State Of Washington v. Alan D. Jenks

Filed
Washington State
Court of Appeals
Division Two
March 3, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52450-3-II
Respondent,
PART PUBLISHED OPINION
v.
ALAN DALE JENKS,
Appellant.
MAXA, C.J. – Alan Jenks appeals his conviction of first degree robbery, his sentence as a
persistent offender to life in prison without the possibility of release under the Persistent
Offender Accountability Act (POAA), RCW 9.94A.570, and the imposition of certain legal
financial obligations (LFOs). The conviction arose from the robbery of a convenience store in
Spokane. Jenks was sentenced as a persistent offender based on prior convictions of second
degree robbery and first degree robbery.
When Jenks committed the current offense and when he was sentenced, former RCW
9.94A.030(32)(o) (2012) (now RCW 9.94A.030(33)) classified second degree robbery as a
“most serious offense,” which meant that Jenks’s prior second degree robbery conviction was a
strike offense under the POAA. But while this appeal was pending, the legislature in 2019
amended RCW 9.94A.030(33) to remove second degree robbery from the list of offenses that
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qualify as a strike offense. LAWS OF 2019, ch. 187 § 1. Jenks argues that the current version of
RCW 9.94A.030(33) applies on appeal, and therefore his sentence as a persistent offender must
be vacated.
We hold that the 2019 amendment to RCW 9.94A.030(33) removing second degree
robbery from the list of offenses that qualify as strike offenses under the POAA does not apply to
invalidate Jenks’s sentence. In the unpublished portion of this opinion, we address and reject
Jenks’s remaining arguments regarding his conviction and sentence. However, we hold that the
criminal filing fee and DNA collection fee imposed as LFOs must be reconsidered in light of the
2018 amendments to the LFO statutes.
Accordingly, we affirm Jenks’s conviction and sentence to life in prison without the
possibility of release, but we remand for the trial court to consider imposition of the criminal
filing fee and DNA collection fee under the currently applicable statutes.
FACTS
A jury found Jenks guilty of first degree robbery that occurred on December 8, 2014.
Sentencing took place on June 22, 2017. The State presented certified copies of the judgment
and sentence for Jenks’s 2004 conviction of second degree robbery and his 2011 conviction for
first degree robbery.
The trial court found that Jenks’s current conviction was a “most serious offense” and
that Jenks had been convicted on two separate occasions of most serious felonies. Clerk’s Papers
(CP) at 113. The court further found that Jenks’s prior first degree robbery and second degree
robbery convictions required that he be sentenced as a persistent offender under RCW
9.94A.570. As a result, the court sentenced Jenks to a term of life in prison without the
possibility of release. Jenks appeals his sentence.
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ANALYSIS
Jenks argues that the 2019 amendment to RCW 9.94A.030(33) that removed second
degree robbery from the list of offenses that qualify as strike offenses under the POAA should be
applied on appeal to invalidate his sentence as a persistent offender to life in prison without the
possibility of release. We disagree.
A. DEFINITION OF “MOST SERIOUS OFFENSE”
Under RCW 9.94A.570, a “persistent offender” must be sentenced to total confinement
for life without the possibility of release. RCW 9.94A.030(38)(a)1 defines “persistent offender”
to include someone who has been convicted of a “most serious offense” and who previously has
been convicted at least two separate times for most serious offenses. RCW 9.94A.030(33)
defines “most serious offense” to include all class A felonies and a number of other listed
felonies.
In 2014, when Jenks committed the offense for which he was convicted and from which
he appeals, former RCW 9.94A.030(32)(o) included second degree robbery on the list of most
serious offenses. The trial court sentenced Jenks as a persistent offender in 2017 based in part on
his prior second degree robbery conviction under this statute.
But in 2019, the legislature amended RCW 9.94A.030(33) by removing second degree
robbery from that list. LAWS OF 2019, ch. 187, § 1. This amendment became effective on July
28, 2019. LAWS OF 2019, at ii.
1
At the time Jenks committed the offense at issue here, this definition was contained in former
RCW 9.94A.030(37)(a) (2012).
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B. EFFECT OF 2019 AMENDMENT TO RCW 9.94A.030(33)
The question here is whether we must review Jenks’s sentence under the law in effect at
the time Jenks committed his current offense or under the law in effect at the time we decide his
appeal. We conclude that RCW 9.94A.345 and RCW 10.01.040 both require Jenks to be
sentenced under the law in effect when he committed the offense.
1. Legal Principles
The general rule is that a defendant’s sentence is determined based on the law in effect at
the time the defendant committed the crime for which he is being sentenced. State v. Medina,
180 Wn.2d 282, 287, 324 P.3d 682 (2014); State v. Ross, 152 Wn.2d 220, 236-37, 95 P.3d 1225(2004). This rule derives from two sources: (1) RCW 9.94A.345, a provision of the Sentencing
Reform Act of 1981 (SRA), chapter 9.94A RCW; and (2) RCW 10.01.040, the general saving
statute.
First, RCW 9.94A.345 states, “Any sentence imposed under this chapter [the SRA] shall
be determined in accordance with the law in effect when the current offense was committed.”
The POAA is part of the SRA. See RCW 9.94A.570; State v. Knippling, 166 Wn.2d 93, 98, 206
P.3d 332 (2009). Based on RCW 9.94A.345, the Supreme Court repeatedly has stated that “a
defendant must be sentenced in accordance with the law in effect at the time of his or her
offense.” Medina, 180 Wn.2d at 287; see also In re Pers. Restraint of Carrier, 173 Wn.2d 791,
809, 272 P.3d 209 (2012); State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004).
Second, RCW 10.01.040, the general saving statute, states:
No offense committed and no penalty or forfeiture incurred previous to the time
when any statutory provision shall be repealed, whether such repeal be express or
implied, shall be affected by such repeal, unless a contrary intention is expressly
declared in the repealing act . . . . Whenever any criminal or penal statute shall be
amended or repealed, all offenses committed or penalties or forfeitures incurred
while it was in force shall be punished or enforced as if it were in force,
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notwithstanding such amendment or repeal, unless a contrary intention is
expressly declared in the amendatory or repealing act, and every such amendatory
or repealing statute shall be so construed as to save all criminal and penal
proceedings, and proceedings to recover forfeitures, pending at the time of its
enactment, unless a contrary intention is expressly declared therein.
(Emphasis added.) Under the saving statute, “courts must sentence a defendant in accordance
with the law in effect on the date he or she committed the crime.” Ross, 152 Wn.2d at 236-37.
Here, it is undisputed that former RCW 9.94A.030(32)(o) – listing second degree robbery
as a most serious offense – was in effect at the time Jenks committed his current offense. And
the 2019 amendment did not express an intent that it would apply to pending prosecutions for
offenses committed before its effective date. Therefore, both RCW 9.94A.345 and RCW
10.01.040 require that Jenks be sentenced based on the former version of RCW 9.94A.030(33)
rather than based on the 2019 amendment to RCW 9.94A.030(33) unless those statutes are
inapplicable or some exception applies under the facts of this case.
2. Jenks’s Attempts to Avoid RCW 9.94A.345 and RCW 10.01.040
Jenks makes several arguments in an attempt to avoid application of the rule established
by RCW 9.94A.345 and RCW 10.01.040. We reject these arguments.
a. Effect of Pending Appeal under Ramirez
Jenks argues that State v. Ramirez, 191 Wn.2d 732, 749, 426 P.3d 714 (2018), establishes
that the 2019 amendment to RCW 9.94A.030(33) applies to his sentence because the amendment
became effective while his case was pending on direct appeal. We disagree.
In Ramirez, the Supreme Court addressed whether the 2018 legislative amendments to
the LFO statutes applied to a case pending on direct appeal. 191 Wn.2d at 747-49. The court
held that the amendments to the LFO statutes applied prospectively to Ramirez because they
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“pertain to costs imposed on criminal defendants following conviction, and Ramirez’s case was
pending on direct review and thus not final when the amendments were enacted.” Id. at 747.
The defendant in Ramirez appealed the trial court’s imposition of discretionary LFOs,
arguing that the court had failed to make an adequate inquiry into his ability to pay. Id. at 736-
37. The Supreme Court concluded that the trial court had erred in imposing the LFOs without an
adequate inquiry, which normally would have entitled the defendant to resentencing. Id. at 746.
However, while the appeal was pending the legislature enacted amendments to the LFO statures
that prohibited the imposition of discretionary LFOs and the criminal filing fee on indigent
defendants. Id. The defendant argued that these amendments applied to his appeal, and
therefore the Supreme Court should strike the LFOs because he was indigent rather than
remanding for resentencing. Id.
The court relied on State v. Blank, 131 Wn.2d 230, 249, 930 P.2d 1213 (1997), which
applied a statute imposing appellate costs on defendants prospectively to cases on appeal when
the statute was enacted. Ramirez, 191 Wn.2d at 748. The court stated that as in Blank, the 2018
LFO amendments “concern the court’s ability to impose costs on a criminal defendant following
conviction” and Ramirez’s case was on appeal as a matter of right when the amendments became
effective. Id. at 749. The court concluded that “[b]ecause [the LFO] amendments pertain to
costs imposed upon conviction and Ramirez’s case was not yet final when the amendments were
enacted, Ramirez is entitled to benefit from this statutory change.” Id.
Jenks suggests that Ramirez adapted a rule of prospective application of statutory
amendments to all sentences in cases pending on direct appeal. However, the court in Ramirez
clearly limited its holding to “costs imposed on criminal defendants following conviction.” Id. at
747. The court did not state a rule of general application to all sentences. Further, the court did
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not discuss or even reference RCW 9.94A.345 or RCW 10.01.040. This omission demonstrates
that the court was adopting a rule that applied only to LFOs.
We conclude that Ramirez does not support Jenks’s argument that the 2019 amendment
to RCW 9.94A.030(33) must be applied prospectively to his sentence.
b. Heath and Wiley
Jenks argues that under State v. Heath, 85 Wn.2d 196, 532 P.2d 621 (1975), and State v.
Wiley, 124 Wn.2d 679, 880 P.2d 983 (1994), a legislative reduction in the penalty for a crime
must be applied retroactively. We disagree.
In Heath, the defendant was found to be a habitual traffic offender and his license to
drive was revoked under the Habitual Traffic Offenders Act, RCW 46.65.060. 85 Wn.2d at 197.
A year later, the Act was amended to allow a revocation order to be stayed if the offenses were
the result of alcoholism. Id. The trial court then stayed the revocation order based on the
amendment. Id. The Supreme Court held that the amendment applied retroactively because it
essentially reduced the penalty for a crime. Id. at 198. “When this is so, the legislature is
presumed to have determined that the new penalty is adequate and that no purpose would be
served by imposing the older, harsher one.” Id.However, we conclude that the rule stated in Heath is inapplicable here. First, Heath is a
civil case, not a criminal case, and did not involve a criminal sentence. Second, the Supreme
Court in Ross subsequently stated that Heath did not implicate RCW 10.01.040 because Heath
involved a civil driver’s license revocation. Ross, 152 Wn.2d at 239. And other courts have
noted that Heath is not controlling regarding the retroactivity of sentencing statutes because the
court did not address the effect of RCW 10.01.040. State v. Toney, 103 Wn. App. 862, 865, 14
P.3d 826 (2000); State v. Kane, 101 Wn. App. 607, 615-16, 5 P.3d 741 (2000).
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In Wiley, the defendant contested his offender score. The trial court used his multiple
convictions of felony larceny, which at that time involved stealing property valued at more than
$75, in calculating the offender score. 124 Wn.2d at 680-81. Subsequent statutory amendments
reclassified theft and made it a gross misdemeanor to steal property valued at less than $250. Id.
at 681. The question was whether the trial court erred by determining that the prior convictions
constituted felonies instead of misdemeanors. Id. at 682.
The Supreme Court held that when a statutory amendment merely changes the elements
of a crime – in that case, the dollar amount element – the original classification of the crime must
be used in calculating the offender score. Id. at 685-86. However, the court stated that “the
reclassification of an entire crime to a lower level of punishment does apply retroactively to the
calculation of an offender score.” Id. at 682. The court stated,
When the Legislature modifies the elements of a crime, it refines its description of the
behavior that constitutes the crime. This does not make defendants convicted of the
earlier crime any less culpable; instead, it clarifies the evidence required to prove the
crime.
On the other hand, when the Legislature downgrades an entire crime, it has judged the
specific criminal conduct less culpable. By reclassifying a crime without substantially
altering its elements, the Legislature concludes the criminal conduct at issue deserves
more lenient treatment. The reclassification of a crime is no mere refinement of
elements, but rather a fundamental reappraisal of the value of punishment. It is therefore
highly relevant to a sentencing judge’s estimation of a defendant’s overall culpability and
dangerousness.
Id. at 687-88.
Jenks argues that the removal of second degree robbery from the list of most serious
offenses essentially was a reclassification of that crime that should be applied retroactively.
However, we conclude that Wiley is inapplicable here. First, as with Heath, Wiley was decided
long before the enactment of RCW 9.94A.345, which now unequivocally states that a sentence
must be imposed under the law in effect when the offense was committed. Second, as with
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Heath, the Supreme Court in Ross noted that Wiley did not address the effect of RCW 10.01.040.
Ross, 152 Wn.2d at 239.
We conclude that Heath and Wiley do not support Jenks’s argument that the 2019
amendment to RCW 9.94A.030(33) must be applied retroactively to invalidate his sentence.
c. Applicability of RCW 9.94A.345
Jenks argues that RCW 9.94A.345 does not control because that statute applies only to
offender score calculations and eligibility for sentencing alternatives. We disagree.
Jenks relies on the legislature’s express statement of intent when enacting RCW
9.94A.345:
[RCW 9.94A.345] is intended to cure any ambiguity that might have led to the
Washington supreme court’s decision in State v. Cruz, Cause No. 67147-8
(October 7, 1999). A decision as to whether a prior conviction shall be included
in an individual’s offender score should be determined by the law in effect on the
day the current offense was committed. [RCW 9.94A.345] is also intended to
clarify the applicability of statutes creating new sentencing alternatives or
modifying the availability of existing alternatives.
LAWS OF 2000, ch. 26, § 1. Jenks claims that this statement of intent shows that the legislature
did not intend for RCW 9.94A.345 to apply to a change in statutes that would affect an
offender’s status as a persistent offender.
However, the plain language of RCW 9.94A.345 applies broadly to all sentences: “Any
sentence imposed under [the SRA] shall be determined in accordance with the law in effect when
the current offense was committed.” (Emphasis added.) Here, the general statement of
legislative intent does not override the plain statutory language.
In addition, courts repeatedly have cited RCW 9.94A.345 in reference to sentencing
issues other than offender score calculation and the availability of sentencing alternatives. See In
re Pers. Restraint of Gronquist, 192 Wn.2d 309, 314 n.2, 429 P.3d 804 (2018) (community
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custody definition); see also State v. Coombes, 191 Wn. App. 241, 250, 361 P.3d 270 (2015)
(community custody condition); State v. Munoz-Rivera, 190 Wn. App. 870, 891 n.3, 361 P.3d
182 (2015) (“crime-related prohibitions” conditions); Rivard v. State, 168 Wn.2d 775, 781 n.3,
231 P.3d 186 (2010) (vehicular homicide classification).
We conclude that RCW 9.94A.345 applies to POAA sentences and precludes the
application of the 2019 amendment to RCW 9.94A.030(33) to this appeal.
d. Applicability of RCW 10.01.040
Jenks argues that RCW 10.01.040 does not control because the Supreme Court has
recognized an exception to the saving statute when the legislature downgrades the culpability for
an offense. We disagree.
RCW 9.94A.030(33) involves the punishment for a criminal offense. As a result, it is
subject to the saving statute. Kane, 101 Wn. App. at 613; RCW 10.01.040.
Jenks suggests that Heath, 85 Wn.2d at 198, and Wiley, 124 Wn.2d at 687-88, support an
exception to RCW 10.01.040. But as noted above, the court in those cases did not even address
RCW 10.01.040. Jenks notes that the court referenced these cases in Ross, a case that involved
the application of RCW 10.01.040. But Ross expressly distinguished and did not apply Heath
and Wiley because those cases did not address RCW 10.01.040. Ross, 152 Wn.2d at 239-40.
Jenks proffers no other argument that RCW 10.01.040 is inapplicable here. And the 2019
amendment to RCW 9.94A.030(33) does not express an intent that it would apply to pending
prosecutions for crimes committed before its effective date.
RCW 10.01.040 “creates an easily administered, bright-line rule.” Kane, 101 Wn. App.
at 618. In addition, “there is nothing fundamentally unfair in sentencing offenders in accordance
with the law they presumably were aware of at the time they committed their offenses.” Id.
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We conclude that RCW 10.01.040 applies to POAA sentences, and precludes the
application of the 2019 amendment to RCW 9.94A.030(33) to this appeal.
e. Remedial Nature of Amendment
Jenks argues that the 2019 amendment to RCW 9.94.030(3) must be applied retroactively
because it is a remedial amendment. We disagree.
Generally, a statutory amendment that is curative or remedial will be applied
retroactively even without language showing legislative intent for retroactive application. Kane,
101 Wn. App. at 613. The Supreme Court in Heath stated that a remedial statute is presumed to
apply retroactively. 85 Wn.2d at 198. However, this general rule does not apply when a statute
is subject to RCW 10.01.040. Kane, 101 Wn. App. at 613. “[A]bsent language indicating a
contrary intent, an amendment to a penal statute – even a patently remedial one – must apply
prospectively under RCW 10.01.040.” State v. McCarthy, 112 Wn. App. 231, 237, 48 P.3d 1014(2002); see also Kane, 101 Wn. App. at 615.
Here, RCW 9.94A.030(33) is a penal statute because it involves the punishment for a
criminal offense. Therefore, RCW 10.01.040 requires that the version of RCW 9.94A.030(33) in
effect when Jenks committed his current offense be applied at sentencing.
We conclude that the 2019 amendment to RCW 9.94A.030(33) cannot be applied to this
appeal regardless of whether the amendment is remedial.
CONCLUSION
Both RCW 9.94A.345 and RCW 10.01.040 require that Jenks be sentenced based on the
version of former RCW 9.94A.030(33) in effect at the time Jenks committed his current crime
rather than based on the 2019 amendment to RCW 9.94A.030(33). At the time Jenks committed
his current offense, second degree burglary was a most serious offense that constituted a strike
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under the POAA. Therefore, the trial court did not err in sentencing Jenks to confinement for
life without the possibility of release.
We affirm Jenks’s conviction and sentence, but we remand for the trial court to consider
the imposition of the criminal filing fee and DNA collection fee under the currently applicable
statutes.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
In the unpublished portion of this opinion, we address and reject Jenks’s remaining
arguments. We hold that that (1) Jenks cannot raise on appeal his argument regarding the
testimony of a police criminal intelligence analyst because he did not object to that testimony in
the trial court; (2) the trial court did not err in giving a jury instruction regarding expert witness
testimony; (3) the trial court did not err in excluding Jenks’s proffered “other suspect” evidence;
(4) the trial court did not err in excluding the impeachment evidence regarding the store clerk;
(5) Jenks cannot raise on appeal his argument that certain Facebook photographs were not
authenticated because he did not object on that basis in the trial court; (6) the trial court did not
err in declining to give a curative instruction regarding the criminal intelligence analyst’s
stricken testimony; (7) although the trial court’s communication with an unidentified Court of
Appeals judge was improper, that conduct did not violate Jenks’s due process right to a fair trial;
(8) Jenks is not entitled to relief under the cumulative error doctrine because he has failed to
show multiple errors affecting his conviction; (9) the trial court did not violate Jenks’s right to
equal protection, a jury trial, or due process by finding by a preponderance of the evidence that
Jenks had prior strike offenses under the POAA; and (10) the criminal filing fee and DNA
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collection fee imposed as LFOs must be reconsidered in light of the 2018 amendments to the
LFO statutes.
ADDITIONAL FACTS
Initial Incident
On December 8, 2014, a person robbed a Zip Trip Store in Spokane. Jeffrey Davila was
the store clerk working at the time of the robbery.
Davila provided a detailed description of the male suspect to the police, including a
teardrop tattoo under the suspect’s right eye and a mole under his left eye. Officers also obtained
the surveillance video of the incident from the store. Officer Thomas Michaud, a criminal
intelligence analyst for the Spokane Police Department, ran Davila’s description of the suspect
through internal regional databases. Jenks was the only match for his search.
After searching Jenks’s residence pursuant to a search warrant, the State charged Jenks
with first degree robbery.
Pretrial Evidence Rulings
Before trial, Jenks filed a motion to prohibit any law enforcement officers from testifying
that Jenks was the person in the surveillance video. Jenks argued that the officers were in no
better position than the jury in making that determination. The trial court granted Jenks’s
motion. Specifically, the court ruled that it would not “provide for an officer to say the person in
the video is the defendant.” Report of Proceedings (RP) (Jan. 9, 2017) at 15-16.
Jenks also sought to present evidence of the robbery two weeks earlier of a Jitters Java
coffee shop, which was located near the Zip Trip store, to suggest that another person may have
committed the Zip Trip robbery. Jenks argued that the evidence was admissible because the two
robberies were close in time and location and because the Jitters Java robber was similar in size
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to the Zip Trip robber and made similar comments to the store clerk. The court prohibited any
reference to the Jitters Java robbery because there was a lack of nexus between the two crimes.
Finally, Jenks argued that the trial court should allow him to cross-examine Davila
regarding Davila’s prior occupation as a police officer. According to the State, Davila resigned
from law enforcement in 2006 after being disciplined for not properly filling out jail booking
reports. The court declined to allow Jenks to cross-examine Davila on the issue, stating that
Davila’s resignation was too distant in time and that Davila was never charged with a crime.
Trial
At trial, Michaud testified that his work consisted of reviewing incident reports, looking
for patterns of crime, and identifying suspects. Regarding the Zip Trip robbery, Michaud stated
that he used Davila’s description of the suspect to conduct a search of the police department’s
internal regional databases. Specifically, he used the suspect’s height as well as the teardrop
tattoo and the mole. Jenks was the only match for his search. The search generated a
photograph of Jenks, which was admitted into evidence. Jenks did not object to any of this
testimony.
Michaud then verified his search result by viewing the surveillance video and locating a
Facebook account belonging to Jenks. He reviewed photographs on the account that he believed
were of Jenks. Michaud also located a Facebook account linked to Jenks’s account that belonged
to a person that appeared to be Jenks’s girlfriend. Michaud testified that there were photographs
of Jenks and his girlfriend on that account. Jenks did not object to any of this testimony.
Michaud further testified that in one of the photographs, the person he believed to be
Jenks’s girlfriend was wearing a Chicago Bulls hat that resembled the hat depicted in the
surveillance video. Jenks objected and moved to strike the testimony, and the trial court granted
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the motion to strike. Jenks asked for “an instruction for the jury,” but the court stated that it
would address the issue later. 2 RP at 228. Later, the court explained that it typically did not
give curative instructions because they serve to highlight the stricken testimony. Following that
explanation, Jenks did not object or renew his request for an instruction. However, the court did
give a standard jury instruction stating that the jury should not discuss any evidence that had
been ruled inadmissible.
Michaud identified two photographs of the person who he believed was Jenks’s girlfriend
that he obtained from her Facebook account. The State moved to admit these photographs.
Jenks objected only on the basis that he did not know how Michaud knew that the woman was
Jenks’s girlfriend. The trial court treated Jenks’s comment as a standing objection but otherwise
admitted the photographs. Jenks did not object to the photographs based on a lack of
authentication.
Conference on Jury Instructions
After both sides rested, the trial court held a conference on jury instructions. During the
conference, the court asked whether an expert witness instruction should be given. The State
argued for the instruction, citing Michaud’s “specialized training in crime analysis and more than
just general law enforcement training.” 2 RP at 316. Jenks objected to the instruction on the
ground that Michaud was not qualified to be an expert.
The State also proposed a lesser included offense instruction for second degree robbery.
Jenks objected to the instruction and the trial court asked the State whether there was any
authority for giving the instruction. The State asked for a few minutes to do research on the
issue.
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After a brief recess, the trial court stated, “Since I was waiting around, I picked up the
phone and called one of my colleagues at [the Court of Appeals] Division III, not going to say
who it was, I’ll just say it’s a prosecutor.” 2 RP at 322.
The court proceeded to inform the parties of its decisions on the proposed jury
instructions, including the expert witness instruction and the lesser included offense instruction.
The trial court decided to include an expert witness instruction, ruling that Michaud should be
considered an expert. Jenks did not raise any objection based on the fact that the State had not
disclosed Michaud as an expert in discovery.
Regarding the lesser included offense instruction, the court stated, “After just taking a
look at a little bit of authority and chatting with Division III, I think it’s appropriate to include it,
the lesser included.” 2 RP at 325. After hearing that the trial court had communicated with a
Court of Appeals judge, Jenks did not ask the court to recuse itself or move for a new trial.
Conviction and Sentence
The jury found Jenks guilty of first degree robbery. The trial court, not the jury, made the
determination that Jenks’s two prior convictions were “most serious offenses” that required
Jenks to be sentenced as a persistent offender.
The trial court sentenced Jenks to a term of life in prison without the possibility of release
as a persistent offender for the first degree robbery conviction. The court also imposed two
LFOs: a $200 criminal filing fee and a $100 DNA collection fee. The court did not make any
finding of indigence for purposes of imposing LFOs. However, the court later entered an order
of indigence for purposes of Jenks’s appeal.
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A. ADMISSION OF MICHAUD’S TESTIMONY
Jenks argues on various grounds that the trial court erred by admitting Michaud’s
testimony about his database search. We decline to consider this argument because Jenks did not
object to Michaud’s testimony at trial.
Jenks did not object at trial to the testimony of Michaud that he now challenges on
appeal. We generally do not review evidentiary issues when the defendant did not object to the
evidence in the trial court. See ER 103(a)(1); RAP 2.5(a); State v. Cham, 165 Wn. App. 438,
450-51, 267 P.3d 528 (2011). However, a claim of error may be raised for the first time on
appeal if it involves a manifest error affecting a constitutional right. RAP 2.5(a)(3).
First, Jenks appears to argue that any expert testimony provided by Michaud should have
been excluded because the State did not disclose Michaud as an expert in discovery as required
in CrR 4.7(a)(2)(ii). As Jenks notes, CrR 4.7(a)(2)(ii) requires the State to disclose in discovery
information regarding expert witnesses who will testify at trial. If the failure to comply with a
discovery rule is brought to the trial court’s attention “during the course of the proceedings,” the
court can impose sanctions on the offending party. CrR 4.7(h)(7)(i).
But Jenks did not raise this issue during the course of the trial proceedings, so the trial
court never had an opportunity to consider sanctions. And CrR 4.7(a)(2)(ii) does not present a
constitutional issue that invokes RAP 2.5(a)(3). Jenks argues that the failure to disclose an
expert can violate a defendant’s constitutional right to a fair trial, citing State v. Blackwell, 120
Wn.2d 822, 826, 845 P.2d 1017 (1993). However, Blackwell involved the State’s failure to
disclose evidence favorable to the defendant and material either to guilt or to punishment under
CrR 4.7(a)(3). 120 Wn.2d at 826. Blackwell did not hold that the failure to disclose an expert
witness implicates a defendant’s constitutional rights. The failure to identify Michaud as an
17
No. 52450-3-II
expert witness here did not rise to the level of a constitutional violation and did not deprive Jenks
of a fair trial.
Second, Jenks appears to argue that Michaud could not give an opinion regarding the
results of his database search because he did not qualify as an expert. But Jenks never objected
to Michaud’s testimony about his database search on this ground. And the admission of expert
testimony is not a constitutional issue that invokes RAP 2.5(a)(3). State v. Barr, 123 Wn. App.
373, 380, 98 P.3d 518 (2004).
Third, Jenks appears to argue that Michaud’s testimony violated the trial court’s pretrial
ruling precluding police officers from testifying that Jenks was the person in the surveillance
video. Jenks did not object to Michaud’s testimony on this ground. Jenks argues that he had a
standing objection based on the court’s ruling. But where evidence has been admitted
notwithstanding the trial court’s prior exclusionary ruling, the complaining party is required to
object in order to preserve the error. State v. Stein, 140 Wn. App. 43, 68, 165 P.3d 16 (2007).
Otherwise, “[a] party so situated could simply lie back, not allowing the trial court to avoid the
potential prejudice, gamble on the verdict, and then seek a new trial on appeal.” State v.
Sullivan, 69 Wn. App. 167, 172, 847 P.2d 953 (1993).
Because Jenks failed to object to Michaud’s testimony, he did not preserve the issue for
appeal. Therefore, we decline to consider Jenks’s challenge to Michaud’s testimony.
B. EXPERT WITNESS INSTRUCTION
Jenks argues that the trial court erred by instructing the jury on expert testimony despite
his objection because Michaud was not qualified to offer expert testimony. We disagree.
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No. 52450-3-II
1. Legal Principles
In general, we review a trial court’s choice of jury instructions for an abuse of discretion.
State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). Jury instructions are
appropriate if they are supported by substantial evidence, allow a defendant to argue his or her
theories of the case, are not misleading, and when read as a whole properly state the applicable
law. State v. Anderson, 3 Wn. App. 2d 67, 69-70, 413 P.3d 1065 (2018).
ER 702 governs the admissibility of expert testimony at trial and provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
Accordingly, under ER 702, expert testimony is generally admissible if (1) the expert is
qualified; (2) the expert relies on generally accepted theories in the scientific community; and (3)
the testimony would be helpful to the trier of fact. State v. Morales, 196 Wn. App. 106, 122–23,
383 P.3d 539 (2016). Practical experience may be sufficient to qualify a witness as an expert.
State v. Weaville, 162 Wn. App. 801, 824, 256 P.3d 426 (2011).
We review a trial court’s decision to admit expert opinion testimony under ER 702 for an
abuse of discretion. State v. Green, 182 Wn. App. 133, 146, 328 P.3d 988 (2014).
2. Michaud’s Expertise
Michaud worked as a criminal intelligence analyst for the Spokane Police Department.
He had a master’s degree in criminal justice from Washington State University. He testified that
he “probably had 500 hours of law enforcement training in different subjects such as criminal
intelligence analysis, [and] criminal investigative analysis” and he was also “trained by the FBI
in open source intelligence.” 2 RP at 220.
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No. 52450-3-II
Michaud provided support for major crime units and, at the time of trial, had worked in
that capacity for about seven years. He stated that his job required him to review incident reports
or calls for service, look for patterns of crime, identify suspects, and find information that
investigators or patrol officers might not be able to find. At trial, Michaud testified to his
process of gathering information, identifying Jenks as the likely suspect of the Zip Trip robbery,
and corroborating that result. Michaud testified that he was trained to “trust but verify.” 2 RP at
224.
Based on his experience, training, and job responsibilities, we conclude that Michaud was
qualified to offer expert testimony. The simplicity of his search in this case – a search that
produced one result – does not diminish the expertise and training required for his work. By
gathering information, executing the search, making an identification, and corroborating the
result, Michaud interpreted the data available to him as an expert.
We hold that the trial court did not abuse its discretion in determining that Michaud
offered expert testimony and therefore did not err in giving an expert witness instruction.
C. EXCLUSION OF OTHER SUSPECT EVIDENCE
Jenks argues that the trial court erred by precluding him from presenting evidence
regarding the robbery of the nearby Jitters Java coffee shop two weeks before the Zip Trip
robbery. We disagree.
1. Legal Principles
Other suspect evidence is relevant if that evidence tends to connect someone other than
the defendant with the charged crime. State v. Franklin, 180 Wn.2d 371, 381, 325 P.3d 159(2014). Before the trial court may admit other suspect evidence, “some combination of facts or
circumstances must point to a nonspeculative link between the other suspect and the charged
20
No. 52450-3-II
crime.” Id. The evidence must have a “logical connection to the crime.” Id. However,
“[e]vidence establishing nothing more than suspicion that another person might have committed
the crime [i]s inadmissible.” Id. at 380.
The question for admissibility of other suspect evidence is whether the proffered
evidence tends to create a reasonable doubt regarding the defendant’s guilt; the evidence need
not establish the other suspect’s guilt beyond a reasonable doubt. Id. at 381. In addition, the
focus must be on the probative value of the other suspect evidence, not on the strength of the
State’s case. Id. at 378-79. Other suspect evidence can have a logical connection to the issues in
the case even if the State’s evidence strongly supports the defendant’s guilt. Id. at 382.
We review a trial court’s exclusion of other suspect evidence for an abuse of discretion.
State v. Wade, 186 Wn. App. 749, 765, 346 P.3d 838 (2015).
2. Other Suspect Analysis
At trial, Jenks sought to present evidence that the person who committed the Jitters Java
robbery also may have committed the Zip Trip robbery. The State informed the court that the
Jitters Java robbery occurred a week or two before the Zip Trip robbery, and that the coffee stand
was a very short distance from the Zip Trip store. Law enforcement was unable to determine
whether Jenks or someone else committed that robbery.
As an offer of proof, defense counsel represented that the Jitters Java robber was of
similar height to the Zip Trip robber, both were light skinned, both wore dark clothes, and both
made similar statements about the money not belonging to the store clerk and not worth fighting
for. However, the Jitters Java robber wore a ski mask so his face could not be identified. Law
enforcement did not believe that there was sufficient evidence to charge Jenks with the Jitters
21
No. 52450-3-II
Java robbery. And nothing associated with the Jitters Java robbery was found in the search of
Jenks’s residence.
Jenks cites to State v. Ortuno-Perez, 196 Wn. App. 771, 385 P.3d 218 (2016). In that
case, the trial court excluded the defendant’s evidence that another person who was present at the
scene may have committed the charged offense. Id. at 775. The evidence would have shown the
other suspect’s motive (a gang clash), his opportunity (he was present at the murder scene and in
close proximity to defendant at the time of the crime), and his means (he was armed with a
handgun). Id. at 791. On appeal, the court held that defendant’s evidence was plainly relevant to
the question of identity and was of a type that would support a reasonable doubt as to
defendant’s guilt. Id. at 791-92.
Here, Jenks’s proffered evidence regarding the Jitters Java robbery pointed to another
suspect that police had yet to identify. The timing and location of the other robbery and
purported similarities between the suspect in the Jitters robbery and the Zip Trip robbery would
not have established the other suspect’s motive, opportunity, or means. In addition, the method
of committing the robberies was not particularly similar. We conclude that Jenks’s evidence was
insufficient under the circumstances to establish the necessary connection between the two
robberies and create a reasonable doubt as to Jenks’s guilt. At best, Jenks’s evidence established
the mere suspicion that another person might have committed the Zip Trip robbery. Such
evidence is speculative and is inadmissible. Franklin, 180 Wn.2d at 380.
We hold that the trial court did not abuse its discretion refusing to allow Jenks to present
evidence regarding the Jitters Java robbery.
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No. 52450-3-II
D. EXCLUSION OF IMPEACHMENT EVIDENCE
Jenks argues that the trial court erred by refusing to allow him to cross-examine store
clerk Davila, the only eyewitness to the robbery, regarding his resignation from his position as a
police officer years earlier. We disagree.
1. Legal Principles
Under 608(b), a party may – in the discretion of the trial court – cross-examine a witness
regarding his or her prior conduct if the conduct is probative of the witness’s truthfulness or
untruthfulness. Conduct involving fraud or deception can be indicative of the witness’s general
disposition with regard to truthfulness and therefore may be admissible under ER 608(b). State
v. Johnson, 90 Wn. App. 54, 71, 950 P.2d 981 (1998). However, even evidence that is probative
of untruthfulness is not admissible under ER 608(b) if it is too remote in time. State v. McSorley,
128 Wn. App. 598, 613-14, 116 P.3d 431 (2005).
We review a trial court’s limitation on the scope of cross-examination for an abuse of
discretion. State v. Lee, 188 Wn.2d 473, 486, 396 P.3d 316 (2017). And ER 608(b) expressly
leaves the scope of cross-examination “in the discretion of the court.” An abuse of discretion
occurs when the trial court’s decision is manifestly unreasonable or is based on untenable
grounds or reasons. Lee, 188 Wn.2d at 486.
2. ER 608(b) Analysis
At trial, Jenks sought to cross-examine Davila as to why he no longer worked as a police
officer. According to the State, Davila worked as a police officer in California from 1996 to
2006. He was “disciplined for not filling out some jail booking reports appropriately”;
specifically, “failing to provide medical information on booking intake forms on an inmate.” 1
RP at 33. This was a policy violation. But there were no criminal charges and not even an
23
No. 52450-3-II
indication that formal discipline was imposed. Davila then resigned; he was not terminated. He
decided that law enforcement was not for him any longer and he moved to Washington with his
family. Jenks offered no further information regarding the reason Davila left law enforcement.
Davila’s resignation from law enforcement was not probative of his truthfulness. There
is no indication that Davila’s policy violation involved dishonesty. There were no criminal
charges and no evidence of any formal discipline. Further, Davila’s conduct took place at least
eight years before the Zip Trip robbery and over 10 years before trial.
Jenks relies on State v. York, 28 Wn. App. 33, 621 P.2d 784 (1980). In that case, the
State’s witness was an undercover investigator who was the only eyewitness to the alleged
crime. Id. at 35. Because the State did not have any other evidence placing defendant at the
scene, the investigator’s “credibility was crucial to the State” and “it was simply a contest
between” him and defendant’s alibi witnesses. Id. at 35. On direct examination, the State
elicited favorable aspects of the investigator’s law enforcement background. Id. at 37. The State
then sought to exclude cross-examination into unfavorable aspects of the investigator’s law
enforcement background. Id. The court found that, “as a matter of fundamental fairness,” the
defense should have been allowed to examine for “negative characteristics of the one most
important witness” because the State sought to introduce the positive characteristics. Id.
But unlike the investigator in York, Davila no longer worked in law enforcement at the
time of the robbery and the State did not seek out testimony from Davila regarding his
background in law enforcement. In addition, the State had at least some other evidence to
corroborate Davila’s testimony: the store surveillance video.
We hold that the trial court did not abuse its discretion in refusing to allow Jenks to cross-
examine Davila regarding his resignation from his position as a police officer.
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No. 52450-3-II
E. AUTHENTICATION OF FACEBOOK PHOTOGRAPHS
Jenks argues that the trial court erroneously admitted two photographs without proper
authentication. We decline to consider this argument because Jenks did not object on that basis
at trial.
As noted above, we generally do not address an evidentiary issue when the appellant did
not object in the trial court. See ER 103(a)(1); RAP 2.5(a); Cham, 165 Wn. App. at 450-51.
And even if the appellant objected to evidence at trial, this court will consider only the specific
grounds for the objection raised in the trial court. See State v. Powell, 166 Wn.2d 73, 82-84, 206
P.3d 321 (2009).
Here, Jenks’s only objection to admission of the photographs was that Michaud had no
way of knowing that the woman depicted in the photographs was Jenks’s girlfriend. Jenks did
not object to the admission of the photographs on the basis that they had not been authenticated
as required in ER 901(1). He also did not object to Michaud’s testimony that he located the
photographs on a Facebook account linked to Jenks’s Facebook account and that the photographs
depicted Jenks and his girlfriend. We also note that whether a photograph depicts a particular
person generally goes to the weight rather than the admissibility of the photograph. See State v.
Tatum, 58 Wn.2d 73, 75-76, 360 P.2d 754 (1961).
Because Jenks did not challenge the authentication of the photographs in the trial court,
we decline to consider the authentication issue at trial.
F. CURATIVE INSTRUCTION REGARDING STRICKEN TESTIMONY
Jenks argues that the trial court abused its discretion by declining to give a curative
instruction after striking Michaud’s testimony comparing the hat depicted in one of the admitted
photos to the hat shown in the Zip Trip surveillance video. We disagree.
25
No. 52450-3-II
A trial court’s ruling on the propriety of a curative instruction is reviewed for abuse of
discretion. State v. Gallagher, 112 Wn. App. 601, 611, 51 P.3d 100 (2002). Although it may be
preferable to give a limiting instruction contemporaneously with the evidence at issue, it is
within the court’s discretion to choose instead to give a limiting instruction at the close of all of
the evidence. Id.On direct examination, the State asked Michaud whether he presented any photos from a
Facebook account linked to Jenks to a detective working on Jenks’s case. Michaud responded,
“Yes. There was a Facebook post or a picture of an associate . . . who I believed to be his
girlfriend at the time with a Chicago Bulls hat that resembled the one that was used or that was
also depicted in the surveillance video. 2 RP at 227-28. Jenks objected and moved to strike the
testimony, and the trial court granted the motion to strike.2 Jenks also asked for an instruction to
the jury, but the court declined.
Jenks cites no authority that the trial court needed to do more than strike Michaud’s
objectionable testimony. He quotes State v. Gresham, in which the court stated that “[o]nce a
criminal defendant requests a limiting instruction, the trial court has a duty to correctly instruct
the jury.” 173 Wn.2d 405, 424-25, 269 P.3d 207 (2012). However, Gresham is limited to the
“context of ER 404(b) limiting instructions.” Id. at 424.
Here, the trial court believed that a curative instruction would serve to highlight the
stricken testimony rather than provide a cure. We conclude that this determination was within
the trial court’s broad discretion. In addition, the court’s concluding instructions to the jurors
stated, “If I have ruled that any evidence is inadmissible, or if I have asked you to disregard any
2
The testimony apparently was objectionable because it arguably violated the trial court’s in
limine order precluding law enforcement officers from testifying that Jenks was the person in the
surveillance video.
26
No. 52450-3-II
evidence, then you must not discuss that evidence during your deliberations or consider it in
reaching your verdict. Do not speculate whether the evidence would have favored one party or
the other.” CP at 52. We conclude that this general instruction was sufficient to cure any
prejudice, if any existed.
We hold that the trial court did not abuse its discretion in denying Jenks’s request for a
curative instruction regarding Michaud’s stricken testimony.
G. TRIAL COURT COMMUNICATION WITH COURT OF APPEALS JUDGE
Jenks argues that the trial court’s ex parte communication with a Court of Appeals judge
regarding a pending case issue violated his due process right to a fair trial.3 We hold that
although the trial court’s communication clearly was improper, it did not violate Jenks’s right to
a fair trial.
1. Failure to Raise Issue in Trial Court
Initially, the State argues that we should decline to address Jenks’s argument regarding
the trial court’s communication with a Court of Appeals judge because Jenks did not raise the
issue in the trial court. The State focuses on the fact that an appearance of fairness claim
generally cannot be raised for the first time on appeal because it is not a constitutional claim.
State v. Blizzard, 195 Wn. App. 717, 725, 381 P.3d 1241 (2016). If Jenks was asserting an
appearance of fairness claim, we would decline to consider it under Blizzard.
However, Jenks expressly states that he is making a constitutional due process claim and
not an appearance of fairness claim. An appellant may be able to raise a constitutional claim for
the first time on appeal under RAP 2.5(a)(3). The State does not argue that Jenks is precluded
3
Because of this issue, this case was transferred from Division III to Division II of the Court of
Appeals.
27
No. 52450-3-II
from raising his due process claim, and in fact does not mention that claim at all. Accordingly,
we address Jenks’s constitutional claim.
2. Ex Parte Communication
The Code of Judicial Conduct (CJC) provides that “[a] judge shall not initiate, permit, or
consider ex parte communications, or consider other communications made to the judge outside
the presence of the parties or their lawyers, concerning a pending or impending matter, before
that judge’s court.” CJC 2.9(A). Comment 5 to CJC 2.9(A) adds that “[a] judge may consult on
pending matters with other judges, or with retired judges who no longer practice law and are
enrolled in a formal judicial mentoring program (such as the Washington Superior Court Judges’
Association Mentor Judge Program)” but “[s]uch consultations must avoid ex parte discussions
of a case . . . with judges who have appellate jurisdiction over the matter.” Id. (emphasis added).
Here, the trial court clearly violated CJC 2.9(A) by communicating with a Court of
Appeals judge regarding a pending issue at trial – whether to give a lesser included offense
instruction. The question is whether this improper communication is grounds for reversal.
3. Due Process Right to a Fair Trial
Jenks expressly states that his claim involves a constitutional due process challenge, not
an appearance of fairness challenge. Due Process “establishes the minimal requirements for a
fair hearing.” Blizzard, 195 Wn. App. at 725. Due process requires that a defendant receive a
fair trial before a fair judge. In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1(2004). “Denial of the constitutional right to a fair tribunal is a structural error that requires
reversal regardless of prejudice.” Blizzard, 195 Wn. App. at 727.
Whether a trial court has violated due process typically focuses on judicial bias. See id.
at 727-28. The question is not whether a judge has an actual, subjective bias. Id. at 727.
28
No. 52450-3-II
Instead, we apply an objective analysis. Id. We ask “whether, as an objective matter, ‘the
average judge in his position is likely to be neutral, or whether there is an unconstitutional
potential for bias.’ ” Id. (quoting Williams v. Pennsylvania, ___ U.S. ___, 136 S. Ct. 1899, 1905,
195 L. Ed. 2d 132 (2016) (internal quotation marks omitted).
In Blizzard, the court noted:
Through our country’s significant history of litigation, only three circumstances
have been found to create unconstitutional judicial bias: (1) when a judge has a
financial interest in the outcome of a case, (2) when a judge previously participated
in a case in an investigative or prosecutorial capacity, and (3) when an individual
with a stake in a case had a significant and disproportionate role in placing a judge
on the case through the campaign process.
Blizzard, 195 Wn. App. at 727-28. A fourth possibility is when the judge has received highly
offensive personal criticism. Id. at 728
4. Analysis
This case does not fall into any of the categories of unconstitutional judicial bias
recognized by the court in Blizzard, 195 Wn. App. at 727-28. Further, the facts that Jenks
identifies do not support a finding of a due process violation here.
First, Jenks argues that having a trial court ask for advice from a Court of Appeals judge
on the same court that will review the case offends the appearance of fairness. But a violation of
the appearance of fairness doctrine does not implicate the constitution. Blizzard, 195 Wn. App.
at 725.
Second, Jenks argues that the trial court’s actions “served to notify Mr. Jenks that the trial
court’s rulings had been insulated or pre-approved by this Court, chilling the right to appeal.”
Br. of Appellant at 39. However, the facts of this case do not demonstrate such a chilling effect.
Jenks filed a timely notice of appeal. The lesser included offense instruction was not even an
29
No. 52450-3-II
issue on appeal because the jury convicted based on the greater offense. And ultimately the
State, not Jenks, moved to transfer the case from Division Three to this court.
Third, Jenks argues that the trial court’s identification of the Court of Appeals judge he
contacted as a former prosecutor added to the appearance of apparent bias. He claims that the
trial court gave observers the impression that he was being advised by a senior prosecutor. Jenks
emphasizes that this impression was confirmed when the court immediately ruled in favor of the
State. But this argument again relates to the appearance of fairness claim, not a constitutional
claim. We conclude that the Court of Appeals judge’s status as a former prosecutor does not
elevate these circumstances to a constitutional violation.
We recognize that there conceivably might be circumstances where communicating with
a Court of Appeals judge could violate due process. But here, the record is silent as to what
actually was said in the communication and the extent to which the communication affected the
trial court’s decision-making. And as noted above, the trial court’s inclusion of a lesser included
offense instruction, the issue the trial court apparently discussed with the Court of Appeals judge,
ultimately was immaterial because Jenks was convicted om the greater offense.
We hold that the trial court’s communication with a Court of Appeals judge regarding a
pending issue at trial did not violate Jenks’s constitutional right to a fair trial.
H. CUMULATIVE EFFECT OF TRIAL COURT’S ERRORS
Jenks asserts that he is entitled to relief under the cumulative error doctrine because the
combined effect of the alleged errors denied him a fair trial. We disagree.
Under the cumulative error doctrine, the court may reverse a defendant’s conviction
when the combined effect of trial errors effectively denies the defendant his or her right to a fair
trial, even if each error alone would be harmless. State v. Lazcano, 188 Wn. App. 338, 370, 354
30
No. 52450-3-II
P.3d 233 (2015). The defendant bears the burden to show multiple trial errors and that the
accumulated prejudice from those errors affected the outcome of his or her trial. Id.Because Jenks has failed to show multiple errors affecting his conviction, we hold that he
failed to show that the accumulated prejudice of multiple trial errors affected the outcome of his
trial.
I. TRIAL COURT FINDING PRIOR STRIKE OFFENSE
Jenks argues that his POAA sentence is invalid because having the trial court find by a
preponderance of the evidence that he had prior strike offenses under the POAA rather than
having the jury find that fact beyond a reasonable doubt violates (1) equal protection and (2) the
right to a jury trial and due process. We disagree.
1. Equal Protection
Jenks argues that having the trial court find by a preponderance of the evidence that he
had prior strike offenses under the POAA when prior convictions that are elements of a crime
must be proved to the jury beyond a reasonable doubt violates the equal protection clause of the
Fourteenth Amendment of the United States Constitution.
This court previously held that the State has a rational basis for treating prior convictions
under the POAA differently than prior convictions that are elements of a crime, and that having
the trial court determine the existence of strike offenses does not violate equal protection. State
v. McKague, 159 Wn. App. 489, 517-19, 246 P.3d 558, affirmed on other grounds by 172 Wn.2d
802 (2011). Both Division One and Division Three of this court have agreed. State v. Williams,
156 Wn. App. 482, 496-98, 234 P.3d 1174 (2010); State v. Langstead, 155 Wn. App. 448, 453-
57, 228 P.3d 799 (2010). Jenks has not presented any compelling reason to disregard this
authority.
31
No. 52450-3-II
We hold that having the trial court find by a preponderance of the evidence that he had
prior strike offenses under the POAA did not violate Jenks’s right to equal protection.
2. Right to Jury/Due Process
Jenks claims that he has a constitutional right to have a jury find beyond a reasonable
doubt that he had prior strike offenses under the POAA. But this claim is inconsistent with
United States Supreme Court and Washington Supreme Court precedent.
In Apprendi v. New Jersey, the United States Supreme Court held that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530
U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (emphasis added). Whether a
defendant had a prior strike offense under the POAA clearly is a fact of a prior conviction.
Jenks argues that subsequent developments in United States Supreme Court jurisprudence
have eroded Apprendi’s prior conviction exception. But our Supreme Court has stated that,
based on Apprendi, “We have consistently held that the existence of a prior conviction need not
be presented to a jury and proved beyond a reasonable doubt.” State v. Olsen, 180 Wn.2d 468,
473, 325 P.2d 187 (2014). And our Supreme Court has expressly stated that the “argument that
recent United States Supreme Court precedent dictates that his prior convictions must be proved
to a jury beyond a reasonable doubt is unsupported.” State v. Witherspoon, 180 Wn.2d 875, 892,
329 P.3d 888 (2014).
We hold that having the trial court find by a preponderance of the evidence that he had
prior strike offenses under the POAA did not violate Jenks’s right to a jury trial or due process
rights.
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No. 52450-3-II
J. IMPOSITION OF LFOS
Jenks argues that under the 2018 amendments to the LFO statutes, we should remand for
the trial court to strike the criminal filing fee and the DNA collection fee imposed in his
judgment and sentence. The State does not address the LFO issues. We remand for the trial
court to consider these LFOs under the currently applicable LFO statutes.
In 2018, the legislature amended (1) RCW 36.18.020(2)(h), which now prohibits
imposition of the criminal filing fee on an defendant who is indigent as defined in RCW
10.101.010(3)(a)-(c); and (2) RCW 43.43.7541, which establishes that the DNA collection fee no
longer is mandatory if the offender’s DNA previously has been collected because of a prior
conviction. These amendments apply prospectively to cases pending on direct appeal. Ramirez,
191 Wn.2d at 749-50.
Under RCW 10.101.010(3)(a)-(c), a person is “indigent” if he or she receives certain
types of public assistance, is involuntarily committed to a public mental health facility, or
receives an annual after tax income of 125 percent or less of the current federally established
poverty level. RCW 10.101.010(3)(a)-(c). RCW 36.18.020(2)(h) does not prohibit imposition of
the criminal filing fee if the defendant is indigent under only RCW 10.101.010(3)(d), unable to
pay the anticipated costs of counsel.
Regarding the criminal filing fee, the trial court at sentencing found Jenks indigent for
purposes of paying LFOs. But the record is unclear if the court found Jenks indigent based on
the definition in RCW 10.101.010(3)(a)-(c). Because the State does not concede this issue, we
remand for the trial court to address the imposition of the criminal filing fee under the current
version of RCW 36.18.020(2)(h).
33
No. 52450-3-II
Regarding the DNA collection fee, the record does not show whether Jenks’s DNA
previously has been collected because of a prior conviction. The record shows that Jenks had
two prior felony convictions, and RCW 43.43.754(1)(a) requires that DNA be collected from a
person convicted of a felony. But the record does not show whether Jenks’s DNA previously
was collected. Because the State does not concede this issue, we remand for the trial court to
address the imposition of the DNA collection fee under the current version of RCW 43.43.7541.
On remand, the State will have the burden of proving that Jenks’s DNA has not previously been
collected because of a prior conviction. State v. Houck, 9 Wn. App. 2d 636, 651, 446 P.3d 646(2019), review denied, 194 Wn.2d 1024 (2020).
CONCLUSION
We affirm Jenks’s conviction and sentence, but we remand for the trial court to consider
the imposition of the criminal filing fee and DNA collection fee under the currently applicable
statutes.
MAXA, C.J.
We concur:
MELNICK, J.
GLASGOW, J.
34