State Of Washington v. Daniel Castaneda Cruz ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 78813-2-I
V.
UNPUBLISHED OPINION
DANIEL CASTANEDA-CRUZ,
Appellant. FILED: December 30, 2019
DWYER, J. — Daniel Castaneda-Cruz was charged with child molestation
in the third degree. After a jury trial, he was convicted and sentenced to 10
months’ confinement, to be followed by 12 months of community custody. He
appeals, averring that insufficient evidence supported his conviction, that the trial
court erred in refusing to give a requested jury instruction, and that a community
custody condition should be stricken for vagueness. As none of his challenges
have merit, we affirm.
Daniel Castaneda-Cruz lived with his niece, Sara Gregorio-Guzman, her
husband, and their two children, son J.F. and daughter B.F. Castaneda-Cruz
was known to the family to have a drinking problem, and although he never drank
in front of his niece’s family, he often smelled of alcohol. Castaneda-Cruz was
46 years old in April 2018.
Each child had a separate bedroom in the family’s apartment, although
B.F. sometimes slept in her parents’ bedroom. Castaneda-Cruz alternately slept
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in the family living room or, if S.F. stayed with her parents, in B.F.’s room.
Generally, 15-year-old J.F. avoided spending time with Castaneda-Cruz and
tended to stay in his room when Castaneda-Cruz was home. In April 2018,
Castaneda-Cruz obtained employment at a restaurant, working an evening shift
that typically ended around 10:00 p.m.
On April 8, 2018, Gregorio-Guzman and her husband left the house
around 6:00 p.m., while Castaneda-Cruz was at work, to attend a concert. While
S.F. stayed with Gregorio-Guzman’s sister, Marciela Gregorio,1 J.F. was
permitted to stay at home. J.F. spent the evening in his room playing video
games and listening to music before preparing to go to bed between 10:00 and
11:00 p.m. He last left his room to brush his teeth, after which he closed the door
and went to sleep, clothed in a t-shirt and shorts and covered by two blankets.
J.F. awoke around 11:30 p.m. when he felt his penis being touched. J.F.
saw that Castaneda-Cruz was kneeling by J.F.’s bedside with his head, and part
of his chest, underneath the two blankets. For between one and two minutes,
Castaneda-Cruz rubbed J.F.’s penis in a circular motion, his hand under the
covers but over J.F.’s shorts. When J.F.’s body twitched, Castaneda-Cruz turned
and crawled out of the room without saying anything to J.F. J.F. testified that
Castaneda-Cruz did not smell of alcohol when this incident occurred.
At about 11:45 p.m., a deeply upset J.F. called his mother to inform her of
what had transpired. Gregorio-Guzman immediately called Marciela, asked her
to pick up J.F., and then left the concert with her husband for Marciela’s house.
1 Because Marciela Gregorio and Sara Gregorio-Guzman have similar surnames, we refer
to Marciela by her first name to avoid confusion.
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No. 78813-2-1/3
When Marciela arrived at Gregorio-Guzman’s apartment, J.F. was standing
outside, visibly distraught. Upon returning to her house with J.F., Marciela
telephoned the police.
Gregorio-Guzman arrived with her husband at Marciela’s house around
1:30 am. Also at this time, Deputy William Ter-Veen of the Snohomish County
Sheriff’s Office arrived at Marciela’s house. Thirty minutes later, Deputy Ter
Veen followed Gregorio-Guzman and her husband back to their apartment to
take photographs. Castaneda-Cruz was not present in the apartment at this time
but, as the three were leaving to return to Marciela’s, Gregorio-Guzman saw
Castaneda-Cruz on a sidewalk near the apartment. She informed Deputy Ter
Veen of Castaneda-Cruz’s location and his relationship to them. Deputy Ter
Veen contacted Castaneda-Cruz, who identified himself. Castaneda-Cruz
appeared intoxicated at this time, with a strong odor of alcohol about him and his
speech slurred.
Castaneda-Cruz was charged with child molestation in the third degree.
The trial court refused Castaneda-Cruz’s request to instruct the jury regarding the
lesser included offense of assault in the fourth degree. The jury found
Castaneda-Cruz guilty. At sentencing, the trial court imposed a term of 10
months’ confinement, to be followed by 12 months of community custody.
Castaneda-Cruz appeals.
Castaneda-Cruz first argues for reversal on the basis that insufficient
evidence supports his conviction. This is so, he avers, because the State failed
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No. 78813-2-114
to prove that he made sexual contact with J.F., a necessary element of child
molestation in the third degree. Specifically, he claims that there was no
evidence that he touched J.F. for the purpose of sexual gratification. Because
there is ample evidence that Castaneda-Cruz fondled his grandnephew’s penis
for this exact purpose, we affirm.
The due process clauses of the federal and state constitutions require that
the State prove every element of a crime beyond a reasonable doubt. Apprendi
v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);
U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. “[TJhe critical inquiry on
review of the sufficiency of the evidence to support a criminal conviction must be
to determine whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979). “[T]he relevant question is 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, 443 U.S. at 319.
“A claim of insufficiency admits the truth of the State’s evidence and all
inferences that reasonably can be drawn therefrom.” State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 (1992). “In determining the sufficiency of the
evidence, circumstantial evidence is not to be considered any less reliable than
direct evidence.” State v. Delmarter, 94 Wash. 2d 634, 638, 618 P.2d 99 (1980).
“Deference must be given to the trier of fact who resolves conflicting testimony
and evaluates the credibility of witnesses and persuasiveness of material
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No. 78813-2-115
evidence.” Statev. Carver, 113 Wash. 2d 591, 604, 781 P.2d 1308, 789 P.2d 306
(1989).
To prove Castaneda-Cruz guilty, the State had to show that he had
“sexual contact with another who is at least fourteen years old but less than
sixteen years old and not married to the perpetrator and the perpetrator is at
least forty-eight months older than the victim.” RCW 9A.44.089(1). The only
element at issue here is whether the State proved “sexual contact.” Sexual
contact is defined as “any touching of the sexual or other intimate parts of a
person done for the purpose of gratifying sexual desire of either party or a third
party.” RCW 9A.44.010(2).
Castaneda-Cruz argues that no reasonable juror could have found a
sexual contact occurred based on J.F.’s testimony of how quickly the contact
began and ended. To this end, he relies on State v. Powell, 62 Wash. App. 914,
816 P.2d 86 (1991). In Powell, the defendant hugged a child around the chest,
touched her groin through her underwear when helping her off his lap, and
touched her thighs. 62 Wash. App. at 916. The court noted that each touch was
outside the child’s clothes and was susceptible to an innocent explanation.
Powell, 62 Wash. App. at 916. The touching was described as “fleeting” and the
evidence of the defendant’s purpose was “equivocal.” Powell, 62 Wash. App. at
917-18. The court determined that the evidence was insufficient to support the
inference that the defendant touched the child for the purpose of sexual
gratification. Powell, 62 Wash. App. at 918.
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No. 78813-2-1/6
Here, in contrast with Powell, there was sufficient evidence for the jury to
find “sexual contact” within the meaning of the statute as well as “sexual
gratification.” Plainly, Castaneda-Cruz’s action involved more than a “fleeting
touch” over J.F.’s clothes. The State presented evidence that Castaneda-Cruz
not only touched J.F.’s penis over his clothing but persisted in rubbing J.F.’s
penis for a period of time between one and two minutes. His conduct of
approaching J.F. while J.F. was asleep and his parents absent, then silently
crawling out of the room when it appeared J.F. might be awake, suggested that
he was attempting to hide his actions. Castaneda-Cruz had no caretaking
function over J.F. All of these facts support the inference that Castaneda-Cruz
touched J.F. for the purposes of gratifying his own sexual desire.2 The trial court
had before it sufficient evidence to convict Castaneda-Cruz of child molestation
in the third degree.
Ill
Castaneda-Cruz next faults the trial court’s refusal to give his requested
jury instruction on the lesser included offense of assault in the fourth degree.
This refusal was made in error, he avers, because the evidence presented did
not support that he made sexual contact with J.F., raising an inference that
assault was committed to the exclusion of child molestation. His argument is,
again, belied by the ample evidence of his sexual motivation in touching J.F.
2 Castaneda-Cruz avers that he was intoxicated at the time he was in J.F.’s room, and that
his intoxication would necessarily prevent him from initiating sexual contact. However, there is no
evidence that Castaneda-Cruz was in fact intoxicated when the incident took place.
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No. 78813-2-1/7
When the evidence supports it, both the State and the defendant have a
statutory right to present an instruction to the jury on lesser included offenses.
State v. Gamble, 154 Wash. 2d 457, 462, 114 P.3d 646 (2005). The failure of a trial
court to give a lesser included instruction when the defendant is entitled to one is
reversible error. Statev. Ginn, 128 Wash. App. 872, 878, 117 P.3d 1155 (2005).
We apply the test set forth in State v. Workman, 90 Wash. 2d 443, 584 P.2d 382
(1978) to determine whether a defendant is entitled to a lesser included offense
instruction. State v. Porter, 150 Wash. 2d 732, 736, 82 P.3d 234 (2004).
A defendant is entitled to a lesser included offense instruction if the two
conditions of the Workman test are met. 90 Wash. 2d at 447-48. First, to satisfy the
test’s legal component, each element of the lesser included offense must be a
necessary element of the charged offense. Workman, 90 Wash. 2d at 447-48.
Second, to fulfill the test’s factual component, evidence presented in a case
“must raise an inference that only the lesser included{] . . offense was
committed to the exclusion of the charged offense.” State v. Fernandez-Medina,
141 Wash. 2d 448, 455, 6 P.3d 1150 (2000).
When analyzing the factual component, the trial court must view the
evidence that purports to support a requested instruction in the light most
favorable to the party requesting the instruction. Fernandez-Medina, 141 Wash. 2d
at 455-56. “[T]he court must consider all of the presented evidence when
deciding whether or not to give a lesser included instruction,” and may be
required to give the lesser included instruction even when the defendant’s own
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No. 78813-2-1/8
testimony contradicts the evidence supporting the instruction. State v. Stevens,
158 Wash. 2d 304, 311, 143 P.3d 817 (2006).
The State concedes that the Workman test’s legal component is met here.
We accept the State’s concession. See Stevens, 158 Wash. 2d at 311. When only
the factual component of the test is in dispute, we review the trial court’s
determination for an abuse of discretion. State v. LaPlant, 157 Wash. App. 685,
687, 239 P.3d 366 (2010). A trial court abuses its discretion when its decision is
manifestly unreasonable or based on untenable grounds or reasons. State v.
Neal, 144 Wash. 2d 600, 609, 30 P.3d 1255 (2001).
To determine whether the factual component of the Workman test is
satisfied, we analyze whether the evidence “‘affirmatively establish{esj the
defendant’s theory of the case—it is not enough that the jury might disbelieve the
evidence pointing to guilt.” Porter, 150 Wash. 2d at 737 (quoting Fernandez
Medina, 141 Wn.2d at456). If the evidencewould permit ajuryto rationally find
the defendant guilty of the lesser offense and acquit him of the greater offense, a
lesser included instruction should be given. State v. Berlin, 133 Wash. 2d 541, 551,
947 P.2d 700 (1997).
Assault in the fourth degree is defined as an assault neither amounting to
assault in the first, second, or third degree, nor custodial assault. RCW
9A.36.041(1); Stevens, 158 Wash. 2d at 310. Because the statute does not define
“assault,” we look to the following common law definitions: (1) an attempt, with
unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with
criminal intent; and (3) putting another in apprehension of harm whether or not
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No. 78813-2-1/9
the actor intends to inflict or is capable of inflicting that harm. Stevens, 158
Wash. 2d at 310-il. Pertinent herein is the second definition of assault, an unlawful
touching with criminal intent, which “[u]nlike other forms of assault, . . . does not
require proof of specific intent to cause apprehension or inflict substantial bodily
harm.” State v. Cardenas-Flores, 189 Wash. 2d 243, 266, 401 P.3d 19 (2017)
(quoting Stevens, 158 Wash. 2d at 314 (Madsen, J., dissenting)). “‘Instead, assault
by actual battery is an intentional touching or striking of another person that is
harmful or offensive, regardless whether it results in any physical injury.”
Cardenas-Flores, 189 Wash. 2d at 266 (quoting Stevens, 158 Wash. 2d at 314
(Madsen, J., dissenting)). The intent required to prove an assault by unlawful
touching is the “intent to do the physical act constituting assault.” State v. Hall,
104 Wash. App. 56, 62, 14 P.3d 884 (2000). Thus, to satisfy the factual component
of the Workman test, Castaneda-Cruz needs to demonstrate that the evidence at
trial, viewed in his favor, shows that (1) he intentionally touched J.F., (2) the
touch was offensive, but (3) the touch did not constitute sexual contact.
The evidence does not support this proposition. The circumstances
indicated that Castaneda-Cruz intended to conceal his conduct and avoid
culpability for touching J.F. Castaneda-Cruz entered J.F.’s room when J.F.’s
parents were not home and J.F. was sleeping and concealed himself under J.F.’s
blankets. He persisted in fondling J.F.’s genitals for between one and two
minutes—hardly a fleeting period of time—and, upon J.F.’s bodily movement,
immediately crawled out of the room without saying anything. Castaneda-Cruz
was still in the apartment when J.F. departed, but then fled the scene.
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No. 78813-2-1/10
Castaneda-Cruz’s attempts to conceal his action raises the inference that
he touched J.F. for the purpose of sexual gratification. There was no affirmative
evidence that the touching was made for any other nonsexual reason. Instead,
Castaneda-Cruz argues that the evidence showed he was intoxicated to the
extent that a juror could conclude he did not touch J.F. for sexual purposes.
There is no evidence that Castaneda-Cruz was intoxicated at the time he
touched J.F., as opposed to later in the evening. Thus, there remained no
evidence that he committed assault in the fourth degree to the exclusion of child
molestation in the third degree. The trial court did not err in declining to instruct
the jury on this lesser included offense, and Castaneda-Cruz’s argument to the
contrary fails.
IV
Finally, Castaneda-Cruz argues that the community custody condition
imposed at sentencing, requiring that he stay out of listed areas “where children’s
activities regularly occur or are occurring,” is unconstitutionally void for
vagueness. We disagree and affirm the trial court’s imposition of this condition.
The guaranty of due process, contained in the Fourteenth Amendment to
the United States Constitution and article I, section 3 of the Washington
Constitution, precludes vague laws. State v. Irwin, 191 Wash. App. 644, 652, 364
P.3d 830 (2015). Due process requires that citizens have fair warning of conduct
that is proscribed. CityofS~okanev. Douglass, 115 Wn.2d 171,178,795 P.2d
693 (1990). A statute is unconstitutionally vague if (1) it does not define the
criminal offense with sufficient definiteness that an ordinary person can
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No. 78813-2-I/li
understand what conduct is proscribed, or (2) does not provide ascertainable
standards of guilt to protect against arbitrary enforcement. Kolender v. Lawson,
461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); State v. BahI, 164
Wash. 2d 739, 752-53, 193 P.3d 678 (2008).
If persons of ordinary intelligence are able to understand what the law
proscribes, notwithstanding some possible areas of disagreement, the law is
sufficiently definite. Bahl, 164 Wash. 2d at 754. A community custody condition is
not unconstitutionally vague simply because a person cannot predict with
complete certainty the exact point at which his or her actions would be classified
as prohibited conduct. State v. Sanchez Valencia, 169 Wash. 2d 782, 793, 239
P.3d 1059 (2010).
Castaneda-Cruz relies primarily on our holding in Irwin. Therein, we held
that a condition prohibiting the defendant from “frequent{ing] areas where minor
children are known to congregate, as defined by the supervising CCO” was
unconstitutionally vague. Irwin, 191 Wash. App. at 652. However, we reached this
conclusion noting that “[wjithout some clarifying language or an illustrative list of
prohibited locations . . . the condition does not give ordinary people sufficient
notice to ‘understand what conduct is proscribed.” Irwin, 191 Wash. App. at 655
(internal quotation marks omitted) (quoting BahI, 164 Wash. 2d at 753). In contrast,
Castaneda-Cruz challenges a condition that states:
Stay out of areas where children’s activities regularly occur or are
occurring. This includes, parks used for youth activities, schools,
daycare facilities, playgrounds, wading pools, swimming pools
being used for youth activities, play areas (indoor or outdoor),
sports fields being used for youth sports, arcades, restaurants, and
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No. 78813-2-1/12
any specific location identified in advance by [Department of
Corrections] or [Community Custody Officer].
The condition imposed here cures the defect in the condition challenged in
Irwin because it contains the “illustrative list of prohibited locations” that we held
would provide sufficient notice. Irwin, 1 91 Wash. App. at 655. The condition here
further alleviates the arbitrary enforcement concerns raised in Irwin because the
list does not vest a correctional officer with the sole authority to define places
where children congregate. Given that the condition clearly cures the vagueness
defects identified in Irwin, Castaneda-Cruz3s vagueness challenge fails.
Affirmed.
/
WE CONCUR:
_____ ~l
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