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                                                  2013 JUL 23 FMI2--IU

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   No. 70342-1-1
                      Respondent,
       v.                                          DIVISION ONE


GERARDO MARIN ANDRES,                              UNPUBLISHED OPINION

                      Appellant.                   FILED: July 29, 2013


       Leach, C.J. — Gerardo Marin Andres appeals his judgment and sentence

for multiple offenses. He challenges the sufficiency of the evidence to support

his first degree burglary conviction with firearm enhancement, his offender score

calculation, and the imposition of legal financial obligations. Because substantial

evidence supports the challenged conviction, the court properly calculated his

offender score, and substantial evidence supports the trial court's finding about

his ability to pay legal financial obligations, we affirm.

                                      Background

       Gerardo Marin Andres and several associates burglarized three houses in

Pierce County. The property taken in the three burglaries included electronic

equipment, jewelry, clothes, and several firearms.            From the house of lolani

Menza, the burglars took a loaded shotgun in a padded zipper case and a box of

ammunition.      From Joseph Kraut's house, they stole a locked gun safe
No. 70342-1-1/2




containing several pistols, including his police-issued duty weapon, and several

items of expensive jewelry he had purchased as gifts for his wife over the years.

       Marin Andres admitted to participating in the burglaries. A jury found him

guilty of one count of first degree burglary, three counts of residential burglary,

one count of trafficking in stolen property, two counts of first degree theft, one

count of second degree theft, and four counts of theft of a firearm.           For

sentencing purposes, the court merged the first count of residential burglary with

the related first degree burglary charge and sentenced Marin Andres to 87

months for the first degree burglary, the minimum standard range sentence, plus

a mandatory 60-month firearm enhancement. The court imposed standard range

sentences for the other convictions, to run concurrently with the burglary

sentence. Marin Andres appeals.

                                     Analysis

       First, Marin Andres challenges the sufficiency of the evidence supporting

the first degree burglary conviction and the firearm enhancement.            When

reviewing the sufficiency of evidence, we view the evidence in the light most

favorable to the State, and ask whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.1            A party
challenging the sufficiency of evidence admits the truth of the evidence and any

reasonable inferences from it.2



       1 State v. Engel. 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).
       2 State v. Johnson, 173 Wn.2d 895, 900, 270 P.3d 591 (2012).
No. 70342-1-1/3




      The elements of first degree burglary include, among other things, that the

defendant was armed with a deadly weapon or assaulted another person while

entering, within, or in immediate flight from a building.3 For purposes of the

burglary statute, a firearm is a deadly weapon per se.4 When first degree

burglary involves a firearm taken in the course of a burglary, "no analysis of

willingness or present ability to use a firearm as a deadly weapon" is necessary.5
"When the defendant had actual possession of a firearm, sufficient evidence

supports a first degree burglary conviction despite the firearm being unloaded

and no evidence showing that defendant intended to use it."6
      To enhance Marin Andres's sentence in this case, the State had to prove

that he or an accomplice was armed with a firearm during the burglary.          A

defendant is armed with a firearm if the firearm is easily accessible and readily

available for either offensive or defensive use.7

       Marin Andres argues that the State failed to prove that he was armed

because it did not show a nexus between the firearm and the crime. He relies on

State v. Brown,8 in which the court determined that while the defendants had

constructive possession of a rifle during the course of a burglary, there was no


       3 RCW 9A.52.020.
       4 In re Pers. Restraint of Martinez, 171 Wn.2d 354, 365, 256 P.3d 277
(2011).
       5 State v. Hall, 46 Wn. App. 689, 695, 732 P.2d 524 (1987).
       6 State v. Hernandez, 172 Wn. App. 537, 543-44, 290 P.3d 1052 (2012)
(citing State v. Faille, 53 Wn. App. 111, 114-15, 766 P.2d 478 (1988)), review
denied, No. 88353-0 (Wash. July 11, 2013).
      7 State v. Brown, 162 Wn.2d 422, 431, 173 P.3d 245 (2007).
      8 162 Wn.2d 422, 433, 173 P.3d 245 (2007).
No. 70342-1-1/4




evidence that they intended or were willing to use the weapon to further the

crime.


         Marin Andres's accomplices unsuccessfully made this identical argument

in State v. Hernandez.9 Division Two rejected it, noting a key distinction between

Brown and this case, the fact of actual possession. In Brown, the burglars simply

moved a rifle a short distance from a closet to the top of a nearby bed, while here

the defendants took actual possession of the firearms and removed them from

the premises. As the court explained in State v. Schelin,10 the nexus requirement
becomes necessary in cases of constructive possession to assure that the

mandatory sentencing enhancements do not infringe on citizens' constitutional

right to bear arms.       In most actual possession cases, these fears are

unwarranted. As our Supreme Court noted in State v. Easterlin,11 in cases of
actual possession, "it will rarely be necessary to go beyond the commonly used

'readily accessible and easily available' instruction."

         Marin Andres also challenges his offender score calculation. He argues

that the court should have considered the two crimes—first degree theft and theft

of a firearm convictions relating to the jewelry and firearms taken from the Kraut

house—"same criminal conduct" for sentencing purposes.12 His argument fails.

         9 172 Wn. App. 537, 544-45, 290 P.3d 1052 (2012), review denied, No.
88353-0 (Wash. July 11, 2013).
         10
           147 Wn.2d 562, 574-75, 55 P.3d 632 (2002).
         11
            159 Wn.2d 203, 209, 149 P.3d 366 (2006).
         12 The State contends that Marin Andres waived this challenge by
stipulating to his offender score calculation below. However, while the
agreement was signed on November 23, 2011, it was not filed with the court until
January 13, 2012. At sentencing hearings on November 23, December 9, and
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No. 70342-1-1/5




       If, when calculating an offender score, "the court enters a finding that

some or all of the current offenses encompass the same criminal conduct^] then

those current offenses shall be counted as one crime."13 The court will find that

criminal conduct is the same only when crimes occurred (1) with the same

criminal intent, (2) at the same time and place, and (3) involved the same

victim.14 Application of the same criminal conduct statute involves both factual

determinations and the exercise of the trial court's discretion.15 Therefore, we

generally defer to the sentencing court's determination of "'same criminal

conduct'" and disturb it only for "'clear abuse of discretion or misapplication of the

law.'"16

       The trial court determined that the Kraut break-in involved two crimes with


different victims—the weapons in the safe belonged to Kraut and the jewelry

stolen belonged to his wife.      Thus, the convictions were not same criminal

conduct. To support his argument that the two crimes were the same criminal

conduct, Marin Andres points to his successful argument that the convictions for

first degree theft and theft of a firearm from the Menza house were the same



January 13, neither the parties nor the court indicated that Marin Andres had
stipulated to the correctness of the State's calculation. Instead, the parties
engaged in an ongoing conversation with the court over the course of three
months to determine the proper treatment of the theft convictions. After
engaging in that debate, the State cannot now simply argue that the issue was
waived prior to the start of any of those sentencing hearings.
      13RCW9.94A.589(1)(a).
       14 State v. Haddock, 141 Wn.2d 103, 109-10, 3 P.3d 733 (2000).
       15 State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000).
       16 Haddock, 141 Wn.2d at 110 (quoting State v. Elliott, 114 Wn.2d 6, 17,
785 P.2d 440 (1990)).
No. 70342-1-1/6




criminal conduct. He contends that all the items taken from the Kraut residence

were community property and that the court had no basis for distinguishing a

husband and wife as separate owners of different items.

       We disagree. Among the many types of personal property that spouses

may own as part of their marital community, jewelry is particular. "[Jjewelry or

articles of personal adornment, acquired after marriage with community funds,

but worn and used solely by the wife, will be held to be the separate property of

the wife by gift from the husband upon comparatively slight evidence."17 Here,

Kraut testified he purchased much of the jewelry as a gift for his wife. The trial

court did not abuse its discretion by finding two different victims of the thefts.

       Lastly, Marin Andres challenges the court's imposition of $2,800 in legal

financial obligations (LFOs).    He claims that the court erred by imposing the

LFOs without first making a finding that he had the present or future ability to

pay.   The court imposed a $500 crime victim penalty assessment, $100 DNA

(deoxyribonucleic acid) database fee, $2,000 court-appointed attorney fees and

defense costs, and a $200 filing fee.           The crime victim penalty and DNA

collection fees are mandatory.18 The court must impose these mandatory fees

regardless of a defendant's financial circumstances.19


       17 Johnson v. Par Denne. 161 Wash. 496, 497, 296 P. 1105(1931).
       18 RCW 7.68.035(1 )(a); RCW 43.43.7541.
       19 See, e.g., State v. Thompson, 153 Wn. App. 325, 336-39, 223 P.3d
1165 (2009) (DNA fee is mandatory and imposed regardless of hardship); State
v. Williams, 65 Wn. App. 456, 460-61, 828 P.2d 1158, 840 P.2d 902 (1992)
(victim penalty assessment "is mandatory and requires no consideration of a
defendant's ability to pay" at sentencing).
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No. 70342-1-1/7




       The sentencing court has discretion to impose court costs under RCW

10.01.160. But in order to do so, the court must at least consider the present and

likely future financial resources of the defendant and the burden that the

imposition of costs will impose.20 Although the law does not require the court to

enter findings regarding a defendant's ability to pay before imposing financial

obligations, here the trial court made the following finding:

       The court has considered the total amount owing, the defend's [sic]
       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.

       Substantial evidence supports the trial court's finding about Marin

Andres's future ability to pay. He was employed when interviewed by the police

about the crimes. He presented no evidence of any disability that would limit his

ability to work in the future. We also note that the court must again consider his

ability to pay if in the future the State seeks to impose some additional penalty for

failure to pay.21 Therefore, we affirm the nonmandatory LFOs imposed.




      20 Former RCW 10.01.160 (3) (1995) ("The court shall not sentence a
defendant to pay costs unless the defendant is or will be able to pay them. In
determining the amount and method of payment of costs, the court shall take
account of the financial resources of the defendant and the nature of the burden
that payment of costs will impose."); State v. Baldwin, 63 Wn. App. 303, 308-12,
818 P.2d 1116, 837 P.2d 646 (1991); State v. Calvin, No. 67627-0-I, 2013 WL
2325121, at *11 (Wash. Ct. App. May 28, 2013).
      21 State v. Blank, 131 Wn.2d 230, 242, 930 P.2d 1213 (1997).
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No. 70342-1-1/8




                                   Conclusion


       Drawing all conclusions and inferences most favorably to the State, the

State presented sufficient evidence that Marin Andres or an accomplice was

armed with a firearm during the burglaries. Further, the court correctly calculated

the offender score. Finally, the court considered Marin Andres's ability to pay

when imposing LFOs and substantial evidence supports its findings on this issue.

We affirm.




WE CONCUR:




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