State v. Veliz

160 Wash. App. 396
CourtCourt of Appeals of Washington
DecidedMarch 8, 2011
DocketNo. 28495-6-III
StatusPublished
Cited by5 cases

This text of 160 Wash. App. 396 (State v. Veliz) 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. Veliz, 160 Wash. App. 396 (Wash. Ct. App. 2011).

Opinion

¶1 Jose R. Veliz Jr. appeals his conviction for custodial interference in the first degree, imposed after he took his four-year-old daughter out of the country for four months in violation of his wife’s rights under an order for protection. He challenges his conviction on the basis that an order for protection does not constitute a “court-ordered parenting plan” within the meaning of the statute establishing felony custodial interference; that even if such an order constitutes a court-ordered parenting plan, the order was improperly completed and cannot support the conviction; and that the evidence was insufficient to convict him of the offense for the charging period identified in the information. He also argues that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence.

Siddoway, J.

¶2 We conclude that the term “court-ordered parenting plan” as used in RCW 9A.40.060(2) encompasses any valid [400]*400court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the order for protection in this case. The evidence sufficed to establish that Mr. Veliz committed the offense during the charging period and the trial court did not abuse its discretion in admitting the challenged evidence. We therefore affirm the conviction.

FACTS AND PROCEDURAL BACKGROUND

¶3 Jose R. Veliz Jr. and Lorena Velasco were in a relationship for approximately seven years, beginning in 2001. They have a daughter, NV, who was born in January 2004. They later married in 2006 but separated in April 2008.

¶4 At the time of their separation, Ms. Velasco applied for an order for protection against Mr. Veliz under RCW 26.50.020. We have no record from those proceedings other than the order for protection itself. Although the order recites that Ms. Velasco alleged domestic violence, its terms were largely addressed to sorting out residency, property, and visitation issues between the parties. Ms. Velasco’s petition was heard by the superior court on May 5, 2008, with both Ms. Velasco and Mr. Veliz in attendance. The order entered at the conclusion of the hearing was prepared using a standard order for protection form, which includes some required and some optional provisions, as well as room for handwritten detail or modification. See RCW 26.50.035(1). Some handwritten terms had been added to the order prior to the hearing and others were added by the court. The order was signed by Ms. Velasco, the judge, and Mr. Veliz, acknowledging his receipt of a copy.

¶5 Most of the preprinted terms of the order are preceded by a box in the left-hand margin. Nothing on the order explains the significance of the boxes, although the implication to someone familiar with such forms is that the boxes are marked to indicate which terms of the order apply in a given matter. In the case of the May 5 order, however, it appears on the face of the order that this convention was [401]*401not followed. Boxes next to some terms are marked. Boxes next to many other terms are not marked, even though a number of these terms are marked internally or have been completed with handwritten detail and bear the initials of the judge. One of the terms whose marginal box is unmarked has been stricken through with hash marks, suggesting that it alone is intended to be excluded as a term.

¶6 Among terms significant in this case are that NV is identified as a minor child in a table on the first page of the order. The box preceding the term numbered 2 is marked, and reads as follows:

0 2. Respondent is Restrained from coming near and from having any contact whatsoever, in person or through others, by phone, mail, or any means, directly or indirectly, except for mailing or service of process of court documents by a 3rd party or contact by Respondent’s lawyer(s) with 0 petitioner 0 the minors named in the table above □ these minors only:
If both parties are in the same location, respondent shall leave.

Clerk’s Papers (CP) at 36. The box preceding the term numbered 12 is unmarked but an interior box is marked, causing the term to read as follows:

□ 12. Petitioner is Granted the temporary care, custody, and control of 0 the minors named in the table above 0 these minors only:

CP at 37. Finally, the box preceding the term numbered 15 is unmarked but the space reserved for handwritten terms is completed and initialed “RGS,” the initials of the judge. The full term reads as follows, with italicized text indicating the handwritten portion:

0 15. The respondent will be allowed visitations as follows: Weekends Saturdays & Sundays or in accordance with a court approved parenting plan. Sat & Sunday Sat from 10 am to Sunday at 5 pm.
RGS
Petitioner may request modification of visitation if respondent fails to comply with treatment or counseling as ordered by the court.

[402]*402Id. Ms. Velasco understood these terms to give Mr. Veliz visitation rights to see NV only at the indicated time on weekends, which he exercised without incident in May, June, and July.

¶7 Mr. Veliz filed for divorce shortly after entry of the order for protection. An order approving a parenting plan was entered thereafter, but not until August 25, 2008. It, too, provided for weekend-only visitation for Mr. Veliz, from Saturday at 10 a.m. to Sunday at 5 p.m. CP at 26.

f 8 On the weekend of August 16 and 17, 2008, Mr. Veliz picked up NV on Saturday as usual. He did not return her by Sunday at 5 p.m. At approximately 6 p.m., Ms. Velasco called the police. Over the next couple of weeks, officers visited Mr. Veliz’s place of employment, his parents, and one of his close friends, but were unable to determine his whereabouts. On August 22 he was charged by information with custodial interference in the first degree under RCW 9A.40.060(2)(a). The information charged that Mr. Veliz,

during the time intervening between the 16th day of August, 2008, and the 17th day of August, 2008, then and there, being the parent of and with intent to deny access from Lorena [Velasco], the other parent having the lawful right to time with N.V. pursuant to a court ordered parenting plan, did retain N.V., a child under eighteen years of age, and intended to hold N.V. permanently or for a protracted period.

CP at 24. Police reported NV as a missing child to a national registry and obtained a nationwide warrant for Mr. Veliz’s arrest.

¶9 It was later determined that Mr. Veliz had taken NV to Los Angeles and thereafter to Mexico. He claimed that his purpose in traveling to Mexico was so that he and NV could meet Ms. Velasco’s family. During his time in Mexico, neither he nor NV ever contacted Ms. Velasco. Ms. Velasco testified that she never heard from any family members in Mexico during the four months that Mr.

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Related

State Of Washington v. Steven Mikeal Sommer
Court of Appeals of Washington, 2014
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259 P.3d 1145 (Court of Appeals of Washington, 2011)

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Bluebook (online)
160 Wash. App. 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-veliz-washctapp-2011.