                                                                          FILED
                                                                      OCTOBER 1, 2019
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                          )
                                              )         No. 35696-5-III
                       Respondent,            )
                                              )
       V.                                     )         UNPUBLISHED OPINION
                                              )
ENRIQUE MURILLO, JR.,                         )
                                              )
                       Appellant.             )

       FEARING, J. -    Some facts on appeal support a finding of probable cause, while

other facts discount a finding of probable cause to arrest Enrique Murillo, during which

arrest an officer found methamphetamine on Murillo's person. After weighing all facts,

we uphold the determination of probable cause and the conviction of Murillo for

possession of a controlled substance because an informant provided information

incriminating Murillo that was also against the informant's penal interest. Nevertheless,

because the to-convict instruction failed to identify the controlled substance as

methamphetamine, we remand to the prosecution for resentencing. We also remand for

corrections of two errors in the judgment and sentence.

                                          FACTS

       The principal question on appeal surrounds whether the trial court erred when
No. 35696-5-III
State v. Murillo


denying Enrique Murillo’s motion to suppress evidence found on his person during an

arrest. Thus, we glean our facts from testimony during a suppression hearing. The State

claims those facts support the trial court’s conclusion that law enforcement officers held

probable cause to arrest Murillo.

       On August 24, 2017, Kennewick Police Officer Cory McGee saw a white

Mitsubishi Eclipse parked near 4412 W. 7th in Kennewick. The Mitsubishi bore no

license plate, and all usable parts had been stripped from the vehicle. Officer McGee

called Benton County emergency services, which reported the Mitsubishi as stolen.

       Other Kennewick Police Department officers arrived at the vicinity of the

Mitsubishi Eclipse. The officers noticed a trail of oil leading from the white Mitsubishi

to the driveway of a nearby address, 723 S. Volland Street. Outside of this residence,

officers found a Toyota truck reported as stolen, which truck displayed a stolen license

plate. The officers saw another license plate in a nearby garbage dumpster.

       Kennewick Police Department officers approached the house at 723 S. Volland

and spoke with Jenna Ross, Jessica Miller, and a man who identified himself as Jonathan

Watts. Miller denied knowledge of the white Mitsubishi. Ross denied knowledge of the

Mitsubishi and Toyota being stolen, but she disclosed that an individual she called

“Cousins” brought the white Mitsubishi to the Volland address. Clerk’s Papers (CP) at

106. Ross knew not who transported the Toyota pickup to the residence.



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      Detective Marco Monteblanco also interviewed Jonathan Watts. Watts denied

stealing the vehicles but admitted to working on the Mitsubishi with a person he called

“Cousins.” CP at 106. Kennewick Police Detective Daniel Todd assumed the

questioning of Watts. We do not know if Todd’s questioning of Watts occurred at the

police station or at the Volland address. Watts informed Detective Todd that he had

resided at the Volland Street address for a few days, and the residents at the home were

Jenna Ross and Tyler Hoyt. Watts stated that Cousins worked on the Mitsubishi and

possibly removed parts from the car.

      Jonathan Watts described Cousins, to Detective Daniel Todd, as a Hispanic male

with a spider web tattoo on his elbow. Watts believed Cousins’ real name started with

the letter E. Watts claimed that Cousins lived in an apartment complex, which contained

the name “Sage,” on Hood Avenue, east of Tweedt Street in Kennewick. CP at 107. He

also identified the color of the apartment complex. Watts said that Cousins drove to the

Volland residence in a green Kia.

      Law enforcement officers journeyed to Sage Creek Apartments on Hood Avenue,

where they saw a dark blue Kia Optima. Detective Daniel Todd texted a picture of the

Kia to another officer. The other officer showed the photograph to Jonathan Watts, who

confirmed that Cousins drove the car. Detective Todd’s research unearthed that Enrique

Murillo owned the Kia Optima.



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       Kennewick Detective Rick Runge prepared and showed a photo montage to

Jonathan Watts. Watts identified the picture of Enrique Murillo as the person he knew as

“Cousins.” CP at 107.

       Kennewick Police Department officers stopped Enrique Murillo’s vehicle as he

left his apartment. Officers arrested Murillo. During a search incident to arrest, Officer

Jeff Sagen grabbed a bag with white crystal from Murillo’s person. The contents of the

bag later tested positive as methamphetamine.

       Later on August 24, officers interrogated Jonathan Watts again. Watts admitted

that he gave a false name and his true name was James Whitney. Whitney further

conceded he had stolen the Toyota Truck and the white Mitsubishi.

                                      PROCEDURE

       The State of Washington charged Enrique Murillo with one count of possession of

a controlled substance, in violation of RCW 69.50.4013(1). The sole charge read:

              That the said ENRIQUE MURILLO, JR in the County of Benton,
       State of Washington, on or about the 24th day of August, 2017, in violation
       of RCW 69.50.4013(1), did unlawfully possess a controlled substance, to
       wit: methamphetamine, contrary to the form of the Statute in such cases
       made and provided, and against the peace and dignity of the State of
       Washington.

CP at 1 (emphasis added).

       Enrique Murillo moved to suppress the methamphetamine found on his person on

the ground that officers lacked probable cause to arrest him. He argued that Jenna Ross’


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State v. Murillo


and James Whitney’s informant tips failed to establish probable cause to arrest him under

the Aguilar-Spinelli test.

       After an evidentiary hearing, the trial court denied Enrique Murillo’s motion to

suppress. During its oral ruling, the trial court noted that the question of probable cause

was “a close call.” Report of Proceedings (RP) (Oct. 25, 2017) at 47. The trial court

entered the following conclusions of law:

              1. The Aguilar-Spinelli test established in Spinelli v. United States,
       393 U.S. 410, (1969) and Aguilar v. Texas, 378 U.S. 108 (1964) is the
       proper framework to analyze whether an informant’s tip is sufficient to
       establish probable cause.
              2. Assuming that both the basis of knowledge prong and the veracity
       prong are met under Aguilar-Spinelli, the information taken at face value
       constitutes probable cause to arrest the defendant for possession of a stolen
       motor vehicle.
              3. The basis of knowledge prong is satisfied, and the defendant
       conceded this[.]
              4. Neither James Whitney, nor Jenna Ross had an established track
       record of providing reliable information to police.
              5. Although the officers could adequately establish that Enrique
       Murillo was the individual that Ross and Whitney referred to when
       describing Cousins, officers were unable to corroborate the allegations that
       it was he that had brought the white Mitsubishi to the residence and
       possibly worked on it or removed parts from it.
              6. Nevertheless, James Whitney’s and Jenna Ross’s statements to
       police were against penal interest and weigh in favor of finding that the
       veracity prong is satisfied. Specifically, James Whitney’s statement that he
       worked on the stolen vehicle with the defendant, was against his penal
       interest.
              7. The fact that Jenna Ross and James Whitney independently gave
       a similar account of who had worked on or brought the white Mitsubishi to
       the house lends credibility to both Ross’s and Whitney’s accounts and
       weighs in favor of finding that the veracity prong is satisfied.


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               8. The fact that Whitney knew the first letter of Cousins’ real name,
       the car he drove[,] and where he lived lends credibility to Whitney’s
       account.
               9. The identification of Enrique Murillo as Cousins during the photo
       lineup lends credibility to Whitney’s account.
               10. Even though neither Ross nor Whitney had an established track
       record, under the circumstances, their statements satisfy the veracity prong
       of the Aguilar-Spinelli test.
               11. At the time Murillo was arrested, officers had probable cause to
       arrest for the felony crime of possession of a stolen motor vehicle.
               12. The resulting search incident to arrest was lawful, and the
       alleged controlled substance discovered during such search is admissible in
       trial.

CP at 108-09.

       The prosecution proceeded to a jury trial. Officer Jeff Sagen of the Kennewick

Police Department testified that he arrested Enrique Murillo, searched his person, and

found a red baggie with a crystalline substance in it. Forensic scientist Jayne Wilhelm

testified that she tested the white crystalline material and found it to contain

methamphetamine.

       Enrique Murillo testified in his own defense. Murillo averred that, on the morning

of his arrest, he changed into a pair of shorts that he grabbed from a dirty pile of clothes

on the floor of his home. Murillo claimed that the shorts he wore at the time of his arrest

did not belong to him and that he lacked knowledge that the pocket of the shorts

contained methamphetamine.

       The trial court delivered to the jury a set of jury instructions. Jury instruction 7

declared:

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State v. Murillo


              It is a crime for any person to possess a controlled substance.

CP at 88. Jury instruction 8, the to-convict instruction, read:

               To convict the defendant of the crime of possession of a controlled
       substance, each of the following elements of the crime must be proved
       beyond a reasonable doubt:
               (1) That on or about August 24th, 2017, the defendant possessed a
       controlled substance; and
               (2) That this act occurred in the State of Washington.
               If you find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a
       verdict of guilty.
               On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to any one of these elements, then it will be your duty
       to return a verdict of not guilty.

CP at 89 (emphasis added). Note that instruction 8 did not mention methamphetamine as

the controlled substance. Instruction 10 stated:

              Methamphetamine is a controlled substance.

CP at 92. The verdict form for the charge stated:

              We, the jury, find the defendant ENRIQUE MURILLO JR., ____
       [write in “not guilty” or “guilty”] of the crime of Unlawful Possession of a
       Controlled Substance as charged in Count I.

CP at 96 (emphasis added). Several jury instructions referenced the crime of possession

of a controlled substance. Nevertheless, none of the jury instructions informed the jury as

to the nature of the charge found in count I.

       The jury found Enrique Murillo guilty. The court sentenced Murillo as a felon to

six months plus one day confinement. The judgment and sentence contains the following


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No. 35696-5-III
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provisions, among others:

               5.5 Any violation of this Judgment and Sentence is punishable by up
       to 60 days of confinement per violation. RCW 9.94A.634[.]
               ....
               5.6b FELONY FIREARM OFFENDER REGISTRATION. The
       defendant is required to register as a felony firearm offender. The specific
       registration requirements are in the “Felony Firearm Offender Registration”
       attachment.

CP at 119 (boldface omitted).

                                 LAW AND ANALYSIS

       Enrique Murillo challenges both his conviction and his sentence. He challenges

his conviction on the basis that Kennewick Police Department officers lacked probable

cause to arrest him and thus the trial court should have suppressed evidence of the

methamphetamine seized during his arrest. He challenges his sentence on the ground

that, although the jury found that he possessed a controlled substance, the jury never

expressly found he possessed methamphetamine and thus a sentence based on possessing

methamphetamine must be struck. We address the conviction first.

                             Probable Cause for Arrest

       This appeal contains discrete facts that, although in isolation are not unique, when

combined form a distinctive configuration. Some factors discount the presence of

probable cause, while other factors support the existence of probable cause. After

analyzing the facts, we conclude the most important factor to be James Whitney’s

statement against penal interest and this factor created probable cause despite Whitney

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No. 35696-5-III
State v. Murillo


providing law enforcement a false name.

       To review the facts, Officer Cory McGee spotted a stolen white Mitsubishi

Eclipse, without a license plate and with all usable parts stripped therefrom. McGee and

other officers noticed a trail of oil leading to 723 Volland Street, in front of which

officers discovered another stolen vehicle. At the Volland Street address, officers spoke

to three people. All denied knowledge of stolen vehicles, but two, Jenna Ross and James

Whitney, identified a man named Cousins as the one who brought the Mitsubishi to the

neighborhood. Whitney admitted to working on the Mitsubishi with Cousins. Whitney

stated Cousins was a Hispanic man, with a spider tattoo on his elbow, whose real name

started with an “E,” who lived in an apartment complex on Hood Avenue that contained

the name “Sage,” and who drove a green Kia. On follow-up to Whitney’s information,

officers went to Sage Creek Apartments on Hood Avenue, saw a blue Kia Optima, and

learned that Enrique Murillo owned the Kia. Whitney then confirmed, through a

photograph, Murillo as Cousins and the blue Kia Optima as Cousins’ car.

       We isolate three critical facts. First, James Whitney spoke to officers in person

and provided a false name. Second, Whitney implicated himself by conceding he worked

on the disassembled car. Third, Whitney provided details about Cousins, aka Enrique

Murillo, later confirmed by law enforcement, but the details did not implicate Cousins in

any crime. Did these facts justify the arrest of Murillo for stealing a vehicle or

possession of a stolen car? The answer lies in whether the officers possessed reason to

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No. 35696-5-III
State v. Murillo


believe the truth of the information disclosed by Whitney and the other witness

implicating Enrique Murillo, Jenna Ross.

       On appeal, Enrique Murillo attacks the credibility of informants Jenna Ross and

James Whitney. The State argues that law enforcement could rely on the statements from

Ross and Whitney because each provided a statement against penal interest.

       In retrospect, James Whitney, if not also Jenna Ross, provided misleading, if not

false, information to Kennewick police officers about the theft of motor vehicles. At

least, the State never prosecuted Murillo with stealing or possessing a stolen car, the

allegations that led to his arrest. Nevertheless, this court does not view, with hindsight,

information used by law enforcement to form probable cause. State v. Remboldt, 64 Wn.

App. 505, 509, 827 P.2d 282 (1992).

       Officers seized methamphetamine from Enrique Murillo’s person when arresting

him, without an arrest warrant or a search warrant, for allegedly stealing a motor vehicle

or possession of the stolen vehicle. As a general rule, warrantless searches and seizures

are per se unreasonable under the Fourth Amendment to the United States Constitution

and article I, section 7 of the Washington State Constitution. State v. Doughty, 170

Wn.2d 57, 61, 239 P.3d 573 (2010). The burden falls on the State to demonstrate that a

warrantless seizure falls into a narrow exception to the rule. State v. Doughty, 170 Wn.2d

at 61. We purportedly “jealously and carefully” draw these exceptions. State v. Garvin,

166 Wn.2d 242, 249, 207 P.3d 1266 (2009). A search incident to arrest is one such

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State v. Murillo


exception to the warrant requirement. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872

(2004). Under article I, section 7, a lawful custodial arrest is a constitutionally required

prerequisite to any search incident to arrest. State v. Gaddy, 152 Wn.2d at 70. Therefore,

we must determine if law enforcement lawfully arrested Enrique Murillo.

       A police officer holds authority to arrest a person absent a warrant when the

officer possesses probable cause to believe that a person committed or is committing a

felony. RCW 10.31.100. Theft of a motor vehicle and possession of a stolen motor

vehicle qualify as Class B felonies. RCW 9A.56.065; RCW 9A.56.068.

       The existence of probable cause is determined by an objective standard. State v.

Gaddy, 152 Wn.2d 64 (2004). Probable cause exists when the facts and circumstances

within the arresting officer’s knowledge and of which the officer has reasonably

trustworthy information justify a person of reasonable caution to conclude the suspect

committed an offense. State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986).

Probable cause constitutes the likelihood of a crime, not proof of a crime beyond a

reasonable doubt. State v. Gaddy, 152 Wn.2d at 70.

       When a law enforcement officer relies on an informant to gain probable cause for

an arrest, article I, section 7 of the Washington Constitution requires adherence to the

two-pronged test arising from the United States Supreme Court decisions of Aguilar-

Spinelli. State v. Smith, 102 Wn.2d 449, 455, 688 P.2d 146 (1984); Aguilar v. Texas, 378

U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S.

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No. 35696-5-III
State v. Murillo


410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Aguilar-Spinelli test requires: (1) a

showing that the informant has a sufficient basis of knowledge, and (2) a showing of the

veracity of the informant. State v. Smith, 102 Wn.2d at 455. The second prong seeks to

evaluate the truthfulness of the informant. State v. Lair, 95 Wn.2d 706, 709, 630 P.2d

427 (1981). To satisfy both prongs, the State must prove the underlying circumstances

showed that the informant was credible and obtained the information in a reliable

manner. State v. Gaddy, 152 Wn.2d 64, 72 (2004). The State must satisfy both prongs of

the Aguilar-Spinelli test, unless the State shows probable cause by an independent police

investigation corroborating the informant’s tip to the extent the investigation cures the

tip’s deficiency. State v. Vickers, 148 Wn.2d 91, 112, 59 P.3d 58 (2002).

       Enrique Murillo agrees that the State satisfied the basis of knowledge prong.

Murillo challenges the fulfillment of the veracity of the informant prong.

       The State may fulfill the veracity prong of the Aguilar-Spinelli test in one of two

ways: (1) the informant has a history of providing credible information, or (2) if the

informant never provided information in the past and even if law enforcement knows

nothing about the informant, the facts and circumstances under which the informant

supplied the information reasonably support an inference that the informant spoke the

truth. State v. Chamberlin, 161 Wn.2d 30, 41-42, 162 P.3d 389 (2007). We agree with

Enrique Murillo that Jenna Ross and James Whitney lacked any history of providing

reliable information to the police. The State does not argue otherwise.

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State v. Murillo


       If a police investigation reveals suspicious activity along the lines of the criminal

behavior proposed by the informant, the corroborating investigation may satisfy the

requirements of Aguilar-Spinelli. The corroborating information must point to suspicious

activities or indications of criminal activity along the lines suggested by the informant.

State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990). The amount and kind of

detailed information given by an informant may also enhance his reliability. State v.

O’Connor, 39 Wn. App. 113, 122, 692 P.2d 208 (1984). Still, Washington courts have

never considered corroboration as a prerequisite to a reasonable inference of truthfulness.

State v. Patterson, 83 Wn.2d 49, 56, 515 P.2d 496 (1973); State v. O’Connor, 39 Wn.

App. at 120.

       The law deems the circumstances under which the informant supplied the

information to encompass whether the informant implicated himself or herself in criminal

activity. If the informant has no record of reliable information, the State may still satisfy

the veracity prong by showing that the informant’s accusation qualifies as a declaration

against penal interest. State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984).

When a person admits self-incriminating activity to the police, we presume the statement

is true. State v. Chenoweth, 160 Wn.2d 454, 483, 158 P.3d 595 (2007). Statements

against penal interest are intrinsically reliable because a person is unlikely to make a self-

incriminating admission that leads to prosecution unless it is true. State v. Chenoweth,

160 Wn.2d at 483; State v. Lair, 95 Wn.2d at 711 (1981).

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       Jenna Ross and James Whitney gave law enforcement each’s purported respective

names. The informant’s identification of himself or herself is not alone a sufficient

ground on which to credit the informer. State v. Duncan, 81 Wn. App. 70, 78, 912 P.2d

1090 (1996). Nevertheless, Washington courts hold that an informant’s willingness to

come forward and identify himself or herself to be a strong indicator of reliability. State

v. Chenoweth, 160 Wn.2d 454, 483 (2007); State v. Chamberlin, 161 Wn.2d at 42 n.7. If

law enforcement knows the identity of an informant, as opposed to the informant being

anonymous or professional, the necessary showing of reliability is relaxed. State v.

Gaddy, 152 Wn.2d 64, 72-73 (2004). Apparently psychology supports the proposition

that an anonymous reporter will more likely employ rumor or irresponsible conjecture or

be marred by self-interest. State v. Gaddy, 152 Wn.2d 64, 72-73. An anonymous

reporter will not suffer ramifications from supplying false information, including the

crime of false reporting, but one disclosing one’s name renders himself criminally liable

for false accusations. State v. Chenoweth, 160 Wn.2d 454 (2007); RCW 9A.76.175. The

law deems citizen informants presumptively reliable. State v. Gaddy, 152 Wn.2d at 73.

       Enrique Murillo insists that James Whitney was an anonymous informant since

Whitney gave a false name. This contention holds some, but only limited, appeal. Most

anonymous informers speak by telephone. James Whitney spoke to law enforcement

officers in person at his temporary home. Officers could thereafter locate him at the

residence and identify him by his physical appearance. To this extent, Whitney was a

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State v. Murillo


known informant. Although we do not review probable cause in hindsight, law

enforcement later located Whitney and spoke again to him, at which time he admitted his

true name and his stealing of the motor vehicle.

       One might argue that law enforcement officers should have asked Whitney for

identification to confirm his true name before relying on his remarks about Cousins or

Enrique Murillo. Law enforcement routinely asks citizens for identification in other

settings.

       Enrique Murillo cites no decision wherein the court holds or even discusses

whether law enforcement should procure identification from an informer before relying

on the informer’s disclosures. We find only one decision, in which a court discussed an

informer giving a false name. In State v. Duncan, 81 Wn. App. 70 (1996), the State

charged James Duncan with possession of a controlled substance. Duncan’s girlfriend,

Sara DaVee, initiated law enforcement’s search of Duncan’s person. Nevertheless,

DaVee gave the false name of Meda Hansen. Hansen complained to Officer Bill Guyer

of a domestic dispute, during which Duncan pulled her hair. Guyer noticed red marks on

Hansen’s face and loose hair. Hansen added that she recently saw Duncan take fourteen

ounces of marijuana from a storage unit. Based on this information, law enforcement

procured a warrant to search the storage unit. This court affirmed the superior court’s

suppression of the marijuana found in the storage unit.

       In State v. Duncan, this court noted that law enforcement’s affidavit in support of

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State v. Murillo


the search warrant failed to explain Sara DaVee’s credibility or reliability. The court

wrote:

               Police did not check her identity, address, phone number,
         employment, residence or length of residence, or family history.

81 Wn. App. at 77. Officer Bill Guyer’s observation of DaVee’s head and hair confirmed

domestic violence, but did not confirm the possession of marijuana. The opinion did not

indicate when law enforcement learned that DaVee gave a false name, and, assuming law

enforcement learned before applying for a search warrant, the importance of the false

name. This court held that law enforcement lacked probable cause to search the storage

unit, but we relied on the lack of confirming information with regard to marijuana in

storage rather than DaVee giving a false name. Thus, Duncan does not hold that law

enforcement must necessarily ask an informant for identification.

         James Whitney supplied law enforcement information about Cousins’ real name,

the brand of car he drove, and his residence. Police confirmed the accuracy of the

information. In turn, Whitney correctly identified Enrique Murillo in the photo line-up.

Whitney gave the wrong color of the Kia, but some people see blue when others see

green and vice versa.

         The veracity of the informant increases if law enforcement’s investigation

corroborates the informant’s tip. State v. Vickers, 148 Wn.2d 91 (2002). Nevertheless,

corroboration of innocuous facts only shows that the informer has some familiarity with


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State v. Murillo


the suspect’s affairs. State v. Jackson, 102 Wn.2d 432, 438 (1984). Such corroboration

only justifies an inference that the informer has some knowledge of the suspect and his

activities, not that criminal activity is occurring. State v. Jackson, 102 Wn.2d 432, 438.

The information Whitney supplied law enforcement merely confirmed that Whitney

knew Murillo. The information did not validate Murillo’s alleged illegal activities or his

involvement with the white Mitsubishi.

       Enrique Murillo legitimately challenges the trial court’s conclusion of law 6,

which declared that Jenna Ross and James Whitney uttered statements against her or his

respective penal interests. We agree that Ross did not implicate herself. During her

interview with officers, Ross denied knowledge that the Toyota pickup and the

Mitsubishi were stolen. She claimed that Cousins brought the white Mitsubishi to the

house, but that she had no clue how the Toyota arrived in the vicinity. These statements

do not subject Ross to criminal liability.

       We agree with the State that James Whitney voiced a statement against penal

interest. Whitney’s acknowledgement of work in stripping a car and work on a

disassembled vehicle with a person allegedly barely known implicated Whitney as an

accomplice or principal in stealing a car or possession of a stolen car. In State v.

Chenoweth, this court agreed that an informant provided reliable information when he

told an officer that he assisted the accused in making methamphetamine. Because the

testimony of an accomplice suffices to convict beyond a reasonable doubt, statements by

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State v. Murillo


the accomplice should suffice to present probable cause for an arrest of the defendant.

Craig v. Singletary, 127 F.3d 1030, 1044-45 (11th Cir. 1997).

       The law deems a statement against penal interest reliable because the informant

more likely tells the truth if he speaks against his advantage. This rationale assumes that

the informant knows that his comments implicate him. We lack any evidence that James

Whitney knew that his disclosures implicated him. He may not have known the car to be

stolen, or, assuming he knew the car to be stolen, he did not know that working on the car

rendered him an accomplice. We find no case law, however, that demands the State

show that the informant knew he spoke against his interests.

       One could argue that James Whitney lied about Enrique Murillo bringing the car

to the neighborhood in order to shift principal blame onto Murillo and deflect primary

guilt from him. One case recognizes this possibility. Craig v. Singletary, 127 F.3d 1030,

1045-46 (11th Cir. 1997). Nevertheless, the federal court rejected this possibility as a

reason to discount statements against penal interest.

       Once again, Enrique Murillo legitimately emphasizes James Whitney’s provision

of a false identity. Murillo contends that, since Whitney gave an ersatz name, his report

does not qualify as a statement against interest. We answer similarly to our answer with

regard to the informant identifying himself. Law enforcement knew the location of

Whitney and could confront him on giving false information. We also must view the

evidence in the light of the officers’ knowledge at the time of the arrest of Enrique

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State v. Murillo


Murillo, not in hindsight. State v. Remboldt, 64 Wn. App. 505, 509 (1992).

       After reviewing the many factors relevant to a determination of the veracity of

James Whitney and his statement implicating Enrique Murillo with the possession of the

Mitsubishi, we conclude, based on a combination of factors, that law enforcement

officers possessed probable cause to arrest Enrique Murillo at the time of his seizure. We

primarily rely on Whitney’s uttering of a statement against penal interest. Case law

repeatedly emphasizes the strength of such statements. Although Whitney primarily

supplied innocuous information to law enforcement, he still supplied accurate details.

Although he provided a false name, he did not anonymously call law enforcement. Law

enforcement knew his location and his looks. We know of the false identity only in

retrospect. Because law enforcement possessed probable cause to arrest Enrique Murillo,

we affirm his conviction.

                                         Sentence

       Enrique Murillo asks this court to remand for resentencing because the omission

of the identity of the controlled substance in the to-convict instruction constituted harmful

error for purposes of sentencing. The State contends that the omission of the name of the

controlled substance from the to-convict instruction was not error and that, even if error,

the omission was harmless error as to Murillo’s sentence. We agree with Murillo.

       The State charged, in the information, that Enrique Murillo “did unlawfully

possess a controlled substance, to wit: methamphetamine.” CP at 1. Jury instruction 8

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State v. Murillo


directed the jury to convict Enrique Murillo if it found that Murillo “possessed a

controlled substance.” CP at 89. But the jury instruction omitted the word

“methamphetamine.” Instruction 10 informed the jury that methamphetamine is a

controlled substance, but the instruction did not apprise the jury that the State only

charged Murillo with possessing methamphetamine, and not one or more other

substances. Murillo postulates that the jury could have convicted him of possessing a

controlled substance other than methamphetamine, when the State never charged him

with possessing another substance. The jury verdict only read that the jury found Murillo

guilty of possessing a controlled substance, not of possessing methamphetamine.

       The omission of the nature of the controlled substance from a to-convict jury

instruction can implicate both the accused’s conviction and sentence, but we need not

address the implications on the conviction in this appeal. A to-convict instruction must

include each essential element of the crime charged. State v. Smith, 131 Wn.2d 258, 263,

930 P.2d 917 (1997); State v. Clark-El, 196 Wn. App. 614, 618, 384 P.3d 627 (2016).

When the identity of a controlled substance increases the statutory maximum sentence

which the defendant may face on conviction, the identity of the substance becomes an

essential element. State v. Goodman, 150 Wn.2d 774, 778, 83 P.3d 410 (2004). As we

analyze later, the nature of the controlled substance could increase Enrique Murillo’s

sentence. Therefore, the trial court committed error when omitting the word

“methamphetamine” from jury instruction 8.

                                             20
No. 35696-5-III
State v. Murillo


       The omission of an essential element from the to-convict instruction is subject to

harmless error analysis for purposes of the accused’s conviction. State v. Brown, 147

Wn.2d 330, 332, 58 P.3d 889 (2002). Enrique Murillo impliedly and correctly concedes

harmless error for purposes of his conviction.

       We must still address whether, for purposes of sentencing, we may apply harmless

error analysis to the error in Enrique Murillo’s to-convict jury instruction and, if so,

whether harmless error occurred. RCW 69.50.4013, under which the State charged

Murillo, declares:

               (1) It is unlawful for any person to possess a controlled substance
       unless the substance was obtained directly from, or pursuant to, a valid
       prescription or order of a practitioner while acting in the course of his or
       her professional practice, or except as otherwise authorized by this chapter.
               (2) Except as provided in RCW 69.50.4014, any person who violates
       this section is guilty of a class C felony punishable under chapter 9A.20
       RCW.
               (3)(a) The possession, by a person twenty-one years of age or older,
       of useable marijuana, marijuana concentrates, or marijuana-infused
       products in amounts that do not exceed those set forth in RCW
       69.50.360(3) is not a violation of this section, this chapter, or any other
       provision of Washington state law.
               (b) The possession of marijuana, useable marijuana, marijuana
       concentrates, and marijuana-infused products being physically transported
       or delivered within the state, in amounts not exceeding those that may be
       established under RCW 69.50.385(3), by a licensed employee of a common
       carrier when performing the duties authorized in accordance with RCW
       69.50.382 and 69.50.385, is not a violation of this section, this chapter, or
       any other provision of Washington state law.
               (4)(a) The delivery by a person twenty-one years of age or older to
       one or more persons twenty-one years of age or older, during a single
       twenty-four hour period, for noncommercial purposes and not conditioned
       upon or done in connection with the provision or receipt of financial

                                              21
No. 35696-5-III
State v. Murillo


       consideration, of any of the following marijuana products, is not a violation
       of this section, this chapter, or any other provisions of Washington state
       law.

Note that the controlled substance offender’s sentence may vary depending on the nature

of the controlled substance. RCW 69.50.4014 reads:

              Except as provided in RCW 69.50.401(2)(c) or as otherwise
       authorized by this chapter, any person found guilty of possession of forty
       grams or less of marijuana is guilty of a misdemeanor.

       The constitutional right to a jury trial requires that a sentence be authorized by a

jury’s verdict. State v. Morales, 196 Wn. App. 106, 109, 383 P.3d 539 (2016). If a court

imposes a sentence not authorized by the jury’s verdict, harmless error analysis does not

apply. State v. Williams-Walker, 167 Wn.2d 889, 900-01, 225 P.3d 913 (2010). The law

requires the trial court “to impose only the lowest possible sentence for unlawful

possession of a controlled substance.” State v. Gonzalez, 2 Wn. App. 2d 96, 114, 408

P.3d 743, review denied, 190 Wn.2d 1021, 418 P.3d 790 (2018).

       In analyzing whether the omission of “methamphetamine” in Enrique Murillo’s to-

convict jury instruction was harmless error as to his sentence we review four Washington

decisions: State v. Sibert, 168 Wn.2d 306, 230 P.3d 142 (2010) (plurality opinion); State

v. Rivera-Zamora, 7 Wn. App. 2d 824, 435 P.3d 844 (2019); State v. Gonzalez, 2 Wn.

App. 2d 96 (2018); and State v. Clark-El, 196 Wn. App. 614 (2016). In State v. Sibert, a

jury convicted Richard Sibert of three counts of delivery of a controlled substance and

one count of possession of a controlled substance with intent to deliver. The to-convict

                                             22
No. 35696-5-III
State v. Murillo


instruction omitted the identity of the specific controlled substance. Nevertheless, each

of the four to-convict instructions began by stating: “‘to convict the Defendant . . . of the

crime of delivery of a controlled substance as charged . . . .’” 168 Wn.2d at 312

(emphasis added). Unfortunately, we do not know if any jury instruction expressly

identified the charges as possession and delivery of methamphetamine. We also do not

know if the jury verdict referenced methamphetamine or asked the jury to convict or not

convict Sibert of the crime “as charged.” Four of the Supreme Court justices ruled that

the omission in the jury instruction did not constitute error.

       The Washington Supreme Court decided State v. Sibert by a plurality. Justice

Barbara Madsen concurred in result only. Judge Madsen did not pen a separate opinion.

A plurality opinion has limited precedential value and is not binding on the courts. In re

Personal Restraint of Isadore, 151 Wn.2d 294, 302, 88 P.3d 390 (2004). Another court

cannot assess the correct holding of an opinion signed by four justices when, as here, the

fifth vote, concurring in the result only, is unaccompanied by an opinion. Kailin v.

Clallam County, 152 Wn. App. 974, 985, 220 P.3d 222 (2009). As noted by this court, in

State v. Clark-El, 196 Wn. App. at 619 (2016), we cannot assess the holding in Sibert.

       Four justices dissented in State v. Sibert on the basis that the omission in the jury

instruction constituted error and harmless error does not apply to an error in sentencing.

The identity of the controlled substance affected the applicable seriousness level of the

crime. According to the dissenters, because the jury found Richard Sibert guilty of an

                                              23
No. 35696-5-III
State v. Murillo


unidentified controlled substance, the trial court lacked authority to impose a sentence

beyond the standard range for any controlled substance under the charging statute.

       In State v. Rivera-Zamora, 7 Wn. App. 2d 824 (2019), this court found

instructional error harmless as to the defendant’s sentence. Bogar Rivera-Zamora

appealed convictions for delivery of a controlled substance, methamphetamine, and

possession of a controlled substance with intent to deliver. The to-convict instruction did

not identify the controlled substance. Nonetheless, the charging document identified

methamphetamine as the substance Rivera-Zamora allegedly possessed with the intent to

deliver. More importantly, even though the elements instruction omitted the word

“methamphetamine,” the verdict form stated that the jury found Rivera-Zamora guilty of

unlawful possession of a controlled substance with intent to deliver—methamphetamine.

In other words, the verdict entered by the jury identified the controlled substance as

methamphetamine. This court held that the trial court did not err in sentencing Rivera-

Zamora because the jury “expressly found that Mr. Rivera-Zamora possessed

methamphetamine with intent to deliver.” State v. Rivera-Zamora, 7 Wn. App. 2d at 830.

Accordingly, the error in the elements instruction was harmless as to both the conviction

and sentence.

       In State v. Gonzalez, 2 Wn. App. 2d 96 (2018), the State charged Leonel Gonzalez

with unlawful possession of a controlled substance, methamphetamine, under former

RCW 69.50.4013 (2015). Although the forensic examination of the controlled substance

                                             24
No. 35696-5-III
State v. Murillo


revealed both methamphetamine and cocaine, the amended information mentioned only

possession of methamphetamine and not cocaine. The to-convict instruction declared

that the State must prove “the defendant possessed a controlled substance. . . .” State v.

Gonzalez, 2 Wn. App. 2d at 104. The to-convict instruction omitted the type of

controlled substance, but the instruction referred to the offense “as charged in Count II.”

State v. Gonzalez, 2 Wn. App. 2d at 104. One instruction mentioned methamphetamine

being a controlled substance.

       On appeal, the Gonzalez court discussed the application of harmless error to the

conviction and to sentencing. The court noted that former RCW 69.50.4013(2), (3), and

(5) impose different maximum sentences based on the type and amount of the controlled

substance possessed. One charged under the statute could be guilty of a misdemeanor.

The statute also excluded penalties for the possession of marijuana under some

circumstances altogether.

       The Gonzalez court reasoned that, without specifying the identity of the controlled

substance, the to-convict instruction could allow the jury to convict a defendant and

impose a class C felony sentence based on the possession of any controlled substance,

including any amount of marijuana. The court stated that, if a court imposes a sentence

not authorized by the jury’s verdict, harmless error analysis does not apply. The court

held that, because the jury’s verdict did not specify the controlled substance Gonzalez

unlawfully possessed, the only authorized sentence was the lowest possible sentence for

                                             25
No. 35696-5-III
State v. Murillo


unlawful possession of a controlled substance. The court impliedly ruled that the use of

the words “as charged in count II” did not save the to-convict instruction from

constitutional error. The court remanded for resentencing on the possession of a

controlled substance conviction.

       In State v. Clark-El, 196 Wn.2d 614, 618 (2016), the State charged Randolph

Clark-El with one count of delivery of a controlled substance, “to-wit: methamphetamine

. . . a class B felony.” Nevertheless, the to-convict instruction failed to identify the nature

of the controlled substance. Also, the jury verdict did not specify the type of controlled

substance. The court remanded for resentencing.

       Enrique Murillo’s appeal occupies the interstices among the four Washington

decisions. Murillo’s to-convict instruction did not identify the possessed controlled

substance as methamphetamine. The to-convict instruction also failed to refer to

possession of a controlled substance “as charged.” A separate jury instruction referenced

methamphetamine, and no other drug, as a controlled substance. The verdict form did

not specify the nature of the controlled substance. The verdict form asked the jury to

convict or acquit Murillo of the offense “as charged.” The information only charged

Murillo with possession of methamphetamine. Nevertheless, no jury instruction

informed the jury that the State only charged Murillo with possession of

methamphetamine.



                                              26
No. 35696-5-III
State v. Murillo


       We conclude the omission of the identity of the controlled substance from Enrique

Murillo’s to-convict instruction constituted harmful error. The case law preaches the

primacy of the to-convict instruction and the need to mention the nature of the controlled

substance in the instruction. Murillo’s to-convict instruction lacked any mention of

methamphetamine. The error in the to-convict instruction may be absolved if the verdict

form expressly identifies the controlled substance. Murillo’s verdict form did not include

the word “methamphetamine.” The verdict form asked the jury to convict or acquit

Murillo “as charged,” but no instruction, let alone the to-convict instruction, listed the

charged substance as methamphetamine. The to-convict instruction also failed to employ

the phrase “possession of a controlled substance as charged.” We also note that a

majority of the Washington Supreme Court has never expressly adopted a harmless error

analysis for sentencing when the to-convict instruction fails to identify the controlled

substance.

       All of the Washington decisions holding that the absence of the identity of the

controlled substance in the to-convict instruction remand for resentencing without

directing the resentencing court of the sentence to enter. The law requires the trial court

to impose only the lowest possible sentence for possession of a controlled substance.

State v. Gonzalez, 2 Wn. App. 2d 96, 114 (2018); State v. Clark-El, 196 Wn. App. 614,

624 (2016). We hold that the lowest offense consistent with the jury’s express finding of

possession of a controlled substance is possession of marijuana of forty grams or less

                                             27
No. 35696-5-III
State v. Murillo


under RCW 69.50.4014. RCW 69.50.4014 provides:

              Except as provided in RCW 69.50.401(2)(c) or as otherwise
       authorized by this chapter, any person found guilty of possession of forty
       grams or less of marijuana is guilty of a misdemeanor.

Thus, the resentencing court should sentence Enrique Murillo to a misdemeanor sentence.

                           Judgment and Sentence Corrections

       The judgment and sentence contains the following two provisions:

              5.5 Any violation of this Judgment and Sentence is punishable by up
       to 60 days of confinement per violation. RCW 9.94A.634[.]
              ....
              5.6b FELONY FIREARM OFFENDER REGISTRATION. The
       defendant is required to register as a felony firearm offender. The specific
       registration requirements are in the “Felony Firearm Offender Registration”
       attachment.

CP at 119. Enrique Murillo argues that both paragraphs contain errors. The State

concedes error. Remand to the trial court for correction of any errors constitutes the

remedy for errors in the judgment and sentence. State v. Healy, 157 Wn. App. 502, 516,

237 P.3d 360 (2010).

       The legislature recodified RCW 9.94A.634 as RCW 9.94B.040, effective August

1, 2009. LAWS OF 2008, ch. 231 § 56. RCW 9.94B.040 applies only to crimes

committed before July 1, 2000. State v. Bigsby, 189 Wn.2d 210, 214, 399 P.3d 540

(2017). Enrique Murillo’s charged crime of unlawful possession of a controlled

substance occurred on August 24, 2017, well after July 1, 2000. Therefore, paragraph 5.5

authorizing sanctions under former RCW 9.94A.634 constitutes error.

                                            28
No. 35696-5-III
State v. Murillo


       Section 5.6b of the judgment regarding felony firearm offender registration is also

inaccurate. RCW 9.41.330(1) declares:

              Whenever a defendant in this state is convicted of a felony firearm
       offense . . . the court must consider whether to impose a requirement that
       the person comply with the registration requirements of RCW 9.41.333 and
       may, in its discretion, impose such a requirement.

(Emphasis added.) RCW 9.41.010(10)(e) defines “felony firearm offense” as “[a]ny

felony offense if the offender was armed with a firearm in the commission of the

offense.”

       Enrique Murillo’s crime does not meet the definition of “felony firearm offense.”

The superior court convicted Murillo of unlawful possession of a controlled substance,

and the record does not suggest that Murillo bore a firearm at the time of his arrest.

                                Legal Financial Obligations

       The trial court assessed legal financial obligations at sentencing of a $500 victim

penalty assessment fee, a $200 criminal filing fee, and a $100 DNA fee. Although

mandatory when imposed, the criminal filing fee and DNA fee are no longer mandatory

under new legislation as explained in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714

(2018). The DNA fee is mandatory if the offender has yet to have his DNA collected by

the State.

       The trial court found Enrique Murillo indigent at the sentencing. As a result, he

asks that the criminal filing fee be struck from his judgment and sentence. Murillo also


                                             29
No. 35696-5-111
State v. Murillo


requests that the DNA fee be struck. Murillo has criminal convictions in the state of

Washington which occurred in 1996 and 1998. Prior to 2002, the DNA identification

statute required every person convicted of a felony sex offense or violent offense to

provide a blood sample for DNA. LA ws OF 1989, ch. 350. Murillo's late nineties

convictions do not include a felony sex offense or violent offense. Therefore, we

conclude the State has never collected his DNA.

        Pursuant to Ramirez, we remand for the trial court to strike the criminal filing fee.

The $100 DNA collection fee shall remain.

                                      CONCLUSIONS

        We affirm the conviction of Enrique Murillo for possession of a controlled

substance. We remand to the superior court for resentencing of Murillo for a

misdemeanor and for the trial court to strike sections 5.5 and 5.6b from the judgment and

sentence. We remand for the striking of the $200 criminal filing fee.

        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.




                                               Fearing, J.
I CONCUR:

l,... ._ "~" (. t ~ ~ tM. \
Lawrence-Berrey, C .J.

                                              30
                                      No. 35696-5-III

       KORSMO, J. (dissenting)- Even though      State v. Sibert, 168 Wn.2d 306, 230 P.3d

142 (2010) (plurality opinion), provides no governing analysis, it does provide a

governing result. We are bound by that result, even if not the analysis, under the facts of

this case. We are required to affirm by the results of that case and also because the error

is absolutely harmless.

       As to the latter proposition first, I concur in the reasoning of Judge Melnick in his

dissent in State v. Gonzalez, 2 Wn. App. 2d 96, 116-120, 408 P.3d 743 (2018) (Melnick,

J., dissenting in part). The error is absolutely harmless because the evidence presented at

trial presented only one controlled substance for the jury's consideration-

methamphetamine-and Mr. Murillo agreed that he possessed the substance. Here, the

information alleged that Mr. Murillo possessed methamphetamine. Clerk's Papers (CP)

at 1. The jury was advised that the "defendant in this case is charged with unlawful

possession of a controlled substance, methamphetamine." Supplemental Report of

Proceedings (Oct. 30, 2017) at 5. The elements instruction omitted the identity of the

controlled substance, but the jury was instructed that methamphetamine was a controlled

substance. CP at 89, 92. The instructions did not identify any other controlled substance.

The defense proposed, and received, an instruction on unwitting possession. CP at 72-74,
No. 35696-5-III
State v. Murillo-Dissent


93. The verdict form stated that the jury found Mr. Murillo "guilty of the crime of

unlawful possession of a controlled substance as charged in count I." CP at 97. In other

words, the only issue in this case was whether or not Mr. Murillo possessed the substance

innocently. Because both sides agreed that Murillo possessed methamphetamine, it is

harder to conceive of a stronger harmless error case.

       To reach the opposite result, the majority here adopts the analysis of the dissent in

Sibert without saying so. Of course, a dissent does not state the law. See Cole v.

Harvey/and, LLC, 163 Wn. App. 199,207,258 P.3d 70 (2011) ("But the meaning of a

majority opinion is not found in a dissenting opinion."). In doing so, the majority

overlooks a basic rule of construction for a case without a governing rationale. In those

circumstances, this court must apply the holding of the narrowest concurring opinion.

Davidson v. Hensen, 135 Wn.2d 112, 128, 954 P.2d 1327 (1998); Kai/in v. Clallam

County, 152 Wn. App. 974, 985-986, 220 P.3d 222 (2009). When the concurring vote is

simply a "result only," the narrowest holding is the outcome of the case. Kai/in, 152 Wn.

App. at 985; Kitsap All. of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hr 'gs. Bd.,

152 Wn. App. 190, 197, 217 P .3d 365 (2009).

       The Sibert plurality found there was no error in omitting the identity of the

controlled substance under the facts of the case and affirmed the judgment and sentence.

168 Wn.2d at 317. Justice Madsen concurred in the result only and did not state a reason

for that result. The primary dissenting opinion (three justices) concluded that the error

                                             2
No. 35696-5-III
State v. Murillo-Dissent


was not harmless and resulted in an unauthorized sentence. 168 Wn.2d at 318-325

(Alexander, J., dissenting). The solo dissent of Justice Sanders concluded that harmless

error analysis did not apply and the verdict form also violated Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Id. at 326-334 (Sanders, J.,

dissenting).

       Here, the Sibert result controls because the relevant facts are largely identical. In

each instance, the verdict forms incorporated the charges referenced in the charging

document. 1 The jury in this case was aware of the controlled substance identified in the

charging document due to the court's preliminary instruction to the panel, as well as the

argument of the parties that Mr. Murillo possessed methamphetamine. In both cases, the

only controlled substance identified in the instructions was methamphetamine, and it was

the only controlled substance identified in the evidence. 2 In addition, this case had the

added feature that Mr. Murillo admitted that he possessed methamphetamine.

Accordingly, the verdict here reflects the same verdict as Sibert-the jury found that the

charge in the information was proved beyond a reasonable doubt. Thus, the result must

be the same.




       1
        The elements instructions in Sibert referenced the counts "as charged" in the
information, resulting in the jury convicting him "as charged." 168 Wn.2d at 312-313.
The verdict form here used the same "as charged" language. CP at 97.
      2 Sibert, 168 Wn.2d at 313; CP at 92.


                                              3
                                                                                               I
                                                                                               I
No. 35696-5-111
State v. Murillo-Dissent


      Because of both the Sibert result and the fact that the controlled substance was not

a disputed element in this case, the error was completely harmless. The judgment and

sentence should be affirmed.




                                            4
                                                                                             I
