FILED MAY 6,2014 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
STATE OF WASHINGTON, ) ) No. 31165-1-III Respondent, ) ) v. ) ) JAMES GREGORY CASTILLO, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - James Gregory Castillo fled the state in 1998 after raping a
woman. In 2010, he was arrested and put on trial. A jury convicted him and the trial
court sentenced him to life in prison under the Persistent Offender Accountability Act
(POAA), RCW 9.94A.570. We reject his argument that his constitutional right to a
speedy trial was violated. We also reject his contentions that the court erred by originally
denying his request to represent himself, in excluding hearsay testimony from the
victim's husband, and in failing to require the jury to fmd the existence of his prior
conviction. We affirm. No. 31165-1-III State v. Castillo
FACTS
On June 30, 1998, Mr. Castillo raped a female acquaintance. She immediately
reported the rape. That same day, law enforcement obtained and executed an arrest
warrant for Mr. Castillo at his home. He was not present.
Acting on information from a confidential informant, law enforcement obtained an
arrest warrant for Mr. Castillo at his sister's home in California. The second warrant was
executed just days after the first. Again, Mr. Castillo was not present.
At this point, law enforcement started soliciting tips from the public. Sheriffs
deputies sent Mr. Castillo's information out to local print and television news media. In
2000,2001, and 2002, deputies included Mr. Castillo's information in the local Crime
Stoppers bulletin.
In late December 2007, Mr. Castillo appeared again trying to enter the United
States at a border crossing from Mexico. The Border Patrol found that Mr. Castillo had
an outstanding warrant for the rape and contacted law enforcement in Washington to get
instructions. The Border Patrol released him upon learning that the warrant was not
extraditable.
Law enforcement finally arrested Mr. Castillo in Las Vegas in 2010. The record
does not provide the circumstances leading up to this arrest other than to show that he
was living in Las Vegas at the time.
No. 31165-1-111 State v. Castillo
Prior to trial, Mr. Castillo sought to have the charge dismissed because the delayed
apprehension violated his constitutional right to a speedy trial. He argued that law
enforcement should have caught him sooner because he had been living openly in Las
Vegas throughout the intervening years. To support his claim, Mr. Castillo provided
documents showing that he had been living in Las Vegas since 2009. The trial court
denied the motion.
On the same day that counsel argued the speedy trial motion, Mr. Castillo made
multiple attempts to dismiss counsel and represent himself. During the morning court
session on January 13,2012, Mr. Castillo filed a detailed motion requesting to proceed
pro se that explained why he could not get along with counsel and why he felt
comfortable and competent to represent himself. The court did not engage in a colloquy
with Mr. Castillo, but instead denied the motion because he was not ready to argue the
speedy trial motion later that day in place of counsel. However, the court indicated that
the self-representation motion could be revisited later that day if the motion to dismiss
was denied.
A visiting judge heard-and denied-the speedy trial motion that afternoon. Mr.
Castillo then renewed his motion to represent himself. The court engaged in a colloquy
with Mr. Castillo, who unequivocally requested to represent himself. Nonetheless, the I i court denied the motion because it did not feel comfortable with his legal skills. I i I ! , I
3 f ~ No. 31165-1-II1 State v. Castillo
A week later, Mr. Castillo renewed his motion to represent himself. The motion
was heard by a third judge at Mr. Castillo's next court hearing on January 31. After a
lengthy colloquy, the court granted self-representation. Mr. Castillo then represented
himself at trial.
Mr. Castillo's first trial ended in a hung jury. Prior to the second trial, Mr. Castillo
again reargued the speedy trial claim. He alleged that he was unaware of the pending
charge and that Border Patrol had detained him without explaining why. The trial court
again denied the motion to dismiss.
During the second trial, Mr. Castillo sought to call the victim's husband to testify.
The court excluded the witness because the only evidence that Mr. Castillo sought to
elicit was inadmissible hearsay. The second trial ended in a conviction. The court
sentenced him to life in prison as a persistent offender. Mr. Castillo thereafter timely
appealed to this court.
ANALYSIS
This appeal presents constitutional challenges raising speedy trial and self-
representation claims, as well as a hearsay issue and a sentencing-related claim.} We will
address those challenges in the noted order.
} Mr. Castillo also presents several additional issues in his pro se statement of additional grounds. We have reviewed those arguments and concluded they are without merit. We will not further address them.
No. 31 165-I-III State v. Castillo
Speedy Trial I I
The initial argument we consider is whether Mr. Castillo's speedy trial rights I I under the Sixth Amendment and article I, section 22 of the Washington Constitution were
violated by the lengthy time period between the offense and the trial. We conclude that I his argument fails under the facts of this case. I The rights provided by the two constitutions are equivalent. State v. Iniguez, 167 I Wn.2d 273, 290, 217 P.3d 768 (2009). We review de novo an allegation that these rights ! have been violated. Id. at 280. Because some delay is both necessary and inevitable, the I appellant bears the burden of demonstrating that the delay between the initial accusation I and the trial was unreasonable and created a "presumptively prejudicial" delay. Id. at I 283. Once this showing is made, courts must consider several nonexclusive factors in
order to determine whether the appellant's constitutional speedy trial rights were violated. I ! Id. These factors include the length and reason for the delay, whether the defendant has
asserted his right, and the ways in which the delay caused prejudice. Barker v. Wingo, i I 407 U.S. 514, 530, 92 S. Ct. 2182,33 L. Ed. 2d 101 (1972). None of the Barker factors
are either sufficient or necessary to demonstrate a constitutional violation. Iniguez, 167 I Wn.2d at 283. I i There was a delay of nearly a dozen years between the offense and the I i arraignment. This time period is more than sufficient to meet the defendant's initial
I , I No.31165 M I-III State v. Castillo
burden. ld. at 291 M92. It is thus necessary to tum to the four Barker factors to determine
if the constitutional guarantee was violated.
The first factor is the length of the delay. Specifically, the concern is the
difference between the time necessary to prepare for trial and the time within which the
case is actually tried. This was a moderately complex case due to the offense involved,
but still did not need a large amount of pretrial preparation given the limited number of
witnesses. Thus, the lengthy delay is a factor that weighs in Mr. Castillo's favor.
The second factor is the reason for the delay; this factor looks at the comparative
contributions of the parties to the delay. ld. at 294. Here, the delay is largely attributable
to Mr. Castillo. His immediate flight caused the initial-and very lengthy-delay. He
did not surface again until over nine years after the rape, and it was another two and half
years before he was arrested. Mr. Castillo contends that his case is factually similar to
the decision in Doggett v. United States, 505 U.S. 647, 120 L. Ed. 2d 520, 112 S. Ct.
2686, (1992).
In Doggett, there was an eight and a half year delay between indictment and arrest.
505 U.S. at 648. Shortly after obtaining the indictment, Drug Enforcement
Administrative (DEA) officers sought to arrest Doggett at his parents' house. He was not
there, and his mother told officers that he had left for Colombia four days earlier. ld. at
649. A year and a half after the indictment, the DEA learned that Doggett had been
arrested in Panama and was facing charges. Believing that formal extradition would be
No. 31165-1-I11 State v. Castillo
futile, the DEA instead asked Panama informally to expel Doggett to the U.S. once his
Panamanian charges had been dealt with. Panama agreed, but freed Doggett anyway-
letting him return to Colombia. ld. at 649.
At the post-indictment two and a half year mark, Doggett return to the United
States, through customs, unhindered. He then lived openly in the United States for
another six years, during which he got married, finished college, and held a steady job as
a computer operations manager. ld. at 649-50. Eight and a half years post-indictment,
U.S. Marshals discovered his location after running "a simple credit check on several
thousand people subject to outstanding arrest warrants." ld. at 650.
The United States Supreme Court found a violation of the Sixth Amendment,
concluding that since Mr. Doggett did not know that he had been indicted and the
government failed to do anything after he left Panama, the lengthy delay violated the
constitution. ld. at 656. Given some factual similarities between that case and his, Mr.
Castillo understandably relies upon Doggett here, although we believe important
distinctions exist between the two cases.
Critical in Doggett was the fact that Mr. Doggett was unaware of the indictment
and, thus, did not intentionally cause the delay by going to Columbia. The trial court
understandably reached a different conclusion here. Mr. Castillo fled Yakima within
hours of the attack and was just ahead of law enforcement, leaving many of his
belongings and his wife behind. The police also appear to have just missed him in
!
I i I No. 31165-1-III j State v. Castillo I I California before Mr. Castillo fled to Mexico and the trail went cold. The trial court was I I able to conclude, unlike in Doggett, that Mr. Castillo's flight was the reason for the delay I in bringing him to trial. I Mr. Castillo also argues that the detention by the Border Patrol at the end of 2007 I put Yakima County on notice that he was in the country and renewed its duty to find him. I i On this record, it is unclear when Yakima County learned about the detention. It is clear I [
that the Border Patrol released Mr. Castillo after learning the warrant was not I f extraditable, but it is unclear whether state or federal authorities made that determination. !~ I f
! The record does show that Yakima was in contact with the Border Patrol shortly after the
stop and continued to be until Mr. Castillo was located in Las Vegas in 2009. 2 But even f if the State of Washington was alerted to Mr. Castillo's presence in the country in J t December 2007, it only marginally aids Mr. Castillo. This court has previously t ~.
determined that there is no duty to extradite and did not hold a similar failure against the
State for speedy trial purposes in State v. Monson, 84 Wn. App. 703, 710-12, 929 P.2d I l 1186 (1997). It also does not appear that the Border Patrol was able to supply any f information on where to find Mr. Castillo after he was released. i Although the December 2007 border stop was a missed opportunity to bring Mr. I f ~. Castillo back sooner, it does not appear that government negligence contributed to the f
2Perhaps coincidentally, the documentation provided by Mr. Castillo to show that he was living openly in Las Vegas also is all from 2009. I I f ~~
8 l , ! ~
L No. 31165-I-III State v. Castillo
delay after that period. On balance, we believe that because Mr. Castillo's flight caused
the delay and is primarily responsible for its length, we conclude that this factor favors
the State.
The third factor is whether or not Mr. Castillo asserted his right to a speedy trial.
Iniguez, 167 Wn.2d at 294-95. He did not. While he sought dismissal of the case once
he was in Yakima, he never asserted his right to a speedy trial prior to that time. During
the period that it took to bring this case to trial after his return, Mr. Castillo's repeated
efforts to change counselled to further delay that cannot be attributed to the State.
Although he subsequently argued pro se that he was never aware of the arrest
warrant, including after his detention by the Border Patrol, the trial court was not required
to accept his assertion. In view of his flight and given that Mr. Castillo was living with
his wife3 in Nevada when arrested, it is quite reasonable to infer that he knew he was
facing charges. This fact, too, takes this case outside of Doggett. While Mr. Doggett's
ignorance of the pending charge prevented him from asserting his right to a speedy trial
under the constitution, Mr. Castillo's refusal to act despite his apparent knowledge leads
to the opposite conclusion. This factor, too, favors the State rather than Mr. Castillo. I The final factor is whether the defendant was prejudiced by the delay. Iniguez, i 167 Wn.2d at 295. There was no prejudice here. Mr. Castillo remained out of custody I i l J According to defense counsel, she was present when officers initially tried to 3 serve the arrest warrant on the day of the rape. ! I ! I 9 (
t ! No. 31165-1-111 State v. Castillo
the entire period in which the police sought him. There is no evidence that his ability to
present a defense was hindered by the passage oftime. He was able to present his
defense despite the lengthy delay. There also was no evidence presented suggesting that
he worried about the pending charge or that it otherwise impacted his life. 4 This factor,
too, favors the State.
On balance, the Barker factors favor the State. Only the lengthy delay factor
favors Mr. Castillo. The other factors, in contrast, favored the State. Given that Mr.
Castillo's rapid flight from Yakima County triggered the whole situation, it is
understandable that his right to a speedy trial was not violated.
Self-Representation
Mr. Castillo successfully argues that his right to self-representation was violated
when the visiting judge denied his request because of concerns about his legal skills.
However, this error did not amount to structural error because the next trial judge
corrected the error before there were any other proceedings. He also received the remedy
that would have been required ifthere had been structural error. For both reasons, this
claim does not succeed.
The Sixth Amendment guarantees the right to counsel in criminal cases. Gideon v.
Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799,83 S. Ct. 792 (1963). Washington's state
4Indeed, ifhis pro se assertion were accepted, Mr. Castillo was blissfully unaware of the charge until his 2010 arrest.
No.3ll65-l-III State v. Castillo
constitution likewise guarantees the right to counsel in all criminal cases. Gensburg v.
Smith, 35 Wn.2d 849, 856,215 P.2d 880 (1950). Both constitutions recognize that the
right to counsel may be waived and that a defendant can engage in self-representation.
Faretta v. Cal., 422 U.S. 806,45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975); State v. Madsen,
168 Wn.2d 496,503,229 PJd 714 (2010) (citing WASH. CONST. art. I, § 22). The right
to self-representation is implicit in the Sixth Amendment, but explicit in article I, section
22. Deprivation of this right is considered to be structural error. Neder v. United States,
527 U.S. 1,8,144 L. Ed. 2d 35,119 S. Ct. 1827 (1999) (listing instances of structural
error).
In order to exercise the right to self-representation, the criminal defendant must
knowingly and intelligently waive the right to counsel after advice about the dangers and
disadvantages of self-representation. Faretta, 422 U.S. at 835. A thorough colloquy on
the record is the preferred method of ensuring an intelligent waiver of the right to
counsel. City o/Bellevue v. Acrey, 103 Wn.2d 203, 211,691 P.2d 957 (1984).
While courts must carefully consider the waiver of the right to counsel, an
improper rejection of the right to self-representation requires reversal. Madsen, 168
Wn.2d at 503. Courts should engage in a presumption against waiver of counsel. Id. at
504. However, there are limits on a court's ability to act in the defendant's best interests.
This presumption does not give a court carte blanche to deny a motion to proceed pro se. The grounds that allow a court to deny a defendant the right to self-representation are limited to a finding that the
No. 31165-1-III State v. Castillo
defendant's request is equivocal, untimely, involuntary, or made without a general understanding of the consequences. Such a finding must be based on some identifiable fact; the presumption in [In re Det. of]Turay[, 139 Wn.2d 379,986 P.2d 790 (1999)] does not go so far as to eliminate the need for any basis for denying a motion for pro se status. Were it otherwise, the presumption could make the right itself illusory.
Id. at 504·05. The defendant's "skill and judgment" is not a basis for rejecting a request
for self-representation. 5 State v. Hahn, 106 Wn.2d 885, 890 n.2, 726 P.2d 25 (1986).
Because Mr. Castillo was not prepared to undertake argument of the pending
motion to dismiss, the trial judge who heard the request on the morning of January 13
properly denied the request as it would lead to further delay in considering the pending
motion. However, the visiting judge erred in rejecting the request that afternoon
following the denial of the motion to dismiss. Mr. Castillo's lack of skill was not a basis
for rejecting the request. Id.
However, the error did not amount to structural error in the context of this case
because it did not deprive Mr. Castillo of any opportunity to represent himself. Promptly
after the motion was denied, he again filed a pro se motion to allow self-representation.
At the very next court appearance the trial judge heard and granted the request. Mr.
Castillo suffered no loss because of the visiting judge's erroneous denial of his request.
5 Only where mental illness leaves the defendant without mental capacity to try the case by himself does the constitution permit the government to override the desire for self-representation. Indiana v. Edwards, 554 U.S. 164, 171 L. Ed. 2d 345, 128 S. Ct. 2379 (2008).
12 I f No. 31165·1-111 , ~
" I State v. Castillo I i
There were no intervening court appearances and no lost opportunity for Mr. Castillo to I represent himself. Under these circumstances, finding structural error would be the I l equivalent of ruling that a trial judge could not successfully grant reconsideration of an
erroneous rejection of a Faretta waiver. Once the error occurred, even immediate
correction would be too late. Mr. Castillo presents no authority that suggests the error I t i i I. itself, apart from the consequent denial of an opportunity to proceed pro se, constitutes ! ~ t , r structural error. Rather, it is the denial of the opportunity that results in a new trial. { : McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944,79 L. Ed. 2d 122 (1984) f ("Since the right of self·representation is a right that when exercised usually increases the f ;
likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to
'harmless error' analysis. The right is either respected or denied; its deprivation cannot
be harmless.")
Moreover, even if the error itselfwere uncorrectable, it would be of no moment
under the facts of this case. After the erroneous ruling by the visiting judge (and its
correction by a different judge on January 31), the case proceeded to the first trial with
Mr. Castillo representing himself. That action ended in a mistrial and a second trial at
which Mr. Castillo again represented himself. He thus received the remedy that he would
have received if the first trial had been conducted by counsel in violation of the Faretta
waiver. The error prior to the first trial did not somehow impact the second trial that
13 No. 31165-1-111 State v. Castillo
proceeded under a valid Faretta waiver. Ifwe were to grant the requested remedy here it
would necessarily apply to each and every subsequent trial of this case.
There was no structural error because no opportunity to exercise the right of self-
representation was lost to Mr. Castillo as a result of the visiting judge's error. The
mistrial of the first case also granted the same remedy that the visiting judge's error
would have required-a second trial. For both reasons, his Faretta argument is without
merit.
Hearsay Testimony
The only trial issue presented is an argument that the trial judge erroneously
excluded testimony from the victim's husband. Since the offer of proof showed the
husband had no admissible evidence, the trial court did not err.
The principles governing review of evidence-related arguments are well-settled.
ER 401 provides in part that evidence is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable." Subject to limitations imposed by other rules or constitutional
principles, relevant evidence is admissible. ER 402. A trial judge's decision to admit or
exclude evidence under these provisions is reviewed for abuse of discretion. Diaz v.
State, 175 Wn.2d 457,462,285 P.3d 873 (2012). Discretion is abused when it is
exercised on untenable grounds or for untenable reasons. State ex ref. Carroll v. Junker,
79 Wn.2d 12,26,482 P.2d 775 (1971).
14 No. 31165-1-III State v. Castillo
In some circumstances the constitution requires that state evidentiary rules give
way to the constitutional right to present a defense. E.g., State v. Jones, 168 Wn.2d 713,
719-21,230 P.3d 576 (2010). There is, however, no constitutional right to present
irrelevant evidence. Id. at 720. If a court excludes relevant evidence to the point where it
effectively prevents presentation of the defense, the constitutional right is violated. Id. at
721. Mr. Castillo argues this case presents one of those situations. We disagree.
At trial, Mr. Castillo sought to call the victim's husband in order to attempt to
prove that Mr. Castillo was having an affair with the victim. On appeal, Mr. Castillo
argues that this evidence was relevant to impeach the victim's testimony by showing her
bias against him.6 Neither theory has any basis in the record. The fundamental problem
is that no one asked the victim if she was having an affair with the defendant nor did the
defendant testify that he was in a relationship with her. The husband did not witness the
incident underlying the rape charge and was in no position to opine whether or not that
incident was consensual. Any statement by the victim would constitute hearsay if
repeated by her husband. Finally. there was nothing to impeach since the victim did not
testify about an alleged affair. For all of these reasons, the argument fails.
6 A party cannot present an evidentiary argument on appeal that is different than the argument made to the trial court. State v. Guioy, 104 Wn.2d 412,422, 705 P.2d 1182 (1985). For this reason, too, the argument fails.
15 No. 31165-1-111 State v. Castillo
There was no abuse of discretion in excluding the irrelevant testimony from the
victim's husband.
Sentencing Arguments
Mr. Castillo also challenges his persistent offender sentence on the basis of
arguments that the Washington Supreme Court has previously rejected. We need discuss
these claims only in a summary fashion because this court is bound by decisions of the
Washington State Supreme Court. State v. Gore, 101 Wn.2d 481,486-87,681 P.2d 227
(1984).
Mr. Castillo first contends that his equal protection rights were violated because
our statutes provide that the judge rather than the jury must find the existence of a prior
sexual offense. We have previously rejected this argument. State v. Williams, 156 Wn.
App. 482, 496-98, 234 P.3d 1174, review denied, 170 Wn.2d 1011 (2010).
Mr. Castillo next argues that his constitutional right to a jury trial and his right to
due process both were violated by not referring the existence of his prior conviction to
the jury. The Washington State Supreme Court rejected the due process argument in
State v. Manussier, 129 Wn.2d 652,682-84,921 P.2d 473 (1996), and reaffirmed that
decision in State v. Wheeler, 145 Wn.2d 116, 123-24, 34 P.3d 799 (2001) (holding that
the United States Supreme Court's opinion in Apprendi did not affect Manussier and
other similar cases).
16 No. 31165-1-111 State v. Castillo
The Washington State Supreme Court also rejected the Sixth Amendment/article I,
section 22, jury trial argument in State v. Smith, 150 Wn.2d 135, 147-55, 75 P.3d 934
(2003). The Washington State Supreme Court reaffirmed these holdings in State v.
Thiefault, 160 Wn.2d 409,418-20, 158 P.3d 580 (2007). This court is not in a position to
revisit those claims. Gore, 101 Wn.2d at 486-87.
The conviction and sentence are affirmed.
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.
WE CONCUR:
1~s
Fear~ ,