### FILED OCT 13,2015 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OFWASHINGTON, ) ) No. 32390-1-111 Respondent, ) (Consolidated with ) No. 32391-9-111; No. 32392-7-111) 

### v. ) ) L

YZETTE VARGAS, ) ) UNPUBLISHED OPINION Appellant. ) BROWN, A.C.J.
- LyzetteVargas appeals herconvictions for unlawful possession ofa controlled substance, possession with intentto manufacture ordelivera controlled substance, and theftofa motorvehicle. She contends the trial courterred in denying her prejudgment motion towithdraw herguilty plea. She argues insufficient facts supportthe theft ofa motorvehicle charge. In herstatement ofadditional grounds for review (SAG), Ms. Vargas expresses concerns aboutthe circumstances surrounding her plea, her cooperation with theterms ofthe plea agreement, and the bar complaints she made regarding her counsel's performance. Weaffirm. FACTS The State charged Ms. Vargaswith unlawful possession ofclonazepam (No. 32390-1-111), possession of methamphetaminewith intentto manufacture ordeliver (No. 32391-9-111), and theft ofa motorvehicle (No. 32392-7-111). As partofa global pleaNo. 32390-1-111 cons. w/ No. 32391-9-111; No. 32392-7-111 State v. Vargas agreement encompassing all three charges, the State agreed to recommend a reduced and concurrent sentence in exchange for Ms. Vargas' agreement she would work with a drug task force as a confidential informant. In accepting her guilty plea to theft of a motorvehicle, the trial court incorporated the affidavit of probable cause with the following statement made by Ms. Vargas in her statement on plea ofguilty: "On 8/16/13 I had borrowed a 1997 Ford Explorer + I did not return itwhen requested." Clerk's Papers (CP) at 215. Ms. Vargas did not attempt to work with the task force. She later moved to withdraw her guilty pleas to all three charges, arguing her guilty plea to theft ofa motor vehicle lacked afactual basis. 1 The court denied the motion, concluding "the statement ofwhat [Ms. Vargas] believes makes her guilty in her Statement on Plea ofguilty satisfied all the required elements ofthe charge ofTheft ofa MotorVehicle." CP at 250. Ms. Vargas appealed. ANALYSIS The issue is whetherthe trial court erred by not allowing Ms. Vargas to withdraw her guilty pleas. Ms. Vargas contends her guilty plea to theft ofa motorvehicle lacked a factual basis because the record is insufficientto show she had any intentto deprive the
owner ofthe vehicle.

1 Atthe hearing on the motion, the State agreed if Ms. Vargas was allowed to withdraw her plea to theft ofa motorvehicle, she could withdraw her pleas to the other two charges as the plea agreement resolved all three cases. 

### 2No. 32390-1-111 cons. wI No. 32391-9-111; No. 32392-7-111 State v. Vargas
CrR 4.2(f) allows a defendantto withdraw her plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice." This is a demanding standard. State v. Zhao, 157Wn.2d 188, 197, 137 P.3d 835 (2006). Manifest injustice includes instances when the plea was not voluntary. Id. (quoting State 

### v. Marshall, 144 Wn.2d 266, 281,27 P.3d 192 (2001)). Ms. Vargas contends her plea was involuntary because it lacked a factual basis. We overturn a trial court's denial of motion to withdraw a plea solelyfor abuse ofdiscretion. Id. CrR 4.2(d) requires the trial court to find a factual basis supporting the plea. In determining whether a factual basis exists forthe plea, the court does not need to be convinced the defendant is guilty beyond a reasonable doubt. State v. Arnold, 81 Wn. App. 379, 382, 914 P.2d 762 (1996). "Instead, a factual basis exists ifthe evidence is sufficientfor ajury to conclude that the defendant is guilty." Id. Any reliable source of information, provided it is a part ofthe record at the time ofthe plea, may be considered by the court when determining whether sufficient evidence supports the plea. Id. at 382-83 (stating the prosecutor's factual statement contained in the certificate of probable cause can provide the factual basis for a guilty plea if it was before the court and made a part ofthe record at the time ofthe plea). A person commits theft ofa motorvehicle ifshe wrongfully obtains or exerts unauthorized control over another's vehicle with intentto deprive him ofthe vehicle.



### 3No. 32390-1-111 cons. 

### wI No. 32391-9-111; No. 32392-7-111 State v. Vargas
RCW 9A.56.065; RCW 9A.56.020(1)(a). Thus two elements existfortheft ofa motor vehicle: wrongfully obtains2 and intent. Regarding the intent element, Ms. Vargas points to her use ofthe word "borrowed" to argue there is insufficient evidence to support she had any intentto deprive the owner ofthe vehicle. "The specific criminal intent ofthe accused may be inferred from the conductwhere it is plainly indicated as a matter oflogical probability." State v. Delmarter, 94 Wn.2d 634,638,618 P.2d 99 (1980). Moreover, when analyzing intent in a theft case, intent to permanently deprive is not required. State v. Crittenden, 146Wn. App. 361, 369-70,189 P.3d 849 (2008). It is logical to infer Ms. Vargas' failure to return the vehicle upon request by the owner shows she intended to deprivethe
owner ofthe vehicle. Thus, Ms. Vargas' statement by itself provides a factual basisfor her plea. Additionally, the court specifically incorporated the affidavit ofprobable cause when establishing thefactual basis. The affidavit indicates Ms. Vargas agreed to return the vehicle on August 2,2013; despite the owner's attemptto contact Ms. Vargas, her whereabouts and the location ofthe vehicle were unknown until August 16, 2013, when the owner reported the vehicle stolen. Ms. Vargas' intent to deprive can be inferred

2 While Ms. Vargas does not argue she did notwrongfully obtain the vehicle, her statement certainly provides afactual basis forthis element. A person who was granted authorityto use a vehicle but then exceeds that authority wrongfully obtains that vehicle. See State v. Clark, 96 Wn.2d 686,638 P.2d 572 (1982) (where a person has a license to use another'svehicle and exceedsthe scope ofthat license, the correct charge is theft ofa motorvehicle). Ms. Vargas' statement demonstrated while she initially had permission to use thevehicle, she exceeded the scope ofthat permission when she refused to return the carwhen asked. This is sufficient to show she wrongfully obtained the vehicle. 

### 4 

# INo. 32390-1-111 cons. 

### wI No. 32391-9-111; No. 32392-7-111 State v. Vargas
from herfailure to (1) return the carfortwo weeks and (2) respond to the owner's attempts to contact herduring thattime. SAG Ms. Vargas expresses three concerns in her SAG: (1) the State pressured her into keeping her plea agreementdespite knowing she wished to withdraw her plea, (2) she did cooperate with the drug taskforce, and (3) she filed two complaints against her counsel for ineffective assistance. The limited evidence showing the State "pressured" Ms. Vargas is the State's opposition to her motion to withdraw her plea. Atsentencing, Ms. Vargas stipulated she did not cooperate with the drug taskforce as required by the plea agreement. Regarding bar complaints, the record is silent. Thus, nothing in the record supports herconcerns. The appropriate means of raising matters outside the record is through the filing ofa personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 2.06.040.

# ~)f:0f. Brown, 

### AC.J. WE CONCUR:



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