                                                                 FILED
                                                             DECEMBER 24, 2019
                                                          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. 36007-5-III
                                               )
                     Respondent,               )
                                               )
       v.                                      )          UNPUBLISHED OPINION
                                               )
FRANCISCO MANUEL AGUINAGA,                     )
                                               )
                     Appellant.                )

       FEARING, J. — RCW 10.01.160(3) permits the imposition of discretionary legal

financial obligations only if the offender has the current or likely future ability to pay. In

the landmark decision, State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), our state

high court directed the sentencing judge to engage in an individualized inquiry into the

offender’s assets, income, and debt before the court imposes the legal financial

obligations. Despite agreeing to pay financial obligations, Francisco Aguinaga contends,

on appeal, that the trial court failed to engage in an individualized inquiry. The State

answers that Aguinaga either waived his right to an individualized inquiry or invited any

error. The State also contends that the sentencing court conducted an individualized

inquiry. We decline to address the parties’ contentions. We instead exercise the
No. 36007-5-III
State v. Aguinaga


discretion afforded us by the Supreme Court in State v. Blazina to decline review of an

issue not raised before the trial court.

                                             FACTS

       The facts supporting Francisco Aguinaga’s conviction for burglary in the first

degree lack relevance to this appeal. Evidence showed that Aguinaga entered the home

of Mike Vasquez and assaulted Vasquez.

                                           PROCEDURE

       A jury found Francisco Aguinaga guilty of burglary in the first degree. The

sentencing court sentenced Aguinaga to fifteen months’ confinement followed by

eighteen months’ community custody.

       During the sentencing hearing, the trial court engaged in the following colloquy

with Francisco Aguinaga:

               [THE COURT:] We need to talk about your ability to pay legal
       financial obligations.
               Now, when you worked in Spokane, you owned your own business?
       It’s a music-related business?
               [AGUINAGA]: Yeah. I have—I perform weekly out there. And
       that’s how I—
               THE COURT: Like, you are a deejay?
               [AGUINAGA]: Mm-hmm.
               THE COURT: Okay. And how much do you make in a year?
               [AGUINAGA]: I’m not too sure. With my—it depends, because on
       the record label that I’m on, we do certain yearly tours and stuff like that.


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No. 36007-5-III
State v. Aguinaga


      So we have yearly/monthly cash outs. And then I get paid weekly in
      Spokane.
             I’m able to pay fines.
             THE COURT: Okay. All right.
             Now, Ms. Ajax was appointed to represent you at public expense;
      was she not?
             [AGUINAGA]: Yeah.
             THE COURT: All right. And that was because you didn’t have
      money saved up to hire an attorney?—the several thousand dollars or
      whatever it takes?
             [AGUINAGA]: Yeah.
             THE COURT: But you’re confident you can come up with between
      $50 and $100 a month?
             [AGUINAGA]: When the whole—when everything started, I was
      not prepared at all for any of this. I was saving up money for a new lease
      and a van. And I had to put that all into gas money and hotels and getting
      bailed out.
             THE COURT: Okay. But you’re confident that going forward, once
      you get done with your prison time—assuming that I think I see some
      paperwork for filing an appeal. No?
             At any rate, once you’re done with this, you’re confident you can get
      back to work and pay between $50 and $100 per month?
             [AGUINAGA]: Yes, sir.

Report of Proceedings (Feb. 22, 2018) (RP) at 11-12 (emphasis added).

      The trial court imposed legal financial obligations as follows:

        $500.00     Crime victim penalty assessment
        $200.00     Criminal filing fee
        $100.00     DNA collection fee
        $600.00     Sheriff’s service fee
        $250.00     Jury demand fee
         $96.68     Witness fee

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No. 36007-5-III
State v. Aguinaga




The financial obligations totaled $1,906.68. RP at 12-13.

                                  LAW AND ANALYSIS

       On appeal, Francisco Aguinaga contends the trial court failed to conduct an

individualized inquiry into his current and future ability to pay legal financial obligations

and, therefore, the sentencing court failed to comply with the dictates of State v. Blazina,

182 Wn.2d 827 (2015). Aguinaga asks this court to remand for the sentencing court to

engage in this inquiry.

       The State emphasizes that Francisco Aguinaga volunteered his ability to pay fines.

Therefore, the State argues that Aguinaga invited any error or waived the right to an

individualized inquiry into his ability to pay legal financial obligations. Based on waiver

and the invited error doctrine, the State asks that we reject Aguinaga’s assignment of

error. The State also argues that, assuming we reach the merits of Aguinaga’s assignment

of error, sufficient facts before the sentencing court supported a ruling that Aguinaga

could afford to pay the financial obligations.

       Despite the Supreme Court issuing its decision in State v. Blazina, 182 Wn.2d 827

(2015), more than two years before Francisco Aguinaga’s sentencing hearing, Aguinaga

did not demand that the trial court conduct any individualized inquiry into his ability to


                                                 4
No. 36007-5-III
State v. Aguinaga


pay legal financial obligations. Because he did not ask for this inquiry and because of the

smallish amount of financial obligations, we exercise our discretion and withhold review

of Aguinaga’s assignment of error. We, therefore, do not address the State’s assertion of

waiver and invited error.

       In State v. Blazina, 182 Wn.2d 827 (2015), the state high court directed superior

courts to conduct an individualized inquiry into the financial circumstances of each

offender before levying any discretionary legal financial obligations. Nevertheless, the

Supreme Court did not hold that the Court of Appeals must entertain any assignment of

error based on the trial court’s failure to conduct an individualized inquiry. Instead, the

high court noted the rule on appeal that an “appellate court may refuse to review any

claim of error which was not raised in the trial court.” RAP 2.5(a). This rule exists to

give the trial court an opportunity to correct the error and to give the opposing party an

opportunity to respond. The text of RAP 2.5(a) delineates three exceptions that allow an

appeal as a matter of right, but none of these exceptions applies in the context of legal

financial obligations. Therefore, a defendant who makes no objection to the imposition

of discretionary financial obligations at sentencing is not automatically entitled to

appellate review. The high court did not outline any factors or guidelines for the Court of

Appeals to consider when determining whether to exercise review.


                                              5
No. 36007-5-111
State v. Aguinaga


                                      CONCLUSION

       We deny review of Francisco Aguinaga's assignment of error of the trial court's

purported failure to engage in an individualized inquiry as to his ability to pay legal

financial obligations.

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

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

RCW 2.06.040.



                                           Fearing, J.

WE CONCUR:




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Siddoway, J.



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Pennell, A.CJ.




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