                                                                           FILED 

                                                                        JUNE 17,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 30222-9-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JOSE LEONEL MONCADA,                          )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )


       FEARING, J.     Ajury convicted Jose Moncada offrrst degree rape of a child and

attempted frrst degree child molestation. The trial court sentenced Mendez Moncada to a

concurrent sentence of life in prison with a minimum of 175 months. On appeal,

Moncada contends the trial court committed error, during sentencing, by imposing on

him legal fmancial obligations; by prohibiting him from purchasing, possessing, or

looking at pornographic material as a condition of community custody; and by ordering

him to undergo plethysmograph examinations at the discretion of his community

corrections officer. The State concedes the errors. We agree and remand for

resentencing.

       In his statement of additional grounds (SAG), Jose Moncada claims a violation of

his right to a timely trial under CrR 3.3 and, on that ground, additionally claims

ineffective assistance of counsel and prosecutorial misconduct. We reject these
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     No.30222-9-III
     State v. Moncada


     additional assignments of error. 

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                                               FACTS

            Jose Leonel Mendez Moncada lived in Yakima with his girl friend, Ramona

     Quinonez, and Quinonez's ll-year-old daughter, A.C. In 2009, Moncada pressed his

     erect penis against A.C. 's thigh while he penetrated her vagina with his fingers. In

     February 2010, at A.C.'s request, Moncada massaged her back to alleviate pain from a

     prior injury. Moncada slid his hands under her panties and massaged her butt. In March

     2010, Moncada repeatedly sent A.C. 's brother out of her room; in his absence, Moncada

     kissed A.C. on her neck and lips, and patted her butt.

            A.C. began to cut herself. An aunt noticed the cuts and asked A.C. about them.

     A.C. responded that "she was sick of her life." Report of Proceedings (RP) (Apr. 22,

     2011) at 181. A few weeks later, A.C. phoned her aunt and told her about the abuse from

     Jose Moncada.

                                           PROCEDURE

            The State charged Jose Moncada with first rape of a child. The information

     notified Moncada that, if found to be a "persistent offender," the mandatory penalty may

     be life imprisonment without the possibility of release. Clerk's Papers (CP) at 3. The

     trial court arraigned Moncada on April 23, 2010. On February 7, 2011, the State

     amended the charges against Moncada to three counts (1) the original charge of first .

     degree rape of a child on, about, during, or between July 1,2009, and August 31,2009;

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State v. Moncada


(2) attempted first degree child molestation on, about, during, or between February 1,

2010, and February 28,2010; and (3) attempted first degree child molestation on, about,

during, or between March 1,2010, and April 1, 2010.

       On February 15,2011, a trial date, Jose Moncada's defense counsel moved to

continue the trial to February 22 in order to transcribe another witness interview.

Moncada agreed to continue his case one week, but expressly objected to any longer

continuance for purposes of his rights under CrR 3.3. The trial court continued the case

one week, to February 22, so that counsel could transcribe the interview and complete a

different trial. The court termed the postponement an "administrative continuance" and

indicated that the new deadline, for purposes ofCrR 3.3, would be extended one week.

RP (Feb. 15,2011) at 18. The prosecutor objected and argued that any continuance

would result in a 30-day buffer under the rule. The court's February 15 order of

continuance listed Moncada's trial date as February 22.

       On the afternoon of February 15, the prosecution e-mailed Jose Moncada's

counsel reiterating its position. Defense counsel replied he agreed that CrR 3.3 allowed a

30-day extension, and that the new trial deadline was March 24.

       On February 18, Jose Moncada's defense counsel and the prosecution e-mailed

back and forth to schedule Moncada's new trial date. The earliest both would be

available for trial was early April 2011, due to other trials scheduled in late February and

throughout March. The prosecution delivered an amended trial status order to Superior

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    No.30222-9-II1
    State v. Moncada


    Court Judge Ruth E. Reukauf, which she signed on February 18. The order described


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    defense counsel's and the prosecution's schedule conflicts and noted Moncada's new

    CrR 3.3 deadline as March 24.


I          On February 28, 2011, Jose Moncada's defense counsel claimed that Moncada's

    trial deadline, under CrR 3.3, expired that day or had already expired on February 22.

    Counsel stated, "We believe that without a motion by the State the speedy trial expires

    today." RP (Feb. 28, 2011) at 22. Superior Court Judge Michael McCarthy noted the
I   existence of "dueling orders," referring to the February 15 order to continue and the
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    February 18 trial status order, which respectively noted Moncada's timely trial date as

    February 22 and March 24. On February 28, the prosecution moved to continue the trial

    date to March 7. The court granted this motion and, relying on the February 18,2011

    trial status order's trial deadline date of March 24, pushed Moncada's trial deadline to

    April 7.

           On April 4, the prosecution moved to continue Jose Moncada's trial because ofits

    trial counsel's illness. The trial court granted the motion, commenting, "I find there is

    good cause for a continuance. [The prosecutor] has been in my court all morning. I can

    tell she's having difficulty talking." RP (Apr. 4, 2011) at 2. The court observed that the

    case was complex and another prosecuting attorney should not be expected to try the

    case. The April 4 order of continuance set trial for April 11, resulting in a new CrR 3.3

    trial deadline of May 11.

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     State v. Moncada


            On April 19, Jose Moncada moved to dismiss his prosecution with prejudice

     claiming a violation of his right to a timely trial under CrR 3.3. Moncada argued:

                   I would have to say that implicit in his calculation here was that he
            was ruling that he was continuing this under the (f) section of Criminal
            Rule 3.3. The (f) section, unlike the (e) section, does not add 30 days to
            any continuance. It's merely an excluded period of time.
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     RP (Apr. 19,2011) at 9. The trial court ruled that CrR 3.3(b)(5)'s 30-day extension


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     applies to both CrR 3.3(e) and by reference CrR 3.3(f).

            Trial commenced on April 22, within the May 11 trial deadline. On April 26, a

I    jury found Moncada guilty on counts one and three of first degree rape of a child and
I    attempted first degree child molestation. The jury found Moncada not guilty on count


I    two, attempted first degree child molestation in February 2010. For both counts one and

     three, the jury found by special verdict that Moncada used his position of trust or

     confidence to facilitate the commission of the crime. 

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          The trial court imposed concurrent sentences of: life with a minimum term of 175
I    months for count one, and life with a minimum term of75 months for count three. The

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     court imposed legal financial obligations (LFOs) in the amount of$I,050. As part of the
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     judgment and sentence, the court made the following findings:

           2.7 Financial Ability: The Court has considered the total amount owing,
           the defendant's past, present, and future ability to pay legal financial
           obligations, including the defendant's financial resources and the likelihood
           that the defendant's status will change. The Court finds that the defendant
           has the present ability or likely future ability to pay the financial obligations
           imposed herein. RCW 9.94A.753.

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No. 30222-9-111
State v. Moncada



       4.D.4 Costs of Incarceration: In addition to the above costs, the court
       finds that the defendant has the means to pay for the costs of incarceration,
       in prison at a rate of$50.00 per day of incarceration or in the Yakima
       County Jail at the actual rate of incarceration but not to exceed $100.00 per
       day of incarceration (the rate in 2011 is $79.75 per day), and orders the
       defendant to pay such costs at the statutory rate as assessed by the Clerk.
       Such costs are payable only after restitution costs, assessments and fines
       listed above are paid. RCW 9.94A.760(2).
       4.D.S Costs of Medical Care: In addition to the above costs, the court
       finds that the defendant has the means to pay for any costs of medical care
       incurred by Yakima County on behalf of the defendant, and orders the
       defendant to pay such medical costs as assessed by the Clerk. Such costs
       are payable only after restitution costs, assessments and fines listed above
       are paid. RCW 70.48.130.

CP at 97, 100. The court imposed the following conditions of sentence:

       Within 30 days of release from confinement, enter into and make
       reasonable progress in sexual deviancy therapy with a therapist approved
       by the community corrections officer for a period of not less than 60
       months and/or during the set term of community custody supervision.
       Do not purchase, possess, or view any pornographic material in any form as
       defined by the treatment provider or the supervising Community
       Corrections Officer.
       Submit to regular polygraph and plethysmograph examinations about
       deviant sexual behavior upon the request of the supervising Community
       Corrections Officer.

CP at 99.

                                  LAW AND ANALYSIS

              Assignment ofError 1: Present or Future Ability to Pay LFOs

       Courts may impose LFOs, such as court costs, deoxyribonucleic acid (DNA)

collection fees, and victim restitution, if a defendant has or will have the financial ability

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No. 30222-9-III
State v. Moncada


to pay them. RCW 10.01.160(3); RCW 9.94A.760(2); State v. Curry, 118 Wn.2d 911,

914-16,829 P.2d 166 (1992). The trial court need not make a formal finding that the

defendant has or will have the ability to pay. State v. Baldwin, 63 Wn. App. 303, 312,

818 P.2d 1116 (1991). But where the court does make such a finding, the record must

support it. State v. Bertrand, 165 Wn. App. 393,403-05,267 P.3d 511 (2011). This

court reviews a trial court's determination of an offender's financial resources and ability

to pay for clear error. Bertrand, 165 Wn. App. at 404 n.13 (citing Baldwin, 63 Wn. App.

at 312).

       Here, the trial court did not consider Jose Moncada's ability to pay LFOs before

imposing them. The trial court heard some testimony pertinent to Moncada's financial

condition. At sentencing, Moncada's defense counsel stated:

              In addition, Your Honor, my client is a long-time member of this
       community, who has been actively contributing to the community. Even
       after he was injured back in 1998 with a back injury and was on Labor &
       Industries Disability, he took his Labor & Industries settlement when that
       was resolved and turned it around into a viable restaurant business, which
       unfortunately has had to close-since the charges were brought against
       him.

RP (Aug. 30,2011) at 94-95. Moncada told the court that he previously provided

financial support to his mother, wife, and children. But these statements concern

Moncada's past ability to pay and tend to show that he has since lost the ability to

provide such support. There is nothing in the record showing that Moncada has the

present or future ability to pay LFOs. Bertrand, 165 Wn. App. at 404.

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    No. 30222-9-III
    State v. Moncada


           As conceded by the State, the trial court's finding that Jose Moncada has the

    present or future ability to pay LFOs lacks any support in the record. Upon resentencing,

    the trial court should reassess whether to impose LFOs.

                             Assignment ofError 2: No Pornography

           Jose Moncada assigns error to the community custody condition that he not

    purchase, possess, or view pornography as defined by his community corrections officer.

    Moncada specifically argues the condition is unconstitutionally vague. Moncada cites

    State v. Bah!, 164 Wn.2d 739, 193 P.3d 678 (2008) to support his argument.

    Acknowledging the applicability of Bah!, the State correctly concedes error.

           "[T]he due process vagueness doctrine under the Fourteenth Amendment and

    article I, section 3 of the state constitution requires that citizens have fair warning of

    proscribed conduct." Bah!, 164 Wn.2d at 752. "[W]hen a statute or other legal standard,

    such as a condition of community placement, concerns material protected under the First

    Amendment, a vague standard can cause a chilling effect on the exercise of sensitive First

    Amendment freedoms." Bah!, 164 Wn.2d at 753 (citing Grayned v. City ofRocliford,

    408 U.S. 104, 109,92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972». "[C]onditions may be

    imposed that restrict free speech rights if reasonably necessary, but they must be

    sensitively imposed." Bah!, 164 Wn.2d at 757.

           "In deciding whether a term is unconstitutionally vague, the terms are not

    considered in a 'vacuum,' rather, they are considered in the context in which they are

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No.30222-9-III
State v. Moncada


used." BahI, 164 Wn.2d at 754; City ofSpokane v. Douglass, 115 Wn.2d 171, 180, 795

P.2d 693 (1990). "If persons of ordinary intelligence can understand what the [condition]

proscribes, notwithstanding some possible areas of disagreement, the [condition] is

sufficiently definite." Douglass, 115 Wn.2d at 179.

       Here, the trial court imposed the condition, "Do not purchase, possess, or view any

pornographic material in any form as defined by the treatment provider or the supervising

Community Corrections Officer." CP at 99. Moncada argues that the condition

impermissibly relies on a community corrections officer to define pornography.

Moncada aptly relies on our Supreme Court's holding in Bahl.

       In Bahl, a jury found the defendant guilty of second degree rape and first degree

burglary. 164 Wn.2d at 743. The trial court imposed the community custody condition,

"Do not possess or access pornographic materials, as directed by the supervising

Community Corrections Officer." Bahl, 164 Wn.2d at 743. Noting that "pornography"

lacks a precise legal definition, the Bahl court concluded:

       [T]he restriction on accessing or possessing pornographic materials is
       unconstitutionally vague. The fact that the condition provides that Bahl's
       community corrections officer can direct what falls within the condition
       only makes the vagueness problem more apparent, since it virtually
       acknowledges that on its face it does not provide ascertainable standards for
       enforcement.

Bahl, 164 Wn.2d at 758. The community custody condition at issue here suffers the same

fatal flaws.


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No. 30222-9-II1
State v. Moncada


                   Assignment ofError 3: Plethysmograph Examinations

       Jose Moncada assigns error to the trial court's order that he undergo penile

plethysmograph testing at his community corrections officer's discretion. Again, the

State concedes that the trial court erred. On remand, the State requests this court instruct

the trial court to modify the condition to allow Moncada's sexual deviance therapist to

order plethysmograph testing, in place of a community custody officer.

       Plethysmograph testing is used to diagnose and treat sexual deviancy. "The

procedure involves placing a pressure sensitive device around a man's penis, presenting

him with an array of sexually stimulating images, and determining his level of sexual

attraction by measuring minute changes in his erectile responses." Jason R. Odeshoo, Of

Penology and Perversity: The Use ofPenile Plethysmography on Convicted Child Sex

Offenders, 14 TEMP. POL. & CIV. RTS. L. REv. 1,2 (2004). Here, the trial court required

Moncada, "Submit to regular polygraph and plethysmograph examination about deviant

sexual behavior upon the request of the supervising Community Corrections Officer."

CP at 99.

       When a court imposes a community custody condition without a statutory basis,

this court reviews the condition for an abuse of discretion, without presuming its

constitutionality. State v. Valencia, 169 Wn.2d 782, 791-93, 239 P.3d 1059 (2010).

"Plethysmograph testing is regarded as an effective method for diagnosing and treating

sex offenders." State v. Riles, 135 Wn.2d 326, 343-44,957 P.2d 655 (1998), abrogated

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No.30222-9-III
State v. Moncada


on another ground by Valencia, 169 Wn.2d at 792. "The use of physiological assessment

measures, such as penile plethysmography, may yield useful information regarding the

sexual arousal patterns of sex offenders. This data can be useful in assessing baseline

arousal patterns and therapeutic progress." WAC 246-930-310(7)(c). But "[u]nlike

polygraph testing, plethysmograph testing does not serve a monitoring purpose." Riles,

135 Wn.2d at 345.

       Riles disposes of this issue. In Riles, the trial court imposed a similar condition,

"submit to polygraph & plethysmograph testing upon request of therapist andlor

[Community Corrections Officer], at own expense." 135 Wn.2d at 333. But Riles "was

not required to enter into treatment or therapy." The Riles court held, "It is not

permissible for a court to order plethysmograph testing without also imposing crime-

related treatment which reasonably would rely upon plethysmograph testing as a

physiological assessment measure." Riles, 135 Wn.2d at 345. The Riles court thus

approved of the use of penile plethysmography for the limited purposes of diagnosing

and treating sexual deviancy.

       The condition at issue in this case entrusts discretion with a community

corrections officer, instead of Moncada's sexual deviancy therapist. But

"[p]lethysmograph testing serves no purpose in monitoring compliance with ordinary

community placement conditions." Riles, 135 Wn.2d at 345. Because a community




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No. 30222-9-111
State v. Moncada


custody officer cannot diagnose or treat Moncada's sexual deviancy, neither can he or she

order plethysmograph testing.

       The trial court also ordered Moncada to enroll in sexual deviancy therapy.

Therefore, on remand, instead of striking the order to undergo plethysmograph testing,

the trial court may modify the order to entrust discretion with Moncada's sexual deviancy

therapist to direct the testing. In amending the order, the trial court should expressly limit

the scope ofpenile plethysmograph testing to diagnosis and treatment, in order to comply

with Riles.

                                            SAG

       We agree with trial court rulings that Jose Moncada's rights under CrR 3.3 were

not violated. The State is correct that, upon the granting of the motion to continue the

trial date of February 22,2011, the new deadline for trial, under CrR 3.3, was extended

30 days or until March 24. Before March 24, the trial court granted postponements for

good cause and the trial commenced before the new deadline of

May 11.

       Jose Moncada's counsel filed a motion to dismiss arguing that CrR 3.3(f), unlike

CrR 3.3(e), does not add 30 days to any continuance. The rule reads to the contrary.

       When arguing ineffective assistance of counsel and prosecutorial misconduct, Jose

Moncada relies on the court's alleged error in failing to dismiss the charges because of a

violation ofCrR 3.3. Because there was no violation, these additional arguments fail.

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No. 30222-9-III
State v. Moncada


       On March 20, 2013, Jose Moncada moved this court to allow him to file a pro se

reply brief regarding his timely trial argument. Under RAP 10.1 (h), we may authorize or

direct the filing of such a brief. But because further briefing is not necessary to dispose

of the issue, we deny the motion.

                                      CONCLUSION

       We affirm the convictions of Jose Moncada. We remand for resentencing with

instructions to the trial court to (1) strike the finding that Moncada has the present or

future ability to pay and review again the suitability of imposing LFOs; (2) strike the

community custody condition that Moncada may not purchase, possess, or view

pornography as defined by his community corrections officer; and (3) amend the

community custody condition regarding plethysmograph testing to be at the discretion of

Moncada's sexual deviancy therapist and only for diagnosing or treating that deviancy.

       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.



WE CONCUR: 





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