                                                               FILED
                                                           DECEMBER 6, 2016
                                                       In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division III


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

STATE OF WASHINGTON,                           )         No. 31996-2-111
                                               )
                     Respondent,               )
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
FIDEL CORTEZ, JR.,                             )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, A.CJ. - Fidel Cortez appeals his conviction for burglary

and two counts of robbery as an accomplice. He argues ( 1) prosecutorial misconduct,

(2) improper denial of a motion to suppress evidence, (3) insufficiency of the evidence to

convict, (4) the trial court impermissibly limited cross-examination, ( 5) the trial court

improperly admitted evidence, and (6) cumulative error. In his statement of additional

grounds for review (SAG), he argues the trial court erred when it imposed legal financial

obligations (LFOs) against him without first inquiring into his current and future ability

to pay. The State concedes one LFO should be stricken. We agree and otherwise affirm.
No. 31996-2-111
State v. Cortez


                                          FACTS

       On January 29, 2012, Cortez and Christopher Blanco discussed their plan to rob

Cody Spicer, whom Cortez believed was a heroin dealer. They planned for Johnny

Torres to assist them.

       That night, Blanco and Robert Cooper were at Spicer's duplex. While there,

Blanco used Cooper's and Spicer's cellular phones to call Cortez five or six times. After

making the calls, Blanco returned the phones. In one of the calls, he asked Cortez to pick

him up from Spicer's duplex.

       Cortez asked Homero Villanueva for a ride so he could pick up Blanco.

Villanueva had been drinking, so Cortez agreed to drive. When the two got into

Villanueva's car they were joined by Torres, Ismael Ortiz, and Alejandro Castro.

       Cortez and the others arrived at Spicer's duplex in the early morning hours of

January 30. Torres. gave Blanco money to buy heroin from Spicer to confirm that heroin

was present. After Blanco returned with the drugs, Ortiz, Torres, and Castro exited the

car wearing bandanas covering their faces. One of them had a gun.

       The three originally went to the wrong side of the duplex, where Amy Gioletti

lived. Gioletti heard someone tapping on her back door. Blanco directed the three men

to Spicer's side of the duplex. Blanco then returned to the car.

       Cooper was still at Spicer' s house. As Cooper was talking to friends, three people

wearing masks or bandanas covering their faces entered the duplex and yelled at people

to get on the ground. Cooper noticed a silver gun. Cooper and Spicer got on the ground.


                                             2
No. 31996-2-III
State v. Cortez


Someone yelled, "Give me the stuff," and removed Cooper's wallet from his pocket. 2

Report of Proceedings (RP) at 157. Gioletti heard the yelling from her duplex and called

the police.

       Villanueva, Blanco, and Cortez had remained in the car. Villanueva asked Cortez

what the other three were doing. Cortez responded, "Heroin." 1 RP at 72. Soon after,

Ortiz, Torres, and Castro exited the duplex and ran back to the car, saying "hell, yeah, we

did it." 1 RP at 73. The group fled in Villanueva's car.

       The police arrived at Spicer's duplex shortly after the group had fled. The robbers

had taken Cooper's and Spicer's cellular phones. Cooper told police his phone had

global positioning system (GPS) tracking on it, but he needed his wife to access his

account.

       Corporal Juan Loera of the Moses Lake Police Department went with Cooper to

his house and met with Cooper's wife, Crystal Cooper. Crystal used the laptop in

Corporal Loera's patrol car to track Cooper's phone.

       The tracking dot generally followed a logical course before settling on a house

located on Miller Drive. There, the robbers had recently arrived, and one or more of

them were drinking beer and injecting heroin. Corporal Loera and Officer Paul Ouimette

arrived at the house and called for backup.

       Corporal Loera also sought a search warrant for the house based on Cooper's

statement and the results from the GPS tracking. In his application for the search

warrant, Corporal Loera described the robbery, Cooper's stolen phone, how he and


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No. 31996-2-III
State v. Cortez


Crystal had tracked Cooper's stolen phone to the subject house, and how the GPS

tracking provided a margin of error of between 17 and 20 yards.

       After more officers arrived, Officer Ouimette called to the occupants to come out

and talk to police. The occupants panicked, and hid the items seized in the robbery

around the house. Before the search warrant was authorized, the occupants-including

Cortez-came outside and submitted to police.

       Once the search warrant was authorized, police searched the house. In addition,

Corporal Loera used his cellular phone to call Cooper's phone. Police found a silver

handgun, a knife, and items belonging to Spicer and Cooper, including cellular phones

belonging to each, and Cooper's wallet.

       Police took Cooper's phone as evidence, but Cooper requested it back for his use.

Mike Shay, the prosecutor's investigator, met with Cooper to return his phone. Shay

asked Cooper to show him the call log on the phone. The call log for January 30 showed

Corporal Loera' s cellular number as a missed call, and preceding that, repeated outgoing

calls to the same number.

                                      PROCEDURE

      At a hearing before trial, Cortez moved the court to suppress all evidence taken

from the search of the house at Miller Drive. He argued there was insufficient

information for a magistrate to know the GPS tracking was accurate. The parties

stipulated that Cortez did not live at the house. The State argued that a reasonable person

was sufficiently familiar with cellular phones and GPS tracking for a magistrate to make


                                            4
No. 31996-2-III
State v. Cortez


a decision about probable cause. The trial court agreed and denied Cortez's motion to

suppress.

       At trial, Blanco testified on direct that he cooperated with police and testified

against Cortez to obtain a lesser sentence. He testified he faced a maximum sentence of

22 years, including firearm enhancements, but received a sentence of only 2 years

because of his agreement to cooperate. Cortez sought to admit Bianco's charging

information to show how the sentence was structured with the firearm enhancements.

The State objected and argued the charging information was irrelevant. Cortez agreed

Blanco testified accurately about the maximum sentence he faced, and the lesser sentence

he received. The trial court sustained the State's objection and prevented Cortez from

admitting the charging information.

       Later, the State attempted to admit a photograph of Cooper's cellular phone log

through Shay, its investigator. Cortez objected and questioned Shay's ability to

authenticate the photograph. The trial court excused the jury so the trial court could hear

argument. After argument, the trial court overruled Cortez's objection. But the trial

court largely neutralized the call log by also ruling that Shay could not testify that the

outgoing number that was repeatedly dialed belonged to Cortez. 1

       At trial, Officer Ouimette testified Corporal Loera initially sent him to a location

on Grape and Dale. This location was not on the route taken by the robbers, and was

       1
        Blanco testified he did not remember Cortez's cellular number. Shay would
have confirmed the number belonged to Cortez, but the basis of his knowledge depended
on hearsay.


                                              5
No. 31996-2-III
State v. Cortez


nowhere near the house on Miller Drive. During closing arguments, Cortez questioned

the accuracy of the OPS tracking. In rebuttal, the State responded:

               [STATE:] We do have this one random OPS hit. Yeah. If you've
       ever used one of those things-and I'm sure you all have, with cell phone
       OPS-they sometimes give big circles, they're not accurate sometimes
       when they're displaying themselves. We have a couple along the route
       right there-
              [DEFENSE]: Your Honor, I think I need to make an objection.
              THE COURT: Sustained. That's arguing facts not in evidence.

4 RP at 680-81. Cortez did not request an admonition from the bench for the jury to

ignore the argument or a curative instruction.

      The jury found Cortez guilty on counts 1, 2, and 3-the robberies of Spicer and

Cooper and the burglary in Cooper's residence. The jury found Cortez not guilty of

various other charged crimes. And the jury answered no to the questions of whether

Cortez was armed with a firearm during the commission of counts 1, 2, and 3.

      Cortez appeals.

                                       ANALYSIS

A.    PROSECUTORIAL MISCONDUCT

      Cortez argues the State committed prosecutorial misconduct in closing by

engaging in inconsistent arguments. At the suppression hearing, the State argued the

OPS tracking was accurate and common enough that a layperson could reasonably rely

on it. But the OPS tracking once showed Cooper's cellular phone at a location other than

the route taken from Spicer's house and across town from the house at Miller Drive.




                                             6
No. 31996-2-III
State v. Cortez


Cortez argued this in closing. In rebuttal, the State began to tell the jury how GPS

worked, and that individual GPS signals sometimes were inaccurate.

       To establish prosecutorial misconduct, a defendant has the burden to show that the

prosecutor's statements were improper and, as a result, prejudicial. State v. Dhaliwal,

150 Wn.2d 559, 578, 79 P.3d 432 (2003). For improper statements that were followed by

a proper objection, a prosecutor's statements are prejudicial if the statement had a

substantial likelihood of affecting the jury's verdict. State v. Emery, 174 Wn.2d 741,

760, 278 P.3d 653 (2012). Reversal is not required if the error could have been obviated

by a curative instruction that the defense did not request. State v. Russell, 125 Wn.2d 24,

85, 882 P.2d 747 (1994).

       Cortez contends, without elaboration, that the prejudice is clear. But the accuracy

of the GPS tracking was not an issue for the jury. The events of the robbery and the

starting location of Spicer's home were corroborated by Cooper. The events at the house

at Miller Drive were also corroborated by testimony of other witnesses, as well as the

items found by law enforcement at the house. We conclude that the accuracy of the GPS

tracking, or arguable lack thereof, did not have a substantial likelihood of affecting the

jury's verdict.

B.     SUPPRESSION HEARING

       Cortez argues the trial court erred in denying his motion to suppress the evidence

seized from the house at Miller Drive. He argues there was no evidence whether the GPS

tracking was reliable.


                                              7
No. 31996-2-III
State v. Cortez


       As a threshold issue, this court must determine whether Cortez has standing to

challenge the search warrant. The trial court concluded Cortez did have standing.

       This court may affirm on any ground supported by the record. State v. White, 13 7

Wn. App. 227, 230, 152 P.3d 364 (2007). "[R]esolution of a motion to suppress requires

a two-part inquiry: (1) whether a defendant has standing to challenge the police conduct;

and (2) whether the police conduct is contrary to the constitutional protections and

guarantees." 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL

PRACTICE AND PROCEDURE§ 2402, at 533 (3d ed. 2004). We review conclusions of law

following a suppression hearing de novo. State v. Mendez, 137 Wn.2d 208, 214, 970

P .2d 722 ( 1999).

       The United States Supreme Court has held that a guest, present in the home of

another, with consent, does not possess a privacy interest in that other's home.

Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). The

Fourth Amendment to the United States Constitution protects people, not places, and is a

personal right that must be invoked by the individual. Id. at 88. As a limited safeguard,

courts have developed the doctrine of automatic standing to confer third party standing

under certain conditions.

       Here, the parties stipulated that Cortez was only a short-term invited guest and did

not reside at the subject house. Cortez thus must rely on the doctrine of automatic

standing. At the suppression hearing, the State argued, albeit unsuccessfully, Cortez did

not have automatic standing.


                                             8
No. 31996-2-III
State v. Cortez


       To assert automatic standing, a defendant must be charged with a possessory

offense and be in possession of the subject matter at the time of the search or seizure.

State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). In addition to the charges of

robbery and burglary, the State charged Cortez with intimidating a witness, witness

tampering, and delivery of a controlled substance. It is obvious that robbery, burglary,

intimidating a witness, and witness tampering are not possessory offenses. Although less

obvious, delivery of a controlled substance is not a possessory offense either. See State v.

De Vries, 149 Wn.2d 842, 849-50, 72 P.3d 748 (2003) (The elements of delivery of a

controlled substance are: ( 1) delivery of a controlled substance, and (2) knowledge that

the substance delivered was a controlled substance.). Also, Cortez was outside the Miller

Drive house at the time of the search. Because Cortez cannot establish he has automatic

standing, we do not reach the substantive issue he presents.

C.    ADMISSION OF THE CALL LOG

      Cortez next argues the trial court erred when it admitted a photograph of a call log

without proper authentication. Cortez contends Cooper, not Shay, should have been the

person to authenticate the photograph.

      A trial court's determination of whether evidence has been properly authenticated

is reviewed for an abuse of discretion. In re Det. of HN, 188 Wn. App. 744,753,355

P.3d 294 (2015), review denied, 185 Wn.2d 1005, 366 P.3d 1244 (2016). An abuse of

discretion occurs when the trial court's decision is manifestly unreasonable or based on

untenable grounds or reasons. Id.


                                             9
No. 31996-2-III
State v. Cortez


       ER 90l(a) requires authentication or identification as a condition precedent to

admissibility. State v. Bradford, 175 Wn. App. 912, 928, 308 P.3d 736 (2013). This

determination is a preliminary question, so the rules of evidence do not apply. Id. The

court should admit the evidence if there is sufficient proof to permit a reasonable juror to

find that something is what it purports to be. Passovoy v. Nordstrom, Inc., 52 Wn. App.

166, 171, 758 P.2d 524 (1988). For example, testimony that the person on the other end

of a telephone call identified himself as a specific person is, alone, insufficient. Id.

However, courts routinely find identity authenticated when self-identification is

combined with virtually any circumstantial evidence. Id.

       Cortez contends Cooper was the best person to authenticate the photograph of his

own call log. That may be, but that does not disqualify the State's investigator, Shay,

from authenticating the photograph. Here, Shay was the person who took the

photograph. Prior to taking it, he asked Cooper to display his call log on his cellular

phone. That, combined with the photograph showing Corporal Loera's missed call, was

sufficient to properly authenticate the photograph. We determine the trial court did not

abuse its discretion when it admitted the photograph of the call log.

D.     SUFFICIENCY OF THE EVIDENCE FOR FIRST DEGREE ROBBERY CONVICTIONS

       Cortez contends the evidence was insufficient to convict him of the two first

degree robbery charges. Here, the State charged Cortez, as a principal or an accomplice,

with first degree robbery under RCW 9A.56.200(l)(a)(i) or (ii). This required the State

to prove beyond a reasonable doubt that Cortez or an accomplice was armed with a


                                              10
No. 31996-2-111
State v. Cortez


deadly weapon or displayed what appeared to be a firearm or other deadly weapon.

Cortez makes three arguments that we will address in tum below.

       In a criminal case, the State must provide sufficient evidence to prove each

element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307,316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When evaluating the sufficiency of

the evidence, the court must determine whether, when viewing the evidence in the light

most favorable to the State, any rational trier of fact could have found guilt beyond a

reasonable doubt. State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995). A claim of

insufficiency admits the truth of the State's evidence and all reasonable inferences from

that evidence. State v. Kintz, 169 Wn.2d 537,551,238 P.3d 470 (2010). Reviewing

courts also must defer to the trier of fact "on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821,

874-875, 83 P.3d 970 (2004). We do not reweigh the evidence and substitute our

judgment for that of the jury. State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980).

For sufficiency of evidence claims, circumstantial and direct evidence carry equal weight.

State v. Varga, 151 Wn.2d 179,201, 86 P.3d 139 (2004).

       1.     Inconsistency of verdicts

       Cortez first contends the evidence was insufficient because the jury's special

verdict determined that neither he nor a principal was armed with a firearm when

committing the robberies. "Where the jury's verdict is supported by sufficient evidence

from which it could rationally find the defendant guilty beyond a reasonable doubt, we


                                              11
No. 31996-2-III
State v. Cortez


will not reverse on grounds that the guilty verdict is inconsistent with an acquittal on

another count." State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988).

       Here, the jury was asked in the special verdict forms, "Was the defendant FIDEL*

CORTEZ, JR armed with a firearm at the time of the commission of the [robberies]."

Clerk's Papers (CP) at 182. Pages earlier, in a somewhat lengthy jury instruction, the

jurors were informed, "For purposes of a special verdict ... [i]f one participant to a crime

is armed with a deadly weapon, all accomplices to that participant are deemed to be so

armed, even if only one deadly weapon is involved." CP at 164. We note the jury had to

wade through 43 separate instructions to arrive at its verdicts. It is likely that the jurors,

when answering the robbery special verdict forms, did not recall the one sentence quoted

above. That is, by answering no in the special verdict forms, the jurors were merely

finding that Cortez, himself, was not armed with a firearm during the commission of the

robberies.

       Nevertheless, the facts are sufficient for a rational trier of fact to find a firearm

was used in the robberies of Spicer and Cooper. Blanco testified he saw one of the

accomplices with a gun before the accomplices left the car and went into the duplex.

Cooper testified he saw a silver handgun during the robbery. And Officer Ouimette

found a silver handgun inside the house at Miller Drive.

       2.     No evidence a firearm was used or displayed

       Cortez also argues there was no evidence that an accomplice used or displayed a

firearm. In State v. Henderson, 34 Wn. App. 865, 868, 664 P.2d 1291 (1983), we held


                                              12
No. 31996-2-III
State v. Cortez


the purpose of the first degree robbery statute was to "proscribe conduct in the course of a

robbery which leads the victim to believe the robber is armed with a deadly weapon,

whether the weapon is actually loaded and operable or not, and whether the weapon is

real or toy." Here, Cooper testified he saw one of the robbers with a silver handgun "out

of the comer of [his] eye." 2 RP at 156. This is sufficient for a rational trier of fact to

find beyond a reasonable doubt that an accomplice used or displayed a firearm.

       3.     Spicer did not testify any item was taken from him

       Cortez next contends because Spicer did not testify, the evidence was insufficient

to establish Spicer was a victim of the robbery. We disagree. Blanco used Spicer's

cellular phone but returned it to him prior to the robbery. Spicer was ordered to the

ground during the robbery alongside Cooper. Spicer's cellular phone and wallet were

found in the house at Miller Drive. This evidence permits a rational trier of fact to have

found beyond a reasonable doubt that Spicer was a victim of the robbery.

E.     SUFFICIENCY OF EVIDENCE FOR BURGLARY CONVICTION

       Cortez argues Spicer did not testify at trial so it was unclear whether the three

masked men were licensed or privileged to enter his duplex. Here, the State

charged Cortez, as a principal or as an accomplice, with first degree burglary under

RCW 9A.52.020. One of the elements the State was required to prove was that an

accomplice entered or remained unlawfully in or upon the subject premises. "A person

'enters or remains unlawfully' in or upon premises when he or she is not then licensed,




                                              13
No. 31996-2-III
State v. Cortez


invited, or otherwise privileged to so enter or remain." Former RCW 9A.52.010(3)

(2011).

       Circumstantial evidence is entitled to as much weight as direct evidence. Varga,

151 Wn.2d at 201. Here, three men with their faces covered with masks or bandanas

entered the duplex and yelled at everyone to get down on the floor. There was no

evidence that any of the accomplices knocked or rang the doorbell. There was no

evidence Spicer answered the door. Instead, he was next to Cooper, near the couch,

when the robbers ordered everyone to the ground. But even if Spicer opened the door, it

is highly improbable that Spicer invited three masked men into his duplex. Cortez was

free to argue that the masked robbers were invited in by Spicer. But the jury was

permitted, by circumstantial evidence, to find otherwise.

F.     LIMITATION OF CROSS-EXAMINATION


       Cortez next assigns error to the trial court's exclusion of Bianco's criminal

information during his cross-examination of Blanco. Cortez contends the confrontation

clause allows him to explore the bias Blanco had because Bianco's cooperation with the

State was due to a plea deal.

       A trial court's ruling on the admissibility of evidence is reviewed for abuse of

discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). Abuse exists

when the trial court's exercise of discretion is "' manifestly unreasonable or based upon

untenable grounds or reasons."' Id. (quoting State v. Powell, 126 Wn.2d 244, 258, 893

P.2d 615 (1995)). Relevant evidence may be excluded if"its probative value is


                                             14
No. 31996-2-III
State v. Cortez


substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." ER 403. A trial court's limitation of cross-

examination will not be disturbed unless it is the result of manifest abuse of discretion.

Darden, 145 Wn.2d at 619. "However, the more essential the witness is to the

prosecution's case, the more latitude the defense should be given to explore fundamental

elements such as motive, bias, credibility, or foundational matters." Id.

       Under the Sixth Amendment's confrontation clause, an accused has a right to

confront the witnesses against him. U.S. CONST. amend. VI; see also Crawford v.

Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). This right,

which applies to the states through the Fourteenth Amendment's due process clause,

speaks to a defendant's right to cross-examine adverse witnesses. See Pointer v. Texas,

380 U.S. 400, 404-05, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). However, the right to

cross-examine witnesses is not absolute: "Courts may, within their sound discretion, deny

cross-examination if the evidence is vague, argumentative, or speculative." Darden, 145

Wn.2d at 620-21. Further, the subject matter of the cross-examination is "limited by

general considerations of relevance." Id. at 621 (citing ER 401; ER 403).

       Our Supreme Court follows a three-pronged approach to determine the limitations

of a defendant's confrontation clause right to cross-examination. Id. at 622. First, the

evidence sought must have at least minimal relevance. Id. Second, if relevant, the

burden is on the State to show the evidence is "so prejudicial as to disrupt the fairness of


                                             15
No. 31996-2-III
State v. Cortez


the fact-finding process at trial." Id. Third, the court must balance the State's interest in

excluding prejudicial evidence against the defendant's need for the information. "[O]nly

if the State's interest outweighs the defendant's need can otherwise relevant information

be withheld." Id. Ultimately, restrictions on cross-examination are subject to the trial

court's discretion, and this court reviews for abuse of discretion. State v. Fisher, 165

Wn.2d 727,752,202 P.3d 937 (2009).

       The trial court did not allow defense to use Bianco's criminal information during

cross-examination to ask him how many firearm enhancements he faced. The trial court

stated it was not helpful and wasteful of the jury's time. We agree. The State elicited

testimony from Blanco that he agreed to cooperate in exchange for receiving a reduced

sentence of 2 years instead of a maximum sentence of 22 years. Defense counsel agreed

that Blanco testified accurately both to the sentence he received and the maximum

sentence he faced.

       The criminal information shows charged crimes and the authorizing statutes, but

the actual sentences for each charge are not listed. Nor is there any indication of total

time potentially faced. Blanco did testify he wanted to cooperate when he saw the gun

enhancements, but the document in no way shows what amount of time each

enhancement would carry. Nor did the document contain any information about the two-

year deal Blanco received instead. At best, the document showed Blanco faced criminal

charges and three firearm enhancement stemming from those charges.




                                             16
No. 31996-2-III
State v. Cortez


       In light of Bianco's admission of the prison time he faced and the prison time he

received, it was not manifestly unreasonable for the trial court to determine that the

charging information was vague or not relevant. The information provided no further

relevant information. We determine the trial court did not abuse its discretion by

excluding Bianco's charging information.

G.     CUMULATIVE ERROR

       Cortez argues cumulative error requires reversal of his convictions. Under the

cumulative error doctrine, a defendant may be entitled to a new trial when several trial

errors cumulatively produced a fundamentally unfair trial. State v. Coe, 101 Wn.2d 772,

789,684 P.2d 668 (1984). Cumulative error may require reversal even if each error

standing alone would be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149

P.3d 646 (2006). However, the cumulative error doctrine does not apply here, where

Cortez has failed to establish any trial error. See State v. Saunders, 120 Wn. App. 800,

826, 86 P.3d 232 (2004).

                           STATEMENT OF ADDITIONAL GROUNDS

      Cortez argues the trial court erred when it imposed LFOs without first inquiring

into his current and future ability to pay them. The trial court imposed a $500 victim

assessment fee, a $200 criminal filing fee, a $100 DNA 2 collection fee, and a $600 court-

appointed attorney fee. Cortez argues, and the State concedes, the court-appointed

attorney fee cost should not have been imposed because Cortez hired a private attorney.

      2
          Deoxyribonucleic acid.


                                             17
No. 31996-2-III
State v. Cortez


      Although Cortez contests all LFOs, only the court-appointed attorney fee is a

discretionary cost. The victim assessments, DNA fees, and criminal filing fees are

mandatory costs. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013). There is

no requirement for courts to conduct an individualized inquiry before imposing

mandatory costs.

      We accept the State's concession of error and direct the trial court to amend the

judgment and sentence to remove the $600 court-appointed attorney fee cost. This

amendment, favorable to Cortez, does not require his presence.

      Affirm, but strike attorney fee LFO.

      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.


                                         Law~nce-Berrey~ A.CJ.           (

WE CONCUR:
                                                                             j


  ;J2~w~ .).
   doway, J.       ·                     Pennell, J.




                                             18
