State Of Washington v. Pablo Lara Bellon ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80647-5-I
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
PABLO LARA BELLON,
Appellant. FILED: February 3, 2020
APPELWICK, C.J. — Bellon appeals his convictions for assault of a child in
the second and third degrees. He argues that the State presented insufficient
evidence to support his convictions. He contends that the diversionary contract he
entered into with the State is unenforceable because he did not knowingly,
intelligently, and voluntarily waive his constitutional rights. He also argues that the
trial court failed to exercise discretion in considering his request for an exceptional
sentence. Last, he seeks relief from certain LFOs. We affirm his conviction and
sentence, but remand to have the criminal filing fee and the interest accrual on his
nonrestitution LFOs stricken.
FACTS
Pablo Bellon and his ex-wife have three children. While the children were
at his home, Bellon became angry with his youngest daughter for not moving fast
enough when he told her to brush her teeth. He picked up the child by her neck
and began shaking her. The child told the responding officer that she could not
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breathe because Bellon was squeezing her neck so hard. Bellon briefly put the
child down turning her over, squeezing her tummy, and spanking her. The child
was still feeling pain in her stomach when she spoke to the responding officer.
The child’s older brother, who had been sitting on the couch, got up and
yelled at Bellon to stop hurting his sister. He walked over to Bellon and pushed
him to get him to stop. Bellon let go of the child, who walked off toward her room.
The brother then called their mother to pick them up.
The mother called the police and met them near Bellon’s apartment. The
police interviewed the mother and children and called for medical support to have
the victim evaluated. Medical staff indicated that the victim appeared to be fine but
should follow up with a doctor. The children both reported the events above to the
responding officer. The older brother added that their father had been drinking all
day and appeared to “snap.” The responding officer called in another officer,
knocked on Bellon’s door, and placed him under arrest.
In a later interview with police, the victim largely reiterated what she had
said on the night of the incident. When asked what happened, she said that her
father had picked her up by the neck and choked her. When asked what choking
means, she said, “Like, squeezed your neck really hard so you couldn’t breathe.”
When asked if she could breathe or scream when Bellon first picked her up, she
said, “Yea,” then “Kind of.” She said that her neck was sore for the rest of the
week. She said that her father had squeezed her stomach and that it hurt for a
couple of days afterward.
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The State charged Bellon with assault of a child in the second and third
degrees. He chose to enter into a diversionary contract with the State. Under the
contract, the State would dismiss the charges if Bellon successfully completed the
“Friendship Diversion Program.” If, however, Bellon was unsuccessful in
completing the program, he agreed that the State would recommence prosecution.
He further agreed that the court would determine his guilt or innocence solely on
the basis of law enforcement and investigatory agencies’ reports on the incident.
He waived any objections to the admissibility of this evidence.
His declaration further stated,
I understand that, by this process, I am giving up the following
constitutional rights: the right to a jury trial; the right to a speedy and
public trial by an impartial jury in the county where the crime(s) is/are
alleged to have been committed; the right to hear and question the
witnesses against me; the right to call witnesses [o]n my own behalf
and no at expense to me; the right to testify or not to testify; the right
to appeal a determination of guilty after trial; and the presumption of
my innocence until the charge(s) has/have been proven beyond a
reasonable doubt.
Prior to signing off on the agreement, the trial court questioned Bellon on whether
he understood that he was waiving his rights. When asked if he had discussed the
agreement with his attorney, he replied, “In great detail.” When asked if he
understood that he would not be able to present evidence at a potential trial, he
replied, “Yes.” When asked if he understood that he was waiving his right to a
speedy trial, he again replied in the affirmative.
On September 6, 2017, Friendship Diversion Services informed the State
that Bellon had failed to comply with the requirements of the diversion program by
failing to report in person to the program as required and failing to pay fees. The
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State moved to revoke the diversion. After a hearing, the trial court found that
Bellon had violated the diversion agreement and granted the State’s motion to
revoke the diversion.
The trial court held a stipulated facts bench trial. After hearing argument
from both sides, the court found “beyond a reasonable doubt that Mr. Bellon is
guilty of assault of a child in the second degree domestic violence” and “that Mr.
Bellon is guilty of the crime of assault of a child in the third degree domestic
violence.”
Bellon requested an exceptional sentence below the standard range. He
urged the trial court to consider the unique nature of the proceeding, the progress
he made in the diversionary program, and various letters of support from family
and friends. After a lengthy discussion of the law, the court determined that there
was no basis for an exceptional sentence. The court instead sentenced Bellon to
31 months of confinement, which was on the low end of the standard sentence
range. The court also ordered Bellon to pay a $500 victim assessment fee, $200
criminal filing fee, and $100 deoxyribonucleic acid (DNA) collection fee.
Bellon appeals.
DISCUSSION
Bellon makes four arguments. First, he argues that the State failed to
present sufficient evidence to prove his guilt beyond a reasonable doubt. Second,
he argues that his diversion contract was invalid because he did not knowingly,
intelligently, and voluntarily waive his constitutional rights. Third, he argues that
the trial court failed to exercise appropriate discretion in considering his request
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for an exceptional sentence below the standard range. Last, he argues that he
should be relieved of certain legal financial obligations (LFOs).
I. Sufficiency of Evidence
Bellon contends that the State did not present sufficient evidence to support
his convictions.
Sufficiency of the evidence is a question of constitutional law that this court
reviews de novo. State v. Rich, 184 Wash. 2d 897, 903, 365 P.3d 746 (2016). The
State is required to prove all elements of the charged offense beyond a reasonable
doubt. Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000). Evidence is sufficient to support a conviction if, “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980) (emphasis omitted)
(quoting Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560(1979)), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212,
126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
When a defendant challenges the sufficiency of the evidence, they admit
the truth of all of the State’s evidence. State v. Cardenas-Flores, 189 Wash. 2d 243,
265, 401 P.3d 19 (2017). In reviewing the sufficiency of the evidence, all
reasonable inferences from the evidence must be drawn in favor of the State and
interpreted most strongly against the defendant. State v. Salinas, 119 Wash. 2d 192,
201, 829 P.2d 1068 (1992). In conducting this review, circumstantial evidence and
direct evidence carry equal weight. State v. Goodman, 150 Wash. 2d 774, 781, 83
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No. 80647-5-1/6
P.3d 410 (2004). Specific criminal intent of the accused may be inferred from the
conduct where it is plainly indicated as a matter of logical probability. k~.
A. Assault of a Child in the Second Degree
The State charged Bellon with assault of a child in the second degree by
strangulation. To sustain a conviction for this charge, the State was required to
prove that Bellon is over 18 years old and that he assaulted a victim under 13 years
old by strangulation. RCW 9A.36.021(1)(g); RCW 9A.36.130(1)(a).
“Strangulation” means to “compress a person’s neck, thereby obstructing the
person’s blood flow or ability to breath, or doing so with the intent to obstruct the
person’s blood flow or ability to breathe.” RCW 9A.04.110(26). A person’s blood
flow or ability to breath need not be completely obstructed under the statute. See
State v. Rodriguez, 187 Wash. App. 922, 935, 352 P.3d 200 (2015). It needs to be
hindered or blocked only to some degree. k~.
Bellon contends that the State failed to prove that Bellon strangled his
daughter. His argument focuses primarily on the victim’s interview with the police
after the incident. When asked if she could breathe after her father picked her up
by the neck, she responded, “Yea.” However, when asked to clarify, she said,
“Kind of.” She then said, “{H]e picked me up by the neck and . . . then he choked
me.” When asked what choking means, she said, “Like squeezed your neck really
hard so you couldn’t breathe.” This evidence is sufficient for a rational trier of fact
to conclude that the victim’s ability to breathe was partially obstructed.
We hold that the State presented sufficient evidence to sustain Bellon’s
conviction for assault of a child in the second degree.
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B. Assault of a Child in the Third Degree
The State also charged Bellon with assault of a child in the third degree. To
sustain this charge, the State was required to prove that Bellon was over the age
of 18, that his victim was under the age of 13, and that Bellon, with criminal
negligence, caused bodily harm to the victim accompanied by substantial pain that
extended for a period sufficient to cause considerable suffering. RCW
9A.36.031(f); RCW9A.36.140(1).
Bellon contends that the State failed to prove that the victim was in
substantial pain or considerable suffering. He asserts that the State presented no
evidence of actual injury, or severity or duration of pain. The record does not
contain evidence of any visible injuries to the victim. However, the record does
contain evidence of the duration of pain. In her interview with police, Bellon’s victim
said that her “tummy and back” were sore for ‘a few days,” and that her neck was
sore for the “the rest of the week.” We have previously held that pain lasting longer
than three hours with an abrasion and swelling was sufficient evidence of
substantial pain and considerable suffering. State v. Saunders, 132 Wash. App. 592,
600, 132 P.3d 743 (2006). Here, the victim’s pain lasted for several days rather
than a few hours.
We hold that the State presented sufficient evidence to sustain Bellon’s
conviction for assault of a child in the third degree.
II. Validity of the Diversion Contract
Bellon argues that the diversion contract that he entered with the State is
not valid. Specifically, he claims that he did not “knowingly, intelligently, and
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No. 80647-5-1/8
voluntarily” waive his constitutional rights. He claims this is so for two reasons.
First, because the contract did not inform him that he would face community
custody if found guilty. Second, because the contract incorrectly stated a standard
sentencing range higher than the range he would face if found guilty.
This is essentially the same argument the appellant made in State v. Drum,
168 Wash. 2d 23, 225 P.3d 237 (2010). Drum claimed a due process violation when
he waived his rights to a speedy public trial, trial by jury, the right to hear and
question witnesses, call witnesses, and testify in his own defense as part of a
diversionary agreement. jç~ at 28, 30. And, claimed because he did not know the
standard range and the term of community custody, he did not knowingly,
intelligently, and voluntarily waive his constitutional rights. State v. Drum, 143 Wn.
App. 608, 617, 181 P.3d 18 (2008), affd, 168 Wash. 2d 23, 225 P.3d 237 (2010).
Like the contract in Drum, Bellon’s diversionary contract stipulated the
evidence that would be used to determine his guilt if he failed to complete the
requirements of the diversionary program. It also stipulated that this evidence was
sufficient to establish his guilt for the underlying offenses. In it, Bellon indicated
that he was aware that he was giving up several of his constitutional rights:
I understand that, by this process, I am giving up the following constitutional
rights: the right to a jury trial; the right to a speedy and public trial by an
impartial jury in the county where the crime(s) is/are alleged to have been
committed; the right to hear and question witnesses who testify against me;
the right to call witnesses in my own behalf and at no expense to me; the
right to testify or not to testify; the right to appeal a determination of guilty
after trial; and the presumption of my innocence until the charge(s)
has/have been proven beyond a reasonable doubt or I enter a plea(s) of
guilty.
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These rights include all those waived in the diversionary contract in Drum, with the
addition of waiver of the right to an appeal and the right to the presumption of
innocence. Drum, 168 Wn. 2d at 28. But, Bellon has not actually been deprived
of these rights because the trial court made an independent determination of guilt
beyond a reasonable doubt, and because we are presently hearing his appeal.
Like Drum, Bellon contends that he was unaware of the term of
community custody, and misinformed of the standard sentencing range.1
The Drum court rejected the due process argument, finding that once the
trial court made an independent determination of guilt, Drum’s due process claim
“evaporate[d].” Drum, 168 Wn.2d at 39. The trial court made such an
independent determination here. The court specifically noted that a stipulated
facts bench trial where the trial court independently reviews the evidence and
makes its own findings is not the equivalent of a guilty plea. Id. (citing State v.
Mierz, 127 Wash. 2d 460, 468-69, 901 P.2d 286 (1995)).
Bellon argues that we should not follow Drum because his diversionary contract,
unlike the contract in Drum, is nonstatutory. He articulates no reason why this changes
the due process analysis.
We find no due process violation in Bellon’s diversionary contract.
1 The defendant in Drum asserted he was completely unaware of the
standard sentence and term of community custody. Drum, 143 Wn. App. at 617.
Bellon contends that he was unaware of the term of community custody, but
misinformed of the standard sentencing range. Bellon’s contract indicated the
standard sentencing range was 36 to 48 months on count 1, and 3 to 8 months on
count 2. This range was lowered to 31 to 41 months for count 1 and 1 to 3 months
for count 2 after Bellon successfully argued at sentencing that the two offenses
were in fact the same criminal conduct. This minor difference does not affect our
due process analysis.
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Ill. Exceptional Sentence
Bellon argues next that the trial court failed to exercise its discretion to
consider his request for an exceptional sentence below the standard sentencing
range. The trial court instead imposed a sentence within the standard sentencing
range.
A sentence within the standard sentence range is not appealable unless the
trial court refuses to exercise discretion or relies on an impermissible basis for
refusing to impose the exceptional sentence. State v. Mail, 121 Wash. 2d 707, 710,
854 P.2d 1042 (1993); State v. Khanteechit, 101 Wash. App. 137, 138, 5 P.3d 727(2000). Where a trial court has considered the facts and concluded there is no
basis for an exceptional sentence, the court has exercised discretion. State v.
Garcia-Martinez, 88 Wash. App. 322, 330, 944 P.2d 1104 (1997).
Here, the trial court considered the facts of Bellon’s request, but concluded
there was no basis for an exceptional sentence. Specifically, the court considered
Bellon’s proffered reasons for an exceptional sentence and found they did not fall
within any of the 11 enumerated factors courts are to consider under ROW
9.94A.535. It nevertheless considered whether Bellon’s reasons could be
considered under a catchall provision. After a lengthy discussion, the court found
that Bellon’s proffered reasons could not be considered because they did not relate
to the crime or his previous record. The court also noted that our Supreme Court
has specifically rejected the use of the defendant’s good conduct since the
commission of the crime as a basis for an exceptional sentence. Clearly, the court
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No. 80647-5-I/li
exercised its discretion to consider an exceptional sentence. And, its conclusion
was within its sound discretion.
Because the trial court exercised its discretion in reviewing Bellon’s request
for an exceptional sentence, he is precluded from appealing his standard range
sentence.
IV. Legal Financial Obligations
Last, Bellon argues that we should strike his criminal filing fee and the
immediate accrual of interest on his nonrestitution LFOs. ROW 36.18.020(2)(h)
prohibits the imposition of a criminal filing fee on indigent defendants. RCW
10.82.090(1) prohibits interest on nonrestitution LFOs. In State v. Ramirez, 191
Wash. 2d 732, 747-50, 426 P.3d 714 (2018), our Supreme Court ruled these statutes
apply prospectively to all cases pending on direct appeal. Bellon is indigent, and
his case is now before us on appeal. He is therefore entitled to relief from his
criminal filing fee and interest accrual on his nonrestitution LFOs.
We affirm Bellon’s judgment and sentence, but remand to the trial court to
strike his criminal filing fee and interest accrual on his nonrestitution LFOs.
WE ONCUR:
I