State of Washington v. Calixto Rivera, Jr. ( 2016 )

FILED
SEPTEMBER 20, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 32920-8-111
) (consolidated with
Respondent, ) No. 33320-5-111)
)
V. )
)
CALIXTO RIVERA JR. )
aka CALIXITO RIVERA )
aka ABEL RIVERA, )
) UNPUBLISHED OPINION
Appellant. )
)
)
In the Matter of the Personal Restraint of )
)
CALIXTO RIVERA JR., )
)
Petitioner. )
PENNELL, J. - Calixto Rivera, Jr. appeals his conviction for two counts of bail
jumping. He also challenges the imposition of legal financial obligations (LFOs ). In a
consolidated personal restraint petition (PRP), Mr. Rivera requests this court remand for
resentencing so he may be given a Drug Offender Sentencing Alternative (DOSA). We
affirm Mr. Rivera's convictions but remand for the trial court to reconsider the imposition
of discretionary LFOs. Additionally, we dismiss Mr. Rivera's PRP and grant his motion
not to award appellate costs.
No. 32920-8-111 (consol. w/ No. 33320-5-111)
State v. Rivera
FACTS
Mr. Rivera was found in possession of a stolen trailer during a traffic stop
conducted by Yakima County Sheriffs Office Deputy Jesus Rojas. He was later charged
with second degree possession of stolen property. Mr. Rivera failed to appear for two of
his pretrial hearings. His charges were then amended to include two counts of bail
jumping. All three charges eventually proceeded to trial together.
The evidence at trial included several court documents. These included a
scheduling order and agreed order of continuance, each notifying Mr. Rivera of future
court dates and warning him that failure to appear could result in criminal charges. The
orders bore Mr. Rivera's name, birth date, and the signature of "Calixto Rivera." The
admitted court documents also included two warrants. Each warrant stated Mr. Rivera
had failed to appear for a court hearing. Both bore Mr. Rivera's name and birth date.
In addition to court records, trial exhibits included a Department of Licensing
(DOL) report for Calixto Rivera. The DOL report contained a color photograph of Mr.
Rivera, along with his name, address, date of birth, and signature. 1
1
A copy of the DOL report has not been included in the appeal record. We rely on
the State's brief for this description of the exhibit. Because defense counsel has not filed
a reply to the State's brief, we conclude the State's description must be accurate.
2
No. 32920-8-III (consol. w/ No. 33320-5-III)
State v. Rivera
The defense at trial focused on the stolen property charge. No challenge was made
to the bail jumping charges. Mr. Rivera did not contest his identity. To the contrary, Mr.
Rivera called his cousin to testify as a defense witness. His cousin did not dispute the
accuracy of Mr. Rivera's identity.
During trial, Deputy Rojas identified Mr. Rivera as the individual he encountered
during the original traffic stop. The deputy explained that, at the time of the stop, he
identified Mr. Rivera by his DOL information, as reflected in the DOL report. Deputy
Rojas also testified that the cause numbers on the various court documents matched the
cause number for the case on trial.
The jury found Mr. Rivera guilty on all charges. At sentencing, the court imposed
$1,960 in LFOs, including a $500 criminal penalty assessment, a $200 criminal filing fee,
$600 in attorney fees, a $100 DNA2 fee, a $300 warrant fee, a $10 sheriff service fee, a
$250 jury fee, and a maximum of $250 for costs of incarceration. Mr. Rivera appeals.
ANALYSIS
Sufficiency of Evidence
Mr. Rivera contends his bail jumping convictions must be overturned due to
insufficient evidence. He argues that by relying solely on documentary evidence, the
2
Deoxyribonucleic acid.
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No. 32920-8-111 (consol. w/ No. 33320-5-111)
State v. Rivera
State failed to prove he was the person who failed to appear.
Evidence is sufficient to support a guilty finding 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.
307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). An evidence sufficiency challenge
"admits the truth of the State's evidence and all inferences that reasonably can be drawn
therefrom." State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992). Direct and
circumstantial evidence are equally reliable in determining the sufficiency of the
evidence. State v. Delmarter, 94 Wash. 2d 634, 638, 618 P.2d 99 (1980).
A person is guilty of bail jumping if they fail to appear as required, after having
been released by court order or admitted to bail, with knowledge of the requirement of a
subsequent personal appearance before a court. RCW 9A.76.170(1). The State must
prove the person on trial is the same person who earlier failed to appear. State v. Huber,
129 Wash. App. 499, 502, 119 P.3d 388 (2005). If criminal liability depends on the
accused being the person to whom a certain document pertains, such as with bail jumping,
the State must do more than authenticate and admit documentary evidence; rather, the
State must prove the person named in the document is the same person who failed to
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No. 32920-8-111 (consol. w/ No. 33320-5-111)
State v. Rivera
appear and is on trial. Id. The State can meet this burden in multiple ways, including
introducing booking photographs, booking fingerprints, eyewitness identification, or
distinctive personal information. Id. at 503.
The evidence in this case went beyond court documents and was sufficient to
establish that the individual on trial was the same person who had failed to appear for the
pretrial hearings. Unlike Huber, Mr. Rivera's bail jumping charges were tried at the same
time as his underlying case. Thus, Deputy Rojas was able to identify Mr. Rivera as the
individual he initially investigated for possession of stolen property. Deputy Rojas was
also able to identify the DOL information used to identify Mr. Rivera at the time of the
initial traffic stop. The biographical information on the DOL record matched the
biographical information recited in Mr. Rivera's court documents. In addition, the jury
was able to compare the signature on Mr. Rivera's DOL record with the signature on the
court documents. The totality of this evidence provided the jury a sufficient basis to
determine that the individual on trial was the same individual named in the court
documents who twice failed to appear as required by the court's orders. See State v.
Brezillac, 19 Wash. App. 11, 14-15, 573 P.2d 1343 (1978) (identity may be established
when records reflect biographical similarities beyond merely the defendant's name).
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No. 32920-8-III (consol. w/ No. 33320-5-III)
State v. Rivera
Legal Financial Obligations
Mr. Rivera challenges the trial court's imposition of LFOs. No objection was
made in the trial court. Nevertheless, Mr. Rivera asks this court to review this issue
pursuant to State v. Blazina, 182 Wash. 2d 827, 344 P.3d 680 (2015). The LFOs imposed
span two categories: discretionary and mandatory. Discretionary LFOs include $600 in
attorney fees, a $300 warrant fee, a $10 sheriff fee, $250 for costs of incarceration, and a
$250 jury fee. 3 The mandatory LFOs consist of a $500 crime penalty assessment, a $200
criminal filing fee, and a $100 DNA collection fee.
Mandatory LFOs are required, regardless of inability to pay. State v. Mathers, 193
Wash. App. 913, _ P.3d _ (2016) (rejecting constitutional challenges to mandatory
LFOs). Consequently, to the extent Mr. Rivera challenges imposition ofLFOs based on
his inability to pay, his claim must be constrained to discretionary obligations. Despite
finding Mr. Rivera unable to currently pay, and despite the court's knowledge of Mr.
Rivera's financial resources, the trial court imposed over $1,000 in discretionary LFOs.
3
Without argument, the State simply asserts the $250 jury fee is a mandatory fee,
citing RCW 35.20.090. Chapter 35.20 RCW deals with municipal courts, not superior
courts. RCW 10.01.160(2) states that jury fees under RCW 10.46.190 may be included as
costs. A court cannot order a defendant to pay costs unless the defendant is or will be
able to pay them. RCW 10.01.160(3). However, because of the imposition of other
discretionary LFOs, correctly categorizing the jury fee is not critical to deciding Mr.
Rivera's appeal.
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No. 32920-8-III (consol. w/ No. 33320-5-III)
State v. Rivera
Thus, with respect to discretionary LFOs, this court remands for reconsideration under
Blazina.
The trial court also ordered Mr. Rivera to repay his LFOs within six or nine
months after his release from prison. As this case is already being remanded for
reconsideration of the discretionary LFOs, the trial court is further directed to reconsider
the time frame in which Mr. Rivera has to repay his LFOs.
In addition to his general objection to the imposition of LFOs, Mr. Rivera
challenges the propriety of his DNA collection fee in light of his prior felony convictions
that presumably imposed similar requirements. Identical arguments have been rejected by
this court previously. Mathers, 192 Wash. App. at 924-29 (rejecting equal protection and
substantive due process challenges); State v. Thornton, 188 Wash. App. 371, 373-74, 353
P.3d 642 (2015) (rejecting challenge to repeat orders). We reject them here as well.
PERSONAL RESTRAINT PETITION
In a consolidated PRP, Mr. Rivera requests resentencing so that he may be given a
DOSA sentence. No request has been made previously. We commend the positive steps
Mr. Rivera has taken to improve his life while in custody. However, we lack authority to
modify Mr. Rivera's sentence in order to allow for a DOSA. State v. Harkness, 145 Wn.
App. 678, 685-86, 186 P .3d 1182 (2008). The PRP must be dismissed.
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No. 32920-8-111 (consol. w/ No. 33320-5-111)
State v. Rivera
APPELLATE COSTS
We have considered Mr. Rivera's August 4, 2016, motion to not award appeal
costs and the State's response thereto. We grant the motion, exercising our discretion
under RCW 10.73.160(1) and RAP 14.2 to not award costs to the State.
CONCLUSION
We affirm Mr. Rivera's convictions but remand for resentencing, limited to
reconsideration of discretionary LFOs and the time frame that Mr. Rivera has to repay
them. In addition, we dismiss Mr. Rivera's PRP.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Pennell,J.
WE CONCUR:
~ s.
Feari~' Lawrence-Berrey, J.
8