FILED DECEMBER 15, 2022 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 36763-1-III Respondent, ) ) v. ) ) DAVIEL DAVIS CANELA, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. — Daviel Canela’s appeal returns to us following a decision by
the Washington Supreme Court that a statement in State v. Vangerpen, 125 Wn.2d 782,
791, 888 P.2d 1177 (1995), on which this court relied in State v. Murry, 13 Wn. App. 2d
542, 465 P.3d 330 (2020), and in Mr. Canela’s appeal1 was dictum, and incorrect. State
v. Canela, 199 Wn.2d 321, 330-31, 505 P.3d 1166 (2022) (Canela II). In Vangerpen, the
court stated that the State failed to charge an essential element of attempted first degree
murder when it failed to allege premeditation. This court had recognized that
premeditation is not an element of the attempt crime for purposes of jury instruction, but
1 State v. Canela, No. 36763-1-III (Wash. Ct. App. May 6, 2021) (unpublished) (Canela I), http://www.courts.wa.gov/opinions/pdf/367631_unp.pdf. No. 36763-1-III State v. Canela
reconciled Vangerpen by construing it to be an element for charging purposes only.
Murry, 13 Wn. App. 2d at 552; Canela I, slip op. at 13-15 (citing Murry). In addition to
reversing our decision on that issue in Mr. Canela’s case, the Supreme Court overruled
Murry.
We had reversed Mr. Canela’s conviction for attempted first degree murder
without prejudice to refiling, leaving him convicted of only second degree unlawful
possession of a firearm. Canela I, slip op. at 1. In reinstating Mr. Canela’s attempted
murder conviction, the Supreme Court directed us to “resolve any remaining appealed
issues that were not resolved.” Canela II, 199 Wn.2d at 336.
Resentencing is required in light of the fact that Mr. Canela’s offender score at his
2019 sentencing included a point for a prior simple possession of a controlled substance
conviction, which is no longer a valid conviction following State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021). We accept State concessions on two of the unresolved issues,
decide the others, and remand with directions to engage in a resentencing at which (1)
Mr. Canela’s offender score shall be calculated without counting his controlled substance
possession conviction, (2) two gang-related community custody conditions imposed by
his prior judgment and sentence shall be struck or not imposed, (3) if Mr. Canela remains
indigent, the judgment and sentence shall be modified or drafted to provide that interest
shall accrue only on any restitution imposed, not his other legal financial obligations
2 No. 36763-1-III State v. Canela
(LFOs), and (4) a community custody condition requiring payment of supervision fees as
determined by the Department of Corrections (DOC) shall be struck or not imposed.
FACTS AND PROCEDURAL BACKGROUND
On an afternoon in March 2018, Pasco police officers responded to calls reporting
that someone had been shot outside an apartment complex. The victim, Victor Garcia,
had been shot twice by Daviel Canela, but survived.
There were four eyewitnesses to the shooting: Zeima Cadenas Quintero, Mr.
Garcia’s girlfriend, who had been on the street with Mr. Garcia when they saw Mr.
Canela, who they knew; two 16-year-old high school friends, who were on their way
from a grocery store to one of the teen’s homes; and Josef Stueckle, who, while smoking
outside a friend’s apartment, had spoken with Mr. Canela and Mr. Garcia and offered
them cigarettes.
Information from the witnesses led the responding officers to look for Mr. Canela
at his friend’s apartment a few blocks away, where they located him. After obtaining a
search warrant for the apartment, police found a .22 caliber revolver in a leather holster
hidden in the toilet tank. Other guns were found in a cutout in the wall that was located
behind the bathroom mirror. Police located a gray hooded sweatshirt in a bedroom
located next to the bathroom where the guns were found; both of the teen-aged witnesses
had described Mr. Garcia’s shooter as wearing a gray hoodie.
3 No. 36763-1-III State v. Canela
Mr. Canela was charged with one count of attempted first degree murder and one
count of unlawful possession of a firearm in the second degree. The jury found Mr.
Canela guilty as charged. A motion for a new trial was denied.
At sentencing, the trial court imposed a sentence of 276 months for the attempted
murder count and 29 months for the unlawful possession of a firearm count, to run
concurrently. It imposed 36 months’ community custody for the firearm enhancement
associated with the attempted murder. It imposed a $500 victim’s assessment that the
judgment and sentence provided would be interest-bearing, and the judgment and
sentence included preprinted language requiring Mr. Canela to pay supervision fees as
determined by the DOC. The court had said during the sentencing hearing that other than
the crime victim’s assessment and restitution, it would not impose any further fines, fees,
or costs.
Mr. Canela filed a notice of appeal and obtained an order of indigency on the day
he was sentenced. In addition to the customary briefing, we granted two motions by Mr.
Canela to brief additional issues supplementally.
ANALYSIS
Between his opening brief and the two supplemental briefs authorized by this
court, Mr. Canela made a dozen assignments of error. In our original opinion, we
addressed all of the errors alleged to have occurred at trial. Since the resentencing would
4 No. 36763-1-III State v. Canela
be for only one conviction, and a less serious one, we declined to reach sentencing issues
that we held could be raised and argued at resentencing.
In the 10 months between our decision and the Supreme Court’s reversal in part
the trial and sentencing judge retired, so we provide more direction on the resentencing
than we might have otherwise.
I. RESENTENCING IS WARRANTED FOLLOWING BLAKE
In supplemental briefing, Mr. Canela pointed out that his offender score at his
2019 sentencing was calculated based on a criminal history that included a 2015
conviction for possession of a controlled substance, which, following Blake, is void.
Blake, 197 Wn.2d at 195. Blake declared unconstitutional the statute criminalizing
simple possession of a controlled substance (former RCW 69.50.4013 (2017)) because it
criminalized innocent and passive possession. 197 Wn.2d at 183. The State concedes
that Mr. Canela is entitled to have his simple possession conviction vacated and that we
should remand for resentencing.
II. TWO GANG-RELATED COMMUNITY CUSTODY CONDITIONS SHOULD BE STRUCK OR NOT IMPOSED
Mr. Canela challenged community custody conditions restricting his association
with “known gang members” and his possession of “gang paraphernalia” as
constitutionally overbroad and vague. The conditions appear at page 10 of his judgment
5 No. 36763-1-III State v. Canela
and sentence. The State responded that it would agree to strike the two conditions based
on the cases cited by Mr. Canela.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED DECEMBER 15, 2022 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 36763-1-III Respondent, ) ) v. ) ) DAVIEL DAVIS CANELA, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. — Daviel Canela’s appeal returns to us following a decision by
the Washington Supreme Court that a statement in State v. Vangerpen, 125 Wn.2d 782,
791, 888 P.2d 1177 (1995), on which this court relied in State v. Murry, 13 Wn. App. 2d
542, 465 P.3d 330 (2020), and in Mr. Canela’s appeal1 was dictum, and incorrect. State
v. Canela, 199 Wn.2d 321, 330-31, 505 P.3d 1166 (2022) (Canela II). In Vangerpen, the
court stated that the State failed to charge an essential element of attempted first degree
murder when it failed to allege premeditation. This court had recognized that
premeditation is not an element of the attempt crime for purposes of jury instruction, but
1 State v. Canela, No. 36763-1-III (Wash. Ct. App. May 6, 2021) (unpublished) (Canela I), http://www.courts.wa.gov/opinions/pdf/367631_unp.pdf. No. 36763-1-III State v. Canela
reconciled Vangerpen by construing it to be an element for charging purposes only.
Murry, 13 Wn. App. 2d at 552; Canela I, slip op. at 13-15 (citing Murry). In addition to
reversing our decision on that issue in Mr. Canela’s case, the Supreme Court overruled
Murry.
We had reversed Mr. Canela’s conviction for attempted first degree murder
without prejudice to refiling, leaving him convicted of only second degree unlawful
possession of a firearm. Canela I, slip op. at 1. In reinstating Mr. Canela’s attempted
murder conviction, the Supreme Court directed us to “resolve any remaining appealed
issues that were not resolved.” Canela II, 199 Wn.2d at 336.
Resentencing is required in light of the fact that Mr. Canela’s offender score at his
2019 sentencing included a point for a prior simple possession of a controlled substance
conviction, which is no longer a valid conviction following State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021). We accept State concessions on two of the unresolved issues,
decide the others, and remand with directions to engage in a resentencing at which (1)
Mr. Canela’s offender score shall be calculated without counting his controlled substance
possession conviction, (2) two gang-related community custody conditions imposed by
his prior judgment and sentence shall be struck or not imposed, (3) if Mr. Canela remains
indigent, the judgment and sentence shall be modified or drafted to provide that interest
shall accrue only on any restitution imposed, not his other legal financial obligations
2 No. 36763-1-III State v. Canela
(LFOs), and (4) a community custody condition requiring payment of supervision fees as
determined by the Department of Corrections (DOC) shall be struck or not imposed.
FACTS AND PROCEDURAL BACKGROUND
On an afternoon in March 2018, Pasco police officers responded to calls reporting
that someone had been shot outside an apartment complex. The victim, Victor Garcia,
had been shot twice by Daviel Canela, but survived.
There were four eyewitnesses to the shooting: Zeima Cadenas Quintero, Mr.
Garcia’s girlfriend, who had been on the street with Mr. Garcia when they saw Mr.
Canela, who they knew; two 16-year-old high school friends, who were on their way
from a grocery store to one of the teen’s homes; and Josef Stueckle, who, while smoking
outside a friend’s apartment, had spoken with Mr. Canela and Mr. Garcia and offered
them cigarettes.
Information from the witnesses led the responding officers to look for Mr. Canela
at his friend’s apartment a few blocks away, where they located him. After obtaining a
search warrant for the apartment, police found a .22 caliber revolver in a leather holster
hidden in the toilet tank. Other guns were found in a cutout in the wall that was located
behind the bathroom mirror. Police located a gray hooded sweatshirt in a bedroom
located next to the bathroom where the guns were found; both of the teen-aged witnesses
had described Mr. Garcia’s shooter as wearing a gray hoodie.
3 No. 36763-1-III State v. Canela
Mr. Canela was charged with one count of attempted first degree murder and one
count of unlawful possession of a firearm in the second degree. The jury found Mr.
Canela guilty as charged. A motion for a new trial was denied.
At sentencing, the trial court imposed a sentence of 276 months for the attempted
murder count and 29 months for the unlawful possession of a firearm count, to run
concurrently. It imposed 36 months’ community custody for the firearm enhancement
associated with the attempted murder. It imposed a $500 victim’s assessment that the
judgment and sentence provided would be interest-bearing, and the judgment and
sentence included preprinted language requiring Mr. Canela to pay supervision fees as
determined by the DOC. The court had said during the sentencing hearing that other than
the crime victim’s assessment and restitution, it would not impose any further fines, fees,
or costs.
Mr. Canela filed a notice of appeal and obtained an order of indigency on the day
he was sentenced. In addition to the customary briefing, we granted two motions by Mr.
Canela to brief additional issues supplementally.
ANALYSIS
Between his opening brief and the two supplemental briefs authorized by this
court, Mr. Canela made a dozen assignments of error. In our original opinion, we
addressed all of the errors alleged to have occurred at trial. Since the resentencing would
4 No. 36763-1-III State v. Canela
be for only one conviction, and a less serious one, we declined to reach sentencing issues
that we held could be raised and argued at resentencing.
In the 10 months between our decision and the Supreme Court’s reversal in part
the trial and sentencing judge retired, so we provide more direction on the resentencing
than we might have otherwise.
I. RESENTENCING IS WARRANTED FOLLOWING BLAKE
In supplemental briefing, Mr. Canela pointed out that his offender score at his
2019 sentencing was calculated based on a criminal history that included a 2015
conviction for possession of a controlled substance, which, following Blake, is void.
Blake, 197 Wn.2d at 195. Blake declared unconstitutional the statute criminalizing
simple possession of a controlled substance (former RCW 69.50.4013 (2017)) because it
criminalized innocent and passive possession. 197 Wn.2d at 183. The State concedes
that Mr. Canela is entitled to have his simple possession conviction vacated and that we
should remand for resentencing.
II. TWO GANG-RELATED COMMUNITY CUSTODY CONDITIONS SHOULD BE STRUCK OR NOT IMPOSED
Mr. Canela challenged community custody conditions restricting his association
with “known gang members” and his possession of “gang paraphernalia” as
constitutionally overbroad and vague. The conditions appear at page 10 of his judgment
5 No. 36763-1-III State v. Canela
and sentence. The State responded that it would agree to strike the two conditions based
on the cases cited by Mr. Canela.
This court previously concluded that a condition imposed by a juvenile court that
forbade the defendant from possessing “gang paraphernalia” was unconstitutionally
vague. State v. Villano, 166 Wn. App. 142, 144, 272 P.3d 255 (2012). And Mr. Canela
points out that “gang member” is broad enough to include individuals who associate for
reasons other than engaging in crime or violence.
We accept the State’s concession and order the two conditions to be struck or not
reimposed.
III. INTEREST IMPOSED BY THE JUDGMENT AND SENTENCE SHOULD APPLY ONLY TO RESTITUTION
Mr. Canela challenges preprinted language in the judgment and sentence form
stating that “[t]he financial obligations imposed in this judgment shall bear interest from
the date of the Judgment until payment in full, at the rate applicable to civil judgments.”
Clerk’s Papers (CP) at 84 (Section 4.1). The State responds that it has no objection to the
judgment and sentence being clarified to indicate that interest will be imposed only on
restitution. In entering the judgment and sentence, the court indicated at page 6 that
restitution may be set by later order of the court.
As of June 7, 2018, penalties, fines, bail forfeitures, fees, and costs imposed
against a defendant in a criminal proceeding do not accrue interest. RCW 3.50.100(4)(b);
6 No. 36763-1-III State v. Canela
State v. Dillon, 12 Wn. App. 2d 133, 153, 456 P.3d 1199, review denied, 195 Wn.2d
1022, 464 P.3d 198 (2020). We accept the State’s concession and order the interest
provision to be revised to apply only to any restitution that was ordered.
IV. SUPERVISORY FEES SHOULD BE STRUCK OR NOT IMPOSED
Mr. Canela submits that the trial court intended to impose only mandatory LFOs,
so preprinted language at page 9 of the judgment and sentence requiring him to pay
supervision fees as determined by the DOC should be struck as an oversight. The State
responds that supervision fees are not a cost, and should not be struck.
Since the filing of the parties’ briefs, the legislature has amended RCW 9.94A.703
to remove a condition, waivable by the trial court at sentencing, that defendants pay
supervision fees. This court has held that the amended statute applies prospectively to
cases on direct appeal. State v. Wemhoff, No. 38371-7-III, slip op. at 5 (Wash. Ct. App.
Nov. 3, 2022), http://www.courts.wa.gov.opinions/pdf/383717_pub.pdf. In the interest of
judicial economy, we rely on that basis to direct the trial court to strike or not impose a
requirement to pay supervisory fees.
We remand with directions to engage in a resentencing at which (1) Mr. Canela’s
offender score shall be calculated without counting his controlled substance possession
conviction, (2) two gang-related community custody conditions imposed by his prior
judgment and sentence shall be struck or not imposed, (3) if Mr. Canela remains indigent,
the judgment and sentence shall be modified or drafted to provide that interest shall
7 No. 36763-1-III State v. Canela
accrue only on any restitution imposed, not his other LFOs, and (4) the community
custody condition requiring payment of supervision fees as determined by the DOC shall
be struck or not imposed.
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.
Siddoway, C.J.
WE CONCUR:
Fearing, J.
Staab, J.