                                                                   'MED
                                                            COURT OF APPEALS OW1
                                                             STATE OF WASHINGTON
                                     2018 JUN 18 AN 10: 24
 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE
THE STATE OF WASHINGTON,                      )
                                              )         No. 75748-2-1
                       Respondent,            )
                                              )         ORDER DENYING MOTION
                v.                            )         FOR RECONSIDERATION
                                              )         AND WITHDRAWING AND
LO SHENG SAELEE,                              )         SUBSTITUTING OPINION
                                              )
                       Appellant.             )
                                              )
                                              )

          The appellant, Lo Saelee, has filed a motion for reconsideration of the

opinion filed on April 30, 2018. The State has not filed a response to the appellant's

motion for reconsideration. The court has determined that the motion should be

denied, but the opinion should be withdrawn, and a substitute opinion filed; now,

therefore, it is hereby

          ORDERED that the motion for reconsideration is denied; and it is further

          ORDERED that the opinion filed on April 30, 2018 is withdrawn; and it is

further

          ORDERED that a substitute unpublished opinion shall be filed.
                                                                   •     riLEo
                                                               COURT OF APPEALS OIV I •(,41;, 1 cr:
                                                                STATE OF WASHINGTON

                                                               2018 JUN 18 AM 10: 24



 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                     )
                                              )          No. 75748-2-1
                         Respondent,          )
                                              )
               v.                             )          DIVISION ONE
                                              )
 LO SHENG SAELEE,                             )          UNPUBLISHED OPINION
                                              )
                         Appellant.           )         FILED: June 18, 2018
                                              )
       APPELWICK, C.J.-A jury found Saelee guilty of possession with intent to
deliver. Saelee argues that the trial court erred in not giving a lesser included

offense instruction of possession, and that the imposition of mandatory LFOs

against him is unconstitutional. We affirm.

                                      FACTS

       Seattle Police asked a drug informant to make contact by phone with a drug

dealer. The informant had purchased drugs from this dealer before. The call was

on speakerphone with police present so that police could hear what was said. The

informant asked for an "eight ba11.1 The dealer and the informant agreed to meet

at 12th Avenue South and South King Street in Seattle.




        1 An eight ball refers to roughly an eighth of an ounce of cocaine. The
typical rate on the street for an eight ball is $200 to $300.
No. 75748-2-1/2


       With the help of the informant, police apprehended the dealer at the

arranged location. Police identified him as Lo Saelee. They recovered multiple

packages of crack cocaine from a hidden compartment inside the vehicle.

       The State charged Saelee with one count of possession with intent to

deliver. The charges proceeded to trial. Saelee requested a lesser included

offense instruction of possession of a controlled substance. The trial court denied

this request. The jury found Saelee guilty of possession of a controlled substance

with intent to deliver cocaine. As part of Saelee's sentence, the trial court imposed

mandatory legal financial obligations (LF05) for a mandatory victim penalty

assessment(VPA)and deoxyribonucleic acid (DNA)collection fee.

       Saelee appeals.

                                   DISCUSSION

       Saelee makes two arguments. First, he argues that the trial court erred by

not giving a lesser included offense instruction for simple possession, because the

facts warranted it. Second, he argues that RCW 7.68.035 and RCW 43.43.7541,

which impose mandatory LF0s, are unconstitutional as applied to defendants who

do not have the current or future ability to pay.

  I.   Lesser Included Offense Instruction

       Saelee first argues that the trial court erred by not giving a lesser included

offense instruction. He argues that the facts at trial, when viewed in the light most

favorable to Saelee, supported the conclusion that Saelee committed only simple

possession of a controlled substance, to the exclusion of possession with intent to

deliver.


                                          2
No. 75748-2-1/3


         When a defendant is charged with an offense, the jury may find the

defendant guilty of an offense that is necessarily included within that with which he

or she is charged. RCW 10.61.006. Under State v. Workman, a defendant is

entitled to an instruction on a lesser included offense if two elements are met. 90

Wn.2d 443, 447, 584 P.2d 382 (1978). First, each of the elements of the lesser

offense must be an element of the offense charged. Id. at 447-48. Second, the

evidence must support an inference that the lesser crime was committed. Id. at

448. Possession is a lesser included offense of possession with intent to deliver.

State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122(1975). Thus, the first, legal

prong is not at issue. The outcome of this case turns on resolution of the factual

prong.

         When substantial evidence in the record supports a rational inference that

the defendant committed only the lesser included or inferior degree offense to the

exclusion of the greater offense, the factual component of the test for entitlement

to an inferior degree offense instruction is satisfied. State v. Fernandez-Medina,

141 Wn.2d 448, 461, 6 P.3d 1150 (2000). The evidence must be viewed in the

light most favorable to the party requesting the instruction. Id at 455-56. To satisfy

the factual prong, the evidence must affirmatively establish the defendant's theory

of the case—it is not enough that the jury might disbelieve the evidence pointing

to guilt. Id. at 456. We review the decision not to give a lesser included offense

instruction based on the facts of the case for an abuse of discretion. State v.

Picard, 90 Wn. App. 890, 902, 954 P.2d 336(1998).




                                          3
No. 75748-2-1/4


       This is a case arising out of an arranged drug distribution meet-up, not a

happenstance discovery of Saelee in possession of narcotics. The unrefuted

evidence at trial was that the informant spoke with someone named Lo on the

phone. The informant arranged to buy an eight ball of narcotics from him at a

specific time and place. Police found Saelee, at the arranged time and place, with

prepackaged amounts of cocaine that officers testified were typical of drug dealing.

      Saelee argues that the State did not present certain evidence that would

typically indicate intent to deliver. Seattle Police Department Narcotics Detective

Matthew Pasquan testified that drug dealers commonly: use storage lockers, keep

transaction records, keep jewelry, have incriminating photographs, have

processing paraphernalia, possess weapons, use aliases, launder money, travel

abroad, and use rental vehicles. Pasquan admitted that none of these facts were

present in Saelee's case. Saelee notes the informant's call did not discuss money

or quality. Saelee argues that these deficiencies, apparent in the testimony,

support an inference that Saelee did not have intent to deliver, "given that he did

not do most of the activities that, according to the State's principal witness, drug

dealers commonly do." The presence of those additional facts may have

strengthened the State's case. However, the fact that they are not present is not

substantial evidence supporting an inference that only the lesser offense was

committed, to the exclusion of the greater.

       Saelee argues that Fernandez-Medina, and State v. McClam,69 Wn. App.

885, 850 P.2d 1377(1993) nonetheless require reversal. Those cases generally

hold that a trial court must not decline to give a lesser included offense instruction
No. 75748-2-1/5


merely because it would be inconsistent with one of the defense's theories. See

Fernandez-Medina, 141 Wn.2d at 461; McClam,69 Wn.App. at 890. It is the jury's

job to determine whether to believe a theory of a lesser included offense, even if it

might be inconsistent with another defense theory. McClam, 69 Wn. App. at 890

n.4. However, the trial court did not decline to give the lesser included offense

instruction because it might be inconsistent with Saelee's theory of denial of

possession. It denied the lesser included instruction, because Saelee's theory of

simple possession was not supported by substantial evidence, to the exclusion of

possession with intent to deliver. This authority does not require reversal.

       Saelee fails to identify any evidence that would require an instruction of

mere possession, to the exclusion of intent to deliver. The trial court did not abuse

its discretion in refusing to instruct the jury on the lesser included offense

possession of a controlled substance.

 II.   LFOs

       Saelee next argues that the mandatory LFOs imposed against him under

ROW 7.68.035 and ROW 43.43.7541 are unconstitutional as applied to him,

because the trial court did not inquire into Saelee's ability to play. ROW 7.68.035

requires trial courts to impose a $500 VPA against defendants convicted of a

crime. ROW 43.43.7541 requires trial courts to impose a $100 DNA collection fee.

       Saelee contends that due process requires trial courts to inquire into the

defendant's ability to pay before imposing mandatory LFOs such as these. But,

this court addressed a virtually identical argument in State v. Shelton, 194 Wn.

App. 660,673-74, 378 P.3d 230(2016), review denied 187 Wn.2d 1002, 386 P.3d


                                         5
No. 75748-2-1/6


1088 (2017). There, Shelton challenged the DNA fee on as applied due process

grounds, because, he argued, the trial court had not inquired into his ability to pay.

Id. at 670. We held that "because imposition of the mandatory DNA fee does not

implicate constitutional principles until the State seeks to enforce collection of the

DNA fee or impose a sanction for failure to pay, the as-applied substantive due

process challenge to RCW 43.43.7541 is not ripe for review." Id. at 674. As a

mandatory fee, the same principle applies to the VPA.

       Like Shelton, nothing here shows that the State has attempted to collect the

challenged fees. Therefore, under Shelton these claims are not ripe for review.

       We affirm.



WE CONCU

                                                       ec-X1 Nrt?T.




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