      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      No. 77488-3-1

                         Respondent,      DIVISION ONE
              V.
                                          UNPUBLISHED OPINION
 ALEX ARNOLD CHAVEZ,

                        Appellant.        FILED: June 17, 2019


      CHUN, J. — A jury convicted Alex Chavez of domestic violence felony

violation of a no-contact order. On appeal, Chavez raises claims of prosecutorial

misconduct. Because none of the prosecutor's statements amount to error, we

affirm the conviction. However, the incorrectly calculated offender score and

improperly imposed DNA fee require remand for resentencing.

                                BACKGROUND

      In October 2015, the King County District Court issued a post-conviction

replacement no-contact order restraining Chavez from contacting his former

girlfriend, the mother of his child. The order prohibited Chavez from knowingly

entering, remaining, or coming within 500 feet of Amy Krajci's residence, school,

workplace, or vehicle. The order has a duration of five years.

      One morning in February 2017, Krajci called the police to report that she

saw Chavez outside her apartment in violation of the no-contact order. The

police responded and located Chavez about 100 feet from Krajci's building.
No. 77488-3-1/2


Seattle Police Officer David Moore contacted Chavez and placed him under

arrest for violating the no-contact order. Because of Chavez's extensive history

of convictions for violating court orders, the State charged him with domestic

violence felony violation of a court order.

        During the trial, Officer Moore testified about his encounter with Chavez.

RP 570-82, 643-64. Officer Moore stated that Chavez cooperated, but initially

questioned if the arrest was a "ruse." When Officer Moore asked Chavez if he

was aware that he had a no-contact order, Chavez responded, "I wasn't aware

that I was violating it."

        Officer Moore searched Chavez incident to arrest. Among the items in

Chavez's pockets, Officer Moore found an Electronic Benefits Transfer(EBT)

card) Chavez told Officer Moore he wanted to give the card to his daughter.

Along with this statement, Chavez turned back towards the residence and

motioned with his head. Officer Moore further testified that Chavez expressed

concern that he had not seen or heard from his daughter and wanted information

about her. Officer Moore spoke with Chavez about possible ways to find

information about his daughter without violating the court order.

       After further testimony, a jury convicted Chavez of domestic violence

felony violation of a court order. The trial court calculated an offender score of

19, with a standard range sentence of 72 to 96 months. Instead of a standard


        1 For those with food assistance benefits, an EBT card acts as a debit card to purchase
food items at stores. Https://www.dshs.wa.gov/esa/community-services-offices/ebt-and-eft-make-
getting-benefits-easier.




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range sentence, the trial court sentenced Chavez to a 30 month prison-based

drug offender sentencing alternative. The court also ordered Chavez to pay the

$100 DNA collection fee.

       Chavez appeals.
                                       II.
                                    ANALYSIS

   A. Prosecutorial Misconduct

       To prevail on a claim of prosecutorial misconduct, the defendant must

prove that the prosecutor's comments were improper and prejudicial. State v.

Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2008). "The burden to establish

prejudice requires the defendant to prove that 'there is a substantial likelihood

[that] the instances of misconduct affected the jury's verdict." State v.

Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43(2011)(quoting State v.

Maciers, 164 Wn.2d 174, 191, 189 P.3d 126(2007)(alteration in original)).

       Chavez raises two claims of prosecutorial misconduct based on

statements made during the opening and closing arguments of the State's case.

He contends the prosecutor argued facts not in evidence and improperly shifted

the evidentiary burden. We conclude that neither claim amounts to prosecutorial

misconduct.

       1. Facts Not in Evidence

       Chavez argues the prosecutor stated in opening and closing arguments

that Chavez clearly told police that he was concerned about his daughter and

wanted to give her the EBT card. According to Chavez, the State failed to




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produce evidence that Chavez explicitly made statements to that effect. We

disagree.

       The State has wide latitude to argue inferences from the evidence but, "a

prosecutor commits reversible misconduct by urging the jury to decide a case

based on evidence outside the record." State v. Pierce, 169 Wn. App. 533, 553,

280 P.3d 1158 (2012).

      The State made several statements about Chavez's desire to give the

EBT card to his daughter. In opening statements, the prosecutor told the jury

that Chavez, "tells the officers that he is there because he's concerned about his

daughter. He wants to give his daughter an EBT card." The prosecutor repeats

this claim in closing arguments: "He's very clear. This is why he's here. It's not

complete happenstance that he's on this corner and his daughter happens to be

inside. And he has an EBT card in his pocket that he just happens to tell the

officers, I'm here to give this to my daughter." And finally, the prosecutor

summarized Officer Moore's testimony as, "the Defendant talked to me about

being there to give his daughter an EBT card."

       Chavez claims the prosecutor's statements "grievously misstated the

testimony." But the prosecutor did not misstate the evidence. Instead, the

prosecutor referenced the testimony from Officer Moore. Officer Moore testified

that Chavez expressed concern about his daughter during their conversations.

RP 573. Officer Moore also stated that upon the search incident to arrest,

Chavez had an EBT card in his pocket, said he wanted to give the card to his




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daughter, and motioned toward Krajci's residence with his head. The

prosecutor's comments constitute logical inferences from this testimony and were

not improper.

       2. Burden Shifting

       Chavez also argues the prosecutor improperly shifted the evidentiary

burden during closing arguments. The State claims the prosecutor permissibly

commented on the lack of evidence to support other theories of the case. We

agree with the State.

       The State bears the burden of proving all elements of its case beyond a

reasonable doubt. State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076

(1996). "[1]t is flagrant misconduct to shift the burden of proof to the defendant."

State v. Miles, 139 Wn. App. 879, 890, 162 P.3d 1169 (2007). A prosecutor may

commit misconduct by telling the jury to find a defendant guilty based on the

failure to present evidence to support the defense's theory. State v. Sells, 166

Wn. App. 918, 930, 271 P.3d 952(2012). "However,'[t]he mere mention that

defense evidence is lacking does not constitute prosecutorial misconduct or shift

the burden of proof to the defense." Sells 166 Wn. App. at 930 (quoting State v.

Jackson, 150 Wn. App. 877, 885-86, 209 P.3d 553(2009)). A prosecutor is

entitled to "point out improbabilities or a lack of evidentiary support for the

defense's theory of the case." State v. Killingsworth, 166 Wn. App. 283, 291-92,

269 P.3d 1064 (2012).




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       Here, the prosecutor made exactly this observation to the jury. The

prosecutor stated,"So we know that the defendant knowingly violated the order.

There is absolutely no evidence to the contrary and, in fact, all the evidence

shows that he knew she was there. He wanted to give her his EBT card." The

prosecutor also made a subsequent comment that, "the State is asking you and

will continue to ask you to draw reasonable inferences from the evidence or lack

thereof."

      The prosecutor's statements do not imply that the defense was required to

produce evidence and failed to do so. See Killingsworth, 166 Wn. App. at 291-

92. Instead, the statements merely point to the strength of the State's evidence

and the lack of evidentiary support for any other theory. As such, these

statements do not shift the burden of proof to the defendant and do not constitute

improper statements.

       Because the prosecutor's statements were not improper, Chavez cannot

prevail on a claim of prosecutorial misconduct. We affirm his conviction and turn

to the sentencing issues.

   B. Offender Score Miscalculation

       Chavez claims the trial court miscalculated his offender score by

improperly doubling his prior domestic violence convictions. The State concedes

this error. We agree and remand for recalculation and resentencing based on

the corrected score.




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No. 77488-3-1/7


        In order to determine the appropriate sentence, the trial court must

calculate a defendant's offender score by adding together the current offenses

and prior convictions. State v. Hunley, 175 Wn.2d 901, 908-09, 287 P.3d 584

(2012); RCW 9.94A.525. The State bears the burden of proving prior convictions

by a preponderance of evidence. Hunley, 175 Wn.2d at 909-10. An appellate

court reviews the calculation of offender scores de novo. State v. Shelley, 3 Wn.

App.2d 196, 199, 414 P.3d 1153 (2018).

        When calculating the offender score, each prior adult felony conviction

generally counts as one point, while juvenile felony convictions counts as a half

point. RCW 9.94A.525(7). However, if a defendant's present conviction is a

domestic violence offense, the court must double each prior felony conviction—

both adult and juvenile—where domestic violence was pleaded and proven after

August 1, 2011. RCW 9.94A.525(21)(a),(c).2

       2(21) If the present conviction is for a felony domestic violence offense where
   domestic violence as defined in RCW 9.94A.030 was pleaded and proven, count
   priors as in subsections (7) through (20) of this section; however, count points as
   follows:
         (a) Count two points for each adult prior conviction where domestic violence
   as defined in RCW 9.94A.030 was pleaded and proven after August 1, 2011, for
   any of the following offenses: A felony violation of a no-contact or protection order
   RCW 26.50.110, felony Harassment (RCW 9A.46.020(2)(b)), felony Stalking
   (RCW 9A.46.110(5)(b)), Burglary 1 (RCW 9A.52.020), Kidnapping 1 (RCW
   9A.40.020), Kidnapping 2 (RCW 9A.40.030), Unlawful Imprisonment (RCW
   9A.40.040), Robbery 1 (RCW 9A.56.200), Robbery 2(RCW 9A.56.210), Assault 1
   (RCW 9A.36.011), Assault 2 (RCW 9A.36.021), Assault 3 (RCW 9A.36.031),
   Arson 1 (RCW 9A.48.020), or Arson 2(RCW 9A.48.030);

        (c) Count one point for each second and subsequent juvenile conviction
  where domestic violence as defined in RCW 9.94A.030 was pleaded and proven
  after August 1, 2011, for the offenses listed in (a) of this subsection; and
        (d) Count one point for each adult prior conviction for a repetitive domestic
  violence offense as defined in RCW 9.94A.030, where domestic violence as
  defined in RCW 9.94A.030, was pleaded and proven after August 1, 2011.
RCW 9.94A.525(21)(a),(c),(d).




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No. 77488-3-1/8


       Chavez has a lengthy record of felony domestic violence related

convictions, with four juvenile and five adult convictions. When calculating his

offender score, the trial court doubled these nine convictions to arrive at an

offender score of 19. But RCW 9.94A.525(21) does not apply because the nine

convictions were pleaded and proven before August 1, 2011. Therefore, the trial

court erred in its calculation of Chavez's offender score.

       By imposing a sentence based on an incorrect offender score, the trial

court acted without statutory authority. In re Pers. Restraint of Goodwin, 146

Wn.2d 861, 868, 50 P.3d 618 (2002). The defendant is entitled to reversal and

remand for resentencing on the erroneous portion of the sentence. Goodwin,

146 Wn.2d at 869-70. On remand, both Chavez and the State "have the

opportunity to present any evidence relevant to ensure the accuracy of the

criminal history." State v. Jones, 182 Wn.2d 1, 10-11, 338 P.3d 278 (2014).

   C. DNA Fee

       Both parties request remand for the trial court to strike the $100 DNA fee

because the State previously collected Chavez's DNA due to prior convictions. A

legislative amendment effective June 7, 2018, eliminated the mandatory $100

DNA collection fee where "the state has previously collected the offender's DNA

as a result of a prior conviction." RCW 43.43.7541. This amendment applies

prospectively to Chavez due to his pending direct appeal at the time of the

amendment's enactment. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714




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(2018). As a result, we agree with the parties' request and remand for the trial

court to strike the DNA fee from the judgment and sentence.

       Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.




WE CONCUR:




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