Opinion
No. 24870-4-III.
February 26, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-01466-6, Carrie L. Runge, J., entered January 5, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, J., and Thompson, J. Pro Tem.
Jordan Castillo, a minor tried as an adult, appeals his first degree felony murder conviction. Mr. Castillo contends (1) the trial judge was biased and should have recused herself, (2) his counsel was ineffective in not filing an affidavit of prejudice, (3) various evidence rulings were error, (4) the court erred in its duress instruction, (5) prosecution misconduct, (6) cumulative error, and (7) insufficient evidence supports his convictions. We disagree with his contentions, and affirm.
FACTS
On September 4, 2004, Jordan Castillo approached D.C., a 15-year-old boy near a Benton City restaurant and asked for money. When D.C. refused, Mr. Castillo chased him, but gave up. Then, Mr. Castillo and his friend, Robert Suarez, saw a truck in the Kiona-Benton middle school parking lot and decided to steal it. Mr. Castillo and Mr. Suarez approached Robert Mars, the truck owner and a middle school teacher and coach, and asked for money so they could call for a ride home. Mr. Mars offered the use of his classroom phone. After using the phone and exiting the classroom, Mr. Castillo fatally stabbed Mr. Mars. Mr. Suarez then used a rock to break the window of Mr. Mars' truck. The boys took cash, a cellular phone and crackers.
Investigating a complaint from D.C. about being chased, the Benton County Sheriff's investigation led to Mr. Castillo and Mr. Suarez. The pair told different versions of events when questioned. When Mr. Castillo was confronted with Mr. Suarez's version, he finally confessed to the stabbing. Mr. Castillo was charged with first degree felony murder and attempted first degree theft involving D.C.
Judge Carrie Runge was assigned the case. The first issue was whether Mr. Castillo would be tried as an adult or a juvenile. Judge Runge wrote an October 12, 2004 letter to the parties and counsel, including a copy to Christopher Swaby, Mr. Castillo's second counsel assigned for adult court assistance. Judge Runge reported her prior job with the Benton County Prosecutor's office and that her husband, a Kennewick police detective, had assisted the sheriff's department in a minor evidence-collecting role. Judge Runge explained she wanted to clear her status as the assigned judge with the parties. Defense counsel and Mr. Castillo agreed on the record that they had no objections. Mr. Castillo soon agreed to be tried as an adult in return for charging concessions.
Mr. Castillo was then appointed a new lead counsel, Kevin Holt, to serve along with Mr. Swaby. Mr. Holt orally asked Judge Runge to consider recusing herself. Judge Runge believed she could be fair and impartial and declined, but invited Mr. Holt to consider an affidavit of prejudice but to keep in mind she thought she had already made discretionary rulings. None was filed. Two months later, defense counsel again orally raised the recusal issue with Judge Runge. Judge Runge once more declined to recuse herself, and again invited defense counsel to file a motion. None was filed.
Days before trial, Mr. Castillo attempted to subpoena Detective Runge and over 30 other witnesses, apparently for a preliminary matter, but another judge quashed the subpoenas due to timing issues, and further stated Detective Runge's involvement was only "tangential" and that he had not been interviewed earlier. Report of Proceedings (RP) (October 27, 2005) at 37.
During trial, the State called Benton County Sheriff's Detective Lee Cantu. On cross-examination, Detective Cantu testified Mr. Castillo told him he had been involved in an unreported theft before.
Mr. Castillo offered a diminished capacity defense, an inability to form the requisite mental state. Forensic psychiatrist Jay Jackman opined that Mr. Castillo suffered from Post Traumatic Stress Disorder (PTSD) due to chronic childhood abuse leading to diminished capacity. The State disputed the supporting evidence. After testifying, Dr. Jackman spoke to Mr. Castillo's father and was recalled to finish his testimony. The State objected to any specific statements given to Dr. Jackman by Mr. Castillo's father, who was not a witness. Considering the objection outside the jury's presence, the court sustained the State's objection. Dr. Jackman testified his earlier opinion did not change after talking with the father.
The court limited the testimony of neuropsychologist Ricardo Weinstein relating to a distant relative of Mr. Castillo's who committed suicide, family violence outside Mr. Castillo's immediate family, and issues regarding his mother's nurturing. The court allowed Dr. Weinstein to testify that Mr. Castillo's mother drank alcohol during her pregnancy, did not receive prenatal care, and did not bond with him after he was born. Dr. Weinstein testified Mr. Castillo's father was abusive and both parents were heavy alcohol users. Consequently, Dr. Weinstein opined that Mr. Castillo had diminished capacity at the time the crime was committed.
Mr. Castillo called psychologist, Stephen Pittel, to discuss the effects of drug and alcohol abuse on his mental state. The court allowed bias impeachment concerning Dr. Pittel's 1990 cocaine use during a trial recess in an unrelated California case.
Responding to defense questioning, Dr. Pittel stated according to Mr. Suarez's trial transcript, "Robert Suarez basically pointed the finger at Jordan Castillo having snapped and killed Mr. Mars." RP at 1413. The State argued, and the court agreed, this opened the door for Mr. Suarez's statements. The court allowed the State to elicit from Dr. Pittel that he was aware a jury found Mr. Suarez guilty and there was an agreement where "Jordan Castillo was not gonna use the knife unless there was an altercation with Mr. Mars, and Jordan Castillo actually used the knife even though there was no altercation." RP at 1431. Regarding intent, the State asked Dr. Pittel about Mr. Castillo's two prior robberies in Texas. Defense counsel moved unsuccessfully for a mistrial or a curative instruction because the crimes may have been thefts, not robberies. The court did order the prosecutor to restate the question.
During closing argument, the State mentioned defense counsel's efforts to humanize Mr. Castillo, such as touching him on the shoulder and using his first name. The State referred to the conduct as "antics." RP at 1634. The State argued the defense experts were "paid witnesses." RP at 1640. The State asked the jury to be careful because, "[e]ven if convicted, the defendant won't be much older than me when he is out of jail." RP at 1682. Mr. Castillo did not object to these arguments.
The prosecutor argued in closing that the experts used Mr. Castillo's mother to establish that his father abused him. Defense counsel later objected, arguing the prosecutor used the court's exclusion of the father's interview with Dr. Jackman to its advantage. The court declined to provide a curative instruction, concluding the remarks were based on factual inferences from the evidence.
The court instructed the jury that duress was not a defense to murder without a definition of duress. Mr. Castillo did not offer an alternative instruction. The jury found Mr. Castillo guilty as charged. Mr. Castillo appealed.
ANALYSIS A. Judge Bias
Mr. Castillo contends the judge was biased and unfair. Mr. Castillo argues he did not receive a fair trial, considering the Canons of Judicial Conduct (CJC) and RCW 4.12.040.
A judge is presumed to act without bias or prejudice. In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004). The appearance of fairness doctrine, due process, CJC 3(D)(1), and RCW 4.12.040 all require a judge to recuse himself or herself where there is bias against a party or where impartiality can be questioned.
A party alleging judicial bias must present evidence of actual or potential bias. State v. Post, 118 Wn.2d 596, 618, 619 n. 9, 826 P.2d 172, 837 P.2d 599 (1992). We use an objective test to determine if a judge's impartiality might reasonably be questioned by a reasonable person who "`knows and understands all the relevant facts.'" In re Marriage of Davison, 112 Wn. App. 251, 256, 48 P.3d 358 (2002) (quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995)). "`The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial.'" Post, 118 Wn.2d at 618 (quoting State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972)). But "[w]ithout evidence of actual or potential bias, an appearance of fairness claim cannot succeed and is without merit." Post, 118 Wn.2d at 619. If a party moves to recuse a judge after rulings have been made, he must demonstrate prejudice on the part of the judge. State v. Cameron, 47 Wn. App. 878, 884, 737 P.2d 688 (1987).
Judge Runge's letter informed the parties of her prior work with the prosecutor and her husband's limited investigative role in Mr. Castillo's case. Mr. Castillo's juvenile court defense counsel and Mr. Castillo did not object to Judge Runge's role. Attorney Swaby remained as Mr. Castillo's second counsel when Mr. Holt was appointed new lead counsel at Mr. Castillo's adult arraignment. Mr. Holt orally asked Judge Runge to recuse herself. Judge Runge declined, but she twice suggested counsel file an affidavit of prejudice. None was filed. Detective Runge's involvement was described as "tangential" when another judge quashed an untimely subpoena for Detective Runge and other investigative officers, apparently for a preliminary matter just before trial. RP (October 27, 2005) at 37.
Judge Runge was open with the parties regarding her background and her desire that the parties have the early opportunity to select another judge to prevent trial disruption. She assured Mr. Castillo repeatedly that she could be fair and impartial. While Mr. Castillo now contends the judge did not appear fair and impartial, this view is not supported by the record. Given all, Mr. Castillo has failed to show evidence of actual or potential bias. Mr. Castillo next argues he was denied effective assistance of counsel when Mr. Holt failed to file an affidavit of prejudice under RCW 4.12.040.
The test for ineffective assistance of counsel is whether (1) defense counsel's performance fell below an objective standard of reasonableness, and (2) this deficiency prejudiced the defendant. State v. Oseguera-Acevedo, 137 Wn.2d 179, 198, 970 P.2d 299 (1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We strongly presume counsel's representation was reasonable. Oseguera-Acevedo, 137 Wn.2d at 199. If defense counsel's conduct can be characterized as legitimate trial strategy or tactics, ineffective assistance will not be found. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
Because Mr. Castillo has failed to establish actual or potential bias, he cannot show counsel's performance fell below an objective standard of reasonableness. Further, by the time Mr. Holt was appointed, Mr. Castillo and his first lead counsel had apparently accepted discretionary rulings from Judge Runge. Mr. Swaby continued as second counsel to Mr. Holt. Tactically, Mr. Holt may reasonably have decided not to submit an affidavit of prejudice. Therefore, Mr. Castillo was not denied effective assistance of counsel because neither deficient performance nor prejudice is established.
B. Evidence Rulings
The issue is whether the trial court abused its discretion in its evidence rulings concerning the testimony of Dr. Jackman, Dr. Weinstein, and Dr. Pittel. Mr. Castillo contends his constitutional right to present a defense and his confrontation rights were violated.
We review the trial court's evidentiary rulings for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. Id. The rules of evidence guide the trial court's discretion in evidentiary matters. State v. Atsbeha, 142 Wn.2d 904, 917, 16 P.3d 626 (2001).
1. Dr. Jackman. Under ER 402, relevant evidence is admissible. 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 than it would be without the evidence." ER 401. After testifying, and giving his opinion that Mr. Castillo suffered from PTSD due to abuse by his father, Dr. Jackman spoke to Mr. Castillo's father on the phone for the first time, apparently to counter the State's challenge to the father's unsubstantiated abuse. He was recalled as a witness and offered, outside the jury's presence, that the phone conversation did not alter his opinion. The court sustained the State's objection to any specific conversation from the father.
Because Dr. Jackman initially testified Mr. Castillo suffered PTSD due to his father's abuse and the mid-trial conversation with the father did not change his opinion, no fact of consequence required evidence of the specific answers. Moreover, the absent declarant's statements were offered for their truth and hearsay. Dr. Jackman had testified he had derived his opinion partly from interviews with other family members who told him of the father's abuse of Mr. Castillo, and thus, the father's out-of-court statements were cumulative. Thus, the court did not err in excluding the hearsay.
2. Dr. Weinstein. Even if evidence is relevant, it still may be excluded if its probative value would be outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. ER 403. Mr. Castillo argues the court abused its discretion in limiting Dr. Weinstein's testimony regarding Mr. Castillo's family history as it relates to his diminished capacity to commit first degree aggravated murder. But, Dr. Weinstein did testify that Mr. Castillo's mother drank alcohol during her pregnancy, did not receive prenatal care, and did not bond with Mr. Castillo after he was born. He further testified Mr. Castillo's father was abusive and both parents were heavy alcohol users.
Evidence of a distant relative's suicide, violence outside the immediate family, and Mr. Castillo's mother's bonding issues would be cumulative. Such evidence would thus risk unfair prejudice by confusing the issues, or misleading the jury. Thus, the trial court had a tenable basis to exclude this testimony.
3. Dr. Pittel. ER 608(b) allows a party to inquire into specific instances of conduct of a testifying witness, as long as (1) the inquiry is not into a criminal conviction, and (2) the inquiring party does not seek to prove the specific acts by extrinsic evidence. On cross-examination, the examiner may only inquire into the witness's specific acts if, in the trial court's discretion, the acts are probative of the witness's character for truthfulness or untruthfulness. ER 608(b). But Washington courts have two exceptions to ER 608(b): (1) when the specific instances of conduct are offered to show that the witness is biased, State v. McDaniel, 37 Wn. App. 768, 772-73, 683 P.2d 231 (1984); and (2) if the specific instances are offered to contradict a witness on a material fact. See, e.g., State v. Smith, 115 Wn.2d 434, 442-44, 798 P.2d 1146 (1990).
Dr. Pittel was called to discuss the effects of drug and alcohol abuse on Mr. Castillo's mental ability to form the requisite intent. In 1990, Dr. Pittel had used cocaine in the past. The State offered the cocaine use as evidence to show Dr. Pittel's bias for drug use as possibly skewing his perception on the impact of drug use by another. Thus, under the bias exception the evidence fell outside of ER 608(b).
During defense questioning, Dr. Pittel answered he was aware of Mr. Castillo's murder involvement through Mr. Suarez, who "basically pointed the finger at Mr. Castillo having snapped and killed Mr. Mars." RP at 1413. Dr. Pittel testified he did not know who "wielded the knife." Id. The State argued, and the court agreed, that defense counsel opened the door for Mr. Suarez's statements. The State then elicited from Dr. Pittel that he was aware a jury found Mr. Suarez guilty, and that an agreement existed where "Jordan Castillo was not gonna use the knife unless there was an altercation with Mr. Mars, and Jordan Castillo actually used the knife even though there was no altercation." RP at 1431. While Mr. Castillo argues his confrontation rights were violated, we review evidence admissibility for an abuse of discretion. State v. Russell, 125 Wn.2d 24, 69, 882 P.2d 747 (1994).
"[W]hen a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination, as the case may be, within the scope of the examination in which the subject matter was first introduced." State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969) (citing State v. Stevens, 69 Wn.2d 906, 421 P.2d 360 (1966)). Dr. Pittel's testimony opened the door for his impeachment.
In sum, the court had a tenable basis to limit the testimony of Dr. Jackman and Dr. Weinstein and properly allowed impeachment evidence on Dr. Pittel, and did not err.
C. Duress Instruction
The issue is whether the trial court erred by instructing the jury regarding duress and further, failing to define duress. Mr. Castillo contends the court's jury instruction should not have been given considering that duress is not a defense to murder and the error was magnified by the lack of a definitional instruction on duress.
"The requirements of due process usually are met when the jury is informed of all the elements of an offense and instructed that unless each element is established beyond a reasonable doubt the defendant must be acquitted." State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988). Proof of duress does not negate any element of the crime. State v. Riker, 123 Wn.2d 351, 368, 869 P.2d 43 (1994).
Here, the court instructed the jury on duress because the defense experts "walk[ed] down that road," so the duress issue was "out there" and the jury needed clarification. RP at 1592. This instruction does not conflict with Mr. Castillo's diminished capacity defense that goes to his ability to form the requisite mental state, whereas duress is an affirmative defense that "excuses the defendant's otherwise unlawful conduct." State v. Frost, 160 Wn.2d 765, 774, 161 P.3d 361 (2007) (citing Riker, 123 Wn.2d at 367-68)). And, the duress instruction did not hinder Mr. Castillo's ability to argue his case theory.
Further, Mr. Castillo failed to offer a definitional instruction. The failure to provide a definitional instruction is not a manifest constitutional error that may be raised for the first time on appeal. See Scott, 110 Wn.2d at 691 (failure to define "knowledge" in a burglary instruction was not a manifest constitutional error); State v. Ng, 110 Wn.2d 32, 44-45, 750 P.2d 632 (1988) (failure to define "theft" in a robbery instruction was not a manifest constitutional error); State v. Pawling, 23 Wn. App. 226, 232-33, 597 P.2d 1367 (1979) (failure to define "assault" in first degree burglary instruction not a manifest constitutional error). Thus, nothing suggests the trial court's failure to define "duress" rises to the level of a manifest constitutional error.
D. Prosecution Misconduct
The next issue is whether prosecutorial misconduct denied Mr. Castillo a fair trial. Mr. Castillo argues misconduct occurred in (1) questioning Dr. Pittel about Mr. Castillo's alleged Texas robberies, (2) referring to defense counsel's attempt to humanize Mr. Castillo as "antics," (3) referring to defense experts as paid witnesses, (4) pointing out Mr. Castillo would be out of prison before he was the prosecutor's age, and (5) arguing the defense experts merely relied on Mr. Castillo's mother's interview to show that his father abused him as a child.
To establish prosecutorial misconduct, Mr. Castillo must prove conduct that was both improper and prejudicial. Stenson, 132 Wn.2d at 719. A new trial will be ordered only if there is a substantial likelihood the misconduct affected the jury's verdict. Id. If the defendant does not object to alleged misconduct at trial, the prosecutorial misconduct issue is waived unless the misconduct was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Id. Failure to request a curative instruction or move for a mistrial "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
The prosecutor asked Dr. Pittel about Mr. Castillo's prior robberies. Defense witnesses opened the door to Mr. Castillo's prior criminal history, but without mentioning robberies. The prosecutor's question about robberies appears to have been inadvertent and was corrected when the court told the State to rephrase its question. Given the backdrop of the evidence against Mr. Castillo, no "substantial likelihood" exists that the question affected the jury. Stenson, 132 Wn.2d at 719.
We review the trial court's denial of a mistrial motion for an abuse of discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000). A trial court should grant a mistrial when an irregularity in trial proceedings is so prejudicial that it deprives the defendant of a fair trial. "A trial court `should grant a mistrial when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.'" State v. Munguia, 107 Wn. App. 328, 336, 26 P.3d 1017 (2001) (quoting State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996)). The prosecutor's question occurred toward the end of a lengthy trial with overwhelming evidence against Mr. Castillo. It is unlikely Mr. Castillo was so prejudiced that nothing short of a new trial would insure a fair trial. The court properly instructed the prosecutor to reword his question.
Because Mr. Castillo did not object to the prosecutor's closing argument regarding humanizing Mr. Castillo, defense experts as paid witnesses, and Mr. Castillo's punishment, our standard of review is whether the comments were "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Stenson, 132 Wn.2d at 719. The arguments were based on facts obvious to the jury. The jury witnessed defense counsel's interaction with Mr. Castillo and could assume the defense experts were paid. Given Mr. Castillo's young age, he would not spend his whole life incarcerated. The jury was instructed that any comment not supported by the law was to be disregarded. A jury is presumed to follow the instructions given. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).
Since Mr. Castillo objected to the State's argument that the defense experts had nothing more than the mother's word that his father abused him, we review whether this argument was improper and prejudicial. Stenson, 132 Wn.2d at 719. We allow latitude during closing arguments for counsel to argue the facts in evidence and the reasonable inferences therefrom. State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985). Mr. Castillo's mother testified about the abuse he endured by his father. His father did not testify. Thus, the prosecutor's comment was based on facts in evidence. Therefore, the remark was admissible and not an improper comment on excluded evidence.
E. Cumulative Error Because we find no error, we do not consider cumulative error. F. Evidence Sufficiency
Mr. Castillo contends insufficient evidence supports his first degree felony murder conviction. He argues the State failed to prove Mr. Mars died during a robbery.
The standard of review for evidence sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Pirtle, 127 Wn.2d 628, 682, 904 P.2d 245 (1995). When evidence sufficiency is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A person is guilty of first degree murder if he commits or attempts to commit first or second degree robbery. RCW 9A.32.030(1)(c). In State v. Diebold, 152 Wash. 68, 72, 277 P. 394 (1929), the defendant argued his conviction for second degree felony murder predicated on robbery could not stand because the felony and the homicide were separate events. After the defendant and a friend got drunk, they stole a car. They drove it to a restaurant where, after some discussion, they decided to take the car back to where they found it. On the return trip while driving drunk, the defendant hit and killed a young woman. In reviewing the defendant's conviction for second degree murder under the felony murder statute as it existed in 1928, the Supreme Court determined that the two crimes were not sufficiently connected with or related to each other. "It cannot be held that, at the time appellant drove his car against the unfortunate victims of his carelessness, he was committing, or attempting to commit, or withdrawing from the scene of, a felony." Id. at 73-74. The court did not discuss the intent behind the homicide, since it appeared to be accidental and wholly unrelated to the felony.
The felony murder statute language does not limit its application to situations where a murder is committed for purposes of completing a felony act. The statute requires the killing must be committed "in the course of, in furtherance of, or in immediate flight from" robbery in the first or second degree. RCW 10.95.020(11)(a) (emphasis added). Mr. Castillo may not claim in defense to felony murder that the killing preceded the robbery, so long as the killing and the robbery are part of the "same transaction." State v. Temple, 5 Wn. App. 1, 7-8, 485 P.2d 93 (1971).
A person commits robbery when he "unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person." RCW 9A.56.190. "Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking." RCW 9A.56.190.
In State v. Allen, 159 Wn.2d 1, 147 P.3d 581 (2006), an argument between the defendant and his mother escalated into a physical struggle and resulted in the mother's death. After leaving and then returning to the house, the defendant stole a cashbox containing about $1,500. Mr. Allen regularly had "financial difficulties," had "told a friend that his mother had a cashbox," and "the cashbox was taken shortly after the murder and found nearby." Allen, 159 Wn.2d at 9-10. The defendant argued that taking the cashbox was an afterthought, a theft instead of a robbery. The Allen majority concluded the evidence was sufficient to support a robbery, including the element that force or fear was "`used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking.'" Id. at 9 (quoting RCW 9A.56.190).
Mr. Castillo's case is similar to Allen. The jury could find from the evidence that Mr. Castillo and Mr. Suarez first decided to steal the truck and take items from the truck and needed to stab Mr. Mars to facilitate the takings.
Mr. Castillo also cites State v. Hacheney, 160 Wn.2d 503, 158 P.3d 1152 (2007). There, the defendant suffocated his wife and then set their house on fire. He was charged with aggravated murder, occurring in the course of arson. The Hacheney court held there must be a "causal connection between the two such that the death must have been a probable consequence of the felony, not the other way around." Id. at 519 (emphasis in original). Our case is distinguishable because, as noted, inferences show Mr. Castillo and Mr. Suarez decided to rob Mr. Mars and stabbed him as part of the robbery plan. In Hacheney, the arson was an afterthought to the murder.
In sum, sufficient evidence supports Mr. Castillo's conviction. 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.
Kulik, J., Thompson, J. Pro Tem., concur.