State of Washington v. Enrique Murillo, Jr.

FILED
OCTOBER 1, 2019
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. 35696-5-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ENRIQUE MURILLO, JR., )
)
Appellant. )
FEARING, J. — Some facts on appeal support a finding of probable cause, while
other facts discount a finding of probable cause to arrest Enrique Murillo, during which
arrest an officer found methamphetamine on Murillo’s person. After weighing all facts,
we uphold the determination of probable cause and the conviction of Murillo for
possession of a controlled substance because an informant provided information
incriminating Murillo that was also against the informant’s penal interest. Nevertheless,
because the to-convict instruction failed to identify the controlled substance as
methamphetamine, we remand to the prosecution for resentencing. We also remand for
corrections of two errors in the judgment and sentence. FACTS
The principal question on appeal surrounds whether the trial court erred when
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State v. Murillo
denying Enrique Murillo’s motion to suppress evidence found on his person during an
arrest. Thus, we glean our facts from testimony during a suppression hearing. The State
claims those facts support the trial court’s conclusion that law enforcement officers held
probable cause to arrest Murillo.
On August 24, 2017, Kennewick Police Officer Cory McGee saw a white
Mitsubishi Eclipse parked near 4412 W. 7th in Kennewick. The Mitsubishi bore no
license plate, and all usable parts had been stripped from the vehicle. Officer McGee
called Benton County emergency services, which reported the Mitsubishi as stolen.
Other Kennewick Police Department officers arrived at the vicinity of the
Mitsubishi Eclipse. The officers noticed a trail of oil leading from the white Mitsubishi
to the driveway of a nearby address, 723 S. Volland Street. Outside of this residence,
officers found a Toyota truck reported as stolen, which truck displayed a stolen license
plate. The officers saw another license plate in a nearby garbage dumpster.
Kennewick Police Department officers approached the house at 723 S. Volland
and spoke with Jenna Ross, Jessica Miller, and a man who identified himself as Jonathan
Watts. Miller denied knowledge of the white Mitsubishi. Ross denied knowledge of the
Mitsubishi and Toyota being stolen, but she disclosed that an individual she called
“Cousins” brought the white Mitsubishi to the Volland address. Clerk’s Papers (CP) at
106. Ross knew not who transported the Toyota pickup to the residence.
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Detective Marco Monteblanco also interviewed Jonathan Watts. Watts denied
stealing the vehicles but admitted to working on the Mitsubishi with a person he called
“Cousins.” CP at 106. Kennewick Police Detective Daniel Todd assumed the
questioning of Watts. We do not know if Todd’s questioning of Watts occurred at the
police station or at the Volland address. Watts informed Detective Todd that he had
resided at the Volland Street address for a few days, and the residents at the home were
Jenna Ross and Tyler Hoyt. Watts stated that Cousins worked on the Mitsubishi and
possibly removed parts from the car.
Jonathan Watts described Cousins, to Detective Daniel Todd, as a Hispanic male
with a spider web tattoo on his elbow. Watts believed Cousins’ real name started with
the letter E. Watts claimed that Cousins lived in an apartment complex, which contained
the name “Sage,” on Hood Avenue, east of Tweedt Street in Kennewick. CP at 107. He
also identified the color of the apartment complex. Watts said that Cousins drove to the
Volland residence in a green Kia.
Law enforcement officers journeyed to Sage Creek Apartments on Hood Avenue,
where they saw a dark blue Kia Optima. Detective Daniel Todd texted a picture of the
Kia to another officer. The other officer showed the photograph to Jonathan Watts, who
confirmed that Cousins drove the car. Detective Todd’s research unearthed that Enrique
Murillo owned the Kia Optima.
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Kennewick Detective Rick Runge prepared and showed a photo montage to
Jonathan Watts. Watts identified the picture of Enrique Murillo as the person he knew as
“Cousins.” CP at 107.
Kennewick Police Department officers stopped Enrique Murillo’s vehicle as he
left his apartment. Officers arrested Murillo. During a search incident to arrest, Officer
Jeff Sagen grabbed a bag with white crystal from Murillo’s person. The contents of the
bag later tested positive as methamphetamine.
Later on August 24, officers interrogated Jonathan Watts again. Watts admitted
that he gave a false name and his true name was James Whitney. Whitney further
conceded he had stolen the Toyota Truck and the white Mitsubishi.
PROCEDURE
The State of Washington charged Enrique Murillo with one count of possession of
a controlled substance, in violation of RCW 69.50.4013(1). The sole charge read:
That the said ENRIQUE MURILLO, JR in the County of Benton,
State of Washington, on or about the 24th day of August, 2017, in violation
of RCW 69.50.4013(1), did unlawfully possess a controlled substance, to
wit: methamphetamine, contrary to the form of the Statute in such cases
made and provided, and against the peace and dignity of the State of
Washington.
CP at 1 (emphasis added).
Enrique Murillo moved to suppress the methamphetamine found on his person on
the ground that officers lacked probable cause to arrest him. He argued that Jenna Ross’
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and James Whitney’s informant tips failed to establish probable cause to arrest him under
the Aguilar-Spinelli test.
After an evidentiary hearing, the trial court denied Enrique Murillo’s motion to
suppress. During its oral ruling, the trial court noted that the question of probable cause
was “a close call.” Report of Proceedings (RP) (Oct. 25, 2017) at 47. The trial court
entered the following conclusions of law:
1. The Aguilar-Spinelli test established in Spinelli v. United States,
393 U.S. 410, (1969) and Aguilar v. Texas, 378 U.S. 108 (1964) is the
proper framework to analyze whether an informant’s tip is sufficient to
establish probable cause.
2. Assuming that both the basis of knowledge prong and the veracity
prong are met under Aguilar-Spinelli, the information taken at face value
constitutes probable cause to arrest the defendant for possession of a stolen
motor vehicle.
3. The basis of knowledge prong is satisfied, and the defendant
conceded this[.]
4. Neither James Whitney, nor Jenna Ross had an established track
record of providing reliable information to police.
5. Although the officers could adequately establish that Enrique
Murillo was the individual that Ross and Whitney referred to when
describing Cousins, officers were unable to corroborate the allegations that
it was he that had brought the white Mitsubishi to the residence and
possibly worked on it or removed parts from it.
6. Nevertheless, James Whitney’s and Jenna Ross’s statements to
police were against penal interest and weigh in favor of finding that the
veracity prong is satisfied. Specifically, James Whitney’s statement that he
worked on the stolen vehicle with the defendant, was against his penal
interest.
7. The fact that Jenna Ross and James Whitney independently gave
a similar account of who had worked on or brought the white Mitsubishi to
the house lends credibility to both Ross’s and Whitney’s accounts and
weighs in favor of finding that the veracity prong is satisfied.
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8. The fact that Whitney knew the first letter of Cousins’ real name,
the car he drove[,] and where he lived lends credibility to Whitney’s
account.
9. The identification of Enrique Murillo as Cousins during the photo
lineup lends credibility to Whitney’s account.
10. Even though neither Ross nor Whitney had an established track
record, under the circumstances, their statements satisfy the veracity prong
of the Aguilar-Spinelli test.
11. At the time Murillo was arrested, officers had probable cause to
arrest for the felony crime of possession of a stolen motor vehicle.
12. The resulting search incident to arrest was lawful, and the
alleged controlled substance discovered during such search is admissible in
trial.
CP at 108-09.
The prosecution proceeded to a jury trial. Officer Jeff Sagen of the Kennewick
Police Department testified that he arrested Enrique Murillo, searched his person, and
found a red baggie with a crystalline substance in it. Forensic scientist Jayne Wilhelm
testified that she tested the white crystalline material and found it to contain
methamphetamine.
Enrique Murillo testified in his own defense. Murillo averred that, on the morning
of his arrest, he changed into a pair of shorts that he grabbed from a dirty pile of clothes
on the floor of his home. Murillo claimed that the shorts he wore at the time of his arrest
did not belong to him and that he lacked knowledge that the pocket of the shorts
contained methamphetamine.
The trial court delivered to the jury a set of jury instructions. Jury instruction 7
declared:
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It is a crime for any person to possess a controlled substance.
CP at 88. Jury instruction 8, the to-convict instruction, read:
To convict the defendant of the crime of possession of a controlled
substance, each of the following elements of the crime must be proved
beyond a reasonable doubt:
(1) That on or about August 24th, 2017, the defendant possessed a
controlled substance; and
(2) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.
CP at 89 (emphasis added). Note that instruction 8 did not mention methamphetamine as
the controlled substance. Instruction 10 stated:
Methamphetamine is a controlled substance.
CP at 92. The verdict form for the charge stated:
We, the jury, find the defendant ENRIQUE MURILLO JR., ____
[write in “not guilty” or “guilty”] of the crime of Unlawful Possession of a
Controlled Substance as charged in Count I.
CP at 96 (emphasis added). Several jury instructions referenced the crime of possession
of a controlled substance. Nevertheless, none of the jury instructions informed the jury as
to the nature of the charge found in count I.
The jury found Enrique Murillo guilty. The court sentenced Murillo as a felon to
six months plus one day confinement. The judgment and sentence contains the following
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provisions, among others:
5.5 Any violation of this Judgment and Sentence is punishable by up
to 60 days of confinement per violation. RCW 9.94A.634[.]
....
5.6b FELONY FIREARM OFFENDER REGISTRATION. The
defendant is required to register as a felony firearm offender. The specific
registration requirements are in the “Felony Firearm Offender Registration”
attachment.
CP at 119 (boldface omitted).
LAW AND ANALYSIS
Enrique Murillo challenges both his conviction and his sentence. He challenges
his conviction on the basis that Kennewick Police Department officers lacked probable
cause to arrest him and thus the trial court should have suppressed evidence of the
methamphetamine seized during his arrest. He challenges his sentence on the ground
that, although the jury found that he possessed a controlled substance, the jury never
expressly found he possessed methamphetamine and thus a sentence based on possessing
methamphetamine must be struck. We address the conviction first.
Probable Cause for Arrest
This appeal contains discrete facts that, although in isolation are not unique, when
combined form a distinctive configuration. Some factors discount the presence of
probable cause, while other factors support the existence of probable cause. After
analyzing the facts, we conclude the most important factor to be James Whitney’s
statement against penal interest and this factor created probable cause despite Whitney
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providing law enforcement a false name.
To review the facts, Officer Cory McGee spotted a stolen white Mitsubishi
Eclipse, without a license plate and with all usable parts stripped therefrom. McGee and
other officers noticed a trail of oil leading to 723 Volland Street, in front of which
officers discovered another stolen vehicle. At the Volland Street address, officers spoke
to three people. All denied knowledge of stolen vehicles, but two, Jenna Ross and James
Whitney, identified a man named Cousins as the one who brought the Mitsubishi to the
neighborhood. Whitney admitted to working on the Mitsubishi with Cousins. Whitney
stated Cousins was a Hispanic man, with a spider tattoo on his elbow, whose real name
started with an “E,” who lived in an apartment complex on Hood Avenue that contained
the name “Sage,” and who drove a green Kia. On follow-up to Whitney’s information,
officers went to Sage Creek Apartments on Hood Avenue, saw a blue Kia Optima, and
learned that Enrique Murillo owned the Kia. Whitney then confirmed, through a
photograph, Murillo as Cousins and the blue Kia Optima as Cousins’ car.
We isolate three critical facts. First, James Whitney spoke to officers in person
and provided a false name. Second, Whitney implicated himself by conceding he worked
on the disassembled car. Third, Whitney provided details about Cousins, aka Enrique
Murillo, later confirmed by law enforcement, but the details did not implicate Cousins in
any crime. Did these facts justify the arrest of Murillo for stealing a vehicle or
possession of a stolen car? The answer lies in whether the officers possessed reason to
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believe the truth of the information disclosed by Whitney and the other witness
implicating Enrique Murillo, Jenna Ross.
On appeal, Enrique Murillo attacks the credibility of informants Jenna Ross and
James Whitney. The State argues that law enforcement could rely on the statements from
Ross and Whitney because each provided a statement against penal interest.
In retrospect, James Whitney, if not also Jenna Ross, provided misleading, if not
false, information to Kennewick police officers about the theft of motor vehicles. At
least, the State never prosecuted Murillo with stealing or possessing a stolen car, the
allegations that led to his arrest. Nevertheless, this court does not view, with hindsight,
information used by law enforcement to form probable cause. State v. Remboldt, 64 Wn.
App. 505, 509, 827 P.2d 282 (1992).
Officers seized methamphetamine from Enrique Murillo’s person when arresting
him, without an arrest warrant or a search warrant, for allegedly stealing a motor vehicle
or possession of the stolen vehicle. As a general rule, warrantless searches and seizures
are per se unreasonable under the Fourth Amendment to the United States Constitution
and article I, section 7 of the Washington State Constitution. State v. Doughty, 170
Wash. 2d 57, 61, 239 P.3d 573 (2010). The burden falls on the State to demonstrate that a
warrantless seizure falls into a narrow exception to the rule. State v. Doughty, 170 Wash. 2d
at 61. We purportedly “jealously and carefully” draw these exceptions. State v. Garvin,
166 Wash. 2d 242, 249, 207 P.3d 1266 (2009). A search incident to arrest is one such
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exception to the warrant requirement. State v. Gaddy, 152 Wash. 2d 64, 70, 93 P.3d 872
(2004). Under article I, section 7, a lawful custodial arrest is a constitutionally required
prerequisite to any search incident to arrest. State v. Gaddy, 152 Wash. 2d at 70. Therefore,
we must determine if law enforcement lawfully arrested Enrique Murillo.
A police officer holds authority to arrest a person absent a warrant when the
officer possesses probable cause to believe that a person committed or is committing a
felony. RCW 10.31.100. Theft of a motor vehicle and possession of a stolen motor
vehicle qualify as Class B felonies. RCW 9A.56.065; RCW 9A.56.068.
The existence of probable cause is determined by an objective standard. State v.
Gaddy, 152 Wash. 2d 64 (2004). Probable cause exists when the facts and circumstances
within the arresting officer’s knowledge and of which the officer has reasonably
trustworthy information justify a person of reasonable caution to conclude the suspect
committed an offense. State v. Terrovona, 105 Wash. 2d 632, 643, 716 P.2d 295 (1986).
Probable cause constitutes the likelihood of a crime, not proof of a crime beyond a
reasonable doubt. State v. Gaddy, 152 Wash. 2d at 70.
When a law enforcement officer relies on an informant to gain probable cause for
an arrest, article I, section 7 of the Washington Constitution requires adherence to the
two-pronged test arising from the United States Supreme Court decisions of Aguilar-
Spinelli. State v. Smith, 102 Wash. 2d 449, 455, 688 P.2d 146 (1984); Aguilar v. Texas, 378
U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S.
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410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Aguilar-Spinelli test requires: (1) a
showing that the informant has a sufficient basis of knowledge, and (2) a showing of the
veracity of the informant. State v. Smith, 102 Wash. 2d at 455. The second prong seeks to
evaluate the truthfulness of the informant. State v. Lair, 95 Wash. 2d 706, 709, 630 P.2d
427 (1981). To satisfy both prongs, the State must prove the underlying circumstances
showed that the informant was credible and obtained the information in a reliable
manner. State v. Gaddy, 152 Wash. 2d 64, 72 (2004). The State must satisfy both prongs of
the Aguilar-Spinelli test, unless the State shows probable cause by an independent police
investigation corroborating the informant’s tip to the extent the investigation cures the
tip’s deficiency. State v. Vickers, 148 Wash. 2d 91, 112, 59 P.3d 58 (2002).
Enrique Murillo agrees that the State satisfied the basis of knowledge prong.
Murillo challenges the fulfillment of the veracity of the informant prong.
The State may fulfill the veracity prong of the Aguilar-Spinelli test in one of two
ways: (1) the informant has a history of providing credible information, or (2) if the
informant never provided information in the past and even if law enforcement knows
nothing about the informant, the facts and circumstances under which the informant
supplied the information reasonably support an inference that the informant spoke the
truth. State v. Chamberlin, 161 Wash. 2d 30, 41-42, 162 P.3d 389 (2007). We agree with
Enrique Murillo that Jenna Ross and James Whitney lacked any history of providing
reliable information to the police. The State does not argue otherwise.
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If a police investigation reveals suspicious activity along the lines of the criminal
behavior proposed by the informant, the corroborating investigation may satisfy the
requirements of Aguilar-Spinelli. The corroborating information must point to suspicious
activities or indications of criminal activity along the lines suggested by the informant.
State v. Maxwell, 114 Wash. 2d 761, 769, 791 P.2d 223 (1990). The amount and kind of
detailed information given by an informant may also enhance his reliability. State v.
O’Connor, 39 Wash. App. 113, 122, 692 P.2d 208 (1984). Still, Washington courts have
never considered corroboration as a prerequisite to a reasonable inference of truthfulness.
State v. Patterson, 83 Wash. 2d 49, 56, 515 P.2d 496 (1973); State v. O’Connor, 39 Wn.
App. at 120.
The law deems the circumstances under which the informant supplied the
information to encompass whether the informant implicated himself or herself in criminal
activity. If the informant has no record of reliable information, the State may still satisfy
the veracity prong by showing that the informant’s accusation qualifies as a declaration
against penal interest. State v. Jackson, 102 Wash. 2d 432, 437, 688 P.2d 136 (1984).
When a person admits self-incriminating activity to the police, we presume the statement
is true. State v. Chenoweth, 160 Wash. 2d 454, 483, 158 P.3d 595 (2007). Statements
against penal interest are intrinsically reliable because a person is unlikely to make a self-
incriminating admission that leads to prosecution unless it is true. State v. Chenoweth,
160 Wash. 2d at 483; State v. Lair, 95 Wash. 2d at 711 (1981).
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Jenna Ross and James Whitney gave law enforcement each’s purported respective
names. The informant’s identification of himself or herself is not alone a sufficient
ground on which to credit the informer. State v. Duncan, 81 Wash. App. 70, 78, 912 P.2d
1090 (1996). Nevertheless, Washington courts hold that an informant’s willingness to
come forward and identify himself or herself to be a strong indicator of reliability. State
v. Chenoweth, 160 Wash. 2d 454, 483 (2007); State v. Chamberlin, 161 Wash. 2d at 42 n.7. If
law enforcement knows the identity of an informant, as opposed to the informant being
anonymous or professional, the necessary showing of reliability is relaxed. State v.
Gaddy, 152 Wash. 2d 64, 72-73 (2004). Apparently psychology supports the proposition
that an anonymous reporter will more likely employ rumor or irresponsible conjecture or
be marred by self-interest. State v. Gaddy, 152 Wash. 2d 64, 72-73. An anonymous
reporter will not suffer ramifications from supplying false information, including the
crime of false reporting, but one disclosing one’s name renders himself criminally liable
for false accusations. State v. Chenoweth, 160 Wash. 2d 454 (2007); RCW 9A.76.175. The
law deems citizen informants presumptively reliable. State v. Gaddy, 152 Wash. 2d at 73.
Enrique Murillo insists that James Whitney was an anonymous informant since
Whitney gave a false name. This contention holds some, but only limited, appeal. Most
anonymous informers speak by telephone. James Whitney spoke to law enforcement
officers in person at his temporary home. Officers could thereafter locate him at the
residence and identify him by his physical appearance. To this extent, Whitney was a
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known informant. Although we do not review probable cause in hindsight, law
enforcement later located Whitney and spoke again to him, at which time he admitted his
true name and his stealing of the motor vehicle.
One might argue that law enforcement officers should have asked Whitney for
identification to confirm his true name before relying on his remarks about Cousins or
Enrique Murillo. Law enforcement routinely asks citizens for identification in other
settings.
Enrique Murillo cites no decision wherein the court holds or even discusses
whether law enforcement should procure identification from an informer before relying
on the informer’s disclosures. We find only one decision, in which a court discussed an
informer giving a false name. In State v. Duncan, 81 Wash. App. 70 (1996), the State
charged James Duncan with possession of a controlled substance. Duncan’s girlfriend,
Sara DaVee, initiated law enforcement’s search of Duncan’s person. Nevertheless,
DaVee gave the false name of Meda Hansen. Hansen complained to Officer Bill Guyer
of a domestic dispute, during which Duncan pulled her hair. Guyer noticed red marks on
Hansen’s face and loose hair. Hansen added that she recently saw Duncan take fourteen
ounces of marijuana from a storage unit. Based on this information, law enforcement
procured a warrant to search the storage unit. This court affirmed the superior court’s
suppression of the marijuana found in the storage unit.
In State v. Duncan, this court noted that law enforcement’s affidavit in support of
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the search warrant failed to explain Sara DaVee’s credibility or reliability. The court
wrote:
Police did not check her identity, address, phone number,
employment, residence or length of residence, or family history.
81 Wash. App. at 77. Officer Bill Guyer’s observation of DaVee’s head and hair confirmed
domestic violence, but did not confirm the possession of marijuana. The opinion did not
indicate when law enforcement learned that DaVee gave a false name, and, assuming law
enforcement learned before applying for a search warrant, the importance of the false
name. This court held that law enforcement lacked probable cause to search the storage
unit, but we relied on the lack of confirming information with regard to marijuana in
storage rather than DaVee giving a false name. Thus, Duncan does not hold that law
enforcement must necessarily ask an informant for identification.
James Whitney supplied law enforcement information about Cousins’ real name,
the brand of car he drove, and his residence. Police confirmed the accuracy of the
information. In turn, Whitney correctly identified Enrique Murillo in the photo line-up.
Whitney gave the wrong color of the Kia, but some people see blue when others see
green and vice versa.
The veracity of the informant increases if law enforcement’s investigation
corroborates the informant’s tip. State v. Vickers, 148 Wash. 2d 91 (2002). Nevertheless,
corroboration of innocuous facts only shows that the informer has some familiarity with
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the suspect’s affairs. State v. Jackson, 102 Wash. 2d 432, 438 (1984). Such corroboration
only justifies an inference that the informer has some knowledge of the suspect and his
activities, not that criminal activity is occurring. State v. Jackson, 102 Wash. 2d 432, 438.
The information Whitney supplied law enforcement merely confirmed that Whitney
knew Murillo. The information did not validate Murillo’s alleged illegal activities or his
involvement with the white Mitsubishi.
Enrique Murillo legitimately challenges the trial court’s conclusion of law 6,
which declared that Jenna Ross and James Whitney uttered statements against her or his
respective penal interests. We agree that Ross did not implicate herself. During her
interview with officers, Ross denied knowledge that the Toyota pickup and the
Mitsubishi were stolen. She claimed that Cousins brought the white Mitsubishi to the
house, but that she had no clue how the Toyota arrived in the vicinity. These statements
do not subject Ross to criminal liability.
We agree with the State that James Whitney voiced a statement against penal
interest. Whitney’s acknowledgement of work in stripping a car and work on a
disassembled vehicle with a person allegedly barely known implicated Whitney as an
accomplice or principal in stealing a car or possession of a stolen car. In State v.
Chenoweth, this court agreed that an informant provided reliable information when he
told an officer that he assisted the accused in making methamphetamine. Because the
testimony of an accomplice suffices to convict beyond a reasonable doubt, statements by
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the accomplice should suffice to present probable cause for an arrest of the defendant.
Craig v. Singletary, 127 F.3d 1030, 1044-45 (11th Cir. 1997).
The law deems a statement against penal interest reliable because the informant
more likely tells the truth if he speaks against his advantage. This rationale assumes that
the informant knows that his comments implicate him. We lack any evidence that James
Whitney knew that his disclosures implicated him. He may not have known the car to be
stolen, or, assuming he knew the car to be stolen, he did not know that working on the car
rendered him an accomplice. We find no case law, however, that demands the State
show that the informant knew he spoke against his interests.
One could argue that James Whitney lied about Enrique Murillo bringing the car
to the neighborhood in order to shift principal blame onto Murillo and deflect primary
guilt from him. One case recognizes this possibility. Craig v. Singletary, 127 F.3d 1030,
1045-46 (11th Cir. 1997). Nevertheless, the federal court rejected this possibility as a
reason to discount statements against penal interest.
Once again, Enrique Murillo legitimately emphasizes James Whitney’s provision
of a false identity. Murillo contends that, since Whitney gave an ersatz name, his report
does not qualify as a statement against interest. We answer similarly to our answer with
regard to the informant identifying himself. Law enforcement knew the location of
Whitney and could confront him on giving false information. We also must view the
evidence in the light of the officers’ knowledge at the time of the arrest of Enrique
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Murillo, not in hindsight. State v. Remboldt, 64 Wash. App. 505, 509 (1992).
After reviewing the many factors relevant to a determination of the veracity of
James Whitney and his statement implicating Enrique Murillo with the possession of the
Mitsubishi, we conclude, based on a combination of factors, that law enforcement
officers possessed probable cause to arrest Enrique Murillo at the time of his seizure. We
primarily rely on Whitney’s uttering of a statement against penal interest. Case law
repeatedly emphasizes the strength of such statements. Although Whitney primarily
supplied innocuous information to law enforcement, he still supplied accurate details.
Although he provided a false name, he did not anonymously call law enforcement. Law
enforcement knew his location and his looks. We know of the false identity only in
retrospect. Because law enforcement possessed probable cause to arrest Enrique Murillo,
we affirm his conviction.
Sentence
Enrique Murillo asks this court to remand for resentencing because the omission
of the identity of the controlled substance in the to-convict instruction constituted harmful
error for purposes of sentencing. The State contends that the omission of the name of the
controlled substance from the to-convict instruction was not error and that, even if error,
the omission was harmless error as to Murillo’s sentence. We agree with Murillo.
The State charged, in the information, that Enrique Murillo “did unlawfully
possess a controlled substance, to wit: methamphetamine.” CP at 1. Jury instruction 8
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directed the jury to convict Enrique Murillo if it found that Murillo “possessed a
controlled substance.” CP at 89. But the jury instruction omitted the word
“methamphetamine.” Instruction 10 informed the jury that methamphetamine is a
controlled substance, but the instruction did not apprise the jury that the State only
charged Murillo with possessing methamphetamine, and not one or more other
substances. Murillo postulates that the jury could have convicted him of possessing a
controlled substance other than methamphetamine, when the State never charged him
with possessing another substance. The jury verdict only read that the jury found Murillo
guilty of possessing a controlled substance, not of possessing methamphetamine.
The omission of the nature of the controlled substance from a to-convict jury
instruction can implicate both the accused’s conviction and sentence, but we need not
address the implications on the conviction in this appeal. A to-convict instruction must
include each essential element of the crime charged. State v. Smith, 131 Wash. 2d 258, 263,
930 P.2d 917 (1997); State v. Clark-El, 196 Wash. App. 614, 618, 384 P.3d 627 (2016).
When the identity of a controlled substance increases the statutory maximum sentence
which the defendant may face on conviction, the identity of the substance becomes an
essential element. State v. Goodman, 150 Wash. 2d 774, 778, 83 P.3d 410 (2004). As we
analyze later, the nature of the controlled substance could increase Enrique Murillo’s
sentence. Therefore, the trial court committed error when omitting the word
“methamphetamine” from jury instruction 8.
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The omission of an essential element from the to-convict instruction is subject to
harmless error analysis for purposes of the accused’s conviction. State v. Brown, 147
Wash. 2d 330, 332, 58 P.3d 889 (2002). Enrique Murillo impliedly and correctly concedes
harmless error for purposes of his conviction.
We must still address whether, for purposes of sentencing, we may apply harmless
error analysis to the error in Enrique Murillo’s to-convict jury instruction and, if so,
whether harmless error occurred. RCW 69.50.4013, under which the State charged
Murillo, declares:
(1) It is unlawful for any person to possess a controlled substance
unless the substance was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the course of his or
her professional practice, or except as otherwise authorized by this chapter.
(2) Except as provided in RCW 69.50.4014, any person who violates
this section is guilty of a class C felony punishable under chapter 9A.20
RCW.
(3)(a) The possession, by a person twenty-one years of age or older,
of useable marijuana, marijuana concentrates, or marijuana-infused
products in amounts that do not exceed those set forth in RCW
69.50.360(3) is not a violation of this section, this chapter, or any other
provision of Washington state law.
(b) The possession of marijuana, useable marijuana, marijuana
concentrates, and marijuana-infused products being physically transported
or delivered within the state, in amounts not exceeding those that may be
established under RCW 69.50.385(3), by a licensed employee of a common
carrier when performing the duties authorized in accordance with RCW
69.50.382 and 69.50.385, is not a violation of this section, this chapter, or
any other provision of Washington state law.
(4)(a) The delivery by a person twenty-one years of age or older to
one or more persons twenty-one years of age or older, during a single
twenty-four hour period, for noncommercial purposes and not conditioned
upon or done in connection with the provision or receipt of financial
21
No. 35696-5-III
State v. Murillo
consideration, of any of the following marijuana products, is not a violation
of this section, this chapter, or any other provisions of Washington state
law.
Note that the controlled substance offender’s sentence may vary depending on the nature
of the controlled substance. RCW 69.50.4014 reads:
Except as provided in RCW 69.50.401(2)(c) or as otherwise
authorized by this chapter, any person found guilty of possession of forty
grams or less of marijuana is guilty of a misdemeanor.
The constitutional right to a jury trial requires that a sentence be authorized by a
jury’s verdict. State v. Morales, 196 Wash. App. 106, 109, 383 P.3d 539 (2016). If a court
imposes a sentence not authorized by the jury’s verdict, harmless error analysis does not
apply. State v. Williams-Walker, 167 Wash. 2d 889, 900-01, 225 P.3d 913 (2010). The law
requires the trial court “to impose only the lowest possible sentence for unlawful
possession of a controlled substance.” State v. Gonzalez, 2 Wash. App. 2d 96, 114, 408
P.3d 743, review denied, 190 Wash. 2d 1021, 418 P.3d 790 (2018).
In analyzing whether the omission of “methamphetamine” in Enrique Murillo’s to-
convict jury instruction was harmless error as to his sentence we review four Washington
decisions: State v. Sibert, 168 Wash. 2d 306, 230 P.3d 142 (2010) (plurality opinion); State
v. Rivera-Zamora, 7 Wash. App. 2d 824, 435 P.3d 844 (2019); State v. Gonzalez, 2 Wn.
App. 2d 96 (2018); and State v. Clark-El, 196 Wash. App. 614 (2016). In State v. Sibert, a
jury convicted Richard Sibert of three counts of delivery of a controlled substance and
one count of possession of a controlled substance with intent to deliver. The to-convict
22
No. 35696-5-III
State v. Murillo
instruction omitted the identity of the specific controlled substance. Nevertheless, each
of the four to-convict instructions began by stating: “‘to convict the Defendant . . . of the
crime of delivery of a controlled substance as charged . . . .’” 168 Wash. 2d at 312
(emphasis added). Unfortunately, we do not know if any jury instruction expressly
identified the charges as possession and delivery of methamphetamine. We also do not
know if the jury verdict referenced methamphetamine or asked the jury to convict or not
convict Sibert of the crime “as charged.” Four of the Supreme Court justices ruled that
the omission in the jury instruction did not constitute error.
The Washington Supreme Court decided State v. Sibert by a plurality. Justice
Barbara Madsen concurred in result only. Judge Madsen did not pen a separate opinion.
A plurality opinion has limited precedential value and is not binding on the courts. In re
Personal Restraint of Isadore, 151 Wash. 2d 294, 302, 88 P.3d 390 (2004). Another court
cannot assess the correct holding of an opinion signed by four justices when, as here, the
fifth vote, concurring in the result only, is unaccompanied by an opinion. Kailin v.
Clallam County, 152 Wash. App. 974, 985, 220 P.3d 222 (2009). As noted by this court, in
State v. Clark-El, 196 Wash. App. at 619 (2016), we cannot assess the holding in Sibert.
Four justices dissented in State v. Sibert on the basis that the omission in the jury
instruction constituted error and harmless error does not apply to an error in sentencing.
The identity of the controlled substance affected the applicable seriousness level of the
crime. According to the dissenters, because the jury found Richard Sibert guilty of an
23
No. 35696-5-III
State v. Murillo
unidentified controlled substance, the trial court lacked authority to impose a sentence
beyond the standard range for any controlled substance under the charging statute.
In State v. Rivera-Zamora, 7 Wash. App. 2d 824 (2019), this court found
instructional error harmless as to the defendant’s sentence. Bogar Rivera-Zamora
appealed convictions for delivery of a controlled substance, methamphetamine, and
possession of a controlled substance with intent to deliver. The to-convict instruction did
not identify the controlled substance. Nonetheless, the charging document identified
methamphetamine as the substance Rivera-Zamora allegedly possessed with the intent to
deliver. More importantly, even though the elements instruction omitted the word
“methamphetamine,” the verdict form stated that the jury found Rivera-Zamora guilty of
unlawful possession of a controlled substance with intent to deliver—methamphetamine.
In other words, the verdict entered by the jury identified the controlled substance as
methamphetamine. This court held that the trial court did not err in sentencing Rivera-
Zamora because the jury “expressly found that Mr. Rivera-Zamora possessed
methamphetamine with intent to deliver.” State v. Rivera-Zamora, 7 Wash. App. 2d at 830.
Accordingly, the error in the elements instruction was harmless as to both the conviction
and sentence.
In State v. Gonzalez, 2 Wash. App. 2d 96 (2018), the State charged Leonel Gonzalez
with unlawful possession of a controlled substance, methamphetamine, under former
RCW 69.50.4013 (2015). Although the forensic examination of the controlled substance
24
No. 35696-5-III
State v. Murillo
revealed both methamphetamine and cocaine, the amended information mentioned only
possession of methamphetamine and not cocaine. The to-convict instruction declared
that the State must prove “the defendant possessed a controlled substance. . . .” State v.
Gonzalez, 2 Wash. App. 2d at 104. The to-convict instruction omitted the type of
controlled substance, but the instruction referred to the offense “as charged in Count II.”
State v. Gonzalez, 2 Wash. App. 2d at 104. One instruction mentioned methamphetamine
being a controlled substance.
On appeal, the Gonzalez court discussed the application of harmless error to the
conviction and to sentencing. The court noted that former RCW 69.50.4013(2), (3), and
(5) impose different maximum sentences based on the type and amount of the controlled
substance possessed. One charged under the statute could be guilty of a misdemeanor.
The statute also excluded penalties for the possession of marijuana under some
circumstances altogether.
The Gonzalez court reasoned that, without specifying the identity of the controlled
substance, the to-convict instruction could allow the jury to convict a defendant and
impose a class C felony sentence based on the possession of any controlled substance,
including any amount of marijuana. The court stated that, if a court imposes a sentence
not authorized by the jury’s verdict, harmless error analysis does not apply. The court
held that, because the jury’s verdict did not specify the controlled substance Gonzalez
unlawfully possessed, the only authorized sentence was the lowest possible sentence for
25
No. 35696-5-III
State v. Murillo
unlawful possession of a controlled substance. The court impliedly ruled that the use of
the words “as charged in count II” did not save the to-convict instruction from
constitutional error. The court remanded for resentencing on the possession of a
controlled substance conviction.
In State v. Clark-El, 196 Wash. 2d 614, 618 (2016), the State charged Randolph
Clark-El with one count of delivery of a controlled substance, “to-wit: methamphetamine
. . . a class B felony.” Nevertheless, the to-convict instruction failed to identify the nature
of the controlled substance. Also, the jury verdict did not specify the type of controlled
substance. The court remanded for resentencing.
Enrique Murillo’s appeal occupies the interstices among the four Washington
decisions. Murillo’s to-convict instruction did not identify the possessed controlled
substance as methamphetamine. The to-convict instruction also failed to refer to
possession of a controlled substance “as charged.” A separate jury instruction referenced
methamphetamine, and no other drug, as a controlled substance. The verdict form did
not specify the nature of the controlled substance. The verdict form asked the jury to
convict or acquit Murillo of the offense “as charged.” The information only charged
Murillo with possession of methamphetamine. Nevertheless, no jury instruction
informed the jury that the State only charged Murillo with possession of
methamphetamine.
26
No. 35696-5-III
State v. Murillo
We conclude the omission of the identity of the controlled substance from Enrique
Murillo’s to-convict instruction constituted harmful error. The case law preaches the
primacy of the to-convict instruction and the need to mention the nature of the controlled
substance in the instruction. Murillo’s to-convict instruction lacked any mention of
methamphetamine. The error in the to-convict instruction may be absolved if the verdict
form expressly identifies the controlled substance. Murillo’s verdict form did not include
the word “methamphetamine.” The verdict form asked the jury to convict or acquit
Murillo “as charged,” but no instruction, let alone the to-convict instruction, listed the
charged substance as methamphetamine. The to-convict instruction also failed to employ
the phrase “possession of a controlled substance as charged.” We also note that a
majority of the Washington Supreme Court has never expressly adopted a harmless error
analysis for sentencing when the to-convict instruction fails to identify the controlled
substance.
All of the Washington decisions holding that the absence of the identity of the
controlled substance in the to-convict instruction remand for resentencing without
directing the resentencing court of the sentence to enter. The law requires the trial court
to impose only the lowest possible sentence for possession of a controlled substance.
State v. Gonzalez, 2 Wash. App. 2d 96, 114 (2018); State v. Clark-El, 196 Wash. App. 614,
624 (2016). We hold that the lowest offense consistent with the jury’s express finding of
possession of a controlled substance is possession of marijuana of forty grams or less
27
No. 35696-5-III
State v. Murillo
under RCW 69.50.4014. RCW 69.50.4014 provides:
Except as provided in RCW 69.50.401(2)(c) or as otherwise
authorized by this chapter, any person found guilty of possession of forty
grams or less of marijuana is guilty of a misdemeanor.
Thus, the resentencing court should sentence Enrique Murillo to a misdemeanor sentence.
Judgment and Sentence Corrections
The judgment and sentence contains the following two provisions:
5.5 Any violation of this Judgment and Sentence is punishable by up
to 60 days of confinement per violation. RCW 9.94A.634[.]
....
5.6b FELONY FIREARM OFFENDER REGISTRATION. The
defendant is required to register as a felony firearm offender. The specific
registration requirements are in the “Felony Firearm Offender Registration”
attachment.
CP at 119. Enrique Murillo argues that both paragraphs contain errors. The State
concedes error. Remand to the trial court for correction of any errors constitutes the
remedy for errors in the judgment and sentence. State v. Healy, 157 Wash. App. 502, 516,
237 P.3d 360 (2010).
The legislature recodified RCW 9.94A.634 as RCW 9.94B.040, effective August
1, 2009. LAWS OF 2008, ch. 231 § 56. RCW 9.94B.040 applies only to crimes
committed before July 1, 2000. State v. Bigsby, 189 Wash. 2d 210, 214, 399 P.3d 540
(2017). Enrique Murillo’s charged crime of unlawful possession of a controlled
substance occurred on August 24, 2017, well after July 1, 2000. Therefore, paragraph 5.5
authorizing sanctions under former RCW 9.94A.634 constitutes error.
28
No. 35696-5-III
State v. Murillo
Section 5.6b of the judgment regarding felony firearm offender registration is also
inaccurate. RCW 9.41.330(1) declares:
Whenever a defendant in this state is convicted of a felony firearm
offense . . . the court must consider whether to impose a requirement that
the person comply with the registration requirements of RCW 9.41.333 and
may, in its discretion, impose such a requirement.
(Emphasis added.) RCW 9.41.010(10)(e) defines “felony firearm offense” as “[a]ny
felony offense if the offender was armed with a firearm in the commission of the
offense.”
Enrique Murillo’s crime does not meet the definition of “felony firearm offense.”
The superior court convicted Murillo of unlawful possession of a controlled substance,
and the record does not suggest that Murillo bore a firearm at the time of his arrest.
Legal Financial Obligations
The trial court assessed legal financial obligations at sentencing of a $500 victim
penalty assessment fee, a $200 criminal filing fee, and a $100 DNA fee. Although
mandatory when imposed, the criminal filing fee and DNA fee are no longer mandatory
under new legislation as explained in State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714
(2018). The DNA fee is mandatory if the offender has yet to have his DNA collected by
the State.
The trial court found Enrique Murillo indigent at the sentencing. As a result, he
asks that the criminal filing fee be struck from his judgment and sentence. Murillo also
29
No. 35696-5-111
State v. Murillo
requests that the DNA fee be struck. Murillo has criminal convictions in the state of
Washington which occurred in 1996 and 1998. Prior to 2002, the DNA identification
statute required every person convicted of a felony sex offense or violent offense to
provide a blood sample for DNA. LA ws OF 1989, ch. 350. Murillo's late nineties
convictions do not include a felony sex offense or violent offense. Therefore, we
conclude the State has never collected his DNA.
Pursuant to Ramirez, we remand for the trial court to strike the criminal filing fee.
The $100 DNA collection fee shall remain.
CONCLUSIONS
We affirm the conviction of Enrique Murillo for possession of a controlled
substance. We remand to the superior court for resentencing of Murillo for a
misdemeanor and for the trial court to strike sections 5.5 and 5.6b from the judgment and
sentence. We remand for the striking of the $200 criminal filing fee.
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.
Fearing, J.
I CONCUR:
l,... ._ "~" (. t ~ ~ tM. \
Lawrence-Berrey, C .J.
30
No. 35696-5-III
KORSMO, J. (dissenting)- Even though State v. Sibert, 168 Wash. 2d 306, 230 P.3d
142 (2010) (plurality opinion), provides no governing analysis, it does provide a
governing result. We are bound by that result, even if not the analysis, under the facts of
this case. We are required to affirm by the results of that case and also because the error
is absolutely harmless.
As to the latter proposition first, I concur in the reasoning of Judge Melnick in his
dissent in State v. Gonzalez, 2 Wash. App. 2d 96, 116-120, 408 P.3d 743 (2018) (Melnick,
J., dissenting in part). The error is absolutely harmless because the evidence presented at
trial presented only one controlled substance for the jury's consideration-
methamphetamine-and Mr. Murillo agreed that he possessed the substance. Here, the
information alleged that Mr. Murillo possessed methamphetamine. Clerk's Papers (CP)
at 1. The jury was advised that the "defendant in this case is charged with unlawful
possession of a controlled substance, methamphetamine." Supplemental Report of
Proceedings (Oct. 30, 2017) at 5. The elements instruction omitted the identity of the
controlled substance, but the jury was instructed that methamphetamine was a controlled
substance. CP at 89, 92. The instructions did not identify any other controlled substance.
The defense proposed, and received, an instruction on unwitting possession. CP at 72-74,
No. 35696-5-III
State v. Murillo-Dissent
93. The verdict form stated that the jury found Mr. Murillo "guilty of the crime of
unlawful possession of a controlled substance as charged in count I." CP at 97. In other
words, the only issue in this case was whether or not Mr. Murillo possessed the substance
innocently. Because both sides agreed that Murillo possessed methamphetamine, it is
harder to conceive of a stronger harmless error case.
To reach the opposite result, the majority here adopts the analysis of the dissent in
Sibert without saying so. Of course, a dissent does not state the law. See Cole v.
Harvey/and, LLC, 163 Wn. App. 199,207,258 P.3d 70 (2011) ("But the meaning of a
majority opinion is not found in a dissenting opinion."). In doing so, the majority
overlooks a basic rule of construction for a case without a governing rationale. In those
circumstances, this court must apply the holding of the narrowest concurring opinion.
Davidson v. Hensen, 135 Wash. 2d 112, 128, 954 P.2d 1327 (1998); Kai/in v. Clallam
County, 152 Wash. App. 974, 985-986, 220 P.3d 222 (2009). When the concurring vote is
simply a "result only," the narrowest holding is the outcome of the case. Kai/in, 152 Wn.
App. at 985; Kitsap All. of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hr 'gs. Bd.,
152 Wash. App. 190, 197, 217 P .3d 365 (2009).
The Sibert plurality found there was no error in omitting the identity of the
controlled substance under the facts of the case and affirmed the judgment and sentence.
168 Wash. 2d at 317. Justice Madsen concurred in the result only and did not state a reason
for that result. The primary dissenting opinion (three justices) concluded that the error
2
No. 35696-5-III
State v. Murillo-Dissent
was not harmless and resulted in an unauthorized sentence. 168 Wash. 2d at 318-325
(Alexander, J., dissenting). The solo dissent of Justice Sanders concluded that harmless
error analysis did not apply and the verdict form also violated Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Id. at 326-334 (Sanders, J.,
dissenting).
Here, the Sibert result controls because the relevant facts are largely identical. In
each instance, the verdict forms incorporated the charges referenced in the charging
document. 1 The jury in this case was aware of the controlled substance identified in the
charging document due to the court's preliminary instruction to the panel, as well as the
argument of the parties that Mr. Murillo possessed methamphetamine. In both cases, the
only controlled substance identified in the instructions was methamphetamine, and it was
the only controlled substance identified in the evidence. 2 In addition, this case had the
added feature that Mr. Murillo admitted that he possessed methamphetamine.
Accordingly, the verdict here reflects the same verdict as Sibert-the jury found that the
charge in the information was proved beyond a reasonable doubt. Thus, the result must
be the same.
1
The elements instructions in Sibert referenced the counts "as charged" in the
information, resulting in the jury convicting him "as charged." 168 Wash. 2d at 312-313.
The verdict form here used the same "as charged" language. CP at 97.
2 Sibert, 168 Wash. 2d at 313; CP at 92.
3
I
I
No. 35696-5-111
State v. Murillo-Dissent
Because of both the Sibert result and the fact that the controlled substance was not
a disputed element in this case, the error was completely harmless. The judgment and
sentence should be affirmed.
4
I