                                                            FILED 

                                                        OCTOBER 28, 2014 

                                                    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. 31419-7-II1
                                             )
                    Respondent,              )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
MIGUEL FARIAS AMEZOLA,                       )

                                             )

                    Appellant.               )


      LA WRENCE-BERREY, J. - Miguel Amezola agreed to a stipulated facts trial and

was found guilty of unlawful possession of a controlled substance and alien in possession

of a firearm. On appeal, he contends that the evidence was insufficient to support his

convictions. He also challenges the imposition of a $600 domestic violence penalty

assessment. We affirm the convictions, but remand to remove the $600 domestic

violence penalty assessment.

                                         FACTS

      After a white crystalline substance was found in a car Mr. Amezola was driving,

Benton County charged Mr. Amezola with one count of unlawful possession of a
No. 31419-7-111
State v. Amezola


controlled substance and one count of alien in possession of a firearm. A bench trial was

held. Mr. Amezola stipulated to the following facts:

       A Richland police officer stopped a car driven by Mr. Amezola. The car had

different front and rear license plates, and both license plates were registered to other

cars. No other people were in the car.

       Mr. Amezola said that his name was Jose Ramos, born November 15, 1970. He

told the officer that he did not have an identification card or a driver's license. The

officer did not find a computer record for this name. The officer arrested Mr. Amezola

for driving without a valid operator's license.

       The officer searched Mr. Amezola incident to arrest and found a pill bottle and a

wallet in Mr. Amezola's pants pockets. Identification inside the wallet had Mr.

Amezola's name, born November 15, 1972. The officer found a computer record for Mr.

Amezola. Mr. Amezola admitted his identity and agreed to speak to the officer. Mr.

Amezola told the officer that he borrowed the car from a friend. He said that he did not

know that the license plates on the car belonged to other cars. The officer also found in

the wallet a social security card for Jose Ramos. Mr. Amezola said he used the card to

get work in the United States.




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No. 31419-7-III
State v. Amezola


       The officer saw that the car's ignition was punched out. Also, on the driver's side

floor board, the officer saw a glass pipe with burnt residue. Mr. Amezola told the officer

that his fingerprints may be on the pipe because he moved some CDs around and he might

have accidentally touched the pipe.

       Mr. Amezola was arrested and booked into the Benton County Jail. The car he

was driving was impounded and towed. Police obtained a search warrant for the car.

During execution of the warrant, police found several glass pipes, a plastic container

holding a white crystal substance, a gun cleaning rod, ammunition, and a firearm. The

white crystal material was tested and found to contain methamphetamine, a controlled

substance. Mr. Amezola, who is not a United States citizen, did not provide a permit for

the firearm.

       Based on these stipulated facts, the trial court found Mr. Amezola guilty of

possession of a controlled substance, methamphetamine, and alien in possession of a

firearm. Included in Mr. Amezola's judgment and sentence was a $600 domestic

violence assessment.

                                        ANALYSIS

       Sufficiency orEvidence-Possession ora Controlled Substance. Evidence is

sufficient to support a conviction if any rational trier of fact could have found the



                                              3

No. 31419-7-II1
State v. Amezola


essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d

216,221,616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979)). When the sufficiency of the evidence is challenged in a

criminal case, all reasonable inferences from the evidence must be drawn in favor of the

State. Id.

       Mr. Amezola contends that the State failed to prove that the white crystalline

substance in the container was methamphetamine. Relying on State v. Colquitt, 133 Wn.

App. 789, 137 P.3d 892 (2006), Mr. Amezola contends that the field test conducted by the

officer was not sufficient evidence to establish the substance was methamphetamine,

absent other supporting evidence such as a laboratory report.

       To convict Mr. Amezola of the offense of possession of a controlled substance,

methamphetamine, the State must prove the fact of possession and the nature of the

substance. RCW 69.50.401; RCW 69.50.4013(1). Mr. Amezola's argument addresses

the latter element only.

       "A stipulated facts trial is still a trial of a defendant's guilt or innocence." State v.

Mierz, 127 Wn.2d 460,469,901 P.2d 286 (1995). The burden of proof remains on the

State. State v. Johnson, 104 Wn.2d 338, 342, 705 P .2d 773 (1985). The defendant is not

precluded from offering evidence or cross-examining witnesses, but stipulates to the



                                               4

No. 31419-7-III
State v. Amezola


evidence presented by the State. Id. at 342-43. The stipulation serves as an agreement by

the defendant   ~~that   if the State's witnesses were called, they would testifY in accordance

with the summary presented by the prosecutor." State v. Wiley, 26 Wn. App. 422, 425,

613 P .2d 549 (1980). A stipulation to facts is an express waiver conceding for the

purpose of the trial that the facts are true and there is no need to prove the facts. State v.

Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006) (quoting Key Design, Inc. v. Moser,

138 Wn.2d 875, 893-94, 983 P.2d 653 (1999)).

       Under the invited error doctrine, a party cannot set up an error at trial and then

complain of the same error on appeal. State v. Ellison, 172 Wn. App. 710, 715, 291 P.3d

921 (2013) (quoting State v. Pam, 101 Wn.2d 507, 511,680 P.2d 762 (1984)), review

denied, 180 Wn.2d 1014,327 P.3d 55 (2014). In Ellison, the court held that the invited

error doctrine prohibited Mr. Ellison from challenging a fact stipulated to at trial. Id. at

716. Mr. Ellison signed an agreement stipulating that the court could consider the facts as

true and correct and proved beyond a reasonable doubt./d. After submitting his case for

trial on stipulated facts, the trial court convicted Mr. Ellison of the crime charged. Id. at

714. On appeal, Mr. Ellison contended that the evidence was insufficient to support the

trial court's finding that police were responding to a domestic violence call, a fact

stipulated to by Mr. Ellison. Id. at 715. The appeals court rejected Mr. Ellison's



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No. 31419-7-111
State v. Amezola


argument, holding that irrespective of whether the State presented adequate evidence, Mr.

Ellison was bound by his stipulation and the invited error doctrine barred him from

challenging the stipulated fact. Id. at 716.

       Like in Ellison, Mr. Amezola cannot complain that a fact that he stipulated to is

not supported by the evidence. Prior to the bench trial, Mr. Amezola presented stipulated

facts to the trial court and asked the trial court to make a determination. Stipulated fact

27 stated, "The white crystal material was tested and found to contain methamphetamine,

a controlled substance." Clerk's Papers at 20. No argument or other evidence was

presented other than the stipulated facts. Mr. Amezola stipulated that the substance was

found to contain methamphetamine; the invited error doctrine prohibits him from

challenging this fact on appeal.

       Stipulated fact 27 provides evidence that methamphetamine was the controlled

substance found in the car Mr. Amezola was driving. Because Mr. Amezola stipulated to

the fact that the substance was methamphetamine, we decline to address his argument

based on Colquitt. Sufficient evidence supports Mr. Amezola's conviction for possession

of a controlled substance.




                                               6

No. 31419-7-111
State v. A mezola


       SuUiciency ofEvidence-A lien in Possession ora Firearm. Mr. Amezola contends

that the State failed to prove the possession element of his conviction for alien in

possession of a firearm without a license.

       A person is guilty of possessing a firearm without an alien firearm license if the

person carries or possesses any firearm, is not a lawful permanent resident, and has not

obtained a valid firearm license. RCW 9.41.171.

       Possession of a firearm may be actual or constructive. State v. Echeverria, 85 Wn.

App. 777, 783, 934 P.2d 1214 (1997). Actual possession occurs when the firearm is in

the personal custody of the person charged. State v. Staley, 123 Wn.2d 794, 798, 872

P.2d 502 (1994) (quoting State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)).

"[C]onstructive possession can be established by showiQ.g the defendant had dominion

and control over the firearm or over the premises where the firearm was found."

Echeverria, 85 Wn. App. at 783.

       In establishing dominion and control over the premises, the totality of the

circumstances must be considered and no single factor is dispositive. State v. Alvarez,

105 Wn. App. 215, 221, 19 P.3d 485 (2001). "The ability to reduce an object to actual

possession is an aspect of dominion and control." Echeverria, 85 Wn. App. at 783.




                                             7

No. 31419-7-111
State v. Amezola


However, it is not enough that the object is in close proximity to the person charged.

State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971).

       A vehicle is a premises for purposes of determining possession. Id. An

individual's sole occupancy of the vehicle and possession of the vehicle's keys

sufficiently supports a finding that the defendant had dominion and control over the

vehicle's contents. State v. Potts, 1 Wn. App. 614, 616, 464 P.2d 742 (1969).

       Sufficient evidence shows that Mr. Amezola had constructive possession of the

firearm. The firearm was in the passenger compartment of the car he was driving. It was

located behind the passenger seat of the car, within Mr. Amezola's ability to reduce the

firearm to actual possession. There were no passengers in the car. The ignition ofthe car

was punched out, and the license plates did not match the car or each other. While Mr.

Amezola said that he borrowed the car from a friend, he failed to provide identifYing

information that would have allowed the officer to locate this friend. This evidence is

sufficient for a rational trier of fact to find beyond a reasonable doubt that Mr. Amezola

was in constructive possession of the firearm.




                                             8

No.31419-7-III
State v. Amezola


       Imposition ora $600 Domestic Violence Penalty Assessment. Mr. Amezola

contests the imposition of a $600 domestic violence penalty assessment.

       For any person convicted of a crime involving domestic violence, a court may

impose a penalty assessment not to exceed $100. RCW 10.99.080(1).

       In assessing fees during the sentencing phase of the bench trial, the trial court

stated that it was imposing a $500 crime victim's assessment, a $1,000 fine, a $100 felony

DNA (deoxyribonucleic acid) collection fee, a $600 court-appointed attorney fee, and

additional court costs in the amount of $260. The court did not mention a domestic

violence penalty assessment. However, the domestic violence penalty was included in the

written judgment and sentence.

       The domestic violence penalty is not warranted. Mr. Amezola was not convicted

of a crime of domestic violence. The State admits that the imposition of the domestic

violence penalty assessment was likely a scrivener's error. While the trial court informed

Mr. Amezola that it was imposing a $600 court-appointed attorney fee, it did not mention

a domestic violence assessment fee. The remedy for clerical or scrivener's errors in

judgment and sentence forms is to remand to the trial court for correction. In re Pers.

Restraint ofMayer, 128 Wn. App. 694, 70 I, 117 P.3d 353 (2005).




                                             9

No.3l4l9-7-II1
State v. Amezola


      We afftnn the convictions, but remand the judgment and sentence to the trial court

to remove the $600 domestic violence penalty assessment.

      A majority of the panel has detennined 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.


                                         Lawrence-Berrey, J.

WE CONCUR: 





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