                                                                FILED 

                                                              FEB. 27, 2014 

                                                      In tbe Office of tbe Clerk of Court 

                                                    W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                           )         No. 30945-2-III
                                               )
                      Respondent,              )
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
JORGE ENRIQUE RODRIGUEZ,                       )

                                               )

                      Appellant.               )


       ANTOSZ, J..   - Jorge Enrique Rodriguez appeals his conviction for felony

violation of a no-contact order. He argues (l) the trial court erred by failing to instruct

the jury that it had to be unanimous as to the specific act constituting the violation, and

(2) inadequate evidence supports the trial court's fmding that he has the current or future

ability to pay his legal fmancial obligations. Additionally, in a statement of additional

grounds for review (SAG), Mr. Rodriguez alleges sentencing error and inadequate

representation of counsel. Finding no reversible error, we affirm.




      • Judge John M. Antosz is serving as judge pro tempore ofthe Court ofAppeals
pursuant to RCW 2.06.150.
No. 30945·2-111
State v. Rodriguez


                                           FACTS

       During September 2011, Jorge Rodriguez and Diana Houck lived at his house at

115 North 7th Avenue, Pasco, Washington. On September 9,2011, Mr. Rodriguez was

arrested and charged for domestic violence assault involving Ms. Houck. The court

subsequently issued a no-contact order prohibiting Mr. Rodriguez from coming within

two blocks of his house and contacting Ms. Houck. On September 25,2011, City of

Pasco Police Officer Randall Roach responded to a domestic violence call from Ms.

Houck. Officer Roach proceeded to 115 North 7th Avenue and found Mr. Rodriguez

asleep at the residence. Officer Roach arrested Mr. Rodriguez for violation of the no-

contact order. The State charged Mr. Rodriguez by amended information with felony

violation of a no-contact order.

       At trial, Mr. Rodriguez testified that after his September 9 arrest, he communicated

with Ms. Houck about the possibility of her bailing him out ofjail. Mr. Rodriguez also

testified that on September 12,2011, a police officer conducted a civil standby allowing

Mr. Rodriguez to collect personal items from his house while Ms. Houck was present. As

to the September 25,2011 incident, he explained that Ms. Houck had permitted him to go

to his house to give medicine to his dog because she was unable to do so. He also

testified that he needed a place to stay after drinking with friends.


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No. 30945-2-111
State v. Rodriguez


          A jury found Mr. Rodriguez guilty as charged.

          At sentencing, the court imposed a mid-range standard sentence. It also imposed

$2,876.75 in legal financial obligations. The court made no oral inquiry or statement on

Mr. Rodriguez's ability to pay. However, section 2.5 of the judgment and sentence

stated:

          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: 

          [X] That 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.

Clerk's Papers (CP) at 12.

          Mr. Rodriguez appeals, claiming the court erred in failing to give a unanimity

instruction and in entering a finding on his ability to pay his legal financial obligations.

                                           ANALYSIS

          Mr. Rodriguez first contends the trial court should have given a unanimity

instruction because the conviction could have been based on several acts, which included

(1) speaking to Ms. Houck, (2) going to the protected address, (3) and/or being found

asleep in the house by police, with the jury potentially not being unanimous about anyone

of these alternatives.

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No. 30945-2-111
State v. Rodriguez


       The question ofjury unanimity is an issue of constitutional magnitude that can be

raised initially on appeal. CONST. art. I, § 21; RAP 2.5(a)(3); State v. Fiallo-Lopez, 78

Wn. App. 717, 725, 899 P .2d 1294 (1995). This assignment of error is reviewed de novo.

State v. Bradshaw, 152 Wn.2d 528,531,98 P.3d 1190 (2004).

       A defendant may be convicted only when a unanimous jury concludes that the

defendant committed the criminal act charged in the information. State v. Kitchen, 110

Wn.2d 403,409, 756 P.2d 105 (1988). When the State presents evidence of multiple acts

of similar misconduct, anyone of which could form the basis of the count charged, the

State must either elect which of these acts it relies on for a conviction or the trial court

must instruct the jury that all 12 jurors must agree that the State has proved the same

underlying act beyond a reasonable doubt. State v. Coleman, 159 Wn.2d 509,511-12,

150 P.3d 1126 (2007); Kitchen, 110 Wn.2d at 411. This ensures a unanimous verdict on

one criminal act. Coleman, 159 Wn.2d at 512. Where there is neither an election nor a

unanimity instruction in a mUltiple acts case, a constitutional error occurs. Coleman, 159

Wn.2d at 512; Kitchen, 110 Wn.2d at 409,411. This type of error requires a new trial

unless shown to be harmless beyond a reasonable doubt. State v. Camarillo, 115 Wn.2d

60,64,794 P.2d 850 (1990).




                                               4

No.30945-2-III
State v. Rodriguez


       The State correctly points out that no election or unanimity instruction is needed if

the defendant's acts were part of a continuing course of conduct. State v. Handran, 113

Wn.2d 11, 17, 775 P.2d 453 (1989). It then asserts that the separate acts cited by Mr.

Rodriguez constitute a continuing course of conduct because they involved the same

victim, the same no-contact order, and occurred around the same time period. It argues

these acts "represent a continuing course of conduct whereby [Mr. Rodriguez] reclaimed

their residence for himself in violation of the no contact order." Resp't's Br. at 8.

       Both sides overlook the fact that two of the separate acts occurred prior to the

charging date. The charging document alleged that on or about September 25,2011, Mr.

Rodriguez, with knowledge that the Pasco Municipal Court had issued a no-contact order,

knowingly violated its provisions. The State presented evidence that the Pasco Municipal

Court issued a no-contact order prohibiting Mr. Rodriguez from having any contact with

Ms. Houck or entering or remaining within two blocks of his house, and that subsequent

to that order, on September 25,2011, police found Mr. Rodriguez asleep at his house.

The jury was then instructed that the relevant charging date was September 25,2011.

Instruction 10 stated: "(1) That on or about September 25,2011, there existed a no-

contact order applicable to the defendant; (2) That the defendant knew of the existence of

this order; (3) That on or about said date, the defendant knowingly violated a provision of



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No. 30945-2-111
State v. Rodriguez


this order." CP at 37. In view of the information and the jury instructions, the jury could

not have considered the earlier incidents cited by Mr. Rodriguez because they occurred

prior to the charging date. Accordingly, a unanimity instruction was not needed.

       Citing State v. Bertrand, 165 Wn. App. 393, 404, 267 P.3d 511 (2011), Mr.

Rodriguez next argues that the trial court erred by finding that he had the current or likely

future ability to pay the legal financial obligations imposed by the court because nothing

in the record supported the finding. In his reply brief, he specifies that he only objects to

the discretionary legal financial obligations of$I,676.75 in court costs.

       The distinction between mandatory and discretionary legal financial obligations is

important. The legislature has divested courts of the discretion to consider a defendant's

ability to pay when imposing mandatory legal financial obligations. For victim restitution

and assessments, DNA 1 collection fees, criminal filing fees, and appellate costs, a

defendant's ability to pay is not considered. State v. Curry, 62 Wn. App. 676, 680, 814

P.2d 1252 (1991), aff'd, 118 Wn.2d 911,829 P.2d 166 (1992); State v. Thompson, 153

Wn. App. 325, 336, 223 PJd 1165 (2009); RCW 10.73.160(3). However, unlike

mandatory obligations, if a court imposes discretionary legal financial obligations, it must

consider the defendant's present or likely future ability to pay. State v. Lundy, 176 Wn.


       1 Deoxyribonucleic   acid.

                                              6

No.30945-2-III
State v. Rodriguez


App. 96, 103,308 P.3d 755 (2013). Thus, before making such a finding, the trial court

must '" [take] into account the financial resources of the defendant and the nature of the

burden'" imposed by the legal financial obligations. Bertrand, 165 Wn. App. at 404

(quoting State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116,837 P.2d 646 (1991)).

       We review a trial court's determination of an offender's financial resources and

ability to pay under the clearly erroneous standard. Bertrand, 165 Wn. App. at 404 n.13

(quoting Baldwin, 63 Wn. App. at 312). A finding is clearly erroneous if, although there

is some evidence to support it, review of all of the evidence leads to a "definite and firm

conviction that a mistake has been committed." Wenatchee Sportsmen Ass 'n v. Chelan

County, 141 Wn.2d 169,176,4 P.3d 123 (2000).

       While the court did not address Mr. Rodriguez's ability to pay during the

sentencing hearing, its finding is supported by the record because Mr. Rodriguez testified

that he owns a house. The State's burden for establishing whether a defendant has the

present or likely future ability to pay discretionary legal financial obligations is a low one.

In Baldwin, it was met by a single sentence in a presentence report in which Mr. Baldwin

described himself as "employable." Baldwin, 63 Wn. App. at 311. Thus, evidence that

Mr. Rodriguez owns a house adequately supports the finding in the judgment and the

sentence that he had the ability or likely future ability to pay the ordered legal financial


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No. 30945-2-III
State v. Rodriguez


obligations.

               STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In his pro se SAG, Mr. Rodriguez contends "there is confusion" regarding his

judgment and sentence, but fails to specifY the nature of the alleged error. He also

contends that he "needs to set up an [sic] court date to explain his evidence for his case"

because "counsel did not call for any witnesses and didn't show all the evidence for his

case." SAG at L He claims the evidence would show that an assault charge was dropped

and attaches a document from the Pasco Municipal Court indicating an assault charge was

dismissed on December 30,2011, due to witness unavailability.

       These claims either involve matters outside the record, State v. McFarland, 127

Wn.2d 322, 335,338 n.5, 899 P.2d 1251 (1995) (matters outside record must be raised in

personal restraint petition), or are insufficiently argued. RAP 10.10(c). Although

RAP 10.10(c) states that reference to the record and citation to authorities are not required

in an SAG, the rule also states that the appellate court will not consider the SAG for

review ifit does not inform the court of the nature and occurrence of the alleged errors.

Here, Mr. Rodriguez fails to adequately describe the nature and occurrence of any alleged

errors as required by RAP 10.10(c). Accordingly, we are unable to address his claims.




                                             8

No. 30945-2-111
State v. Rodriguez


      We affinn the trial court.

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

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

RCW 2.06.040.


                                         Antos$7ct~
WE CONCUR:




Siddoway, A.C.J.             {/




                                            9

