                                                                 FILED
                                                             DECEMBER 20, 2016
                                                           In the Office of the Clerk of Court
                                                         WA State Court of Appeals, Division III




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           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                          )         No. 33701-4-111
                                              )
                    Respondent,               )
                                              )
      v.                                      )         PUBLISHED OPINION
                                              )
SERGIO MAGANA, JR.                            )
                                              )
                    Appellant.                )

      PENNELL,   J. - A criminal defendant is entitled to a fair trial, but not a perfect one.

Some of the evidence admitted during Sergio Magana, Jr.'s trial for third degree rape

should have been excluded. Nevertheless, reversal of Mr. Magana's conviction is

unwarranted because none of the evidence was prejudicial. We therefore affirm Mr.

Magana's conviction, but reverse several technical aspects of Mr. Magana's sentence for

correction on remand.
No. 33701-4-III
State v. Magana


                                          FACTS

      Fourteen-year-old Y.L. first met Sergio Magana, Jr. through Facebook. Y.L.

described Mr. Magana as being in his 20's. After exchanging text messages, Y.L. and

Mr. Magana made plans to meet at Y.L.'s home. Mr. Magana had expressed a desire to

be alone with Y.L. When the day they planned to meet arrived, Mr. Magana went inside

Y.L.'s home and forcibly raped her. Not long after leaving, Mr. Magana texted and told

Y.L. not to mention his name and to delete all of their text messages because her "age

scare[d] him." 1 Verbatim Report of Proceedings (July 23, 2015) at 134.

      After approximately two weeks, Y.L. reported Mr. Magana's conduct to the police.

Y.L. identified Mr. Magana from a photo lineup and submitted her phone so text

messages could be extracted.

      The police then began looking for Mr. Magana. After about six weeks, Mr.

Magana made contact with the police and spoke to a detective over the telephone. The

detective described Mr. Magana as "fishing for information." Id. at 97. During the call,

Mr. Magana arranged to meet with the police. However, he never showed up for his

appointment. About a month later, Mr. Magana finally met with a police detective in

person. He was advised of his Miranda 1 rights and acknowledged that he had met Y.L.



      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 33701-4-III
State v. Magana


over Facebook, but he denied having intercourse.

       Mr. Magana was charged with one count of third degree rape of a child.

Fallowing a mistrial and then a second trial, he was found guilty by a jury and sentenced

by the trial court. A number of community custody conditions were imposed as part of

Mr. Magana's sentence. Mr. Magana appeals.

                                        ANALYSIS

Challenges to the jury's guilty verdict

       Evidence of pre-arrest silence

       Mr. Magana argues the State violated his right against self-incrimination by

eliciting testimony regarding his failure to appear for his initial police interview. He

claims this was an improper comment on his right to silence, in violation of the Fifth

Amendment to the United States Constitution. In support of his position, Mr. Magana

cites Washington Supreme Court cases which hold the Fifth Amendment rule on silence

applies to a suspects' interactions with police prior to arrest. State v. Easter, 130 Wn.2d

228, 922 P.2d 1285 (1996); State v. Lewis, 130 Wn.2d 700, 927 P.2d 235 (1996).

       While the Washington cases cited by Mr. Magana provide persuasive support, they

are ultimately unhelpful as they have been overruled by subsequent precedent from the

United States Supreme Court. In Salinas v. Texas, 133 S. Ct. 2174, 186 L. Ed. 2d 376


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No. 33701-4-111
State v. Magana


(2013 ), the United States Supreme Court addressed a long-standing conflict between

various state and federal courts over whether the Fifth Amendment bars introduction of a

defendant's pre-arrest silence as evidence of guilt. In a 5-4 plurality decision, the Court

found no prohibition. Salinas did not resolve all questions regarding how the Fifth

Amendment rule applies prior to arrest. Three justices recognized the Fifth Amendment's

protections might apply if explicitly invoked; the other two justices in the plurality

concluded no constitutional issue could apply outside of a custodial interview. But this

difference is immaterial here. The rule from Salinas is that, absent an express invocation

of the right to silence, the Fifth Amendment is not an obstacle to the State's introduction

of a suspect's pre-arrest silence as evidence of guilt.

       Salinas controls Mr. Magana's case. Legally, this is not an area where our state's

constitution affords greater protection than the federal constitution. Easter, 130 Wn.2d at

235; State v. Earls, 116 Wn.2d 364, 375, 805 P.2d 211 (1991). Accordingly, after Salinas

the Fifth Amendment analysis set forth in Easter, Lewis, and their progeny is no longer

good law. Factually, Mr. Magana was not under arrest or any sort of police custody. His

scheduled police interview was voluntary. To the extent Mr. Magana's failure to appear

for the interview was relevant, the State was entitled to present this evidence.




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 No. 33701-4-III
 State v. Magana


        Violation of the in limine ruling

        Mr. Magana appeals the trial court's failure to declare a mistrial after a police

 witness testified, in violation of an order in limine, to a statement made by Mr. Magana

prior to being read his Miranda rights. 2 We review the trial court's decision for abuse of

discretion, keeping in mind that a mistrial should only be granted "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. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). Relevant to

the analysis is the seriousness of the alleged error, whether erroneously factual

information was cumulative, and whether a curative instruction was given. Id.

       We are satisfied the trial court did not abuse its discretion in denying Mr .

. Magana's motion. The transcript confirms the officer's statement was not elicited

purposefully. It was not repeated to avoid reemphasizing it to the jury. And the trial

court gave a curative instruction. Also important to our analysis, the challenged

testimony was not particularly prejudicial. Subsequent to Miranda, Mr. Magana had

offered to assist law enforcement with local criminal cases. This testimony did not

violate the in limine order and was properly admitted. The only pre-Miranda statement at

issue was the clarification that Mr. Magana wanted to help with narcotics cases. This


       2   The statement in question was made during Mr. Magana's in-person interview.

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No. 33701-4-III
State v. Magana


added detail was of minor significance. There was no indication Mr. Magana was

involved in drugs or that the assault on Y.L. was drug related. Given all these

circumstances, the momentary violation of the trial court's in limine order by the State's

witness was not sufficiently significant to require a mistrial.

       Admission of business records

       Mr. Magana contends the State's photo lineup exhibit was hearsay and admitted

into evidence without proper foundation. The State counters that the exhibit was a

properly authenticated business record. We review the trial court's evidentiary decision

for abuse of discretion. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668, 230 P.3d 583

(2010).

       The exhibit at issue consists of three pages. The first page is an array of six hand-

numbered photos, one of which depicts Mr. Magana. The second page is entitled "Lineup

ID Report." Ex. 1. It appears to be a computer-generated report that documents

biographical information, including dates of birth, for the six individuals depicted on the

photo array. The third page is a copy of the written admonishment form Y.L. signed prior

to reviewing the photo array. During the photo identification process, Y .L. reviewed the

first and third pages of the exhibit, but not the second.




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No. 33701-4-III
State v. Magana


       At trial, the State's law enforcement witness testified about how he created the six

photo array contained on page one of the exhibit. He also explained how Y.L. signed the

admonishment form on page three. However, no testimony was presented regarding the

creation of the Lineup ID Report included on page two. In fact, it appears submission of

the Lineup ID Report as part of the exhibit was almost an oversight. After eliciting

testimony regarding the photo array and admonishment form, the State successfully

moved for admission of the exhibit over Mr. Magana's hearsay objection. The State then

asked the officer whether the exhibit referenced the age of the individuals depicted in the

photo array. At first, the officer said no. But when the State pointed out that the exhibit

had a second page, the officer agreed that the exhibit contained information regarding

age. Defense counsel objected to this line of questioning, but was overruled because the

exhibit had already been admitted.

       A document may be admitted as a business record as long as a witness testifies to

the document's identity and mode of preparation, and explains that the document "was

made in the regular course of business, at or near the time of the act, condition or

event .... " RCW 5.45.020; ER 803(6). While the State's witness adequately testified as

to the creation of the photo array and the admonishment form, the same was not true for

the Lineup ID Report. The State presented no testimony about where the Lineup ID



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No. 33701-4-111
State v. Magana


Report came from or how it was made. On its face, the Lineup ID Report appears to have

been created in an entirely different way than the photo array and admonishment form.

The State was required to establish a foundation for the Lineup ID Report prior to

admission as a business record. The failure to do so was error.

       The fact that the Lineup ID Report was sandwiched between two properly

admitted records as part of a single exhibit does not excuse the State's failure to establish

an individual evidentiary foundation. To the contrary, the manner in which the State

submitted the Lineup ID Report into evidence is troubling. The record before this court

does not clarify whether the trial court, opposing counsel, or even the witness were aware

that the Lineup ID Report had been included as part of the State's exhibit until after

admission. In the future, counsel for the State shall take greater caution in ensuring that

evidentiary foundations are met for all pieces of evidence, regardless of whether the

evidence is grouped together as one exhibit.

       Because no foundation was laid for the Lineup ID Report, it was improperly

admitted as a business record. The question then becomes whether this error requires

reversal. Since Mr. Magana does not raise a constitutional challenge, we engage in a

nonconstitutional harmless error analysis. "Under this standard, an error in the admission

of evidence is 'not prejudicial unless, within reasonable probabilities, the outcome of the


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State v. Magana


trial would have been materially affected had the error not occurred.'" State v. Anderson,

112 Wn. App. 828,837, 51 P.3d 179 (2002) (quoting State v. Bourgeois, 133 Wn.2d 389,

403, 945 P.2d 1120 (1997)).

       The information erroneously included in the Lineup ID Report was significant.

The charge against Mr. Magana required the State to prove that he was at least four years

older than Y.L. RCW 9A.44.079(1). Y.L. testified that she was 14. This meant the State

needed to prove Mr. Magana was over 18. The Lineup ID Report recited Mr. Magana's

date of birth and thereby provided the State direct proof that Mr. Magana met the four-

year age difference.

       While erroneous introduction of the Lineup ID Report could have endangered the

State's case, it ultimately did not. The evidence of more than a four-year age difference

between Mr. Magana and Y.L. was overwhelming. Apart from Y.L. 's testimony that Mr.

Magana was in his 20's and the jury's ability to observe Mr. Magana's appearance at trial

as a man in his mid-20's, Mr. Magana's own words satisfied much of the State's burden.

In both an oral statement to Y .L. and a text message, Mr. Magana expressed concern that

he might get in trouble because of Y.L.'s young age. These are not the type of comments

that would have come from someone under 18. Given the entirety of the evidence, the

erroneous inclusion of the Lineup ID Report did not impact the jury's verdict.



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No. 33701-4-111
State v. Magana


       Cumulative error doctrine

       Mr. Magana argues that even if the errors in his case are considered harmless when

viewed in isolation, their cumulative impact warrants reversal. We disagree. The

combined impact of the State's two trial errors did not deprive Mr. Magana of a fair trial.

See State v. Grieff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The first error, involving

the in limine violation, had little evidentiary significance. More importantly, it had no

bearing on the second error, which raised questions about the State's proof of Mr.

Magana's age. Because of this disconnect, the two errors are not more prejudicial when

considered in combination than alone. The cumulative error doctrine does not provide

Mr. Magana an avenue for relief.

Sentencing errors

       No-contact order

       Mr. Magana's judgment prohibits him from having contact with either Y.L. or her

immediate family for ten years. Because Mr. Magana was convicted of a Class C felony,

the maximum term that could have been imposed was five years. RCW 9A.20.02I(l)(c).

The State agrees that remand is required for correction.

       Jury demand fee

       The parties dispute whether Mr. Magana should have been ordered to pay one jury


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No. 33701-4-111
State v. Magana


fee or two. The issue arises because Mr. Magana's case involved two sets of jurors. The

first set was dismissed after a mistrial. The second set of jurors rendered Mr. Magana's

guilty verdict.

       Under Washington law, every person convicted by a jury in superior court is liable

for payment of a jury demand fee. RCW 10.46.190. The statute provides, "Upon

conviction in criminal cases a jury demand charge of ... two hundred fifty dollars for a

jury of twelve may be imposed as costs under RCW 10.46.190." RCW 36.18.016(3)(b)

(emphasis added). By use of the singular term "a" the statute plainly contemplates only

one jury demand fee per conviction. The trial court's imposition of two $250 fees was

error and must be corrected on remand.

       Community custody conditions

       Mr. Magana challenges five of his community custody conditions. He argues the

conditions are vague, overbroad, or not crime related. Community custody conditions are

reviewed for abuse of discretion. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830

(2015). The abuse of discretion standard applies whether this court is reviewing a crime

related community custody condition, or reviewing a community custody condition for

being unconstitutionally overbroad or vague. See Irwin, 191 Wn. App. at 652, 656; State

v. Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010) (vagueness); State v.


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No. 33701-4-111
State v. Magana


Cordero, 170 Wn. App. 351, 373, 284 P.3d 773 (2012) (crime related); State v. Bahl, 137

Wn. App. 709, 714-15, 159 P.3d 416 (2007) (overbreadth), reversed on other grounds,

164 Wn.2d 739, 193 P.3d 678 (2008).

       We begin our analysis with community custody condition 14:

       Do not frequent parks, schools, malls, family missions or establishments
       where children are known to congregate or other areas as defined by
       supervising CCO [community corrections officer], treatment providers.

Clerk's Papers at 17.

       Mr. Magana argues this condition is unconstitutionally vague. The guarantee of

due process contained in the Fourteenth Amendment to the United States Constitution and

article 1, section 3 of the Washington Constitution requires that laws not be vague. Irwin,

191 Wn. App. at 652; Bahl, 164 Wn.2d at 752-53. A community custody condition is not

vague so long as it: (1) provides ordinary people with fair warning of the proscribed

conduct, and (2) has standards that are definite enough to "' protect against arbitrary

enforcement."' See Bahl, 164 Wn.2d at 752-53 (quoting City of Spokane v. Douglass,

115 Wn.2d 171, 178, 795 P.2d 693 (1990)).

       We agree with Mr. Magana that condition 14 is problematic because it affords too

much discretion to Mr. Magana's CCO. As explained in State v. Irwin, 191 Wn. App. at

654-55, a community custody condition that empowers a CCO to designate prohibited


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No. 33701-4-III
State v. Magana


spaces is constitutionally impermissible because it is susceptible to arbitrary enforcement.

This characterization applies fully to condition 14. As written, condition 14 does not

place any limits on the ability of Mr. Magana's CCO to designate prohibited locations.

While the condition lists several prohibited locations and explains that the list covers

places where children are known to congregate, the CCO's designation authority is not

tied to either the list or the explanatory statement. As written, the discretion conferred on

the CCO by condition 14 is boundless. We therefore strike condition 14 as vague and

remand for resentencing. 3

       Mr. Magana's remaining challenges to his community custody provisions are

unpersuasive. Because Mr. Magana was convicted of a sex offense, conditions regarding

access to X-rated movies, adult book stores, and sexually explicit materials were all crime

related and properly imposed. In addition, because Mr. Magana used social media to

contact Y.L., conditions restricting internet access and social media sites were

permissible. These conditions _were not overly oppressive. They allow for computer and

internet usage necessary for employment. The trial court acted within its discretion in

imposing these conditions.


       3
         We disagree with Mr. Magana's other challenges to condition 14. Because he
committed a crime against a child, a properly worded condition restricting Mr. Magana's
access to areas where children are known to congregate would have been appropriate.

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No. 33701-4-III
State v. Magana


                                      CONCLUSION

       We affirm Mr. Magana's convictions, but remand to the trial court for resentencing

not inconsistent with this opinion.


                                         Pennell, J.

WE CONCUR:




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