State v. Chavez-Romero

285 P.3d 195, 170 Wash. App. 568
CourtCourt of Appeals of Washington
DecidedSeptember 11, 2012
DocketNo. 28462-0-III
StatusPublished
Cited by18 cases

This text of 285 P.3d 195 (State v. Chavez-Romero) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Chavez-Romero, 285 P.3d 195, 170 Wash. App. 568 (Wash. Ct. App. 2012).

Opinions

Kulik, J.

¶1 While searching for the source of a 911 hang-up cell phone call, police found 21-year-old Jose G. Chavez-Romero in the backseat of a car with his girl friend, a 13-year-old. Franklin County charged Mr. Chavez-Romero with second degree child rape. At the pretrial hearing held one week before the expiration of Mr. Chavez-Romero’s 60-day time for trial date, the State failed to produce its [572]*572witness. The State asked the trial court to release Mr. Chavez-Romero on his own recognizance and move his trial date within the applicable 90-day time for trial period. Mr. Chavez-Romero objected to the release, explaining that he would immediately be detained by United States Immigration and Customs Enforcement (ICE), which would cause him to miss his next court date. Nevertheless, the trial court released Mr. Chavez-Romero and, as predicted, he missed his next court date due to his detainment by ICE. The trial court reset Mr. Chavez-Romero’s trial date because he failed to appear. Again, Mr. Chavez-Romero objected. At trial, a jury convicted Mr. Chavez-Romero of the lesser offense of third degree child rape. Mr. Chavez-Romero appeals. He contends that his release resulted in a violation of his right to a speedy trial. We find that Mr. Chavez-Romero did not receive a speedy trial under CrR 3.3 and dismiss his conviction with prejudice. Because the remedy for a CrR 3.3 violation is dismissal, it is not necessary to address the issues regarding the findings of fact or the suppression motion. We will also not address Mr. Chavez-Romero’s claim under CrR 8.3.

FACTS

¶2 On February 22, 2009, an unknown person placed a 911 hang-up call from the area of the Bonnie Brea apartments and trailer park in Pasco, Washington. The call came from a cell phone. Dispatch called the number back, and the caller told dispatch that she did not need any help. Dispatch heard someone in the background say “ ‘drop the bat.’ ” Report of Proceedings (RP) (June 2, 2009) at 14. Officers Eric Fox, Robert Harris, and Michelle Goenen1 arrived at the apartment complex within a couple of minutes.

¶3 While searching for the source of the 911 hang-up call, Officer Harris noticed a vehicle parked in back of the trailer park with an occupant in the backseat. Officer [573]*573Harris shined his spotlight on the car and approached the driver’s side door. He knocked on the window, opened the back door, and asked Mr. Chavez-Romero for identification. Officer Harris found Mr. Chavez-Romero sitting in the backseat with a female occupant, M.L. Officer Harris advised Mr. Chavez-Romero and M.L. of the 911 hang-up call. Dispatch again called the telephone number associated with the 911 call, but no telephone rang in the vehicle. Officer Harris requested a warrant check on Mr. Chavez-Romero.

¶4 Officer Goenen and Officer Fox arrived at the vehicle while Officer Harris was talking to Mr. Chavez-Romero. Officer Goenen noticed an alcoholic beverage in the front cup holder of Mr. Chavez-Romero’s car. Officer Fox removed M.L. from the car. M.L. told Officer Goenen that she was 13 years old, that Mr. Chavez-Romero was her boyfriend, and that they had had sex sometime within the past few months. Officer Goenen determined that Mr. Chavez-Romero was 21 years old. Mr. Chavez-Romero confirmed that M.L. was his girl friend.

¶5 Officer Fox transported Mr. Chavez-Romero to jail, based on Officer Goenen’s belief that a crime had been committed. Mr. Chavez-Romero told a Spanish speaking officer at the jail that M.L. made statements about her age which led Mr. Chavez-Romero to believe that she was 15 years old. Mr. Chavez-Romero was charged with second degree rape of a child.

¶6 Procedural History — Arraignment. On March 3,2009, Mr. Chavez-Romero was arraigned on the charge of third degree rape of a child, later amended to second degree rape of a child. Trial was set for April 29, the 57th day following arraignment. For purposes of the speedy trial rule, CrR 3.3, the 60th day after arraignment was May 2 and the 90th day after arraignment was June 1. Mr. Chavez-Romero did not post bail and remained in custody.

¶7 April 21 (Pretrial Hearing). At the April 21 pretrial hearing to address Mr. Chavez-Romero’s suppression mo[574]*574tion, the State did not have its witness present. The State requested that the trial court postpone the suppression hearing for one week. The State also requested that the court release Mr. Chavez-Romero on his own recognizance and reset the trial date to coincide with the 90-day speedy trial date.

¶8 Mr. Chavez-Romero expressed concern about his release because of an ICE hold against him. The ICE hold meant that he would be taken into custody by ICE upon release from jail. Mr. Chavez-Romero wanted to resolve the charges against him and proceed to trial. The trial court and prosecutor discussed the issue:

THE COURT: I don’t know what the immigration [sic] will do with him if we drop our hold.
MR. CORKRUM: I don’t know, your Honor. That shouldn’t be this Court’s concern. That’s a federal matter.
THE COURT: I know. It isn’t my concern, but you may lose your defendant.
MR. CORKRUM: That’s his problem, your Honor. I’ll ask for a warrant at that time.

RP (Apr. 21, 2009) at 3.

¶9 The trial court reset the trial date to May 13. The pretrial suppression hearing was rescheduled for April 28. The trial court released Mr. Chavez-Romero on his own recognizance and ordered him to report to court on April 28. Mr. Chavez-Romero formally objected to his release and to the trial court’s decision to reset the trial beyond the 60-day speedy trial date of May 2.

¶10 April 28 (Rescheduled Pretrial Hearing). Mr. Chavez-Romero failed to appear for the pretrial hearing on April 28. The State advised the trial court that the court had limited discretion when an individual fails to appear for a mandatory hearing. The State requested that the trial court issue a bench warrant for Mr. Chavez-Romero’s arrest and strike the trial date based on Mr. Chavez-Romero’s failure to appear.

[575]*575¶11 Counsel for Mr. Chavez-Romero appeared on behalf of her client. She informed the trial court that Mr. Chavez-Romero was currently in the custody of ICE and was not willfully failing to appear. Counsel reminded the trial court that she had previously objected to Mr. Chavez-Romero’s release. She also reminded the trial court that Mr. Chavez-Romero was ready to proceed at the April 21 pretrial hearing and that the State had requested the continuance, knowing that Mr. Chavez-Romero would not be able to attend the hearing.

¶12 Counsel for Mr. Chavez-Romero asked the trial court to set over the pretrial hearing for one week to allow Mr. Chavez-Romero to file a motion for discretionary review of the trial court’s decision to release him. Instead, the trial court issued the bench warrant and struck the trial date for Mr. Chavez-Romero’s failure to appear.

¶13 On April 29, Mr. Chavez-Romero’s counsel filed a written objection to the trial court’s decision to release him on his own recognizance while knowing of the immigration hold. Mr. Chavez-Romero also objected to the trial court’s issuance of a bench warrant for his failure to appear at the April 28 hearing. Mr.

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Bluebook (online)
285 P.3d 195, 170 Wash. App. 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chavez-romero-washctapp-2012.