FILED DECEMBER 6, 2016 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STATE OF WASHINGTON, ) No. 31996-2-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) FIDEL CORTEZ, JR., ) ) Appellant. )
LAWRENCE-BERREY, A.CJ. - Fidel Cortez appeals his conviction for burglary
and two counts of robbery as an accomplice. He argues ( 1) prosecutorial misconduct,
(2) improper denial of a motion to suppress evidence, (3) insufficiency of the evidence to
convict, (4) the trial court impermissibly limited cross-examination, ( 5) the trial court
improperly admitted evidence, and (6) cumulative error. In his statement of additional
grounds for review (SAG), he argues the trial court erred when it imposed legal financial
obligations (LFOs) against him without first inquiring into his current and future ability
to pay. The State concedes one LFO should be stricken. We agree and otherwise affirm. No. 31996-2-111 State v. Cortez
FACTS
On January 29, 2012, Cortez and Christopher Blanco discussed their plan to rob
Cody Spicer, whom Cortez believed was a heroin dealer. They planned for Johnny
Torres to assist them.
That night, Blanco and Robert Cooper were at Spicer's duplex. While there,
Blanco used Cooper's and Spicer's cellular phones to call Cortez five or six times. After
making the calls, Blanco returned the phones. In one of the calls, he asked Cortez to pick
him up from Spicer's duplex.
Cortez asked Homero Villanueva for a ride so he could pick up Blanco.
Villanueva had been drinking, so Cortez agreed to drive. When the two got into
Villanueva's car they were joined by Torres, Ismael Ortiz, and Alejandro Castro.
Cortez and the others arrived at Spicer's duplex in the early morning hours of
January 30. Torres. gave Blanco money to buy heroin from Spicer to confirm that heroin
was present. After Blanco returned with the drugs, Ortiz, Torres, and Castro exited the
car wearing bandanas covering their faces. One of them had a gun.
The three originally went to the wrong side of the duplex, where Amy Gioletti
lived. Gioletti heard someone tapping on her back door. Blanco directed the three men
to Spicer's side of the duplex. Blanco then returned to the car.
Cooper was still at Spicer' s house. As Cooper was talking to friends, three people
wearing masks or bandanas covering their faces entered the duplex and yelled at people
to get on the ground. Cooper noticed a silver gun. Cooper and Spicer got on the ground.
2 No. 31996-2-III State v. Cortez
Someone yelled, "Give me the stuff," and removed Cooper's wallet from his pocket. 2
Report of Proceedings (RP) at 157. Gioletti heard the yelling from her duplex and called
the police.
Villanueva, Blanco, and Cortez had remained in the car. Villanueva asked Cortez
what the other three were doing. Cortez responded, "Heroin." 1 RP at 72. Soon after,
Ortiz, Torres, and Castro exited the duplex and ran back to the car, saying "hell, yeah, we
did it." 1 RP at 73. The group fled in Villanueva's car.
The police arrived at Spicer's duplex shortly after the group had fled. The robbers
had taken Cooper's and Spicer's cellular phones. Cooper told police his phone had
global positioning system (GPS) tracking on it, but he needed his wife to access his
account.
Corporal Juan Loera of the Moses Lake Police Department went with Cooper to
his house and met with Cooper's wife, Crystal Cooper. Crystal used the laptop in
Corporal Loera's patrol car to track Cooper's phone.
The tracking dot generally followed a logical course before settling on a house
located on Miller Drive. There, the robbers had recently arrived, and one or more of
them were drinking beer and injecting heroin. Corporal Loera and Officer Paul Ouimette
arrived at the house and called for backup.
Corporal Loera also sought a search warrant for the house based on Cooper's
statement and the results from the GPS tracking. In his application for the search
warrant, Corporal Loera described the robbery, Cooper's stolen phone, how he and
3 No. 31996-2-III State v. Cortez
Crystal had tracked Cooper's stolen phone to the subject house, and how the GPS
tracking provided a margin of error of between 17 and 20 yards.
After more officers arrived, Officer Ouimette called to the occupants to come out
and talk to police. The occupants panicked, and hid the items seized in the robbery
around the house. Before the search warrant was authorized, the occupants-including
Cortez-came outside and submitted to police.
Once the search warrant was authorized, police searched the house. In addition,
Corporal Loera used his cellular phone to call Cooper's phone. Police found a silver
handgun, a knife, and items belonging to Spicer and Cooper, including cellular phones
belonging to each, and Cooper's wallet.
Police took Cooper's phone as evidence, but Cooper requested it back for his use.
Mike Shay, the prosecutor's investigator, met with Cooper to return his phone. Shay
asked Cooper to show him the call log on the phone. The call log for January 30 showed
Corporal Loera' s cellular number as a missed call, and preceding that, repeated outgoing
calls to the same number.
PROCEDURE
At a hearing before trial, Cortez moved the court to suppress all evidence taken
from the search of the house at Miller Drive. He argued there was insufficient
information for a magistrate to know the GPS tracking was accurate. The parties
stipulated that Cortez did not live at the house. The State argued that a reasonable person
was sufficiently familiar with cellular phones and GPS tracking for a magistrate to make
4 No. 31996-2-III State v. Cortez
a decision about probable cause. The trial court agreed and denied Cortez's motion to
suppress.
At trial, Blanco testified on direct that he cooperated with police and testified
against Cortez to obtain a lesser sentence. He testified he faced a maximum sentence of
22 years, including firearm enhancements, but received a sentence of only 2 years
because of his agreement to cooperate. Cortez sought to admit Bianco's charging
information to show how the sentence was structured with the firearm enhancements.
The State objected and argued the charging information was irrelevant. Cortez agreed
Blanco testified accurately about the maximum sentence he faced, and the lesser sentence
he received. The trial court sustained the State's objection and prevented Cortez from
admitting the charging information.
Later, the State attempted to admit a photograph of Cooper's cellular phone log
through Shay, its investigator. Cortez objected and questioned Shay's ability to
authenticate the photograph. The trial court excused the jury so the trial court could hear
argument. After argument, the trial court overruled Cortez's objection. But the trial
court largely neutralized the call log by also ruling that Shay could not testify that the
outgoing number that was repeatedly dialed belonged to Cortez. 1
At trial, Officer Ouimette testified Corporal Loera initially sent him to a location
on Grape and Dale. This location was not on the route taken by the robbers, and was
1 Blanco testified he did not remember Cortez's cellular number. Shay would have confirmed the number belonged to Cortez, but the basis of his knowledge depended on hearsay.
5 No. 31996-2-III State v. Cortez
nowhere near the house on Miller Drive. During closing arguments, Cortez questioned
the accuracy of the OPS tracking. In rebuttal, the State responded:
[STATE:] We do have this one random OPS hit. Yeah. If you've ever used one of those things-and I'm sure you all have, with cell phone OPS-they sometimes give big circles, they're not accurate sometimes when they're displaying themselves. We have a couple along the route right there- [DEFENSE]: Your Honor, I think I need to make an objection. THE COURT: Sustained. That's arguing facts not in evidence.
4 RP at 680-81. Cortez did not request an admonition from the bench for the jury to
ignore the argument or a curative instruction.
The jury found Cortez guilty on counts 1, 2, and 3-the robberies of Spicer and
Cooper and the burglary in Cooper's residence. The jury found Cortez not guilty of
various other charged crimes. And the jury answered no to the questions of whether
Cortez was armed with a firearm during the commission of counts 1, 2, and 3.
Cortez appeals.
ANALYSIS
A. PROSECUTORIAL MISCONDUCT
Cortez argues the State committed prosecutorial misconduct in closing by
engaging in inconsistent arguments. At the suppression hearing, the State argued the
OPS tracking was accurate and common enough that a layperson could reasonably rely
on it. But the OPS tracking once showed Cooper's cellular phone at a location other than
the route taken from Spicer's house and across town from the house at Miller Drive.
6 No. 31996-2-III State v. Cortez
Cortez argued this in closing. In rebuttal, the State began to tell the jury how GPS
worked, and that individual GPS signals sometimes were inaccurate.
To establish prosecutorial misconduct, a defendant has the burden to show that the
prosecutor's statements were improper and, as a result, prejudicial. State v. Dhaliwal,
150 Wn.2d 559, 578, 79 P.3d 432 (2003). For improper statements that were followed by
a proper objection, a prosecutor's statements are prejudicial if the statement had a
substantial likelihood of affecting the jury's verdict. State v. Emery, 174 Wn.2d 741,
760, 278 P.3d 653 (2012). Reversal is not required if the error could have been obviated
by a curative instruction that the defense did not request. State v. Russell, 125 Wn.2d 24,
85, 882 P.2d 747 (1994).
Cortez contends, without elaboration, that the prejudice is clear. But the accuracy
of the GPS tracking was not an issue for the jury. The events of the robbery and the
starting location of Spicer's home were corroborated by Cooper. The events at the house
at Miller Drive were also corroborated by testimony of other witnesses, as well as the
items found by law enforcement at the house. We conclude that the accuracy of the GPS
tracking, or arguable lack thereof, did not have a substantial likelihood of affecting the
jury's verdict.
B. SUPPRESSION HEARING
Cortez argues the trial court erred in denying his motion to suppress the evidence
seized from the house at Miller Drive. He argues there was no evidence whether the GPS
tracking was reliable.
7 No. 31996-2-III State v. Cortez
As a threshold issue, this court must determine whether Cortez has standing to
challenge the search warrant. The trial court concluded Cortez did have standing.
This court may affirm on any ground supported by the record. State v. White, 13 7
Wn. App. 227, 230, 152 P.3d 364 (2007). "[R]esolution of a motion to suppress requires
a two-part inquiry: (1) whether a defendant has standing to challenge the police conduct;
and (2) whether the police conduct is contrary to the constitutional protections and
guarantees." 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL
PRACTICE AND PROCEDURE§ 2402, at 533 (3d ed. 2004). We review conclusions of law
following a suppression hearing de novo. State v. Mendez, 137 Wn.2d 208, 214, 970
P .2d 722 ( 1999).
The United States Supreme Court has held that a guest, present in the home of
another, with consent, does not possess a privacy interest in that other's home.
Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). The
Fourth Amendment to the United States Constitution protects people, not places, and is a
personal right that must be invoked by the individual. Id. at 88. As a limited safeguard,
courts have developed the doctrine of automatic standing to confer third party standing
under certain conditions.
Here, the parties stipulated that Cortez was only a short-term invited guest and did
not reside at the subject house. Cortez thus must rely on the doctrine of automatic
standing. At the suppression hearing, the State argued, albeit unsuccessfully, Cortez did
not have automatic standing.
8 No. 31996-2-III State v. Cortez
To assert automatic standing, a defendant must be charged with a possessory
offense and be in possession of the subject matter at the time of the search or seizure.
State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). In addition to the charges of
robbery and burglary, the State charged Cortez with intimidating a witness, witness
tampering, and delivery of a controlled substance. It is obvious that robbery, burglary,
intimidating a witness, and witness tampering are not possessory offenses. Although less
obvious, delivery of a controlled substance is not a possessory offense either. See State v.
De Vries, 149 Wn.2d 842, 849-50, 72 P.3d 748 (2003) (The elements of delivery of a
controlled substance are: ( 1) delivery of a controlled substance, and (2) knowledge that
the substance delivered was a controlled substance.). Also, Cortez was outside the Miller
Drive house at the time of the search. Because Cortez cannot establish he has automatic
standing, we do not reach the substantive issue he presents.
C. ADMISSION OF THE CALL LOG
Cortez next argues the trial court erred when it admitted a photograph of a call log
without proper authentication. Cortez contends Cooper, not Shay, should have been the
person to authenticate the photograph.
A trial court's determination of whether evidence has been properly authenticated
is reviewed for an abuse of discretion. In re Det. of HN, 188 Wn. App. 744,753,355
P.3d 294 (2015), review denied, 185 Wn.2d 1005, 366 P.3d 1244 (2016). An abuse of
discretion occurs when the trial court's decision is manifestly unreasonable or based on
untenable grounds or reasons. Id.
9 No. 31996-2-III State v. Cortez
ER 90l(a) requires authentication or identification as a condition precedent to
admissibility. State v. Bradford, 175 Wn. App. 912, 928, 308 P.3d 736 (2013). This
determination is a preliminary question, so the rules of evidence do not apply. Id. The
court should admit the evidence if there is sufficient proof to permit a reasonable juror to
find that something is what it purports to be. Passovoy v. Nordstrom, Inc., 52 Wn. App.
166, 171, 758 P.2d 524 (1988). For example, testimony that the person on the other end
of a telephone call identified himself as a specific person is, alone, insufficient. Id.
However, courts routinely find identity authenticated when self-identification is
combined with virtually any circumstantial evidence. Id.
Cortez contends Cooper was the best person to authenticate the photograph of his
own call log. That may be, but that does not disqualify the State's investigator, Shay,
from authenticating the photograph. Here, Shay was the person who took the
photograph. Prior to taking it, he asked Cooper to display his call log on his cellular
phone. That, combined with the photograph showing Corporal Loera's missed call, was
sufficient to properly authenticate the photograph. We determine the trial court did not
abuse its discretion when it admitted the photograph of the call log.
D. SUFFICIENCY OF THE EVIDENCE FOR FIRST DEGREE ROBBERY CONVICTIONS
Cortez contends the evidence was insufficient to convict him of the two first
degree robbery charges. Here, the State charged Cortez, as a principal or an accomplice,
with first degree robbery under RCW 9A.56.200(l)(a)(i) or (ii). This required the State
to prove beyond a reasonable doubt that Cortez or an accomplice was armed with a
10 No. 31996-2-111 State v. Cortez
deadly weapon or displayed what appeared to be a firearm or other deadly weapon.
Cortez makes three arguments that we will address in tum below.
In a criminal case, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307,316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When evaluating the sufficiency of
the evidence, the court must determine whether, when viewing the evidence in the light
most favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt. State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995). A claim of
insufficiency admits the truth of the State's evidence and all reasonable inferences from
that evidence. State v. Kintz, 169 Wn.2d 537,551,238 P.3d 470 (2010). Reviewing
courts also must defer to the trier of fact "on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821,
874-875, 83 P.3d 970 (2004). We do not reweigh the evidence and substitute our
judgment for that of the jury. State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980).
For sufficiency of evidence claims, circumstantial and direct evidence carry equal weight.
State v. Varga, 151 Wn.2d 179,201, 86 P.3d 139 (2004).
1. Inconsistency of verdicts
Cortez first contends the evidence was insufficient because the jury's special
verdict determined that neither he nor a principal was armed with a firearm when
committing the robberies. "Where the jury's verdict is supported by sufficient evidence
from which it could rationally find the defendant guilty beyond a reasonable doubt, we
11 No. 31996-2-III State v. Cortez
will not reverse on grounds that the guilty verdict is inconsistent with an acquittal on
another count." State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988).
Here, the jury was asked in the special verdict forms, "Was the defendant FIDEL*
CORTEZ, JR armed with a firearm at the time of the commission of the [robberies]."
Clerk's Papers (CP) at 182. Pages earlier, in a somewhat lengthy jury instruction, the
jurors were informed, "For purposes of a special verdict ... [i]f one participant to a crime
is armed with a deadly weapon, all accomplices to that participant are deemed to be so
armed, even if only one deadly weapon is involved." CP at 164. We note the jury had to
wade through 43 separate instructions to arrive at its verdicts. It is likely that the jurors,
when answering the robbery special verdict forms, did not recall the one sentence quoted
above. That is, by answering no in the special verdict forms, the jurors were merely
finding that Cortez, himself, was not armed with a firearm during the commission of the
robberies.
Nevertheless, the facts are sufficient for a rational trier of fact to find a firearm
was used in the robberies of Spicer and Cooper. Blanco testified he saw one of the
accomplices with a gun before the accomplices left the car and went into the duplex.
Cooper testified he saw a silver handgun during the robbery. And Officer Ouimette
found a silver handgun inside the house at Miller Drive.
2. No evidence a firearm was used or displayed
Cortez also argues there was no evidence that an accomplice used or displayed a
firearm. In State v. Henderson, 34 Wn. App. 865, 868, 664 P.2d 1291 (1983), we held
12 No. 31996-2-III State v. Cortez
the purpose of the first degree robbery statute was to "proscribe conduct in the course of a
robbery which leads the victim to believe the robber is armed with a deadly weapon,
whether the weapon is actually loaded and operable or not, and whether the weapon is
real or toy." Here, Cooper testified he saw one of the robbers with a silver handgun "out
of the comer of [his] eye." 2 RP at 156. This is sufficient for a rational trier of fact to
find beyond a reasonable doubt that an accomplice used or displayed a firearm.
3. Spicer did not testify any item was taken from him
Cortez next contends because Spicer did not testify, the evidence was insufficient
to establish Spicer was a victim of the robbery. We disagree. Blanco used Spicer's
cellular phone but returned it to him prior to the robbery. Spicer was ordered to the
ground during the robbery alongside Cooper. Spicer's cellular phone and wallet were
found in the house at Miller Drive. This evidence permits a rational trier of fact to have
found beyond a reasonable doubt that Spicer was a victim of the robbery.
E. SUFFICIENCY OF EVIDENCE FOR BURGLARY CONVICTION
Cortez argues Spicer did not testify at trial so it was unclear whether the three
masked men were licensed or privileged to enter his duplex. Here, the State
charged Cortez, as a principal or as an accomplice, with first degree burglary under
RCW 9A.52.020. One of the elements the State was required to prove was that an
accomplice entered or remained unlawfully in or upon the subject premises. "A person
'enters or remains unlawfully' in or upon premises when he or she is not then licensed,
13 No. 31996-2-III State v. Cortez
invited, or otherwise privileged to so enter or remain." Former RCW 9A.52.010(3)
(2011).
Circumstantial evidence is entitled to as much weight as direct evidence. Varga,
151 Wn.2d at 201. Here, three men with their faces covered with masks or bandanas
entered the duplex and yelled at everyone to get down on the floor. There was no
evidence that any of the accomplices knocked or rang the doorbell. There was no
evidence Spicer answered the door. Instead, he was next to Cooper, near the couch,
when the robbers ordered everyone to the ground. But even if Spicer opened the door, it
is highly improbable that Spicer invited three masked men into his duplex. Cortez was
free to argue that the masked robbers were invited in by Spicer. But the jury was
permitted, by circumstantial evidence, to find otherwise.
F. LIMITATION OF CROSS-EXAMINATION
Cortez next assigns error to the trial court's exclusion of Bianco's criminal
information during his cross-examination of Blanco. Cortez contends the confrontation
clause allows him to explore the bias Blanco had because Bianco's cooperation with the
State was due to a plea deal.
A trial court's ruling on the admissibility of evidence is reviewed for abuse of
discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). Abuse exists
when the trial court's exercise of discretion is "' manifestly unreasonable or based upon
untenable grounds or reasons."' Id. (quoting State v. Powell, 126 Wn.2d 244, 258, 893
P.2d 615 (1995)). Relevant evidence may be excluded if"its probative value is
14 No. 31996-2-III State v. Cortez
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." ER 403. A trial court's limitation of cross-
examination will not be disturbed unless it is the result of manifest abuse of discretion.
Darden, 145 Wn.2d at 619. "However, the more essential the witness is to the
prosecution's case, the more latitude the defense should be given to explore fundamental
elements such as motive, bias, credibility, or foundational matters." Id.
Under the Sixth Amendment's confrontation clause, an accused has a right to
confront the witnesses against him. U.S. CONST. amend. VI; see also Crawford v.
Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). This right,
which applies to the states through the Fourteenth Amendment's due process clause,
speaks to a defendant's right to cross-examine adverse witnesses. See Pointer v. Texas,
380 U.S. 400, 404-05, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). However, the right to
cross-examine witnesses is not absolute: "Courts may, within their sound discretion, deny
cross-examination if the evidence is vague, argumentative, or speculative." Darden, 145
Wn.2d at 620-21. Further, the subject matter of the cross-examination is "limited by
general considerations of relevance." Id. at 621 (citing ER 401; ER 403).
Our Supreme Court follows a three-pronged approach to determine the limitations
of a defendant's confrontation clause right to cross-examination. Id. at 622. First, the
evidence sought must have at least minimal relevance. Id. Second, if relevant, the
burden is on the State to show the evidence is "so prejudicial as to disrupt the fairness of
15 No. 31996-2-III State v. Cortez
the fact-finding process at trial." Id. Third, the court must balance the State's interest in
excluding prejudicial evidence against the defendant's need for the information. "[O]nly
if the State's interest outweighs the defendant's need can otherwise relevant information
be withheld." Id. Ultimately, restrictions on cross-examination are subject to the trial
court's discretion, and this court reviews for abuse of discretion. State v. Fisher, 165
Wn.2d 727,752,202 P.3d 937 (2009).
The trial court did not allow defense to use Bianco's criminal information during
cross-examination to ask him how many firearm enhancements he faced. The trial court
stated it was not helpful and wasteful of the jury's time. We agree. The State elicited
testimony from Blanco that he agreed to cooperate in exchange for receiving a reduced
sentence of 2 years instead of a maximum sentence of 22 years. Defense counsel agreed
that Blanco testified accurately both to the sentence he received and the maximum
sentence he faced.
The criminal information shows charged crimes and the authorizing statutes, but
the actual sentences for each charge are not listed. Nor is there any indication of total
time potentially faced. Blanco did testify he wanted to cooperate when he saw the gun
enhancements, but the document in no way shows what amount of time each
enhancement would carry. Nor did the document contain any information about the two-
year deal Blanco received instead. At best, the document showed Blanco faced criminal
charges and three firearm enhancement stemming from those charges.
16 No. 31996-2-III State v. Cortez
In light of Bianco's admission of the prison time he faced and the prison time he
received, it was not manifestly unreasonable for the trial court to determine that the
charging information was vague or not relevant. The information provided no further
relevant information. We determine the trial court did not abuse its discretion by
excluding Bianco's charging information.
G. CUMULATIVE ERROR
Cortez argues cumulative error requires reversal of his convictions. Under the
cumulative error doctrine, a defendant may be entitled to a new trial when several trial
errors cumulatively produced a fundamentally unfair trial. State v. Coe, 101 Wn.2d 772,
789,684 P.2d 668 (1984). Cumulative error may require reversal even if each error
standing alone would be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149
P.3d 646 (2006). However, the cumulative error doctrine does not apply here, where
Cortez has failed to establish any trial error. See State v. Saunders, 120 Wn. App. 800,
826, 86 P.3d 232 (2004).
STATEMENT OF ADDITIONAL GROUNDS
Cortez argues the trial court erred when it imposed LFOs without first inquiring
into his current and future ability to pay them. The trial court imposed a $500 victim
assessment fee, a $200 criminal filing fee, a $100 DNA 2 collection fee, and a $600 court-
appointed attorney fee. Cortez argues, and the State concedes, the court-appointed
attorney fee cost should not have been imposed because Cortez hired a private attorney.
2 Deoxyribonucleic acid.
17 No. 31996-2-III State v. Cortez
Although Cortez contests all LFOs, only the court-appointed attorney fee is a
discretionary cost. The victim assessments, DNA fees, and criminal filing fees are
mandatory costs. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013). There is
no requirement for courts to conduct an individualized inquiry before imposing
mandatory costs.
We accept the State's concession of error and direct the trial court to amend the
judgment and sentence to remove the $600 court-appointed attorney fee cost. This
amendment, favorable to Cortez, does not require his presence.
Affirm, but strike attorney fee LFO.
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.
Law~nce-Berrey~ A.CJ. (
WE CONCUR: j
;J2~w~ .). doway, J. · Pennell, J.