### IN THE COURT OF APPEALS OF THE STATE OF WAS

STATE OF WASHINGTON,

v. FRANCISCO G. CASTRO, DIVISION II

Respondent,

Appellant. 

### FILED 

# COURT OFAPPEALS DIV!SkON j 2014 JUN 17 

### AM 8: 36

No. 44992 -

7 -II 51-14 G , 1

UNPUBLISHED OPINION

WoRSwIcK, J. — Francisco Castro was convicted ofone count offirst degree malicious 

### mischiefand one count ofbailjumping. He appeals, arguing that (1) the evidence was 

### insufficientto support his bailjumping conviction, (2) he received ineffective assistance of 

### counsel, and (3) the trial court erred by admitting extrinsic evidence to impeach his testimony on collateral matters. We disagree and affirm. FACTS Francisco Castro and Jennifer Fox married in 2007 and had two children. They separated in July 2012 and divorced in 2013. Fox lived nextto Island Lake in Mason County. 

### One morning while theywere separated, Fox awoke at about 5: 00 A.M. to the sound of 

### loud music coming from her driveway. Remaining in bed, Fox assumed that Castro was playing the music "[ b]ecause it wouldn't have been the first time that [Castro] carne to my house in the morning or the middle of the night since we' d been separated." Report of Proceedings ( RP) at 31.No. 44992 - 7 -II 

### Foxfinally got up and looked out herfront window after hearing a car "burning out" of her driveway. RP at 31. 

### Although she could see only the car's taillights as it sped away, she saw 

### that hercarwas no longer parked in her driveway. From a backwindow, Foxthen sawthat her carwas floating in the lake with its driver's door open and headlights on.

Fox called 911. 

### She also noticed that during the night, she had missed Castro' s phone 

### calls, including one call about 15 minutes before she found her car in the lake. The car sank, and a dive team eventually pulled it out ofthe lake. Fox's insurer declared the car a total loss and paid her $26,554.

The State initially charged Castro with one count of first degree malicious mischief. By 

### signing thetrial court' s scheduling order and notice, Castro promised to personally appear at

several hearings, including a pretrial hearing set for December 24, 2012. But Castro did not 

### appear at that hearing. The trial court issued abenchwarrant for Castro' s arrest. 

### According to Castro, he came to the courthouse on December24 but found the assigned courtroom empty. He further claimed that he wentto the clerk's office and spoke with a staff member who told him he could address the warrant the next day when the court was open. Castro appeared on December 26, and the bench warrant was quashed that day. By second amended information,the State also charged Castro with bailjumping. At trial, Castro testified in his own defense. On cross - examination, the State asked whether Fox had been at his house the night before the incident and, ifso, what had happened. Castro answered, " We just have dinner and sex and have a little fun with the kids." RP at 84.

2No. 44992 - 7 -II After Castro testified, the State sought to call Fox and Fox' s friend as rebuttal witnesses 

### to contradict Castro' s testimony aboutthe night before the incident. Over Castro' s objection,the trial court allowed the State to elicit this testimony. 

### On rebuttal, Fox denied having dinnerwith Castro or having sexwith him. Instead, she testified that she had dinner with a friend, who later accompanied herto Castro' s house to pick 

### up Fox's children. Foxtestified that she stayed atthe house for 10 to 15 minutes andthat the friend was with herthe entire time. Fox further testified that at one point Castro pulled her down 

### onto abed inthe living room,butthe friend helped herget up. During her owntestimony, Fox's friend corroborated this account. 

### Thejury found Castro guilty ofboth counts, and the trial court entered convictions accordingly. Castro appeals. ANALYSIS I. SUFFICIENCY OF THE EVIDENCE Castro first argues that the evidence is insufficient to support his conviction for bail jumping. We disagree. 

### When a defendant challenges the sufficiency ofthe evidence supporting his conviction, 

### we examine the record to decide whether any rational fact - finder could have found that the State proved each element ofthe offense beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 ( 1980). 

### In a sufficiency ofthe evidence challenge,the defendant admits the truth of all the State' s evidence; therefore we consider the evidence and all reasonable inferences from it in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d

3No. 44992 - 7 -II 1068 ( 1992). Further, direct evidence and circumstantial evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 ( 1980).

A person commits bailjumping if, " 

### having been released by court order or admitted to bail with knowledge ofthe requirement ofa subsequent personal appearance before any court of this state," he fails to appear in court as required.' RCW 9A.76. 170( 1). Here, the to-convict 

### instruction referred only to arelease by court order, omitting any mention ofan admission to bail.2 Thus, underthe law ofthe case doctrine, the State was required to prove that Castro had 

### been released by court order. See State v. Hickman, 135 Wn.2d 97, 99, 954 P.2d 900 ( 1998); State v. Medina, 112 Wn.App. 40, 45, 48 P.3d 1005 (2002). Castro claims that the evidence is insufficient to show both (1) that he had been released 

### by court order and (2) that he knew he was required to personally appear. We disagree. First,the evidence is sufficient to support a reasonable inference that Castro had been 

### released by court order. The State concedes that it introduced no direct evidence on this point, and the record could have been clearer. Nonetheless, at Castro' s arraignment, the State served him with the original information, and the trial court entered a scheduling order and notice Quoting State v. Downing, 122 Wn.App. 185, 192, 93 P. 3d 900 ( 2004), the State asserts, "' The 

### elements ofbailjumping are satisfied ifthe defendant (1) was held for, charged with, or convicted of a particular crime; (2) had knowledge ofthe requirement of a subsequent personal appearance; and (3) failed to appear as required. "' 

### Br. ofResp't at 3 -4. Butthe State also 

### concedes that abailjumping conviction requires proofthatthe defendantwas released by court order or admitted to bail. We accept this concession because other cases have recited the 

### elements ofbailjumping to.include that the defendant "was released by court order or admitted to bail." 

### See State v. Pope, 100 Wn.App. 624, 627, 999 P.2d 51 ( 2000). 2 The to- convict instruction stated the relevant element of bail jumping as: " That the defendant 

### had been released by court order with knowledge ofthe requirement ofa subsequent personal appearance before that court." 2 CP at 20.

4No. 44992 - 7 -II 

### setting pretrial hearings atwhich Castro promised to appear. Further, Castro testifiedthat he had been arrested after Fox' s car was found in the lake, but on December 24 he came to court for his 

### pretrial hearing and visited the clerk' s office afterfinding the courtroom empty. From the reasonable inferences drawn from this evidence, a rational fact - finder could determine beyond a 

### reasonable doubtthat Castro had been released by court order. Castro' s second claim also fails because the evidence was sufficient to prove that he 

### knew his personal appearance was required. The State may prove this knowledge with evidence 

### showing the defendantwas notified ofthe date ofthe required personal appearance. State v. Fredrick, 123 Wn.App. 347, 353, 97 P. 3d 47 (2004). Here Castro' s signature appears on the scheduling order and notice immediately below the statement, " I promise to appear on the dates

set out above." Ex. 9. From this promise, a rational fact - finder could determine beyond a reasonable doubt that Castro knew he was required to personally appear. II. INEFFECTIVE ASSISTANCE OF COUNSEL Castro next argues that he received ineffective assistance ofcounsel because his attorney 

### failed to call a staffmember ofthe courtclerk's office to testify on his behalf. We disagree. Whether a defendant received ineffective assistance ofcounsel is a mixed question of law 

### and fact,which we review de novo. In re Pers. Restraint ofFleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001). To prevail on his ineffective assistance of counsel claim, Castro must show 

### both that (1) his counsel' s performance was deficient and (2) the deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). Failure to make either showing is fatal to the claim. Strickland, 466 U.S. at 700.No. 44992 - 7 -II 

### In reviewing claims ofineffective assistance, we begin with a strong presumption of

counsel' s effectiveness. Strickland, 466 U.S. at 689. Counsel' s performance is deficient if it falls below an objective standard ofreasonableness under all the circumstances. Strickland, 466 U.S. at 688, 690. But counsel' s performance is not deficient if it can be characterized as a legitimate trial tactic. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 ( 2009). In general, the . decision ofwhether to call a specific witness is presumed to be a matter of legitimate trial tactics. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 742, 101 P. 3d 1 ( 2004). This presumption can be 

### overcome by showing that counsel failed to investigatethe available defenses, adequately prepare fortrial, or subpoena necessary witnesses. Davis, 152 Wn.2d at 742. Castro fails to overcome our presumption that his counsel performed effectively. The record shows that counsel investigated Castro' s claim that he found the courtroom empty and then spoke with stafffrom the clerk' s office. Counsel identified the staff member who spoke with Castro, but she could not remember when their conversation occurred. On the record, 

### counsel explained thatthe staffmember' s inability to remember the date oftheir conversation " is the problem as far as calling her as a witness." RP at 70. In other words, counsel decided not to 

### call the staffmember because her testimony, if it was admissible, would provide only weak support for Castro' s version ofevents. This decision can be characterized as a legitimate trial tactic. See Kyllo, 166 Wn.2d at 863.

Because counsel' s decision did not fall below an objective standard of reasonableness, counsel' s performance was not deficient. See Strickland,466 U.S. at 688. Therefore Castro' s ineffective assistance claim fails. See Strickland, 466 U.S. at 700.

6No. 44992 - 7 -II III. EXTRINSIC EVIDENCE ADMITTED To PROVE COLLATERAL MATTERS 

### Lastly, Castro argues thatthe trial court erred by admitting extrinsic evidence ofa collateral matterto contradict his testimony. We disagree. 

### We review evidentiary rulings for an abuse ofdiscretion. State v. Darden, 145 Wn.2d 612, 619, 41 P. 3d 1189 (2002). A trial court abuses its discretion when its decision is manifestly unreasonable, based on untenable grounds, or made for untenable reasons. Darden, 145 Wn.2d 

### at 619. A trial court necessarily abuses its discretion when basing its ruling on an error oflaw. State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008). 

### Extrinsic evidence ofcollateral matters may not be offered to impeach awitness. State v. Fisher, 165 Wn.2d 727, 750, 202 P. 3d 937 (2009); 

### State v. Carlson, 61 Wn.App. 865, 876, 812 P. 2d 536 ( 1991). Evidence pertains to a collateral matter if it lacks direct relevance to the issues 

### being tried and serves onlyto contradict awitness. State v. Descoteaux, 94 Wn.2d 31, 37 -38, 614 P. 2d 179 ( 1980), 

### overruled on other grounds by State v. Danforth, 97 Wn.2d 255, 257 n.1, 643 P. 2d 882 ( 1982); 

### State v. Fankhouser, 133 Wn.App. 689, 693, 138 P.3d 140 (2006). Here, Castro testified that Fox had been at his house the night before the incident and that Fox and Castro ate dinner together and had sex. The trial court allowed the State to call two rebuttal witnesses, Fox and Fox' s friend, who each contradicted Castro' s account ofwhat happened at his house. 

### Specifically, Fox and Fox's friend testified that (1) Fox stayed at Castro' s house for 10 to 15 minutes while picking up their children from Castro, (

### 2) during this 

### time Castro pulled Fox down onto abed in the living room, and (3) Fox and Castro did not eat 

### dinnertogether or have sex during this time. The trial court reasoned that Castro had opened the door to testimony about whether he was amicable toward Fox on the night before the incident,No. 44992 - 7 -II 

### but "this door does not open extremely wide because we are not going to be trying a case 

### involving what happened the night before, because then itwouldthen itwould be unduly prejudicial." RP at 87. 

### In making this ruling,the trial court properly exercised its discretion. Castro' s relations 

### with Fox at the time ofthe incidentwere directly relevantto his motive for driving her car into the lake. Because the testimony was directly relevantto the issues being tried, it was not a 

### purely collateral matter. The ruling allowing Fox and herfriend to testify in rebuttal was not 

### manifestly unreasonable, based on untenable grounds, or made for untenable reasons. Therefore the trial court did not err. Darden, 145 Wn.2d at 619.

Affirmed. 

### Amajority ofthe panel having determinedthatthis opinion will not be printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06. 040, it is so ordered.

We concur: