                                                              FILED 

                                                          OCTOBER 29, 2015 

                                                       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. 32356-I-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         PUBLISHED OPINION
                                              )
ADRIAN MUNOZ-RIVERA,                          )

                                              )

                     Appellant.               )


       LAWRENCE-BERREY, J.         Adrian Munoz-Rivera appeals his convictions for

second degree assault and felony harassment of nine-year-old K.T., his live-in girl

friend's daughter. We review his six contentions and affirm his conviction and term of

sentence. We however remand for the trial court to (I) strike that portion of the sentence

authorizing a IO-year domestic violence protection order in favor ofK.T., (2) strike

various community custody conditions that are not crime related, (3) conduct a

meaningful colloquy to determine whether Mr. Munoz-Rivera has the present or future

ability to pay discretionary legal fmancial obligations (LFOs), and (4) correct a

scrivener's error.
No. 32356-1-III
State v. Munoz-Rivera


                                          FACTS

       In November 2013, Adrian Munoz-Rivera was living with Maria Tamayo and her

nine-year-old daughter, K.T. They had been living together for approximately 19 months.

Mr. Munoz-Rivera and Ms. Tamayo had a difficult relationship, which escalated to

physical violence when Mr. Munoz-Rivera drank alcohol.

       The night of November 2,2013, the three returned home from a friend's birthday

party. Mr. Munoz-Rivera and Ms. Tamayo had been drinking. While preparing to go to

bed, the two argued over various things, including an incident that occurred at the party

earlier in the night. When Mr. Munoz-Rivera made advances toward Ms. Tamayo, she

attempted to leave their bedroom. Mr. Munoz-Rivera blocked the door, pushed her onto

the bed several times, hit her, tried to choke her, and tried to take her telephone away

because she wanted to call 911. Ms. Tamayo began banging on the walls and screaming

for her daughter. When K.T. approached the bedroom, Ms. Tamayo told her to get help.

Mr. Munoz-Rivera attempted to stop K.T. from getting help, but both Ms. Tamayo and

K.T. managed to open the door and go outside down the stairs.

       Ms. Tamayo began to knock on a neighbor's door to get help, but Mr. Munoz-

Rivera grabbed K.T. by the hair and dragged her back up the stairs. Mr. Munoz-Rivera,

armed with a knife, forced K.T. inside the apartment. Once inside, he held the knife to


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No. 32356-1-111
State v. Munoz-Rivera


K.T.'s neck. Ms. Tamayo ran back to the apartment. When Ms. Tamayo opened the door

to the apartment, she saw Mr. Munoz-Rivera holding a knife to K.T.'s neck. Mr. Munoz-

Rivera asked Ms. Tamayo if she wanted to see her daughter die. Ms. Tamayo asked Mr.

Munoz-Rivera to think about what he was doing. Mr. Munoz-Rivera moved to the side,

and K.T. moved away from him. While still holding the knife, Mr. Munoz-Rivera asked

Ms. Tamayo again if she wanted to see her daughter die.

      After a time, Mr. Munoz-Rivera put the knife away. K.T. went to her room and

took the screen off her window. She waved her hands in front of the window to try and

get the attention of some people outside the bUilding. During the commotion, a

downstairs neighbor called the police. Police arrived quickly.

      When City of Pasco Patrol Officer Corey Smith responded to the scene he could

see K.T. in the window of the apartment waving at him. When he approached, K.T. told

him, "[S]hush, my step-dad is trying to kill me." Report of Proceedings (RP) at 80.

Officer Smith went to the door of the apartment and saw Ms. Tamayo standing there with

blood on her face. He saw signs of struggle in the apartment. Mr. Munoz-Rivera was in

the bedroom sitting on the bed and buttoning his shirt. Officer Smith observed a bite

mark on Ms. Tamayo's inner thigh. Ms. Tamayo also had injuries to her face and neck.




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No. 32356-I-III
State v. Munoz-Rivera


       Mr. Munoz-Rivera was arrested. While in jail, Mr. Munoz-Rivera attempted to

contact Ms. Tamayo by telephone and letter. In the letters, he sought Ms. Tamayo's help

in obtaining an attorney and defusing the allegations against him.

       The State charged Mr. Munoz-Rivera with second degree assault ofK.T. while

armed with a deadly weapon, second degree assault of Ms. Tamayo who was a "family or

household member," felony harassment ofK.T. by threatening to kill her, and tampering

with a witness as to Ms. Tamayo. Clerk's Papers (CP) at 118-19. The case proceeded to

jury trial on March 5-7, 2014.

       At trial, K.T. testified under her full name and stated she was 10 years old and had

recently had a birthday. K.T. also testified she thought Mr. Munoz-Rivera was going to

kill her when he was holding the knife to her neck. Ms. Tamayo testified that while Mr.

Munoz-Rivera was pointing the knife at K.T. and asking if she wanted to see her daughter

die, she feIt very afraid for K.T. Mr. Munoz-Rivera denied threatening K.T. or pointing a

knife at her.

       The court gave the State's proposed "to convict" instruction for second degree

assault. It provided:

                             INSTRUCTION NO. 11
             To convict the defendant of the crime of Assault in the Second
       Degree, as charged in Count I, each of the following two elements of the
       crime must be proved beyond a reasonable doubt:

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No. 32356-1-III
State v. Munoz-Rivera


             (1) That on or about November 3, 2013, the defendant assaulted
      K.T. (DOB: 11127/03) with a deadly weapon;
             (2) That this act occurred in the State of Washington.
             If you find from the evidence that each of these elements has been
      proven beyond a reasonable doubt, then it will be your duty to return a
      verdict of gUilty.
             On the other hand, if, after weighing all the evidence, you have a
      reasonable doubt as to either element (1) or (2), then it will be your duty to
      return a verdict of not gUilty.

CP at 42.

      The court also gave the State's "to convict" instruction for felony harassment. It

provided:

                                  INSTRUCTION NO. 17
              To convict the defendant of the crime of Harassment, each of the
      following elements of the crime must be proved beyond a reasonable doubt:
              (1) That on or about November 3,2013, the defendant knowingly
      threatened to kill K.T. (DOB: 11127/03) immediately or in the future;
              (2)· That the words or conduct of the defendant placed K.T. (DOB:
      11127/03) in reasonable fear that the threat to kill would be carried out;
              (3) That the defendant acted without lawful authority; and
              (4) That the threat was made or received in the State of Washington.
              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.
              On the other hand, if, after weighing all the evidence, you have a
      reasonable doubt as to anyone of these elements, then it will be your duty
      to return a verdict of not guilty.

CP at 48.




                                             5

No. 32356-1-111
State v. Munoz-Rivera


      The jury found Mr. Munoz-Rivera guilty of second degree assault ofK.T. while

armed with a deadly weapon, felony harassment ofK.T., and tampering with a witness as

to Ms. Tamayo. The jury found Mr. Munoz-Rivera not guilty of second degree assault of

Ms. Tamayo. The jury found by special verdict that Mr. Munoz-Rivera and Ms. Tamayo

were members of the same family or household.

      At sentencing, the State requested an exceptional sentence and asked that the

sentence for tampering with a witness be run consecutively with the other two charges.

The court instead entered a standard range sentence with the three sentences running

concurrently. However, the judgment and sentence included a finding that "[s]ubstantial

and compelling reasons exist which justifY an exceptional sentence ... above the standard

range for Count I." CP at 11.

      The judgment and sentence also included a condition that Mr. Munoz-Rivera have

no contact with K.T. and Ms. Tamayo for 10 years. The trial court issued a IO-year

domestic violence no-contact order in conjunction with the sentence naming K.T. and Ms.

Tamayo as the protected victims. The no-contact order included a finding that Mr.

Munoz-Rivera's relationship with the protected parties was as a "current or former

cohabitant as intimate partner" and as an "other family or household member as defined

in RCW 10.99." CP at 4.



                                            6

No. 32356-I-III
State v. Munoz-Rivera


       Additionally, the court imposed $1,581.25 of discretionary costs consisting of a

$381.25 sheriff service fee, a $700.00 fee for a court appointed attorney, and a $500.00

fine under RCW 9A.20.021. The court ordered $1,502.42 of mandatory costs consisting

of a $452.42 fee as restitution to the crime victims compensation program, a $500.00

victim penalty assessment, a $200.00 criminal filing fee, a $250.00 jury demand fee, and

a $100.00 deoxyribonucleic acid (DNA) collection fee. Mr. Munoz-Rivera's LFOs

totaled $3,083.67. The judgment and sentenced contained the following preprinted

finding relating to Mr. Munoz-Rivera's ability to pay LFOs:

       The court has considered the total amount owing, the defendant's past,
       present and future ability to pay legal financial obligations, including the
       defendant's financial resources and the likelihood that the defendant's
       status will change. The court finds: ... [t]hat the defendant is an adult and
       is not disabled and therefore has the ability or likely future ability to pay the
       legal financial obligations imposed herein. RCW 9.94A.753.

CP at 11. Finally, the court imposed an I8-month term of community custody that

included several conditions.

       Mr. Munoz-Rivera appeals, contending: (1) the State failed to prove beyond a

reasonable doubt the elements of second degree assault and felony harassment as

instructed to the jury, (2) the trial court lacked authority to designate K.T. as a protected

party of a domestic violence no-contact order, (3) Mr. Munoz-Rivera's counsel was

ineffective for failing to challenge his offender score, (4) the trial court erred by imposing

                                               7

No. 32356-1-111
State v. Munoz-Rivera


certain community custody conditions that are not crime related, (5) the trial court erred in

imposing discretionary LFOs without considering Mr. Munoz-Rivera's current or future

ability to pay as directed by RCW 10.01.160(3), and (6) the judgment and sentence

contains a scrivener's error that should be corrected.

                                        ANALYSIS

       1. 	   Whether the State's identification ofthe victim as "K.I. (DOB: 11/27/03)"
              in the jury instructions for second degree assault andfelony harassment
              added an additional element to the charge, which the State thenfailed to
              prove with sufficient evidence.

       Mr. Munoz-Rivera contends that identification ofthe victim in jury instructions as

"K.T. (DOB: 11/27/03)" caused these details to become part of the State's burden of

proof by operation of the law of the case doctrine. The State counters that its efforts to

protect the victim's privacy interests in the written record should not be viewed as adding

additional elements to the charge, but that even if these identifiers are treated as

additional elements, the State produced sufficient evidence to prove them beyond a

reasonable doubt.

       Evidence is sufficient if, when viewed in the light most favorable to the State, it

permits a rational trier of fact to find the essential elements of the crime beyond a

reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 PJd 735 (2003) (quoting State

v. Joy, 	121 Wn.2d 333, 338,851 P.2d 654 (1993». Courts must draw all reasonable

                                              8

No. 32356-1-III
State v. Munoz-Rivera


inferences from the evidence in favor of the State and interpret the evidence most strongly

against the defendant. State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992).

Circumstantial evidence receives the same weight as direct evidence. State v. Thomas,

150 Wn.2d 821, 874, 83 P.3d 970 (2004). Appellate courts defer to the fact finder on the

resolution of conflicting testimony, credibility determinations, and the persuasiveness of

the evidence. Id. at 874-75.

       Jury instructions receive de novo review, but are interpreted within the context of

the instructions as a whole. State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136 (2006).

Jury instructions must inform the jury that the State bears the burden of proof for every

essential element of the crime beyond a reasonable doubt. State v. Pirtle, 127 Wn.2d 628,

656,904 P.2d 245 (1995).

       Under the law of the case doctrine, jury instructions not objected to become the

applicable law, even if the instructions contain an unnecessary element of the crime.

State v. Hickman, 135 Wn.2d 97,102,954 P.2d 900 (1998). Thus, ifan unnecessary

element is added in the "to convict" instruction in a criminal case without objection, the

State assumes the burden of proving the added element. Id. Where the sufficiency of the

evidence is challenged in a law of the case conviction, the reviewing court must consider

the sufficiency in light of the instructions. Id. at 102-03.


                                               9

No. 32356-1-III
State v. Munoz-Rivera


       Mr. Munoz-Rivera does not assign error to the instructions. Instead, he relies

exclusively on Hickman to argue that because the State proposed the "to convict"

instructions for both second degree assault and felony harassment naming "K.T. (DOB:

11127/03)" as the victim, the law of the case required the State to prove beyond a

reasonable doubt that Mr. Munoz-Rivera committed those crimes against a person named

K.T., whose date of birth was November 27,2003. CP at 42,48. In Hickman, the court

concluded that because the State had acquiesced to jury instructions that included venue

as an element, the State had to prove venue to prevail. 135 Wn.2d at 105. Thus, the jury

instruction modified the insurance fraud charge to require the State to prove the defendant

had presented a false insurance claim in Snohomish County. Id. This was significant

because the defendant had actually called from Hawaii to a location in King County to

submit his fraudulent insurance claim. Id. at 105-06. The court concluded that there was

no evidence that the crimes occurred in Snohomish County. Id. at 106.

       Here, the trial occurred in March 2014. K.T. testified and gave her full name to

the jury. K.T. also testified that she was 10 years old, and had recently had a birthday.

The State proposed the instruction naming the victim as "K.T. (DOB: 11127/03)." The

State notes that the jurors did not send any written question during their deliberations

expressing confusion as to "K.T (DOB: 11127/03)." By placing K.T.'s date of birth in


                                             10 

No. 32356-1-111
State v. Munoz-Rivera


parentheticals, the State did not add her date of birth as an additional and otherwise

unnecessary element. Rather, the parenthetical date of birth information was given to

identify K.T. and thus distinguish her from any other person whose name might have been

mentioned during the trial. To hold otherwise would place form over substance and

manufacture an ambiguity on appeal that certainly never entered the jurors' minds. We

hold that the State, by using parenthetical date of birth information, did not add the

victim's date of birth to the essential elements of second degree assault or felony

harassment.

       2. 	   Whether the trial court erred in designating K. T. as a protected party ofa
              domestic violence no-contact order.

       Mr. Munoz-Rivera contends the trial court lacked statutory authority to designate

K.T. as a protected party of a domestic violence no-contact order because K.T. does not

qualify as a "family or household member" ofMr. Munoz-Rivera.

       This issue turns on the correct interpretation of the domestic violence act, chapter

10.99 RCW. "The meaning and purpose of a statute is a question of law, subject to de

novo review." State v. 0 'Brien, 115 Wn. App. 599,601,63 PJd 181 (2003). An

appellate court's "function in interpreting a statute is to discover and give effect to the

intent of the Legislature." State v. Hansen, 122 Wn.2d 712, 717, 862 P.2d 117 (1993).

"Absent ambiguity, this court relies on the plain language of the statute to derive its

                                              11 

No. 32356-1-II1
State v. Munoz-Rivera


meaning." State v. Garnica, 105 Wn. App. 762, 772, 20 P.3d 1069 (2001). Chapter

10.99 RCW should be construed as a whole without placing undue emphasis on

individual provisions of the statute. State v. Villegas, 72 Wn. App. 34, 38-39, 863 P.2d

560 (1993)).

      RCW 10.99.040(2)(a) authorizes a court to enter a no-contact order when a person

is charged with a crime involving domestic violence. A no-contact order may also be

made a condition of a sentence for a person who has been convicted of a crime.

RCW 10.99.050(1). "Domestic violence" includes various crimes (including second

degree assault) that are "committed by one family or household member against another."

RCW 10.99.020(5). In this context, "family or household member" means

      spouses, former spouses, persons who have a child in common regardless of
      whether they have been married or have lived together at any time, adult
      persons related by blood or marriage, adult persons who are presently
      residing together or who have resided together in the past, persons sixteen
      years of age or older who are presently residing together or who have
      resided together in the past and who have or have had a dating relationship,
      persons sixteen years of age or older with whom a person sixteen years of
      age or older has or has had dating relationship, and persons who have a
      biological or legal parent-child relationship, including stepparents and
      stepchildren and grandparents and grandchildren.

RCW 10.99.020(3) (emphasis added).

      Here, it is undisputed that K.T. is not Mr. Munoz-Rivera's biological child. It is

also undisputed that Mr. Munoz-Rivera and K.T.'s mother, Ms. Tamayo, were in a dating

                                            12 

No. 32356-1-III
State v. Munoz-Rivera


relationship and were residing together at the time the crimes occurred. Mr. Munoz-

Rivera contends that while he referred to Ms. Tamayo as his "wife" a number of times

during his testimony, there was no evidence presented that he and Ms. Tamayo were

legally married. RP at 240. Thus, he argues, he does not have a biological or legal

parent-child relationship with K.T.

       The State counters that the statute's language indicates the legislature intended that

the definition of "family or household member" be interpreted broadly, beyond strict legal

relationships. We reject this argument because the argument is inconsistent with the plain

language of the statute which uses the phrase "legal parent-child relationship" when

referring to stepchildren.

       The State next argues that the trial court had authority to bootstrap a chapter 10.99

RCW domestic violence protection order onto a community custody condition because

former RCW 9.94A.505(8) (2010)1 authorizes trial courts to impose crime-related

prohibitions. The State cites State v. Armendariz, 160 Wn.2d 106, 112-13, 156 PJd 201

(2007). While Armendariz allows a trial court to impose a general, no-contact order as a

crime-related prohibition, it does not allow a trial court to impose a domestic violence

protection order to protect persons outside its express provisions.



       1 RCW   9.94A.505(8) was renumbered RCW 9.94A.505(9) per the LAWS OF 2015,

                                             13 

No. 32356-1-II1
State v. Munoz-Rivera


       The State next argues that State v. Cortes Aguilar, 176 Wn. App. 264, 308 P.3d

778 (2013), review denied, 179 Wn.2d 1011,316 P.3d 494 (2014), permits K.T. to be

listed as a protected party under chapter 10.99 RCW because she was an indirect victim

of the violence committed against her mother. In Cortes Aguilar, the trial court granted

no-contact orders protecting two children from their father because they had been

victimized in the process of a murder he committed against their mother. 176 Wn. App.

at 278. One child had been a direct victim, having been hit while trying to intervene, and

both children were indirect victims because they had witnessed the incident. Id. The

Cortes Aguilar court upheld the no-contact orders against the defendant even as to the

child who was an indirect victim of the crime. Id. But this case is distinguishable from

Cortes Aguilar. While K.T. may have been an indirect victim of the domestic violence

committed against her mother, she still is not a "victim" for purposes of the domestic

violence act, which defines "victim" as a "family or household member who has been

subjected to domestic violence." RCW 10.99.020(8). In contrast, both children in Cortes

Aguilar satisfied that definition as the biological children of the defendant. Therefore, the

State's reliance on Cortes Aguilar is misplaced.




ch. 287, §10.

                                             14
No. 32356-1-II1
State v. Munoz-Rivera


       Because Mr. Munoz-Rivera and K.T. do not qualify as "family or household

members" under the plain language ofRCW 10.99.020(3), the trial court erred in

including K.T. as a protected party in the 10-year domestic violence no-contact order. 2

       3. 	    Whether Mr. Munoz-Rivera's counsel was ineffective for failing to
              challenge his offender score by arguing the second degree assault and
              felony harassment convictions arose out ofthe same criminal conduct.

       Mr. Munoz-Rivera contends he received ineffective assistance of counsel when his

attorney failed to argue at sentencing that the convictions for second degree assault and

felony harassment counted as one under the same criminal conduct rule.

       A claim for ineffective assistance of counsel presents a mixed question of law and

fact, which this court reviews de novo. State v. Jones, 183 Wn.2d 327,338,352 P.3d 776

(2015). "Competency of counsel is determined based upon the entire record below."

State v. McFarland, 127 Wn.2d 322,335,899 P.2d 1251 (1995). To prevail on a claim of

ineffective assistance of counsel, Mr. Munoz-Rivera must show: (1) defense counsel's

representation was deficient, Le., it fell below an objective standard of reasonableness

based on consideration of all the circumstances; and (2) defense counsel's deficient

representation prejudiced him, i.e., there is a reasonable probability that, except for



       2 We nevertheless note that K.T. and her mother are protected by a separate 10­
year no-contact order entered as part of the judgment and sentence. The propriety of this
protection order is not contested.

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No. 32356-1-III
State v. Munoz-Rivera


counsel's unprofessional errors, the result of the proceeding would have been different.

Id. at 334-35. If a defendant fails to establish either prong, this court need not inquire

further. State v. Hendrickson, 129 Wn.2d 61,78,917 P.2d 563 (1996).

       A defendant must also overcome a strong presumption that counsel's

representation was effective. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80

(2004). However, this presumption may be rebutted "where there is no conceivable

legitimate tactic explaining counsel's performance." Id. The failure to make a same

criminal conduct argument is prejudicial if the defendant shows that with the argument

the sentence would have differed. State v. Beasley, 126 Wn. App. 670, 686, 109 P.3d 849

(2005).

       A court may consider current convictions involving the "same criminal conduct"

as one crime for sentencing purposes. RCW 9.94A.589(1)(a). Offenses will count as the

"same criminal conduct" only when they (1) require the same criminal intent,

(2) are committed at the same time and place, and (3) involve the same victim.

RCW 9.94A.589(1)(a). Courts narrowly construe the same criminal conduct rule and if

any of the three elements is missing, each conviction must count separately in the

calculation of the defendant's offender score. State v. Porter, 133 Wn.2d 177, 181,942

P.2d 974 (1997).


                                              16
No. 32356-1-III
State v. Munoz-Rivera


       Here, there is no dispute that Mr. Munoz-Rivera committed assault and felony

harassment at the same time and place. However, the State contends that while K.T. was

the intended victim of the assault, both K.T. and Ms. Tamayo were victims of the felony

harassment. Additionally, the State argues the criminal intent changed between the two

crImes.

       In determining whether the two convictions involved the same victim, it is

important to note that two crimes cannot be the same criminal conduct if one involves two

victims and the other involves only one. See State v. Davison, 56 Wn. App. 554, 559-60,

784 P.2d 1268 (1990); State v. Dunaway, 109 Wn.2d 207,217,743 P.2d 1237 (1987)

("[C]rimes involving two victims constitute two separate incidents of criminal conduct.").

Here, the basis for the felony harassment conviction was Mr. Munoz-Rivera asking Ms.

Tamayo if she wanted to see her daughter die. The information named K.T. the victim of

that threat and the "to convict" jury instruction for felony harassment required the jury to

find that Mr. Munoz-Rivera both threatened to kill K.T. and placed K.T. in reasonable

fear that the threat to kill would be carried out. While the State argues that Ms. Tamayo

was also a victim of Mr. Munoz-Rivera's threat to kill K.T., the State's own theory of the

case was that K.T. was the intended victim of such harassment. Cf State v. Morales, 174




                                             17 

No. 32356-I-III
State v. Munoz-Rivera


Wn. App. 370) 381-84, 298 P.3d 791 (2013). Thus, the convictions for assault and felony

harassment both involved the same victim-K.T.

       Crimes may involve the same criminal intent if they were part of a "continuing)

uninterrupted sequence of conduct." Porter, 133 Wn.2d at 186. But when an offender

has time to "pause, reflect, and either cease his criminal activity or proceed to commit a

further criminal act," and makes the decision to proceed, he or she has formed a new

intent to commit the second act. State v. Grantham, 84 Wn. App. 854, 859,932 P.2d 657

(1997). In Grantham, the defendant anally raped the victim. [d. at 856. The victim did

not move afterward, and the defendant began kicking her. She then begged for him to

stop and for him to take her home. He then threatened her not to tell. He then forced her

to perform oral sex on him. The Grantham court properly held that there was evidence of

new objective intent between the two rapes. [d. at 859. In so holding, the court reasoned

that the defendant had time to reflect on what he did, threaten the victim not to tell, and he

then used new force to commit the second rape. [d.

       The facts here are arguably distinguishable from Grantham. Here, Mr. Munoz-

Rivera committed the second degree assault and the felony harassment almost

simultaneously, there was not a discussion between the two acts, and the second act was

virtually identical to the first. Nevertheless, we do not view defense counsel's failure to


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No. 32356-1-111
State v. Munoz-Rivera


raise this issue as deficient. Defense counsel knew that the State would argue for an

exceptional sentence because of the victim's age. Rather than argue whether the two acts

were separate criminal acts for a one offender point reduction, defense counsel

successfully focused on rebutting the State's requests for an exceptional sentence and for

the witness intimidation sentence to run consecutive with the two other convictions.

Indeed, had he argued both issues, the trial court might have rendered a split decision,

agreeing with the defense that the two acts were the same for sentencing purposes, but

agreeing with the State that an exceptional sentence or a consecutive sentence was

warranted. We find defense counsel's strategy during sentencing sound and not deficient.

       4. 	   Whether the trial court erred by imposing certain drug-related community
              custody conditions.

       Mr. Munoz-Rivera contends that the trial court exceeded its statutory authority by

imposing community custody conditions that are not crime related. He argues that

conditions that preclude him from possessing or using drug paraphernalia and loitering

for the purpose of engaging in drug-related activity, that prohibit association with drug

users or dealers or being in high drug use areas, and that require him to undergo

evaluation and treatment for substance abuse are not related to his crimes, as required by

RCW 9.94A.505. The State contends that because Mr. Munoz-Rivera committed the

crimes while under the influence of alcohol, the drug-related community custody

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No. 32356-1-II1
State v. Munoz-Rivera


conditions are sufficiently crime related, as any substance abuse treatment for alcohol use

will necessarily require him to refrain from spending time around drugs or other

individuals using drugs.

       Mr. Munoz-Rivera did not object to any of these conditions at sentencing.

Nevertheless, a defendant may challenge an erroneously imposed sentence for the first

time on appeal. State v. Jones, 118 Wn. App. 199,204, 76 P.3d 258 (2003). This court

reviews sentencing conditions for abuse of discretion. State v. Crockett, 118 Wn. App.

853, 856, 78 P.3d 658 (2003). Discretion is abused when it is exercised on untenable

grounds or for untenable reasons. State ex ref. Carroll v. Junker, 79 Wn.2d 12, 26, 482

P.2d 775 (1971). Even with this abuse of discretion standard, "a court will more carefully

review a condition that interferes with a fundamental constitutional right." Cortes

Aguilar, 176 Wn. App. at 277. "Conditions on a sentence that impose limitations on a

fundamental right must be 'sensitively imposed' so that they are 'reasonably necessary to

accomplish the essential needs of the State and public order. '" Id. (quoting State v.

Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008)).

       Former RCW 9.94A.505(8) permitted a court to impose "crime-related

prohibitions" as conditions of a sentence. 3 A "crime-related prohibition" is "an order of a



       3   Mr. Munoz-Rivera relies on former RCW 9.94A.505(8) because it was the statute

                                             20
No. 32356-1-III
State v. Munoz-Rivera


court prohibiting conduct that directly relates to the circumstances ofthe crime for which

the offender has been convicted." RCW 9.94A.030(lO) (emphasis added). Former

RCW 9.94A.703(3)4 permits courts to impose certain discretionary conditions as part of

any term of community custody, including requiring the defendant to:

             (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 ofreoffending, or the safety of the community;
             (e) Refrain from consuming alcohol; or
             (f) Comply with any crime-related prohibitions.

in effect when the crime was committed. The State does not challenge Mr. Munoz­
Rivera's reliance on former RCW 9.94A.505(8). However, the current version of the
statute, recodified as RCW 9.94A.505(9), has added a statement that '" [c] rime-related
prohibitions' may include a prohibition on the use or possession of alcohol or controlled
substances if the court finds that any chemical dependency or substance abuse contributed
to the offense." This new version of the statute became effective July 24, 2015. LAWS OF
2015, ch. 81, § 1; LAWS OF 2015, ch. 287, § 10.
        The Sentencing Reform Act of 1981, chapter 9.94A RCW, provides that any
sentence imposed under its authority must be in accordance with the law in effect when
the offense was committed. RCW 9.94A.345. Because the legislature did not express a
"contrary intent" in the amendatory act that the amended and recodified statute apply
retroactively, this court should apply former RCW 9.94A.505(8), which was in effect
when the crimes were committed in November 2013. See State v. Snedden, 166 Wn.
App. 541,544,271 P.3d 298 (2012).
        4 The legislature also amended RCW 9.94A.703(3)(e) to allow a court to order an
offender to "[r]efrain from possessing or consuming alcohol," effective July 24,2015.
LAWS OF 2015, ch. 81, § 3 (emphasis added). For the same reasons as described in
footnote two, this court should apply former RCW 9.94A.703(3)(e), which was in effect
when the crimes were committed in November 2013.

                                           21 

 No. 32356-1-III
 State v. Munoz-Rivera


        In Jones, this court struck community custody conditions requiring the defendant

 to participate in alcohol and mental health treatment and counseling. 118 Wn. App. at

 207-09. This court held that conditions imposed as "rehabilitative programs" or

 "affirmative conduct" must be supported by evidence in the record or found by the trial

 court to be related to the underlying offense. Id. at 208. The court reasoned that allowing

 trial-courts to order a rehabilitation program, regardless of the program's relationship to

 the underlying offense, would render superfluous former RCW 9.94A.700(5)(c) (2003),

 which, like former RCW 9.94A.505(8), provided that trial courts could order an offender

 to "participate in crime-related treatment or counseling services." Id. at 207-08. At the

 same time, this court upheld a condition prohibiting Mr. Jones from consuming alcohol,

 holding that, consistent with the plain language of former RCW 9.94A.703(3)(e), a trial

_court could impose the prohibition regardless of whether alcohol contributed to the

 commission of the underlying crime. Id at 206-07.

        Here, Mr. Munoz-Rivera contends that Jones requires this court to strike the drug-

 related community custody conditions because the record reveals Mr. Munoz-Rivera was

 under the influence of alcohol and not any other substances when the crimes were

 committed. The first community custody condition Mr. Munoz-Rivera challenges is one

 prohibiting him from "possess[ing] or us[ing] drug paraphernalia or commit[ting] the



                                              22 

No. 32356-1-III
State v. Munoz-Rivera


offense of loitering for the purpose of engaging in drug related activity." CP at 17. The

State presented no evidence that possession or use of drug paraphernalia or loitering for

the purpose of engaging in drug-related activity were in any way related to the crimes for

which he was convicted. Additionally, "mere possession of drug paraphernalia is not a

crime." State v. Land, 172 Wn. App. 593,605,295 P.3d 782 (2013). Therefore, these

conditions must be stricken.

       Second, Mr. Munoz-Rivera challenges community custody condition that states he

"shall not associate with any known user or dealer of unlawful controlled substances nor

frequent any places where the same are commonly known to be used, possessed or

delivered." CP at 17. As stated above, RCW 9.94A.703(3)(b) provides that a court has

the discretion to order an offender to "[r]efrain from direct or indirect contact with the

victim of the crime or a specified class of individuals." But again, such a condition,

prohibiting contact with a "specified class of individuals" must be crime related. State v.

Riles, 135 Wn.2d 326,350, 957 P.2d 655 (1998), abrogated on other grounds by State v.

Valencia, 169 Wn.2d 782, 792, 239 P.3d 1059 (2010). Furthermore, it is not illegal to

associate with drug users or dealers or to be in high drug use areas. Therefore, because

this condition is not sufficiently crime related in this case, in which there is no evidence

of drug use, it must also be stricken.


                                             23
No. 32356·1·III
State v. Munoz-Rivera


       Finally, Mr. Munoz·Rivera challenges the condition that he undergo evaluation

and treatment for "substance abuse" to the extent that it requires him to undergo treatment

for substances other than alcohol. The relevant statutory provision states that a court may

require an offender to "[p]articipate in crime-related treatment or counseling services."

RCW 9.94A.703(3)(c) (emphasis added). In Jones, the reviewing court concluded the

trial court had improperly imposed a condition requiring alcohol counseling when there

was evidence that methamphetamines, but not alcohol, contributed to the offense. 118

Wn. App. at 207·08. While the opposite is true here, where there was no evidence that

any substances other than alcohol contributed to the offense, Jones is still informative.

Therefore, because there is no evidence that substances other than alcohol contributed to

Mr. Munoz·Rivera's crimes, substance abuse evaluation and treatment must be restricted

to alcohol.

       To summarize our resolution of this issue, we remand to the trial court to strike the

conditions precluding Mr. Munoz-Rivera from possessing or using drug paraphernalia

and loitering for the purpose of engaging in drug·related activity, to strike the condition

prohibiting Mr. Munoz-Rivera from associating with drug users or dealers or from being

in high drug use areas, and to narrow the substance abuse evaluation and treatment to

alcohol.


                                             24
No. 32356-1-III
State v. Munoz-Rivera


       5. 	   Whether the trial court erred in imposing LFOs without considering Mr.
              Munoz-Rivera 's financial resources under RCW 10.01.160(3).

       For the first time on appeal, Mr. Munoz-Rivera contends that the trial court

improperly imposed LFOs without considering his financial resources under

RCW 10.01.160(3). He challenges $1,581.25 of discretionary costs consisting of a

$381.25 sheriff service fee, a $700.00 fee for a court appointed attorney, and a $500.00

fine under RCW 9A.20.021. Mr. Munoz-Rivera does not challenge the remaining

$1,502.42 of mandatory LFOs, consisting of $452.42 for restitution to the crime victims

compensation program, $500.00 victim penalty assessment, $200.00 criminal filing fee,

$250.00 jury demand fee, or $100.00 DNA collection fee.

      RCW 10.01.160(1) states, "The court may require a defendant to pay costs."

RCW 10.01.160(2) describes what items may be assessed as costs, and sets forth financial

limits for certain costs. RCW 10.01.160(3) provides:

      The court shall not order a defendant to pay costs unless the defendant is or
      will be able to pay them. In determining the amount and method of
      payment of costs, the court shall take account of the financial resources of
      the defendant and the nature of the burden that payment of costs will
      Impose.

      RAP 2.5(a) provides, in relevant part, that an appellate court "may refuse to review

any claim of error which was not raised in the trial court." The rule provides three

exceptions that allow an appeal as a matter of right. RAP 2.5(a). Mr. Munoz-Rivera does

                                            25 

No. 32356-1-111
State v. Munoz-Rivera


not argue that one of the RAP 2.5(a) exceptions applies. Instead, he asks this court to

exercise its discretion to review the issue.

          The Washington Supreme Court recently clarified that an appellate court's

discretion under RAP 2.5(a) extends to reviewing a trial court's imposition of

discretionary LFOs. State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015).

While such unpreserved LFO errors do not command review as a matter of right, each

appellate court is entitled to "make its own decision to accept discretionary review." ld.

at 835.

          The Blazina court also determined that RCW 10.01.160(3) requires the trial court

to "do more than sign a judgment and sentence with boilerplate language stating that it

engaged in the required inquiry." ld. at 838. Instead, "[t]he record must reflect that the

trial court made an individualized inquiry into the defendant's current and future ability to

pay." ld. This inquiry includes consideration of factors such as the defendant's financial

resources, incarceration, and other debts, including restitution. ld.

          Rather than exercise our discretion to review whether discretionary LFOs were

properly imposed, we remand this issue to the trial court for it to make an adequate

inquiry as discussed above.




                                               26 

No. 32356-I-III
State v. Munoz-Rivera


       6. 	   Whether it was a scrivener's error for the judgment and sentence to include
              a finding ofan exceptional sentence where the trial court did not make such
              a finding or impose such a sentence.

       Mr. Munoz-Rivera contends, and the State concedes, that the judgment and

sentence improperly included a finding that "[s]ubstantial and compelling reasons exist

which justifY an exceptional sentence ... above the standard range for Count I."

CP at 11. The remedy for clerical or scrivener's errors in judgment and sentence forms is

remand to the trial court for correction. State v. Naillieux, 158 Wn. App. 630,646,241

P.3d 1280 (2010). Therefore, we also remand for correction of this error.

       Affirm in part and remanded for proceedings consistent with this opinion.




                                              l~~~t---
                                              Lawrence-Berrey, J.

I CONCUR: 





K: rsmo, J.   {I



                                           27 

                                       No. 32356-1-II1

       SIDDOWAY,    C.J. (concurring)-I write separately to explain why Ijoin in

exercising discretion to consider Mr. Munoz-Rivera's argument for the first time on

appeal that the record does not support the trial court's finding that he was able to pay the

legal financial obligations (LFOs) imposed.

       It was well settled before State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015),

that we may exercise discretion to review error raised for the first time on appeal. But we

ordinarily do not. Most often we follow the "general rule for appellate disposition of

issues not raised in the trial court: appellate courts will not entertain them." State v.

Guzman Nunez, 160 Wn. App. 150, 157,248 P.3d 103 (2011) (citing State v. Scott, 110

Wn.2d 682,685, 757 P.2d 492 (1988)), aff'd, 174 Wn.2d 707, 285 P.3d 21 (2012).

       Here, however, we will be sending the case back to the trial court for correction of

a scrivener's error and to strike and narrow some of the conditions of community

custody. Although Mr. Munoz-Rivera was 29 years old at the time he was sentenced,

was established by trial testimony to have more than full-time employment, and may

have knowingly forgone a challenge to his ability to pay at the time of sentencing, it is

undisputed that the trial court did not engage in an individualized inquiry about his ability

to pay before imposing discretionary LFOs. Where a criminal defendant fails to preserve

a trial court's error in failing to conduct an individualized inquiry, judicial economy will
No. 32356-1-111
State v. Munoz-Rivera


sometimes be served by reviewing that error if we will be remanding for resentencing for

other reasons. This is such a case.




                                            2

