questions. At sentencing, without

the assistance of an interpreter, Mr. Castillo-Murcia made an extended speech in

English where he expressed how the trial affected his family, maintained his innocence,

and explained why he thought his trial was unfair. Again without the use of an

interpreter, he responded to the court during sentencing. His English language skills,

coupled with his written waiver, strongly evidences waiver.

       Regarding Mr. Castillo-Murcia's argument the trial court was required to

extensively discuss his waiver and ask whether defense counsel explained the waiver to

him, Washington law does not require an extended waiver discussion, instead only

requiring the defendant personally express his desire to waive his right to a jury trial.

The court told him of his right to a jury trial and the principal effect of giving up his right.

And inquiring whether defense counsel explained the right is but one factor we consider

in determining waiver validity; failure to so inquire is not fatal. Mr. Castillo-Murcia's

suggests the timing of his waiver is suspicious considering his lawyer's effort to



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No. 32168-1-111
State v. Castillo-Murcia


withdraw. A lawyer is ethically required to represent a client with diligence. Rules of

Prof'1 Conduct R. 1.3 cmt. 4 (2014). Valid reasons exist for not wanting a jury trial.

Nothing in the record suggests his lawyer acted without diligence or provided ineffective

assistance of counsel. Considering all, we conclude his waiver was valid.

      Affirmed.



                                                   Brown, J.

WE CONCUR:



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