                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 29, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

 STATE OF WASHINGTON,                                              No. 50782-0-II

                               Respondent,

        v.

 GABRIEL JOSEPH MORALES,                                     UNPUBLISHED OPINION

                               Appellant.

       LEE, A.C.J — Gabriel Joseph Morales appeals his convictions and sentence for unlawful

possession of a controlled substance with intent to deliver, unlawful possession of a controlled

substance, unlawful possession of a firearm, and possession of a stolen firearm. He argues (1) the

trial court abused its discretion in failing to rule on his requests to proceed pro se, (2) he was

provided ineffective assistance of counsel, and (3) certain cost provisions in his judgment and

sentence are no longer authorized and should be stricken. Morales also raises numerous issues in

a statement of additional grounds (SAG). We affirm Morales’s convictions, but remand to the

sentencing court to strike the imposed criminal filing fee and Deoxyribonucleic acid (DNA) fee.
No. 50782-0-II


                                              FACTS

A.     COMMUNITY CUSTODY VIOLATIONS

       Morales was placed on community custody1 supervision in April 2015. As a condition of

community custody, Morales was prohibited from possessing controlled substances without a valid

prescription. He was also prohibited from possessing a firearm, ammunition, or explosives.

       In December, Morales’s supervising community corrections officer (CCO), Sara

Thompson, received multiple reports that Morales was violating the terms of his community

custody. Law enforcement reported that Morales was suspected in a shooting incident because a

pool of the victim’s blood was discovered on Morales’s front porch. Approximately a week later,

the mother of the leaseholder for Morales’s residence called CCO Thompson and complained of

“drug traffic” in and out of Morales’s apartment. 1 Verbatim Report of Proceedings (VRP) (Jan.

5, 2017) at 23. The informant had witnessed drug users and sellers entering and leaving Morales’s

apartment at all hours of the night. The informant also told CCO Thompson that Morales likely

had a gun in his house and was rumored to have shot someone.

       Around this same time, Morales’s drug treatment provider informed CCO Thompson that

several of Morales’s recent urinalysis samples had tested positive for opiates. Morales’s treatment

provider also noted that Morales had repeatedly failed to attend his required drug treatment classes.




1
   “Community custody” is a portion of an offender’s sentence that is served in the community
subject to controls placed on the offender’s movement and activities by the Department of
Corrections. RCW 9.94A.030(5). The details of Morales’s underlying convictions that resulted
in community custody placement are not contained in the record before this court.


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No. 50782-0-II


B.       SEARCH OF MORALES’S RESIDENCE

         Based on the information received, CCO Thompson suspected that Morales had violated

the terms of his community custody by possessing and using controlled substances and a firearm.

CCO Thompson and two other CCOs went to Morales’s residence and knocked on the door.

Morales and Faye Reynolds answered the door. The officers detained Morales and searched the

residence.

         The officers found various drug paraphernalia, including a digital scale, small plastic

baggies, and hypodermic needles. They also found packages of narcotics in the pocket of a jacket

lying on Morales’s bed.

         CCO Thompson found an empty gun magazine in Morales’s bedroom. Multiple people,

including Reynolds, told CCO Thompson that Morales had been driving the vehicle parked outside

of his residence. Reynolds also stated that Morales stored his gun inside of the vehicle. CCO

Thompson found the keys to the vehicle on Morales’s desk. CCO Thompson used the keys to

unlock the vehicle parked outside and found a handgun under the driver’s seat.

         Tacoma Police Officer Jeff Thiry was also on scene during the search of Morales’s home.

Officer Thiry placed the recovered firearm and narcotics into evidence. Officer Thiry then advised

Morales of his constitutional Miranda2 rights and placed Morales in the back of his patrol vehicle.

As he was seated in the patrol car, Morales stated, “ ‘I know I am screwed. I am headed for prison.’

” 9 VRP (Jan. 11, 2017) at 217. Morales then told Officer Thiry that he had bought the firearm

approximately a week before the search. Officer Thiry asked Morales whether he knew the gun




2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                                 3
No. 50782-0-II


had been reported stolen, and Morales responded, “ ‘Aren’t most guns you get off the streets

stolen?’ ” 9 VRP (Jan. 11, 2017) at 217.

       Morales also told Officer Thiry that he sold drugs because he “ ‘had to do something to

make money’ ” after he lost his job. 9 VRP (Jan. 11, 2017) at 218. And Morales told Officer

Thiry that he had the firearm because “ ‘I sell drugs and I need it for protection.’ ” 9 VRP (Jan.

11, 2017) at 218.

C.     CrR 3.5 AND CrR 3.6 MOTIONS

       The State charged Morales with two counts of unlawful possession of a controlled

substance with intent to deliver, one count of first degree unlawful possession of a firearm, and

one count of possession of a stolen firearm. Morales filed pretrial motions to suppress the

statements and evidence obtained as a result of the search under CrR 3.5 and CrR 3.6.

       Officer Thiry and CCO Darrin Patterson, who assisted CCO Thompson in the search of

Morales’s home, testified at the CrR 3.5 hearing. Officer Thiry testified to the above discussed

statements that Morales made to him following arrest. CCO Patterson testified that Morales

initially denied ownership of the narcotics found inside of the jacket. However, later Morales

admitted to CCO Patterson and the other CCOs present during the search that the drugs were his.

       At the CrR 3.6 hearing, CCO Thompson testified to the facts discussed above.

       The trial court ruled that the search of Morales’s home was constitutional and that

Morales’s statements were made voluntarily after being advised of his constitutional rights.

Accordingly, the trial court denied Morales’s motion to suppress the evidence seized from his

home and the statements Morales made to law enforcement.




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No. 50782-0-II


D.     REQUESTS FOR NEW DEFENSE COUNSEL

       On the morning of his scheduled trial date, Morales asked for a continuance in order to

retain private counsel. Morales informed the court that his current attorney was ineffective because

he had failed to interview witnesses that could testify on Morales’s behalf. The trial court denied

Morales’s motion for a continuance.

       The next day, Morales again addressed the trial court and voiced concern over his counsel’s

performance. Morales criticized his counsel for failing to call two witnesses for the CrR 3.5

hearing that Morales believed would have been favorable to his defense.

       Counsel addressed the trial court and explained that the two witnesses Morales wanted to

call were Kimberly Hector and Reynolds. Counsel had spoken with Hector the day before trial in

the courthouse hallway. Counsel had to leave the conversation to go to court, but asked Hector to

briefly wait for him in the hallway. When counsel returned a few minutes later, Hector had left.

Counsel’s defense investigator attempted to contact Hector multiple times that night. The defense

investigator also went to Hector’s house. The defense investigator learned that Hector was

unavailable. Counsel also informed the court, “[F]rankly, based upon what I learned from her, I

probably wouldn’t be calling her anyway.” 3 VRP (Jan. 10, 2017) at 132.

       As to Reynolds, counsel explained that she was currently in jail. Counsel expressed that

he had “some trepidation” about calling Reynolds, but that he had subpoenaed her based on

Morales’s request.3 3 VRP (Jan. 10, 2017) at 132.




3
  The next day after the hearing, defense counsel was advised by Reynolds’s attorney that she did
not wish to testify and if brought to court, Reynolds would assert her Fifth Amendment right to
remain silent.


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No. 50782-0-II


       The trial court advised Morales that he had “a very competent attorney” who was working

with him, and that counsel was doing the best he could to pursue the issues Morales raised. 3 VRP

(Jan. 10, 2017) at 133. The court declined to continue the trial based on Morales’s grievances with

counsel.

       After the first two witnesses testified at trial, Morales made a motion “ ‘to go pro se to

represent myself or for a new lawyer.’ ” 9 VRP (Jan. 11, 2017) at 196. Morales wrote out his

motion, and his counsel read the motion to the court. Morales’s motion stated:

       I want Motion to go pro se[] or represent [myself] or for new lawyer.

       Bases of       1. Not helping
                      2. Not knowing my case.
                      3. Not speaking for me like a defense attorney [is] supposed to[]
                      4. Knowing of his errors. [N]ot trying to fix or do anything to let
                      courts know of mistake.
                      5. We should have a Gameplan[] to beat this case!!! ask this
                      lawyer what his Game plan is.
                      6. Not putting forth the fact that I did not live there and car not
                      mine.
Exhibit 9.

Morales also wrote:

       When I say motion I mean: I write out what the problem is and explain out loud or
       at least be able [t]o let my [t]houghts be heard. Not no one else’s thoughts if I’m
       in contempt then arrest me but not letting [t]he defend[a]nt in his trial have his right
       to fairness like letting false testimony [b]e ad[]mitted in court and not [h]aving
       either a[n] [a]ttorney or letting [t]he defendant [t]ell the [j]udge and [t]he motion
       [b]e heard is unconstit[ut]iona[l].

Exhibit 10.

       In response to Morales’s motion, defense counsel again explained that the witnesses

Morales wanted to call were unavailable. Morales addressed the trial court and solely complained

about his counsel’s performance. Morales claimed that his counsel was “not defending [him]” and



                                                  6
No. 50782-0-II


“ha[d] no defense.” 9 VRP (Jan. 11, 2017) at 200. Morales also criticized the way his counsel

had cross-examined the first two witnesses who had testified at trial. The trial court responded

that it did not accept Morales’s premise that his counsel had failed to defend him. The trial court

advised that counsel had explained his reasons for not calling Morales’s suggested witnesses, and

that an attorney could not call a witness simply to have that witness assert her Fifth Amendment

right in front of a jury. Morales interjected and stated, “I don’t believe that happened.” 9 VRP

(Jan. 11, 2017) at 202.

       Morales also interrupted and claimed that he told counsel about these two witnesses more

than a year ago. Counsel responded, “[a]ctually, and I don’t want to talk about what you and I

have discussed, but it was a relatively recent occurrence.” 9 VRP (Jan. 11, 2017) at 202-03.

       At no point during this discussion did Morales reference his written request to represent

himself at trial. The discussion solely focused on Morales’s discontent with his counsel.

E.     RELEVANT PORTIONS OF TRIAL

       CCO Thompson, CCO Patterson, and Officer Thiry testified at trial. CCO Thompson

testified to the search of Morales’s residence as discussed above. CCO Thompson did not testify

about any of the informant tips that provided the basis for the search.

       CCO Patterson testified that he overheard Morales admit ownership of the drugs to Officer

Thiry. Officer Thiry also testified to the above discussed statements that Morales made to him.

       The jury found Morales guilty of unlawful possession of a controlled substance with intent

to deliver, first degree unlawful possession of a firearm, and one count of possession of a stolen

firearm.   The jury found Morales not guilty of the second count of unlawful possession of a




                                                 7
No. 50782-0-II


controlled substance with intent to deliver, but found him guilty of the lesser included crime of

unlawful possession of a controlled substance.4

F.     SENTENCING

       Morales made a “motion to go pro se” prior to sentencing. VRP (May 5, 2017) at 2. The

trial court heard the motion approximately two weeks before Morales’s scheduled sentencing date.

At the hearing, Morales’s counsel advised the court that Morales was either requesting a new

attorney or requesting to self-represent.

       Morales addressed the trial court and explained that he did not want to be represented by

his attorney any longer. Morales informed the court that he had filed three bar complaints against

his attorney, and accused his attorney of violating his constitutional rights and failing to help him.

At no point during this discussion did Morales reference his request to proceed pro se at sentencing.

       The trial court acknowledged that Morales had issues with his counsel over the course of

his case. However, the court explained that Morales’s trial counsel effectively cross-examined the

witnesses and defended Morales during trial. The trial court ruled that it was not going to substitute

a new attorney to represent Morales at sentencing.

       Approximately two weeks later, Morales retained new counsel, and the trial court entered

an order authorizing the substitution of counsel. Morales’s new attorney filed a motion for a new

trial, which the court denied. Morales’s new attorney also represented Morales at sentencing.




4
 The jury also returned a special verdict finding that Morales was armed with a firearm during the
commission of the crimes of unlawful possession of a controlled substance with intent to deliver
and unlawful possession of a controlled substance.


                                                  8
No. 50782-0-II


       The court sentenced Morales to 226 months of confinement. The sentencing court also

imposed a $500.00 crime victim assessment fee, $100.00 DNA database fee, and a $200.00

criminal filing fee. The court later entered an order of indigency and appointed an attorney at

public expense to represent Morales in an appeal.

       Morales appeals.

                                           ANALYSIS

A.     RIGHT TO PROCEED PRO SE

       Morales argues that the trial court abused its discretion when it failed to consider or rule

on his requests to proceed pro se. We disagree.

       1.      Standard of Review

       We review the trial court’s denial of a request for pro se status for an abuse of discretion.

State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714 (2010). A court abuses its discretion if its

decision is manifestly unreasonable, rests on unsupported facts, or was reached by applying an

incorrect legal standard. Id. A trial court also abuses its discretion if it fails to exercise its

discretion, such as when it fails to reach a necessary decision. State v. Stearman, 187 Wn. App.

257, 265, 348 P.3d 394 (2015).

       2.      Morales’s Requests were Equivocal

       The Washington Constitution and the United States Constitution guarantee criminal

defendants the right to self-representation. State v. Curry, 191 Wn.2d 475, 482, 423 P.3d 179

(2018). Defendants are afforded this fundamental right despite the potentially detrimental impact

on the defendant and the administration of justice. Madsen, 168 Wn.2d at 503. “The unjustified




                                                  9
No. 50782-0-II


denial of this right requires reversal.” State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997),

cert. denied, 523 U.S. 1008 (1998).

       At the same time, “[t]he right to proceed pro se is neither absolute nor self-executing.”

Madsen, 168 Wn.2d at 504. The defendant must unequivocally request to proceed pro se before

he or she can be permitted to do so. Curry, 191 Wn.2d at 482-83. Whether a defendant’s request

for self-representation is unequivocal is determined on a case-by-case basis, considering the

defendant, the circumstances, and the request. Id. at 485. “[A]n unequivocal request to proceed

pro se requires a defendant to ‘make an explicit choice between exercising the right to counsel and

the right to self-representation so that a court may be reasonably certain that the defendant wishes

to represent himself.’ ” Id. at 490 (quoting United States v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994)).

In order for the trial court to be reasonably certain that a defendant wishes to represent himself,

the trial court must first determine whether (1) a request was made at all, and (2) if so, whether the

defendant’s request reflected a desire to exercise the right to self-representation. Id.

       The trial court is required to “indulge in ‘every reasonable presumption against a

defendant’s waiver of his or her right to counsel.’ ” Madsen, 168 Wn.2d at 504 (internal quotation

omitted) (quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999), cert. denied, 531

U.S. 1125 (2001)). However, “[t]his presumption does not give a court carte blanche to deny a

motion to proceed pro se.” Id. The limited grounds upon which a trial court may deny defendant’s

request to proceed pro se are a finding that the request is equivocal, untimely, involuntary, or made

without a general understanding of the consequences of such request. Id. at 504-05. The trial

court’s finding “must be based on some identifiable fact.” Id. at 505.




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No. 50782-0-II


       Our Supreme Court has noted that, “[w]hile a request to proceed pro se as an alternative to

substitution of new counsel does not necessarily make the request equivocal . . . such a request

may be an indication to the trial court, in light of the whole record, that the request is not

unequivocal.” Stenson, 132 Wn.2d at 740-41 (citing Hamilton v. Groose, 28 F.3d 859, 862 (8th

Cir. 1994), cert. denied, 513 U.S. 1085 (1995); Adams v. Carroll, 875 F.2d 1441, 1445 (9th Cir.

1989); People v. Williams, 220 Cal. App. 3d 1165, 269 Cal. Rptr. 705, 707-08 (1990)). Such is

the case here.

       Although Morales made two motions to proceed pro se, both requests were an alternative

to obtaining substitute counsel. Morales repeatedly voiced his frustration with his court-appointed

counsel over the course of his case.

       After the first two witnesses had testified at trial, Morales made “ ‘a motion to go pro se to

represent myself or for a new lawyer.’ ” 9 VRP (Jan. 11, 2017) at 196 (quoting Exhibit 9). Given

that trial had already started, this request was untimely. See Madsen, 168 Wn.2d at 504 (A

defendant’s request to proceed pro se must be unequivocal and timely). The request was also

equivocal.   When given the opportunity to address his motion, Morales solely focused on his

frustration with his counsel, and his desire to have new counsel appointed to represent him.

Morales repeatedly asserted that his counsel had failed to defend him, failed to discredit the

witnesses who testified against him, and failed to contact other witnesses that Morales suggested.

At no point did Morales request to proceed pro se.

       Morales made his second request to proceed pro se just before sentencing as an alternative

to obtaining substitute counsel. When given the opportunity to discuss his request, Morales solely

complained of his attorney’s performance at trial. He told the trial court that he had filed multiple



                                                 11
No. 50782-0-II


bar complaints against his attorney, and accused his attorney of violating his constitutional rights

and failing to defend him. Again, Morales never referenced his request to proceed pro se during

this discussion.

        As explained above, “[t]he right to proceed pro se is neither absolute nor self-executing.”

Madsen, 168 Wn.2d at 504. Before Morales could be permitted to proceed pro se, he needed to

make an unequivocal request to do so. See Curry, 191 Wn.2d at 482-83 (“[A] defendant must

unequivocally request to proceed pro se before he or she will be permitted to do so.”). Based on

the record as a whole, we hold that both of Morales’s requests to proceed pro se were equivocal.

Because the record is clear that Morales’s only argument to the trial court pertained to his request

to substitute counsel, the trial court did not abuse its discretion in failing to rule on his request to

proceed pro se.

B.      INEFFECTIVE ASSISTANCE OF COUNSEL

        Morales argues that his counsel was ineffective for failing to investigate and interview his

suggested witness until after trial began. We disagree.

        1.      Legal Principles

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

Washington Constitution guarantee a defendant the right to effective assistance of counsel. State

v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011), cert. denied, 135 S. Ct. 153 (2014). An

ineffective assistance of counsel claim is a mixed question of fact and law that we review de

novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on an ineffective

assistance of counsel claim, the defendant must show that (1) counsel’s performance was deficient

and (2) counsel’s deficient performance prejudiced the defense. Grier, 171 Wn.2d at 32-33 (citing



                                                  12
No. 50782-0-II


Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). If the

defendant fails to satisfy either prong, the defendant’s ineffective assistance of counsel claim

fails. Id. at 33 (citing Strickland 466 U.S 688).

       Counsel’s performance is deficient if it falls below an objective standard of

reasonableness. Id. We engage in a strong presumption that counsel’s performance was

reasonable. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). A defendant may overcome

this presumption by showing that “ ‘there is no conceivable legitimate tactic explaining counsel’s

performance.’ ” Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101

P.3d 80 (2004)). Our Supreme Court has held that the record before this court must be sufficient

for this court to determine what counsel’s reasons for the decision is in order to evaluate whether

counsel’s reasons were legitimate. State v. Linville, 191 Wn.2d 513, 525-26, 423 P.3d 842

(2018). If counsel’s reasons for the challenged action are outside the record on appeal, the

defendant must bring a separate collateral challenge. Id.

       To establish prejudice, the defendant must “prove that there is a reasonable probability that,

but for counsel’s deficient performance, the outcome of the proceedings would have been

different.” Kyllo, 166 Wn.2d at 862. This standard is lower than a preponderance standard, but

does require the defendant to affirmatively “show more than a ‘conceivable effect on the

outcome.’” State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting State v. Crawford,

159 Wn.2d 86, 99, 147 P.3d 1288 (2006)).

       2.      Morales Fails to Show Ineffective Assistance of Counsel

       Morales argues that his counsel’s failure to investigate potential witnesses until after trial

began fell below an objective standard of reasonableness. Morales also argues that he was



                                                    13
No. 50782-0-II


prejudiced by this deficient performance because he would have negotiated and accepted a plea

offer had Morales known that his suggested witnesses were unable to testify. We disagree.

       After two witnesses had testified, Morales informed the trial court that he wanted his

counsel to call two witnesses on his behalf—Hector and Reynolds. In response, Morales’s counsel

explained that he had contacted both witnesses and neither was available. Counsel informed the

trial court about his interaction with Hector in the courthouse hallway the day before trial and how

Hector left despite being asked to wait. Counsel also informed the court about subsequent

unsuccessful efforts to locate Hector and stated “frankly, based upon what I learned from her, I

probably wouldn’t be calling her anyway.” 3 VRP (Jan. 10, 2017) at 132.

       As to Reynolds, Morales’s counsel informed the court that he had subpoenaed her and that

Reynolds was currently in custody. Counsel explained that he had “some trepidation” about

calling Reynolds, but informed the court that he might call her as a witness because of Morales’s

continued request to do so. 3 VRP (Jan. 10, 2017) at 132. When the parties returned to court the

next day, Morales again voiced his concern that his counsel had refused to call his suggested

witnesses. Counsel explained that Reynolds was charged with several crimes, and that Reynolds’s

lawyer had informed counsel that Reynolds would invoke her Fifth Amendment right to remain

silent if she were brought to court.

       Nonetheless, Morales argues that his counsel’s performance was objectively unreasonable

because his counsel waited until after trial began to investigate the availability of these two

witnesses. According to Morales, he asked his counsel to investigate and interview these witnesses

more than a year before trial. However, the record does not support Morales’s contention.




                                                14
No. 50782-0-II


       After trial had started, Morales’s counsel again explained that he had been unable to contact

Hector. Morales interrupted and stated, “I told him about her a year ago. Why didn’t he never try

to contact her?” 9 VRP (Jan. 11, 2017) at 202. Morales’s counsel responded, “Actually, and I

don’t want to talk about what you and I have discussed, but it was a relatively recent occurrence.”

9 VRP (Jan. 11, 2017) at 202-03. Thus, the record does not clearly support Morales’s contention

that he asked counsel to contact these witnesses more than a year before trial. And even if Morales

had made this request, Morales cannot show based on the record before this court that his counsel’s

performance fell below an objective standard of reasonableness.           The record contains no

information that these witnesses were available prior to trial or willing to meet with defense

counsel prior to trial. The record also provides no information regarding counsel’s reasons for not

meeting with these two witnesses sooner. Thus, Morales fails to show deficient performance based

on the record before this court.

       Morales also fails to show prejudice. Morales argues that he was prejudiced by his

counsel’s failure to timely investigate the potential witnesses because Morales might have “more

rigorously sought to negotiate a plea” had he known that the witnesses would be unavailable to

testify at trial. Br. of Appellant at 13. However, when Morales’s counsel informed the trial court

that Reynolds was unwilling to testify, Morales interjected, “I don’t believe that happened.” 9

VRP (Jan. 11, 2017) at 202. Thus, the record shows that Morales was unwilling to accept his

counsel’s representation that these witnesses were unavailable. Morales, therefore, fails to show

a reasonable probability that Morales would have attempted to negotiate a plea had his counsel

informed him earlier that these witnesses were unavailable. Because Morales fails to show either

deficient performance or prejudice, his ineffective assistance of counsel claim fails.



                                                15
No. 50782-0-II


C.     CRIMINAL FILING FEE AND DNA FEE

       Morales argues that the imposed criminal filing fee and DNA fee are no longer authorized

following the enactment of legislative amendments to statutes relating to legal financial

obligations.5 The State agrees that the imposed fees should be stricken. We accept the State’s

concession and remand to the trial court to strike the imposed criminal filing fee and DNA fee.

       Recent legislation prohibits the sentencing court from imposing discretionary LFOs,

criminal filing fees, or accrued interest on the nonrestitution portions of LFOs on indigent

defendants. RCW 10.01.160(3); RCW 36.18.020(h); RCW 10.82.090; State v. Ramirez, 191

Wn.2d 732, 746, 426 P.3d 714 (2018). A DNA fee is mandatory “unless the state has previously

collected the offender’s DNA as a result of a prior conviction.” RCW 43.43.7541.

       Here, the sentencing court signed an order of indigency for Morales to pursue an appeal at

public expense. The imposition of a criminal filing fee on indigent defendants is prohibited.

Therefore, we remand to the sentencing court to strike the criminal filing fee.

       Also, the State represents that Morales’s DNA was previously collected and is on file with

the Washington State Patrol Crime Lab. Accordingly, we also remand to the sentencing court with

instruction to strike the DNA fee.

D.     STATEMENT OF ADDITIONAL GROUNDS

       Morales raises numerous issues in a SAG. We hold that each of these assigned errors fail.



5
   Codified on June 7, 2018, ESHB 1783 amends certain RCWS related to LFOs. LAWS OF 2018,
ch. 269, §17. ESHB 1783 eliminates interest accrual on the nonrestitution portions of imposed
LFOs, prohibits imposing of a criminal filing fee on indigent defendants, and provides that DNA
collection is no longer mandatory if the defendant’s DNA has previously been collected as the
result of a prior conviction. RCW 36.18.020(2)(h); RCW 10.01.160(3); RCW 43.43.7541; State
v. Ramirez, 191 Wn.2d 732, 746-47, 426 P.3d 714 (2018).


                                                16
No. 50782-0-II


       1.      CrR 3.6 Hearing

       Morales argues that CCO Thompson offered false testimony at the CrR 3.6 hearing because

she testified to information that was not contained in her incident report. Specifically, Morales

contends that the information that Morales was not in compliance with his drug treatment program

was never included in CCO Thompson’s original report.

       CCO Thompson’s incident report is not contained in the record. Therefore, we cannot

address this issue in direct appeal. Morales also references a January 2017 email from one of the

deputy prosecuting attorneys who handled his case to support this claim. This email is likewise

not contained in the record. If Morales wishes to raise issues on appeal based on evidence or facts

outside of the existing record, then a personal restraint petition is the appropriate means to do so.

See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251, as amended (Sept. 13, 1995).

       Morales also argues that the trial court should have granted his motion to suppress evidence

obtained through the search of his home because the informants’ tips to CCO Thompson were

unreliable. Relying on State v. Z.U.E., 183 Wn.2d 610, 352 P.3d 796 (2015), Morales contends

that the informants’ tips were unreliable because their contact information was not provided.

Morales also contends that without contact information, the informants were anonymous.

       Z.U.E. is not applicable here. Z.U.E. involved a challenge to the validity of a Terry stop

based on a series of anonymous 911 calls. 183 Wn.2d at 615, 617. Our Supreme Court applied a

“ ‘totality of the circumstances’ ” approach to determine whether a tip from an anonymous 911

caller was sufficiently reliable to justify a Terry stop. Id. at 621 (quoting Navarette v. California,

572 U.S. 393, 395, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014)). Unlike in Z.U.E., the search of

Morales’s home and vehicle was not a Terry stop, and the search was not based on anonymous



                                                 17
No. 50782-0-II


911 calls. CCO Thompson knew the identity of both informants. One informant was the mother

of the leaseholder for the residence. The other informant was Morales’s treatment provider. The

identities of these individuals were known. We hold that Morales’s challenge based on unreliable

informants’ tips fail.

        2.      Search of the Vehicle

        Morales argues that evidence of the firearm should have been suppressed because it was

the fruit of an illegal search of the vehicle he had been driving. Morales asserts that the officers

did not have probable cause to search the vehicle because it was not registered in Morales’s name

and they did not have a warrant. Morales also raises a hearsay objection to CCO Thompson’s

testimony at the CrR 3.6 hearing for the first time on appeal.

        The Washington State Constitution provides that “[n]o person shall be disturbed in his

private affairs, or his home invaded, without authority of law.” CONST. art. I, § 7. Warrantless

searches are per se unreasonable, “ ‘subject to a few jealously and carefully drawn exceptions.’ ”

State v. Cornwell, 190 Wn.2d 296, 301, 412 P.3d 1265 (2018) (internal quotation marks omitted)

(quoting State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999)).

        Individuals on probation have a reduced expectation of privacy and are not afforded the

full protection of article 1, section 7. Id. It is constitutionally permissible for a CCO to search an

individual on probation solely on a “ ‘well-founded or reasonable suspicion of a probation

violation,’ ” instead of a warrant supported by probable cause. Id. at 302 (quoting State v.

Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009)). This exception is codified in RCW

9.94A.631, which states in relevant part, “If there is reasonable cause to believe that an offender

has violated a condition or requirement of the sentence, a [CCO] may require an offender to submit



                                                 18
No. 50782-0-II


to a search and seizure of the offender’s person, residence, automobile, or other personal property.”

RCW 9.94A.631(1). This does not give a CCO unfettered right to search the property of someone

on probation. Cornwell, 190 Wn.2d at 306-07. Rather, a warrantless search of the property of an

individual on probation is permissible “only where there is a nexus between the property searched

and the alleged probation violation.” Id. at 306.

       The State presented sufficient evidence of such a nexus here. Morales was prohibited from

possessing firearms or ammunition as a condition of his sentence. CCO Thompson received

multiple reports that Morales had violated this condition of his supervision. Law enforcement

informed CCO Thompson that Morales was suspected in a shooting incident because a pool of the

victim’s blood was found on Morales’s front porch. Approximately a week later, the mother of

the leaseholder for Morales’s residence contacted CCO Thompson and expressed concern that

drug users and sellers had been coming and going from Morales’s residence late at night. She also

told CCO Thompson that Morales had a gun inside of his house and was rumored to have shot

someone.

       When CCO Thompson searched Morales’s residence, she found an empty firearm

magazine. During that search, multiple people told CCO Thompson that Morales had been driving

the vehicle parked outside his house. Reynolds said that Morales kept his gun inside of the vehicle.

And the keys to the vehicle were on Morales’s desk. This combined information established a

nexus between the vehicle searched and Morales’s alleged probation violation of possessing a

firearm. Therefore, the warrantless search of the vehicle was permissible.

       For the first time on appeal, Morales argues that the statements linking him to the vehicle

were inadmissible hearsay. As a general rule, we will not consider an issue raised for the first time



                                                 19
No. 50782-0-II


on appeal, unless it is a manifest error affecting a constitutional right. RAP 2.5(a). Morales does

not assert that this error is of constitutional magnitude. Morales explicitly states that “[hear]say is

a little different” than his constitutional right to confront his accuser claim. SAG at 10. Therefore,

we do not consider Morales’s hearsay objections to CCO Thompson’s testimony that are raised

for the first time on appeal. See RAP 2.5(a).

       3.      Confrontation Clause

       Next, Morales argues that he was denied his constitutional right to confront his accusers

because the State never provided him the contact information of the informants who reached out

to CCO Thompson. This assignment of error concerns CCO Thompson’s testimony at the CrR

3.6 evidentiary hearing. CCO Thompson testified that two informants provided information that

Morales was violating the conditions of his supervision. The first informant was the mother of the

leaseholder for Morales’s residence, who expressed concern about “drug traffic” in and out of

Morales’s residence. 1 VRP (Jan. 5, 2017) at 23. The other informant was Morales’s treatment

provider, who notified CCO Thompson that Morales had failed several urinalysis tests and missed

several required treatment classes. CCO Thompson did not testify to any of the informants’

statements at Morales’s trial.

       Relying on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004), Morales argues that this testimony violated his right to confront his accusers. Crawford

established a rule barring admission of testimonial hearsay at trial when the declarant witness is

unavailable and there has been no prior opportunity to cross examine. State v. Fortun-Cebada,

158 Wn. App. 158, 172, 241 P.3d 800 (2010). However, “nothing in Crawford suggests that the

Supreme Court intended to change its prior decisions allowing the admission of hearsay at pretrial



                                                  20
No. 50782-0-II


proceedings, such as a suppression hearing.” Id. “[T]here is no right to confrontation at a pretrial

CrR 3.6 evidentiary hearing on a motion to suppress under the Sixth Amendment and Crawford.”

Id. at 173. Therefore, Morales’s assignment of error on this basis fails.

       4.      Ineffective Assistance of Counsel

       Morales raises several ineffective assistance of counsel claims in his SAG. We hold that

each of these claims fail.

       As explained above, to prevail on an ineffective assistance of counsel claim, the defendant

must show that (1) counsel’s performance was deficient and (2) counsel’s deficient performance

prejudiced the defense. Grier, 171 Wn.2d at 32-33 (citing Strickland 466 U.S 688). An ineffective

assistance of counsel claim fails if the defendant fails to satisfy either prong. Id. at 33 (citing

Strickland 466 U.S 688).

       Morales first argues that his counsel was ineffective for advising him that the trial court’s

ruling on his CrR 3.6 suppression motion could be challenged on appeal. Counsel was correct that

Morales could challenge the trial court’s denial of a CrR 3.6 suppression motion on appeal. See

e.g., State v. Z.U.E., 178 Wn. App. 769, 778, 315 P.3d 1158 (2014), aff’d, 183 Wn.2d 610 (2015)

(“When reviewing the trial court’s denial of a CrR 3.6 suppression motion, we determine whether

substantial evidence supports the challenged findings of fact and whether the findings of fact

support the conclusions of law.”). Thus, counsel’s advice was not erroneous and counsel’s

performance did not fall below an objective standard of reasonableness. Morales’s ineffective

assistance of counsel claim on this basis fails.

       Next, Morales argues that counsel was ineffective for failing to object at the CrR 3.6

hearing to CCO Thompson’s testimony. Morales argues that his counsel should have objected to



                                                   21
No. 50782-0-II


the portions of CCO Thompson’s testimony that differed from her incident report. Again, this

incident report is not contained in the record. Thus, Morales cannot show ineffective assistance

of counsel on this basis.

        Morales also argues that counsel was ineffective for implying that Morales owned the

vehicle during closing argument at the CrR 3.6 hearing. At the CrR 3.6 hearing, counsel argued

that any evidence obtained through the search of the vehicle should be suppressed because “there

[was] absolutely zero evidence that Mr. Morales was using drugs in his car, or his house for that

matter.” 1 VRP (Jan. 5, 2017) at 73.

        As explained above, the propriety of a search does not depend on ownership of the vehicle

to be searched. A CCO may search the property of someone on probation when “there is a nexus

between the property searched and the alleged probation violation.” Cornwell, 190 Wn.2d at 306.

Here, multiple people reported that Morales had been driving the vehicle, and Reynolds told CCO

Thompson that Morales stored a firearm in the vehicle. This evidence established a nexus between

the vehicle and Morales’s probation violation. Counsel’s performance did not fall below an

objective standard of reasonableness simply because he referred to the vehicle as Morales’s vehicle

at the close of the CrR 3.6 hearing. Thus, Morales’s ineffective assistance of counsel claim on this

basis fails.

        Morales also argues that his counsel was ineffective for failing to pressure the State into

releasing the informants’ contact information. However, the record contains no information as to

whether counsel did or did not make such request. And even if counsel did not ask the State for

this information, the record contains no information regarding why counsel did not ask the State

for this information. Therefore, Morales cannot show ineffective assistance of counsel on this



                                                22
No. 50782-0-II


basis, and he must bring a separate, collateral challenge if he wishes a reviewing court to consider

matters outside of the record. See Linville, 191 Wn.2d at 525-26.

       Next, Morales maintains that his counsel was ineffective for failing to call his requested

witnesses at trial. As discussed above, both witnesses that Morales wanted to testify on his behalf

were unavailable. Counsel’s defense investigator repeatedly, but unsuccessfully, tried to contact

one of the witnesses, and the other witness had pending criminal charges and would have refused

to testify based on her counsel’s advice. Thus, the record shows a legitimate tactic explaining

counsel’s performance, and Morales’s ineffective assistance of counsel claim on this basis fails.

       Morales also contends that he was denied the effective assistance of counsel because his

counsel had a conflict of interest. A conflict of interest may arise where the defendant’s lawyer

has previously represented one of the witnesses in the case, or represents multiple codefendants in

a case. State v. Dhafliwal, 150 Wn.2d 559, 568, 79 P.3d 432 (2003). Here, the only conflict

Morales asserts was his dissatisfaction with his counsel’s performance. This does not constitute a

conflict of interest, and Morales’s ineffective assistance of counsel claim on this basis fails.

       Finally, Morales argues that he was denied effective assistance of counsel at the CrR 3.5

hearing because his counsel (1) failed to impeach CCO Patterson, (2) failed to request a mistrial,

and (3) failed to request reconsideration of the trial court’s ruling. Each of these claims fail.

       Morales maintains that CCO Patterson’s trial testimony differed from his testimony at the

CrR 3.5 hearing. Specifically, at the CrR 3.5 hearing, CCO Patterson testified that Morales

admitted ownership of the drugs to CCO Patterson and other community corrections officers

present at the time. However, at trial, CCO Patterson testified that he heard Morales admit




                                                 23
No. 50782-0-II


ownership of the drugs to Officer Thiry. Morales argues that his trial counsel was ineffective for

failing to impeach CCO Patterson on this inconsistency.

       “There is a strong presumption that counsel’s performance was reasonable.” Kyllo, 166

Wn.2d at 862. To overcome this presumption, Morales must show that “ ‘there is no conceivable

legitimate tactic explaining counsel’s performance.’ ”        Grier, 171 Wn.2d at 33 (quoting

Reichenbach, 153 Wn.2d at 130). Here, counsel’s reasons for not impeaching CCO Patterson

could be characterized as legitimate trial strategy or tactic. Counsel may have wanted to avoid the

risk of emphasizing this testimony and the series of incriminating statements that Morales made

to law enforcement. Thus, Morales fails to rebut the strong presumption that his counsel’s

performance was reasonable.

       And even if counsel’s performance was deficient, Morales fails to show prejudice. Ample

evidence linked Morales to the drugs found in his home and the firearm found in the vehicle that

he had been driving. CCO Thompson found drug paraphernalia throughout Morales’s residence.

She also found a magazine for a handgun in Morales’s bedroom. The officers found drugs in

Morales’s jacket pocket. Morales admitted to law enforcement that the jacket and its contents

belonged to him. And following his arrest, Morales told Officer Thiry, “ ‘I know I am screwed. I

am headed for prison.’ ” 9 VRP (Jan. 11, 2017) at 217. Morales also admitted to Officer Thiry

that he obtained the firearm approximately a week before the search. When asked whether the gun

was stolen, Morales responded, “ ‘Aren’t most guns you get off the streets stolen?’ ” 9 VRP (Jan.

11, 2017) at 217. Thus, Morales fails to show a reasonable probability that the outcome of his trial

would have differed had his counsel impeached CCO Patterson on the minor inconsistency in CCO

Patterson’s trial testimony.



                                                24
No. 50782-0-II


       Morales’s claim that his counsel was ineffective for failing to move for a mistrial based on

CCO Patterson’s inconsistent testimony is also without merit. A trial court “ ‘should grant a

mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure

that the defendant will be tried fairly.’ ” State v. Rodriguez, 146 Wn.2d 260, 270, 45 P.3d 541

(2002) (State v. Kwan Fai Mak, 105 Wn.2d 692, 701, 718 P.2d 407, cert. denied, 479 U.S. 995

(1986)). There is no indication in the record that CCO Patterson’s inconsistent testimony

prejudiced Morales to the extent that nothing short of a new trial could have insured a fair trial.

Morales had the opportunity to object to CCO Patterson’s testimony and to cross-examine CCO

Patterson. Morales fails to show a reasonably probability that the trial court would have granted a

request for a mistrial on this basis, and his ineffective assistance of counsel claim fails.

       Similarly, Morales fails to show he was denied effective assistance of counsel because his

trial counsel failed to ask that the CrR 3.5 hearing be reheard in light of this testimony. The

purpose of a pretrial confession hearing under CrR 3.5 is to allow the court to determine whether

the defendant’s statements are admissible at trial. CrR 3.5(a); State v. Fanger, 34 Wn. App. 635,

636-37, 663 P.2d 120 (1983). At the hearing, the trial court must determine whether, under the

totality of the circumstances, the defendant’s confession to law enforcement was coerced. State v.

Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997). Morales does not assert that the statements

he provided to law enforcement were coerced. And an inconsistency in CCO Patterson’s testimony

as to which officer Morales made these statements to does not evidence coercion. Thus, Morales

fails to show that this was a basis for his counsel to request a new CrR 3.5 hearing. Because

Morales fails to show that his counsel’s performance fell below an objective standard of

reasonableness, his ineffective assistance of counsel claim on this basis fails.



                                                  25
No. 50782-0-II


        5.      Prosecutorial Misconduct

        Morales argues that the State committed prosecutorial misconduct by (1) falsely informing

the court that Morgan Godsey had contacted CCO Thompson, rather than Godsey’s mother, (2)

allowing CCO Thompson to testify to new information not contained within her incident report,

and (3) allowing CCO Patterson to commit perjury. We hold that each of these claims fail.

        “Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair

trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). To prevail

in a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor’s conduct

was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 759-61, 278 P.3d 653 (2012).

        Morales fails to make this showing here. First, Morales relies on a statement that the

prosecutor made to the trial court during argument on Morales’s motion for a new trial following

his guilty verdict. Given that this statement was made after trial, Morales cannot show that he was

deprived of his constitutional right to a fair trial based on this statement.

        Second, as explained above, CCO Thompson’s incident report is not in the record before

this court. Therefore, Morales cannot show prosecutorial misconduct on this basis.

        And finally, Morales fails to show that the prosecutor allowed CCO Patterson to commit

perjury while testifying at trial. This claim is again based on the asserted inconsistency in CCO

Patterson’s testimony between the CrR 3.5 hearing and trial. It is true that the State has a duty to

not elicit perjury or present false testimony. State v. Finnegan, 6 Wn. App. 612, 616, 495 P.2d

674 (1972), cert. denied, 410 U.S. 967 (1973). However, to succeed in a claim that the prosecutor

elicited false testimony, Morales must show (1) that the testimony was actually false, (2) the

prosecutor knew or should have known that the testimony was false, and (3) the false testimony



                                                  26
No. 50782-0-II


was material. See United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003), cert. denied, 540

U.S. 1208 (2004).

       Here, CCO Patterson’s trial testimony was not materially inconsistent with his testimony

at the CrR 3.5 hearing. At the CrR 3.5 hearing, CCO Patterson testified that Morales admitted

ownership of the drugs to CCO Patterson and other community corrections officers present at the

scene. At trial, CCO Patterson testified that he heard Morales admit ownership of the drugs to

Officer Thiry.    Thus, in both instances, CCO Patterson testified that Morales had claimed

ownership of the drugs to law enforcement. Morales fails to show that CCO Patterson’s testimony

was false based on the minor inconsistency as to which specific officer Morales admitted

ownership to. And even if this testimony was false, there is no evidence that the prosecutor knew

or should have known that this testimony was false, or that this testimony was material. Therefore,

we reject Morales’s prosecutorial misconduct claim on this basis.6

       6.        Cumulative Error Doctrine

       Morales asserts that the cumulative effect of the errors he raises in his SAG entitle him to

a new trial. “Under the cumulative error doctrine, a defendant may be entitled to a new trial when

cumulative errors produce a trial that is fundamentally unfair.” Emery, 174 Wn.2d at 766. Because

Morales fails to show he was affected by any error, he is not entitled to a new trial based on the

cumulative error doctrine.




6
  Morales also claims that his due process rights were violated because CCO Patterson submitted
false and perjured testimony at trial. Because Morales fails to show that the prosecutor elicited
false and perjured testimony at trial, we similarly reject Morales’s claim on this basis.


                                                27
No. 50782-0-II


        7.          Request for Additional Briefing

        Finally, Morales asks this court to exercise our discretion and request additional briefing

on the errors Morales raises in his SAG. Under RAP 10.10(f), we may request additional briefing

from counsel to address the issues raised in the defendant’s SAG. However, additional briefing is

not necessary to resolve the issues raised here, and we decline to make such request.

        We affirm Morales’s convictions, but remand to the trial court to strike the imposed

criminal filing fee and DNA fee.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                           Lee, A.C.J.
 We concur:



 Sutton, J.




 Cox, J.P.T




                                                      28
