                                                                FILED
                                                           SEPTEMBER 17,2015
                                                         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. 30411-6-III
                                                 )
                      Respondent,                )
                                                 )
               v.                                )          UNPUBLISHED OPINION
                                                 )
FABIAN ARREDONDO,                                )
                                                 )
                      Appellant.                 )

       LAWRENCE-BERREY, J. -A jury found Fabian Arredondo guilty of second degree

murder and three counts of first degree assault. Mr. Arredondo appeals, contending that

(1) the trial court violated his constitutional public trial right, (2) the trial court abused its

discretion in admitting ER 404(b) testimony of an earlier drive-by shooting, (3) the court

erred in denying his motion to question a State witness regarding his mental state,

(4) insufficient evidence supported the gang enhancement aggravating circumstance, and

(5) the court abused its discretion in imposing the costs of incarceration legal financial

obligation as part of his sentence. We disagree with Mr. Arrendondo's first four

contentions, but reverse the imposition of the per day legal fmancial obligations and

remand for a new hearing in that regard.
No. 30411-6-III
State v. Arredondo


                                          FACTS

       On the evening of December 5, 2009, three Surefio gang members went to a party

together at a house in Toppenish, Washington. Most of the people at the party were

members of the rival Nortefio gang. Shortly after they arrived, several people exchanged

angry words, and a brief fistfight ensued between one of the Surefios and two other

people. Fabian Arredondo is a member of the Nortefio gang, and he was at the party that

evening but was not involved in the fight. Some ofthe Nortefios at the party were

carrying guns, but Mr. Arredondo was not seen with a gun.

       Most people left the party after the fight. The three Surefios drove off in a white

station wagon and picked up a fourth person who was walking along the street. They

noticed another car from the party behind them and sped up to get away, but the car

continued following them. The car following them was a Honda with tinted windows.

Someone in the white station wagon said they saw a gun and yelled to duck. Shots were

fired from the Honda, and one of the shots went through the window of the station wagon

and hit the driver causing the station wagon to crash into a tree. The driver later died at

the hospital. Mr. Arredondo was charged with first degree murder and three counts of

first degree assault related to the December 5, 2009 drive-by shooting.

       Before trial began, Mr. Arredondo filed a motion in limine to permit cross-

examination of State witness, Maurice Simon, regarding Mr. Simon's mental health.

Before making its ruling, the trial court allowed questioning of Mr. Simon regarding his

                                             2

No. 30411-6-II1
State v. Arredondo


mental condition outside the presence of the jury. During that questioning, Mr. Simon

revealed that he has problems with depression, concentration, comprehension, anxiety,

distrust of other people, hypervigilance, post-traumatic stress disorder (PTSD), and

substance abuse involving both alcohol and methamphetamine. Mr. Simon stated that

while his substance abuse might affect his short-term memory, none of these problems

affect his long-term memory. After this testimony, the court determined that none ofMr.

Simon's issues affect his "ability to accurately recall and to describe the events or alleged

events that he is going to be called upon to describe in his testimony." Report of

Proceedings (RP) at 566-67. The court also concluded that the prejudicial effect

outweighed the probative value of testimony regarding his mental health. The court

barred any inquiry into Mr. Simon's mental state now or in the past, including his

substance abuse.

       Mr. Simon, who was Mr. Arredondo's cellmateinjail for five to eight days,

testified Mr. Arredondo had talked about the December 5, 2009 drive-by shooting with

him. Mr. Simon stated Mr. Arredondo had told him he was a member of the Nortefio

gang. Mr. Arredondo had also told Mr. Simon that the night of the shooting, he and his

cousin Rudy had borrowed the keys to a Honda from someone at the house party they

were at and chased down another vehicle that had also come from the party. Mr.

Arredondo said he was driving with Rudy in the passenger seat, and when the cars were




                                             3

No. 30411-6-II1
State v. Arredondo


side by side, Rudy had shot somebody in the other car. Finally, Mr. Arredondo had told

him the people in the other car were from the rival Surefio gang.

       Before trial, Mr. Arredondo also moved in limine to prohibit the State from

introducing evidence of a drive-by shooting that occurred on February 9, 2009, under

ER 404(b). The trial court denied the motion finding that the probative value outweighed

the prejudicial effect.

       During opening statements, the State told the jury it would hear evidence

regarding the February 9, 2009 drive-by shooting. The prosecutor stated, "Mr.

Arredondo was driving a Mercedes to an area in Yakima, drove past a rival gang's

location and fired some shots there." RP Supp.-2B at 273.

       Dustin Dunn, a detective for the Toppenish Police Department, testified he

responded to a report of a drive-by shooting on February 9, 2009 in a "high gang area."

RP at 468. The person who reported the shooting said the suspect's vehicle "appeared to

be like a Mercedes." RP at 468. Detective Dunn found a .380 caliber shell casing in the

street in front ofthe residence where the drive-by occurred. Before Detective Dunn's

testimony regarding the incident in February 2009, the court gave a limiting instruction,

stating,

       There's going to be testimony that's offered, I believe starting now,
       regarding an incident that allegedly occurred on February the 9th of2009.
              That-the testimony regarding that particular incident can be
       considered by you in only one way. Okay? You can only consider it in


                                            4
No. 30411-6-III
State v. Arredondo


       regard to the issue of whether-the issues of identity and motive and intent
       of the Defendant. Okay?
               So you cannot consider it as to whether Mr. Arredondo mayor may
       not be a bad person or mayor may not have acted in a similar fashion on
       February the 9th of 2009 to what he's alleged to have done on December
       the 5th of 2009 . You can only consider the testimony regarding the
       incident of February 9, 2009, only on the issues of motive, intent, and
       identity.

RP at 466.

       Michael Hisey, community corrections officer for the Washington State

Department of Corrections (DOC), testified that on February 23,2009, he and two other

officers contacted Mr. Arredondo at an address in Zillah, Washington, based on reports

he was selling drugs out of the residence. A silver Mercedes was parked in the area, and

Mr. Arredondo had possession of the keys to the Mercedes. The officers searched the

vehicle and found a .3 80 caliber shell casing. Before Corrections Officer Hisey's

testimony, the court referenced the limiting instruction given regarding Detective Dunn's

testimony and stated that the same instruction applied.

       Terry Franklin, a forensic scientist from the Washington State Patrol Crime

Laboratory, analyzed both .380 shell casings and found they were fired from the same

firearm.

       Jaban Brownell, a detective for the Toppenish Police Department, testified that the

residence where the February 9, 2009 drive-by shooting occurred is located in an area of

Toppenish populated by members ofthe Surefio gang. Detective Brownell stated that the



                                             5

No. 30411-6-111
State v. Arredondo


rival Nortetlo gang was involved in that shooting. Detective Brownell also testified more

generally about the characteristics of street gangs, stating, "[A]s you work up the gang

life-style, the more credit you have as far as crimes you've committed, how much you've

hustled ... you earn a certain level of prestige and respect amongst the gang members

and even rival gang members." RP at 684.

       After the State rested, Mr. Arredondo moved to dismiss the gang enhancement

aggravating circumstance, arguing that there was insufficient evidence to support the

aggravator. The court denied his motion, fmding sufficient evidence in the record to

support the gang enhancement allegations.

       The jury found Mr. Arredondo guilty of second degree murder and three counts of

first degree assault. The jury also found by special verdict that Mr. Arredondo committed

the crimes with intent to directly or indirectly cause any benefit, aggrandizement, gain,

profit, or other advantage to or for a criminal street gang, its reputation, influence, or

membership. The court imposed an exceptional sentence of an additional 60 months'

incarceration per count for this aggravating circumstance. The court ordered the

sentences for each count to run consecutively. The sentence totaled 1,083 months.

       The court also entered a fmding, without inquiring on the record, that Mr.

Arredondo had the ability to pay legal fmancial obligations (LFOs). One of the LFOs

imposed was the costs of incarceration at a rate of $50 per day, or in excess of $1.6

million.

                                              6

No. 30411-6-111
State v. Arredondo


       Mr. Arredondo appeals, contending that (1) the trial court violated his

constitutional public trial right by excluding the public from a portion of the jury

selection, (2) the trial court abused its discretion in admitting ER 404(b) testimony related

to the February 9, 2009 drive-by shooting, (3) the trial court erred in denying his motion

to question the State's witness Maurice Simon regarding his mental state, (4) insufficient

evidence supported the gang aggravating circumstance, and (5) the trial court abused its

discretion in imposing $50 per day costs of incarceration as part of his sentence.

       Mr. Arredondo filed a motion on March 6, 2013, to remand the case to the trial

court for the taking of additional evidence related to the public trial issue. A

commissioner of this court issued a ruling ordering remand on March 7, 2013.

       The trial judge presided over the reference hearing held June 27, 2013. Testimony

revealed the Yakima County Courthouse hours were 8:00 a.m. to 4:00 p.m. at the time of

Mr. Arredondo's trial. Courthouse policy was that if a trial continued past 4:00 p.m., the

staff of the court would call courthouse security and security would keep the courthouse

doors open with security personnel posted at the doors. If a session of trial went past

4:00 p.m., the policy was also to allow any members of the public wanting to watch Mr.

Arredondo's trial to be admitted to the courthouse and directed to a courtroom. Also, if

enough security officers were available, the officers would check whether any courts

were still in session past 4:00 p.m.




                                              7

No. 30411-6-111
State v. Arredondo


       Jury selection began on October 10, 2011, and continued on October 11. The

report of proceedings reflects that the October 10 session ended at 4: 11 p.m. During the

October 11 session, the court mentioned the new security policy wherein security officers

lock the doors to the courthouse at 4:00 p.m. The court intended to adjourn by 4:00 p.m.

every day of the trial to avoid any potential violations of Mr. Arredondo's right to a

public trial. Later that day, the court stated:

       [W]e need to finish the jury selection this afternoon, because there's
       another trial starting tomorrow that's going to be in this courtroom and that
       they're going to be using Courtroom 3 for jury storage.

              So, I'll make the finding ... that the need to conclude the jury
       selection process this afternoon is an extraordinary circumstance warranting
       us going past four o'clock and potentially conducting ... some small
       portion of the jury selection process in an open courtroom in a locked
       courthouse.

RP Supp.-2B at 239-40. The report of proceedings reflects that on October 11 jury

selection was completed at 4: 17 p.m. The court then read the preliminary instructions to

the jury members and dismissed the jury and adjourned court at 4:24 p.m.

       The sign posted on the exterior entrance door at the time of the trial stated,

                                       COURTHOUSE
                                      CLOSES AT 4 PM.
                                      AUDITOR @ 3 :30.
                                     COURT HEARINGS
                                        UNTIL 5 PM.

State's Ex. L. The sign posted inside the courthouse near the entrance said,




                                                  8

No. 30411-6-III
State v. Arredondo


                                    COURTHOUSE 

                                   CLOSES AT 4 PM. 

                                    OFFICE HOURS 

                                   AUDITOR 9-3:30 

                                      HR 9-4:00 

                                  DC CLERKS 8-4:00 

                                 SC CLERKS 8:30-4:00 

                                  ALL OTHERS 8-4:00 

                                COURT CLOSES @ 5 PM. 


State's Ex. M.

       Howard Delia, consultant for the Yakima court system, testified that he never

received a complaint that a member of the public wanted to see a trial after 4:00 p.m. but

was denied access to the courthouse. Mr. Delia admitted on cross-examination that the

signs could be interpreted to mean a person would have to actually be inside the building

prior to 4:00 p.m. to attend a court session going beyond 4:00 p.m.

       Testimony also revealed a person approaching the entrance doors would see the

sign on the door but would not be able to see the security officer posted by the metal

detector or in the office. However, a member of the public could see the security officer

by the metal detector ifhe or she entered the first set of entrance doors and looked

through the second set of doors.

       Kacy Siebol, a security officer on duty on the days in question, testified he did not

believe a member of the public who approached the entrance door and read the sign could

see any of the officers on duty because none of the officers stand directly in front of the

doors. Officer Siebol did not recall where in the building he was posted on the days in

                                              9

No. 30411-6-II1
State v. Arredondo


question. Officer Siebol acknowledged on cross-examination that there could have been

members ofthe public who approached the entrance doors, read the sign, and then left

without trying to get the security officer's attention.

       Ron Rogers, another security officer on duty on the days in question, testified that

the security procedure around the time ofMr. Arredondo's trial was to lock the doors at

4:00 p.m. If a member ofthe public wanted in the building to watch the trial, he or she

would need to knock or pull on the door to get the security officer's attention. The

officer would then ask the person why he or she was there, and if the person indicated it

was for court, the officer would allow that person to enter the building.

       The court entered findings of fact and conclusions of law for the reference hearing.

The court found that on October 10, 2011,

       the court hearings concluded before 4 p.m. because the clock or time listed
       on the transcript for October 10, 2011 was in error because no two clocks in
       this courthouse have the same time. The time stamp on the [Jefferson
       Audio Visual System (JAVS)] recording system, which is reflected in the
       report of proceedings, is not synced to the actual time and is off by a
       significant amount. There is a discrepancy in the clerk's minutes in
       comparison to the JAVS times on the transcript. The courtroom clocks are
       also ahead by about six minutes. The court used the bench computer,
       which accurately reports the time, to keep track of the hour.

Clerk's Papers (CP) at 112. As for the session on October 11,2011, the court found that

the judge anticipated having to go past 4:00 p.m. and thus properly conducted a Bone­




                                              10 

No. 30411-6-III
State v. Arredondo


Club} analysis when it concluded it was necessary to continue the proceedings to

complete jury selection that day. Additionally, "the amount of time between the jury

being sworn and the adjournment was only for a few minutes. On the 11th of October,

the court was recessed at 4: 10 not at 4: 17, which is the incorrect time, from the JAVS

recording noted n [sic] the report of proceedings." CP at 113. The court also found that

on October 10-11,2011, ''the public entrance of the Yakima County Courthouse was not

closed or locked at 4:00 p.m. because a courtroom was still in session in which case

security officers kept the public entrance open until all courts were no longer in session

for that day." CP at 114. Thus, the court concluded that Mr. Arredondo's public trial

rights were not violated.

                                       ANALYSIS

1.     Whether the trial court violated Mr. Arredondo's constitutional public trial right

       Mr. Arredondo contends the trial court violated his constitutional right to a public

trial when it held a portion ofjury selection in an open courtroom but a closed

courthouse. The State argues that no violation of his public trial right occurred because

members ofthe public still had access to the courthouse for purposes of watching court

hearings going past 4:00 p.m. when the courthouse officially closed.




       }State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).

                                             11 

No. 30411-6-III
State v. Arredondo


       The State also contends that Mr. Arredondo's failure to raise this issue in the trial

court precludes him from raising it on appeal. However, "[d]efendants can raise claims

of public trial rights violations for the ftrst time on appeal." State v. Andy, 182 Wn.2d

294,301,340 P.3d 840 (2014). Such claims receive de novo review on appeal. Id. It is

the defendant's burden to provide a record that establishes a closure occurred. Id.

       A defendant's constitutional right to a public trial extends to jury selection. In re

Pers. Restraint o/Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004). Any affirmative

act by the trial court to fully close a courtroom to spectators during jury selection is a

violation of the public trial right, unless the court enters fmdings justifying the closure

under the requirements of State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).

Bone-Club requires an on-the-record, case-by-case weighing ofthe following ftve

factors:

               "1. The proponent of closure or sealing must make some showing
       [of a compelling interest], and where that need is based on a right other
       than an accused's right to a fair trial, the proponent must show a 'serious
       and imminent threat' to that right.
               "2. Anyone present when the closure motion is made must be given
       an opportunity to object to the closure.
               "3. The proposed method for curtailing open access must be the
       least restrictive means available for protecting the threatened interests.
               "4. The court must weigh the competing interests of the proponent
       of closure and the public.
               "5. The order must be no broader in its application or duration than
       necessary to serve its purpose."




                                              12 

No. 30411-6-111
State v. Arredondo


128 Wn.2d at 258-59 (quoting Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205,

210-11,848 P.2d 1258 (1993)).

      Here, during the October 11, 2011 hearing, the court stated:

      [W]e need to fmish the jury selection this afternoon, because there's
      another trial starting tomorrow that's going to be in this courtroom ....

             . .. I'll make the finding that the need to conclude the jury selection
      process this afternoon is an extraordinary circumstance warranting us going
      past four o'clock and potentially conducting ... some small portion of the
      jury selection process in an open courtroom in a locked courthouse.

RP Supp.-2B at 239-40. The report of proceedings reflects that jury selection was

completed at 4: 17 p.m. The court then read the preliminary instructions to the jury

members and dismissed the jury and adjourned court at 4:24 p.m. After the reference

hearing, the court found that it had properly conducted a Bone-Club analysis. On appeal,

Mr. Arredondo contends that the court's statement quoted above from the October 11

hearing did not constitute a sufficient Bone-Club analysis.

      However, ifthe trial court does not actually close the courtroom duringjury

selection, the court need not engage in a Bone-Club analysis. See State v. Brightman, 155

Wn.2d 506,515-16, 122 P.3d 150 (2005). On remand, the court heard testimony from

court officials and security officers. Based on this testimony, the court entered findings

that all members of the public were able to access the courtroom at all times during the

trial and that no member of the public was deterred by the sign posting the courthouse

hours. Specifically, the court found that on October 10 and 11,

                                             13
No. 30411-6-111
State v. Arredondo


       the public entrance of the Yakima County Courthouse was not closed or
       locked at 4:00 p.m. because a courtroom was still in session in which case
       security officers kept the public entrance open until all courts were no
       longer in session for that day. Yakima County's policy was that the public
       entrance remained open as long as any courtroom was in session. The
       courts and security officers followed this policy.

CP at 114. Mr. Arredondo challenges the sufficiency ofthe evidence to support these

findings.

       This court reviews findings from a reference hearing for substantial evidence. In

re Pers. Restraint o/Gentry, 137 Wn.2d 378,410,972 P.2d 1250 (1999). As long as

some reasonable interpretation of the evidence supports the trial court's findings, this

court will not reweigh any conflicting evidence. Id. at 411. And credibility

determinations are for the trier of fact. Id. at 410-11.

       The facts revealed at the reference hearing in this case are nearly identical to those

in the recently-decided Andy case, where the Washington Supreme Court upheld the

remand court's finding that no closure occurred. 182 Wn.2d at 301-02. Both cases were

tried at the Yakima County Courthouse, and the signs posted on the courthouse door

during both trials used the same language. However, there are two differences between

this case and Andy. For one, the court in Andy concluded, "[T]he evidence shows that at

all times during Andy's trial proceedings, the door to the courthouse was unlocked . ..."

Id. at 297.




                                              14 

No. 30411-6-111
State v. Arredondo


       Here, the parties presented conflicting evidence as to whether the outside

courthouse doors were locked. Several courthouse security officers testified that the

general policy of the court at the time of Mr. Arredondo's trial was to leave the external

courthouse doors unlocked and to post security officers at the doors to greet and direct

any members of the public trying to enter the courthouse after the courthouse's official

closure at 4:00 p.m. to the hearing he or she wanted to attend. However, Ron Rogers, one

of the two security officers on duty at the time in question, testified that the security

procedure around the time of Mr. Arredondo's trial was to lock the doors at 4:00 p.m. If

a member of the public wanted in the building to watch the trial, he or she would need to

knock or pull on the door to get the security officer's attention. The officer would then

ask the person why he or she was there, and if the person indicated it was for court, the

officer would allow that person to enter the building.

       The second difference between this case and Andy is that while the court in Andy

concluded, "All of the evidence indicates that the sign presented no obstacle to members

of the public who wished to attend the trial," 182 Wn.2d at 302, here, two witnesses

admitted that the sign could be a deterrent. Officer Kacy Siebol, the second officer on

duty during the time in question, acknowledged on cross-examination that there could

have been members of the public who approached the entrance doors, read the sign, and

then left without trying to get the security officer's attention. Howard Delia, consultant

for the Yakima court system, also admitted on cross-examination that the signs could be

                                              15 

No. 30411-6-111
State v. Arredondo


interpreted to mean a person would have to actually be inside the building prior to 4:00

p.m. to attend a court session going beyond 4:00 p.m.

      Despite these two differences, we believe that the outcome here should be the

same as Andy. First, even if the courthouse doors were locked, officers were present to

admit members of the public trying to enter. The courtroom itself was not locked.

Second, while the courthouse signs may have been worded poorly, this court does not

reweigh conflicting evidence where the evidence can reasonably be interpreted to support

the trial court's fmding that the signs did not deter members of the public. Thus,

substantial evidence supports the court's fmdings from the reference hearing.

      Finally, Mr. Arredondo relies on State v. Strode, 167 Wn.2d 222,217 P.3d 310

(2009) in his briefmg, but this reliance is misplaced. In Strode, the court allowed

questioning of at least 11 prospective jurors in chambers, and 6 of them were challenged

for cause, all out ofthe presence ofthe public. 167 Wn.2d at 227. Here,jury selection

took place in an open courtroom, not in the judge's chambers.

       We conclude that there was no courtroom closure and, therefore, we need not

address Mr. Arredondo's Bone-Club argument.




                                            16 

No. 30411-6-III
State v. Arredondo


2. 	   Whether the trial court abused its discretion in admitting ER 404(b) testimony of
       other acts

       Mr. Arredondo contends the trial court abused its discretion in allowing evidence

of an earlier drive-by shooting contrary to ER 404(b) where there was insufficient proof

that he was the perpetrator of the other act.

       ER 404(b) provides that evidence of other crimes or acts is not admissible to show

that a person acted in conformity with his character but is admissible for other purposes.

These other purposes include proof of motive, intent, and identity. Where, as here, the

State seeks admittance of an uncharged crime, the trial court must "(1) find by a

preponderance of the evidence that the uncharged acts probably occurred, (2) identify the

purpose for which the evidence is admitted, (3) fmd that the evidence is relevant to that

purpose, and (4) balance the probative value of the evidence against its prejudicial

effect." State v. Stein, 140 Wn. App. 43, 65, 165 P.3d 16 (2007). This court reviews a

trial court's admission of ER 404(b) evidence for an abuse of discretion. State v.

Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001).

       Here, Mr. Arredondo moved in limine to prohibit the State from introducing

evidence under ER 404(b) ofa drive-by shooting that occurred on February 9, 2009. In

support of his motion, Mr. Arredondo argued that he was never charged for the offense,

which occurred 10 months earlier, and the State sought to introduce evidence that was

insufficient to prove his involvement. Additionally, the February 2009 shooting did not


                                                17 

No. 30411-6-111
State v. Arredondo


involve any of the same people as the December 2009 shooting at issue in this case.

Thus, he argued the other crime evidence did not fall within one of the exceptions to

ER 404(b) and was unduly prejudicial. The State then described the evidence it planned

to offer related to the February 2009 shooting and argued that it was offering this

evidence to show both common scheme or plan and identity. The State argued that the

evidence was relevant and its probative value outweighed the prejudicial effect.

       After these arguments from both sides, the trial court denied the defense motion in

limine. In reaching its decision, the court stated:

       Well, it's as-1 think under [ER] 404(b) it has probative value. I think the
       probative value in identifying that is Mr. Arredondo's animosity towards
       people who are of the Surefio persuasion, if you would, and it goes to show
       identity, and motive as well.
               So, under the circumstances, I believe that the probative value
       outweighs the prejudicial effect. I'll allow testimony regarding the earlier
       incident.

RP (Oct. 10,2011, Suppl.) at 26-27. During the trial, the court gave a limiting instruction

to the jury before testimony related to the February 2009 shooting, stating:

       [T]he testimony regarding that particular incident can be considered by you
       in only one way. Okay? You can only consider it in regard to the issue of
       whether-the issues of identity and motive and intent of the Defendant.
       Okay?
              So you cannot consider it as to whether Mr. Arredondo mayor may
       not be a bad person or mayor may not have acted in a similar fashion on
       February 9th of 2009 to what he's alleged to have done on December the
       5th of 2009.

RP at 466 (emphasis added).



                                              18 

No. 30411-6-111
State v. Arredondo


       On appeal, Mr. Arredondo takes issue with the fIrst and the last elements of the

four-part analysis for admissibility of an uncharged crime under ER 404(b). While the

court's oral ruling focused on the fourth element, its analysis was suffIcient as to the

other elements as well. 2 The State presented evidence of two shell casings fIred from the

same weapon; one was found outside the Toppenish residence where the February 9,

2009 drive-by shooting occurred and another was found in a Mercedes parked outside the

residence where Mr. Arredondo was contacted by police a couple of weeks later. Mr.

Arredondo had possession of the keys to the Mercedes at that time. The person who

reported the February 2009 shooting said the suspect's vehicle "appeared to be like a

Mercedes." RP at 468. Testimony also revealed the address where the shooting occurred

was in a high gang area populated by Surefios. This evidence is sufficient to prove by a

preponderance that the uncharged acts probably occurred. Thus, the fIrst element of the

four-part analysis was satisfIed.

       The trial court's analysis as to element four was also suffIcient. The court stated

that the probative value of the evidence was to demonstrate Mr. Arredondo's animosity


       2 "A trial court may detennine that uncharged crimes probably occurred based
solely on the State's offer ofproo(." Stein, 140 Wn. App. at 66. And where a court's
ruling regarding the admissibility ofER 404(b) evidence immediately follows arguments
by both sides on the matter "and the court clearly agrees with one side, an appellate court
can excuse the trial court's lack of explicit fIndings." Id. While the trial court did not
explicitly state that it found by a preponderance of the evidence that Mr. Arredondo was
probably involved in the February 2009 drive-by shooting, the record is suffIcient to
show that the court made this finding before reaching its decision.

                                             19
No. 30411-6-111
State v. Arredondo


toward rival Sureiios. The purposes for which the trial court admitted this evidence were

motive, intent, and identity. The court determined that the probative value outweighed

the prejudicial effect. Because this weighing determination is the province of the trial

court, not the appellate court, we are reluctant to determine otherwise. We find no abuse

of discretion in the admission of the ER 404(b) evidence related to the

February 9,2009 drive-by shooting. See State v. Herzog, 73 Wn. App. 34, 50, 867 P.2d

648 (1994).

3. 	   Whether the trial court erred in denying Mr. Arredondo's motion to question a
       State's witness regarding his mental state

       Mr. Arredondo argues his Sixth Amendment right of confrontation was violated

when the trial court barred any inquiry into the mental state of State witness, Maurice

Simon, during cross-examination. The State contends that the witness did not exhibit any

mental disability while on the stand and was clearly competent, and thus the trial court

properly exercised its discretion to deny the motion.

       "The Sixth Amendment to the United States Constitution and article I, section 22

of the Washington Constitution guarantee criminal defendants the right to confront and

cross-examine adverse witnesses." State v. Perez, 139 Wn. App. 522, 529, 161 P.3d 461

(2007). This right is not absolute and is subject to the following limits: "( 1) the evidence

sought to be admitted must be relevant and (2) the defendant's right to introduce relevant




                                             20 

No. 30411-6-III
State v. Arredondo


evidence must be balanced against the State's interest in precluding evidence so

prejudicial as to disrupt the fairness ofthe fact-finding process." Id

       It is fundamental that a defendant in a criminal trial be .given great latitude in

cross-examining witnesses on credibility. State v. Peterson, 2 Wn. App. 464, 466, 469

P.2d 980 (1970). Generally, the trial court has discretion to admit evidence of a witness's

mental condition for impeachment purposes. State v. Froehlich, 96 Wn.2d 301,306,635

P.2d 127 (1981). Mental deficiency impeachment evidence is relevant when the

deficiency is readily apparent and the witness's competency is a central issue in the case.

Id at 306-07. Absent abuse of discretion, this court will not reverse a trial court's ruling

regarding the scope of cross-examination. Perez, 139 Wn. App. at 529-30.

       The Perez court found an abuse of discretion where the trial court did not allow

the defendant to question the witness regarding his mental state at the time of trial even

though the witness "had given confused and inarticulate testimony, and ... the trial court

observed that [the witness] appeared confused and disoriented." Id at 530. In Froehlich,

the court upheld the trial court's decision to permit a psychiatrist to testify about a

witness's mental condition where the witness testified on direct examination regarding

his mental state and the witness's nervous condition was readily apparent while he was

on the witness stand. 96 Wn.2d at 304-05,308.

       The facts in this case are distinguishable from both Perez and Froehlich. Unlike

the witnesses in both of those cases, Mr. Simon did not display any readily apparent

                                              21 

No. 30411-6-III
State v. Arredondo


mental deficiencies while on the witness stand. The court permitted questioning of Mr.

Simon regarding his mental condition outside the presence of the jury. During that

examination, counsel for appellant referenced three mental health evaluations that

revealed Mr. Simon has problems with depression, concentration, comprehension,

anxiety, distrust of other people, hypervigilance, PTSD, and substance abuse of both

alcohol and methamphetamine. However, Mr. Simon testified that while his substance

abuse might affect his short-term memory, none of these issues affect his long-term

memory. Mr. Arredondo did not produce any evidence to the contrary.

       Division Two of this court has held that evidence of drug use is only admissible to

impeach a witness if there is a reasonable inference that the witness was under the

influence of drugs either at the time of the incident or at the time of testifying at trial.

State v. Tigano, 63 Wn. App. 336, 344, 818 P.2d 1369 (1991). Here, there is no evidence

Mr. Simon was under the influence at the time he shared a cell with Mr. Arredondo or

while testifying. In addition, allowing Mr. Simon to testify as to these problems that have

no effect on his long-term memory would not have aided the jury in its credibility

determination of Mr. Simon's ability to "observe, recollect and communicate truthfully."

Froehlich, 96 Wn.2d at 307. We conclude that the trial court did not abuse its discretion

when it barred defense cross-examination of Mr. Simon's mental state.




                                               22 

No. 30411-6-111
State v. Arredondo


4.     Whether there was sufficient evidence to support the street gang aggravator

      Mr. Arredondo next contends that there is insufficient evidence to support the

street gang aggravating factor. He contends the only evidence presented was that Mr.

Arredondo was a member of the Nortefio gang, the victim was a Surefio gang member,

and the Nortefios and Surefios are rival gangs. He argues that based on these facts alone,

it would be conjecture to presume these crimes were committed for the reasons stated in

the aggravating circumstance.

       This court will review "ajury's verdict on an aggravating factor for substantial

evidence just as [it does] when evaluating the sufficiency of the evidence supporting the

elements ofa crime." State v. DeLeon, 185 Wn. App. 171,212,341 P.3d 315 (2014).

"After viewing the evidence in a light most favorable to the State[,] we ask whether any

rational trier of fact could have found the essential elements of the charge beyond a

reasonable doubt." Id. In this case, the relevant statute, RCW 9.94A.535(3)(aa),

requires the State to prove beyond a reasonable doubt that Mr. Arredondo's involvement

in the drive-by shooting was based on his desire "to directly or indirectly cause any

benefit, aggrandizement, gain, profit, or other advantage to or for a criminal

street gang as defmed in RCW 9.94A.030, its reputation, influence, or membership."

       In State v. Moreno, 173 Wn. App. 479,495-97,294 P.3d 812 (2013), review

denied, 177 Wn.2d 1021 (2015), this court affirmed the trial court's imposition of an

exceptional sentence under RCW 9.94A.535(3)(aa). At trial, the State presented

                                            23 

No. 30411-6-II1
State v. Arredondo


evidence that (1) Mr. Moreno had ties to the Nortefios, (2) that he and his cohorts were

found in Surefios territory without a credible reason immediately after the shooting was

reported, and (3) somebody in Mr. Moreno's car yelled out a gang-related phrase

moments before the shooting. Id at 496-97. Additionally, a gang expert testified that the

N ortefios and Surefios were rivals, both gangs were territorial and would not invade rival

gang turf without a specific reason, and gang members often commit random acts of

violence as a way to maintain or improve their status within the gang. Id. at 497. From

these facts, this court concluded, "[T]he evidence shows a sufficient nexus between the

crime and gang membership to prove the gang aggravator." Id

       Similarly, in DeLeon, this court concluded the evidence was sufficient to support

the gang aggravator's application to all three defendants. 185 Wn. App. at 212-13. The

operative facts were (1) that the defendants' gang membership was abundantly

demonstrated in the record, (2) that there was a gang-related motivation for their presence

in a Surefio neighborhood and for their shooting at a Surefio-associated home, (3) that the

defendants were wearing red bandannas over their faces, and (4) that the shooting was a

response to the victim flashing a rival gang sign. Id. And again, the State provided

expert testimony regarding gang culture and retaliation specific to the Nortefio gangs.

Id at 213.

       Here, Mr. Arredondo admitted that he is a member of the Nortefios and that he had

become a member after growing up in the gang lifestyle. Additionally, testimony

                                            24 

No. 30411-6-II1
State v. Arredondo


revealed that Mr. Arredondo was at a house party with other Nortefios the night of the

shooting. Some of the Nortefios at the party were carrying guns. The victim and his

friends, some of who were members of the rival Surefio gang, arrived at the party.

Shortly thereafter, an altercation occurred between members of the rival gangs. Most

people left the party after the fight, including the victim and his friends, and the drive-by

shooting followed. Detective Brownell, assigned as the street crimes detective for the

Toppenish Police Department, testified regarding the rivalry between the Nortefios and

Surefios, as well as what parts of the city are controlled by which gang. He also testified

generally regarding the gang lifestyle wherein members "earn a certain level of prestige

and respect amongst the gang members and even rival gang members" based on the

number of crimes they have committed and how much they have hustled. RP at 684.

Thus, this evidence, which is comparable to the evidence in both Moreno and DeLeon,

establishes the required nexus between the drive-by shooting and Mr. Arredondo's

motivations to benefit his gang.

5. 	   Whether the trial court erred when imposing the $50 per day legal financial
       obligation as part ofMr. Arredondo's sentence

       The sentencing court ordered Mr. Arredondo to pay the costs of incarceration at a

rate of $50 per day for the term of the prison sentence of 1,083 months. The judgment

and sentence contained a generalized finding of financial ability, which included the

following language:


                                             25
No. 30411-6-111
State v. Arredondo


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

CP at 91. The judgment and sentence also included a separate finding specific to the

costs of incarceration, which read:

             4.D.4 Costs of Incarceration: In addition to the above costs, the
      court fmds that the defendant has the means to pay for the costs of
      incarceration, in prison at a rate of $50.00 per day of incarceration ... and
      orders the defendant to pay such costs at the statutory rate as assessed by
      the Clerk. Such costs are payable only after restitution costs, assessments
      and fines listed above are paid.· RCW 9.94A.760(2).

CP at 94. Other than these preprinted, boilerplate fmdings, no evidence in the record

relates to Mr. Arredondo's fmancial means. Mr. Arredondo challenges the trial court's

imposition of the costs of incarceration. He contends that the sentencing court failed to

make an individualized inquiry as to whether he had the means to pay these LFOs as

required by RCW 9.94A.760(2). It is undisputed that Mr. Arredondo raises this issue

regarding LFOs for the first time on appeal. For this reason, the State contends this court

should decline review.

       "A defendant who makes no objection to the imposition of discretionary LFOs at

sentencing is not automatically entitled to review." State v. Blazina, 182 Wn.2d 827,

832,344 P.3d 680 (2015). RAP 2.5(a) provides that an "appellate court may refuse to

review any claim of error which was not raised in the trial court." The rule then goes on

                                              26 

No. 30411-6-III
State v. Arredondo


to provide three exceptions that allow an appeal as a matter of right. RAP 2.5(a). Mr.

Arredondo does not argue that one ofthe RAP 2.5(a) exceptions applies. In Blazina, the

Washington State Supreme Court recently confirmed an appellate court's discretion

under RAP 2.5(a) extends to review of a trial court's imposition of discretionary LFOs.

182 Wn.2d at 833-35.

       Blazina involved LFOs authorized by RCW 10.01.160(3). There, the court held

that under RCW 10.01.160(3), "sign[ing] a judgment and sentence with boilerplate

language stating that it engaged in the required inquiry" is insufficient and that instead, a

sentencing court must make an "individualized inquiry into the defendant's current and

future ability to pay" on the record. Blazina, 182 Wn.2d at 838. Here, the LFOs at issue

are the costs of incarceration, which are governed by RCW 9.94A.760(2). Although

different in language, both statutes include an imperative that the court make a

determination regarding the defendant's ability to pay when imposing a discretionary

cost. Compare RCW 9.94A.760(2) (stating "If the court determines that the offender, at

the time of sentencing, has the means to pay for the cost of incarceration, the court may

require the offender to pay for the cost of incarceration at a rate of fifty dollars per day of

incarceration ....") with RCW 10.01.160(3) (stating "The court shall not order a

defendant to pay costs unless the defendant is or will be able to pay them. "). Blazina

applies here.




                                              27
No. 30411-6-III
State v. Arredondo


       Thus, this court has the discretion to decline review of Mr. Arredondo's

discretionary LFOs. In this case, we consider the administrative burden and expense of

bringing Mr. Arredondo to a new sentencing hearing and the likelihood that the LFO

result would change. An important consideration of this analysis is the dollar amount of

discretionary LFOs imposed by the sentencing court.

       Here, the trial court imposed over $1.6 million of discretionary LFOs against Mr.

Arredondo. We conclude that the administrative burden and expense of bringing Mr.

Arredondo back for resentencing is minor in comparison to the likelihood that the LFO

result will change.

       We affinn in part, but reverse and remand the imposition of the $50 per day LFO

for a new sentencing hearing, or, possibly entry of an agreed order amending the

judgment by striking the $50 per day costs. In the event that such an agreed order is

entered, Mr. Arredondo's personal presence will be unnecessary.

       A majority of the panel has detennined 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.


                                             Lawrence-Berrey, J.
I CONCUR:



Brown, A.C.J.

                                            28
                                        304Il-6-II1

       KORSMO, J. (dissent) -   I concur in all but the majority's decision to remand this

case for a hearing concerning the discretionary legal financial obligations (LFOs). I

would decline to reach the LFO issue in this case because the existing order has no

practical consequences for Fabian Arredondo. Ifhe should leave prison and be subject to

the LFO order, it will not be until the dawn of the 22nd century.

       Mr. Arredondo, age 30 at the time he committed these crimes, faces 20 years in

prison "straight time" before gaining the opportunity to earn early release credit at the

rate of 15 percent against the remaining 843 months on his sentence. With maximum

credit, he will be nearing his 11 Oth birthday before he need worry about the impact of

these LFOs on his life, and that assumes he already will have paid nearly $20,000 of

restitution and mandatory court costs before these discretionary costs might come due.

Clerk's Papers at 93-94. There will be plenty of time to put the question to the trial court

should it become anything other than an academic query.

       For that matter, Mr. Arredondo has other current options to put the question of his

LFOs before the trial judge. He could bring a timely motion under CrR 7 .8(b). He could

seek remission of his obligations under RCW 10.01.160(4). He has the opportunity to

raise the issue if he genuinely wants to do so.
No.30411-6-II1
State v. Arredondo - Dissent


       We have noted in the past that a defendant facing sentencing has great incentive

not to raise the question of his ability to pay financial obligations. State v. Duncan, 180

Wn. App. 245, 250, 327 P.3d 699 (2014), review granted, 353 P.3d 641 (2015). For that

reason, we have declined to hear these claims when raised initially on appeal. ld. at 253.

The Washington Supreme Court agreed that we have discretion to hear or decline to hear

this issue. State v. Blazina, 182 Wn.2d 827,832-834,344 P.3d 680 (2015). Given the

forceful language of Blazina, I have little doubt that trial judges in the future will live up

to their statutory obligation to inquire about ability to pay at sentencing, to the probable

consternation of many of those appearing before them. 1

       But sentencing in this case occurred four years before Blazina and I see nothing to

be gained here by putting the county to the expense of a resentencing in a case that

already had presented significant security concerns. Accordingly, I respectfully dissent

from the decision to return this case to the trial court for consideration of the

discretionary LFOs.




       I By remanding, the majority wrongly assumes that it was error to impose the
incarceration costs. We cannot tell that on this record. The court's error, ifthere was
one, was in ordering the costs without conducting the necessary inquiry into Mr.
Arredondo's ability to pay. Although highly unlikely, the outcome of that inquiry might
show that he does have the ability to pay.

                                              2
