State Of Washington, V. Viviana Vanesa Rangel-ochoa

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                     No. 81699-3-I
                       Respondent,
                                                     DIVISION ONE
                 v.
                                                     UNPUBLISHED OPINION
 VIVIANA RANGEL-OCHOA,

                       Appellant.




          COBURN, J. — A jury convicted Viviana “Vanesa” Rangel-Ochoa of

burglarizing her friend’s home. She appeals arguing that the trial court erred by

admitting incriminating statements she made to police after her arrest. She also

contends that the prosecutor engaged in misconduct during closing argument by

stating she was “the unluckiest person.” Rangel-Ochoa also appeals her

restitution order claiming the trial court failed to hold an evidentiary hearing. We

affirm.

                                        FACTS

          Tannya Saucedo Castro was at home in her bedroom one evening in

January 2018. Around 6 p.m., she heard a loud bang at her front door, and

footsteps up her stairs, and then two masked individuals dressed in black

entered her bedroom. Despite the masks covering the lower part of their faces,


  Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81699-3-I/2


Saucedo Castro immediately recognized the individuals as her friends, Anthony

“Ant” Abraham and Vanesa Rangel-Ochoa. 1

      Saucedo Castro stood frozen as Abraham searched her drawers, and

Rangel-Ochoa began throwing items from Castro’s closet into a plastic trash bag.

Rangel-Ochoa took several luxury brand items: a pink Gucci bag, a pink Gucci

purse, a brown MCM backpack, tan Louboutin heels, a pair of Gucci sneakers, a

black and gold Yves Saint Laurent (YSL) purse, and a pink and purple MCM

wallet. Saucedo Castro called out to Rangel-Ochoa, saying her name, and

Rangel-Ochoa turned around and looked shaken with her eyes wide open. The

two intruders quickly departed. Rangel-Ochoa then ran to a neighbor’s home to

call 9-1-1. Saucedo Castro later provided police with her home surveillance

videos from the time of the crime showing the masked intruders coming and

going from her home.

      A few weeks later, two detectives went to Rangel-Ochoa’s apartment in

Renton to arrest her and transport her to the police department. During a

recorded interview, Rangel-Ochoa acknowledged she was giving the interview

freely, voluntarily, and without threats or promises of any kind. The detective

then read Rangel-Ochoa her Miranda 2 rights. She then signed the statement

waiving her rights and agreeing to be interviewed. While being interviewed,

Rangel-Ochoa repeatedly denied any involvement in the burglary. She told the

detectives that she had a falling out with Saucedo Castro because she “was



      1   The State later dismissed charges against Abraham.
      2   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).


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hitting on” Rangel-Ochoa’s boyfriend. The detective then asked her about

Abraham:

       [Detective]: Okay. And then at no time did he say that, hey, do you
       want to buy some stuff? Like some stolen stuff, or some expensive
       stuff? He ever ask you to buy some expensive stuff from him?

       [Rangel-Ochoa]: I don't feel comfortable saying that.

She denied that Saucedo Castro had given her any merchandise or that any of

the missing items would be found at her apartment. She also denied owning any

YSL or MCM products.

       After the interview, the police obtained a search warrant and drove with

Rangel-Ochoa back to her apartment telling her they would be executing a

search warrant at her home. At that point, Rangel-Ochoa told the detective that

she had two items—a YSL purse and MCM wallet—that had belonged to

Saucedo Castro that she purchased from Abraham for $1,200 in cash. Police

recovered these two items at Rangel-Ochoa’s apartment, and Saucedo Castro

later identified these items as the missing items belonging to her.

       Before trial, the court held a CrR 3.5 hearing to determine the admissibility

of Rangel-Ochoa’s statements during the police station interview and in the patrol

car. Rangel-Ochoa did not testify. The court ruled that all of Rangel-Ochoa’s

statements to police were both voluntary and admissible at trial.

       A jury found Rangel-Ochoa guilty of residential burglary. By special

verdict the jury found that the victim had been present when the crime was

committed. A restitution hearing was scheduled after sentencing, at which time

the trial court ordered Rangel-Ochoa to pay Saucedo Castro $4,384.30 for the




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property losses related to the burglary. Rangel-Ochoa appeals.

                                   DISCUSSION

                                  CrR 3.5 Hearing

       Rangel-Ochoa argues that the trial court erred when it did not suppress

the statements she made to detectives in the police car claiming that these

statements were made under coercion. 3 We disagree.

       The Fifth Amendment to the United States Constitution and article I,

section 9 of the Washington Constitution protect the privilege against self-

incrimination. U.S. CONST. amend. V; W ASH. CONST. art. I, § 9. While a

defendant’s compelled statements cannot be admitted at trial, voluntary

statements are admissible. State v. DeLeon, 185 Wn.2d 478, 480, 374 P.3d 95

(2016). Generally, a defendant’s statement is voluntary if it is “made

spontaneously, is not solicited, and [is] not the product of custodial interrogation.”

State v. Ortiz, 104 Wn.2d 479, 484, 706 P.2d 1069 (1985). To determine

whether self-incriminating statements were made voluntarily, courts review the

“totality of the circumstances.” DeLeon, 185 Wn.2d at 486. We review a trial

court’s conclusion regarding the voluntariness of a defendant’s statements based

on whether there is substantial evidence in the record from which the trial court




       3   The State contends that Rangel-Ochoa waived her claim of coercion by
not explicitly raising this issue below. We disagree. Rangel-Ochoa preserved
this issue below. She argued that “[t]he State hasn’t met their burden with regard
to establishing that these were non-coercive statements. . . . We are arguing that
. . . this at least begins in a very coercive environment. . . . [She] is arrested,
pulled outside of her home, she’s in her underwear, she is handcuffed, and it’s
our argument that the coercive nature of that interaction with law enforcement
never fully dissipates.”


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could find voluntariness by preponderance of the evidence. State v. Rafay, 168

Wn. App. 734, 757–58, 285 P.3d 83 (2012) (quoting State v. Broadaway, 133

Wn.2d 118, 129, 942 P.2d 363 (1997)).

       After taking testimony at the CrR 3.5 hearing, the trial court concluded that

the State had met its burden by preponderance of the evidence that the

statements Rangel-Ochoa made were voluntary. The trial court ruled:

       With respect to the statements made in the vehicle on the way back
       to the Defendant's residence, Det. Kim testified that he did not ask
       any questions of the Defendant, and that the Defendant chose to
       spontaneously offer information to Det. Kim. Thus, these
       statements were not in response to any interrogation, and as
       such, are admissible under CrR 3.5.

       The record supports the trial court’s findings and conclusions. The

detective did not ask any questions of Rangel-Ochoa and merely explained that

they were driving back to her apartment to execute a search warrant. 4 However,

Rangel-Ochoa argues that the detectives, by driving with her back to her home to

execute a warrant, employed a “coercive technique” and “psychological tool”

“designed to improperly coerce a statement.”

       Rangel-Ochoa relies on Brewer v. Williams, 430 U.S. 387, 406, 97 S. Ct.

1232, 51 L. Ed. 2d 424 (1977) for her contention that she was wrongfully coerced

as a result of the police driving her to a location connected to the crime. In

Brewer, the defendant, Williams, turned himself in upon advice of his attorney in

a town 160 miles away from Des Moines where the murder took place. 430 U.S.




       4The record is unclear as to why the detectives brought Rangel-Ochoa
back to her home to execute the search warrant and whether they intended to
release her if evidence of the burglary was not found after the search.


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at 390. Des Moines police picked up Williams, who they knew was a former

mental patient and “deeply religious.” Brewer, 430 U.S. at 392-94. During the

160-mile car ride, police told Williams that without his assistance, the young girl

he murdered might be denied a “Christian burial.” Id. Though the Supreme

Court noted that the detective “deliberately” set out to elicit information from

Williams, the Court held that Williams’s confession was inadmissible because he

never waived his right to the assistance of counsel. Id. at 399-405. Brewer is

distinguishable.

       Contrary to Rangel-Ochoa’s assertion, Brewer does not stand for the

proposition that police engage in coercion when they drive with a suspect to a

location connected with a crime. The Court explained, it was “unnecessary to

evaluate the ruling of the District Court that Williams’ self-incriminating

statements were, indeed, involuntarily made.” Id. at 397. Furthermore, the

police “Christian burial” speech in Brewer is not at all comparable to police telling

Rangel-Ochoa they were executing a search warrant in the instant case.

       A defendant’s incriminating statements are involuntary or coerced if,

based on the totality of the circumstances, a defendant’s will was overborne.

Broadaway, 133 Wn.2d at 132. A police officer’s “psychological ploys” may

influence a suspect’s decision to make an incriminating statement, but such

statements are still voluntary so long as the decision to make a statement “is a

product of the suspect’s own balancing of competing considerations.” State v.

Unga, 165 Wn.2d 95, 102, 196 P.3d 645 (2008) (citations omitted). At the point

police drove Rangel-Ochoa back to her apartment, she was aware of her




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Miranda rights, and had demonstrated that she understood how to exercise them

by declining to answer some questions. Understanding that police were about to

search her apartment does not establish that her will was overborne through

coercion.

       Substantial evidence in the record shows Rangel-Ochoa’s statements in

the patrol car were not in response to interrogation and were voluntary. The trial

court did not err in admitting Rangel-Ochoa’s statements.

                             Prosecutorial Misconduct

       Rangel-Ochoa next argues that the prosecutor engaged in misconduct

when she characterized Rangel-Ochoa as “the unluckiest person” and thereby

shifted the State’s burden of proof and created a false choice by telling the jury

they needed to find that all the State’s witnesses were lying to acquit Rangel-

Ochoa. We disagree.

       A defendant may only prevail on a prosecutorial misconduct claim by

showing the prosecutor’s conduct was both improper and prejudicial. In re Pers.

Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). A prosecutor

is afforded “wide latitude” during closing argument to make reasonable

inferences from the evidence, including the credibility of witnesses. State v.

Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). In circumstances where

the State’s evidence contradicts a defendant’s testimony, “a prosecutor may infer

that the defendant is lying or unreliable.” State v. Miles, 139 Wn App. 879, 890,

162 P.3d 1169 (2007). So long as a prosecutor does not express a personal

opinion or incite the passions of a jury, a prosecutor may comment on a witness’s




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veracity. State v. Edvalds, 157 Wn. App. 517, 525, 237 P.3d 368 (2010). A

prosecutor may not present the jury with a false choice that in order to acquit a

defendant, they must find that the State’s witnesses are lying or mistaken. State

v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996).

       Rangel-Ochoa elected to testify at trial. She testified that she had

purchased the YSL purse from a store in California and that a friend had

purchased identical MCM wallets for her and Saucedo Castro. She stated that

she initially told officers she did not own any YSL and MCM products because

she believed they were talking about YSL and MCM “cosmetic products.” She

claimed that she never told the detectives that they would find Saucedo Castro’s

items in her home, and she never said that she bought the items from Abraham.

The prosecutor asked her, “So [the detective] was lying when he said that on the

stand?” Rangel-Ochoa responded: “Maybe he doesn’t recall, but I am positive I

never said that because that never happened.” When Rangel-Ochoa was asked

why Saucedo Castro would identify her as the burglar if she was not, she

responded: “she’s lying.”

       During closing argument and rebuttal, the prosecutor focused on the

credibility of the witnesses:

       Somehow, in this case, Ms. Rangel-Ochoa was extremely unlucky
       because she had a best friend who pinned a case on her that she is
       innocent of. And somehow, she had a detective who's lying to you
       all on the stand. She must be the unluckiest person, to have had a
       victim claim was her best friend, that she was the one who did this
       when she had nothing to do with it, and that everyone else is lying.
       And that only she has all the right answers.

During rebuttal the prosecutor continued:




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       You heard Ms. Rangel-Ochoa's versions of what happened with law
       enforcement, and you heard defense's accusations of [the
       detectives]. That's unlucky for Ms. Rangel-Ochoa. For her to have
       had not just one, but maybe two crooked cops on her case, that is
       really unlucky for her that she found herself in that situation. . . . It is
       unlucky for her that every single person who testified in this case is
       apparently a liar, and that she's the only person telling the truth.
       That is unlucky for her.

       I recognize what I just said sounds crazy, right[?]

The prosecutor then stated,

       And I want to emphasize again, that the burden is on the State. It is
       my burden to prove this case to you beyond a reasonable doubt.
       But again, she has the right to be presumed innocent. She does
       not have the right to be presumed credible. . . . [I]s what she's
       saying, credible? . . . Because ultimately, you have the hard job
       here of having to really evaluate who here is telling the truth. Is it
       Ms. Rangel-Ochoa, and everyone else is out to get her here? Is it
       the victim and law enforcement who are telling the truth?

       ...

       I’m going to ask you all to consider all of the witness’ testimony that
       you’ve heard; to consider their credibility.

       The prosecutor’s remarks about Rangel-Ochoa being “unlucky” did not

shift the burden from the State to the defense, nor did it present a false choice to

the jury. The State and the defense provided conflicting witness testimony to the

jury. Based on this conflicting testimony, it was not improper for the prosecutor

to question Rangel-Ochoa’s version of events and to ask the jury to make a

determination on her credibility in comparison with the credibility of Saucedo

Castro and the detectives. We have previously held that when “ ‘conflicting

versions of the facts and the credibility of witnesses is a central issue, there is

nothing misleading or unfair in stating the obvious: that if the jury accepts one

version of the facts, it must necessarily reject the other.’ ” Rafay, 168 Wn. App.



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at 837 (quoting State v. Wright, 76 Wn. App. 811, 825, 888 P.2d 1214 (1995)).

        The actions of the prosecutor in this case stand in contrast with other

cases where this court has concluded that a prosecutor’s comments were

improper in the context of presenting a false choice to the jury. In State v.

Barrow, the prosecutor told jurors that “ ‘in order for you to find the defendant not

guilty on either of these charges, you have to believe his testimony and you have

to completely disbelieve the officers' testimony. You have to believe that the

officers are lying.’ ” 60 Wn. App. 869, 874-75, 809 P.2d 209 (1991). Similarly, in

Fleming, this court found the prosecutor improperly shifted the State’s burden

when they told the jury “ ‘to find [the defendants] not guilty of the crime . . . you

would have to find either that [the victim] has lied about what occurred . . . or that

she was confused.’ ” Fleming, 83 Wn. App. at 213.

       Unlike in Barrow and Fleming, at no point did the prosecutor in this case

direct the jury that in order to acquit Rangel-Ochoa they needed to conclude that

Saucedo Castro or the detectives were lying or mistaken. Here, the prosecutor

simply argued what evidence the jury should consider in determining the

credibility of the witnesses. The prosecutor’s statements were not improper.

       Rangel-Ochoa makes an additional claim that the prosecutor improperly

appealed to the emotions of the jury when referring to Saucedo Castro’s decision

to move from her home with her daughter after the burglary. Again, we disagree.

       A prosecutor commits misconduct when they seek a conviction based on

emotions rather than evidence. State v. Fuller, 169 Wn. App. 797, 821, 282 P.3d

126 (2012). In the case at issue, the prosecutor made these statements to




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dispute Rangel-Ochoa’s testimony that Saucedo Castro was lying about the

burglary. The prosecutor said,

       I don't know about you all, but I tend to think that moving is a bit of
       a pain.

       Would a person move everything they have, all of their belongings,
       move their kid from their school, move them to a completely
       different city, because she’s so scared of this, if none of that was
       even true to begin with?

       What would her incentive have been to do that?

These statements were in response to Rangel-Ochoa’s testimony that Castro

fabricated the burglary. These statements were not improper.

                                  Restitution Order

       Lastly, Rangel-Ochoa contends that she was denied due process when

the court failed to hold an evidentiary hearing on restitution.

       A judge must order restitution whenever a defendant is convicted of an

offense that results in damage or loss of property. RCW 9.94A.753(5). If a

defendant disputes the amount of restitution to be paid to a victim, the State must

prove the amount of restitution by a preponderance of the evidence. State v.

Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). “Evidence is sufficient if it

affords a reasonable basis for estimating loss.” State v. Dedonado, 99 Wn. App.

251, 256, 991 P.2d 1216 (2000). Hearsay statements are permitted at restitution

hearings, and where a restitution is based on a State’s affidavit—which includes

the hearsay statements of another party—“the degree of corroboration required

by due process is not proof of the truth of the hearsay statements ‘beyond a

reasonable doubt’, but rather, proof which gives the defendant a sufficient basis




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for rebuttal.” State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038 (1993)

(quoting State v. S.S., 67 Wn. App. 800, 808, 840 P.2d 891 (1992)). We will not

disturb a trial court’s order of restitution on appeal absent an abuse of discretion.

Tobin, 161 Wn.2d at 523.

       The court held a restitution hearing on August 13, 2020. Shortly after the

burglary, Saucedo Castro submitted a victim loss statement to the prosecutor,

indicating the combined value of her missing items was $4,530. At the restitution

hearing, the State submitted additional corroborating documentation of the

missing items, which included photos and values of similar designer products

found online, totaling $4,384.30. This was the amount requested by the State for

restitution.

       The defense objected to the admission of the additional documents but did

not request to continue the hearing. The trial court concluded:

       I think that the documentation provided by the State is sufficient to
       meet its burden. It's not an exacting burden; it's preponderance of
       the evidence. And I think, even if I were not to consider the new
       materials provided today, I do have the declaration of the -- of the
       victim in this case.

The court ordered restitution in the amount of $4,384.30.

       At the restitution hearing, the State provided, through declarations from

the victim and its corroborating documentation, a total that reflected an

approximate value of Saucedo Castro’s stolen items. Though restitution must be

based on “easily ascertainable damages,” it does not need to be “established

with specific accuracy.” State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350

(2005). A “precise determination” is not required. State v. Bennett, 63 Wn. App.




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530, 535, 821 P.2d 499 (1991). The trial court did not abuse its discretion in

ordering Rangel-Ochoa to pay restitution in the amount of $4,384.30.


                                 CONCLUSION

      We affirm Rangel-Ochoa’s judgment and sentence.




WE CONCUR:




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