STATE v. GOMEZ, 143 Wn. App. 1041 (2008)

No. 25739-8-III.The Court of Appeals of Washington, Division Three.
March 20, 2008.

Appeal from a judgment of the Superior Court for Grant County, No. 05-1-00725-0, John M. Antosz, J., entered October 5, 2006.

Affirmed in part and remanded by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Korsmo, J.

BROWN, J.

Paul B. Gomez appeals his bench trial conviction for second degree theft and bail jumping, contending insufficient evidence supports the bail jumping. Pro se, Mr. Gomez contends insufficient evidence supports both convictions, and adds that vindictive prosecution taints his bail jumping conviction. We disagree. However, we accept the State’s concessions that the judgment and sentence needs correction to delete inapplicable language. We affirm, but remand for the corrections.

FACTS
In the afternoon of September 25, 2005, Officer Alan Barrowman saw Mr. Gomez’ truck parked next to an area of new homes with several pieces of plywood in the bed. Mr. Gomez told the officer he had permission to take scrap wood from the site. The officer believed the plywood did not look like scrap wood and contacted the owner, who said he did not remember giving Mr. Gomez permission to take any scrap and certainly not the T-11 plywood in the back of his truck. The value of the plywood was approximately $41 per sheet. There were nine sheets in the bed of Mr. Gomez’ truck.

The State charged Mr. Gomez with second degree theft and second degree criminal trespass. A November 29, 2005 scheduling order set a pretrial conference for January 4, 2006. At the pretrial conference, the court instructed Mr. Gomez of a “3.5/3.6 Hearing on the 12th and trial on the 24th.” Clerk’s Papers (CP) at 60 (Finding of Fact 2.21). Mr. Gomez did not appear on the 12th or the 24th of January, 2006.

The State amended its complaint to include bail jumping. Following a bench trial, the court convicted Mr. Gomez of second degree theft and bail jumping, but acquitted on the second degree criminal trespass charge. Regarding the bail-jumping conviction, the court found Mr. Gomez “was told to be in court for trial on the 24th of January.” CP at 60 (Finding of Fact 2.17). Regarding the trial court’s instructions to appear on the 12th and 24th, the court took judicial notice “that normally when someone refers to a month in that context, it would be the same month.” CP at 60 (Finding of Fact 2.23). The court, lastly, found Mr. Gomez “knowingly failed to appear for trial on January 24, 2006.” CP at 60 (Finding of Fact 2.24).

The court sentenced Mr. Gomez to 29 months for the theft conviction with a concurrent below-range 48 month sentence for the bail-jumping conviction. Mr. Gomez’ judgment and sentence did not have deleted the inapplicable section relating to sex offender registration and did not have removed an inapplicable blank “Appendix H” relating to community placement. We accept the State’s agreement to correct these deficiencies without further discussion. The remedy is to remand for correction of the clerical/scrivener errors. See In re Pers. Restraint Petition of Mayer, 128 Wn. App. 694, 701-02, 117 P.3d 353 (2005); see also CrR 7.8(a) (clerical mistakes in judgments, orders, or other parts of the record may be corrected by the court at any time.).

Mr. Gomez failed to appear to begin his sentence. After he was arrested on a bench warrant, the State successfully requested reconsideration to increase the sentence to the top of the standard range, 60 months. Mr. Gomez appealed.

ANALYSIS A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Gomez’ convictions for second degree theft and bail jumping. By appellate counsel, he challenges Findings of Fact 2.17, 2.23, and 2.24, contending the State failed to prove he knowingly failed to appear. Pro se, Mr. Gomez contends the State did not prove a theft because the investigating officer forgot many investigation details and the wood was just scrap.

We review findings of fact for substantial evidence. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Evidence is sufficient when, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)). When considering the sufficiency of the evidence, all reasonable inferences must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).

Under RCW 9A.76.170(1), a person is guilty of bail jumping if he or she is released “with knowledge of the requirement of a subsequent personal appearance” and he or she fails to appear. Mr. Gomez was instructed at the January 4, 2006 pretrial conference to appear at the 3.5/3.6 hearing “on the 12th” and trial “on the 24th.” CP at 60. The court took judicial notice that the 12th and the 24th referred to the 12th and 24th of January because “normally when someone refers to a month in that context, it would be the same month.” CP at 60. Mr. Gomez argues judicial notice was improper.

Judicial notice is limited to “easily accessible sources of indisputable accuracy and verifiable certainty.” State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 779, 380 P.2d 735 (1963). “Judicial notice is limited to facts which, `from their nature, are not properly the subject of testimony, or which are universally regarded as established by common notoriety.'” CLEAN v. State, 130 Wn.2d 782, 835, n. 36, 928 P.2d 1054
(1996) (quoting Black’s Law Dictionary 848 (6th ed. 1990)).

Even if judicial notice was not proper, in a bench trial, the judge is expected to bring his or her own “opinions, insights, common sense, and everyday life experiences” into the fact-finding process. State v. Carlson, 61 Wn. App. 865, 878, 812 P.2d 536 (1991). It is common sense that the trial court was referring to January 24th when notifying Mr. Gomez of the trial date. If trial was set for any other month, speedy trial rights would have been implicated. See CrR 3.3(b)(2)(i) (a non-detained defendant shall be brought to trial within 90 days of arraignment).

Given all, substantial evidence supports the court’s findings that Mr. Gomez knew about his trial date. Accordingly, sufficient evidence supports his bail-jumping conviction. We do not separately analyze Mr. Gomez’ cumulative pro se contentions because they are adequately addressed by his appellate counsel. See RAP 10.10(a) (a defendant may file a statement of additional grounds to identify matters he or she believes have not been adequately addressed in counsel’s brief.). Turning to Mr. Gomez’ pro se evidence sufficiency concerns related to his second degree theft conviction, a person is guilty of second degree theft when he or she commits theft of property or services exceeding $250 in value but not exceeding $1,500 in value. RCW 9A.56.040(1)(a). “Theft” is defined as “[t]o wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property.” RCW 9A.56.020(1)(a).

Officer Barrowman testified he saw nine sheets of plywood in the back of Mr. Gomez’ truck. Contrary to Mr. Gomez’ assertion, the owner did not give Mr. Gomez permission to take the plywood. The plywood was in good condition and not scrap wood. Each sheet was valued at approximately $41. The combined evidence sufficiently supports Mr. Gomez’ second degree theft conviction.

B. Vindictive Prosecution
Finally, Mr. Gomez asserts, without support in the record, that the State filed the bail-jumping charge after he declined to plead guilty to the second degree theft charge. A defendant’s bare assertion that the prosecutor’s charging decision was vindictive is insufficient to support a claim of vindictive prosecution. State v. Terrovonia, 64 Wn. App. 417, 422-23, 824 P.2d 537 (1992). Accordingly, his claim fails.

Affirmed, but remanded to correct agreed scrivener errors.

A majority of the panel has determined 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.

SWEENEY, C.J. and KORSMO, J., concur.

Page 1042