                                                                      FILED
                                                                     May 3, 2016
                                                           In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                           )         No. 33027-3-111
                                               )
                     Respondent,               )
                                               )
              v.                               )         PUBLISHED OPINION
                                               )
FRANCISCO GONZALEZ-GONZAL Z,                   )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, J. - Franc· sco Gonzalez-Gonzalez appeals his conviction

for unlawful imprisonment. He argues       e trial court erred when it overruled his hearsay

objection to a police officer's testimony and that this ruling affected the outcome of the

trial. For the first time on appeal, heals argues the trial court erred in imposing $700 in

discretionary legal financial obligations (LFOs) without making an adequate inquiry into

his ability to pay. We clarify that our re iew of a trial court's hearsay ruling is de novo,

except when review requires applicatio of evidentiary factors. Although we agree with

Mr. Gonzalez-Gonzalez's argument tha the challenged statement was hearsay, we hold

that its admission was harmless error.    lso, we exercise our discretion against reviewing

his unpreserved LFO argument. We thdrefore affirm.
No. 33027-3-111
State v. Gonzalez-Gonzalez


                                            FACTS

       On August 26, 2014, C.H. 1 rode is bike to Mr. Gonzalez-Gonzalez's apartment to

buy marijuana. When C.H. arrived, Mr. Gonzalez-Gonzalez came outside of the

apartment and invited C.H. inside. Mr.      onzalez-Gonzalez then pulled C.H. into the

apartment and accused C.H. of stealing is watch. Mr. Gonzalez-Gonzalez's brother

stood between C.H. and the apartment d or and held a knife. Mr. Gonzalez-Gonzalez

told C.H. that he could not leave the apa ment unless it was to retrieve the stolen watch.

C.H. told Mr. Gonzalez-Gonzalez that h would go get the watch, and Mr. Gonzalez-

Gonzalez let C.H. leave the apartment.      .H. then rode his bike to a nearby restaurant and

called the police.

       Officer Jasen McClintock respon ed to the call and met C.H. at the restaurant.

Officer Kari Skinner and Sergeant Jame Thompson also responded to the call and joined

Officer Mcclintock at the restaurant. A the restaurant, C.H. described the general

location of Mr. Gonzalez-Gonzalez's ap rtment building to Officer McClintock. Officer

McClintock then sent Officer Skinner       d Sergeant Thompson over to the apartment

building. Officer Skinner arrived at the partment building first and saw two men on the

apartment balcony who matched the dis atcher' s description. Officer Skinner did not


       1
           For purposes of this opinion, th minor's initials are used in place of his name.

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No. 33027-3-111
State v. Gonzalez-Gonzalez


approach the apartment, but instead wai d for backup. After backup arrived, Mr.

Gonzalez-Gonzalez walked over to her nd identified himself as "Kiko." Report of

Proceedings (RP) (Nov. 19, 2014) at 89.

      Officer McClintock then took C. . to the general area of the apartment building.

C.H. pointed out Mr. Gonzalez-Gonzale 's specific apartment. Officer McClintock

conducted a show-up, and C.H. identifi    Mr. Gonzalez-Gonzalez and his brother as the

individuals who restrained him. Officer Skinner then arrested Mr. Gonzalez-Gonzalez.

      The State charged Mr. Gonzalez- onzalez with first degree robbery, unlawful

imprisonment, and harassment. At trial, C.H. testified he had known Mr. Gonzalez-

Gonzalez for three to four years and kn   him by the nickname "Kiko." RP (Nov. 19,

2014) at 54. During the State's direct e amination of Officer Skinner, the following

exchange occurred:

             [Prosecutor:] Were you a le to locate the residence where this
      incident occurred?
             [Officer Skinner:] Yes, a'am, I was.
             [Prosecutor:] How so?
             [Officer Skinner:] Origin lly, the reporting party had indicated a
      general area to Officer McClinto k, and then dispatch had done a records
      management search on an alias n e that had been provided by the name of
      Kiko.

RP (Nov. 19, 2014) at 86. Mr. Gonzale -Gonzalez objected to Officer Skinner's

testimony as hearsay and argued that O 1cer Skinner described an out-of-court statement

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No. 33027-3-111
State v. Gonzalez-Gonzalez


that the State offered for the purpose of· dentifying Mr. Gonzalez-Gonzalez. The trial

court overruled Mr. Gonzalez-Gonzalez s objection.

      The jury convicted Mr. Gonzalez Gonzalez of unlawful imprisonment but

acquitted him of robbery and harassmen. The trial court sentenced Mr. Gonzalez-

Gonzalez to two months' incarceration        d gave him credit for time served in pretrial

custody, which exceeded his two-month sentence. The trial court imposed a total of
                                         I

$1,800 in LFOs, comprised of a $500 fi ·e, mandatory costs of $600, and discretionary

costs of $700 for a court-appointed atto ey. Before it imposed the LFOs, the trial court

conducted the following inquiry:

           THE COURT: Okay. No , were you employed at the time of the
      events-at the time of your arres?
           [MR. GONZALEZ-GON ALEZ]: Yeah. I was working helping a
      mechanic in Kennewick.
           THE COURT: Okay.

RP (Dec. 19, 2014) at 6. The judgment nd sentence contained the following boilerplate

language: "The defendant has the abili       or likely future ability to pay the legal financial

obligations imposed herein." Clerk's P pers (CP) at 20. Mr. Gonzalez-Gonzalez did not

object to the LFOs. This appeal follow d. The trial court stayed Mr. Gonzalez-

Gonzalez's kidnapping offender registr ion requirement pending the outcome of this

appeal.



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No. 33027-3-111
State v. Gonzalez-Gonzalez


                                           ALYSIS

       A.     Alleged hearsay error

       Mr. Gonzalez-Gonzalez argues t at Officer Skinner's testimony concerning how

she found his apartment was hearsay. 0 fleer Skinner testified that dispatch located the

defendant's address by doing a records     anagement search using his alias, Kiko. Mr.

Gonzalez-Gonzalez argues that this "su gested to the jury that [he] was known to the

police, used an alias ... perhaps had a c iminal record, [and the admission of this

hearsay] was not harmless." Appellant' Br. at 7.

              1.     Standard of review

       We take this opportunity to clari   the proper standard of review of trial court

hearsay rulings. This court reviews whe her a statement was hearsay de novo. State v.

Hudlow, 182 Wn. App. 266, 281, 331 P. d 90 (2014) (citing State v. Neal, 144 Wn.2d

600, 607, 30 P.3d 1255 (2001)); State v. Edwards, 131 Wn. App. 611, 614, 128 P.3d 631

(2006); but see State v. Woods, 143 Wn. d 561, 595, 23 P.3d 1046 (2001) (applying an

abuse of discretion standard of review t the excited utterance hearsay exception, which

requires application of evidentiary facto s by the trial court). The reason we do not

review for an abuse of discretion is beca se ER 802 explicitly states that hearsay evidence

is not admissible except as provided by he hearsay exception rules. The rules do not give



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No. 33027-3-111
State v. Gonzalez-Gonzalez


trial courts discretion to admit inadmissi le evidence. The more deferential abuse of

discretion standard generally applies to ur review of those trial court rulings where trial

courts must use their discretion when w ighing various factors.

       As with either standard of review an erroneous evidentiary ruling does not result

in reversal unless the defendant was prej diced. State v. Thomas, 150 Wn.2d 821, 871,

83 P.3d 970 (2004). For evidentiary err rs not implicating a constitutional mandate, we

reverse only if, "' within reasonable pro abilities, the outcome of the trial would have

been materially affected had the error n t occurred.'" Id. (quoting State v. Tharp, 96

Wn.2d 591, 599, 637 P.2d 961 (1981)). '"The improper admission of evidence

constitutes harmless error if the evidenc is of minor significance in reference to the

overall, overwhelming evidence as aw      le."' Id. (quoting State v. Bourgeois, 133

Wn.2d 389, 403, 945 P.2d 1120 (1997))

              2.     Whether Officer Sk"nner 's testimony was hearsay

       Hearsay is an out-of-court state ent offered to prove the truth of the matter

asserted. ER 801(c). A "statement" is n oral or written assertion, or a person's

nonverbal conduct if that person intend that conduct to be an assertion. ER 801(a).

"Whether a statement is hearsay depen s upon the purpose for which the statement is

offered." State v. Crowder, 103 Wn. A p. 20, 26, 11 P.3d 828 (2000). "A statement is



                                             6
No. 33027-3-111
State v. Gonzalez-Gonzalez


not hearsay if it is used only to show the effect on the listener, without regard to the truth

of the statement." Edwards, 131 Wn. A p. at 614. However, where an out-of-court

statement is offered for the truth of what someone told the witness, the statement is

hearsay even though the witness only im lies the out-of-court statement. Hudlow, 182

Wn. App. at 276-77. In determining wh ther the statement was offered to prove its truth

instead of for a benign purpose as the St te asserts, we examine whether the benign

purpose was relevant. Id. at 278-80.

       The prosecutor asked Officer Ski      er how she was able to find Mr. Gonzalez-

Gonzalez's apartment, and Officer Ski      er testified that "dispatch had done a records

management search on an alias name th t had been provided by the name of Kiko." RP

(Nov. 19, 2014) at 86. The trial court o erruled Mr. Gonzalez-Gonzalez's objection on

the grounds that Officer Skinner did not repeat what someone else had said.

       The trial court's view of hearsay    as too narrow. As mentioned above, hearsay

includes an implied statement, provided that the statement was offered for its truth. Here,

the implied statement, according to Mr.     onzalez-Gonzalez, is that law enforcement

knew him based on his alias name, Kiktj. The State responds that it elicited this testimony

for the benign purpose of establishing     hy Officer Skinner approached the particular

apartment.



                                               7
No. 33027-3-111
State v. Gonzalez-Gonzalez


       We hold that the State has failed t establish the relevancy of the statement's

purported benign purpose and, therefore, the State elicited the statement for a hearsay

purpose. There is no relevance to why     fficer Skinner approached the particular

apartment. The officer testified that she id not approach the apartment but instead

waited for backup, and Mr. Gonzalez-G nzalez approached her and identified himself as

Kiko after backup arrived.

      Nevertheless, the erroneous admi sion of hearsay is harmless error unless, within

reasonable probabilities, the improper ev dence affected the outcome of the trial.

Thomas, 150 Wn.2d at 871. Mr. Gonzal z-Gonzalez argues that the jury could have

found him guilty based on the fact that h was known to law enforcement by the name

Kiko. His argument requires too much s eculation.

       First, the jury acquitted Mr. Gonz lez-Gonzalez of the more serious offense of first

degree robbery, and also of harassment.    his shows that the jury based its verdict on

evidence, not improper bias. Second, th re is no evidence that only persons with criminal

histories are known by law enforcement. Third, the State did not argue or imply that Mr.

Gonzalez-Gonzalez was guilty because e was known by law enforcement or had a

criminal history. We fail to see the conn ction between a nonpejorative alias such as

"Kiko" and the jury's verdict in this case. We hold the admission of Officer Skinner's



                                             8
No. 33027-3-111
State v. Gonzalez-Gonzalez


hearsay statement implying that law en:fi rcement knew Mr. Gonzalez-Gonzalez as Kiko

was harmless error.

       B.

       Whenever a person is convicted, he trial court "may order the payment

of a legal financial obligation" as part o the sentence. RCW 9.94A.760(1); accord

RCW 10.01.160(1). Because both statu s use the word "may" when authorizing

imposition of costs described therein, w refer to such costs as "discretionary costs." By

statute, the trial court is not authorized t order a defendant to pay discretionary costs

unless he or she is or will be able to pay them. RCW 10.01.160(3). In determining the

amount and method of payment of discr tionary costs, the trial court shall take account of

the financial resources of the defendant nd the nature of the burden that payment of such

costs will impose. RCW 10.01.160(3).        ccordingly, "a trial court has a statutory

obligation to make an individualized in uiry into a defendant's current and future ability

to pay before the court imposes LFOs." State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d

680 (2015).

       Importantly, ''the court must do     ore than sign a judgment and sentence with

boilerplate language stating that it enga ed in the required inquiry." Id. at 838.

Therefore, ~'[t]he record must reflect th   the trial court made an individualized



                                               9
No. 33027-3-111
State v. Gonzalez-Gonzalez


inquiry into the defendant's current and      ture ability to pay."2 Id. However, "[n]either

RCW 10.01.160 'nor the constitution re uires a trial court to enter formal, specific

findings regarding a defendant's ability t pay [discretionary] court costs.'" State v.

Lundy, 176 Wn. App. 96, 105, 308 P.3d 55 (2013) (quoting State v. Curry, 118 Wn.2d

911, 916, 829 P.2d 166 (1992)).

       "The trial court's determination' s to the defendant's resources and ability to pay

is essentially factual and should be revie ed under the clearly erroneous standard.'"

State v. Bertrand, 165 Wn. App. 393, 40 n.13, 267 P.3d 511 (2011) (quoting State v.

Baldwin, 63 Wn. App. 303, 312, 818 P.2 1116, 837 P.2d 646 (1991)). A finding of fact

is clearly erroneous when, "' although th re is some evidence to support it, review of all

of the evidence leads to a definite and fi     conviction that a mistake has been

committed.'" Lundy, 176 Wn. App. at 1 5 (internal quotation marks omitted) (quoting

Schryvers v. Coulee Cmty. Hosp., 138         n. App. 648, 654, 158 P.3d 113 (2007)).

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

sentencing is not automatically entitled t review." Blazina, 182 Wn.2d at 832. Subject


       2
          Although courts have little guid nee regarding what counts as an "individualized
inquiry," Blazina makes clear, at a mini um, the sentencing court "must also consider
important factors ... such as incarcerati n and a defendant's other debts, including
restitution, when determining a defenda t's ability to pay," and "should also look to the
comment in court rule GR 34 for guidan e." Blazina, 182 Wn.2d at 838.

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No. 33027-3-111
State v. Gonzalez-Gonzalez


to three exceptions that do not apply her , RAP 2.5(a) provides that an "appellate court

may refuse to review any claim of error   hich was not raised in the trial court." Blazina

confirmed that an appellate court's discr tion under RAP 2.5(a) extends to review of a

trial court's imposition of discretionary FOs. Id. at 834-35.

      Under Blazina, each appellate co rt is entitled to "make its own decision to accept

discretionary review" of unpreserved LF    errors. Id. at 835. Admittedly, the judges of

this court are not in agreement as to wha extent discretion should be exercised to review

unpreserved LFOs. An approach favore by this author is to consider the administrative

burden and expense of bringing a defend t to court for a new hearing, versus the

likelihood that the discretionary LFO res lt will change. "An important consideration of

this analysis is the dollar amount of disc etionary LFOs imposed by the sentencing court."

State v. Arredondo, 190 Wn. App. 512, 38, 360 P.3d 920 (2015). In this case, the

majority of these factors weigh against r viewing Mr. Gonzalez-Gonzalez's unpreserved

LFO challenge.

      First, the dollar amount of the dis retionary LFOs the trial court imposed

does not support granting review. The t al court imposed both mandatory and

discretionary LFOs. The mandatory LF s included the $500 victim assessment and the

$100 deoxyribonucleic acid (DNA) colle tion fee. See RCW 7.68.035(l)(a);



                                            11
No. 33027-3-111
State v. Gonzalez-Gonzalez


RCW 43.43.7541. These mandatory LF s are required irrespective of Mr. Gonzalez-

Gonzalez's ability to pay. Lundy, 176 W . App. at 103. Accordingly, the only

discretionary cost that required the trial c urt to inquire into Mr. Gonzalez-Gonzalez's

ability to pay was the $700 court-appoint d attorney fee. 3

       The second factor-the administr tive burden and expense of bringing Mr.

Gonzalez-Gonzalez to court for a new se tencing hearing-does not weigh in favor of

either side in this case. Remand is not re uired for the trial court to address any other

sentencing errors, so the trial court woul have to hold a resentencing hearing for the sole

purpose of conducting a Blazina inquiry. However, Mr. Gonzalez-Gonzalez is not

incarcerated, so the State also would not ncur the expense of transporting him to court.

       However, the final factor weighs gainst granting review-a new sentencing

hearing would not likely change the LFO result. Although the trial court found that Mr.

Gonzalez-Gonzalez was indigent and thu qualified for publicly funded counsel both for

trial and on appeal, Mr. Gonzalez-Gonza ez testified that he was employed helping a

mechanic at the time of his arrest. In ad ition, Mr. Gonzalez-Gonzalez was released from


       3 The trial court also imposed a $5 0 fine under RCW 9A.20.021. This division
recently decided that a trial court may im ose fines under RCW 9A.20.021 without
inquiring into a defendant's ability to pa . See State v. Clark, 191 Wn. App. 369, 376,
362 P.3d 309 (2015); accord State v. Cal in, 176 Wn. App. 1, 24-25, 316 P.3d 496
(2013), remanded, 183 Wn.2d 1013, 353 .3d 640 (2015).
                                          1


                                              12
No. 33027-3-111
State v. Gonzalez-Gonzalez


confinement on the day of his sentencing earmg. Accordingly, Mr. Gonzalez-Gonzalez

is not subject to the negative effects that n extended period of incarceration would have

on his employment prospects, and there is no reason to suspect that he had difficulty

resuming gainful employment.

       Considering the small amount of d scretionary LFOs imposed in this case and the

unlikelihood that a new sentencing hearin would change the LFO result, we exercise our

discretion and decline to review this alleg d error.

       Because Mr. Gonzalez-Gonzalez i indigent and his appeal has merit, we exercise

our discretion under RCW 10.73.160(1) a d RAP 14. l(a) to not award costs.

       Affirmed.




                                                  Lawrence-Berrey, J.
                                                                                        j
WE CONCUR:




Cooney, J.P.T.

                                             13
