                                                                                                            FILED
                                                                                                   COURT OF APPEALS
                                                                                                        DP / MON7x

                                                                                              201ei MAY — 6     AN 8: 30
    IN THE COURT OF APPEALS OF THE STATE OF W                                                           I
                                                                                                          AONCT
                                                     DIVISION II                               BY.      40
                                                                                                             PUTY
STATE OF WASHINGTON,                                                                No. 44205 -1 - II


                                     Respondent,


        v.



HENRY URQUIJO,                                                             UNPUBLISHED OPINION


                                     Appellant.


        MELNICK, J. —        Henry Urquijo appeals his conviction for felony violation of a domestic

violence no contact order and          the community custody term             of   his   sentence.    He argues that ( 1)


the trial court violated his public trial right when it heard peremptory challenges in private and

2) the trial court erred when it imposed a community custody term in excess of the statutory

maximum.       He also includes a pro se statement of additional grounds ( SAG) arguing ineffective

assistance of counsel and       challenging      witness       credibility. We hold that the trial court' s decision


to hear peremptory challenges at a table in the courtroom did not violate Urquijo' s right to an

open and public     trial. The issues in Urquijo'          s   SAG   are outside   the   record.     The trial court erred


when it sentenced Urquijo to the maximum term of confinement plus community custody for a

term   equal   to the length   of   early   release.    Therefore, we affirm the conviction but remand to the


trial court to amend the community custody term or to resentence.

                                                          FACTS


         The State charged Urquijo with felony violation of a domestic violence no contact order.

After voir dire, the trial court stated,


          Ladies and Gentlemen, I' m going to allow you to stand and stretch. I would ask
         that you stay in the courtroom, the attorneys and I are going to step over to the
         table   with   Mr. Urquijo. We        are     going to be   having   a chat and can— rest assured,

         we' re   talking   about you."
44205 -1 - II




Report     of   Proceedings (       Jury   Voir Dire)        at   59.   Neither party   objected.    Although the record of


proceedings ends at this point, the clerk' s voir dire minutes show that peremptory challenges

began at 10: 12 A.M. and the jury was empanelled shortly thereafter.

           The     jury     found Urquijo guilty.                 The trial court sentenced him to 60 months of


confinement and community custody for a " term to be equal to [ the] length of earned early

release,   not to      exceed      12   months."        Clerk' s Papers ( CP) at 38. Urquijo appeals.


                                                               ANALYSIS


L'         PUBLIC TRIAL RIGHT


           Urquijo first argues that the trial court violated his public trial right when it conducted

peremptory         challenges at a        table inside the        courtroom.     This   contention   fails.   In State v. Dunn,


No. 43855 -1 - II, 2014 WL 1379172 ( Wash. Ct.                          App.   Apr. 8, 2014),   we previously decided the

issue Urquijo raised. In Dunn, we held that the trial court did not violate a defendant' s right to a

public     trial   when      the   attorneys          exercised   peremptory    challenges   during    a   sidebar.   2014 WL


1379172,        at *   3.   In deciding this issue, we adopted the reasoning of Division Three of our court

in State    v.     Love, 176 Wn.          App.    911, 309 P. 3d 1209 ( 2013) ( peremptory challenges at sidebar).


Dunn, 2014 WL 1379172,                    at *   3.     Following our rationale in Dunn, we hold that the trial court

did not violate Urquijo' s public trial right.


II.        SENTENCING


           Urquijo next argues that the trial court erred when it imposed a community custody term

in    excess of     the statutory        maximum.          The State agrees and suggests that the community custody


term be     omitted         from the judgment            and sentence.      We remand to the trial court to comply with

RCW 9. 94A.701( 9).




                                                                        2
44205 -1 - II




          Under RCW 9. 94A.701( 9), "              The term of community custody specified by this section

shall be reduced by the court whenever an offender' s standard range term of confinement in

combination with the term of community custody exceeds the statutory maximum for the crime

as provided      in RCW 9A.20. 021."           The statutory maximum for felony violation of a no contact

order    is 60   months.      RCW 26. 50. 110( 5);          RCW 9A.20. 021( 1)(       c).   The trial court sentenced


Urquijo to 60      months     of confinement plus           community custody for           an amount "   equal to [ the]


length    of earned   early   release, not    to   exceed   12   months."   CP   at   38.   But " the trial court, not the


Department of Corrections, is required to reduce an offender' s term of community custody to

ensure    that the total   sentence    is   within   the statutory    maximum."         State v. Land, 172 Wn. App.

593, 603, 295 P. 3d 782 ( remanding for resentencing after the trial court sentenced the defendant

to community custody for the longer of the period of early release or 36 months, as capped by

the statutory    maximum), review           denied, 177 Wn.2d 1016 ( 2013).             The remedy for a violation of

RCW 9. 94A.701( 9) is remand to the trial court to amend the community custody term or to

resentence.      See State    v.   Boyd, 174 Wn.2d 470, 473, 275 P. 3d 321 ( 2012).                   Consequently, we

remand to the trial court to amend the community custody term or to resentence Urquijo.

III.      STATEMENT OF ADDITIONAL GROUNDS


          Urquijo asserts that he was denied effective assistance of counsel because ( 1) his attorney

did not ask witnesses all of the questions that Urquijo wanted him to ask and ( 2) Urquijo believes

his attorney is friends       with   the   prosecutor outside of court.      These claims rely on matters outside

the record and will not be reviewed in an appeal. State v. McFarland, 127 Wn.2d 322, 335, 899

P. 2d 1251 ( 1995).     They are better suited to a personal restraint petition. McFarland, 127 Wn.2d

at 335.




                                                                 3
44205 -1 - I1



         Urquijo   next    asserts   that two of the        State'   s   witnesses   were   not   credible.   Credibility

determinations     are   for the trier   of   fact   and are not subject     to   review.   State v. Cantu, 156 Wn.2d


819, 831, 132 P. 3d 725 ( 2006). Therefore, this claim also fails.


         Based on the foregoing, we affirm Urquijo' s conviction, and we remand to the trial court

to amend the community custody term or to resentence Urquijo.

         A majority of the panel having deteiniined 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.




We   concur:
