STATE v. CERVANTES, 25108-0-III (Wash.App. 7-19-2007)

No. 25108-0-III.The Court of Appeals of Washington, Division Three.
July 19, 2007.

Appeal from a judgment of the Superior Court for Benton County, No. 04-1-01680-4, Robert G. Swisher, J., entered March 2, 2006.

Affirmed in part and. reversed in part by unpublished opinion per Schultheis, A.C.J., concurred in by Brown and Kulik, JJ.

SCHULTHEIS, A.C.J.

Miguel Ramos Cervantes appeals his convictions of possession of a stolen firearm and bail jumping. He contends the evidence is insufficient to support both convictions and that trial counsel was ineffective for failing to file a suppression motion. We affirm in part and reverse in part.

FACTS
On August 5, 1995, Mr. Cervantes, upset about the break up of his relationship with his ex-girlfriend, drove to her house to talk with her. Marisela Acosta, his ex-girlfriend’s sister, saw Mr. Cervantes walk to the front door carrying a gun. Mr. Cervantes left when no one answered the door. Ms. Acosta immediately called police to report the incident.

Detective Shon Small was on patrol duty when he received a call reporting that a Hispanic male, driving a white Lumina, had approached a house holding a rifle. Within a few minutes, Detective Small saw a white Lumina driven by a Hispanic male about a half-mile from the reported location of the incident. He activated his emergency lights, and Mr. Cervantes pulled over. Suspecting Mr. Cervantes had a firearm, he approached the car cautiously. As he walked toward the vehicle, he noticed a rifle on the front passenger seat. He ordered Mr. Cervantes to step out of the car. As Mr. Cervantes exited the car, Officer Small saw a pistol in the waistband of his pants.

Detective Christopher Fitzpatrick, a backup officer, interviewed Mr. Cervantes. Mr. Cervantes stated he owned the firearms and that he obtained them through a mail order catalog. He admitted he did not have a concealed weapons permit. Detective Fitzpatrick ran a weapons search through the National Crime Information Center and learned that one of the firearms had been reported stolen out of Richland, Washington. Detective Fitzpatrick arrested Mr. Cervantes.

On August 9, 1995, Mr. Cervantes posted bail. A preliminary court hearing was scheduled for August 25. On August 14, the bail bond agency informed the court that Mr. Cervantes could not attend the August 25 hearing due to a serious illness in his family. The court date was rescheduled to September 1. Mr. Cervantes appeared and signed his advisement of rights.

The next court date, on September 26, was continued to October 3. On October 3, the court continued the hearing another two weeks, and appointed counsel filed a notice of appearance. On October 17 the court continued the case to October 31. Neither Mr. Cervantes nor appointed counsel appeared on that date. On November 1, the court issued a bench warrant.

Mr. Cervantes did not appear again in Benton County until 2004. He explained that after taking his father to Mexico in 1995, he did not return to Washington State because he was incarcerated in Mexico for over eight years. He was informed of his outstanding warrant on the firearm charge when he renewed his immigration card after his return. The warrant was quashed on September 24, 2004 after Mr. Cervantes posted bail. Mr. Cervantes attended the first scheduled court date on October 12. The State filed an amended information charging Mr. Cervantes with possession of a stolen firearm and bail jumping.

At trial, the State called Gerald Nygren, who testified that his handgun, a Browning High Power nine-millimeter, was stolen in 1995. At the time, he suspected his daughter and her boyfriend had taken the gun. The serial number on his gun matched the number on one of the firearms found on Mr. Cervantes in 1995.

Officer Randy Bricker testified that in 1995 he questioned Mr. Cervantes about the firearm. Mr. Cervantes told him that he received the firearm from his brother who had purchased it through a catalog. Officer Bricker noted that the sale of firearms is highly regulated, and it is not possible to order them through the mail.

Mr. Cervantes denied knowing the guns were stolen. He testified that they belonged to his brother, but claimed he did not know how his brother acquired them. He explained that he initially lied to officers about owning the guns because he did not want to cause trouble for his brother. He flatly denied telling officers in 1995 that he purchased the guns through a mail order catalog. Jacki Lahtinen, the district court administrator, testified about the scheduled court dates mentioned above.

A jury convicted Mr. Cervantes of both charges. This appeal followed.

ANALYSIS
Mr. Cervantes first contends the evidence was insufficient to convict on both charges. The test for determining sufficiency 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. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). In challenging sufficiency, Mr. Cervantes admits the truth of the State’s evidence and all inferences that reasonably can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992).

Possession of a Stolen Firearm

To convict Mr. Cervantes of possession of a stolen firearm, the State was required to prove beyond a reasonable doubt that Mr. Cervantes knew the firearm in his possession was stolen. See RCW 9A.56.140(1) (possessing stolen property means “knowingly to receive, retain, [or] possess . . . stolen property knowing that it has been stolen”); RCW 9A.56.310(1) (“A person is guilty of possessing a stolen firearm if he or she possesses, carries, . . . or is in control of a stolen firearm.”). Mr. Cervantes contends the State failed to prove he knew the firearm was stolen, asserting “there was no nexus between the theft of the gun from the victim’s residence and its possession, three months later, by Mr. Cervantes.” Br. of Appellant at 15.

A person knows of a fact by being aware of it or having information that would lead a reasonable person to conclude the fact exists. RCW 9A.08.010(1)(b). Circumstantial evidence and direct evidence are equally reliable to establish knowledge. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Possession of recently stolen property coupled with even slight corroborative evidence, is sufficient to prove guilty knowledge. State v. Couet, 71 Wn.2d 773, 776, 430 P.2d 974 (1967). Examples of slight corroborative evidence include false or improbable explanations and explanations the police cannot rebut or check. State v. Portee, 25 Wn.2d 246, 253, 254, 170 P.2d 326 (1946).

Mr. Cervantes explained that he obtained the firearms from his brother, but claimed his brother was unable to testify. This, in the language of Portee, is an explanation of a kind that cannot be checked or rebutted.

Mr. Cervantes’ explanations were also inconsistent and implausible. See Couet, 71 Wn.2d at 776 (holding inconsistent and implausible explanations constitute evidence of guilty knowledge). During his initial interview, Mr. Cervantes stated that he ordered the guns from a mail order catalog. But later, he changed his story, claiming he obtained the guns from his brother, who purchased them through the mail. At trial, Mr. Cervantes stated that he initially lied to officers because he did not want to make trouble for his brother. He then changed his story again, denying that he told officers that he obtained the guns through the mail.

These inconsistencies support an inference that Mr. Cervantes knew the guns were stolen. And Officer Bricker’s testimony that guns cannot be ordered through the mail, renders Mr. Cervantes’ initial explanation improbable. Accordingly, we conclude that sufficient evidence supports the jury’s finding that Mr. Cervantes knew the guns were stolen.

Bail Jumping

Next, Mr. Cervantes challenges his bail jumping conviction, arguing that the State failed to prove he had knowledge of his October 31, 1995 court date. The State does not respond to this contention. An individual is guilty of bail jumping if he fails to appear in court after “having been released by court order . . . with knowledge of the requirement of a subsequent personal appearance before any court of this state.” RCW 9A.76.170(1). A person is considered to have knowledge if he “was given notice of his court date.” State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004). Thus, to convict Mr. Cervantes of bail jumping, the State had to present evidence proving beyond a reasonable doubt that Mr. Cervantes was given notice of his October 31, 1995 court date.

The State called Ms. Lahtinen to summarize the documents in the court file. She testified that Mr. Cervantes was arraigned on September 1, 1995. The next court date was scheduled for September 26. Mr. Cervantes testified that he flew in from Mexico to attend the September 26 court date. On September 26, the court continued the case to October 3.

On October 3, the court continued the hearing another two weeks. The record is silent as to whether Mr. Cervantes was present on October 3. On October 17, the court continued the case to October 31, 1995. Neither Mr. Cervantes nor appointed counsel appeared on that date.

Nothing in the record indicates that Mr. Cervantes had notice of any court dates after October 3. The record does not contain continuance forms signed by Mr. Cervantes or evidence of any attempts to notify him of the frequently changing court dates. This total failure to establish that Mr. Cervantes had notice of the October 31 court date is fatal to the State’s case. We conclude that these facts fail to support a conviction for bail jumping.

Ineffective Assistance of Counsel

Mr. Cervantes’ final contention is that he received ineffective assistance of counsel. Specifically, he asserts that trial counsel should have filed a CrR 3.6 motion to suppress the firearm that was discovered during the investigatory stop. The State responds that a CrR 3.6 motion would not have been granted because the investigatory stop was lawful.

Ineffective assistance of counsel is a mixed question of law and fact that we review de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We start with the presumption that counsel’s representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). In order to find that trial counsel was ineffective, the defendant must show that counsel’s performance was deficient in some respect, and that the deficiency prejudiced the defense. Strickland, 466 U.S. at 687; McFarland, 127 Wn.2d at 334-35. The defendant must demonstrate the absence of legitimate strategic or tactical reasons for the challenged conduct McFarland, 127 Wn.2d at 336. Failure to bring a plausible motion to suppress is deemed ineffective if it appears that a motion would likely have been successful if brought. State v. Rainey, 107 Wn. App. 129, 136, 28 P.3d 10 (2001); State v. Meckelson, 133 Wn. App. 431, 135 P.3d 991 (2006), review denied, 159 Wn.2d 1013 (2007).

In this case, the filing of a CrR 3.6 motion would not have been successful. Generally, warrantless searches and seizures are per se unreasonable. State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563
(1996). Investigatory stops constitute an exception to this rule. Id. at 71. To justify the intrusion of an investigatory stop, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). When a police officer observes conduct that leads him to believe that a suspect is armed and dangerous, he may conduct a protective frisk for weapons. The officer need not be absolutely certain that the individual is armed; the question is whether a reasonably prudent person in light of the particular circumstances would believe his or her safety was in danger. Id. at 24, 30.

Here, Detective Small received a call that an armed male was driving a white car. Within minutes of that call, Detective Small identified a car and person matching the caller’s descriptions within a half mile of the reported location. He saw a rifle on the front passenger seat of Mr. Cervantes’ car.

Based on these facts, Detective Small’s belief that Mr. Cervantes was armed and dangerous was reasonable. Accordingly, Mr. Cervantes would not have prevailed on a motion to suppress. Because he fails to show the outcome of the proceedings would have been different if trial counsel had filed such a motion, his ineffective assistance of counsel claim must fail.

CONCLUSION
We conclude that sufficient evidence supports Mr. Cervantes’ possession of a firearm conviction and that he received effective assistance of counsel. However, due to insufficient evidence of bail jumping, we reverse that conviction. Affirmed in part, reversed in part.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR: Brown, J., Kulik, J.