                                                                         FILED
                                                                     OCTOBER 2, 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. 35613-2-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JULIAN JESUS GARCIA,                          )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Julian Jesus Garcia appeals from two conditions of his judgment

and sentence. We agree with one of his arguments and reverse the requirement that he

obtain a chemical dependency assessment. We otherwise affirm.

                                          FACTS

       Mr. Garcia entered guilty pleas to one count of third degree assault and one count

of fourth degree assault in accord with the procedures set forth in Alford v. North

Carolina, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Both offenses were

denominated as domestic violence crimes.
No. 35613-2-III
State v. Garcia


       The court selected the first offender waiver of presumptive sentence and imposed

a term of 37 days in jail, with credit for 37 days served to that point. The court also

imposed a 12 month term of community supervision that included two conditions that are

at issue here. First, the court directed that Mr. Garcia “not associate with any individuals

who are on probation or parole.” Clerk’s Papers at 29. The defense did not object to this

provision.

       Second, the court directed that Mr. Garcia be assessed for chemical dependency

and comply with all recommendations. Mr. Garcia personally objected to this

requirement, telling the court that drugs had no role in the case at all and noting that the

police report said the same thing. The prosecutor responded by advising the court that

another case against Mr. Garcia involving methamphetamine had recently been dismissed.

The trial court did not address this dispute when it selected the assessment condition.

       Mr. Garcia appealed to this court. A panel considered the case without hearing

argument.

                                        ANALYSIS

       This appeal presents challenges to the two noted sentence conditions. We will

consider the challenges together.

       We turn initially to the governing statutes. In addition to legislatively specified

conditions, the court has authority to impose conditions of community supervision that

are related to the crimes for which the defendant was convicted. State v. Riley, 121

                                              2
No. 35613-2-III
State v. Garcia


Wn.2d 22, 36-37, 846 P.2d 1365 (1993). Appellate courts will review crime-related

prohibitions for abuse of the trial court’s discretion. Id. at 37. Discretion is abused if it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971). However, any condition that is beyond the trial

court’s authority to impose also constitutes an abuse of discretion. State v. Sanchez

Valencia, 169 Wn.2d 782, 791-792, 239 P.3d 1059 (2010).

       Primarily at issue is RCW 9.94A.703(3). It provides:

       Discretionary conditions. As part of any term of community custody, the
       court may order an offender to:
              (a) Remain within, or outside of, a specified geographical boundary;
              (b) Refrain from direct or indirect contact with the victim of the
       crime or a specified class of individuals;
              (c) Participate in crime-related treatment or counseling services;
              (d) Participate in rehabilitative programs or otherwise perform
       affirmative conduct reasonably related to the circumstances of the offense,
       the offender’s risk of reoffending, or the safety of the community;
              (e) Refrain from possessing or consuming alcohol; or
              (f) Comply with any crime-related prohibitions.

This statute was made relevant to Mr. Garcia’s sentence by the use of the first offender

sentencing alternative, RCW 9.94A.650. In addition to imposing some sentence

conditions of its own, the first offender alternative incorporates the discretionary

conditions of RCW 9.94A.703. See RCW 9.94A.650(4).

       The scope of these discretionary conditions was at issue in the case on which Mr.

Garcia places primary reliance, State v. Riles, 135 Wn.2d 326, 957 P.2d 655 (1998).

Riles was a consolidation of the appeals of Mr. Riles and Mr. Gholston; Riles had been

                                               3
No. 35613-2-III
State v. Garcia


convicted of raping a young child, while Mr. Gholston was convicted of raping a young

adult. Id. at 332-338. In both cases, the offenders were prohibited from having contact

with children. Known at that point as “special conditions,” the discretionary conditions

were found in former RCW 9.94A.120(9)(c) (1996). See Riles, 135 Wn.2d at 335

(quoting statute).1 Five of the six special conditions in existence then are found,

verbatim, in current RCW 9.94A.703(3).2

       The Riles court had no difficulty in upholding the condition that Mr. Riles not

congregate where children regularly gathered. The restriction on Mr. Gholston did not

fare as well. Looking at the special conditions of former §120(9)(c), the court

commented that while the language of those conditions did not expressly require that they

be crime-related, only the “no alcohol” provision was not crime-related. 135 Wn.2d at

349-350. Thus, the provision limiting contact with specific classes of individuals “seems

in context to require some relationship to the crime.” Id. at 350. The court determined

that it was “not reasonable” “to order even a sex offender not to have contact with a class

of individuals who share no relationship to the offender’s crime.” Id.


       1
           The conditions existing at the time of Riles were repealed and reenacted in a new
statute, RCW 9.94A.700(5), by Laws of 2000, ch. 28, § 22. Subsequently, those
conditions were repealed in 2008 and reenacted in their current form in another new
statute, RCW 9.94A.703, by Laws of 2008, ch. 231, § 9. At that time, current condition
(3)(d) was enacted for the first time and former condition (3)(vi), addressing sex
offenders, was removed.
         2
           Current conditions (a), (b), (c), (e), and (f) were found in subsections (i), (ii),
(iii), (iv), and (v) of former RCW 9.94A.120(9)(c).

                                              4
No. 35613-2-III
State v. Garcia


       Based on this ruling, Mr. Garcia argues that both the no contact and treatment

conditions are invalid because they are not crime-related prohibitions. In contrast, the

State contends that the no contact condition need not be crime-related under the plain

language of the statute. Although appellant’s briefing demonstrates that our case law is

inconsistent3 on that point, Riles clearly applied the crime-related prohibition limitation to

the no contact “special condition,” a provision that lives on in RCW 9.94A.703(3)(b). In

light of that treatment by Riles, the State’s argument is untenable.4

       Riles specifies why the no contact provision must be crime-related. Critically, the

Riles court expressed its reasoning after reaching the conclusion that it was unreasonable



       3
         For several reasons, our inconsistency is understandable. First, the Riles
observation that only the ban on alcohol use is not crime related is incorrect—the
geographic limitations that can be imposed on an offender are for the purpose of allowing
supervision of the offender and are not crime-related. See DAVID BOERNER, SENTENCING
IN WASHINGTON: COMMUNITY SUPERVISION § 4.4, at 4-4 (1985). Second, the addition in
2008 of RCW 9.94A.703(d) authorized courts to require rehabilitative treatment when
necessitated by the circumstances of the offense, the need to prevent re-offense, or the
safety of the community. The latter two grounds are not limited to crime-related
conditions. Finally, the statute is not a model of drafting clarity. In light of current
subsection (f) [former subsection (v)] expressly authorizing the imposition of crime-
related prohibitions, it is redundant to specify other conditions that also must be crime-
related. It would have been simpler and clearer just to have used subsection (f) in
conjunction with any non-crime-related conditions the legislature desired to authorize
instead of setting forth specific additional crime-related prohibitions.
       4
         Likely due to RCW 9.94A.650(4), the State does not argue that the first offender
waiver itself independently authorizes these challenged conditions. We therefore express
no opinion on this point, but simply note that the original understanding of the first
offender waiver was to allow probationary conditions for certain offenders who are
undergoing treatment. See BOERNER, supra, § 4.5, at 4-6.

                                              5
No. 35613-2-III
State v. Garcia


to prohibit Mr. Gholston from associating with children. Noting that any restriction on

the freedom of association must be “necessary to accomplish the essential needs of the

state and the public order,” the court concluded that there was no showing that children

needed protection from Mr. Gholston. 135 Wn.2d at 350. Because the order was not

essential in Mr. Gholston’s case, it was not justified, although a similar order in Mr.

Riles’s case did not constitute an infringement of his constitutional rights. Id. We

believe that Riles placed a limiting construction on the no contact provision in order to

avoid any potential infringement of Mr. Gholston’s First Amendment rights.

       With this understanding of Riles in mind, we finally return to Mr. Garcia’s case.

He contends that the prohibition on association with anyone on “probation or parole”5 is

not a crime-related condition and is therefore invalid despite his failure to challenge the

condition in the trial court. The short answer is that we previously rejected this argument

in another case where an offender also was sentenced under the first offender waiver.

State v. Acevedo, 159 Wn. App. 221, 233, 248 P.3d 526 (2010). Mr. Garcia has not

provided us any reason to overrule Acevedo. This prohibition is a time-tested standard


       5
        This archaic language arguably does not extend to those on community
supervision pursuant to modern felony convictions. Washington abolished probationary
sentences for felony cases in 1984. See RCW 9.94A.575. Those sentences were imposed
according to the authorization of RCW 9.92.060, et seq., and RCW 9.95.200 et seq.
Presumably, only those sentenced on felony convictions entered in other states or in
Washington before 1984, or those who have received probationary sentences for
misdemeanor offenses in this state, might be subject to “probation or parole” at this time.
The addition of the words “community supervision” would clarify the trial court’s intent.

                                              6
No. 35613-2-III
State v. Garcia


that is recommended for use in the federal courts and long has been considered

constitutional. E.g., United States v. King, 608 F.3d 1122, 1128-1129 (9th Cir. 2010);

United States v. Napulou, 593 F.3d 1041 (9th Cir. 2010).

       We believe that the trial court can choose to impose this crime-related condition.

For a first time offender like Mr. Garcia, a limit on association with other recent

offenders currently on probation or parole would serve to improve his chances of

avoiding a rapid return to criminal behavior. For all offenders, we also believe this

limitation on association would serve to improve the offender’s odds of not re-offending,

furthering one of the goals of RCW 9.94A.703(3)(d). Accordingly, the trial court did not

err in determining that Mr. Garcia should limit his association with those on probation or

parole.6

       Mr. Garcia also argues that the requirement that he undergo an assessment and

possible substance abuse treatment is not crime-related because this offense was not the

product of substance abuse. For a slightly different reason, we agree that the provision

should be stricken.




       6
         If the limitation would have genuinely impacted Mr. Garcia’s right of
association, we presume he would have alerted the trial court to the specific problem so
that a more nuanced provision could be ordered. For instance, an offender whose spouse
was on probation or had a felony record would have a strong argument that the spouse
should be exempted from the prohibition.

                                             7
No. 35613-2-III
State v. Garcia


       At sentencing, a “trial court may rely on no more information than is admitted by

the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of

sentencing.” RCW 9.94A.530(2). This “real facts doctrine” has existed from the

beginning of the Sentencing Reform Act of 1981. See former RCW 9.94A.370 (1984).

       Here, the State did not prove that Mr. Garcia was involved with any controlled

substances during this offense or at an earlier time. He expressly disputed that drugs

were involved in the assault case and pointed to the police reports as supporting evidence.

In contrast, all the prosecutor could point to was the fact that a previous

methamphetamine case had been dismissed.

       The parties were free to enter a plea agreement that included an assessment and/or

drug treatment as a condition of the first offender sentence. They did not. Instead, the

defendant disputed the existence of a drug problem and the State provided no evidence to

the contrary. On this record, no facts about the offense or about Mr. Garcia supported the

need for any assessment. There was no basis for finding that one was appropriate under

either RCW 9.94A.703(3)(c) or (d).

       There being no evidence in the record to support the condition, it must be stricken.

Accordingly, we affirm the no contact provision and remand to strike the assessment

condition.




                                              8
No. 35613-2-111
State v. Garcia


      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.




WE CONCUR:



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       Lawrence-Berrey, .J. C.. � .




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