IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86108-5-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION ANDRÉS MURILLO MÁRQUEZ
Appellant.
SMITH, J. — Andrés Murillo Márquez lived with Lorena M., her husband,
and their three children for a number of years. In 2020, H.G. and R.G., Lorena’s
daughters, informed their parents that Murillo Márquez had been sexually
abusing them.
Murillo Márquez was arrested, charged, and found guilty of child
molestation in the second degree. The court sentenced Murillo Márquez to
20 months in prison and 36 months of community custody. Murillo Márquez
appeals, challenging community custody conditions as insufficiently crime-related
and unconstitutional. Murillo Márquez also asserts that the court order
prohibiting contact with the victim and other minor children exceeds the statutory
maximum.
We affirm the community custody condition requiring Murillo Márquez to
inform his community corrections officer (CCO) and sexual deviancy treatment
provider of any dating relationship, disclose his sex offender status to any No. 86108-5-I/2
potential partner, and obtain permission from his CCO before engaging in sexual
contact; conclude that the community custody conditions requiring home visits
and breath analysis and urinalysis are not ripe for review; and remand for the trial
court to modify the no-contact order to comply with the statute.
FACTS
Andrés Murillo Márquez began dating Flora M. in the early 2000s. For
financial reasons, Murillo Márquez and Flora shared an apartment with Flora’s
sister Lorena M. and her husband. Murillo Márquez continued to live with
Lorena, her husband, and their three children, H.G., R.G., and J.G., after he and
Flora separated. H.G. was seven when Murillo Márquez moved in with her
family.
In April 2020, 15-year-old H.G. informed her mother that Murillo Márquez
had been sexually abusing her. R.G., now 12 years old, also disclosed that she
had been raped and molested by Murillo Márquez.
The State charged Murillo Márquez with one count of child molestation in
the first degree, one count of child molestation in the second degree, one count
of rape of a child in the first degree, and one count of rape of a child in the
second degree concerning his contact with H.G. The State also charged Murillo
Márquez with one count of child molestation in the second degree concerning his
contact with R.G. A jury found Murillo Márquez guilty of child molestation in the
second degree, acquitted him of child molestation in the first degree, and
2 No. 86108-5-I/3
deadlocked on the remaining charges. The State later dismissed the deadlocked
charges.
The trial court sentenced Murillo Márquez to a standard range sentence of
20 months in prison with 36 months of community custody. Among other
requirements, the community custody conditions required Murillo Márquez to
inform the supervising CCO and sexual deviancy treatment provider of any
dating relationships; disclose sex offender status before any sexual contact;
obtain approval from the treatment provider before engaging in sexual contact;
consent to home visits to monitors compliance with supervision; submit to
urinalysis and/or breath analysis; and have no contact with the victim.
Murillo Márquez appeals.
ANALYSIS
Community Custody Conditions
Murillo Márquez asserts that a handful of his community custody
conditions, including the requirement that he inform his CCO and sexual
deviancy treatment provider before he begins a dating relationship, that he must
submit to home visits and inspections, and that he must submit to urinalysis and
breath analysis, must be stricken because they are neither crime-related nor
constitutional. We conclude that the condition requiring disclosure of dating
relationships is crime-related and constitutional and that the latter two conditions
are not ripe for review.
3 No. 86108-5-I/4
Constitutional challenges to community custody may be raised for the first
time on appeal. State v. Peters, 10 Wn. App. 2d 574, 583, 455 P.3d 141 (2019).
We review a trial court’s statutory authority to impose a community custody
condition de novo. State v. Houck, 9 Wn. App. 2d 636, 646, 446 P.3d 646
(2019). Otherwise, we review community custody conditions for an abuse of
discretion. State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019).
1. Dating Relationship Disclosures
Murillo Márquez asserts that the community custody condition requiring
that he inform his CCO and sexual deviancy treatment provider of any dating
relationship, disclose his sex offender status to any potential partner, and gain
permission from his treatment provider before engaging in sexual contact, is
neither crime-related nor constitutional. We disagree, concluding that the
community custody condition is sufficiently crime-related and constitutional.
a. Crime-Related
Murillo Márquez states that the community custody condition requiring
disclosure is not sufficiently crime-related because the condition applies broadly
to all dating relationships, with no limitation that those relationships may involve
minors. We disagree.
Under RCW 9.94A.703(3)(f), a trial court has discretion to require an
offender to comply with crime-related prohibitions. A crime-related prohibition is
“an order of a court prohibiting conduct that directly relates to the circumstances
of the crime for which the offender has been convicted.” RCW 9.94A.030(10).
4 No. 86108-5-I/5
Similarly, a court may require an offender to engage in rehabilitative programs or
perform other affirmative conduct reasonably related to the circumstances of the
offense, the offender’s risk of reoffending, or the safety of the community.
RCW 9.94A.703(3)(d). Both provisions require that the ordered prohibition or
conduct connects to the crime. State v. Geyer, 19 Wn. App. 2d 321, 331, 496
P.3d 322 (2021); State v. Jones, 118 Wn. App. 199, 208, 76 P.3d 258 (2003).
Placing limitations on an “ ‘offender’s freedom [to choose] even adult
sexual partners is reasonably related to [sexual crimes involving minors] because
potential romantic partners may be responsible for the safety of live-in or visiting
minors.’ ” State v. Gantt, 29 Wn. App. 2d 427, 457, 540 P.3d 845 (internal
quotation marks omitted) (quoting In re Pers. Restraint of Sickels, 14 Wn. App.
2d 51, 61, 469 P.3d 322 (2020)), review denied, 3 Wn.3d 1002 (2024).
Therefore, delegating the task of vetting future relationships to a CCO or
therapist is appropriate. State v. Autrey, 136 Wn. App. 460, 468, 150 P.3d 580
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86108-5-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION ANDRÉS MURILLO MÁRQUEZ
Appellant.
SMITH, J. — Andrés Murillo Márquez lived with Lorena M., her husband,
and their three children for a number of years. In 2020, H.G. and R.G., Lorena’s
daughters, informed their parents that Murillo Márquez had been sexually
abusing them.
Murillo Márquez was arrested, charged, and found guilty of child
molestation in the second degree. The court sentenced Murillo Márquez to
20 months in prison and 36 months of community custody. Murillo Márquez
appeals, challenging community custody conditions as insufficiently crime-related
and unconstitutional. Murillo Márquez also asserts that the court order
prohibiting contact with the victim and other minor children exceeds the statutory
maximum.
We affirm the community custody condition requiring Murillo Márquez to
inform his community corrections officer (CCO) and sexual deviancy treatment
provider of any dating relationship, disclose his sex offender status to any No. 86108-5-I/2
potential partner, and obtain permission from his CCO before engaging in sexual
contact; conclude that the community custody conditions requiring home visits
and breath analysis and urinalysis are not ripe for review; and remand for the trial
court to modify the no-contact order to comply with the statute.
FACTS
Andrés Murillo Márquez began dating Flora M. in the early 2000s. For
financial reasons, Murillo Márquez and Flora shared an apartment with Flora’s
sister Lorena M. and her husband. Murillo Márquez continued to live with
Lorena, her husband, and their three children, H.G., R.G., and J.G., after he and
Flora separated. H.G. was seven when Murillo Márquez moved in with her
family.
In April 2020, 15-year-old H.G. informed her mother that Murillo Márquez
had been sexually abusing her. R.G., now 12 years old, also disclosed that she
had been raped and molested by Murillo Márquez.
The State charged Murillo Márquez with one count of child molestation in
the first degree, one count of child molestation in the second degree, one count
of rape of a child in the first degree, and one count of rape of a child in the
second degree concerning his contact with H.G. The State also charged Murillo
Márquez with one count of child molestation in the second degree concerning his
contact with R.G. A jury found Murillo Márquez guilty of child molestation in the
second degree, acquitted him of child molestation in the first degree, and
2 No. 86108-5-I/3
deadlocked on the remaining charges. The State later dismissed the deadlocked
charges.
The trial court sentenced Murillo Márquez to a standard range sentence of
20 months in prison with 36 months of community custody. Among other
requirements, the community custody conditions required Murillo Márquez to
inform the supervising CCO and sexual deviancy treatment provider of any
dating relationships; disclose sex offender status before any sexual contact;
obtain approval from the treatment provider before engaging in sexual contact;
consent to home visits to monitors compliance with supervision; submit to
urinalysis and/or breath analysis; and have no contact with the victim.
Murillo Márquez appeals.
ANALYSIS
Community Custody Conditions
Murillo Márquez asserts that a handful of his community custody
conditions, including the requirement that he inform his CCO and sexual
deviancy treatment provider before he begins a dating relationship, that he must
submit to home visits and inspections, and that he must submit to urinalysis and
breath analysis, must be stricken because they are neither crime-related nor
constitutional. We conclude that the condition requiring disclosure of dating
relationships is crime-related and constitutional and that the latter two conditions
are not ripe for review.
3 No. 86108-5-I/4
Constitutional challenges to community custody may be raised for the first
time on appeal. State v. Peters, 10 Wn. App. 2d 574, 583, 455 P.3d 141 (2019).
We review a trial court’s statutory authority to impose a community custody
condition de novo. State v. Houck, 9 Wn. App. 2d 636, 646, 446 P.3d 646
(2019). Otherwise, we review community custody conditions for an abuse of
discretion. State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019).
1. Dating Relationship Disclosures
Murillo Márquez asserts that the community custody condition requiring
that he inform his CCO and sexual deviancy treatment provider of any dating
relationship, disclose his sex offender status to any potential partner, and gain
permission from his treatment provider before engaging in sexual contact, is
neither crime-related nor constitutional. We disagree, concluding that the
community custody condition is sufficiently crime-related and constitutional.
a. Crime-Related
Murillo Márquez states that the community custody condition requiring
disclosure is not sufficiently crime-related because the condition applies broadly
to all dating relationships, with no limitation that those relationships may involve
minors. We disagree.
Under RCW 9.94A.703(3)(f), a trial court has discretion to require an
offender to comply with crime-related prohibitions. A crime-related prohibition is
“an order of a court prohibiting conduct that directly relates to the circumstances
of the crime for which the offender has been convicted.” RCW 9.94A.030(10).
4 No. 86108-5-I/5
Similarly, a court may require an offender to engage in rehabilitative programs or
perform other affirmative conduct reasonably related to the circumstances of the
offense, the offender’s risk of reoffending, or the safety of the community.
RCW 9.94A.703(3)(d). Both provisions require that the ordered prohibition or
conduct connects to the crime. State v. Geyer, 19 Wn. App. 2d 321, 331, 496
P.3d 322 (2021); State v. Jones, 118 Wn. App. 199, 208, 76 P.3d 258 (2003).
Placing limitations on an “ ‘offender’s freedom [to choose] even adult
sexual partners is reasonably related to [sexual crimes involving minors] because
potential romantic partners may be responsible for the safety of live-in or visiting
minors.’ ” State v. Gantt, 29 Wn. App. 2d 427, 457, 540 P.3d 845 (internal
quotation marks omitted) (quoting In re Pers. Restraint of Sickels, 14 Wn. App.
2d 51, 61, 469 P.3d 322 (2020)), review denied, 3 Wn.3d 1002 (2024).
Therefore, delegating the task of vetting future relationships to a CCO or
therapist is appropriate. State v. Autrey, 136 Wn. App. 460, 468, 150 P.3d 580
(2006).
Murillo Márquez relies on an unpublished portion of State v. Gililung1 to
challenge that reasonable relationship. But Gililung is both non-binding and
distinguishable. GR 14.1.
In Gililung, law enforcement arrested Gililung during an undercover
operation designed to identify people looking to commit sexual abuse crimes
1No. 57466-7-II, slip op. at 29-30 (unpublished portion), https:// www.courts.wa.gov/opinions/pdf/D2%2057466-7-II%20Published%20 Opinion.pdf.
5 No. 86108-5-I/6
against children. 31 Wn. App. 2d 718, 721, 552 P.3d 813 (2024) (published in
part). No actual child was involved. Gililung, 31 Wn. App. 2d at 721. Rather,
Gililung’s crimes concerned a fictional 16-year-old. Gililung, 31 Wn. App. 2d
at 721.
In contrast, Murillo Márquez’s crime involved an assault on an actual child;
a child he gained access to through his long-standing relationship with her
parents. So, while limiting sexual contact with consenting adults had little to do
with Gililung’s online attempt to reach a fictional child, the condition is clearly
crime-related for Murillo Márquez because it will determine the ways in which he
engages in relationships that could lead to access to children.
Murillo Márquez then attempts to differentiate between a romantic
relationship and a “financial cohabitation” to assert no evidence shows that he
used a dating or intimate relationship to gain access to a minor. But that
distinction is not relevant. Nothing in the record indicates that Murillo Márquez
chose this particular child because he did not have a romantic relationship with
either of her parents. Rather, the record indicates that Murillo Márquez
repeatedly assaulted a child to whom he had relatively easy access. It is
reasonable to consider other ways in which he might gain such easy access.
Accordingly, regulating the ways in which Murillo Márquez engages in
relationships that could lead to access to children is crime-related.
We conclude that the community custody condition requiring that Murillo
Márquez inform his CCO and sexual deviancy treatment provider of any dating
6 No. 86108-5-I/7
relationship, disclose his sex offender status to any potential partner, and obtain
permission from his treatment provider before engaging in sexual contact is
sufficiently crime-related.
b. Constitutionality
Murillo Márquez then contends that the community custody condition
requiring disclosure violates his First Amendment freedom of association and his
constitutional right to engage in sexually intimate activity under Lawrence v.
Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). We disagree.
“The First Amendment protects a person’s freedom of association,
including intimate association.” State v. Frederick, 20 Wn. App. 2d 890, 909, 506
P.3d 690 (2022). A court may limit this right “ ‘if reasonably necessary to
accomplish the essential needs of the state and public order.’ ” Frederick, 20
Wn. App. 2d at 910 (internal quotation marks omitted) (quoting State v. Riley,
121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993)). Therefore, to order an offender
“not to have contact with a class of individuals who share no relationship to the
offender’s crime” is unreasonable. State v. Riles, 135 Wn.2d 326, 350, 957 P.2d
655 (1998).
Lawrence then guarantees a constitutional right to engage in sexual
intimate activity with another person within the home. 539 U.S. at 578. But a
community custody condition requiring approval prior to sexual contact is not
unconstitutional under Lawrence because “Lawrence did not analyze the reduced
7 No. 86108-5-I/8
rights of a parolee, and. . . a parolee’s constitutional rights are subject to SRA[2]-
infringements.” State v. Lee, 12 Wn. App. 2d 378, 403, 460 P.3d 701 (2020).
Here, as noted above, Murillo Márquez’s sexual contact with adults is
reasonably related to his crime involving children. Therefore, the community
custody condition does not order Murillo Márquez not to have contact with a
class of individuals who share no relationship to his crime. Acknowledging the
role that access to children played in Murillo Márquez’s crime, restricting such
access is reasonably necessary to accomplish the needs of the state and public
order. And the community custody condition does not absolutely prohibit Murillo
Márquez from engaging in consensual sexual contact with adults. It simply
requires that he inform his potential partner of the risk he poses, as well as
informing his CCO or treatment provider.
Furthermore, the community custody condition does not violate his
constitutional right to sexual intimacy because this court has clearly held that
Lawrence did not extend to individuals subject to community custody.
The community custody condition requiring disclosure does not violate
Murillo Márquez’s First Amendment freedom of association or constitutional right
to sexual intimacy.
2. Home Visits
Murillo Márquez also maintains that the community custody condition
requiring that he submit to home visits to monitor compliance permits unlawful
2 Sentencing Reform Act of 1981, ch. 9.94A RCW.
8 No. 86108-5-I/9
searches in violation of article I, section 7 of the Washington State Constitution.
We conclude that the issue is not yet ripe for review.
A preenforcement challenge to community custody conditions is ripe for
review when “ ‘the issues raised are primarily legal, do not require further factual
development, and the challenged action is final.’ ” State v. Nelson, __ Wn.2d
___, 565 P.3d 906, 913 (2025) (internal quotation marks omitted) (quoting State
v. Cates, 183 Wn.2d 531, 534, 354 P.3d 831 (2015)). “Further factual
development is needed when the challenger’s argument is based on the potential
for ‘[s]ome future misapplication of the community custody condition,’ which
necessarily depends ‘on the particular circumstances of the attempted
enforcement.’ ” Nelson, 565 P.3d at 913 (alteration in original) (internal quotation
marks omitted) (quoting Cates, 183 Wn.2d at 534).
Occasionally, the risk of hardship to a defendant may justify review of a
challenge before it is factually developed. Nelson, 565 P.3d at 914. That risk is
greatest when the challenged conditions “ ‘immediately restrict[] the petitioners’
conduct upon their release from prison.’ ” Nelson, 565 P.3d at 914 (alteration in
original) (quoting State v. Sanchez Valencia, 169 Wn.2d 782, 791, 239 P.3d
1059 (2010)). A risk of hardship is insufficient to justify review, however, when
complying with challenged conditions does not require the defendant to do, or
refrain from doing, anything upon release unless and until the State requests it.
Nelson, 565 P.3d at 914.
9 No. 86108-5-I/10
Here, Murillo Márquez’s home visit condition does not require him to do, or
refrain from doing, anything upon his release unless and until the Department of
Corrections (DOC) requests it. Therefore, Murillo Márquez’s challenge requires
further factual development. We conclude that the issue is not ripe for review.
3. Urinalysis and Breath Analysis
Murillo Márquez contends that the community custody condition requiring
that he be available for drug and alcohol testing at the request of his CCO or
treatment provider is not sufficiently crime-related and unconstitutionally invades
his right to privacy. This issue is similarly not ripe for review.
To reiterate, a preenforcement challenge to a community custody
condition is ripe when the issues are mainly legal, do not require further factual
development, and the action is final. Nelson, 565 P.3d at 913. A
preenforcement challenge is not ripe for review when it “rests on the factually
unsupported assumption that [breath analysis] and [urinalysis] testing will be
‘conducted in an unreasonable manner’ or ‘used impermissibly as part of a
fishing expedition to discover evidence of other crimes.’ ” Nelson, 565 P.3d at
914 (internal quotation marks omitted) (quoting State v. Olsen, 189 Wn.2d 118,
134, 399 P.3d 1141 (2017)).
Murillo Márquez’s breath analysis and urinalysis conditions do not require
him to do, or refrain from doing, anything upon his release unless and until DOC
requests it. Consequently, his challenge again requires further factual
development. The issue is not ripe for review.
10 No. 86108-5-I/11
Statutory Maximum
Lastly, Murillo Márquez states that the no-contact order limiting contact
with H.G. and other minors exceeds the statutory maximum for child molestation
and is therefore unlawful on its face. The State agrees. Murillo Márquez is
correct and we remand for the trial court to limit the no-contact term to 10 years.
A trial court’s authority to impose sentencing conditions is statutory. In re
Postsentence Review of Leach, 161 Wn.2d 180, 184, 163 P.3d 782 (2007).
Sentencing provisions outside the authority of the trial court are unlawful. State
v. Pringle, 83 Wn.2d 188, 193-94, 517 P.2d 192 (1973). Erroneous or otherwise
unlawful sentences may be challenged for the first time on appeal. State v. Bahl,
164 Wn.2d 739, 744, 193 P.3d 678 (2008).
Under RCW 9.94A.505, a trial court may impose no-contact orders with
victims as a crime-related prohibition as long as the no-contact period does not
exceed the statutory maximum sentence. State v. Armendariz, 160 Wn.2d 106,
108, 120, 156 P.3d 201 (2007). RCW 9.94A.030(50) defines “statutory maximum
sentence” as “the maximum length of time for which an offender may be confined
as punishment for a crime.” Child molestation is a class B felony.
RCW 9A.44.086(2). The statutory maximum for a class B felony is 10 years.
RCW 9A.20.021(1)(b).
Here, the no-contact order prohibits Murillo Márquez from contact with
H.G. and other minors for a term of 20 years. As this exceeds the statutory
maximum sentence for child molestation, the no-contact order is unlawful. We
11 No. 86108-5-I/12
remand for the trial court to limit the no-contact order to the statutory maximum of
10 years.
We affirm the community custody condition requiring Murillo Márquez to
inform his CCO and sexual deviancy treatment provider of any dating
relationship, disclose his sex offender status to any potential partner, and obtain
permission from his CCO before engaging in sexual contact; conclude that the
community custody conditions requiring home visits and drug and alcohol testing
are not ripe for review; and remand for the trial court to modify the no-contact
order to comply with the statutory maximum.
WE CONCUR: