State of Washington v. Sergio Magana, Jr. , 197 Wash. App. 189 ( 2016 )

FILED
DECEMBER 20, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 33701-4-111
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Respondent, )
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v. ) PUBLISHED OPINION
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SERGIO MAGANA, JR. )
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Appellant. )
PENNELL, J. - A criminal defendant is entitled to a fair trial, but not a perfect one.
Some of the evidence admitted during Sergio Magana, Jr.'s trial for third degree rape
should have been excluded. Nevertheless, reversal of Mr. Magana's conviction is
unwarranted because none of the evidence was prejudicial. We therefore affirm Mr.
Magana's conviction, but reverse several technical aspects of Mr. Magana's sentence for
correction on remand.
No. 33701-4-III
State v. Magana
FACTS
Fourteen-year-old Y.L. first met Sergio Magana, Jr. through Facebook. Y.L.
described Mr. Magana as being in his 20's. After exchanging text messages, Y.L. and
Mr. Magana made plans to meet at Y.L.'s home. Mr. Magana had expressed a desire to
be alone with Y.L. When the day they planned to meet arrived, Mr. Magana went inside
Y.L.'s home and forcibly raped her. Not long after leaving, Mr. Magana texted and told
Y.L. not to mention his name and to delete all of their text messages because her "age
scare[d] him." 1 Verbatim Report of Proceedings (July 23, 2015) at 134.
After approximately two weeks, Y.L. reported Mr. Magana's conduct to the police.
Y.L. identified Mr. Magana from a photo lineup and submitted her phone so text
messages could be extracted.
The police then began looking for Mr. Magana. After about six weeks, Mr.
Magana made contact with the police and spoke to a detective over the telephone. The
detective described Mr. Magana as "fishing for information." Id. at 97. During the call,
Mr. Magana arranged to meet with the police. However, he never showed up for his
appointment. About a month later, Mr. Magana finally met with a police detective in
person. He was advised of his Miranda 1 rights and acknowledged that he had met Y.L.
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Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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State v. Magana
over Facebook, but he denied having intercourse.
Mr. Magana was charged with one count of third degree rape of a child.
Fallowing a mistrial and then a second trial, he was found guilty by a jury and sentenced
by the trial court. A number of community custody conditions were imposed as part of
Mr. Magana's sentence. Mr. Magana appeals.
ANALYSIS
Challenges to the jury's guilty verdict
Evidence of pre-arrest silence
Mr. Magana argues the State violated his right against self-incrimination by
eliciting testimony regarding his failure to appear for his initial police interview. He
claims this was an improper comment on his right to silence, in violation of the Fifth
Amendment to the United States Constitution. In support of his position, Mr. Magana
cites Washington Supreme Court cases which hold the Fifth Amendment rule on silence
applies to a suspects' interactions with police prior to arrest. State v. Easter, 130 Wn.2d
228, 922 P.2d 1285 (1996); State v. Lewis, 130 Wn.2d 700, 927 P.2d 235 (1996).
While the Washington cases cited by Mr. Magana provide persuasive support, they
are ultimately unhelpful as they have been overruled by subsequent precedent from the
United States Supreme Court. In Salinas v. Texas, 133 S. Ct. 2174, 186 L. Ed. 2d 3763
No. 33701-4-111
State v. Magana
(2013 ), the United States Supreme Court addressed a long-standing conflict between
various state and federal courts over whether the Fifth Amendment bars introduction of a
defendant's pre-arrest silence as evidence of guilt. In a 5-4 plurality decision, the Court
found no prohibition. Salinas did not resolve all questions regarding how the Fifth
Amendment rule applies prior to arrest. Three justices recognized the Fifth Amendment's
protections might apply if explicitly invoked; the other two justices in the plurality
concluded no constitutional issue could apply outside of a custodial interview. But this
difference is immaterial here. The rule from Salinas is that, absent an express invocation
of the right to silence, the Fifth Amendment is not an obstacle to the State's introduction
of a suspect's pre-arrest silence as evidence of guilt.
Salinas controls Mr. Magana's case. Legally, this is not an area where our state's
constitution affords greater protection than the federal constitution. Easter, 130 Wn.2d at
235; State v. Earls, 116 Wn.2d 364, 375, 805 P.2d 211 (1991). Accordingly, after Salinas
the Fifth Amendment analysis set forth in Easter, Lewis, and their progeny is no longer
good law. Factually, Mr. Magana was not under arrest or any sort of police custody. His
scheduled police interview was voluntary. To the extent Mr. Magana's failure to appear
for the interview was relevant, the State was entitled to present this evidence.
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State v. Magana
Violation of the in limine ruling
Mr. Magana appeals the trial court's failure to declare a mistrial after a police
witness testified, in violation of an order in limine, to a statement made by Mr. Magana
prior to being read his Miranda rights. 2 We review the trial court's decision for abuse of
discretion, keeping in mind that a mistrial should only be granted "when the defendant
has been so prejudiced that nothing short of a new trial can insure that the defendant will
be tried fairly." State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). Relevant to
the analysis is the seriousness of the alleged error, whether erroneously factual
information was cumulative, and whether a curative instruction was given. Id.We are satisfied the trial court did not abuse its discretion in denying Mr .
. Magana's motion. The transcript confirms the officer's statement was not elicited
purposefully. It was not repeated to avoid reemphasizing it to the jury. And the trial
court gave a curative instruction. Also important to our analysis, the challenged
testimony was not particularly prejudicial. Subsequent to Miranda, Mr. Magana had
offered to assist law enforcement with local criminal cases. This testimony did not
violate the in limine order and was properly admitted. The only pre-Miranda statement at
issue was the clarification that Mr. Magana wanted to help with narcotics cases. This
2 The statement in question was made during Mr. Magana's in-person interview.
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State v. Magana
added detail was of minor significance. There was no indication Mr. Magana was
involved in drugs or that the assault on Y.L. was drug related. Given all these
circumstances, the momentary violation of the trial court's in limine order by the State's
witness was not sufficiently significant to require a mistrial.
Admission of business records
Mr. Magana contends the State's photo lineup exhibit was hearsay and admitted
into evidence without proper foundation. The State counters that the exhibit was a
properly authenticated business record. We review the trial court's evidentiary decision
for abuse of discretion. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668, 230 P.3d 583(2010).
The exhibit at issue consists of three pages. The first page is an array of six hand-
numbered photos, one of which depicts Mr. Magana. The second page is entitled "Lineup
ID Report." Ex. 1. It appears to be a computer-generated report that documents
biographical information, including dates of birth, for the six individuals depicted on the
photo array. The third page is a copy of the written admonishment form Y.L. signed prior
to reviewing the photo array. During the photo identification process, Y .L. reviewed the
first and third pages of the exhibit, but not the second.
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State v. Magana
At trial, the State's law enforcement witness testified about how he created the six
photo array contained on page one of the exhibit. He also explained how Y.L. signed the
admonishment form on page three. However, no testimony was presented regarding the
creation of the Lineup ID Report included on page two. In fact, it appears submission of
the Lineup ID Report as part of the exhibit was almost an oversight. After eliciting
testimony regarding the photo array and admonishment form, the State successfully
moved for admission of the exhibit over Mr. Magana's hearsay objection. The State then
asked the officer whether the exhibit referenced the age of the individuals depicted in the
photo array. At first, the officer said no. But when the State pointed out that the exhibit
had a second page, the officer agreed that the exhibit contained information regarding
age. Defense counsel objected to this line of questioning, but was overruled because the
exhibit had already been admitted.
A document may be admitted as a business record as long as a witness testifies to
the document's identity and mode of preparation, and explains that the document "was
made in the regular course of business, at or near the time of the act, condition or
event .... " RCW 5.45.020; ER 803(6). While the State's witness adequately testified as
to the creation of the photo array and the admonishment form, the same was not true for
the Lineup ID Report. The State presented no testimony about where the Lineup ID
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State v. Magana
Report came from or how it was made. On its face, the Lineup ID Report appears to have
been created in an entirely different way than the photo array and admonishment form.
The State was required to establish a foundation for the Lineup ID Report prior to
admission as a business record. The failure to do so was error.
The fact that the Lineup ID Report was sandwiched between two properly
admitted records as part of a single exhibit does not excuse the State's failure to establish
an individual evidentiary foundation. To the contrary, the manner in which the State
submitted the Lineup ID Report into evidence is troubling. The record before this court
does not clarify whether the trial court, opposing counsel, or even the witness were aware
that the Lineup ID Report had been included as part of the State's exhibit until after
admission. In the future, counsel for the State shall take greater caution in ensuring that
evidentiary foundations are met for all pieces of evidence, regardless of whether the
evidence is grouped together as one exhibit.
Because no foundation was laid for the Lineup ID Report, it was improperly
admitted as a business record. The question then becomes whether this error requires
reversal. Since Mr. Magana does not raise a constitutional challenge, we engage in a
nonconstitutional harmless error analysis. "Under this standard, an error in the admission
of evidence is 'not prejudicial unless, within reasonable probabilities, the outcome of the
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State v. Magana
trial would have been materially affected had the error not occurred.'" State v. Anderson,
112 Wn. App. 828,837, 51 P.3d 179 (2002) (quoting State v. Bourgeois, 133 Wn.2d 389,
403, 945 P.2d 1120 (1997)).
The information erroneously included in the Lineup ID Report was significant.
The charge against Mr. Magana required the State to prove that he was at least four years
older than Y.L. RCW 9A.44.079(1). Y.L. testified that she was 14. This meant the State
needed to prove Mr. Magana was over 18. The Lineup ID Report recited Mr. Magana's
date of birth and thereby provided the State direct proof that Mr. Magana met the four-
year age difference.
While erroneous introduction of the Lineup ID Report could have endangered the
State's case, it ultimately did not. The evidence of more than a four-year age difference
between Mr. Magana and Y.L. was overwhelming. Apart from Y.L. 's testimony that Mr.
Magana was in his 20's and the jury's ability to observe Mr. Magana's appearance at trial
as a man in his mid-20's, Mr. Magana's own words satisfied much of the State's burden.
In both an oral statement to Y .L. and a text message, Mr. Magana expressed concern that
he might get in trouble because of Y.L.'s young age. These are not the type of comments
that would have come from someone under 18. Given the entirety of the evidence, the
erroneous inclusion of the Lineup ID Report did not impact the jury's verdict.
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No. 33701-4-111
State v. Magana
Cumulative error doctrine
Mr. Magana argues that even if the errors in his case are considered harmless when
viewed in isolation, their cumulative impact warrants reversal. We disagree. The
combined impact of the State's two trial errors did not deprive Mr. Magana of a fair trial.
See State v. Grieff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The first error, involving
the in limine violation, had little evidentiary significance. More importantly, it had no
bearing on the second error, which raised questions about the State's proof of Mr.
Magana's age. Because of this disconnect, the two errors are not more prejudicial when
considered in combination than alone. The cumulative error doctrine does not provide
Mr. Magana an avenue for relief.
Sentencing errors
No-contact order
Mr. Magana's judgment prohibits him from having contact with either Y.L. or her
immediate family for ten years. Because Mr. Magana was convicted of a Class C felony,
the maximum term that could have been imposed was five years. RCW 9A.20.02I(l)(c).
The State agrees that remand is required for correction.
Jury demand fee
The parties dispute whether Mr. Magana should have been ordered to pay one jury
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State v. Magana
fee or two. The issue arises because Mr. Magana's case involved two sets of jurors. The
first set was dismissed after a mistrial. The second set of jurors rendered Mr. Magana's
guilty verdict.
Under Washington law, every person convicted by a jury in superior court is liable
for payment of a jury demand fee. RCW 10.46.190. The statute provides, "Upon
conviction in criminal cases a jury demand charge of ... two hundred fifty dollars for a
jury of twelve may be imposed as costs under RCW 10.46.190." RCW 36.18.016(3)(b)
(emphasis added). By use of the singular term "a" the statute plainly contemplates only
one jury demand fee per conviction. The trial court's imposition of two $250 fees was
error and must be corrected on remand.
Community custody conditions
Mr. Magana challenges five of his community custody conditions. He argues the
conditions are vague, overbroad, or not crime related. Community custody conditions are
reviewed for abuse of discretion. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830(2015). The abuse of discretion standard applies whether this court is reviewing a crime
related community custody condition, or reviewing a community custody condition for
being unconstitutionally overbroad or vague. See Irwin, 191 Wn. App. at 652, 656; State
v. Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010) (vagueness); State v.
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State v. Magana
Cordero, 170 Wn. App. 351, 373, 284 P.3d 773 (2012) (crime related); State v. Bahl, 137
Wn. App. 709, 714-15, 159 P.3d 416 (2007) (overbreadth), reversed on other grounds,
164 Wn.2d 739, 193 P.3d 678 (2008).
We begin our analysis with community custody condition 14:
Do not frequent parks, schools, malls, family missions or establishments
where children are known to congregate or other areas as defined by
supervising CCO [community corrections officer], treatment providers.
Clerk's Papers at 17.
Mr. Magana argues this condition is unconstitutionally vague. The guarantee of
due process contained in the Fourteenth Amendment to the United States Constitution and
article 1, section 3 of the Washington Constitution requires that laws not be vague. Irwin,
191 Wn. App. at 652; Bahl, 164 Wn.2d at 752-53. A community custody condition is not
vague so long as it: (1) provides ordinary people with fair warning of the proscribed
conduct, and (2) has standards that are definite enough to "' protect against arbitrary
enforcement."' See Bahl, 164 Wn.2d at 752-53 (quoting City of Spokane v. Douglass,
115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
We agree with Mr. Magana that condition 14 is problematic because it affords too
much discretion to Mr. Magana's CCO. As explained in State v. Irwin, 191 Wn. App. at
654-55, a community custody condition that empowers a CCO to designate prohibited
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State v. Magana
spaces is constitutionally impermissible because it is susceptible to arbitrary enforcement.
This characterization applies fully to condition 14. As written, condition 14 does not
place any limits on the ability of Mr. Magana's CCO to designate prohibited locations.
While the condition lists several prohibited locations and explains that the list covers
places where children are known to congregate, the CCO's designation authority is not
tied to either the list or the explanatory statement. As written, the discretion conferred on
the CCO by condition 14 is boundless. We therefore strike condition 14 as vague and
remand for resentencing. 3
Mr. Magana's remaining challenges to his community custody provisions are
unpersuasive. Because Mr. Magana was convicted of a sex offense, conditions regarding
access to X-rated movies, adult book stores, and sexually explicit materials were all crime
related and properly imposed. In addition, because Mr. Magana used social media to
contact Y.L., conditions restricting internet access and social media sites were
permissible. These conditions _were not overly oppressive. They allow for computer and
internet usage necessary for employment. The trial court acted within its discretion in
imposing these conditions.
3
We disagree with Mr. Magana's other challenges to condition 14. Because he
committed a crime against a child, a properly worded condition restricting Mr. Magana's
access to areas where children are known to congregate would have been appropriate.
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CONCLUSION
We affirm Mr. Magana's convictions, but remand to the trial court for resentencing
not inconsistent with this opinion.
Pennell, J.
WE CONCUR:
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