                                                                         FILED
                                                                    FEBRUARY 23, 2017
                                                                 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. 33311-6-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
MANUEL RODRIGUEZ-FLORES,                      )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. - Manuel Rodriguez-Flores was found guilty of three counts of

delivering methamphetamine within 1,000 feet of a school bus stop and one count of

possessing methamphetamine with intent to deliver. While he does not challenge his

conviction of the delivery and possession offenses, he contends that insufficient evidence

supports the jury's special verdicts as to the proximity of the deliveries to school bus

stops, that the trial court improperly ran the school bus stop enhancements consecutively

to each other, and that the trial court's high-end sentence punished him for refusing to

accept a plea bargain. He also challenges legal financial obligations (LFOs) for the first

time on appeal.

       In light of our Supreme Court's intervening decision in State v. Conover, 183

Wn.2d 706, 355 P.3d 1093 (2015), the court committed error when it assumed that the
No. 33311-6-III
State v. Rodriguez-Flores


school bus stop enhancements must run consecutively to each other. We remand for that

reason and so that the court can clarify any ambiguity about its reason for imposing a

high-end sentence. At that time, the court can engage in the Blazina 1 inquiry that Mr.

Rodriguez-Flores contends has not yet been conducted. We otherwise affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       Manuel Rodriguez-Flores was tried on charges of ( 1) delivering methamphetamine

to a confidential informant on October 14, 16, and 20, 2014, with special allegations that

each delivery took place within 1,000 feet of a school bus stop; and (2) possessing

methamphetamine with intent to deliver on January 25, 2015. Mr. Rodriguez-Flores's

third delivery to the confidential informant was videotaped. The possession with intent to

deliver charge was based on bindles of methamphetamine found in Mr. Rodriguez-

Flores's clothing during a strip search at the Okanogan County jail.

       At the time of trial, the trial court was informed that Mr. Rodriguez-Flores would

stipulate that the deliveries alleged had occurred within 1,000 feet of a school bus stop. It

questioned the prosecutor, who represented that he had witnesses available to testify to

facts supporting the enhancement, and questioned Mr. Rodriguez-Flores, who affirmed

his understanding that he had a right to have the State prove facts supporting the

enhancements beyond a reasonable doubt but agreed to stipulate.



       1
           State v. Blazina, 182 Wn.2d 827,344 P.3d 680 (2015).

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State v. Rodriguez-Flores


       The court then instructed the jury on the significance of a stipulation and told the

jurors, "The parties stipulate that as to Counts I, II and IV, that the location of the alleged

acts occurred within 1,000 feet of a school bus stop." Report of Proceedings (RP) at 176-

77. When it asked the prosecutor and defense counsel whether its statement of the

stipulation was accurate, both affirmed that it was.

       The jury found Mr. Rodriguez-Flores guilty as charged, returning special verdict

forms finding, in connection with counts one, two, and four, that Mr. Rodriguez-Flores

delivered "a controlled substance to a person within 1000 feet of a school bus route stop

designated by a school district." 2 Clerk's Papers (CP) at 80-82.

       At sentencing, the State informed the trial court that with the school bus stop

enhancements running consecutive to the base sentence and consecutively to each other,

the standard range for Mr. Rodriguez-Flores's crimes was 92 to 132 months. It

recommended 100 months in prison and 12 months' supervision by the Department of

Corrections. Following the State's recommendation, the following exchange occurred:

               THE COURT: ... Mr. Rodriguez-Flores, you care to say anything
       prior to sentencing?
               DEFENDANT: Well, yes, they, they judged me for something that
       1--that was not true.
               THE COURT: Okay. Anything else?


       2
         To be more precise, Special Verdict Form A omitted the word "district,"
referring to "a school bus stop designated by a school." Clerk's Papers (CP) at 80. Mr.
Rodriguez-Flores is aware of that discrepancy and has not identified it as a separate basis
for appeal. Br. of Appellant at 5 n. 7.

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State v. Rodriguez-Flores


               DEFENDANT: I've been here legally for 30 [years 3] and I never had
       any problems. Thirty years. Never had any problems.
               THE COURT: Well, Mr. Rodriguez-Flores, let me tell you this: You
       had no defense. They had you on video. They had you under surveillance.
       You had absolutely no defense and you went to trial anyway. And I know
       because of what was going on in this Court at that time that I had another
       jury in that you were offered a plea bargain of significantly less time. I
       have absolutely no question in my mind that you will be released and
       continue to do the same kind of stuff. I don't think you have any remorse; I
       don't think you have any concern. 132 months.

RP at 237-38.

       The trial court entered a judgment and sentence imposing the 132 months'

incarceration and $2,050 in LFOs. Mr. Rodriguez-Flores appeals.

                                        ANALYSIS

                                    Evidence sufficiency

       Mr. Rodriguez-Flores first assigns error to the sufficiency of the evidence to

support the jury's findings that the three controlled substance deliveries took place

"within 1000 feet of a school bus route stop designated by a school district." He

specifically challenges the sufficiency of the evidence to establish the seating capacity of

the school buses or that the deliveries occurred within 1,000 feet of a stop "designated by

a school district." Br. of Appellant at 1-2. He attaches significance to the fact that the




       3According to the transcript, Mr. Rodriguez-Flores first misspoke, saying "30
days." RP at 237.

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No. 33311-6-III
State v. Rodriguez-Flores


jury instructions included the following instruction proposed by the State, which he

argues constitutes "law of the case":

              "School bus" means a vehicle that meets the following requirements:
       (1) has a seating capacity of more than ten persons including the driver; (2)
       is regularly used to transport students to and from school or in connection
       with school activities; and (3) is owned and operated by any school district
       or privately owned and operated under contract or otherwise with any
       school district for the transportation of students. The term does not include
       buses operated by common carriers in the urban transportation of students
       such as transportation of students through a municipal transportation
       system.

CP at 71 (Jury Instruction 16).

       In considering a sufficiency of the evidence challenge, we must determine

whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime, or in this case,

facts supporting the enhancement, beyond a reasonable doubt. See, e.g., State v. Condon,

182 Wn.2d 307,314,343 P.3d 357 (2015). A claim of insufficiency admits the truth of

the State's evidence and all inferences that reasonably can be drawn from it. Id.

"Inferences" are logical deductions or conclusions from established facts. Fannin v. Roe,

62 Wn.2d 239,242, 382 P.2d 264 (1963).

       "When the parties stipulate to the facts that establish an element of the charged

crime, the jury need not find the existence of that element, and the stipulation therefore

constitutes a waiver of the 'right to a jury trial on that element,' as well as the right to

require the State prove that element beyond a reasonable doubt." State v. Humphries,

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No. 33311-6-111
State v. Rodriguez-Flores


181 Wn.2d 708, 714-15, 336 P.3d 1121 (2014) (citation omitted) (quoting United States

v. Mason, 85 F.3d 471,472 (10th Cir.1996)); Sullivan v. Louisiana, 508 U.S. 275,278,

113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).

       The question posed to the jurors on the special verdict forms was, with respect to

the respective count, "[D]id the defendant, Manuel Rodriguez-Flores, deliver a controlled

substance to a person within 1000 feet of a school bus route stop designated by a school

district?" CP at 80-82. The jurors had been advised of the parties' stipulation that "as to

Counts I, II and IV, that the location of the alleged acts occurred within 1,000 feet of a

school bus stop." RP at 176-77.

       Mr. Rodriguez-Flores's first argument fails on the basis of the stipulation itself.

While jury instruction 16, defining "school bus," was unnecessary given the parties'

stipulation, it would not have been confusing to the jury nor did it create a burden of

proof for the State. The defense had stipulated that the deliveries alleged took place

within 1,000 feet of a "school bus stop." Jurors could and would reasonably infer that the

"school bus stop" conceded by the defense must be for "school buses" as defined by jury

instruction 16.

       As for the second argument, the stipulation did not speak to the bus stops being

designated by the school district, nor was the jury instructed that "school bus stop" is

defined as a stop designated by the school district. Still, a reasonable juror could infer

that school bus stops are designated by school districts. Who else would designate them?

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No. 33311-6-111
State v. Rodriguez-Flores


This is unlike cases where, lacking a stipulation, evidence of school district designation is

the proof necessary to establish a school bus stop. See RCW 69.50.435(5); State v.

Pearson, 180 Wn. App. 576, 581-82, 321 P.3d 1285 (2014). Here, the stipulation

eliminated that hurdle, because it was a fact, established by the stipulation, that the

alleged acts occurred within 1,000 feet of a school bus stop. While jurors still had to

infer that the school bus stop was designated by a school district to answer yes on the

special verdict forms, Mr. Rodriguez-Flores fails to persuade us that no rational juror

could have inferred beyond a reasonable doubt that school bus stops are designated by

school districts.

                                      Sentencing error

       Mr. Rodriguez-Flores next argues that the trial court had no authority to impose

the school bus stop enhancements consecutively to each other, citing State v. Conover,

which was decided on August 13, 2015, three months after the sentencing in this case.

183 Wn.2d 706. In Conover, our Supreme Court held that the school bus stop

enhancement statute-RCW 9.94A.533(6)-requires trial courts to run such an

enhancement consecutive to the drug crime sentence it enhances, but not consecutively to

each other. Although Mr. Rodriguez-Flores did not make this argument in the trial court,

the imposition of a potentially erroneous sentence "may be challenged for the first time

on appeal." State v. Ford, 137 Wn.2d 472,477,973 P.2d 452 (1999).




                                              7
No. 33311-6-111
State v. Rodriguez-Flores


       The State concedes that Conover applies, that RCW 9.94A.589 governs the

determination of consecutive versus concurrent sentencing, and that the case should be

remanded for resentencing. We accept the State's concession.

                                      Right to jury trial

       Mr. Rodriguez-Flores next argues that the trial court punished him for exercising

his right to a jury trial when it imposed a total period of incarceration of 132 months,

exceeding the 100 months recommended by the State. He asks that we vacate the

sentence and remand for resentencing before a different judge.

       The 132-month sentence was the high-end of the standard range and ordinarily, if

the trial court imposes a standard range sentence, it is not appealable. RCW

9.94A.585(1). A defendant may appeal a standard range sentence if the sentencing court

failed to comply with constitutional requirements, however. State v. Osman, 157 Wn.2d

474, 481-82, 139 P.3d 334 (2006). A court violates a defendant's Sixth Amendment right

to a jury trial when it penalizes him or her for choosing to not take a plea deal. See

United States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968).

"The constitutional principle of United States v. Jackson ... is that if the severity of the

punishment is dependent upon the way guilt is determined--e.g., by a plea of guilty or by

a jury trial--this imposes an impermissible burden on the exercise of constitutional

rights." State v. Frampton, 95 Wn.2d 469,480,627 P.2d 922 (1981).



                                              8
No. 33311-6-111
State v. Rodriguez-Flores


       Citing cases from other jurisdictions, Mr. Rodriguez-Flores asks us to adopt the

principle that if there is any implication that the trial court was punishing the defendant

for exercising his Sixth Amendment right, we should remand for resentencing. The

reasoning of cases he cites is that to avoid a chilling effect upon the exercise of the right

to a jury trial, it is appropriate to vacate and remand for resentencing anytime there is

even an appearance that the sentence penalized a defendant for refusing to plead to a

charge. E.g., United States v. Medina-Cervantes, 690 F.2d 715, 716-17 (9th Cir. 1982).

In Hess v. United States, 496 F.2d 936, 938 (8th Cir. 1974), the court explained that

remand where "the tenor of the court's observation is not entirely clear" is appropriate in

part, "because the remedy is relatively painless."

       The remedy is particularly painless in this case, since resentencing is already

required. We therefore remand for resentencing as to Mr. Rodriguez-Flores's entire

sentence. We will not require resentencing to take place before a different judge. We

merely caution the court to avoid even an implication that a harsh sentence is based on

Mr. Rodriguez-Flores's choice to stand trial.

                                            LFOs

       Finally, Mr. Rodriguez-Flores argues that the trial court improperly imposed

discretionary LFOs without conducting the required inquiry into his ability to pay. Since

we are remanding for resentencing, the trial court is expected to conduct a Blazina




                                                9
No. 33311-6-III
State v. Rodriguez-Flores


inquiry on remand. Mr. Rodriguez-Flores is expected to take steps to preserve the error if

it does not.

       Mr. Rodriguez-Flores also argues trial courts are required to consider a

defendant's ability to pay even mandatory LFOs. This court has refused to consider or

has rejected the challenges to mandatory LFOs made by Mr. Rodriguez-Flores in State v.

Lundy, 176 Wn. App. 96,102,308 P.3d 755 (2013) (generally rejecting constitutional

challenges); State v. Stoddard, 192 Wn. App. 222, 228-29, 366 P.3d 474 (2016) (alleged

substantive due process violation was not manifest error; refusing to consider it as

unpreserved); State v. Mathers, 193 Wn. App. 913, 919, 376 P.3d 1163, review denied,

186 Wn.2d 1015 (2016) (rejecting challenges based on RCW 10.01.160, Blazina, GR 34,

equal protection, and substantive due process on the merits); State v. Johnson, 194 Wn.

App. 304, 308-09, 374 P.3d 1206 (2016) (rejecting equal protection challenge alleging

disparate impact where no discriminatory intent shown); State v. Tyler, 195 Wn. App.

385,404 n.11, 382 P.3d 699 (2016); (rejecting constitutional challenge and challenge

based on RCW 10.01.130(3));and State v. Seward, 196 Wn. App. 579, 586-87, 384 P.3d

620 (2016) (rejecting challenges based on substantive due process, State v. Blank, 131

Wn.2d 230,930 P.2d 1213 (1997), and RCW 10.01.160(3) on the merits). See also State

v. Curry, 118 Wn.2d 911, 917 n.3, 829 P.2d 166 (1992) (rejecting constitutional

challenge as premature). If Mr. Rodriguez-Flores has any challenges to mandatory LFOs




                                            10
No. 33311-6-111
State v. Rodriguez-Flores


that he believes are not foreclosed by precedent, he is expected to take steps to preserve

error at the time of resentencing.

       The judgment is affirmed and the case is remanded for resentencing in accordance

with this opinion. 4

       A majority of the panel has determined 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.




WE CONCUR:




Pennell, J.




       4
        Because the State is not a substantially prevailing party on appeal, we need not
consider Mr. Rodriguez-Flores's request that we deny it costs on appeal. See RAP 14.2.

                                             11
