                                                                                                                    FILED
                                                                                                              COURT OF Ar HAU
                                                                                                                    a! rS1s

                                                                                                         2013 NOY 26     Am q: m
            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                          S
                                                 DIVISION II

                                                               S
STATE OF WASHINGTON,                                                        No. 43073 -8 -II


                                  Respondent,                         UNPUBLISHED OPINION


       V.



GEOVANI GOHAN HAYWARD
TRUJILLO,


                                       ellant.




       BJORGEN, J. —        Geovani Gohan Hayward Trujillo appeals his sentences for second degree

child molestation ( four counts),    challenging the trial court' s finding that he had the present and

future ability to pay his legal financial obligations. He also challenges two community custody

conditions and the basis for his community custody term. The State concedes that one of the

conditions is not crime -
                        related and should be stricken. We decline to address his challenge to the

trial court' s finding of ability to pay because he did not object below, we strike one community

custody condition, and we remand for the trial court to correct the basis for his community

custody. With that, we affirm in part, reverse in part, and remand.

                                                    FACTS


        Between June 1, 2009 and March 31, 2010, Trujillo had sexual contact with AML, SAG,

and LRW, all of whom were friends. These three girls were 12 to 13 years old at the time.

        As part of a plea bargain, the State charged Trujillo with four counts of child molestation.

The State   agreed   to   recommend a special sex offender         sentencing   alternative (   SSOSA). The trial


court accepted Trujillo' s guilty pleas, but rejected the SSOSA and sentenced Trujillo to 105

months of incarceration.


        The judgment        and sentence contains   the   following finding:
No. 43073 -8 -II



          2. 5 ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS.                                       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 that the
          defendant has the ability or likely future ability to pay the legal financial
          obligations imposed herein. RCW 9. 94A.753.


Clerk' s Papers ( CP)     atP   38. The   court   imposed the    following        legal financial   obligations:   a $ 500


crime victim assessment, a $ 100 deoxyribonucleic acid (DNA) database fee, a $400 fee for court

appointed counsel and defense costs, and a $ 200 criminal filing fee

           The judgment and sentence indicates that the basis for the 36 -month term of community

custody is the presence of serious violent offenses. The two conditions of his community

custody at issue here are:

           13. You shall not possess or consume any mind or mood altering substances to
           include alcohol or any controlled substances without a valid prescription from a
           licensed physician.


           26. You shall not have access to the Internet at any location nor shall you have
           access   to   computers    unless    otherwise    approved
                                                                             by   the   Court.      You also are
           prohibited    from   joining,   or   perusing any        public    social    websites (    Face[] book
           MySpace etc).


CP   at   54 -55. Trujillo appeals.


                                                     ANALYSIS


                                  I. LEGAL FINANCIAL OBLIGATIONS ( LFOS)


           Trujillo argues that substantial evidence in the record does not support finding 2. 5 on his
                                                     I
present and     future ability to pay his LFOs,          citing State v. Bertrand, 165 Wn. App. 393, 404, 267



 1 He does not indicate which of his LFOs he is challenging. As we noted in State v. Blazina, 174
Wn.   App. 906, 911, 301 P. 3d 492 ( 2013), he may only challenge the discretionary fees, which
here is the $ 400    appointed counsel and         defense   cost   fee. See RCW 7. 68. 035( 1)(        a) ( victim


penalty     assessment);   RCW 43. 43. 7541 ( DNA          collection   fee); RCW 36. 18. 020( 2)( h)( criminal
 filing fee).
                                                             2
No. 43073 -8 -II



P. 3d 511 ( 2011),        review    denied, 175 Wn.2d 1014 ( 2012).             As we noted there, 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)).


            A challenge to the trial court' s finding that a defendant had the ability to pay LFOs was

also presented       in State     v.   Blazina, 174 Wn.   App.   906, 301 P. 3d 492,        review granted, --   P. 3d —


 2013).      There, however, we refused to consider that claim for the first time on appeal, since


RAP 2. 5( a) is discretionary, not mandatory, and Blazina failed to show any compelling reason

for this    court   to   consider      the   issue. 174 Wn.   App.   at   911 - 12.   Similarly here, Trujillo raises his

challenge for the first time on appeal and the record shows no compelling reason for us to review

his claim. Consistently with Blazina, we decline to do so.2
                                             II. COMMUNITY CUSTODY CONDITIONS


            Trujillo next challenges the community custody conditions that he not use alcohol or

drugs without a valid prescription and that he not use the Internet or access computers. The State

concedes that this latter condition is not crime -
                                                 related and should be stricken. It also argues that


Trujillo admitted using alcohol and methamphetamine when he committed his offenses and we

should therefore uphold that condition.




2
  We do note, however, that the record does contain information regarding Trujillo' s financial
status. He has both a high school diploma and post -secondary education. He has held jobs as a
maintenance worker and senior customer service associate. He also receives $ 3, 000 per month
from a lawsuit. Less than this was sufficient to sustain the obligation in Baldwin, 63 Wn. App. at
311.
                                                                 3
No. 43073 -8 -II



             RCW 9. 94A.703( 1) sets out the mandatory conditions of community custody. Subsection

 2) sets out conditions the trial court may waive, but which are otherwise imposed. Subsection

 3) sets out discretionary conditions the trial court may impose, including crime -
                                                                                  related

prohibitions. The latter type of condition must be related to the circumstances of the crime.


State   v.   Llamas -Villa, 67 Wn.       App.   448, 456, 836 P. 2d 239 ( 1992). The two conditions at issue


here fall into this latter category, which Trujillo can challenge for the first time on appeal. State

v.   Jones, 118 Wn.         App. 199,   204, 76 P. 3d 258 ( 2003) (   citing State v. Julian, 102 Wn. App. 296,

304, 9 P. 3d 851 ( 2000)).        We review the conditions for an abuse of discretion. In re Pers.


Restraint ofRainey, 168 Wn.2d 367, 374 -75, 229 P. 3d 686 ( 2010).

             We accept the State' s concession and agree that nothing in the record shows that the

Internet and computer use condition is crime -
                                             related. We also agree with the State that the


condition relating to alcohol and controlled substances is crime -related. The presentence

investigative report contains Trujillo' s admission that " at the time of the original offense with the

victims [     SG]   and [   AL] he had been     drinking   and   smoking ` weed'   quite a   bit." Suppl. CP at 88.


Further, the investigative report shows that Trujillo had a history of alcohol and drug abuse

beginning in his early teens and continuing through the time of his offenses.

             Condition 13, relating to alcohol and controlled substances, is related to the crime and is

valid. Condition 26, relating to the Internet and computer use, is not crime -related and is invalid.

                                                 III. SCRIVENER' S ERROR


             Finally, Trujillo argues that his judgment and sentence errs by stating that the basis for

his community custody is that his are serious violent offenses. He argues that this should state

that the basis for his community custody is that his are sex offenses. RCW 9. 94A.701( 1).


                                                             El
No. 43073 -8 - II



Second degree      child molestation   is   not   a serious   violent offense, but,is a sex offense. RCW


9. 94A.030( 45).    The State properly concedes this error. We agree with both parties that the basis

for Trujillo' s community custody is the commission of a sex offense. For that reason we remand

for correction of this error. See State v. Moten, 95 Wn. App. 927, 929, 935, 976 P. 2d 1286

 1999) ( remand appropriate to correct scrivener' s error).


        We affirm the imposition. of LFOs, reverse community custody condition 26, and remand

to. the trial court to correct the statutory basis for community custody.

        A majority of the panel having determined 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.

                                                                             f




                                                                  BJOR•., N, 7 ''"
WCIconcur:

                              2
                         1/       1
         J.




P t otiHx, J.




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