                                                                            FILED
                                                                         JUNE 23, 2020
                                                                 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. 36387-2-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )         UNPUBLISHED OPINION
ELI GALLEGOS,                                 )
                                              )
                     Appellant.               )

       FEARING, J. — Eli Gallegos appeals convictions for possession of a controlled

substance and criminal trespass. He asks that we vacate the first conviction and dismiss

the charges because strict liability for possession of a controlled substance violates due

process. He asks that we vacate his second conviction because a jury instruction

misstated an element of the crime of criminal trespass. We deny his first request and

grant his second request.

                                          FACTS

       The prosecution of Eli Gallegos stems from his visit to Elizabeth Sauer’s residence

on March 4, 2018. The facts begin years before. Gallegos and Elizabeth Sauer’s adult

daughter previously maintained a romantic relationship. After the relationship ended,
No. 36387-2-III
State v. Eli Gallegos


Elizabeth Sauer told Gallegos at least fifteen times he was no longer welcome at her

home. All of these comments occurred before 2017. Sauer never expressly stated to

Gallegos how long her disinvitation lasted.

       On February 24, 2017, Eli Gallegos went to Elizabeth Sauer’s home despite

Sauer’s instruction to stay away. Sauer told Gallegos to leave her premises, but Gallegos

refused. Sauer called 911 to report a trespass. Gallegos then left in his car. Whitman

County Sheriff Deputy Dan Brown responded to Sauer’s call and, on the way to the

home, passed Gallegos’ vehicle. Deputy Brown stopped Gallegos’ car and spoke to

Gallegos during the traffic stop. Brown told Gallegos he lacked permission to return to

Sauer’s home and he would be arrested for trespassing if he did so. Brown handed

Gallegos no paperwork. Brown did not tell Gallegos for how long he could not return to

the Sauer house or that the trespass warning was permanent.

       On March 4, 2018, Eli Gallegos went again to Elizabeth Sauer’s home. Gallegos

once again wished to see Sauer’s adult daughter, who was recently released from jail.

Gallegos wished to offer her money. On Gallegos’ arrival at Sauer’s residence, Sauer

instructed him to leave, and, when he refused, Sauer called the police. Because she

returned inside the residence to call, Sauer does not know how long Gallegos remained

on her property.

       Whitman County Sheriff Sergeant Michael Jordan responded to the March 4, 2018

call from Elizabeth Sauer. Sergeant Jordan went to Eli Gallegos’ home, where Gallegos

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No. 36387-2-III
State v. Eli Gallegos


admitted to earlier being at Sauer’s property. Sergeant Jordan placed Gallegos under

arrest, but did not then handcuff Gallegos. Jordan asked Gallegos questions about events

at Sauer’s home. Gallegos walked toward the kitchen. A struggle between Jordan and

Gallegos, partially captured by Sergeant Jordan’s body camera video, ensued.

       Eli Gallegos and Sergeant Michael Jordan disagree as to what occurred when

Gallegos went to the kitchen, and the video does not resolve the discrepancies. Sergeant

Jordan testified that Gallegos placed his hand in his right front pant pocket as he turned to

the kitchen. Jordan grabbed Gallegos to stop him from entering the kitchen, and the

small struggle ensued. Throughout the struggle, Jordan could see Gallegos’ hands and

saw him trying to hide something in a kitchen drawer. Coins fell from Gallegos’ right

hand, but Gallegos’ kept a firm grasp on a small bag. Content in the bag later tested as

methamphetamine. According to Sergeant Jordan, Gallegos’ hand never entered his

jacket pocket.

       Eli Gallegos testified that the small bag was in the pocket of a jacket, located in

the kitchen, which jacket he went to retrieve after Sergeant Michael Jordan told him he

was under arrest. Gallegos donned the jacket, went to take money from the pocket, and

placed the money in his couch. Gallegos claimed a neighbor, who was in the process of

moving, owned the jacket, and Gallegos disclaimed knowledge of a bag being inside the

pocket of the jacket. Gallegos averred that he wished to purchase a washer and dryer, so

he went to the neighbor’s home to view appliances. The neighbor informed Gallegos that

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No. 36387-2-III
State v. Eli Gallegos


he had a leak in his sink, and Gallegos offered to help fix the leak. While repairing the

sink, Gallegos dampened his shirt. The neighbor handed Gallegos his jacket and a watch

as payment, because the neighbor lacked funds to pay. Unbeknownst to Gallegos, the

jacket pocket contained a package of methamphetamine.

       After being placed in handcuffs, Eli Gallegos, in response to further questioning,

revealed that he remembered being told a year earlier, by Deputy Dan Brown, not to

return to the Sauer residence.

                                      PROCEDURE

       The State of Washington charged Eli Gallegos with a felony, possession of a

controlled substance, methamphetamine, and with a misdemeanor, criminal trespass in

the second degree. Before trial, the trial court conducted a CrR 3.5 hearing, during which

it ruled to admit as trial evidence statements made by Eli Gallegos to Deputy Dan Brown

and Sergeant Jordan Michael.

       We relate some of the testimony at trial because of its importance in determining

whether to reverse the conviction for criminal trespass. Whitman County Sheriff’s

Sergeant Michael Jordan testified:

              Q Did you ask Mr. Gallegos [when you arrested him on March 4,
       2018] if he recalled the contact with Sgt. Jordan about being trespassed?
              A With Sgt. Brown?
              Q Sorry. With Sgt. Brown.
              A Yes, I did.
              Q Okay. And did he recall that—interaction?
              A Yes, he did.

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No. 36387-2-III
State v. Eli Gallegos


              Q Okay.

Report of Proceedings (RP) at 86.

       Eli Gallegos testified during trial:

               Q And so,—how was it that this baggie that we saw here today, how
       did that come to be on you?
               A Well, I—I didn’t even know—the—the—got the jacket, it was
       hanging by the wall. I didn’t know what—was in it. But when he came—I
       was eating tacos, with no shirt, and he told me that was me arrested by
       trespassing, so I asked him—I didn’t know (inaudible) trespassing but—
       put—jacket on, put it on—before we had to go had to pat—(inaudible), and
       I was—I was trying to look for my—my money to get—to put it in the
       couch, and he searched the jacket (inaudible) was a little baggie inside the
       jacket, which I didn’t even know. And that’s—So I told—I told—
               ....
               And—officers came in saying that—I was not—I was arrested
       because I was—(inaudible) supposed to be, which I didn’t even know—

RP at 105, 107 (emphasis added).

       The trial court delivered two jury instructions relevant to this appeal. First, jury

instruction 10, which declared in its entirety:

              To convict the defendant of the crime of criminal trespass in the
       second degree, each of the following elements of the crime must be proved
       beyond a reasonable doubt:
              (1) That on or about 4th day of March, 2018, the defendant
       knowingly entered or remained in or upon the premises of another;
              (2) That the defendant knew that the entry or remaining was
       unlawful; and
              (3) That this act occurred in the Whitman County.
              If you find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a
       verdict of guilty.



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No. 36387-2-III
State v. Eli Gallegos


               On the other hand, if, after weighing all of the evidence, you have a
       reasonable doubt as to any one of these elements, then it will be your duty
       to return a verdict of not guilty.

Clerk’s Papers (CP) at 28 (emphasis added). Jury instruction 11 read:

               A person knows or acts knowingly or with knowledge with respect
       to a fact when he is aware of that fact. It is not necessary that the person
       know that the fact is defined by law as being unlawful or an element of a
       crime.
               If a person has information that would lead a reasonable person in
       the same situation to believe that a fact exists, the jury is permitted but not
       required to find that he acted with knowledge of that fact.
               When acting knowingly as to a particular fact is required to establish
       an element of a crime, the element is also established if a person acts
       intentionally as to that fact.

CP at 29 (emphasis added).

       The State’s closing argument echoed jury instruction 11 and asked the jury to

consider what a reasonable person would know:

               Now a—jury instruction, No. 11, like to draw your attention to that
       second paragraph, there. If a person has information that would lead a
       reasonable person in the same situation to believe that a fact exists the jury
       is permitted but not required to find that he acted with knowledge of that
       fact.
               Well a reasonable person would know after being informed by law
       enforcement that if they return they’re going to be arrested, that they’re
       trespassed from the property. A reasonable person would know that they
       are not supposed to go back to that property, that it would be unlawful for
       them to go back to that property. And a reasonable person would know, if
       a property owner told them 15 to 20 times that they are not welcome, that
       they are not to be here, a reasonable person would know that it would not
       be lawful for them to go to that property. And a reasonable person would
       know, after being told to leave, and that they were going to call the police,
       that they need to leave and that they are not there lawfully.


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No. 36387-2-III
State v. Eli Gallegos


              Mr. Gallegos knew he was not supposed to be there, and he went to
       the property anyway, and he stayed at the property anyway.

RP at 126-27 (emphasis added).

       The jury found Gallegos guilty on the charges of possession of a controlled

substance and criminal trespass.

       At sentencing, the superior court clerk’s file contained a financial information

completed by Eli Gallegos. Gallegos, on this form, requested appointment of an attorney

for the superior court trial at public expense. Gallegos averred he received income of

$1,000 monthly and owned no assets. He marked the form’s box that disclosed he

received income from social security.

       At the beginning of the sentencing hearing, Eli Gallegos’ attorney submitted

paperwork requesting that Gallegos be found indigent for purposes of the appeal. The

sentencing court agreed to the request.

       During sentencing, the trial court asked Eli Gallegos if he was employed. RP 146.

Gallegos replied, “I’m disabled sir. My knees.” RP at 146. Gallegos also stated that he

did not have a car. Gallegos and the sentencing court then exchanged comments:

              [COURT]: Okay. So you’re moving to California? Is that your—
              [GALLEGOS]: Well, I living—I was—I was in L.A. I came—I
       came from L.A. for this case.
              [COURT]: Right.
              [GALLEGOS]: But I rented—apartment, in Pullman, for—for this
       case only, a month to month lease.
              ....


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No. 36387-2-III
State v. Eli Gallegos


               [COURT]: So, are you able to pay $50 a month towards your
       legal/financial obligations?
               [GALLEGOS]: Yes. Yes, sir.
               ....
               [GALLEGOS]: Okay. Can you—Well, okay. I get every check
       every third of the month, so can you make it—every third of the month?

RP at 146-47.

       After the colloquy between the sentencing court and Eli Gallegos, trial defense

counsel asked if the court intended to find Gallegos indigent only for purposes of the

appeal or also for the legal financial obligations. The trial court responded that it did not

find Gallegos indigent for the financial obligations because Gallegos said he was able to

pay $50 per month. After the court’s statement, Gallegos volunteered:

              [GALLEGOS]: I pay all the fines before, everything that I owed the
       court before.

RP at 148.

       The sentencing court imposed a $500 victim assessment obligation and a $2,000

violation of the uniform controlled substance act (VUCSA) fine, for a total of $2,500.

The judgment imposed interest on the obligations from the date of judgment until

payment in full.

                                  LAW AND ANALYSIS

       On appeal, Eli Gallegos challenges both of his convictions and his sentence. He

challenges his conviction for possession of a controlled substance on the theory that

Washington’s strict liability crime of possession violates the due process clause. He

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No. 36387-2-III
State v. Eli Gallegos


challenges his conviction for criminal trespass on the basis of inconsistent jury

instructions. He challenges his legal financial obligations because of his poverty. We

address the assignments of error in such order.

                           Possession of a Controlled Substance

       Eli Gallegos argues that the offense of possession of a controlled substance should

include a mens rea element. Gallegos further contends that, without a mens rea

requirement, the crime violates an accused’s due process rights. According to Gallegos,

the lack of mens rea breaches the presumption of innocence and improperly shifts the

burden to a defendant to prove his or her possession was “unwitting.” He requests that

we interpret the charging statute, RCW 69.50.4013, with a mens rea element or declare

the statute unconstitutional. On the assumption that we rule that the crime of possession

of a controlled substance carries a mens rea element, Gallegos entreats us to determine

that the defense of unwitting possession improperly shifts the burden of proof on the

defendant in violation of due process.

       The State of Washington responds that the state Supreme Court has consistently

ruled that RCW 69.50.4013 does not violate due process despite the absence of a mens

rea requirement and that the defense of unwitting possession does not improperly shift

the burden to the defendant. We agree with the State. Stare decisis demands that we

reject Eli Gallegos’ assignment of error.



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No. 36387-2-III
State v. Eli Gallegos


       RCW 69.50.4013 creates the crime of possession of a controlled substance.

RCW 69.50.4013(1) declares:

              It is unlawful for any person to possess a controlled substance unless
       the substance was obtained directly from, or pursuant to, a valid
       prescription or order of a practitioner while acting in the course of his or
       her professional practice, or except as otherwise authorized by this chapter.

       As acknowledged by Eli Gallegos, under Supreme Court precedent, drug

possession is currently a strict liability crime in Washington State. State v. Bradshaw,

152 Wn.2d 528, 538, 98 P.3d 1190 (2004); State v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d

435 (1981). A conviction for the crime requires no element of knowledge. State v.

Bradshaw, 152 Wn.2d at 537-38. After the State proves the element of unlawful

possession, the accused bears the burden to put forward an affirmative defense of

unwitting possession. State v. Bradshaw, 152 Wn.2d at 538. Current Washington law

holds that the affirmative defense does not improperly shift the burden of proof. State v.

Bradshaw, 152 Wn.2d at 538.

       Eli Gallegos asks that this court follow the example of foreign courts to prevent

the criminalization of innocent behavior by leaving possession of a controlled substance a

strict liability crime. Gallegos emphasizes that Washington State may be the only state

that interprets drug possession as a true strict liability crime. In 2004, when our state

Supreme Court decided State v. Bradshaw, 152 Wn.2d 528, 534 (2004), the court

acknowledged that Washington and North Dakota were the two outlier states that did not


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No. 36387-2-III
State v. Eli Gallegos


require a mens rea element in their respective controlled possession statutes. Gallegos

then observes that the North Dakota legislature thereafter changed state law to include a

mens rea component to the crime. State v. Bell, 649 N.W.2d 243, 252 (N.D. 2002). This

observation backfires, however, because the Washington State legislature has not adopted

legislation to add mens rea as an element to the Washington crime.

       The precursor to Washington’s current controlled possession statute included a

mens rea element. LAWS OF 1923, ch. 47, § 3 declared:

              It shall be unlawful for any person to sell, furnish, or dispose of, or
       have in his possession with intent to sell, furnish, or dispose of any narcotic
       drug or drugs, except upon the written and signed prescription of a
       physician regularly licensed to practice medicine and surgery.

RCW 69.50.4013, the current statute, omits any references to an intent or to knowledge.

In State v. Henker, 50 Wn.2d 809, 314 P.2d 645 (1957), the Supreme Court concluded

that the omission of any mens rea element was a purposeful act of the legislature.

               Had the legislature intended to retain guilty knowledge or intent as
       an element of the crime of possession, it would have spelled it out as it did
       in the previous statute. The omission of the words with intent evidences a
       desire to make mere possession or control a crime.

State v. Henker, 50 Wn.2d at 812.

       Since 1957 when the Supreme Court decided State v. Henker, the high court has

upheld its determination that Washington law criminalizes mere possession of a

controlled substance. State v. Boggs, 57 Wn.2d 484, 485, 358 P.2d 124 (1961); State v.

Cleppe, 96 Wn.2d at 378 (1981); State v. Bradshaw, 152 Wn.2d 528, 533 (2004). Also

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No. 36387-2-III
State v. Eli Gallegos


since 1957, the legislature has not acted to add a mens rea element. When the legislature

fails to act “at some point that silence itself is evidence of legislative approval.” 1000

Friends of Washington v. McFarland, 159 Wn.2d 165, 181, 149 P.3d 616 (2006).

       Eli Gallegos asserts that, under State v. Anderson, 141 Wn.2d 357, 366-67, 5 P.3d

1247 (2000), unless the State positively shows that the legislature intended to omit a

mental element, the courts should imply one. The State responds that, in State v.

Bradshaw, 152 Wn.2d 528 (2004), the Supreme Court rejected this argument, for

purposes of the possession of a controlled substance statute, because the legislative

history of the possession statute demonstrated that the legislature intended no mens rea

element. We agree with the State that the Supreme Court has already rejected Gallegos’

contention.

       Eli Gallegos also asserts that, if this court refuses to read a mens rea element into

the statute, we should declare the statute unconstitutional. Gallegos relies on foreign

cases to argue that the lack of a mens rea element unconstitutionally shifts the burden of

proof to the defendant as the defendant is required to show unwitting possession. Once

again, we must follow Supreme Court precedent. Any declaration of unconstitutionality

should come from the state high court.

       The Washington Supreme Court has ruled that the crime of possession of a

controlled substance does not violate due process principles by reason of the lack of mens

rea. State v. Bradshaw, 152 Wn.2d 528, 538 (2004). The United States Supreme Court

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No. 36387-2-III
State v. Eli Gallegos


has declined to declare a mens rea to be a condition of constitutionality of a criminal

statute. United States v. United States Gypsum Company, 438 U.S. 422, 437-38, 98 S. Ct.

2864, 57 L. Ed. 2d 856 (1978). Many harassment crimes, under RCW 9A.46.060,

include no mens rea element. State v. Joseph, 3 Wn. App. 2d 365, 374, 416 P.3d 738,

review denied (2018). The crime of driving under the influence of intoxicants does not

carry a mens rea element. RCW 46.61.502.

       In line with Supreme Court precedent, this court has held that RCW 69.50.4013,

the possession of a controlled substance statute, does not violate due process even though

the statute does not require the State to prove intent or knowledge to convict an offender

of possession of a small amount of a controlled substance. State v. Schmeling, 191 Wn.

App. 795, 802, 365 P.3d 202 (2015). This court has also observed that the legislature has

the ability to create strict liability crimes that lack a mens rea element. State v.

Schmeling, 191 Wn. App. at 801.

       Eli Gallegos contends that his challenge is unique because he challenges the

constitutional validity of the statute itself. Therefore, the cases outlined above do not

control the issue.

       Eli Gallegos urges this court to follow the concurring opinion in State v. A.M., 194

Wn.2d 33, 448 P.3d 35 (2019) (McCloud, J. concurring). In State v. A.M., a juvenile

defendant challenged her conviction for possession of a controlled substance. She

claimed the admission of a detention center inventory form violated her right against self-

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No. 36387-2-III
State v. Eli Gallegos


incrimination and that the affirmative defense of unwitting possession violated her right

to due process. The high court determined admission of the inventory form was

constitutional error and declined to address the due process argument. The concurring

opinion addressed Washington State’s continued criminalization of defendants for mere

possession of drugs. The concurrence observed that prior Washington cases had

interpreted the possession statute under rules of statutory interpretation as a strict liability

offense, and, therefore, the cases should be read as only statutory interpretation decisions.

The concurrence added:

               A statute’s settled interpretation does not, however, insulate the
       statute from a test of its constitutional validity. I would hold that the settled
       interpretation of Washington’s basic drug possession statute offends due
       process insofar as it permits heavy criminal sanctions for completely
       innocent conduct.

State v. A.M., 194 Wn.2d at 45 (2019).

       We might agree with the concurrence in State v. A.M., but we remain bound by

pronouncements of the Supreme Court as a whole. Based on precedent, we refuse to

declare RCW 69.50.4013 unconstitutional. We affirm Eli Gallegos’ conviction for

possession of a controlled substance.

                                      Criminal Trespass

       Eli Gallegos next assigns error to the trial court’s jury instructions 10 and 11,

which Gallegos contends contradicted one another. In turn, Gallegos contends the

instructions relieved the State of its burden of proof to prove that he knew his egress onto

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No. 36387-2-III
State v. Eli Gallegos


Elizabeth Sauer’s property was unlawful. The State admits that the instructions were

contradictory, but contends the error was harmless. We accept the State’s concession of

instructional error.

       Eli Gallegos did not object to jury instructions 10 and 11 at trial. Jury instructions

that fail to inform the jury of an element of an offense relieve the state from its burden of

proof and constitute an issue of manifest constitutional error which may be raised for the

first time on appeal pursuant to RAP 2.5(a)(3). State v. Stein, 144 Wn.2d 236, 240-41, 27

P.3d 184 (2001). The State does not argue that Eli Gallegos cannot forward this

assignment of error on appeal.

       This court reviews alleged errors in jury instructions de novo. State v. Barnes, 153

Wn.2d 378, 382, 103 P.3d 1219 (2005). Jury instructions are proper when they permit

the parties to argue their theories of the case, do not mislead the jury, and properly inform

the jury of the applicable law. State v. Barnes, 153 Wn.2d at 382. The jury instructions

when read as a whole must make the applicable legal standard evident. State v. Kyllo,

166 Wn.2d 856, 864, 215 P.3d 177 (2009). When an incorrect standard and a correct

standard are given that would leave the jury confused, reversal is required. State v. Kyllo,

166 Wn.2d at 864-65.

       In Eli Gallegos’ trial, jury instruction 10 stated that, to convict Eli Gallegos of

criminal trespass, the jury must find “[t]hat the defendant knew that the entry [onto

Elizabeth Sauer’s property] or remaining [thereon] was unlawful.” CP at 28. This

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No. 36387-2-III
State v. Eli Gallegos


instruction echoes the applicable criminal statute, RCW 9A.52.080(1), that declares: “A

person is guilty of criminal trespass in the second degree if he or she knowingly enters or

remains unlawfully in or upon premises.” (Emphasis added.)

        Jury instruction number 11 read, in part:

               A person knows or acts knowingly or with knowledge with respect
        to a fact when he is aware of that fact. It is not necessary that the person
        know that the fact is defined by law as being unlawful or an element of a
        crime.

CP at 29 (emphasis added). As argued by Eli Gallegos and conceded by the State, jury

instructions 10 and 11 cannot be reconciled as actual knowledge of the unlawfulness is

required to convict for criminal trespass in the second degree. More importantly, jury

instruction 11 relieved the State from the duty to prove an element—that Gallegos

subjectively knew he could not be present at Elizabeth Sauer’s property on March 4,

2018.

        The State argues that the instructional error was harmless. A jury instruction that

omits or misstates the law is deemed erroneous and reviewed under the constitutional

harmless error standard. State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002). The

record must demonstrate beyond a reasonable doubt that the verdict would have been the

same without the error. State v. Brown, 147 Wn.2d. at 341.

        In the context of a jury instruction that omits or mistakes an element of the crime,

the law presents a unique test as to harmless error. Not only must the reviewing court be


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No. 36387-2-III
State v. Eli Gallegos


convinced that the jury would have otherwise convicted the accused, the State must show

that the omitted element or misstated element was supported by “uncontroverted

evidence.” State v. Brown, 147 Wn.2d 330, 341 (2002); State v. Rivera-Zamora, 7 Wn.

App. 2d 824, 828, 435 P.3d 844 (2019); State v. Clark-El, 196 Wn. App. 614, 620, 384

P.3d 627 (2016); State v. Sublett, 156 Wn. App. 160, 189-90, 231 P.3d 231 (2010), aff’d

on other grounds, 176 Wn.2d 58, 292 P.3d 715 (2012). Washington borrows this rule

and may need to follow this rule based on United States Supreme Court precedent under

the due process clause. Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L.

Ed. 2d 35 (1999).

       The omitted crime element harmless error standard echoes the summary judgment

standard in civil proceedings, by which the movant must establish an entitlement to a

judgment based on undisputed evidence. This harmless error standard imposes a higher

burden on the State than other harmless error standards that only require the State to

show overwhelming evidence in support of guilt. The State might present reams of

compelling evidence of guilt, yet some evidence could still show a dispute of facts as to

an element of the crime charged.

       The State astutely observes that the trial testimony uncontrovertibly showed that

Elizabeth Sauer told Eli Gallegos at least fifteen times he was not welcome at her

property. The undisputed evidence established that, in February 2017, one year before

the date of the crime, Deputy Dan Brown informed Gallegos he was not welcome at the

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No. 36387-2-III
State v. Eli Gallegos


Sauer resident and would be arrested on his return. The State emphasizes that, when

Sergeant Michael Jordan arrested Gallegos on March 4, 2018, Gallegos conceded that

one year earlier Deputy Brown told him to stay away from the Sauer home.

       We consider the State’s evidence to be compelling, if not overwhelming, evidence.

But the evidence only establishes that, at some time before March 4, 2018, Eli Gallegos

knew he should not be present on Elizabeth Sauer’s property. The evidence does not

necessarily establish that Gallegos knew he could not be present on March 4, 2018. More

than one year had passed since someone had last told Gallegos not to return to the Sauer

residence. Neither Deputy Dan Brown nor Elizabeth Sauer had expressly told Gallegos

that he could never return to the home. According to Michael Jordan’s testimony,

Gallegos told Sergeant Michael Jordan, on March 4, that Deputy Brown told him a year

earlier not to return to the property, but Gallegos never conceded to Jordan that Brown

instructed him never to return. Gallegos never conceded that he knew he was still not

allowed at Sauer’s home.

       We conclude that Eli Gallegos presented some contravening evidence as to his

actual knowledge on March 4, 2018 that he would be trespassing if he visited Elizabeth

Sauer’s residence. Gallegos testified that he did not know he was no longer welcome on

March 4.

       The State accurately responds that Eli Gallegos’ testimony as to a lack of

knowledge was confusing and rambling. We agree. But the rule of harmless error does

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No. 36387-2-III
State v. Eli Gallegos


not require that the accused present articulate evidence controverting an element of the

crime. Otherwise, mumbling, garbling, stammering, or incoherent accused or defendants

whose primary language is one other than English could not benefit from the harmful

error protections.

       We note that some evidence suggests that Eli Gallegos lingered, on Elizabeth

Sauer’s property, after Sauer told him to leave on March 4, 2018. Nevertheless, the State,

in its brief, does not employ these facts to argue harmless error. Instead the State writes:

              In this case, the error was harmless beyond a reasonable doubt
       because the uncontroverted evidence was that: 1) the owner of the property
       told Mr. Gallegos fifteen to twenty times that he was not allowed on her
       property, 2) he was never invited to her property after being trespassed, 3)
       she never gave him any indication she was going to have the trespass lifted,
       4) Sgt. Brown told Mr. Gallegos that he was trespassed and if he returned to
       the property he would be arrested and Mr. Gallegos said he understood, and
       5) on the day of the incident Mr. Gallegos admitted that he remembered the
       conversation with Sgt. Brown about being trespassed.

Br. of Resp’t at 16-17. Therefore, we do not analyze whether Sauer’s testimony of

lingering is uncontroverted. The State may not employ this testimony to assert harmless

error because Sauer immediately went to her phone to call the police and did not look to

see how much longer Gallegos remained on her property.

       We reverse and remand for a new trial Eli Gallegos’ conviction for criminal

trespass in the second degree because the contradictory jury instructions were not

harmless error.



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No. 36387-2-III
State v. Eli Gallegos


                                        VUCSA Fine

       Eli Gallegos assigns three errors to the sentencing court’s imposition of legal

financial obligations. First, he contends that the trial court erred by not conducting a full

inquiry into his indigency before imposing the $2,000 VUCSA fine when the record

indicates he was indigent. He asks that this court either strike the fine or remand for an

adequate inquiry. The State concedes that we should remand the imposition of legal

financial obligations for further consideration by the trial court.

       Under State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), trial judges have a

statutory obligation to consider former RCW 10.01.160(3) at sentencing and make an

individualized determination of the defendant’s ability to pay discretionary legal financial

obligations. State v. Blazina, 182 Wn.2d at 837. Nevertheless, this court has held that, in

contrast, a fine does not require the trial court to conduct an inquiry into a defendant’s

ability to pay. State v. Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). This court

has, however, strongly urged trial judges to consider the defendant’s ability to pay before

imposing fines. State v. Clark, 191 Wn. App. at 376.

       The sentencing court imposed the VUCSA fine on Eli Gallegos pursuant to the

Uniform Controlled Substances Act, chapter 69.50 RCW.

              On a second or subsequent conviction for violation of any of the
       laws listed in subsection (1) of this section, the adult offender must be fined
       two thousand dollars in addition to any other fine or penalty imposed.
       Unless the court finds the adult offender to be indigent, this additional fine
       may not be suspended or deferred by the court.

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State v. Eli Gallegos



RCW 69.50.430(2). Subsection one, within the meaning of the statute, includes a

conviction under RCW 69.50.4013. RCW 69.50.430(1). Division Three of this court has

determined that the fine under RCW 69.50.430(2) is mandatory. State v. Malone, 193

Wn. App. 762, 764 n.2, 376 P.3d 443 (2016); State v. Mayer, 120 Wn. App. 720, 727, 86

P.3d 217 (2004). Nevertheless, on a finding of indigency, the trial court may exercise

discretion to waive the fine. State v. Mayer, 120 Wn. App. at 727. The court determines

indigency at the time of sentencing. State v. Mayer, 120 Wn. App. at 728.

       Because we otherwise remand the prosecution to the trial court for a new trial on

the charge of criminal trespass and, in turn, for resentencing, we ask the resentencing

court to review Eli Gallegos’ financial situation at the time of resentencing. In turn, we

ask the court to assess whether to waive the VUCSA fine.

                                          Interest

       Eli Gallegos next challenges the judgment and sentence’s imposition of interest on

the imposed legal financial obligations. House Bill 1783 eliminated the accrual of

interest on nonrestitution legal financial obligations. State v. Ramirez, 191 Wn.2d 732,

747, 426 P.3d 724 (2018). The trial court did not impose any restitution in this case. The

State concedes error. On remand, the resentencing court should remove interest on any

financial obligations.




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State v. Eli Gallegos


                                   Antiattachment Clause

       Eli Gallegos requests that the judgment and sentence should be revised to prohibit

the collection of legal financial obligations from funds protected by the social security

antiattachment statute. The federal antiattachment provision of the Social Security Act,

42 U.S.C. § 407(a) provides:

               The right of any person to any future payment under this subchapter
       shall not be transferable or assignable, at law or in equity, and none of the
       moneys paid or payable or rights existing under this subchapter shall be
       subject to execution, levy, attachment, garnishment, or other legal process,
       or to the operation of any bankruptcy or insolvency law.

Under this provision, federal law prohibits courts from ordering defendants to pay legal

financial obligations if the person’s only source of income is social security disability.

City of Richland v. Wakefield, 186 Wn.2d 596, 609, 380 P.3d 459 (2016).

       In State v. Catling, 2 Wn. App. 2d 819, 826, 413 P.3d 27 (2018), aff’d in relevant

part, 193 Wn.2d 252, 438 P.3d 1174 (2019) the trial court imposed legal financial

obligations on defendant Jason Catling. Catling’s sole source of income was from social

security benefits as he suffered from a debilitating defect which prevented him from

working. This court held that the antiattachment provision prevents levying against

social security disability proceeds, but it does not address the debt itself. The state

Supreme Court affirmed and remanded to the trial court for it to revise the judgment and

sentence and repayment order to indicate that legal financial obligations may not be



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State v. Eli Gallegos


satisfied out of any funds subject to the Social Security Act’s antiattachment statute.

State v. Catling, 193 Wn.2d 252 at 826.

       On remand, the sentencing court should revise the judgment and sentence and

repayment order to state that funds protected under the antiattachment statute should not

be used toward payment of legal financial obligations.

                                     CONCLUSIONS

       We affirm Eli Gallegos’s conviction for possession of a controlled substance. We

vacate his conviction for criminal trespass and remand this second charge for a new trial.

We also remand for resentencing consistent with this opinion.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                              _________________________________
                                              Fearing, J.

WE CONCUR:



______________________________
Siddoway, J.


______________________________
Lawrence-Berrey, J.


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