State Of Washington v. Alfredo Luna ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 78866-3-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
ALFREDO LUNA, )
Appellant. ) FILED: November 4, 2019
__________________________________________________________________________________)
SMITH, J. — In 2017, a jury found Alfredo Luna guilty of a felony violation
of a no-contact order for knowingly contacting and assaulting his uncle. At
sentencing, the trial court sentenced Luna to 41 months’ imprisonment and
imposed 12 months of community custody conditions. One condition required
Luna to participate in a chemical dependency evaluation. Additionally, after
finding that Luna was indigent, the trial court imposed a $100 Domestic Violence
Penalty Assessment (DV penalty assessment) and a $15 domestic violence
protection order violation fee (violation fee).
On appeal, Luna argues that the trial court erred by: (1) imposing the
chemical dependency evaluation without finding that chemical dependency
contributed to his offense; (2) imposing the $115 domestic violence fees on an
indigent defendant; and (3) failing to enter written findings of fact and conclusions
of law following a suppression hearing under CrR 3.5. Because the record
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contains sufficient evidence that alcohol contributed to Luna’s crime, we
conclude the trial court properly imposed a chemical dependency evaluation. We
further conclude that because the $15 violation fee was non-discretionary, the
trial court did not err in imposing that fee. But we accept the State’s concession
that the DV penalty assessment was discretionary and should be stricken.
Finally, because the findings of fact and conclusions of law for the CrR 3.5
suppression hearing are not material to this appeal and the findings have been
entered, any error is harmless. Thus, we decline to remand for entry of findings.
We affirm in part, reverse in part, and remand to the trial court to strike the $100
DV penalty assessment.
BACKGROUND
On September 29, 2017, Skagit County Sheriff’s Deputy Jesse Koback
witnessed an altercation at a storage unit facility. As he began to leave, Deputy
Koback heard yelling and saw Luna engaged in a physical altercation with
Santos Luna-Miranda (Miranda). Deputy Koback testified he knew that Luna
previously assaulted Miranda and believed a no-contact order was in effect.
Deputy Koback thus detained Luna. Miranda told Deputy Koback—and a
witness, Katherine Doherty, confirmed—that Luna began the altercation by
throwing Miranda over a lawnmower. Luna explained to Deputy Koback that he
confronted Miranda because he believed Miranda was dating Luna’s girlfriend.
Deputy Koback then confirmed that Luna was subject to a domestic violence
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(DV) no-contact order prohibiting contact with Miranda. The State later charged
Luna with felony violation of a no-contact order.
Prior to trial, Luna moved to suppress the statements he made to Deputy
Koback at the time of his arrest. The trial court denied Luna’s motion but did not
enter findings of fact and conclusions of law following the CrR 3.5 hearing.
During the hearing and at trial, Deputy Koback testified that Luna “obviously
smelled of intoxicants and was obviously intoxicated.” Luna testified at trial that
he drank before the altercation, and additional testimony confirmed this.
A jury found Luna guilty of the crime of felony violation of a DV no-contact
order based on assault under RCW 26.50.110. The jury also found that Luna
committed the offense against a member of his household or family.
The trial court sentenced Luna to 41 months’ imprisonment and imposed a
chemical dependency evaluation as a condition of community custody. In
addition, the court found that Luna was indigent. The court then imposed the
$100 DV penalty assessment and the $15 violation fee. Luna appeals his
sentence.
DISCUSSION
Chemical Dependency Evaluation
Luna argues that the trial court erred by imposing a chemical dependency
evaluation as a community custody condition without making an express finding
that chemical dependency contributed to his offense. Because the record
supports a finding that alcohol contributed to Luna’s offense, we disagree.
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A trial court’s imposition of a community custody condition must be
authorized by statute. State v. Kolesnik, 146 Wash. App. 790, 806, 192 P.3d 937
(2008). We review de novo whether the sentencing court had the statutory
authority to impose a community custody condition. Kolesnik, 146 Wash. App. at
806. Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, the
sentencing court must find that the offender has a chemical dependency that
“reasonably related to the circumstances of” the offense before requiring the
offender to obtain a chemical dependency evaluation. RCW 9.94A.607(1). “If
the court fails to make the required finding, it lacks statutory authority to impose
the condition.” State v. Warnock, 174 Wash. App. 608, 612, 299 P.3d 1173 (2013).
Nonetheless, the court may impose a chemical dependency evaluation if the
“record amply supports its decision,” “[e]ven [when] the trial court failed to check
the box indicating that [the defendant] had a chemical dependency.” State v.
Powell, 139 Wash. App. 808, 820, 162 P.3d 1180 (2007), rev’d on other cirounds,
166 Wash. 2d 73, 206 P.3d 321 (2009).
In Powell, Powell attempted to break into his ex-girlfriend’s house. 139
Wash. App. at 811. At trial, the State presented testimony that Powell took
methamphetamine prior to incident. Powell, 139 Wash. App. at 813. In addition,
Powell, as well as the State, requested that the trial court impose chemical
dependency treatment or evaluation. Powell, 139 Wash. App. at 820. The trial
court did not check the box on the judgment and sentence form indicating that a
chemical dependency contributed to Powell’s offense, and Powell challenged the
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chemical dependency treatment condition on that basis. Powell, 139 Wash. App. at
820-21. Division Two affirmed, concluding that “[e]ven though the trial court
failed to check the box indicating that Powell had a chemical dependency, the
record amply supports its decision.” Powell, 139 Wash. App. at 820.
Here, as in Powell, the record amply supports the trial court’s decision to
impose a chemical dependency evaluation. Specifically, Luna testified that he
drank prior to the assault. And Deputy Koback testified that Luna was “obviously
intoxicated,” that he could smell liquor on Luna, and that Luna had a “flushed
face [and] watery eyes.” Additionally, Luna’s girlfriend testified that Luna had
stopped using drugs but that “[h]e had a little issue with alcohol.” Finally, while
Luna—unlike the defendant in Powell—did not expressly request an evaluation, it
appears from the record that he was amenable to—and in fact, desired—
treatment. For these reasons, the trial court properly imposed the chemical
dependency evaluation.
Luna disagrees and argues that the sentencing court erred because the
court made no finding of chemical dependency before imposing the condition.
Specifically, Luna points to the fact that, in the Felony Judgment and Sentence,
the sentencing court did not check the box for a finding that “[t]he defendant has
a chemical dependency that has contributed to the offense(s).” But, as
discussed, reversal is not required where the record “amply supports” the
imposition of the condition. Therefore, Luna’s argument is not persuasive.
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Luna next relies on Warnock and State v. Kinzle, 181 Wash. App. 774, 326
P.3d 870 (2014), to argue that imposition of a chemical dependency evaluation
condition is improper when only alcohol, but not drugs, contributed to the offense.
However, both Warnock and Kinzle were decided under a prior version of
RCW 9.94A.607(1), which we determined required that the evaluation be limited
to alcohol if there was no evidence that drugs contributed to the crime. Warnock,
174 Wash. App. at 614; Kinzle, 181 Wash. App. at 786. In 2015, the legislature
amended that statute to allow a sentencing court to impose a chemical
dependency evaluation when an offender has ‘any chemical dependency” and
‘regardless of the particular substance that contributed to the commission of the
offense.”1 Because the amended version of RCW 9.94A.607(1) applies here,
Warnock and Kinzle do not control.
Imposition of Fees
Luna argues that the trial court erred when, after finding Luna indigent, it
imposed the $100 DV penalty assessment and the $15 violation fee. The State
concedes that imposition of the $100 DV penalty assessment was improper and
should be stricken but maintains that the $15 violation fee is mandatory. We
accept the State’s concession with regard to the $100 DV penalty assessment
and agree with the State that the $15 violation fee is mandatory and was properly
imposed.
H. PUBLIC SAFETY COMM., H.B. ANALYSIS ON S.B. 5104, 64th Leg., Reg. Sess.
(Wash. 2015), https://app. leg .wa .gov/com mitteeschedules/Home/Documents/17042
(emphasis added).
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House Bill 1783, 65th Leg., Reg. Sess. (Wash. 2018), amended RCW
10.01.160(3) to prohibit the imposition of discretionary legal financial obligations
(LFOs) on indigent defendants. State v. Ramirez, 191 Wash. 2d 732, 739, 426 P.3d
714 (2018); RCW 10.01.160(3) (“The court shall not order a defendant to pay
costs if the defendant at the time of sentencing is indigent.”). The amendments
to RCW 10.01.160(3) apply prospectively to cases pending on appeal from
judgment when House Bill 1783 was enacted. Ramirez, 191 Wash. 2d at 747.
Here, the sentencing court found that Luna was indigent, and the State
does not challenge this finding. Nonetheless, the trial court imposed a $100 DV
penalty assessment under RCW 10.99.080 and a violation fee of $15; the latter
of which is labeled “mandatory.” The State concedes that the court improperly
imposed the DV penalty assessment. Because the DV penalty assessment is
discretionary, we accept the State’s concession and remand to the sentencing
court to strike the assessment. See RCW 10.99.080(1) (stating that the
sentencing court “may impose” the DV penalty assessment) (emphasis added).
However, the $15 violation fee is not discretionary because the sentencing court
“shall” impose it. RCW26.50.110(b)(ii). Thus, the fee is not subject to House Bill
1783’s amendments under Ramirez, and the sentencing court did not err when it
imposed the $15 violation fee.
CrR 3.5 Findings of Facts and Conclusions of Law
Luna contends that the trial court erred by failing to enter written findings
of fact and conclusions of law following its CrR 3.5 hearing on Luna’s motion to
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suppress the statements he made to Deputy Koback. He contends further that
this court must remand to the trial court to enter findings and conclusions.
Because Luna’s statements are not material to any of the sentencing issues
raised in this appeal, we disagree.2
A trial court holds a CrR 3.5 hearing to review a motion to suppress a
confession. CrR 3.5. CrR 3.5(c) requires the trial court to “set forth in writing:
(1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed
facts; and (4) conclusion as to whether the statement is admissible and the
reasons therefor.” A trial court errs when it fails to enter findings of fact and
conclusions of law following a CrR 3.5 hearing. State v. France, 121 Wash. App.
394, 401, 88 P.3d 1003 (2004). But if the trial court’s oral findings are sufficient
for appellate review, the error is harmless. State v. Groqan, 147 Wash. App. 511,
516, 195 P.3d 1017 (2008).
Here, Luna’s statements to Deputy Koback are not material to any of the
sentencing issues that Luna raises on appeal. And Luna does not challenge any
of the trial court’s conclusions or findings of fact from the CrR 3.5 hearing. In
other words, even if the trial court erred by not entering findings and conclusions
following the CrR 3.5 hearing, that error is harmless, and remand is not
necessary.
Luna disagrees, citing State v. Smith for the proposition that there is “a
strong presumption that dismissal is the appropriate remedy” for a case “without
2 Furthermore, the State entered and Luna’s trial counsel approved the findings,
which the State attached to its Brief on appeal.
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the required findings.” 68. Wn. App. 201, 211, 842 P.2d 494 (1992). But Smith
is readily distinguishable. In Smith, the appellant challenged the propriety of a
warrantless search and seizure, arguing that the trial court erred by failing to
enter written findings following a CrR 3.6 hearing and then denying the
appellant’s motion to suppress evidence obtained during the search and
seizure. Smith, 68 Wash. App. at 208. In other words, in Smith, the trial court
failed to enter findings on an issue material to the appeal, i.e., whether the trial
court erred by denying the suppression motion. 68 Wash. App. at 204. By
contrast, and as discussed, the lack of findings in this case is not material to any
of the sentencing issues raised in this appeal. Therefore, Luna’s reliance on
Smith is misplaced.
Luna’s reliance on State v. Head is similarly misplaced. 136 Wash. 2d 619,
964 P.2d 1187 (1998). There, the appellant challenged the sufficiency of the
evidence supporting his conviction, following a bench trial, for eight counts of first
degree theft. Head, 136 Wash. 2d at 620. Because the trial court did not enter
written findings or conclusions to support its verdict, our Supreme Court
remanded to the trial court to do so. Head, 136 Wash. 2d at 620-621. In short,
remand was appropriate in Head because the absence of written findings and
conclusions precluded effective review of the issue raised on appeal in that case,
i.e., whether the evidence was sufficient to support the conviction. ~ Head,
136 Wash. 2d at 624 (“An appellate court should not have to comb an oral ruling to
determine whether appropriate ‘findings’ have been made, nor should a
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defendant be forced to interpret an oral ruling in order to appeal his or her
conviction.”). But here, the absence of findings and conclusions does not
preclude our review of any of the sentencing issues raised in Luna’s
appeal. Therefore, Head does not control.
We affirm in part, reverse in part, and remand to the trial court to strike the
$100 DV penalty assessment.
WE CONCUR:
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