                                                                          FILED
                                                                      JANUARY 4, 2018
                                                                 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. 34638-2-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
JULIAN MIGUEL JUAREZ,                          )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       FEARING, C.J. - The trial court, after a jury verdict, convicted Julian Juarez of

three crimes: (1) violation of a protection order by reason of an assault, a felony,

(2) felonious violation of a protection order by reason of multiple violations, and

(3) second degree assault. All crimes stem from Julian Juarez's attack on the mother of

his children, Eugenia Claudia Gutierrez, on the same day and at the same place. Julian

Juarez's and the victim's children could observe the violence. The jury found the

presence of the minor children and domestic violence to be aggravating circumstances.

On appeal, Julian Juarez asks that we vacate one or more of his convictions, and he

claims error in sentencing. We grant him partial relief.
                                                                                                          I
No. 34638-2-III
State v. Juarez


                                           FACTS

       Julian Miguel Juarez and Eugenia Claudia Gutierrez bore two daughters. Between

July 15, 2014 and beyond the present, a domestic violence no-contact order has

prohibited and will prohibit Juarez from contacting Gutierrez. Despite the order, Juarez

still maintained visitation rights with his daughters.

       Julian Juarez's convictions derive from his confrontation with Eugenia Gutierrez

on January 21, 2016. We lift the facts of the crimes from trial testimony.

       Eugenia Gutierrez arranged to meet Julian Juarez's mother, Bertha Quintero, on

January 21, so Quintero could transport the children to Julian Juarez for visitation.

Gutierrez told Quintero that Juarez could not be present during the transfer. Gutierrez

drove the girls to the designated location, a large parking lot near a grassy park and

adjacent to a community college. The children sat strapped in forward-facing car seats in

the backseat. Quintero arrived two minutes later and parked two spaces away from

Gutierrez's car. An empty parking spot lay between the two cars.

       As Eugenia Gutierrez exited her car, Julian Juarez hurriedly departed Bertha

Quintero's car. The patriarchal Juarez demanded that Gutierrez explain her behavior to

him. Juarez pushed Gutierrez toward her car and instructed her to enter the vehicle.

Gutierrez shoved Juarez and instructed him to leave her alone. Juarez grabbed

Gutierrez's hair with one hand to hold her still, and he punched her in the face with his




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No. 34638-2-111
State v. Juarez


other hand. Juarez again demanded Gutierrez to enter her car. Gutierrez again refused,

so Juarez punched her again.

        Julian Juarez released his hold on Eugenia Gutierrez's hair and walked to the

passenger side door of her car. Juarez opened the door with the expectation that

Gutierrez would enter the vehicle. Gutierrez instead walked toward the grassy park in

front of the car to retreat from Juarez. Gutierrez did not want her children, seated in the

back seat of her car, to witness more violence. We do not know how long Gutierrez

remained free from Juarez's grasp as she walked to the grass. Juarez followed Gutierrez

to the grass. No testimony measured the distance from the car to the grass or how far

Gutierrez walked from the car before Juarez attacked her in the grass.

        Once on the grass, Julian Juarez grabbed Eugenia Gutierrez's hair, and she

collapsed to the ground. Juarez dragged Gutierrez by her hair and struck her again.

Bertha Quintero loudly inquired of her son about his conduct. Quintero commanded

Juarez to cease his behavior, so the dutiful son returned to the car and Quintero drove

away.

        According to Eugenia Gutierrez, the children could view the confrontation.

Nevertheless, Gutierrez did not specifically state whether the children could see their

father's behavior adjacent to the car, his behavior in the grass, or both.

        Two witnesses, college student Melanie Merrill and postal carrier Christina

Acevedo, watched the confrontation between Julian Juarez and Eugenia Gutierrez. While

                                              3
No. 34638-2-III
State v. Juarez


seated in her truck, Merrill heard Gutierrez yell at Juarez to stop. She espied Juarez push

and punch Gutierrez. Merrill called 911. According to Merrill, Juarez punched Gutierrez

three to five times as the two stood between the two cars. Juarez punched Gutierrez ten

times on the grass. In between the two locations, Juarez chased Gutierrez.

       While walking on her postal route, Christina Acevedo heard Eugenia Gutierrez

holler: "help, call 911." Report of Proceedings (RP) (July 12, 2016) at 116. Acevedo

peered in the direction from where the cry originated and saw Gutierrez and Juarez in the

grass. She spotted Juarez holding Gutierrez's hair. Acevedo noted that Gutierrez could

not escape the grip of her hair. Acevedo also called the police.

       Eugenia Gutierrez suffered bumps on her head, a black eye, a bruised cheek, and a

bump on the left side of her face. Responding officers photographed Gutierrez's wounds

on the day of the assault. Gutierrez took photographs of her injuries two days after the

altercation.

                                      PROCEDURE

       The State of Washington charged Julian Juarez with three offenses arising from

his attack on Eugenia Gutierrez on January 21, 2016. Our appeal concerns in part the

relationship between the three overlapping counts and whether the State could convict

Juarez on all three charges. In count one, the State alleged assault in violation of a

protection order whereby Juarez "intentionally assaulted" Eugenia Gutierrez. Clerk's

Papers (CP) at 24. The State sought conviction of this first count as a class C felony. In

                                              4
No. 34638-2-III
State v. Juarez


count two, the State charged felony violation of a protection order with at least two

preceding convictions for violating provisions of a court order. In count three, the State

alleged second degree assault whereby Juarez, with the intent to commit the felony of

unlawful imprisonment, intentionally assaulted Gutierrez.

       The State of Washington sought a domestic violence sentence enhancement for

each count based on an allegation that Julian Juarez committed each offense against a

family or household member. The State also pled the aggravating sentencing factor that

each offense occurred within the presence of the victim's or the offender's minor

children. The State of Washington agreed in its information that it could not convict

Julian Juarez on count one, assault in violation of a protection order, a class C felony, by

only proving an assault that amounts to assault in the first or second degree.

       At trial, Julian Juarez stipulated to two earlier violations of a no-contact order.

Throughout trial, conflicting testimony arose about the number of times Juarez struck

Gutierrez.

       Throughout trial and in closing argument, the State referred to the January 21

incident as "the" assault, "an" assault, and other various phrases that implied a

continuous assaultive act. The State never separated, as discrete assaults, Julian Juarez's

conduct near the cars from his comportment in the grass. When explaining the events

that transpired, the State commented: "[a]ll the witnesses corroborate that the assault goes




                                              5
No. 34638-2-III
State v. Juarez


to this grassy area." RP (July 13, 2016) at 167. Eugenia Gutierrez measured the assault

as lasting between five to ten minutes.

       At the close of testimony, Julian Juarez moved for dismissal of the second degree

assault count. This degree of assault requires an intent to commit a felony, which

includes unlawful imprisonment. He argued that the State had not proved an unlawful

restraint in part because he only asked Eugenia Gutierrez to talk with him and his

directing Gutierrez into her car by force did not amount to a restraint. The State

responded by contending evidence showed an unlawful restraint because Juarez dragged

Gutierrez by the hair such that she could not escape his grasp. The trial court denied the

motion to dismiss.

       Despite the State of Washington conceding, by an amended information, that

assault in the second degree could not serve as the predicate assault for count one, the

jury received no instruction consistent with this clarification or concession. The trial

court instructed the jury that it could convict Julian Juarez on count one if, in addition to

Juarez violating a protection order, his "conduct was an assault." CP at 85 (emphasis

added). Juarez did not object to this instruction.

       The trial court instructed the jury that to convict Julian Juarez on count three,

second degree assault, the jury must find that he assaulted Eugenia Claudia Gutierrez and

"the assault was committed with the intent to commit unlawful imprisonment." CP at 91.

Another instruction defined "unlawful imprisonment" as a person's movement being

                                              6
No. 34638-2-III
State v. Juarez


restrained by another person "in a manner that substantially interferes with the ...

person's liberty." CP at 93. Juarez did not request any instructions for an inferior degree

offense for any of the counts. The jury found Julian Juarez guilty of all three counts. The

jury also found that Juarez committed all three crimes against family or household

members and that all three crimes occurred within the presence of the minor children.

       At sentencing, the State asked the trial court to impose, on count one, the statutory

maximum of sixty months and no community custody for counts one and two because of

an otherwise statutory maximum. Julian Juarez mentioned that the maximum sentence

for both counts one and two was sixty months. Juarez asked that the court impose

concurrent sentences for the two counts.

       During sentencing, the parties discussed whether any of the convictions should be

considered the same criminal conduct for purposes of sentencing. The trial court

commented:

              I don't believe that it's an issue of double jeopardy to him-for Mr.
       Juarez to be convicted of all three offenses. I don't-I don't believe that
       Count 2 is the same course of criminal conduct as to Count 1 and 3. I think
       that that's a separate crime and you can commit one and not commit the
       other and so consequently, I think he has essentially-essentially has two
       current offenses, one encompassing Counts 1 and 3 and one encompassing
       Count 2.

RP (July 29, 2016) at 21.

       The trial court sentenced Julian Juarez to the maximum of sixty months for counts

one and two and fifty-seven months for count three. The court imposed twelve additional

                                             7
No. 34638-2-III
State v. Juarez


months to all counts for the aggravating factor of crimes in the presence of minors. The

State sought clarification.

              [State's Attorney]: And then regarding the sentences, Your Honor,
       what I heard the Court say is a total of sixty months for count 1 and count 2
       and that incorporates a twelve-month enhancement. Is that what the
       Court-
              JUDGE: No, twelve months on top of the sixty.
              [State's Attorney]: Well, it's a statutory maximum of sixty-
              JUDGE: I think the twelve aggravating can be used as more than
       sixty.

RP (July 29, 2016) at 29. The trial court clarified that it was imposing community

custody as to count three. Nevertheless, paragraph 4.B.1 of the judgment and sentence

imposes twelve months of community custody on counts one and two in addition to an

extra twelve months for the aggravating factor. Paragraph 4.C.2 of the judgment imposes

community custody "as to count 3 only." CP at 115.

       During sentencing, Julian Juarez asked the trial court to impose legal financial

obligations in an amount as low as possible and to impose no costs for incarceration or

for medical assistance. Juarez's counsel mentioned that Juarez owes legal financial

obligations for other convictions, he will owe child support when leaving prison, and his

convictions will impair his chance for employment on release. The trial court found

Juarez to be indigent and limited financial costs to $600 and a cost of incarceration at

$200. Contrary to the trial court's finding during the sentencing hearing, the judgment




                                             8
No. 34638-2-III
State v. Juarez


and sentence contains boilerplate language finding Julian Juarez to be an adult with a

likely future ability to pay. Paragraph 4.D.5 imposes costs of medical care on Juarez.

                                  LAW AND ANALYSIS

       Julian Juarez lists numerous assignments of error on appeal. First the trial court

erred in allowing the jury to convict him on count one for assault in violation of a

protection order, a felony, based on the predicate crime of second degree assault because

RCW 26.50.110(4) does not approve second degree assault as a predicate. Second, a

conviction on both counts one and two, count two being felony violation of a protection

order by reason of past violations, violates double jeopardy. Third, Juarez's trial counsel

performed ineffectively by failing to ask for an inferior degree offense instruction for

count three, second degree assault. Fourth, the trial court committed error, during

sentencing, when refusing to consider assault in violation of a protection order and felony

violation of a protection order the same criminal misconduct. Fifth, the trial court erred

in sentencing Juarez beyond the statutory maximum by adding aggravating factors to the

sentence and imposing community custody. Sixth, the trial court erred when imposing

medical costs in prison as legal financial obligations.

                                 Conviction for Count One

       On appeal, Julian Juarez first asks, on two grounds, that we vacate his conviction

on count one, the felony conviction for assault in violation of a protection order. First, he

argues that the trial court erred when convicting him of count one because the jury

                                              9
No. 34638-2-III
State v. Juarez


instructions and the State's closing arguments mistakenly permitted the jury to use count

three, the second degree assault count, as the predicate for the felony assault in violation

of a protection order contrary to RCW 26.50.110. RCW 26.50.110(4) prohibits the use of

second degree assault to raise a violation of a protection order from a misdemeanor to a

felony. Second, Juarez contends that his convictions for counts one and two, violating a

protection order more than once, impresses double jeopardy because each count concerns

his violation of a protection order. Since Juarez failed to raise either argument before the

trial court, the State contends Juarez waived the argument for purposes of his appeal. We

address this procedural question first.

       A party may not generally raise a new argument on appeal that the party did not

present to the trial court. In re Det. ofAmbers, 160 Wn.2d 543, 557 n.6, 158 P.3d 1144

(2007). Yet, RAP 2.5(a)(3) permits a party to raise manifest errors affecting a

constitutional right.

       Washington courts and even decisions internally have announced differing

formulations for "manifest error." First, a manifest error is one "truly of constitutional

magnitude." State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988). Second, perhaps

perverting the term "manifest," some decisions emphasize prejudice, not obviousness.

The defendant must identify a constitutional error and show how, in the context of the

trial, the alleged error actually affected the defendant's rights. State v. O'Hara, 167

Wn.2d 91, 99, 217 P.3d 756 (2009). A third important formulation is the facts necessary

                                             10
No. 34638-2-III
State v. Juarez


to adjudicate the claimed error must be in the record on appeal. State v. McFarland, 127

Wn.2d 322,333,899 P.2d 1251 (1995); State v. Riley, 121 Wn.2d 22, 31,846 P.2d 1365

(1993).

       Without any analysis, this court and the Supreme Court have often held that a

double jeopardy argument may be considered for the first time on appeal, because the

contention implicates a manifest error affecting a constitutional right. State v. Adel, 136

Wn.2d 629, 631-32, 965 P.2d 1072 (1998); State v. Allen, 150 Wn. App. 300,312,207

P.3d 483 (2009); State v. Turner, 102 Wn. App. 202, 206, 6 P.3d 1226 (2000). We agree

at least for purposes of this appeal. We readily spot the error on the record. Julian Juarez

shows prejudice by being convicted of two crimes, not one crime.

       We hold that Julian Juarez's convictions for counts one and two breach the double

jeopardy clause. We, therefore, vacate Juarez's conviction for count one, assault in

violation of a protection order. We thereby need not address if the trial court could

convict Juarez of both counts one and three.

       The Fifth Amendment to the United States Constitution provides that a person

may not be subject for the same offense to be twice put in jeopardy of life or limb. U.S.

CONST. amend. V. Similarly, the Washington State Constitution provides that a person

may not be twice put in jeopardy for the same offense. CONST. art. I,§ 9. The double

jeopardy clauses of the United States and Washington State Constitutions protect a

defendant from multiple convictions for the same crime. State v. Tvedt, 153 Wn.2d 705,

                                               11
No. 34638-2-111
State v. Juarez


710, 107 P.3d 728 (2005); State v. Green, 156 Wn. App. 96, 99, 230 P.3d 654 (2010).

Stated differently, the State may not punish an offender multiple times for the same

offense. State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006). Nevertheless, within

constitutional constraints, the legislature may define crimes and punishments as it sees fit.

State v. Smith, 177 Wn.2d 533, 545, 303 P.3d 1047 (2013); State v. Calle, 125 Wn.2d

769, 776, 888 P.2d 155 (1995).

       Washington courts apply two distinct tests for assessing whether double jeopardy

precludes two convictions. First, when a defendant suffers multiple convictions for

violating several and distinct statutory provisions, the courts apply the "same evidence"

test. State v. Adel, 136 Wn.2d at 632-35 (1998). Under the same evidence test, double

jeopardy is violated if a defendant is convicted of offenses that are the same in law and in

fact. State v. Calle, 125 Wn.2d at 772. Second, when a defendant has multiple

convictions for violating the same statute, the courts implement the "unit of prosecution"

test. State v. Adel, 136 Wn.2d at 634.

       The State asks that we employ the same evidence test to Julian Juarez's appeal.

Nevertheless, counts one and two convicted Julian Juarez under the same statute, RCW

26.50.110. When a defendant is convicted of multiple violations of the same statute, the

double jeopardy question focuses on what "unit of prosecution" the legislature intends as

the punishable act under the statute. State v. Westling, 145 Wn.2d 607, 610, 40 P .3d 669




                                             12
    No. 34638-2-III
    State v. Juarez


    (2002). Thus, we decline to apply the same evidence test and instead employ the unit of

    prosecution test.

           When the law convicts a defendant of violating the same statute multiple times, we

    must determine what "unit of prosecution" the legislature intended as the punishable act

I
l   under the specific criminal statute. State v. Reeder, 184 Wn.2d 805, 825, 365 P.3d 1243
I
i
    (2015). Double jeopardy protects a defendant from conviction more than once under the
I   same statute if the defendant commits only one unit of the crime. State v. Reeder, 184
I
I   Wn.2d at 825. The unit of prosecution for a crime can be either an act or a course of
!
I   conduct. State v. Hall, 168 Wn.2d 726,731,230 P.3d 1048 (2010).

I
l          The determination of the unit of prosecution ultimately revolves around a question

    of statutory interpretation and legislative intent. State v. Barbee, 187 Wn.2d 375, 382,

    386 P.3d 729 (2017). The goal of statutory interpretation is to ascertain and carry out the

    intent of the legislature. State v. Barbee, 187 Wn.2d at 3 82-83. The first step is to look

    to the plain meaning of the statute. State v. Barbee, 187 Wn.2d at 383. If the plain

    meaning of the statute is ambiguous, we may determine legislative intent by reviewing

    legislative history. State v. Barbee, 187 Wn.2d at 383. Last, we perform a factual

    analysis as to the unit of prosecution because the facts in a particular case may reveal

    more than one unit of prosecution is present. State v. Varnell, 162 Wn.2d 165, 168, 170

    P .3d 24 (2007). If there is still doubt, the rule of lenity applies and requires any

    ambiguity be resolved against turning a single transaction into multiple offenses. State v.

                                                  13
No. 34638-2-III
State v. Juarez


Reeder, 184 Wn.2d at 825.

       We must then ask what act or course of conduct did the legislature define as the

punishable act under the violation of a protection order statute, RCW 26.50.110.

Subsection (4) of the statute controls count one, assault in violation of a protection order,

a felony. Subsection (5) of the statute governs count two, felony violation of a protection

order. RCW 26.50.110 reads, in relevant part:

              ( 1)(a) Whenever an order is granted under this chapter ... and
       the ... person to be restrained knows of the order, a violation of any of the
       following provisions of the order is a gross misdemeanor, except as
       provided in subsections (4) and (5) of this section:
              (i) The restraint provisions prohibiting acts or threats of violence
       against, or stalking of, a protected party, or restraint provisions prohibiting
       contact with a protected party;

              (iii) A provision prohibiting a person from knowingly coming
       within, or knowingly remaining within, a specified distance of a location;

              (4) Any assault that is a violation of an order issued under this
       chapter ... and that does not amount to assault in the first or second degree
       under RCW 9A.36.0l l or 9A.36.021 is a class C felony ....
              (5) A violation of a court order issued under this chapter ... is a
       class C felony if the offender has at least two previous convictions for
       violating the provisions of an order issued under this chapter . . . . The
       previous convictions may involve the same victim or other victims
       specifically protected by the orders the offender violated.

(Emphasis added.) Note that the statute repeatedly refers to "a violation." The statute

then lists a number of ways in which "a violation" may occur.

       This court has unsurprisingly observed that RCW 26.50.110 punishes "a violation

of a no-contact order." State v. Brown, 159 Wn. App. 1, 10,248 P.3d 518 (2010). The

                                              14
No. 34638-2-III
State v. Juarez


court reasoned that use of the word "a" in the statute renders each violation of a

protection order one unit of prosecution. State v. Brown, 159 Wn. App. at 10-11. In

other settings, the Supreme Court has consistently interpreted the legislature's use of the

word "a" in a criminal statute as authorizing punishment for each individual instance of

criminal conduct, even if multiple instances of such conduct occurred simultaneously.

State v. Ose, 156 Wn.2d 140, 147, 124 P.3d 635 (2005); State v. Brown, 159 Wn. App. at

11.

       State v. Brown and other decisions under RCW 26.50.110 provide some, but little

guidance, in resolving the issue in our appeal. In State v. Brown, Frederick Brown, in

violation of a protection order repeatedly called his former girlfriend over a period of

weeks. The State brought five charges for discrete days even though Brown made

numerous calls on each of the days. This court reasoned that each call constituted a

separate violation of the statute. In State v. Allen, 150 Wn. App. 300 (2009), Leif Allen

sent two e-mails on different days that the victim viewed at the same time, and he was

convicted of two no-contact order violations. Allen argued that because the victim

viewed the e-mails at the same time, one of his convictions violated double jeopardy.

The court disagreed because the statutG focuses on the defendant's actions, not the

victim's. Each act of sending an e-mail constituted a statutory violation. In State v.

Parmelee, 108 Wn. App. 702, 709, 32 P.3d 1029 (2001), each of the three charges filed

against Allan Parmelee for violating the protection order was based on a different,

                                             15
No. 34638-2-III
State v. Juarez


individual letter mailed to the victim.

       In our appeal, the State charged Julian Juarez with two counts for his conduct that

occurred simultaneously, rather than repeatedly. Juarez violated the statute in different

ways not at different times, first by assaulting Eugenia Gutierrez and second by having

already violated the statute on other occasions. The State repeatedly referenced, at trial,

the attack on Gutierrez as one ongoing assault. The encounter lasted five to ten minutes.

The statute and cases decided thereunder imply that one set of circumstances is "a

violation" or only one unit of prosecution. Assuming our decision is a close call, we

must construe the statute in favor of Juarez. The State affords us no basis to rule in its

favor under the unit of prosecution standard, since the State mistakenly forwards the

same evidence rule.

       The State of Washington argues that the trial court resolved the double jeopardy

contention during sentencing when the court remarked: "I don't believe that it's an issue

of double jeopardy to him-for Mr. Juarez to be convicted of all three offenses." RP

(July 29, 2016) at 21. The trial court's comment, when viewed in total, addressed more

whether the court should consider one or more crimes similar in nature for purposes of

sentencing than whether convictions of more than one crime constituted double jeopardy.

Regardless, the trial court's discussion of double jeopardy does not prevent this court's

review. Claims of double jeopardy are questions of law, which appellate courts review

de novo. State v. Hughes, 166 Wn.2d 675,681,212 P.3d 558 (2009).

                                             16
No. 34638-2-III
State v. Juarez


       The usual remedy for double jeopardy violations is to vacate the lesser offense.

State v. Hughes, 166 Wn.2d at 686 n.13. The State prosecuted both counts one and two

as class C felonies. We opt to vacate count one, assault in violation of a protection order,

because this vacation avoids the problem of the State raising the crime from a gross

misdemeanor to a felony despite RCW 26.50.110 denying this opportunity for conduct

involving second degree assault.

       We note that this court recently affirmed convictions for both felony violation of a

protection order and fourth degree assault in face of a double jeopardy challenge. State v.

Novikoff.. _   Wn. App. _ , 404 P .3d 513 (2017). Nevertheless, the Novikoff

convictions stemmed from different statutes, respectively RCW 26.50.110 and RCW

9A.36.041. Thus, the same evidence test applied. For the same reason, Julian Juarez's

convictions for second degree assault and violation of the protection order do not violate

double jeopardy.

                    Inferior Degree Offense for Second Degree Assault

       Julian Juarez next attacks his conviction on count three, second degree assault, on

the ground that his trial counsel failed to propose an inferior degree offense jury

instruction for the lower crime of fourth degree assault. Juarez thereby asserts ineffective

assistance of counsel. The State obviously notes that Juarez did not raise this issue at

trial. Generally, issues not raised in the trial court may not be raised for the first time on

appeal. RAP 2.5(a); State v. Nitsch, 100 Wn. App. 512,519,997 P.2d 1000 (2000). An

                                              17
No. 34638-2-III
State v. Juarez


exception to this rule, under RAP 2.5(a)(3), is manifest constitutional error. Ineffective

assistance of counsel may cons~itute manifest constitutional error.

       For an accused to show ineffective assistance of counsel for failing to request a

jury instruction, the accused must establish entitlement to the instruction. State v.

Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007). Therefore, we first review whether

the trial court should have, assuming Julian Juarez requested one, delivered an inferior

degree jury instruction for fourth degree assault.

       RCW 10.61.003 codifies the right to an inferior degree offense jury instruction.

The statute reads:

              Upon an indictment or information for an offense consisting of different
       degrees, the jury may find the defendant not guilty of the degree charged in the
       indictment or information, and guilty of any degree inferior thereto, or of an
       attempt to commit the offense.

       Washington's leading decision on inferior degree offense jury instructions is State

v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). In Workman, the state high court

instituted a two-tine test to determine whether a party is entitled to an instruction on an

inferior degree offense. Under the first prong of the test, labeled the legal prong, the

court asks whether the inferior degree offense consists solely of elements necessary to

conviction of the greater, charged offense. State v. Condon, 182 Wn.2d 307, 316, 343

P.3d 357 (2015). If one may commit the greater offense without committing the lesser

offense, the latter is not an included crime. State v. Roybal, 82 Wn.2d 577,583, 512 P.2d



                                             18
No. 34638-2-111
State v. Juarez


718 (1973). Under the second or factual prong, the court asks whether the evidence

presented in the case supports an inference that only the lesser offense was committed, to

the exclusion of the greater, charged offense. State v. Condon, 182 Wn.2d at 316. The

requesting party is entitled to the inferior degree offense instruction when we answer both

questions with yes. State v. Condon, 182 Wn.2d at 316.

       We compare second degree assault with fourth degree assault, the inferior crime.

RCW 9A.36.021 declares, in relevant section:

              (1) A person is guilty of assault in the second degree if he or she,
       under circumstances not amounting to assault in the first degree:
              (a) Intentionally assaults another and thereby recklessly inflicts
       substantial bodily harm; or

              (e) With intent to commit a felony, assaults another; or
              (f) Knowingly inflicts bodily harm which by design causes such pain
       or agony as to be the equivalent of that produced by torture.

Assault in the second degree is generally a class B felony. RCW 9A.36.021(2). RCW

9A.36.041 reads, in pertinent part:

              ( 1) A person is guilty of assault in the fourth degree if, under
       circumstances not amounting to assault in the first, second, or third degree,
       or custodial assault, he or she assaults another.

Depending on the circumstances, assault in the fourth degree is either a gross

misdemeanor or a class C felony. RCW 9A.36.041(2); RCW 26.50.l 10(l)(a)(4),(5).

       We address only the factual prong of the Workman test. An accused fulfills the

factual prong when the evidence permits a jury to rationally find the accused guilty of the



                                             19
No. 34638-2-III
State v. Juarez


lesser offense and acquit him of the greater. State v. Fernandez-Medina, 141 Wn.2d 448,

455, 6 P.3d 1150 (2000). In other words, the defendant must establish that evidence

supports a finding that he committed only the inferior degree offense. In making this

determination, the court must consider all evidence presented at trial by either party.

State v. Fernandez-Medina, 141 Wn.2d at 455. The court must also view the evidence in

the light most favorable to the party requesting the inferior degree offense instruction.

State v. Condon, 182 Wn.2d at 321. The evidence must affirmatively establish the

defendant's theory of the case. State v. Fernandez-Medina, 141 Wn.2d at 456.

       The State possessed alternative grounds for convicting Julian Juarez of second

degree assault. First, Juarez may have assaulted Eugenia Gutierrez by intentionally

striking her and recklessly inflicting substantial bodily harm in violation of RCW

9A.36.02l(l)(a). Second, Juarez may have assaulted Gutierrez by assaulting her with the

intent to commit a felony in breach ofRCW 9A.36.02l(l)(e). At the trial court and on

appeal, the State relies only on Juarez's felonious intent in order to thwart Juarez's

contention that he may have only committed fourth degree assault. The State contends

that the felony constituted unlawful imprisonment.

       One commits the crime of unlawful imprisonment when one "knowingly restrains

another person." RCW 9A.40.040 (emphasis added). The criminal code defines

"restrain" as:




                                             20
No. 34638-2-III
State v. Juarez


              "Restrain" means to restrict a person's movements without consent
       and without legal authority in a manner which interferes substantially with
       his or her liberty . ...

RCW 9A.40.010(6) (emphasis added). The essence of unlawful imprisonment is

restraint and restriction. State v. Thomas, 35 Wn. App. 598, 603, 668 P.2d 1294 (1983).

       Julian Juarez argues that the evidence supported an inference that he committed

fourth degree assault. We disagree. Juarez suggests that neither eyewitness testified that

he knowingly restrained Eugenia Gutierrez in a manner that substantially interfered with

her liberty. Nevertheless, despite the eyewitnesses not mouthing those legal terms, the

witnesses' testimony inevitably leads to such a conclusion. Postal worker Christina

Acevedo described seeing Juarez holding Eugenia Gutierrez by her hair in a manner that

Gutierrez could not escape. Even the act of holding Gutierrez by her hair, without any

punching, was sufficient to restrain Gutierrez's movements. In addition, under the

undisputed testimony, Juarez directed Gutierrez into the car, where he could restrain her

movement. Under the totality of the evidence heard by the jury, the jury could not find

that Julian Juarez assaulted Gutierrez only in the fourth degree.

                    Same Criminal Conduct for Purpose of Sentencing

       Julian Juarez next contends that the trial court erred by not considering his

conviction on count one, assault in violation of a protection order, and his conviction on

count 2, felony conviction of a protection order by multiple violations, to be the same

criminal conduct for purposes of sentencing under RCW 9.94A.589(1)(a). Since we

                                             21
No. 34638-2-111
State v. Juarez


otherwise vacate Juarez's conviction on count one, we need not and do not address this

assignment of error.

                               Sentence Beyond Maximum

       Julian Juarez's jury returned special verdicts for each count on the basis that

Juarez committed the crimes within the sight and hearing of his and Eugenia Gutierrez's

children. We do not concern ourselves on appeal with count one. The parties agreed that

the maximum sentence for count two, a class C felony, was sixty months. RCW

9A.20.02I(l)(c). In tum, the trial court imposed a sentence of sixty months for felony

violation of a protection order by repeated violations. The trial court then added another

twelve months for the aggravator of the presence of the children. The sentence then

totaled seventy-two months. The State sought correction of the error, but the trial court

imposed the seventy-two months.

       On appeal, Julian Juarez assigns error to the trial court's imposition of seventy-

two months of prison time on count two. The State concedes error. Our Supreme Court

recently held that even if a jury finds the existence ofan aggravating factor, a defendant's

aggravated sentence cannot exceed the statutory maximum for the crime, as set forth in

RCW 9A.20.02 l. State v. Barbee, 187 Wn.2d at 392-93 (2017).

       Julian Juarez also claims his sentence for count two exceeds the statutory

maximum when one considers his time in community custody. As previously indicated,

the maximum sentence for count two is five years. RCW 9A.20.02I(l)(c). The trial

                                            22
No. 34638-2-III
State v. Juarez


court imposed a sentence of sixty months plus an additional twelve months of community

custody.

       The Washington Supreme Court has held that the addition of prison time and time

in community custody may not exceed the statutory maximum term for the crime. State

v. Boyd, 174 Wn.2d 470, 471-73, 275 P.3d 321 (2012). The court reversed the sentence

and remanded the case for resentencing to reduce the defendant's term of community

custody to avoid a sentence in excess of the statutory maximum.

       The trial court clarified that it imposed community custody as to count three.

Nevertheless, paragraph 4 .B .1 of the judgment and sentence imposes twelve months of

community custody on counts one and two in addition to an extra twelve months for the

aggravating factor. Paragraph 4.C.2 of the judgment imposes community custody "as to

count 3 only." CP at 115. This conflict needs correction.

                               Legal Financial Obligations

       At sentencing, the trial court found Julian Juarez to be indigent. The court also

capped the imposition of costs for incarceration at $200. Nevertheless, the boilerplate

language in the judgment and sentence, contrary to the trial court's oral ruling, directed

Juarez to pay the cost of his medical care in prison. Medical care costs are discretionary

legal financial obligations. State v. Leonard, 184 Wn.2d 505, 506-08, 358 P.3d 1167

(2015). The State concedes a clerical error in the judgment and sentence.




                                            23
No. 34638-2-III
State v. Juarez


                                     CONCLUSION

       We vacate Julian Juarez's conviction on count one, assault in violation of a

protection order. We remand for resentencing on count two consistent with this opinion

and for the striking of the imposition of costs for medical care. Otherwise, we affirm the

trial court's rulings and Juarez's convictions for counts two and three. We deny the State

costs on appeal.

       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, C .J.

WE CONCUR:




Siddoway, J.



Pennell, J.




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