State Of Washington, V Miguel A. Trujeque-magana And Luciano Rios ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
February 6, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49601-1-II
consolidated with
Respondent, No. 49633-0-II
v.
UNPUBLISHED OPINION
MIGUEL A. TRUJEQUE-MAGANA, aka
JORGE RICARDO GONGORA-CHI,
Appellant.
STATE OF WASHINGTON,
Respondent,
v.
LUCIANO MOLINA RIOS,
Appellant.
MAXA, C.J. – In a consolidated case, Miguel Trujeque-Magana and Luciano Molina Rios
appeal their convictions of multiple drug and firearm offenses. The convictions arose out of an
investigative traffic stop during which officers found a large amount of heroin in a purse
belonging to Trujeque-Magana’s passenger, Juanna Santiago-Santos, and a subsequent search of
an apartment leased to Trujeque-Magana and Molina Rios that revealed cocaine,
methamphetamine, several handguns, and cash. The stop occurred after officers observed
No. 49601-1-II / 49633-0-II
Molina Rios and Trujeque-Magana engage in activities that they believed were consistent with
trying to set up a drug purchase.
We hold that (1) the trial court erred in failing to enter written findings of fact and
conclusions of law after denying a motion to suppress evidence obtained because of the
investigative stop, but the error is harmless because the court gave a detailed oral ruling; (2) the
trial court did not err in denying the suppression motion because officers had reasonable
suspicion to conduct an investigative stop and Santiago-Santos consented to a search of her
purse; (3) the State presented sufficient evidence to prove that both Trujeque-Magana and
Molina Rios were accomplices to Santiago-Santos’s possession; (4) the State presented sufficient
evidence to prove that Trujeque-Magana constructively possessed the cocaine and firearms in the
apartment; (5) the State presented sufficient evidence to prove that both Trujeque-Magana and
Molina Rios each were armed with two firearms for purposes of sentencing enhancements for
possession of cocaine and methamphetamine; (6) the trial court did not err in denying Trujeque-
Magana’s motion to dismiss based on the failure to disclose evidence because the evidence was
not exculpatory; (7) the trial court did not err in ruling that the State was not required to disclose
the identity of the confidential informant (CI) who assisted law enforcement; (8) the trial court
did not abuse its discretion in admitting the officers’ opinion testimony; (9) RCW 9.41.171(3)
and RCW 9.41.175, the statutes governing the offense of alien in possession of a firearm, do not
violate equal protection under the facts of this case; (10) the trial court did not err in ruling that
several of Trujeque-Magana’s convictions did not constitute the same criminal conduct; (11) the
trial court did not err in applying the double penalty provisions of RCW 69.50.435(1); and (12)
the criminal filing fee imposed on Molina Rios as a mandatory legal financial obligation (LFO)
must be stricken.
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Accordingly, we affirm Trujeque-Magana’s and Molina Rios’s convictions and
sentences, but we remand for the trial court to strike the criminal filing fee imposed on Molina
Rios and amend his judgment and sentence.
FACTS
Surveillance of Molina Rios
In October 2015, Oregon law enforcement received information from a CI that a person,
later identified as Molina Rios, was selling drugs. Oregon officers, including Detective Joshua
Zwick, Deputy Kevin Jones, and Deputy Matt Ferguson, and Vancouver officers, including
Detective Shane Hall, began an investigation. Working with the CI, they conducted two
controlled buys from Molina Rios at his apartment in Clark County. Trujeque-Magana initially
was not involved in this investigation.
The CI later told officers that Molina Rios was going to the Seattle area to obtain drugs.
On November 4, Jones and Ferguson followed a gray Scion that they recognized as Molina
Rios’s car to the Everett area. Jones and Ferguson were in separate vehicles. Molina Rios went
to a train station parking lot and parked and re-parked in different spaces, but did not get out of
his car. While he was there, a person walked up to the car and then left. Molina Rios then drove
to a strip mall and parked. In the parking lot, Molina Rios met up with two people, later
identified as Trujeque-Magana and Santiago-Santos, who were in a white Honda. They all went
in to a restaurant.
When they left the restaurant, Molina Rios and Trujeque-Magana got into the same car
and sat together for a long period of time. At first they were talking on their cell phones. Then
they had their heads down toward the center console area. Although Jones could not see any
money, he believed based on his training and experience that they were counting money. After
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that, Molina Rios and Trujeque-Magana moved their cars so they were parked next to each other.
They did not interact with anyone else in the parking lot. Santiago-Santos slept in the Honda
during part of this time.
Next, Molina Rios and Trujeque-Magana left in tandem and drove to a store parking lot a
few blocks away. They parked and met outside their cars and talked with each other, but did not
meet with anyone else or go into the store.
Molina Rios and Trujeque-Magana then followed one another to a shopping mall, where
they parked on opposite sides of the mall. They went into the mall together and stayed inside for
a few hours before exiting together. They went to their separate cars, met in a central driveway,
and exited the mall parking lot together. The officers lost track of them when both vehicles ran a
red light and it was unsafe for the officers to follow.
People parking in parking lots, seemingly not doing anything, and moving to other
parking lots was something that Ferguson had observed during drug investigations. A suspect
might park to see if they are being followed and might be directed to different buy locations that
change repeatedly to avoid being followed by police. Running red lights or other erratic driving
also is a way that suspects attempt to avoid being followed.
Jones and Ferguson relayed their observations of Molina Rios and Trujeque-Magana to
Zwick, who in turn discussed them with Hall.
Investigative Stop and Search
Jones and Ferguson next observed the two cars a few hours later travelling southbound on
Interstate 5 in the Chehalis area. The two vehicles appeared to be driving in tandem, with the
Scion in front and the Honda directly behind with no cars in between. The officers followed the
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cars southbound on Interstate 5 back to Clark County. After receiving reports from Jones and
Ferguson, Zwick and Hall decided to conduct a traffic stop of the vehicles.
Under Hall’s direction, patrol cars stopped the two vehicles in Clark County for an
investigative search. Trujeque-Magana and Santiago-Santos gave consent for the officers to
search the Honda. Santiago-Santos took her purse with her when she got out of the car and
placed it on the ground. Hall asked Santiago-Santos if he could search her purse and she
consented. Hall found a large bag of heroin inside the purse.
Apartment Search
Hall obtained a search warrant for the apartment. Inside the apartment, officers found a
document signed by Molina Rios, Trujeque-Magana, and a third person stating that they had
leased the apartment. The lease term was from May 19, 2015 through April 30, 2016.
In one bedroom, officers found an identification card belonging to Molina Rios. In that
bedroom were bags of methamphetamine and cocaine. Officers also found a handgun (9 mm
Walther) under the pillow at the head of the bed and a semiautomatic pistol (.45 caliber Taurus)
in a dresser drawer.
In another bedroom, officers found a bag on the floor of the closet that contained cocaine.
They also found two handguns: a 9 mm Glock with a loaded magazine and a 9 mm Ruger. That
bedroom also contained male clothing. One of the shirts in the bedroom was a blue and white,
long sleeve plaid shirt. Detective Hall later found a photograph on Facebook in which Trujeque-
Magana was wearing that shirt.
Drug and Firearm Charges
The State charged Trujeque-Magana with possession with intent to deliver heroin as both
a principal and an accomplice (count 1), possession with intent to deliver cocaine while armed
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with a firearm and within 1000 feet of a school bus route stop (count 4), two counts of first
degree unlawful possession of a firearm (counts 6 and 7), and being an alien in possession of a
firearm without an alien firearm license (count 8).
The State also charged Molina Rios with possession with intent to deliver heroin as both
a principal and an accomplice (count 1), possession with intent to deliver methamphetamine
while armed with a firearm and within 1,000 feet of a school bus route stop (count 2), possession
with intent to deliver cocaine while armed with a firearm and within 1,000 feet of a bus stop
(count 3), and being an alien in possession of a firearm without an alien firearm license (count
9).1
Motion to Suppress Evidence
Trujeque-Magana filed a motion to suppress all evidence obtained after the investigative
stop on the basis that the police did not have reasonable suspicion to conduct the stop. He also
argued that Santiago-Santos’s consent to search her purse was invalid. He sought to suppress the
heroin found in Santiago-Santos’s purse and all evidence discovered in the search of the
apartment.
The trial court held a CrR 3.6 hearing on Trujeque-Magana’s suppression motion. The
court concluded that the State had reasonable suspicion to conduct an investigative stop on both
of the cars and that the State’s search of Santiago-Santos’s purse was lawful. As a result, the
court denied Trujeque-Magana’s motion to suppress. The court did not enter written findings of
fact and conclusions of law. But the court’s oral ruling included a detailed narrative of the facts
regarding the officers’ reasonable suspicion to conduct the investigative stop and probable cause.
1
The State also charged Molina Rios with possession of a stolen firearm, but that charge
eventually was dismissed.
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Motion to Identify CI
Trujeque-Magana filed a pretrial motion seeking to compel the State to disclose the
identity of the CI. He argued that because the CI had provided information regarding Molina
Rios, the CI would be able testify as to whether Trujeque-Magana was involved in Molina Rios’s
drug business.
The trial court found that Trujeque-Magana had not shown that the CI had information
that would bear on his innocence and ruled that the State was not required to disclose the CI’s
identity.
Motion to Dismiss for Brady Violation
During the trial, Trujeque-Magana filed a motion to dismiss based on a claim that the
State had refused to provide potentially exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In the supporting declaration, defense
counsel stated that he had learned that a shopping bag that Trujeque-Magana allegedly was
carrying when he left the mall might be in the trunk of Trujeque-Magana’s car in a police
impound lot. He noted that the officers following Trujeque-Magana and Molina Rios had
testified at the suppression hearing that the defendants had been in a shopping mall but were not
carrying any shopping bags when they left. Defense counsel requested that the State retrieve the
shopping bag, but the State had refused.
The trial court denied Trujeque-Magana’s motion, stating that even if the State had the
shopping bag and had known about the shopping bag, it was not material exculpatory evidence.
Convictions and Sentences
The jury found both defendants guilty of all counts. With regard to Trujeque-Magana’s
conviction of possession with intent to deliver cocaine and Molina Rios’s convictions of
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possession with intent to deliver cocaine and methamphetamine, the jury found by special
verdicts that they each were armed with two handguns at the time of the commission of the
crimes. The jury also found by special verdict that the possession of cocaine with intent to
deliver by both defendants and the possession of methamphetamine with intent to deliver by
Molina Rios occurred within 1,000 feet of a school bus stop.
The trial court found that Trujeque-Magana’s convictions of two counts of first degree
unlawful possession of a firearm and being an alien in possession of a firearm were the same
criminal conduct. The court determined that Trujeque-Magana’s convictions of possession of
heroin and possession of cocaine were not the same criminal conduct and that the firearm
enhancement for possession of cocaine was not the same criminal conduct as the two convictions
of unlawful possession of a firearm.
Based on the school bus route stop special verdict, the trial court doubled the maximum
term for Trujeque-Magana’s possession of cocaine conviction to 20 years. This meant that under
RCW 9.94A.533(3)(a), the sentence for each firearm enhancement was five years rather than
three years.
The trial court sentenced Trujeque-Magana to 240 months of confinement, and Molina
Rios to 332 months of confinement.
Trujeque-Magana and Molina Rios appeal their convictions and sentences.
ANALYSIS
A. MOTION TO SUPPRESS EVIDENCE
Trujeque-Magana argues that the trial court erred in denying his motion to suppress the
evidence obtained as the result of the investigative stop of his vehicle. He claims that (1) the
trial court failed to enter written findings of fact and conclusions of law regarding its denial of
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the suppression motion, (2) the evidence should have been suppressed because officers did not
have reasonable suspicion to conduct the investigative stop, and (3) Santiago-Santos’s consent to
search her purse was invalid because the officers did not inform her of her right to refuse
consent. We agree that the trial court erred in failing to enter written findings and conclusions
but hold that the error was harmless. We reject the other two arguments.
1. Failure to Enter Written Findings and Conclusions
CrR 3.6(b) requires the trial court to enter written findings of fact and conclusions of law
following a suppression hearing. Failure to enter written findings of fact and conclusions of law
is error, but the error is harmless if the trial court’s oral decision is sufficient to permit appellate
review. State v. Weller, 185 Wn. App. 913, 923, 344 P.3d 695 (2015).
Here, the State concedes that the trial court erred by failing to enter written findings of
fact and conclusions of law for its denial of the motion to suppress. However, we hold that the
error is harmless. The record of the evidentiary hearing and the trial court’s oral ruling is
sufficiently comprehensive for us to adequately review Trujeque-Magana’s claim.
2. Validity of Investigative Stop
Trujeque-Magana argues that the investigative stop of his vehicle was invalid because
officers did not have reasonable suspicion to conduct the stop. We disagree.
a. Legal Principles
Under the Fourth Amendment to the United States Constitution and article I, section 7 of
the Washington Constitution, a law enforcement officer generally cannot seize a person without
a warrant. State v. Fuentes, 183 Wn.2d 149, 157-58, 352 P.3d 152 (2015). If a seizure occurs
without a warrant, the State has the burden of showing that it falls within one of the carefully
drawn exceptions to the warrant requirement. State v. Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 7969
No. 49601-1-II / 49633-0-II
(2015). One established exception is a brief investigative detention of a person, known as a
Terry2 stop. Id.For an investigative stop to be permissible, a police officer must have had a “reasonable
suspicion” based on specific and articulable facts that the detained person was or was about to be
involved in a crime. Id. A “generalized suspicion that the person detained is ‘up to no good’ ” is
not enough; “the facts must connect the particular person to the particular crime that the officer
seeks to investigate.” Id. at 618 (italics omitted).
We determine the propriety of an investigative stop – the reasonableness of the officer’s
suspicion – based on the “totality of the circumstances.” Fuentes, 183 Wn.2d at 158. “The
totality of circumstances includes the officer’s training and experience, the location of the stop,
the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion
on the suspect’s liberty.” Id. The focus is on what the officer knew at the inception of the stop.
Id.Significantly, an officer can rely on his or her experience to identify seemingly innocent
facts as suspicious. State v. Moreno, 173 Wn. App. 479, 492, 294 P.3d 812 (2013). Facts that
appear innocuous to an average person may appear suspicious to an officer in light of past
experience. Id. at 493. And “officers do not need to rule out all possibilities of innocent
behavior before they make a stop.” Fuentes, 183 Wn.2d at 163.
In evaluating a denial of a motion to suppress evidence, we review the trial court’s
findings of fact for substantial evidence and review de novo the trial court’s conclusions of law
based on those findings. Id. at 157.
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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b. Analysis
The trial court concluded that the officers had reasonable suspicion necessary to conduct
an investigative stop. In its oral ruling, the court relied on the following facts: (1) the officers
had recently conducted a controlled buy in which the CI purchased drugs from Molina Rios, (2)
the officers received information from the CI that Molina Rios would be going to the Seattle area
to obtain drugs, (3) the officers followed Molina Rios to the Everett area in a car associated with
the controlled buy, (4) Molina Rios met up with Trujeque-Magana, (5) Trujeque-Magana had
two prior convictions for drug distribution, (6) Molina Rios and Trujeque-Magana stopped in
places where they did not do anything and spent a lot of time talking on their phones, (7) it
appeared to the officers that Molina Rios and Trujeque-Magana were counting money, (8)
Molina Rios and Trujeque-Magana engaged in what the officers perceived as a countermeasure
to lose the officers, and (9) Molina Rios and Trujeque-Magana were driving in a way that
suggested that they were driving in tandem and working together.
We conclude that substantial evidence supported the trial court’s oral findings. Jones and
Ferguson testified to all of these facts. And Trujeque-Magana does not challenge the court’s
findings. The question here is whether these findings are sufficient to support the conclusion that
the officers had a reasonable suspicion that Trujeque-Magana had been or was involved in a
crime.
Trujeque-Magana argues that the officers had no basis for suspecting that he, as opposed
to Molina Rios, was involved in criminal activity. The CI identified only Molina Rios as being
involved in drug activity. Although Trujeque-Magana spent time with Molina Rios doing
innocuous things, none of the surveillance showed Trujeque-Magana doing anything illegal.
Trujeque-Magana emphasizes that a stop is not justified merely because a person is in proximity
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to someone who is suspected of criminal activity. State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d
573 (2010). He also argues that his prior criminal history by itself was not sufficient to stop him.
However, the undisputed evidence shows that Molina Rios went to the Everett area to
obtain drugs, and that throughout the day Trujeque-Magana and Molina Rios were working
closely together. They met, talked on their cell phones in Molina Rios’s car, drove their cars
together to a store parking lot and then to the mall, and drove in tandem back to Clark County.
This evidence supports the conclusion that Trujeque-Magana was not merely in proximity to
Molina Rios; he was actively assisting in Molina Rios’s effort to obtain drugs.
Further, although the evidence showed activity that could have been innocuous, that
activity also was consistent with setting up a meeting to purchase drugs and trying to avoid being
followed by law enforcement. Molina Rios and Trujeque-Magana moved from place to place.
They talked on their cell phones. The officers thought that they counted money. And Molina
Rios and Trujeque-Magana took actions to evade law enforcement. Based on their extensive
experience, Jones and Ferguson suspected that these seemingly innocuous activities were
associated with a drug exchange.
Finally, Trujeque-Magana is correct that his criminal record standing alone would not
have been sufficient to justify an investigative stop. But his two prior drug distribution
convictions could be considered with all the other factors to support a reasonable suspicion of
criminal activity. See State v. Neth, 165 Wn.2d 177, 185-86, 196 P.3d 658 (2008) (holding that a
prior criminal history of similar crimes is not enough on its own, but with other evidence may
meet the higher probable cause standard).
The totality of the circumstances were sufficient to establish a reasonable suspicion that
Trujeque-Magana was engaged in illegal drug activity. Accordingly, we hold that the trial court
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did not err in concluding that the investigative stop was justified and in denying Trujeque-
Magana’s suppression motion.
3. Consent to Search Purse
Trujeque-Magana argues that Santiago-Santos’s consent to search her purse was invalid
because the officers did not inform her of her right to refuse consent. We disagree.
One of the recognized exceptions to the warrant requirement is lawful consent. State v.
Blockman, 190 Wn.2d 651, 658, 416 P.3d 1194 (2018). The Supreme Court has set out three
requirements for a valid consensual search: “(1) the consent must be voluntary, (2) the consent
must be granted by a party having authority to consent, and (3) the search must be limited to the
scope of the consent granted.” Id.The trial court found that Santiago-Santos’s consent to search her purse was voluntary.
Trujeque-Magana does not challenge this finding. Instead, he argues that as a matter of law, the
officers were required to inform her that she had the right to refuse consent to a search.
When police are investigating a home using the “knock and talk” method, article 1,
section 7 of the Washington Constitution requires the police to advise the homeowner of his or
her right to refuse consent to a search. State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927(1998); see also State v. Budd, 185 Wn.2d 566, 572-74, 374 P.3d 137 (2016). But the
Washington constitution does not require Ferrier warnings for searches pursuant to a valid Terry
stop. State v. Witherrite, 184 Wn. App. 859, 864, 339 P.3d 992 (2014); State v. Tagas, 121 Wn.
App. 872, 876-78, 90 P.3d 1088 (2004). Like here, Tagas involved the search of a purse during
a Terry stop on the side of a highway. 121 Wn. App. at 875. The court stated, “When the
subject of the search is not in custody and the question is whether consent is voluntary,
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knowledge of the right to refuse consent is not a prerequisite of voluntary consent.” Id. at 876-
77.
Trujeque-Magana acknowledges that courts have refused to require Ferrier warnings for
searches outside of people’s homes, but asks this court to extend the principles of Ferrier to
searches pursuant to Terry stops. He refers to a concurring opinion in Witherrite that suggested
that Ferrier should be extended to vehicle searches. 184 Wn. App. at 864-65 (Lawrence-Berrey,
J., concurring). However, Trujeque-Magana does not provide any compelling reason to
disregard existing precedent and to extend the scope of Ferrier when the Supreme Court has not
chosen to do so. And even the concurring opinion in Witherrite was addressing searches of
vehicles, not personal possessions.
We hold that the officers were not required to inform Santiago-Santos of her right to
refuse to consent to a search of her purse. Accordingly, we hold that the trial court did not err in
denying Trujeque-Magana’s motion to suppress the heroin found in the purse.
B. SUFFICIENCY OF EVIDENCE
Trujeque-Magana argues that the State did not present sufficient evidence to prove that
(1) he possessed the heroin discovered in Santiago-Santos’s purse (count 1), (2) he possessed the
cocaine discovered in the apartment (count 4), (3) he possessed the two handguns found in the
apartment (counts 6 and 7), and (4) he was armed with two handguns when he committed the
crime of possession with intent to deliver cocaine. Molina Rios also asserts the first and fourth
arguments.3 We reject all of these arguments.
3
Neither appellant argues that the evidence is insufficient on count 8, alien in possession of a
firearm.
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1. Standard of Review
The test for determining sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).
In a sufficiency of the evidence claim, the defendant admits the truth of the evidence and the
court views the evidence and all reasonable inferences drawn from that evidence in the light
most favorable to the State. Id. at 265-66. Credibility determinations are made by the trier of
fact and are not subject to review. Id. at 266. Circumstantial and direct evidence are equally
reliable. Id.
2. Possession of Drugs and Guns
Trujeque-Magana and Molina Rios argue that there was insufficient evidence to prove
that they possessed the heroin in Santiago-Santos’s purse, and Trujeque-Magana argues that
there was insufficient evidence to prove that he possessed the cocaine and handguns in the
apartment. We disagree.
a. Legal Principles – Possession
A person can have actual possession or constructive possession of an item. State v.
Reichert, 158 Wn. App. 374, 390, 242 P.3d 44 (2010). Actual possession requires physical
custody of the item. Id. Constructive possession occurs when a person has “dominion and
control” over an item. Id. Dominion and control exists when the person can immediately
convert the item to his or her actual possession. Id. A person can have possession without
exclusive control; more than one person can be in possession of the same item. State v. George,
146 Wn. App. 906, 920, 193 P.3d 693 (2008). But possession involves actual control, not
merely a momentary handling of the item. Id.15
No. 49601-1-II / 49633-0-II
A person’s dominion and control over a premises “creates a rebuttable presumption that
the person has dominion and control over items on the premises.” Reichert, 158 Wn. App. at
390. Therefore, a jury can infer constructive possession of items on the premises from a person’s
dominion and control over the premises. See State v. Shumaker, 142 Wn. App. 330, 334, 174
P.3d 1214 (2007). A vehicle is considered a “premises.” George, 146 Wn. App. at 920.
b. Heroin in Purse
The State argues that Trujeque-Magana and Molina Rios had constructive possession of
the heroin in Santiago-Santos’s purse. Alternatively, the State argues that both Trujeque-Magana
and Molina Rios were accomplices to Santiago-Santos’s actual possession. We agree that under
the specific facts of this case, both Trujeque-Magana and Molina Rios were accomplices to
Santiago-Santos’s possession.
Under RCW 9A.08.020(3)(a), a person can be guilty as an accomplice if:
[w]ith knowledge that it will promote or facilitate the commission of the crimes, he
or she:
(i) Solicits, commands, encourages, or requests such other person to commit it; or
(ii) Aids or agrees to aid such other person in planning or committing it.
The to-convict jury instruction for count 1 stated that the jury had to find that Trujeque-
Magana and Molina Rios or their accomplice possessed heroin.
Evidence that a person is merely present at the scene of a crime, even with knowledge of
the crime, is insufficient to prove accomplice liability. State v. Jameison, 4 Wn. App. 2d 184,
205, 421 P.3d 463 (2018). The accomplice must “associate himself with the principal’s criminal
undertaking, participate in it as something he desires to bring about, and seek by his action to
make it succeed.” Id.Here, the evidence supports a finding of accomplice liability. A reasonable inference
from the evidence is that Trujeque-Magana and Molina Rios obtained the heroin, and gave it to
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Santiago-Santos to transport back to Clark County. All three were involved in the criminal
undertaking – possession of the heroin with intent to deliver it. In particular, the State presented
evidence that Molina Rios and Trujeque-Magana were possibly counting money together and
driving in tandem. Further, there was no evidence that Santiago-Santos was actively involved in
any of these efforts. She was asleep while Molina Rios and Trujeque-Magana apparently were
making calls and counting money.
This evidence supports an inference that both Trujeque-Magana and Molina Rios had
helped obtain the heroin found in Santiago-Santos’s purse and therefore knew about it, and were
aiding her in transporting it to Clark County.
Molina Rios argues that the State failed to prove that he was an accomplice because there
was no direct evidence that he knew the heroin was in Santiago-Santos’s purse. However, in a
sufficiency challenge we view circumstantial evidence and direct evidence as equally reliable.
Cardenas-Flores, 189 Wn.2d at 266. Here, the circumstantial evidence supports a reasonable
inference that Molina Rios was aware of and actively aided in Santiago-Santos’s possession of
the heroin.
We hold that sufficient evidence supports Trujeque-Magana’s and Molina Rios’s
convictions of possession with intent to deliver heroin.
c. Drugs and Guns in Apartment
The issue here is whether Trujeque-Magana had dominion and control over the bedroom
in the apartment where officers found cocaine and two handguns, which would invoke the
presumption that he constructively possessed those items. Trujeque-Magana emphasizes that the
State presented no direct evidence that he had any connection with the apartment at the time the
cocaine and guns were discovered.
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However, the State presented a document signed by Trujeque-Magana showing that he
had leased the apartment. Although this evidence does not conclusively prove that he lived
there, it supports a reasonable inference that Trujeque-Magana had some control over the
apartment. In addition, the bedroom in which the cocaine and guns were found contained men’s
clothes, including a shirt that Trujeque-Magana was seen wearing in a Facebook photograph.
This evidence, along with the lease document, supports a reasonable inference that he was living
in that bedroom and had dominion and control of at least that bedroom. Therefore, the evidence
supports the conclusion that Trujeque-Magana had constructive possession of the cocaine and
guns in the bedroom.
Accordingly, we hold that sufficient evidence supports Trujeque-Magana’s convictions of
possession with intent to deliver cocaine and unlawful possession of the two firearms.
3. Armed with Firearms
Trujeque-Magana and Molina Rios argue that there was insufficient evidence to prove
that they were armed with the handguns found in the apartment when they committed the
possession of cocaine (Trujeque-Magana) and cocaine/methamphetamine (Molina Rios) crimes.
We disagree.
a. Legal Principles
Under RCW 9.94A.533(3), a court must add additional time to a sentence if the
defendant is found to have been armed with a firearm while committing the crime. State v.
Houston-Sconiers, 188 Wn.2d 1, 16-17, 391 P.3d 409 (2017). The additional time is five years
for a class A felony or a felony with a statutory maximum sentence of at least 20 years, and three
years for a class B felony or a felony with a statutory maximum sentence of at least 10 years.
RCW 9.94A.533(3)(a)(b).
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“To establish that a defendant was armed for the purpose of a firearm enhancement, the
State must prove (1) that a firearm was easily accessible and readily available for offensive or
defensive purposes during the commission of the crime and (2) that a nexus exists among the
defendant, the weapon, and the crime.” State v. Sassen Van Elsloo, 191 Wn.2d 798, 826, 425
P.3d 807 (2018).
Regarding the first requirement, the presence or even constructive possession of a
weapon found at a crime scene alone is not enough to establish that the defendant was armed in
this context. Id. at 824. On the other hand, “[t]he defendant does not have to be armed at the
moment of arrest to be armed for purposes of the firearms enhancement.” State v. O’Neal, 159
Wn.2d 500, 504, 150 P.3d 1121 (2007). “[T]he State need not establish with mathematical
precision the specific time and place that a weapon was readily available and easily accessible so
long as it was at the time of the crime.” Id. at 504-05. The court in Sassen Van Elsloo confirmed
these principles. 191 Wn.2d at 826-27. And a drug distribution operation is a continuing crime
that is ongoing even when the defendant is elsewhere. See State v. Neff, 163 Wn.2d 453, 464-65,
181 P.3d 819 (2008) (stating this principle in the context of a drug manufacturing operation).
Regarding the second requirement, we look to the nature of the crime, the type of firearm,
and the context in which it was found to determine if there was a nexus between the defendant,
the firearm, and the crime. Sassen Van Elsloo, 191 Wn.2d at 827. Significantly, a sufficient
nexus exists if there is evidence that the firearm was present to protect an ongoing drug
operation. O’Neal, 159 Wn.2d at 506; State v. Eckenrode, 159 Wn.2d 488, 494-95, 150 P.3d
1116 (2007).
The Supreme Court has considered whether the State presented sufficient evidence to
support a firearm enhancement for drug crimes in several cases. In Sassen Van Elsloo, the
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No. 49601-1-II / 49633-0-II
defendant had a loaded shotgun in a car that also contained various types of drugs. 191 Wn.2d at
802-03. The court held that the State had presented sufficient evidence that the shotgun was
readily accessible and connected to the possession of the drugs. Id. at 829-31.
In Neff, police found two loaded guns in a locked safe and a loaded gun in a tool belt
hanging from the rafters of a garage where methamphetamine was being manufactured. 163
Wn.2d at 457. Police also discovered two surveillance cameras and a monitor in the garage. Id.The court held that the evidence was sufficient to prove that the defendant was armed with a
firearm. Id. at 464-65. The court noted that the mere presence and constructive possession of a
gun was not sufficient to support the enhancement without evidence linking the gun to the crime,
but stated that the presence of the security cameras and monitor provided that proof. Id. at 464.
And the court rejected the defendant’s argument that he could not be armed with the guns
because he was not in the garage at the time of the arrest, emphasizing that the drug operation
was a continuing crime. Id. at 464-65.
In O’Neal, police found more than 20 guns along with body armor, a police scanner, and
night goggles at a mobile home where methamphetamine was being manufactured. 159 Wn.2d
at 503. The defendants were arrested at the time of the search, but they were not holding guns
when arrested. Id. at 502. Most of the guns were in two safes; however, a loaded semiautomatic
rifle and a loaded semiautomatic pistol were found in two bedrooms. Id. at 503. The court held
that the two loaded weapons were readily accessible and that a reasonable jury could infer that
the guns were there to protect the drug operation. Id. at 506. The court cited with approval this
court’s decision in State v. Simonson, 91 Wn. App. 874, 883, 960 P.2d 955 (1998), which held
that it was reasonable to infer that the presence of at least four loaded guns at a
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No. 49601-1-II / 49633-0-II
methamphetamine manufacturing operation was for the purpose of defending the operation and
therefore was sufficient to support a deadly weapon enhancement. O’Neal, 159 Wn.2d at 505.
In Eckenrode, law enforcement searching a house discovered a large marijuana grow
operation and a loaded rifle and an unloaded pistol along with a police scanner. 159 Wn.2d at
491-92, 494. The defendant was outside and far away from the guns when he was arrested. Id.
at 492. The court stated that the legislative purpose of the deadly weapons enhancement was “to
recognize that armed crime, including having weapons available to protect contraband, imposes
particular risks of danger on society.” Id. at 493. The court held that based on the evidence of a
drug manufacturing operation, a police scanner to monitor police activity and the weapons, “[a]
jury could readily have found that the weapons were there to protect the criminal enterprise.” Id.
at 494.
The court reached the opposite conclusion in State v Gurske, where the defendant had a
pistol in a zipped backpack stuffed behind the driver’s seat of his truck. 155 Wn.2d 134, 136,
118 P.3d 333 (2005). The court held that the stipulated facts were insufficient to prove that the
pistol was readily accessible for the purpose of the firearms enhancement. Id. at 143-44. The
court stated that the evidence was insufficient because the facts did not indicate whether the
defendant could have reached the backpack, unzipped it, removed items on top of the pistol, and
accessed the pistol from where he was sitting when he was stopped by a police officer. Id.
The court in State v. Valdobinos also found insufficient evidence to support a firearm
enhancement where an unloaded rifle was found under a bed in a house where cocaine was
discovered. 122 Wn.2d 270, 274, 282, 858 P.2d 199 (1993). The court held that there was no
evidence showing that the unloaded rifle was accessible and readily available for offensive or
defensive use. Id. at 282.
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b. Analysis
Here, the State presented evidence that loaded guns were found in a closet very close to a
bag of cocaine (Trujeque-Magana) and under a pillow and in a dresser drawer in a room with
large amounts of drugs (Molina Rios). A reasonable jury could conclude that these guns were
readily accessible and available to people in the apartment. Under O’Neal, the State was not
required to show that Trujeque-Magana and Molina Rios were armed at the time of their arrests
or establish with mathematical certainty the specific time and place that the guns were accessible
and available regarding their continuing possession with intent to deliver offenses. 159 Wn.2d at
504-05. And a reasonable jury could infer from the proximity of the guns to the drugs that the
guns were used to protect the ongoing drug operation.
Gurske does not apply here because in that case, the firearm clearly was not accessible to
the driver of a vehicle. 155 Wn.2d at 143. Here, the guns were easily accessible to anyone who
was near the seized drugs. Valdobinos does not apply here because in that case, the firearm was
unloaded and the court did not indicate that it was near the cocaine that officers discovered. 122
Wn.2d at 282. Here, the guns were loaded and were in close proximity to the seized drugs.
Trujeque-Magana argues that the firearms could not have been readily accessible because
he was in custody at the time the guns were discovered. He cites this court’s decision in State v.
Mills, which held that the defendant was not armed with a firearm when he was arrested several
miles from a hotel room where the firearm and drugs were found. 80 Wn. App. 231, 234-37, 907
P.2d 316 (1995).
However, Trujeque-Magana’s possession with intent to deliver the drugs in the apartment
was a continuing offense. In Simonson, one of the defendants was in jail when officers
discovered drugs and firearms in his trailer. 91 Wn. App. at 877-78. This court held that the
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No. 49601-1-II / 49633-0-II
evidence was sufficient to support a deadly weapon enhancement. Id. at 883. The court stated
that the defendants were committing a continuing offense over a six-week period, and during
some or all of that time they kept guns on the premises that could be inferred were used to
defend their drug operation. Id. Simonson, not Mills, is applicable here.
Further, Mills was decided long before the series of cases discussed above that further
explained the evidence required to prove that a defendant was armed with a firearm. These cases
have established that RCW 9.94A.533(3) requires that the defendant was armed during the
commission of the offense, but does not require that the defendant be armed at the time the guns
were discovered or at the time he or she was arrested. O’Neal, 159 Wn.2d at 504.
In addition, the information stated that Trujeque-Magana committed the intent to deliver
cocaine offense “on or about” November 5, 2015. When an offense is charged using “on or
about” or similar language, the proof that the offense was committed is not limited to the
specified date. State v. Yallup, 3 Wn. App. 2d 546, 553, 416 P.3d 1250, review denied 191
Wn.2d 1014 (2018). Therefore, the State was not required to prove that Trujeque-Magana was
armed with a firearm specifically on November 5.
Molina Rios argues that the State did not present evidence of a nexus between himself,
the guns, and his constructive possession of the drugs. However, the State presented evidence
that a loaded handgun was under the pillow in Molina Rios’s bedroom. The State also presented
evidence of drugs in Molina Rios’s bedroom. A jury reasonably could have inferred that Molina
Rios had the gun nearby to defend the drugs in his room.
Accordingly, we hold that sufficient evidence supports the firearm enhancements for both
Trujeque-Magana and Molina Rios.
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C. DISCLOSURE OF EXCULPATORY EVIDENCE
Trujeque-Magana argues that the trial court erred in denying his motion to dismiss based
on his claim that the State failed to produce exculpatory evidence – a shopping bag in the car he
was driving – in violation of the Brady rule. We disagree.
1. Legal Principles
Under Brady and its progeny, the State is required to turn over all potentially exculpatory
evidence or evidence that could be used as impeachment evidence. State v. Mullen, 171 Wn.2d
881, 894, 259 P.3d 158 (2011). “The state due process clause extends the same protection
regarding this right as does its federal counterpart.” State v. Armstrong, 188 Wn.2d 333, 344,
394 P.3d 373 (2017).
The defendant bears the burden of proving three elements of a successful Brady claim:
(1) the evidence must be favorable to the defendant, either as exculpatory or impeachment
evidence; (2) the State must have withheld the evidence; and (3) the evidence must be material to
the defense. State v. Davila, 184 Wn.2d 55, 69, 357 P.3d 636 (2015).
Evidence is material if there is a reasonable probability that the result of the proceeding
would have been different if the evidence had been disclosed to the defendant. Id. at 73. A
defendant need not demonstrate that he would be acquitted if suppressed evidence had been
disclosed. Id. Under the reasonable probability standard, the defendant must show only that the
State’s suppression undermines confidence in the trial’s outcome. Id. We evaluate the effect of
the State’s failure to disclose favorable evidence cumulatively and in the context of the entire
record. Id. at 78.
Our review of Brady claims involves a mixed question of fact and law. Id. at 74. We
review underlying factual findings by the trial court for substantial evidence. Id. at 74-75. But
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No. 49601-1-II / 49633-0-II
we review de novo the ultimate constitutional question of whether the State’s failure to disclose
certain information resulted in a due process violation. Id. at 75.
2. Analysis
Trujeque-Magana argues that the shopping bag in the car he was driving was material
because it could have been used to impeach the officers’ testimony suggesting that he was doing
nothing while under surveillance. However, he admits that the officers did not testify about a
lack of a shopping bag in their trial testimony (as they did in the suppression hearing).
Therefore, it is unclear how the presence of the shopping bag in the impounded car would
undermine their credibility.
In addition, the officers’ testimony that doing nothing suggested involvement in a drug
transaction was an issue at the suppression hearing, not at trial. So impeachment on this issue
would be immaterial. And even if he did buy something at the mall, Trujeque-Magana does not
explain how the shopping bag would prove that he was not involved with a drug transaction.
Accordingly, we hold that the potential shopping bag is not material evidence and
therefore that the State’s failure to produce it to Trujeque-Magana was not a Brady violation.
D. IDENTIFICATION OF CI
Trujeque-Magana argues that the trial court erred in refusing to require the State to
disclose the identity of the CI involved in the investigation of Molina Rios. We disagree.
1. Legal Principles
Under the so-called “informer’s privilege,” the State generally is not required to disclose
the identity of a CI, in order to encourage citizens to safely provide information on criminal
activity to law enforcement. State v. Atchley, 142 Wn. App. 147, 155, 173 P.3d 323 (2007).
CrR 4.7(f)(2) provides that the State is not required to reveal the identity of a CI if “a failure to
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No. 49601-1-II / 49633-0-II
disclose will not infringe upon the constitutional rights of the defendant.” The trial court must
weigh the possible significance of the informant’s testimony and the possible defenses against
the State’s interest in protecting the identity of its informant. Atchley, 142 Wn. App. at 155-56.
“When ‘disclosure of an informer’s identity . . . is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause, the privilege must give way.’ ” State v.
Petrina, 73 Wn. App. 779, 783, 871 P.2d 637 (1994) (quoting Rovario v. U.S., 353 U.S. 53, 60-
61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)).
We review a trial court’s decision on a request to disclose the CI’s identity for an abuse
of discretion. State v. Bauer, 98 Wn. App. 870, 878, 991 P.2d 668 (2000). A court abuses its
discretion when it acts on untenable grounds or its decision is manifestly unreasonable. Id.
2. Analysis
Trujeque-Magana argued in his motion to the trial court that the CI would be able to
testify that Trujeque-Magana was not involved in the drug operation because only Molina Rios
had participated in the controlled buy with the CI. The trial court ruled that even if the CI could
testify that Trujeque-Magana was not involved in the controlled buys, such testimony would not
be material to Trujeque-Magana’s involvement in the alleged drug transaction in Everett, the
traffic stop, or the evidence found in the apartment.
Trujeque-Magana now argues that evidence that Molina Rios was acting alone during the
controlled buys could have rebutted the circumstantial evidence that Trujeque-Magana was
involved in the drug operation. However, he does not explain how the CI’s testimony regarding
the controlled buys would show that Molina Rios was operating his drug business alone or that
Trujeque-Magana did not participate on another date. Trujeque-Magana has not shown that the
trial court’s ruling was untenable or unreasonable.
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No. 49601-1-II / 49633-0-II
Accordingly, we hold that the trial court did not abuse its discretion in denying Trujeque-
Magana’s motion to disclose the identity of the CI.
E. OPINION TESTIMONY OF OFFICERS
Trujeque-Magana argues that the trial court erred in allowing officers to provide opinion
testimony regarding various observations. He argues that the officers’ testimony improperly
stated opinions on issues of fact to be determined by the jury. We disagree.
1. Legal Principles
We review a trial court’s decision to admit evidence for an abuse of discretion. State v.
Quaale, 182 Wn.2d 191, 196, 340 P.3d 213 (2014). A trial court has considerable discretion in
determining the admissibility of evidence. Id. An abuse of discretion occurs only where a trial
court’s decision is manifestly unreasonable or based on untenable grounds or reasons. Id. at 197.
There is no abuse of discretion if reasonable persons could disagree regarding admissibility of
evidence. Id. at 196.
Under ER 701, a witness not testifying as an expert can offer opinions that are (1)
rationally based on the witness’s perceptions, (2) helpful to the trier of fact in understanding the
witness’s testimony or determining a fact in issue, and (3) not based on scientific, technical, or
other specialized knowledge covered by ER 702. State v. Montgomery, 163 Wn.2d 577, 591,
183 P.3d 267 (2008).
However, witnesses may not give opinions on personal beliefs of the defendant’s guilt,
the intent of the accused, or the veracity of another witness. Quaale, 182 Wn.2d at 200. Such
opinion testimony is unfairly prejudicial to the defendant because determining the defendant’s
guilt is the jury’s exclusive province. State v. King, 167 Wn.2d 324, 331, 219 P.3d 642 (2009).
“A law enforcement officer’s improper opinion testimony may be particularly prejudicial
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No. 49601-1-II / 49633-0-II
because it carries ‘a special aura of reliability.’ ” State v. Winborne, 4 Wn. App. 2d 147, 177,
420 P.3d 707 (2018) (quoting King, 167 Wn.2d at 331). The inclusion of opinion testimony
regarding a defendant’s guilt may be reversible error. King, 167 Wn.2d at 329-30.
While a witness may not give testimony on their personal beliefs regarding the evidence,
a witness may testify that certain evidence is “consistent with” a particular conclusion.
Montgomery, 163 Wn.2d at 592-93.
2. Analysis
Trujeque-Magana challenges the admissibility of four areas of testimony. First, Deputy
Jones testified that he believed that Trujeque-Magana and Molina Rios were counting money
even though he could not see their hands and could not see any money. Jones also testified that
many times as a drug investigator he had observed suspects spend long periods of time doing
nothing.
Similarly, Detective Ferguson testified that he believed that Trujeque-Magana and
Molina Rios could have been counting money. In addition, Ferguson testified that based on his
experience, Trujeque-Magana and Molina Rios were preparing to conduct a drug deal or secret
the drug deal from police; that Trujeque-Magana and Molina Rios were engaged in counter
surveillance driving; and that in his experience people would move the location multiple times
when they are trying to conduct a drug deal.
However, this testimony involved the officers’ opinions based on their observations and
their experience. These type of opinions generally are admissible under ER 701. And the
officers did not express any opinions regarding Trujeque-Magana’s guilt.
Second, Detective Hall testified about the presence of makeup, brushes, and a Victoria’s
Secret bag in the room officers associated with Trujeque-Magana. He stated that suspects and
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No. 49601-1-II / 49633-0-II
witnesses had told him that drugs belonged to them even though they were contained in materials
generally attributed to the opposite gender. Once again, this testimony involved Hall’s
observations and experience and were admissible under ER 701.
Third, Detective Hall testified that the amount of cash officers discovered in the
apartment was more cash than typically seen in drug cases, and that the cash showed that “[t]hey
are at least middle, most likely upper-level drug dealers.” Report of Proceedings (RP) at 966.
Hall also testified that based on the three types of drugs present and the firearms that were found,
“I say definitely this is signature of a middle to upper-level drug dealing organization.” RP at
966. However, Trujeque-Magana did not object to this testimony at trial. Therefore, he cannot
raise this issue for the first time on appeal. RAP 2.5(a); State v. Kalebaugh, 183 Wn.2d 578,
583, 355 P.3d 253 (2015).
Fourth, Trujeque-Magana asserts that officers testified that they did not perform DNA or
fingerprint testing because they already had enough evidence to prove the defendants’ guilt.
However, defense counsel elicited this testimony on cross-examination and did not object to or
move to strike their answers. Therefore, Trujeque-Magana cannot raise this issue for the first
time on appeal. RAP 2.5(a); Kalebaugh, 183 Wn.2d at 583.
Accordingly, we reject Trujeque-Magana’s claim that officers provided improper opinion
testimony.
F. EQUAL PROTECTION CHALLENGE TO RCW 9.41.171
Trujeque-Magana and Molina Rios argue that RCW 9.41.171(3) and RCW 9.41.175
violate equal protection because the statutes treat noncitizens from Canada differently than
noncitizens from other countries regarding the possession of firearms. We disagree.
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No. 49601-1-II / 49633-0-II
1. Statutory Provisions
Under RCW 9.41.171, it is unlawful “for any person who is not a citizen of the United
States to carry or possess any firearm, unless the person: (1) Is a lawful permanent resident; (2)
has obtained a valid alien firearm license pursuant to RCW 9.41.173; or (3) meets the
requirements of RCW 9.41.175.” In other words, it is unlawful for a noncitizen to carry or
possess a firearm unless one of three exceptions applies. The State concedes that in order to
convict for violation of this statute, it has the burden of proving the absence of these three
exceptions.
The State presented evidence that Trujeque-Magana and Molina Rios did not satisfy
RCW 9.41.171(1) or (2). Trujeque-Magana stipulated that he was not a United States citizen and
was not a lawful permanent resident.4 And the State presented evidence that Molina Rios was
not a United States citizen and was not a lawful permanent resident. The State also presented
evidence that there was no record of either Trujeque-Magana or Molina Rios having a license to
possess a firearm.
Trujeque-Magana and Molina Rios challenge RCW 9.41.171(3), which provides an
exception for a person that meets the requirements of RCW 9.41.175. As Trujeque-Magana and
Molina Rios note, RCW 9.41.175 distinguishes between nonimmigrant aliens and citizens of
Canada in addressing when a noncitizen can carry or possess a firearm without obtaining a
firearm license. RCW 9.41.175(1) states that a nonimmigrant alien who is not a Washington
resident or Canadian citizen must possess:
4
Trujeque-Magana claims that the court erred in instructing the jury that it could consider his
stipulation that he was not a lawful permanent resident of the United States regarding counts 6
and 7. However, he does not assign error to this instruction and does not provide any meaningful
argument regarding the alleged error. Therefore, we do not address this issue.
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No. 49601-1-II / 49633-0-II
(a) A valid passport and visa showing he or she is in the country legally;
(b) If required under federal law, an approved United States department of justice
ATF-6 NIA application and permit for temporary importation of firearms and
ammunition by nonimmigrant aliens; and
(c)(i) A valid hunting license issued by a state or territory of the United States; or
(ii) An invitation to participate in a trade show or sport shooting event being
conducted in this state, another state, or another country that is contiguous with this
state.
For Canadian citizens, the requirements are identical except for subsection (a). The statute does
not specify that Canadian citizens must have passports and visas, but states that Canadian
citizens must possess “[v]alid documentation as required for entry into the United States.” RCW
9.41.175(2)(a).
Under these provisions, citizens of all countries other than Canada must have a visa
showing that they are in the United States legally plus meet the requirements of (b) and (c) to
lawfully carry or possess a firearm. But Canadian citizens who meet the (b) and (c) requirements
do not need to have a visa or prove that they are in the United States legally to lawfully carry or
possess a firearm; they only need a passport as valid documentation as required for entry.
2. Legal Principles – Equal Protection
The Fourteenth Amendment to the United States Constitution and article I, section 12 of
the Washington Constitution guarantee equal protection under the law. “Equal protection
requires that similarly situated individuals receive similar treatment under the law.” Harris v.
Charles, 171 Wn.2d 455, 462, 256 P.3d 328 (2011). Equal protection is a constitutional issue,
which we review de novo. Madison v. State, 161 Wn.2d 85, 92, 163 P.3d 757 (2007).
The threshold requirement of an equal protection challenge is that a defendant “must
establish that he received disparate treatment because of membership in a class of similarly
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No. 49601-1-II / 49633-0-II
situated individuals and that the disparate treatment was the result of intentional or purposeful
discrimination.” State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006).
Trujeque-Magana and Molina Rios appear to be making a facial rather than an as applied
challenge to RCW 9.41.171(3) and RCW 9.41.175. To prevail in a facial challenge, a defendant
must show that “ ‘no set of circumstances exists in which the statute, as currently written, can be
constitutionally applied.’ ” City of Seattle v. Evans, 184 Wn.2d 856, 862, 366 P.3d 906 (2015)
(quoting City of Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004)).
3. Analysis
Trujeque-Magana and Molina Rios are correct that RCW 9.41.175 establishes different
treatment for Canadian citizens on its face. However, they cannot show that there are no
circumstances under which the statutes can be constitutionally applied. In fact, as applied to
them under the facts of this case, RCW 9.41.171(3) and RCW 9.41.175 do not violate equal
protection because Trujeque-Magana and Molina Rios would have been in violation of RCW
9.41.171(3) even if they were Canadian.
Trujeque-Magana and Molina Rios have not shown or even alleged that they had valid
documentation for entry into the United States as required in RCW 9.41.175(2)(a) or that they
had a hunting license from another state or an invitation to a trade show or event as required in
RCW 9.41.175(2)(c). Therefore, RCW 9.41.171(3) and RCW 9.41.175 treated them the same
regardless of whether they were Mexican or Canadian citizens.
We hold that RCW 9.41.171(3) and RCW 9.41.175 do not violate equal protection under
the facts of this case.5
5
Trujeque-Magana also claims in an assignment of error that the evidence was insufficient to
support this conviction. However, he does not present any argument to support this claim, and
therefore we do not address it. State v. Mason, 170 Wn. App. 375, 384, 285 P.3d 154 (2012).
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G. SENTENCING ISSUES
Trujeque-Magana argues that in sentencing him, the trial court made erroneous same
criminal conduct rulings and applied five-year instead of three-year firearm enhancements based
on a misinterpretation of RCW 69.50.435(1). We disagree.
1. Same Criminal Conduct
For purposes of calculating a defendant’s offender score, multiple offenses that
encompass the same criminal conduct are counted as one offense. RCW 9.94A.525(5)(a)6.
Under RCW 9.94A.589(1)(a), two or more offenses constitute the “same criminal conduct” when
they “require the same criminal intent, are committed at the same time and place, and involve the
same victim.” If any of these elements is not present, the offenses are not the same criminal
conduct. State v. Aldana Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 (2013).
Multiple offenses will be treated as occurring at the same time if they are “part of a
continuous, uninterrupted sequence of conduct over a very short period of time.” State v. Porter,
133 Wn.2d 177, 183, 942 P.2d 974 (1997). On the other hand, multiple offenses do not occur at
the same time if the defendant fails to show that they were continuous, simultaneous, or occurred
in a short time frame. Aldana Graciano, 176 Wn.2d at 541.
The defendant bears the burden of establishing that two or more offenses encompass the
same criminal conduct. Id. at 539-40. “[E]ach of a defendant’s convictions counts toward his
offender score unless he convinces the court that they involved the same criminal intent, time,
place, and victim.” Id. at 540.
6
RCW 9.94A.525 was amended in 2017. However, these amendments do not materially affect
the statutory language relied on by this court. Accordingly, we do not include the word “former”
before RCW 9.94A.525.
33
No. 49601-1-II / 49633-0-II
We review a trial court’s determination of whether two offenses encompass the same
criminal conduct for an “abuse of discretion or misapplication of law.” Id. at 537. Under this
standard, a trial court abuses its discretion if the record supports only the opposite conclusion.
Id. at 537-38. “But where the record adequately supports either conclusion, the matter lies in the
court’s discretion.” Id. at 538. In addition, a trial court abuses its discretion by applying the
wrong legal standard. State v. Johnson, 180 Wn. App. 92, 100, 320 P.3d 197 (2014).
Here, the trial court ruled that Trujeque-Magana’s convictions on counts 1 and 4 – the
possession of heroin and cocaine convictions – were not the same criminal conduct. The court
also ruled that counts 6, 7, and 8 – the possession of firearm convictions – were the same
criminal conduct. However, the court did not find that counts 6, 7, and 8 were the same criminal
conduct as the firearm enhancement associated with count 4.
Trujeque-Magana argues that counts 1 and 4 should constitute the same criminal conduct.
He claims that although the two drug violations occurred at different times and at different
places, his intent was the same and they occurred over a short time frame. However, by
Trujeque-Magana’s own admission, counts 1 and 4 took place at different times and places.
Under RCW 9.94A.589(1)(a), the crimes must have been committed at the same time and place
to constitute the same criminal conduct. Therefore, Trujeque-Magana’s argument fails.
Trujeque-Magana also argues that counts 6, 7, and 8 were the same criminal conduct as
the firearm enhancement associated with count 4. He claims that being armed for the purpose of
the firearm enhancement was intimately tied to possessing the guns, and therefore should have
been considered the same criminal conduct.
However, the criminal intent element of the firearm enhancement for possession with
intent to distribute cocaine is different than for first degree unlawful possession of a firearm or
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No. 49601-1-II / 49633-0-II
for alien in possession of a firearm. State v. McGrew, 156 Wn. App. 546, 555, 234 P.3d 268(2010). For the possession with intent to deliver cocaine and firearm enhancement charge, the
State was required to prove Trujeque-Magana intended to deliver the cocaine while armed with a
firearm. Id. But for the unlawful firearm possession charges and the alien in possession of a
firearm charge, the State was required to prove only that Trujeque-Magana knowingly possessed
the firearms. See McGrew, 156 Wn. App. at 555. As noted above, to constitute the same
criminal conduct two offenses must have the same criminal intent. Aldana Graciano, 176 Wn.2d
at 540. Therefore, this argument also fails.
Accordingly, we hold that the trial court did not abuse its discretion in ruling that
Trujeque-Magana’s convictions on counts 1 and 4 were not the same criminal conduct and that
his convictions on counts 6, 7, and 8 and the firearm enhancement associated with count 4 were
not the same criminal conduct.
2. Effect of RCW 69.50.435(1) on Firearm Enhancement
Under RCW 69.50.435(1), a sentencing court may impose “imprisonment of up to twice
the imprisonment otherwise authorized by this chapter” for a violation of RCW 69.50.401
involving possession with the intent to deliver a controlled substance if the defendant committed
the offense within 1,000 feet of a school bus route stop or 1,000 feet of school grounds. RCW
69.50.401(2)(a) states that violations of that section for schedule I or II narcotics are punishable
by up to 10 years imprisonment. Former RCW 69.50.101(dd)(5) (2015) states that cocaine is a
narcotic drug, and cocaine is listed as a schedule II controlled substance under RCW
69.50.206(b)(4).
Here, the jury found that Trujeque-Magana had committed possession with intent to
distribute cocaine within 1,000 feet of a school bus stop. The trial court therefore concluded that
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No. 49601-1-II / 49633-0-II
the maximum term for count 4 was 20 years. The significance of this ruling was that under
RCW 9.94A.533(3)(a), the sentence for each firearm enhancement was five years rather than
three years.
Trujeque-Magana argues that the trial court should have applied the enhancement by
doubling the standard range sentence listed in RCW 9.94A.517-.518 rather than to the statutory
maximum sentence under RCW 69.50.401(2)(a). But RCW 69.50.435(1) specifically references
“imprisonment otherwise authorized by this chapter.” (Emphasis added.) The term of
imprisonment listed in chapter 69.50 RCW that can be doubled is the statutory maximum listed
in RCW 69.50.401(2)(a) – 10 years imprisonment.
This court held that under RCW 69.50.435(1), the maximum sentence is doubled to
create a new maximum sentence for purposes of calculating the firearm sentencing enhancement.
State v. Blade, 126 Wn. App. 174, 179-80, 107 P.3d 775 (2005). While addressing a different
statute, the Supreme Court cited Blade with approval and confirmed that RCW 69.50.435(1) has
the effect of doubling the maximum sentence, not the standard range sentence. In re Pers.
Restraint of Cruz, 157 Wn.2d 83, 89-90, 134 P.3d 1166 (2006).
Accordingly, we hold that the trial court did not exceed its authority under RCW
69.50.435(1) in sentencing Trujeque-Magana.
3. Criminal Filing Fee
Molina Rios argues in a supplemental brief that under State v. Ramirez, 191 Wn.2d 732,
426 P.3d 714 (2018), we should vacate the criminal filing fee imposed on him as part of his
sentence because he is indigent. The State did not respond to this argument.
The trial court imposed as a mandatory LFO a $200 criminal filing fee. In 2018, the
legislature amended RCW 36.18.020(2)(h), which now prohibits imposition of the criminal filing
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No. 49601-1-II / 49633-0-II
fee on an indigent defendant. The Supreme Court in Ramirez held that this amendment applies
prospectively to cases pending on direct appeal. 191 Wn.2d at 747-50.
Here, the trial court found that Molina Rios was indigent at the time of sentencing.
Therefore, under the current version of RCW 36.18.020(2)(h) the criminal filing fee imposed on
Molina Rios must be stricken.
H. APPELLATE COSTS
Molina Rios requests that we decline to impose appellate costs because he is indigent.
The State has represented that it would not seek costs if it prevails. Therefore, we accept the
State’s representation and deny the award of costs against Molina Rios.
CONCLUSION
We affirm Trujeque-Magana’s and Molina Rios’s convictions and sentences, but we
remand for the trial court to strike the criminal filing fee imposed on Molina Rios and amend his
judgment and sentence.
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.
MAXA, C.J.
We concur:
LEE, J.
SUTTON, J.
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