FILED
DEC 11,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31964-4-111 Respondent, ) ) v. ) ) ALBERTO CARDENAS-PADILLA, )- UNPUBLISHED OPINION ) Appellant. )
FEARING, J. A jury found Alberto Cardenas-Padilla guilty on two ofthree
counts of violating a no-contact order. Cardenas-Padilla attempted to contact his former
wife, the beneficiary ofthe protective order, through her mother. On appeal, Cardenas-
Padilla challenges the trial court's discretionary imposition of $200 in court costs. We
affirm Cardenas-Padilla's convictions and the imposition of $200 in court costs.
FACTS
On December 27,2012, Alberto Cardenas-Padilla wrote a letter to his former
mother-in-law, requesting that she ask his ex-wife to delete a Facebook profile created for
him and the former wife's 18-month-old daughter. On February 4 and 5, 2013,
Cardenas-Padilla texted his ex-mother-in-Iaw 25 to 30 times. Cardenas-Padilla tried to
enlist his former in-law to convince his former spouse to reconciliate and speak with him. No. 31964-4-111 State v. Cardenas-Padilla
PROCEDURE
On February 25,2013, the State of Washington charged Alberto Cardenas-Padilla
with three counts of violating a no-contact order under RCW 26.50.110(5). The jury
found Alberto Cardenas-Padilla guilty on counts two and three for the February 4 and 5
texts, but not guilty on count one for the December 27 letter.
At sentencing, defense counsel commented: "My client was employed. 1 did
receive a letter from his employer saying that he would be welcome back if he was out of
custody;" Report of Proceedings (RP) at 331. Cardenas-Padilla said, "I have got my
[commercial driver's license] and also close to getting my [general education
development] diploma. All 1 have to pass is my math test." RP at 338. The trial court
did not otherwise inquire into Cardenas-Padilla's financial resources or his ability to pay.
On September 4, 2013, the trial court sentenced Cardenas-Padilla to confinement
for 14 months, with a credit for 221 days already served. The trial court imposed legal
financial obligations (LFOs) of: $500 victim assessment fee under RCW 7.68.035; $100
deoxyribonucleic acid (DNA) collection fee under RCW 43.43.754(1); and $200 in court
costs. Alberto Cardenas-Padilla's felony judgment and sentence contains the following
stock language:
2.5 Legal Financial Obligations/Restitntion. The court has considered the total amount owing, the defendant's present and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. (RCW 10.01.160).
No. 31964-4-III State v. Cardenas-Padilla
Clerks Papers (CP) at 164. The trial court ordered Cardenas-Padilla to make monthly
payments of at least $25 per month commencing September 5, 2014.
LA W AND ANALYSIS
Whenever a person is convicted in superior court, the court may order the payment
ofLFOs as part of the sentence. RCW 9.94A.760(l). The financial obligations may
include certain costs, including expenses incurred by the State in prosecuting the
defendant. RCW 10.01.160(1), (2). Alberto Cardenas-Padilla's trial court imposed a
total of$800 in LFOs. The $500 victim assessment fee was mandated by RCW 7.68.035,
and the $100 DNA collection fee was mandated by RCW 43.43.754(1). Neither fee was
subject to the defendant's ability to pay.
The remaining $200 in court costs was discretionarily imposed by the court on
Cardenas-Padilla. State v. Kuster, 175 Wn. App. 420, 425, 306 P.3d 1022 (2013). By
statute, the court is not authorized to order a defendant to pay these 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 costs, the court shall take account of the financial resources of the
defendant and the nature of the burden that payment of costs will impose. RCW
10.01.160(3); Kuster, 175 Wn. App. at 424.
Alberto Cardenas-Padilla contends the trial court erred when it: (1) imposed $200
in discretionary LFOs without considering his present or future ability to pay, and (2)
No. 3 1964-4-III State v. Cardenas-Padilla
ordered him to begin paying the obligations on September 5, 2014. The trial court's
judgment and sentence stated the court considered the total amount owing, the
defendant's present, and future ability to pay LFOs, including the defendant's financial
resources, and the likelihood that the defendant's status will change. Nevertheless, the
trial court did not expressly find that Cardenas-Padilla possessed the present or future
ability to pay LFOs. Still the trial court need not make a formal finding that the
defendant has or will have the ability to pay. State v. Baldwin, 63 Wn. App. 303, 312,
818 P.2d 1116,837 P.2d 646 (1991).
Alberto Cardenas-Padilla did not object to the imposition ofLFOs at sentencing.
Under RAP 2.5(a), this court need not address this issue for the first time on appeal.
Until our Supreme Court decides otherwise, the rule established by each division of this
court is that a defendant may not challenge a determination regarding his or her ability to
pay LFOs for the first time on appeal. State v. Duncan, 180 Wn. App. 245, 252, 327 P.3d
699 (2014) (citing RAP 2.5(a) and Kuster, 175 Wn. App. at 425); State v. Calvin, 176
Wn. App. 1,316 P.3d 496, 507-08,petition!or review filed, No. 89518-0 (Wash. Nov.
12,2013); State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178
Wn.2d 1010,311 P.3d 27 (2013). Cardenas-Padilla recognizes this court's ruling in
Duncan. He asks this court to exercise its discretion under RAP 2.5 to address the
imposition of $200 in discretionary costs, and, alternatively, he desires to preserve the
issue should our Supreme Court reverse Duncan through State v. Blazina, 178 Wn.2d
1010 (2013).
We agree to exercise our discretion to address the propriety of the $200
assessment, since the trial court record is sufficiently developed to do so. Alberto
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FILED
DEC 11,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31964-4-111 Respondent, ) ) v. ) ) ALBERTO CARDENAS-PADILLA, )- UNPUBLISHED OPINION ) Appellant. )
FEARING, J. A jury found Alberto Cardenas-Padilla guilty on two ofthree
counts of violating a no-contact order. Cardenas-Padilla attempted to contact his former
wife, the beneficiary ofthe protective order, through her mother. On appeal, Cardenas-
Padilla challenges the trial court's discretionary imposition of $200 in court costs. We
affirm Cardenas-Padilla's convictions and the imposition of $200 in court costs.
FACTS
On December 27,2012, Alberto Cardenas-Padilla wrote a letter to his former
mother-in-law, requesting that she ask his ex-wife to delete a Facebook profile created for
him and the former wife's 18-month-old daughter. On February 4 and 5, 2013,
Cardenas-Padilla texted his ex-mother-in-Iaw 25 to 30 times. Cardenas-Padilla tried to
enlist his former in-law to convince his former spouse to reconciliate and speak with him. No. 31964-4-111 State v. Cardenas-Padilla
PROCEDURE
On February 25,2013, the State of Washington charged Alberto Cardenas-Padilla
with three counts of violating a no-contact order under RCW 26.50.110(5). The jury
found Alberto Cardenas-Padilla guilty on counts two and three for the February 4 and 5
texts, but not guilty on count one for the December 27 letter.
At sentencing, defense counsel commented: "My client was employed. 1 did
receive a letter from his employer saying that he would be welcome back if he was out of
custody;" Report of Proceedings (RP) at 331. Cardenas-Padilla said, "I have got my
[commercial driver's license] and also close to getting my [general education
development] diploma. All 1 have to pass is my math test." RP at 338. The trial court
did not otherwise inquire into Cardenas-Padilla's financial resources or his ability to pay.
On September 4, 2013, the trial court sentenced Cardenas-Padilla to confinement
for 14 months, with a credit for 221 days already served. The trial court imposed legal
financial obligations (LFOs) of: $500 victim assessment fee under RCW 7.68.035; $100
deoxyribonucleic acid (DNA) collection fee under RCW 43.43.754(1); and $200 in court
costs. Alberto Cardenas-Padilla's felony judgment and sentence contains the following
stock language:
2.5 Legal Financial Obligations/Restitntion. The court has considered the total amount owing, the defendant's present and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. (RCW 10.01.160).
No. 31964-4-III State v. Cardenas-Padilla
Clerks Papers (CP) at 164. The trial court ordered Cardenas-Padilla to make monthly
payments of at least $25 per month commencing September 5, 2014.
LA W AND ANALYSIS
Whenever a person is convicted in superior court, the court may order the payment
ofLFOs as part of the sentence. RCW 9.94A.760(l). The financial obligations may
include certain costs, including expenses incurred by the State in prosecuting the
defendant. RCW 10.01.160(1), (2). Alberto Cardenas-Padilla's trial court imposed a
total of$800 in LFOs. The $500 victim assessment fee was mandated by RCW 7.68.035,
and the $100 DNA collection fee was mandated by RCW 43.43.754(1). Neither fee was
subject to the defendant's ability to pay.
The remaining $200 in court costs was discretionarily imposed by the court on
Cardenas-Padilla. State v. Kuster, 175 Wn. App. 420, 425, 306 P.3d 1022 (2013). By
statute, the court is not authorized to order a defendant to pay these 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 costs, the court shall take account of the financial resources of the
defendant and the nature of the burden that payment of costs will impose. RCW
10.01.160(3); Kuster, 175 Wn. App. at 424.
Alberto Cardenas-Padilla contends the trial court erred when it: (1) imposed $200
in discretionary LFOs without considering his present or future ability to pay, and (2)
No. 3 1964-4-III State v. Cardenas-Padilla
ordered him to begin paying the obligations on September 5, 2014. The trial court's
judgment and sentence stated the court considered the total amount owing, the
defendant's present, and future ability to pay LFOs, including the defendant's financial
resources, and the likelihood that the defendant's status will change. Nevertheless, the
trial court did not expressly find that Cardenas-Padilla possessed the present or future
ability to pay LFOs. Still the trial court need not make a formal finding that the
defendant has or will have the ability to pay. State v. Baldwin, 63 Wn. App. 303, 312,
818 P.2d 1116,837 P.2d 646 (1991).
Alberto Cardenas-Padilla did not object to the imposition ofLFOs at sentencing.
Under RAP 2.5(a), this court need not address this issue for the first time on appeal.
Until our Supreme Court decides otherwise, the rule established by each division of this
court is that a defendant may not challenge a determination regarding his or her ability to
pay LFOs for the first time on appeal. State v. Duncan, 180 Wn. App. 245, 252, 327 P.3d
699 (2014) (citing RAP 2.5(a) and Kuster, 175 Wn. App. at 425); State v. Calvin, 176
Wn. App. 1,316 P.3d 496, 507-08,petition!or review filed, No. 89518-0 (Wash. Nov.
12,2013); State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492, review granted, 178
Wn.2d 1010,311 P.3d 27 (2013). Cardenas-Padilla recognizes this court's ruling in
Duncan. He asks this court to exercise its discretion under RAP 2.5 to address the
imposition of $200 in discretionary costs, and, alternatively, he desires to preserve the
issue should our Supreme Court reverse Duncan through State v. Blazina, 178 Wn.2d
1010 (2013).
We agree to exercise our discretion to address the propriety of the $200
assessment, since the trial court record is sufficiently developed to do so. Alberto
Cardenas-Padilla possesses a commercial driver's license and his defense counsel
indicated that his employer would rehire him once out of custody. This evidence
supports a conclusion that Cardenas-Padilla will have the future ability to pay his LFOs.
With credit for time served, he would be released in April 2014, five months before any
obligation to pay. If, ultimately, Cardenas-Padilla is unable to pay the $25 per month, he
may petition the court for remission under RCW 10.01.160(4).
STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds, Alberto Cardenas-Padilla raises two
additional arguments. First, Cardenas-Padilla contends the jury misunderstood its
instructions from the court or those instructions were erroneous. Cardenas-Padilla
emphasizes that the jury's verdicts of guilty are inconsistent since it convicted him on
counts two and three, but not count one. As noted in State v. Goins, 151 Wn.2d 728, 733,
92 P .3d 181 (2004), juries return inconsistent verdicts for various reasons, including
mistake, compromise, and lenity. Regardless, courts refrain from second-guessing the
jury where lenity provides a plausible explanation for the inconsistency. Goins, 151
Wn.2d at 735. Lenity is a likely explanation in this case.
Second, Alberto Cardenas-Padilla contends the prosecutor read some of the texts
No. 3 I 964-4-III
State v. Cardenas-Padilla
at issue inaccurately and with an inaccurate tone, misconstruing the texts' meaning when
cross-examining him. Cardenas-Padilla objected at trial to the reading. The trial court
responded that Cardenas-Padilla could discuss any misreading during his redirect
examination. On redirect, Cardenas-Padilla testified: "Yes. Like you said, I want to see
my children. What I am telling my mother-in-law there is, [t]alk to your child, like
mother and child conversation, so I can see my children. It is not because I want to
contact [my ex-wife]." RP at 239. Thus, both sides were able to present testimony
concerning the purpose and meaning of the texts. In the end, the jury needed to
determine the meaning and purpose. Cardenas-Padilla's contention therefore lacks merit.
CONCLUSION
We reject Alberto Cardenas-Padilla's arguments in his statement of additional
grounds. We affirm his two convictions and the trial court's imposition ofLFOs.
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.
WE CONCUR:
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