State Of Washington, V. Jim Delarosa Castilla Whitehawk ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
May 25, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54141-6-II
Respondent,
v. UNPUBLISHED OPINION
JIMMY DELA CASTILLA-WHITEHAWK,
Appellant.
MAXA, J. – Jimmy Castilla-Whitehawk appeals his convictions for unlawful possession
of a controlled substance (methamphetamine) with intent to deliver, unlawful possession of a
controlled substance (heroin) with intent to deliver, and unlawful possession of a controlled
substance (alprazolam). The convictions arose from information that a confidential informant
provided to law enforcement regarding a drug transaction Castilla-Whitehawk intended to have
with an acquaintance in a store parking lot.
After receiving the information, law enforcement located two cars in the store parking lot
and detained Castilla-Whitehawk and the other individual. Castilla-Whitehawk admitted that
officers would find drugs in the car he was in. The officers then obtained a search warrant for
the car and discovered various controlled substances.
We hold that the trial court did not err by (1) denying Castilla-Whitehawk’s motion to
suppress evidence based on a lack of probable cause for the issuance of a search warrant because
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the search warrant affidavit established the confidential informant’s basis of knowledge, (2)
denying Castilla-Whitehawk’s motion to suppress statements he made to law enforcement
because the informant’s information provided a basis for his detention, (3) admitting evidence
that an eight-year-old child was present in the car because the probative value of the evidence
outweighed its prejudicial effect, and (4) instructing the jury on accomplice liability because the
evidence supported the instruction. However, we hold that Castilla-Whitehawk’s unlawful
possession of a controlled substance conviction must be vacated under State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021).
Accordingly, we affirm Castilla-Whitehawk’s two convictions of unlawful possession of
a controlled substance with intent to deliver, but we reverse his unlawful possession of a
controlled substance conviction and remand for the trial court to vacate that conviction and for
resentencing.
FACTS
Search Warrant
On October 8, 2018, Sergeant Chris Packard of the Thurston County Sheriff’s
Department detained and handcuffed Castilla-Whitehawk and Timothy Moreno in the parking lot
of a Ross Dress for Less store. Packard encountered Castilla-Whitehawk and Moreno because a
confidential informant (referred to as CS 959) informed him that Moreno planned to purchase
heroin from Castilla-Whitehawk at the Ross store. Packard immediately applied for a search
warrant for the vehicle Castilla-Whitehawk was in and for both men. A superior court judge
took a sworn, telephonic statement from Packard. A transcript of the statement is titled,
“Complaint for Search Warrant.”
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In the statement, Packard discussed in detail the fact that he has worked with CS 959 in
the past and that CS 959 had provided credible and reliable information in several prior cases.
Packard stated that CS 959 had provided information regarding Castilla-Whitehawk and Moreno.
Packard told the judge the following:
1. Packard knew from previous tips and investigations that both Castilla-Whitehawk and
Moreno were drug dealers.
2. That afternoon, CS 959 texted Packard and told him that he/she was driving Moreno
to the Ross store to meet with Castilla-Whitehawk in order to buy a few ounces of heroin.
3. CS 959 said that his/her car was a red Honda and Castilla-Whitehawk would be in a
silver Mini Cooper. CS 959 later texted Packard from inside the store, stating that he/she would
not be coming out.
4. Packard arrived at the Ross store and observed the two cars as described. A person
later identified as Moreno was sitting in the driver’s seat of the Mini Cooper and Castilla-
Whitehawk was sitting in the passenger seat.
5. As Packard approached the car, there was an obvious odor of marijuana coming from
the car and smoke was coming out of the sides of the car.
6. Packard removed both Castilla-Whitehawk and Moreno from the car and placed them
in handcuffs. A young child also was in the car.
7. Castilla-Whitehawk was holding a fanny pack, and another officer, Officer Brett
Curtright, could see some type of cellophane wrapper. Both Packard and Curtright knew from
experience that cellophane commonly is used to store narcotics.
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No. 54141-6-II
8. After Packard gave Castilla-Whitehawk Miranda1 warnings, Castilla-Whitehawk
informed him that there was marijuana and “M30s” in the car. Packard knew from experience
that M30s referred to prescription Oxycodone. Clerk’s Papers (CP) at 26.
9. The marijuana that Castilla-Whitehawk stated would be found in the car was evidence
of the crimes of possession of marijuana in a public place and reckless endangerment by
smoking marijuana with a child in the car.
The judge found probable cause and authorized the search warrant.
Search of the Mini Cooper and Castilla-Whitehawk
Officers searched the Mini Cooper. Under the front passenger seat – where Castilla-
Whitehawk had been seated – officers found a black bag with 86.2 grams of methamphetamine,
34 grams of heroin, and 34 fully and 19 partially intact alprazolam pills. Under the driver’s side
seat – where Moreno had been seated – police found a zippered blue pouch bag with 57.4 grams
of methamphetamine, eight individually packaged bags of heroin in the total amount of 34
grams, a knife, and a digital scale with heroin and methamphetamine residue on it.
Officers searched both men. In the fanny pack that Castilla-Whitehawk had been
wearing officers found $1,620 in cash and 17 Oxycodone pills that later were revealed to contain
heroin. Police also seized 29 grams of methamphetamine from Castilla-Whitehawk during his
transport to jail.
The State charged Castilla-Whitehawk with four counts of unlawful possession of a
controlled substance (methamphetamine, heroin, Oxycodone, alprazolam) with intent to deliver.
The State later dismissed the count involving Oxycodone.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Motion to Suppress
Castilla-Whitehawk moved to suppress the evidence seized from the Mini Cooper and
from his person. Castilla-Whitehawk argued that probable cause did not exist to issue a search
warrant based on CS 959’s information because the search warrant affidavit failed to specify CS
959’s basis of knowledge.
Castilla-Whitehawk also moved to suppress the statements he made to Packard after
being removed from his car. In that motion, Castilla-Whitehawk argued that he had been
unlawfully arrested. Therefore, he claimed that the statement he made regarding controlled
substances in the Mini Cooper should not have been considered for probable cause to issue the
search warrant.
The trial court denied Castilla-Whitehawk’s suppression motions and entered findings of
fact and conclusions of law. The court concluded that probable cause supported the search
warrant. The court also concluded that the informant was credible and had a basis of knowledge
for the information provided. Finally, the court concluded that Castilla-Whitehawk had been
properly detained.
Motion in Limine
Castilla-Whitehawk moved to exclude any evidence that there was a child in his car at the
time of his arrest based on relevance and prejudice. The State contended that the evidence was
necessary to prove the element of possession because Castilla-Whitehawk potentially could
argue that the drugs belonged to the other person in the car. The State needed to show that the
other person in the car was a child who would be unlikely to be in possession of drugs.
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The trial court allowed admission of limited evidence regarding the child. The court did
give a limiting instruction, informing the jury that they could consider the evidence only on the
issue of possession.
Trial and Conviction
Packard testified that the quantity of drugs found in Castilla-Whitehawk’s car, coupled
with the money and plastic baggies found on his person, might be indicative of a low scale
dealer. He stated that the digital scale found under Moreno’s seat typically was used by both
purchasers and dealers to weigh their drugs. Packard opined that the evidence did not indicate
that Castilla-Whitehawk and Moreno were mere drug users.
Deputy J.D. Strup also testified that the 86.2 grams of methamphetamine found under
Castilla-Whitehawk’s seat was not a personal use amount. And Strup stated that the amount of
heroin and methamphetamine found in Castilla-Whitehawk’s vehicle was an amount you would
not typically see on a street level user.
Following the close of evidence, Castilla-Whitehawk objected to referencing accomplice
liability in the jury instructions because the State failed to charge him as an accomplice or as a
principal. The court denied Castilla-Whitehawk’s objection. The to-convict jury instructions for
all three charges stated that the jury had to find that Castilla-Whitehawk or an accomplice
possessed heroin, methamphetamine, and alprazolam with the intent to deliver.
The jury convicted Castilla-Whitehawk of two counts of unlawful possession with intent
to deliver (methamphetamine, heroin) and one count of possession of a controlled substance
(alprazolam). The trial court determined that his offender score for each conviction was 2 based
on the current convictions, which resulted in a standard range sentence for the two possession
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No. 54141-6-II
with intent to deliver convictions of 12+ to 20 months. Castilla-Whitehawk was sentenced to
total confinement of 14 months.
Castilla-Whitehawk appeals the trial court’s order denying his suppression motion and
his convictions.
ANALYSIS
A. VALIDITY OF SEARCH WARRANT
Castilla-Whitehawk argues that probable cause did not support issuance of the search
warrant for the Mini Cooper and his person. Specifically, he argues that Packard’s statement to
the judge failed to show CS 959’s basis of knowledge that he was going to commit a crime. We
disagree.
1. Legal Principles
A warrant can be issued only if supported by probable cause. State v. Lyons, 174 Wn.2d
354, 359, 275 P.3d 314 (2012). “Probable cause exists when the affidavit in support of the
search warrant ‘sets forth facts and circumstances sufficient to establish a reasonable inference
that the defendant is probably involved in criminal activity and that evidence of the crime may be
found at a certain location.’” State v. Ollivier, 178 Wn.2d 813, 846-47, 312 P.3d 1 (2013)
(quoting State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003)).
Our analysis of probable cause is limited to the four corners of the probable cause
affidavit. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). Affidavits in support of a
search warrant are examined in a commonsense instead of hypertechnical manner, and doubts are
resolved in favor of the warrant. Ollivier, 178 Wn 2d at 847.
Probable cause may be based on a confidential informant’s tip. State v. Chenoweth, 160
Wn.2d 454, 475, 158 P.3d 595 (2007). When determining whether probable cause existed to
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No. 54141-6-II
issue a search warrant based on an informant’s information, we apply the Aguilar-Spinelli2 two-
pronged test. Ollivier, 178 Wn.2d at 849-50. This test examines whether the search warrant
affidavit establishes the (1) veracity or credibility of the informant and (2) the informant’s basis
of knowledge. Id. The basis of knowledge prong “may be satisfied by a showing that the
informant had personal knowledge of the facts provided to the affiant.” Id. at 850.
The Supreme Court appears to have adopted two different standards of review for
probable cause determinations. In Ollivier, the court stated a de novo standard of review of the
issuing magistrate’s determination of probable cause. 178 Wn.2d at 848. More recently, in State
v. Scherf, the court applied a more deferential abuse of discretion standard of review. 192 Wn.2d
350, 363, 429 P.3d 776 (2018).
2. Analysis
Castilla-Whitehawk challenges only the basis of knowledge prong of the Aguilar-Spinelli
test. Specifically, Castilla-Whitehawk claims that Packard failed to establish that CS 959’s basis
of knowledge that Castilla-Whitehawk and Moreno intended to engage in a drug transaction in
the Ross store parking lot. We disagree.
Castilla-Whitehawk argues that CS 959 provided only innocuous information – that he
and Moreno planned to meet in the Ross store parking lot. He emphasizes that such a meeting is
not inconsistent with legal activity.
However, CS 959 provided more than the information that Castilla-Whitehawk and
Moreno planned to meet. He/she stated that Moreno planned to purchase heroin from Castilla-
Whitehawk. The judge issuing the warrant reasonably could infer that CS 959 had firsthand
2
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), abrogated by Illinois v.
Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Spinelli v. United States, 393 U.S.
410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), abrogated by Gates, 462 U.S. 213.
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No. 54141-6-II
knowledge of Moreno’s intended drug transaction with Castilla-Whitehawk because he/she
personally drove Moreno to the Ross store in her car. This information satisfied the basis of
knowledge prong and provided probable cause to search Castilla-Whitehawk’s vehicle for
evidence of criminal drug activity.
We hold that under either standard of review, the trial court did not err in denying
Castilla-Whitehawk’s motion to suppress the evidence seized under the search warrant.
B. SUPPRESSION OF STATEMENT MADE TO LAW ENFORCEMENT
Castilla-Whitehawk argues that the trial court erred in denying his motion to suppress
statements that he made to law enforcement following his arrest. However, his argument is
limited to a single sentence – that his arrest was unlawful because it was based on CS 959’s
innocuous information. The State argues that the detention of Castilla-Whitehawk was a valid
investigative detention. We agree with the State.
As discussed above, CS 959’s information was more than innocuous. There was an
inference that he/she had personal knowledge that Castilla-Whitehawk and Moreno planned to
conduct a drug transaction. Castilla-Whitehawk does not explain why this information did not
give officers probable cause to at least conduct an investigative detention, which is allowed if an
officer has a well-founded suspicion that the defendant “is or is about to be engaged in criminal
activity.” State v. Fuentes, 183 Wn.2d 149, 158, 352 P.3d 152 (2015). Therefore, we reject
Castilla-Whitehawk’s argument.
C. ADMISSION OF PREJUDICIAL EVIDENCE
Castilla-Whitehawk challenges the admission of evidence that there was an eight-year-
old child in the Mini Cooper at the time he was meeting with Moreno, arguing it was improperly
admitted as evidence of a prior bad act in violation of ER 404(b). We disagree.
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1. ER 404(b) - Other Acts Evidence
ER 404(b) prohibits a court from admitting “[e]vidence of other crimes, wrongs, or acts .
. . to prove the character of a person in order to show action in conformity therewith.” But such
evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). This list
is not exclusive. State v. Baker, 162 Wn. App. 468, 473, 259 P.3d 270 (2011). Another
recognized exception is for “evidence that is relevant and necessary to prove an essential element
of the crime charged.” State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980).
A court may admit evidence of “other crimes, wrongs, or acts” under ER 404(b) for other
purposes, as long as the court (1) finds by a preponderance of evidence that the act occurred, (2)
identifies the purpose for introducing the evidence, (3) determines that the evidence is relevant to
prove the crime charged, and (4) weighs the probative value of the evidence against the
prejudicial effect. State v. Gunderson, 181 Wn.2d 916, 923, 337 P.3d 1090 (2014).
The general rule is that the trial court’s prior bad act analysis under ER 404(b) must be
conducted on the record. Id. However, here Castilla-Whitehawk did not argue in the trial court
that the evidence was inadmissible under ER 404(b). Therefore, the trial court’s failure to
expressly address ER 404(b) is excused. In any event, the court did provide an analysis on the
record that addressed the necessary steps in determining admissibility.
We review the trial court’s decision to admit or exclude evidence under ER 404(b) for an
abuse of discretion. Id. at 922. An abuse of discretion is present if the trial court’s ruling is
manifestly unreasonable, based on untenable grounds, or based on untenable reasons. Id.
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2. Analysis
The first step for determining admissibility under ER 404(b) is a finding by a
preponderance of the evidence that the conduct occurred. Id. at 923. Castilla-Whitehawk does
not dispute that the child was in the Mini Cooper when he was detained.
The second step for determining admissibility under ER 404(b) is to identify the purpose
for which the evidence is being introduced and the third step is for the trial court to determine
whether the evidence is relevant to prove an element of the crime charged. Id. The State offered
the evidence to prove the element of possession. The State was concerned that if there was no
evidence regarding the age of the third person in the car, a jury might believe that the drugs
belonged to the third person. The court concluded that the evidence was relevant; its oral ruling
emphasized that this evidence was probative as to who had access to the drugs in the vehicle.
The final step in the analysis is to weigh the probative value of the evidence against the
prejudicial effect. Id. Here, the trial court weighed the probative nature against the potential for
prejudice, which is illustrated by the discussion on the record. In addition, the record indicates
the concerns of prejudice were an instrumental reason for the ruling to give a limiting instruction.
On appeal, the question is whether the trial court abused its discretion regarding its
rulings on relevance and whether the probative value of the evidence outweighed the prejudicial
effect. See id. at 922. We conclude that Castilla-Whitehawk has not met his burden of proving
that the trial court abused its discretion by admitting evidence that there was a child in his back
seat at the time of his drug transaction with Moreno. Such evidence was relevant and necessary
to prove an essential element of the crimes charged: possession. And any prejudice was
mitigated by the court’s limiting instruction.
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No. 54141-6-II
Therefore, we hold that the trial court did not err is admitting evidence that a child was in
the Mini Cooper when Castilla-Whitehawk was detained.
D. ACCOMPLICE LIABILITY INSTRUCTION
Castilla-Whitehawk argues that the trial court erred by instructing the jury on accomplice
liability because there was insufficient evidence that he knew that Moreno possessed the
controlled substances with intent to deliver. We disagree.
1. Legal Principles
a. Standard of Review
We review for abuse of discretion a trial court’s choice of jury instructions. State v.
Miller, 14 Wn. App. 2d 469, 478, 471 P.3d 927 (2020), rev. denied, 196 Wn.2d 1036 (2021).
However, a party is entitled to a jury instruction on their theory of the case when they produce
sufficient evidence to support the instruction. Id.b. Unlawful Possession With Intent to Deliver
Generally, it is a crime “for any person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance.” RCW 69.50.401(1).3 In order to prove
unlawful possession of a controlled substance with intent to deliver, the State had to prove (1)
unlawful possession (2) of a controlled substance (3) with the intent to deliver. RCW
69.50.401(1).
A person can have actual possession or constructive possession of an item. State v.
Reichert, 158 Wn. App. 374, 390, 242 P.3d 44 (2010). Actual possession requires physical
custody of the item. Id. Constructive possession occurs when a person has “dominion and
3
This statute was amended in 2019, and those amendments became effective July 28, 2019, after
the information was filed in this case. LAWS OF 2019, ch. 379, § 2. Because the 2019 amendments
do not affect our analysis, we cite to the current version of the statute.
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No. 54141-6-II
control” over an item. Id. A person can have possession without exclusive control; more than
one person can be in possession of the same item. State v. George, 146 Wn. App. 906, 920, 193
P.3d 693 (2008).
As a general rule, “[m]ere possession of a controlled substance, including quantities
greater than needed for personal use, is not sufficient to support an inference of intent to deliver.”
State v. O’Connor, 155 Wn. App. 282, 290, 229 P.3d 880 (2010). But a finder of fact can infer
intent to deliver from possession of a significant amount of a controlled substance plus at least
one additional factor, “such as a large amount of cash or sale paraphernalia.” Id.c. Accomplice Liability
A person is guilty as an accomplice if, “[w]ith knowledge that it will promote or facilitate
the commission of the crime, he or she: (i) [s]olicits, commands, encourages, or requests such
other person to commit it; or (ii) [a]ids or agrees to aid such other person in planning or
committing it.” RCW 9A.08.020(3)(a). The trial court’s accomplice liability instruction
mirrored the statutory language: “A person is an accomplice in the commission of a crime if,
with knowledge that it will promote or facilitate the commission of the crime he either: (1)
solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or
agrees to aid another person in planning or committing the crime.” CP at 100.
To convict under the accomplice liability statute, the State must prove that the defendant
actually knew that he or she was promoting or facilitating the principal in the commission of the
crime. State v. Allen, 182 Wn.2d 364, 374, 341 P.3d 268 (2015). But the State can prove actual
knowledge through circumstantial evidence. Id. A person has actual knowledge sufficient to
impose accomplice liability “when ‘he or she has information which would lead a reasonable
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No. 54141-6-II
person in the same situation to believe’ that he was promoting or facilitating the crime eventually
charged.” Id. (quoting RCW 9A.08.010(1)(b)(ii)).
When considering accomplice liability in the context of unlawful possession with intent
to deliver, “whether one or the other of the accomplices actually possessed the [controlled
substance] is not dispositive.” State v. McPherson, 111 Wn. App. 747, 760, 46 P.3d 284 (2002).
Instead, the issue is whether the accomplice, by his presence and actions, attempted to facilitate
the crime of possession with intent to deliver. Id.
2. Analysis
In this case, there was sufficient evidence to give an accomplice liability instruction for
the unlawful possession of controlled substance with intent to deliver charges. Both Castilla-
Whitehawk and Moreno were sitting in a vehicle containing a large amount of methamphetamine
and heroin. Because they had the ability to immediately take actual possession of the drugs in
the Mini Cooper, they both were in constructive possession of them and that possession was not
mutually exclusive. Reichert, 158 Wn. App. at 390; George, 146 Wn. App. at 920.
In addition, the jury reasonably could infer that both Castilla-Whitehawk and Moreno had
an intent to deliver from the quantity of the drugs coupled with other evidence. O’Connor, 155
Wn. App. at 290. As both Packard and Strup testified, the quantity of drugs was greater than
needed for personal use and indicative of drug dealing. Packard also observed baggies, over
$1,000 in cash, and a digital scale.
Castilla-Whitehawk’s actual possession of cellophane baggies and his constructive
possession of methamphetamine, heroin, alprazolam, a digital scale, and a knife in close
proximity with Moreno – who also was in constructive possession of these substances and
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No. 54141-6-II
implements – raises a permissible inference that he used these drugs to help facilitate Moreno’s
possession with intent to deliver.
Castilla-Whitehawk also challenges the State’s failure to specify whether either Castilla-
Whitehawk or Moreno was acting as a principal or an accomplice. He claims that the State’s
circular suggestion that either could be the principal or the accomplice allowed the State to avoid
proving knowledge. But the accomplice lability instruction clearly imposed a knowledge
requirement before the jury could convict Castilla-Whitehawk as an accomplice. And because
accomplice liability is not an alternative means of committing a crime, the jury need not be
unanimous about whether a defendant acted as a principal or accomplice in committing a crime
for which the defendant was charged. See State v. Dreewes, 192 Wn.2d 812, 824, 432 P.3d 795(2019).
We hold that the trial court did not err in instructing the jury on accomplice liability.
E. UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE
In Blake, the Supreme Court held that Washington’s strict liability drug possession
statute, RCW 69.50.4013(1), violates state and federal due process clauses and therefore is void.
197 Wn.2d at 195. As a result, any conviction based on that statute is invalid. See In re Pers.
Restraint of Hinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004) (a judgment and sentence is
invalid on its face when a defendant is convicted of a nonexistent crime). And a conviction
based on an unconstitutional statute must be vacated. See State v. Carnahan, 130 Wn. App. 159,
164, 122 P.3d 187 (2005) (vacating a conviction that was based on a statute that the Supreme
Court held was unconstitutional). Therefore, Castilla-Whitehawk’s conviction for unlawful
possession of a controlled substance must be vacated.
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A conviction that has been vacated cannot be included in the offender score. See State v.
Ammons, 105 Wn.2d 175, 187, 713 P.2d 719 (1986). Therefore, Castilla-Whitehawk’s offender
score must be amended to not include his vacated conviction and he is entitled to be
resentenced.4
CONCLUSION
We affirm Castilla-Whitehawk’s two convictions for unlawful possession of a controlled
substance possession with intent to deliver, but we reverse Castilla-Whitehawk’s conviction for
unlawful possession of a controlled substance and remand for the trial court to vacate that
conviction and 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.
MAXA, P.J.
We concur:
CRUSER, J.
VELJACIC, J.
4
The State argues that resentencing is unnecessary because Castilla-Whitehawk already has served
his sentence. However, Castilla-Whitehawk still is on community custody. On remand, the trial
court can determine whether resentencing is necessary.
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