State of Washington v. Julio Cesar Pantoja

• Court: Court of Appeals of Washington
• Decided: June 10, 2021
• Docket: 37477-7
• Status: Unpublished

Opinion

FILED JUNE 10, 2021 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STATE OF WASHINGTON, ) ) No. 37477-7-III Respondent, ) ) v. ) ) JULIO CESAR PANTOJA, ) UNPUBLISHED OPINION ) Appellant. )

SIDDOWAY, A.C.J. — Julio Cesar Pantoja appeals his convictions for two counts

of second degree assault and challenges two terms of his sentence. All the issues are

raised for the first time on appeal, but the instructional error alleged is of constitutional

magnitude. In a supplemental challenge that we allowed Mr. Pantoja to raise following

the Washington Supreme Court’s decision in State v. Blake, 197 Wn.2d 170, 481 P.3d

521 (2021), he appeals his conviction for unlawful possession of a controlled substance.

We find no instructional error. Following Blake, his controlled substance

conviction must be vacated. Resentencing will be required, at which Mr. Pantoja can

object to the community custody condition and the legal financial obligation that he did

not challenge at his original sentencing. We affirm his convictions for second degree

assault, vacate his controlled substance conviction, and remand for resentencing. No. 37477-7-III State v. Pantoja

FACTS AND PROCEDURAL BACKGROUND

The second degree assaults at issue on appeal occurred on an evening in July

2018, following a barbecue at the home of the parents of Mr. Pantoja. Mr. Pantoja was

living at the home at the time, as was Danielle Passmore, Mr. Pantoja’s girlfriend, and the

couple’s three children.

After most of the family had gone inside (Mr. Pantoja was still outside) Ms.

Passmore asked her son B.P., who was then 14, to go downstairs and retrieve her phone.

Just as B.P. went downstairs, Mr. Pantajo came inside, angry about someone having

turned off his music.

Mr. Pantoja followed B.P. downstairs and called him into the living area, where

his (Mr. Pantoja’s) bed was located. When B.P. entered, Mr. Pantoja was holding a pistol

that he pointed at B.P. and angrily asked if B.P. had turned off his music. Ms. Passmore

heard Mr. Pantoja yelling at B.P. and ran downstairs, where she saw Mr. Pantoja pointing

a gun at her son. She pushed B.P. toward the stairs, told him to run, and moved toward

Mr. Pantoja, telling him that if he was going to shoot someone, he should shoot her. He

grabbed her by the neck and pulled her to him, her back against his chest. As he held her,

he hit her head with the gun. She described it at Mr. Pantoja’s trial as “tapping” her head,

explaining that “I didn’t—well, sustain any injuries or anything.” Report of Proceedings

(RP) at 295. B.P. saw Mr. Pantoja grab his mother and tap his gun on her head before

running upstairs. Mr. Pantoja then let Ms. Passmore go. B.P.’s cousin called police.

2 No. 37477-7-III State v. Pantoja

Mr. Pantoja left through the home garage. He would later testify that he drove

down the street, briefly spoke with a coworker, and then returned to his parent’s

backyard. He was emptying water from his young children’s pool when officers arrived.

Sergeant Brian Miller and another responding officer found Mr. Pantoja in the

backyard. When Mr. Pantoja confirmed his identity, Sergeant Miller pointed his gun at

him and told him to put his hands in the air. After initially arguing with the sergeant that

he had done nothing wrong, Mr. Pantoja complied, but only after pulling a wallet from

his pocket and tossing it to the side.

After interviewing B.P. and Ms. Passmore, the officers informed Mr. Pantoja that

he was under arrest. Their search incident to arrest included the wallet he had tossed

aside. Inside the wallet was a folded-up dollar bill that contained a white powdery

substance. It proved to be cocaine hydrochloride.

Officers obtained a search warrant for Mr. Pantoja’s car and the home. A Glock

pistol with a loaded magazine was found in the car. Three additional magazines were

found in the living area where Mr. Pantoja slept. Two shotguns were found under the

mattress in that room.

Mr. Pantoja was charged with two counts of assault in the second degree with

firearm and domestic violence enhancements, unlawful possession of a controlled

substance with a firearm enhancement, and three counts of first degree unlawful

possession of a firearm.

3 No. 37477-7-III State v. Pantoja

At Mr. Pantoja’s three-day jury trial, Ms. Passmore, B.P., three responding police

officers, a detective who assisted with the search warrants, and a forensic witness from

the Washington State Patrol Crime Laboratory testified for the State. Mr. Pantoja

testified in his own defense and acknowledged that as he and his father were outside

cleaning up after the barbecue someone turned off their music, which led to an argument

with Ms. Passmore. After they argued, he went downstairs to get his keys, because he

usually left when he and Ms. Passmore argued. He denied that the gun-wielding

described by Ms. Passmore and B.P. ever occurred.

He testified he had found the folded dollar bill earlier that day, while friends were

over. He claimed he put it in his wallet without unfolding it and was unaware that

anything was inside. He denied owning any firearms or being in possession of any on the

day of his arrest.

The jury acquitted Mr. Pantoja of the charges of unlawful possession of the two

shotguns and found he was not armed during his commission of possession of a

controlled substance. It otherwise found him guilty as charged. At sentencing the State

asked the court to assess the $100 DNA1 collection fee because “according to his criminal

history, has not been previously collected or typed. I think that’s a result of the age of his

prior convictions.” RP at 437. The court imposed mid-range concurrent sentences for

the crimes plus 36 months for the firearm enhancements, resulting in a total sentence of

1 Deoxyribonucleic acid.

4 No. 37477-7-III State v. Pantoja

90 months. It imposed the $100 DNA collection fee and 18 months of community

custody for counts I and II, and 12 months for count III, with standard conditions

requested by the State. The conditions did not include a prohibition on alcohol, but did

require him to submit to “random urinalysis, BAC,[2] or other tests” as directed by

community corrections officers. Clerk’s Papers (CP) at 138.

Mr. Pantoja appeals.

ANALYSIS

Mr. Pantoja contends the trial court erred by 1) omitting intent from the to-convict

instruction and including it only in the definitional instruction for assault, 2) imposing a

community custody condition that requires him to submit to BAC testing when the court

did not prohibit him from consuming alcohol, 3) imposing the $100 DNA collection fee

when he has previously been convicted of a felony that would have required DNA

collection, and 4) supplementally, that his conviction for unlawful possession of a

controlled substance must be vacated in light of Blake, and resentencing is required. We

decline to reach the second and third contentions because they were not raised in the trial

court, see RAP 2.5(a), and because Mr. Pantoja will be able to raise the issues at

resentencing. We address the two remaining issues in the order stated.

2 Blood alcohol content.

5 No. 37477-7-III State v. Pantoja

I. THE TRIAL COURT’S TO-CONVICT INSTRUCTIONS WERE NOT CONSTITUTIONALLY DEFICIENT

The trial court provided the jury with a definition of assault and the following to-

convict instruction for the count alleging Mr. Pantoja’s second degree assault of Ms.

Passmore:

INSTRUCTION NO. 12

To convict the defendant of the crime of assault in the second degree as charged in count I, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 29th day of July, 2018, the defendant assaulted Danielle Susanne Passmore with a deadly weapon; and (2) That this act occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

CP at 91. The court’s to-convict instruction for the count alleging the second degree

assault of B.P. was identical to instruction 12 except for its identification of the victim.

Mr. Pantoja did not object to the jury instructions.

For the first time on appeal, he contends that the to-convict instructions for the

assault counts relieved the State of its burden of proof because they omitted the element

of intent.

6 No. 37477-7-III State v. Pantoja

Both the United States and Washington Constitutions require that a jury be

instructed on all essential elements of the crime charged. State v. O’Donnell, 142 Wn.

App. 314, 322, 174 P.3d 1205 (2007); U.S. CONST. amend. VI; WASH. CONST. art. I,

§ 22. The omission of an element of a charged crime creates manifest error affecting a

constitutional right that can be considered for the first time on appeal. State v. Mills, 154

Wn.2d 1, 6, 109 P.3d 415 (2005). We review the adequacy of a challenged “to convict”

instruction de novo. Id. at 7.

Mr. Pantoja was charged with second degree assault under RCW 9A.36.021(1)(c),

which applies when a person, under circumstances not amounting to assault in the first

degree, “[a]ssaults another with a deadly weapon.” Two of seven subsections of

RCW 9A.36.021(1) do not contain language explicitly requiring a particular state of

mind; the subsection under which Mr. Pantoja was charged is one of them. See also

RCW 9A.36.021(g).

Nonetheless, all three common law forms of assault recognized by Washington

require intentional conduct. Assault by actual battery requires the intent to do the

physical act constituting assault. State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000).

Assault by an attempt with unlawful force to inflict bodily injury, tending but failing to

accomplish it (attempted battery), requires the specific intent to inflict substantial bodily

harm. State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996), overruled in part on

other grounds by State v. Easterlin, 159 Wn.2d 203, 208 n.2, 149 P.3d 366 (2006).

7 No. 37477-7-III State v. Pantoja

Assault by placing the victim in reasonable apprehension of bodily harm requires the

specific intent to cause that apprehension. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d

396 (1995).

The trial court’s instruction to Mr. Pantoja’s jury defining the forms of common

law assault recognized in Washington included the requirement of intentional conduct:

INSTRUCTION NO. 11

An assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive. An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. An assault is also an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.

CP at 90 (emphasis added).

“Appellate courts ‘analyze a challenged jury instruction by considering the

instructions as a whole and reading the challenged portions in context.’” State v.

Cordero, 170 Wn. App. 351, 370, 284 P.3d 773 (2012) (quoting State v. Hayward, 152

Wn. App. 632, 642, 217 P.3d 354 (2009)). “‘Jury instructions, taken in their entirety,

must inform the jury that the State bears the burden of proving every essential element of

8 No. 37477-7-III State v. Pantoja

a criminal offense beyond a reasonable doubt.’” State v. Johnson, 180 Wn.2d 295, 306,

325 P.3d 135 (2014) (quoting State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995)).

Mr. Pantoja relies, however, on Washington cases holding that an instruction that

purports to be a complete statement of the crime must contain every element of the crime

charged. Mills, 154 Wn.2d at 8. “When the trial court gives a to-convict instruction, that

instruction must ‘contain all of the elements of the crime because it serves as a

“yardstick” by which the jury measures the evidence to determine guilt or innocence.’”

State v. Orn, 197 Wn.2d 343, 361, 482 P.3d 913 (2021) (quoting State v. Smith, 131

Wn.2d 258, 263, 930 P.2d 917 (1997)). Courts “will not look to other jury instructions to

supplement a defective ‘to convict’ instruction.” Johnson, 180 Wn.2d at 306.

We acknowledge that Washington decisions sometimes speak of intent being an

element of assault. Indeed, this court’s decision in Hall, which rejected the argument that

intent must be identified as an element in a “to convict” instruction given in a third

degree assault case, states in conclusion that the jury instructions given (that omitted

intent from the “to convict” instruction) “properly informed the jury that intent was an

essential element.” 104 Wn. App. at 63. Nonetheless, controlling Washington cases are

reasonably read as holding that assault, not intent, is an essential element; that “assault”

conveys intentional conduct; and that the pattern instruction that identifies the forms of

assault recognized in Washington (including their requirement of intentional conduct) is

merely definitional.

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“The elements of a crime are those facts ‘that the prosecution must prove to

sustain a conviction.’” State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005) (quoting

BLACK’S LAW DICTIONARY 559 (8th ed. 2004)). “It is proper to first look to the statute to

determine the elements of a crime.” Id. Looking first to statutory language respects the

authority of the legislature to define and punish criminal conduct, subject only to the

constraints of the constitution. State v. Wu, 194 Wn.2d 880, 890, 453 P.3d 975 (2019).

To be guilty of assault under RCW 9A.36.021(c) requires only that a person “[a]ssaults

another with a deadly weapon.” The statute does not mention intent.

The Washington Supreme Court has held that the word “assault” has a plain

meaning that “conveys an intentional or knowing act.” State v. Taylor, 140 Wn.2d 229,

242, 996 P.2d 571 (2000). Taylor involved a challenge to a charging document, which

the court held was constitutionally sufficient under the strict standard of construction

without including intent as an element of the charge of fourth degree assault.

In State v. Smith, the court considered whether the common law forms of assault

are “alternative means” of committing assault, which would require the State to present

substantial evidence to support each form of assault that was charged or instructed. 159

Wn.2d 778, 787, 154 P.3d 873 (2007). In holding that they are not alternative means, the

court reasoned that when the jury is provided with definitions of the common law forms,

those definitions “merely define the element of assault.” Id.

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Providing jurors with a definition that clarifies an element, but is not itself an

element, does not relieve the State of its burden to prove the element as clarified. See,

e.g., State v. Stevens, 158 Wn.2d 304, 309-10, 143 P.3d 817 (2006). In Stevens, the court

was called on to clarify the application of State v. Lorenz, 152 Wn.2d 22, 93 P.3d 133

(2004), in which it held that sexual gratification was not an element of child molestation

that needs to be included in the to-convict instruction, but is essential to the statutorily

required element of “sexual contact.” In Stevens, the court held that while not an

element, the State still “must prove a defendant acted for the purpose of sexual

gratification.” 158 Wn.2d at 309-10. “Intent is relevant to the crime of second degree

child molestation because it is necessary to prove the element of sexual contact.” Id. at

310.

The same is true here. Intent is relevant to the crime of second degree assault

because it is necessary to prove the element of assault. It is not itself an element. The

trial court’s “to convict” instructions were not constitutionally deficient.

II. FOLLOWING BLAKE, IT IS NECESSARY TO VACATE MR. PANTOJA’S CONTROLLED SUBSTANCE CONVICTION AND REMAND FOR RESENTENCING

In supplemental briefing, Mr. Pantoja argues that his conviction for possession of

a controlled substance is void in light of Blake and his remaining convictions require

resentencing.

11 No. 37477-7-III State v. Pantoja

The Washington Supreme Court recently held in Blake that RCW 69.50.4013(1),

the simple drug possession statute, violates the due process clauses of the state and

federal constitutions and is void because it “criminalize[s] innocent and passive

possession, even by a defendant who does not know, and has no reason to know, that

drugs lay hidden within something that they possess.” 197 Wn.2d at 195. “A statute or

ordinance which is void as being in conflict with a prohibition contained in the

constitution is of no force and effect.” City of Seattle v. Grundy, 86 Wn.2d 49, 50, 541

P.2d 994 (1975). The State properly concedes that Mr. Pantoja’s conviction should be

vacated and the case remanded for resentencing.

We affirm Mr. Pantoja’s assault convictions. We vacate his conviction for

violation of RCW 69.50.4013(1) and remand for resentencing.

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, A.C.J.

WE CONCUR:

_____________________________ _____________________________ Lawrence-Berrey, J. Fearing, J.