State of Washington v. Francisco Gonzalez-Gonzalez (Majority)

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FILED May 3, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill IN THE COURT OF APPEAL OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 33027-3-111 ) Respondent, ) ) v. ) PUBLISHED OPINION ) FRANCISCO GONZALEZ-GONZAL Z, ) ) Appellant. ) LAWRENCE-BERREY, J. - Franc· sco Gonzalez-Gonzalez appeals his conviction for unlawful imprisonment. He argues e trial court erred when it overruled his hearsay objection to a police officer's testimony and that this ruling affected the outcome of the trial. For the first time on appeal, heals argues the trial court erred in imposing $700 in discretionary legal financial obligations (LFOs) without making an adequate inquiry into his ability to pay. We clarify that our re iew of a trial court's hearsay ruling is de novo, except when review requires applicatio of evidentiary factors. Although we agree with Mr. Gonzalez-Gonzalez's argument tha the challenged statement was hearsay, we hold that its admission was harmless error. lso, we exercise our discretion against reviewing his unpreserved LFO argument. We thdrefore affirm. No. 33027-3-111 State v. Gonzalez-Gonzalez FACTS On August 26, 2014, C.H. 1 rode is bike to Mr. Gonzalez-Gonzalez's apartment to buy marijuana. When C.H. arrived, Mr. Gonzalez-Gonzalez came outside of the apartment and invited C.H. inside. Mr. onzalez-Gonzalez then pulled C.H. into the apartment and accused C.H. of stealing is watch. Mr. Gonzalez-Gonzalez's brother stood between C.H. and the apartment d or and held a knife. Mr. Gonzalez-Gonzalez told C.H. that he could not leave the apa ment unless it was to retrieve the stolen watch. C.H. told Mr. Gonzalez-Gonzalez that h would go get the watch, and Mr. GonzalezGonzalez let C.H. leave the apartment. .H. then rode his bike to a nearby restaurant and called the police. Officer Jasen McClintock respon ed to the call and met C.H. at the restaurant. Officer Kari Skinner and Sergeant Jame Thompson also responded to the call and joined Officer Mcclintock at the restaurant. A the restaurant, C.H. described the general location of Mr. Gonzalez-Gonzalez's ap rtment building to Officer McClintock. Officer McClintock then sent Officer Skinner d Sergeant Thompson over to the apartment building. Officer Skinner arrived at the partment building first and saw two men on the apartment balcony who matched the dis atcher' s description. Officer Skinner did not 1 For purposes of this opinion, th minor's initials are used in place of his name. 2 No. 33027-3-111 State v. Gonzalez-Gonzalez approach the apartment, but instead wai d for backup. After backup arrived, Mr. Gonzalez-Gonzalez walked over to her nd identified himself as "Kiko." Report of Proceedings (RP) (Nov. 19, 2014) at 89. Officer McClintock then took C. . to the general area of the apartment building. C.H. pointed out Mr. Gonzalez-Gonzale 's specific apartment. Officer McClintock conducted a show-up, and C.H. identifi Mr. Gonzalez-Gonzalez and his brother as the individuals who restrained him. Officer Skinner then arrested Mr. Gonzalez-Gonzalez. The State charged Mr. Gonzalez- onzalez with first degree robbery, unlawful imprisonment, and harassment. At trial, C.H. testified he had known Mr. GonzalezGonzalez for three to four years and kn him by the nickname "Kiko." RP (Nov. 19, 2014) at 54. During the State's direct e amination of Officer Skinner, the following exchange occurred: [Prosecutor:] Were you a le to locate the residence where this incident occurred? [Officer Skinner:] Yes, a'am, I was. [Prosecutor:] How so? [Officer Skinner:] Origin lly, the reporting party had indicated a general area to Officer McClinto k, and then dispatch had done a records management search on an alias n e that had been provided by the name of Kiko. RP (Nov. 19, 2014) at 86. Mr. Gonzale -Gonzalez objected to Officer Skinner's testimony as hearsay and argued that O 1cer Skinner described an out-of-court statement 3 No. 33027-3-111 State v. Gonzalez-Gonzalez that the State offered for the purpose of· dentifying Mr. Gonzalez-Gonzalez. The trial court overruled Mr. Gonzalez-Gonzalez s objection. The jury convicted Mr. Gonzalez Gonzalez of unlawful imprisonment but acquitted him of robbery and harassmen. The trial court sentenced Mr. GonzalezGonzalez to two months' incarceration d gave him credit for time served in pretrial custody, which exceeded his two-month sentence. The trial court imposed a total of I $1,800 in LFOs, comprised of a $500 fi ·e, mandatory costs of $600, and discretionary costs of $700 for a court-appointed atto ey. Before it imposed the LFOs, the trial court conducted the following inquiry: THE COURT: Okay. No , were you employed at the time of the events-at the time of your arres? [MR. GONZALEZ-GON ALEZ]: Yeah. I was working helping a mechanic in Kennewick. THE COURT: Okay. RP (Dec. 19, 2014) at 6. The judgment nd sentence contained the following boilerplate language: "The defendant has the abili or likely future ability to pay the legal financial obligations imposed herein." Clerk's P pers (CP) at 20. Mr. Gonzalez-Gonzalez did not object to the LFOs. This appeal follow d. The trial court stayed Mr. GonzalezGonzalez's kidnapping offender registr ion requirement pending the outcome of this appeal. 4 No. 33027-3-111 State v. Gonzalez-Gonzalez ALYSIS A. Alleged hearsay error Mr. Gonzalez-Gonzalez argues t at Officer Skinner's testimony concerning how she found his apartment was hearsay. 0 fleer Skinner testified that dispatch located the defendant's address by doing a records anagement search using his alias, Kiko. Mr. Gonzalez-Gonzalez argues that this "su gested to the jury that [he] was known to the police, used an alias ... perhaps had a c iminal record, [and the admission of this hearsay] was not harmless." Appellant' Br. at 7. 1. Standard of review We take this opportunity to clari the proper standard of review of trial court hearsay rulings. This court reviews whe her a statement was hearsay de novo. State v. Hudlow, 182 Wn. App. 266, 281, 331 P. d 90 (2014) (citing State v. Neal, 144 Wn.2d 600, 607, 30 P.3d 1255 (2001)); State v. Edwards, 131 Wn. App. 611, 614, 128 P.3d 631 (2006); but see State v. Woods, 143 Wn. d 561, 595, 23 P.3d 1046 (2001) (applying an abuse of discretion standard of review t the excited utterance hearsay exception, which requires application of evidentiary facto s by the trial court). The reason we do not review for an abuse of discretion is beca se ER 802 explicitly states that hearsay evidence is not admissible except as provided by he hearsay exception rules. The rules do not give 5 No. 33027-3-111 State v. Gonzalez-Gonzalez trial courts discretion to admit inadmissi le evidence. The more deferential abuse of discretion standard generally applies to ur review of those trial court rulings where trial courts must use their discretion when w ighing various factors. As with either standard of review an erroneous evidentiary ruling does not result in reversal unless the defendant was prej diced. State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004). For evidentiary err rs not implicating a constitutional mandate, we reverse only if, "' within reasonable pro abilities, the outcome of the trial would have been materially affected had the error n t occurred.'" Id. (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). '"The improper admission of evidence constitutes harmless error if the evidenc is of minor significance in reference to the overall, overwhelming evidence as aw le."' Id. (quoting State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)) 2. Whether Officer Sk"nner 's testimony was hearsay Hearsay is an out-of-court state ent offered to prove the truth of the matter asserted. ER 801(c). A "statement" is n oral or written assertion, or a person's nonverbal conduct if that person intend that conduct to be an assertion. ER 801(a). "Whether a statement is hearsay depen s upon the purpose for which the statement is offered." State v. Crowder, 103 Wn. A p. 20, 26, 11 P.3d 828 (2000). "A statement is 6 No. 33027-3-111 State v. Gonzalez-Gonzalez not hearsay if it is used only to show the effect on the listener, without regard to the truth of the statement." Edwards, 131 Wn. A p. at 614. However, where an out-of-court statement is offered for the truth of what someone told the witness, the statement is hearsay even though the witness only im lies the out-of-court statement. Hudlow, 182 Wn. App. at 276-77. In determining wh ther the statement was offered to prove its truth instead of for a benign purpose as the St te asserts, we examine whether the benign purpose was relevant. Id. at 278-80. The prosecutor asked Officer Ski Gonzalez's apartment, and Officer Ski er how she was able to find Mr. Gonzalezer testified that "dispatch had done a records management search on an alias name th t had been provided by the name of Kiko." RP (Nov. 19, 2014) at 86. The trial court o erruled Mr. Gonzalez-Gonzalez's objection on the grounds that Officer Skinner did not repeat what someone else had said. The trial court's view of hearsay as too narrow. As mentioned above, hearsay includes an implied statement, provided that the statement was offered for its truth. Here, the implied statement, according to Mr. onzalez-Gonzalez, is that law enforcement knew him based on his alias name, Kiktj. The State responds that it elicited this testimony for the benign purpose of establishing hy Officer Skinner approached the particular apartment. 7 No. 33027-3-111 State v. Gonzalez-Gonzalez We hold that the State has failed t establish the relevancy of the statement's purported benign purpose and, therefore, the State elicited the statement for a hearsay purpose. There is no relevance to why fficer Skinner approached the particular apartment. The officer testified that she id not approach the apartment but instead waited for backup, and Mr. Gonzalez-G nzalez approached her and identified himself as Kiko after backup arrived. Nevertheless, the erroneous admi sion of hearsay is harmless error unless, within reasonable probabilities, the improper ev dence affected the outcome of the trial. Thomas, 150 Wn.2d at 871. Mr. Gonzal z-Gonzalez argues that the jury could have found him guilty based on the fact that h was known to law enforcement by the name Kiko. His argument requires too much s eculation. First, the jury acquitted Mr. Gonz lez-Gonzalez of the more serious offense of first degree robbery, and also of harassment. his shows that the jury based its verdict on evidence, not improper bias. Second, th re is no evidence that only persons with criminal histories are known by law enforcement. Third, the State did not argue or imply that Mr. Gonzalez-Gonzalez was guilty because e was known by law enforcement or had a criminal history. We fail to see the conn ction between a nonpejorative alias such as "Kiko" and the jury's verdict in this case. We hold the admission of Officer Skinner's 8 No. 33027-3-111 State v. Gonzalez-Gonzalez hearsay statement implying that law en:fi rcement knew Mr. Gonzalez-Gonzalez as Kiko was harmless error. B. Whenever a person is convicted, he trial court "may order the payment of a legal financial obligation" as part o the sentence. RCW 9.94A.760(1); accord RCW 10.01.160(1). Because both statu s use the word "may" when authorizing imposition of costs described therein, w refer to such costs as "discretionary costs." By statute, the trial court is not authorized t order a defendant to pay discretionary costs unless he or she is or will be able to pay them. RCW 10.01.160(3). In determining the amount and method of payment of discr tionary costs, the trial court shall take account of the financial resources of the defendant nd the nature of the burden that payment of such costs will impose. RCW 10.01.160(3). ccordingly, "a trial court has a statutory obligation to make an individualized in uiry into a defendant's current and future ability to pay before the court imposes LFOs." State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015). Importantly, ''the court must do ore than sign a judgment and sentence with boilerplate language stating that it enga ed in the required inquiry." Id. at 838. Therefore, ~'[t]he record must reflect th the trial court made an individualized 9 No. 33027-3-111 State v. Gonzalez-Gonzalez inquiry into the defendant's current and ture ability to pay."2 Id. However, "[n]either RCW 10.01.160 'nor the constitution re uires a trial court to enter formal, specific findings regarding a defendant's ability t pay [discretionary] court costs.'" State v. Lundy, 176 Wn. App. 96, 105, 308 P.3d 55 (2013) (quoting State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992)). "The trial court's determination' s to the defendant's resources and ability to pay is essentially factual and should be revie ed under the clearly erroneous standard.'" State v. Bertrand, 165 Wn. App. 393, 40 n.13, 267 P.3d 511 (2011) (quoting State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2 1116, 837 P.2d 646 (1991)). A finding of fact is clearly erroneous when, "' although th re is some evidence to support it, review of all of the evidence leads to a definite and fi conviction that a mistake has been committed.'" Lundy, 176 Wn. App. at 1 5 (internal quotation marks omitted) (quoting Schryvers v. Coulee Cmty. Hosp., 138 n. App. 648, 654, 158 P.3d 113 (2007)). "A defendant who makes no obje tion to the imposition of discretionary LFOs at sentencing is not automatically entitled t review." Blazina, 182 Wn.2d at 832. Subject 2 Although courts have little guid nee regarding what counts as an "individualized inquiry," Blazina makes clear, at a mini um, the sentencing court "must also consider important factors ... such as incarcerati n and a defendant's other debts, including restitution, when determining a defenda t's ability to pay," and "should also look to the comment in court rule GR 34 for guidan e." Blazina, 182 Wn.2d at 838. 10 No. 33027-3-111 State v. Gonzalez-Gonzalez to three exceptions that do not apply her , RAP 2.5(a) provides that an "appellate court may refuse to review any claim of error hich was not raised in the trial court." Blazina confirmed that an appellate court's discr tion under RAP 2.5(a) extends to review of a trial court's imposition of discretionary FOs. Id. at 834-35. Under Blazina, each appellate co rt is entitled to "make its own decision to accept discretionary review" of unpreserved LF errors. Id. at 835. Admittedly, the judges of this court are not in agreement as to wha extent discretion should be exercised to review unpreserved LFOs. An approach favore by this author is to consider the administrative burden and expense of bringing a defend t to court for a new hearing, versus the likelihood that the discretionary LFO res lt will change. "An important consideration of this analysis is the dollar amount of disc etionary LFOs imposed by the sentencing court." State v. Arredondo, 190 Wn. App. 512, 38, 360 P.3d 920 (2015). In this case, the majority of these factors weigh against r viewing Mr. Gonzalez-Gonzalez's unpreserved LFO challenge. First, the dollar amount of the dis retionary LFOs the trial court imposed does not support granting review. The t al court imposed both mandatory and discretionary LFOs. The mandatory LF s included the $500 victim assessment and the $100 deoxyribonucleic acid (DNA) colle tion fee. See RCW 7.68.035(l)(a); 11 No. 33027-3-111 State v. Gonzalez-Gonzalez RCW 43.43.7541. These mandatory LF s are required irrespective of Mr. GonzalezGonzalez's ability to pay. Lundy, 176 W . App. at 103. Accordingly, the only discretionary cost that required the trial c urt to inquire into Mr. Gonzalez-Gonzalez's ability to pay was the $700 court-appoint d attorney fee. 3 The second factor-the administr tive burden and expense of bringing Mr. Gonzalez-Gonzalez to court for a new se tencing hearing-does not weigh in favor of either side in this case. Remand is not re uired for the trial court to address any other sentencing errors, so the trial court woul have to hold a resentencing hearing for the sole purpose of conducting a Blazina inquiry. However, Mr. Gonzalez-Gonzalez is not incarcerated, so the State also would not ncur the expense of transporting him to court. However, the final factor weighs gainst granting review-a new sentencing hearing would not likely change the LFO result. Although the trial court found that Mr. Gonzalez-Gonzalez was indigent and thu qualified for publicly funded counsel both for trial and on appeal, Mr. Gonzalez-Gonza ez testified that he was employed helping a mechanic at the time of his arrest. In ad ition, Mr. Gonzalez-Gonzalez was released from 3 The trial court also imposed a $5 0 fine under RCW 9A.20.021. This division recently decided that a trial court may im ose fines under RCW 9A.20.021 without inquiring into a defendant's ability to pa . See State v. Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015); accord State v. Cal in, 176 Wn. App. 1, 24-25, 316 P.3d 496 (2013), remanded, 183 Wn.2d 1013, 353 .3d 640 (2015). 1 12 No. 33027-3-111 State v. Gonzalez-Gonzalez confinement on the day of his sentencing earmg. Accordingly, Mr. Gonzalez-Gonzalez is not subject to the negative effects that n extended period of incarceration would have on his employment prospects, and there is no reason to suspect that he had difficulty resuming gainful employment. Considering the small amount of d scretionary LFOs imposed in this case and the unlikelihood that a new sentencing hearin would change the LFO result, we exercise our discretion and decline to review this alleg d error. Because Mr. Gonzalez-Gonzalez i indigent and his appeal has merit, we exercise our discretion under RCW 10.73.160(1) a d RAP 14. l(a) to not award costs. Affirmed. Lawrence-Berrey, J. j WE CONCUR: Cooney, J.P.T. 13

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