FILED JANUARY 31, 2023 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STATE OF WASHINGTON, ) ) No. 38572-8-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION LOUIS NOBERTO MENDEZ, ) ) Appellant. )
FEARING, J. — In this appeal, Louis Mendez challenges two aspects of his
judgment and sentence: the listing of a merged conviction and the length of a protection
order. We accept the State’s concessions that the conviction should be erased and the
protection order should be shortened in duration. We also reject four assignments of
error asserted by Mendez in his statement of additional grounds.
FACTS
Louis Mendez is A.L.’s stepfather. According to A.L., one night in June 2019,
when she was 14 years old, Mendez licked and inserted his penis into her vagina.
PROCEDURE
On June 26, 2019, the State of Washington charged Louis Mendez with rape of a
child in the third degree. On June 18, 2021, the State amended the information to add a No. 38572-8-III State v. Mendez
charge of child molestation in the third degree. On July 1, 2021, the State amended the
information a second time to also allege incest in the first degree.
Louis Mendez’s initial trial date was August 19, 2019. The trial court continued
the trial twenty-one times until it commenced on October 11, 2021. The State requested
some of the continuances. Defense counsel requested other continuances. Still other
continuances resulted from the COVID-19 pandemic. On July 16, 2020, and July 2,
2021, Mendez announced his personal objection to further continuances. On September
2, 2021, Louis Mendez requested a bench trial.
During trial, Louis Mendez testified to being A.L.’s stepfather. In closing
argument, the prosecuting attorney intoned:
OK. Your Honor, I want you just, just to remind you what the counts are in this case. And one thing I want you to understand is that rape of a child in the third degree and child molestation in the third degree, there’s some legal issues with that. They need to be separate and distinct. There’s also State v. Land [, 172 Wn. App. 593, 295 P.3d 782 (2013)]. So the one thing I want to make sure is that if you find him guilty of rape of a child in the third degree, it can’t be on the same conduct as the child molestation in the first—in the third degree. There’s also oral sex in this case, which makes it a little bit messier and which is also probably all one act arguably. Therefore, if you find him guilty of rape of a child in the third degree, I’m just going to ask that you not find him guilty of child molestation in the second degree. I think that’s going to keep it cleaner.
Report of Proceedings (RP) (Oct. 13, 2021) at 344 (emphasis added).
In an oral ruling, the trial court remarked that the State proved the elements of all
three charges: rape of a child, child molestation, and incest. Nevertheless, the court
2 No. 38572-8-III State v. Mendez
commented, in light of the State’s concession, that count 2 would be dismissed at the
time of sentencing because of the doctrine of merger.
The trial court entered written findings of fact and conclusions of law. One
conclusion of law read that the conviction for count 2, child molestation, merged with the
conviction for count 1, child rape. None of the court’s findings or conclusions mentioned
Louis Mendez’s mens rea. On the judgment and sentence, the trial court convicted Louis
Mendez of both rape of a child in the third degree and child molestation in the third
degree but noted next to the molestation count “(MERGES WITH COUNT I).” Clerk’s
Papers at 189 (boldface omitted).
The trial court imposed no sentence for child molestation and ran the sentence for
incest concurrent to the sentence for rape. The trial court also imposed a sexual assault
protection order prohibiting Louis Mendez from contacting A.L. until November 14,
2031.
LAW AND ANALYSIS
Child Molestation Conviction
Louis Mendez requests that this court remand to the trial court to strike any
reference to a conviction for child molestation in the third degree from the judgment and
sentence. Mendez argues that the conviction violates his right to be free from double
jeopardy. The State agrees.
3 No. 38572-8-III State v. Mendez
We recognize that child molestation and child rape may not always merge for
purposes of double jeopardy. State v. Hancock, 17 Wn. App. 2d 113, 117-21, 484 P.3d
514 (2021); State v. Sanford, 15 Wn. App. 2d 748, 752-58, 477 P.3d 72 (2020); State v.
Wilkins, 200 Wn. App. 794, 804-14, 403 P.3d 890 (2017); State v. Land, 172 Wn. App.
593, 600, 295 P.3d 782 (2013). The State might have argued that Louis Mendez’s oral-
genital contact supported the child molestation charge while penetration supported the
child rape charge. Nevertheless, we adopt, for purposes of this appeal, the State’s
position that Mendez’s conduct against A.L. probably constituted only one act.
A judgment and sentence must not include a reference to a vacated conviction.
State v. Turner, 169 Wn.2d 448, 464, 238 P.3d 461 (2010). Therefore, we grant Louis
Mendez’s request to remand for the striking of all references to a child molestation
conviction from Mendez’s felony judgment and sentence.
Protection Order
Louis Mendez contends that the trial court erred in entering a 10-year sexual
assault protection order. The State agrees.
The controlling statute places a time limitation on a sexual assault protection
order:
A final sexual assault no-contact order entered in conjunction with a criminal prosecution shall remain in effect for a period of two years following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole.
4 No. 38572-8-III State v. Mendez
Former RCW 7.90.150(6)(c) (2021), recodified as RCW 9A.44.210(6)(c) (LAWS OF
2021, ch. 215, § 168).
The State proposes we remand for the trial court to enter the following language in
the judgment and sentence:
The Sexual Assault No Contact Order shall remain in effect for a period of two years following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole, which the State calculates as (specific date calculated based on earned early release credit) subject to adjustments regarding compliance credits or applicable tolling of community custody.
Br. of Resp’t at 5. We grant this request.
Speedy Trial
We now begin a review of Louis Mendez’s statement of additional grounds.
Louis Mendez contends that the numerous continuances to his trial date violated
his right to a speedy trial. In Washington, CrR 3.3 protects a defendant’s right to a
speedy trial. State v. Denton, 23 Wn. App. 2d 437, 448, 516 P.3d 422 (2022). We
exclude the vast majority of trial continuances from our time-to-trial consideration either
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FILED JANUARY 31, 2023 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. 38572-8-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION LOUIS NOBERTO MENDEZ, ) ) Appellant. )
FEARING, J. — In this appeal, Louis Mendez challenges two aspects of his
judgment and sentence: the listing of a merged conviction and the length of a protection
order. We accept the State’s concessions that the conviction should be erased and the
protection order should be shortened in duration. We also reject four assignments of
error asserted by Mendez in his statement of additional grounds.
FACTS
Louis Mendez is A.L.’s stepfather. According to A.L., one night in June 2019,
when she was 14 years old, Mendez licked and inserted his penis into her vagina.
PROCEDURE
On June 26, 2019, the State of Washington charged Louis Mendez with rape of a
child in the third degree. On June 18, 2021, the State amended the information to add a No. 38572-8-III State v. Mendez
charge of child molestation in the third degree. On July 1, 2021, the State amended the
information a second time to also allege incest in the first degree.
Louis Mendez’s initial trial date was August 19, 2019. The trial court continued
the trial twenty-one times until it commenced on October 11, 2021. The State requested
some of the continuances. Defense counsel requested other continuances. Still other
continuances resulted from the COVID-19 pandemic. On July 16, 2020, and July 2,
2021, Mendez announced his personal objection to further continuances. On September
2, 2021, Louis Mendez requested a bench trial.
During trial, Louis Mendez testified to being A.L.’s stepfather. In closing
argument, the prosecuting attorney intoned:
OK. Your Honor, I want you just, just to remind you what the counts are in this case. And one thing I want you to understand is that rape of a child in the third degree and child molestation in the third degree, there’s some legal issues with that. They need to be separate and distinct. There’s also State v. Land [, 172 Wn. App. 593, 295 P.3d 782 (2013)]. So the one thing I want to make sure is that if you find him guilty of rape of a child in the third degree, it can’t be on the same conduct as the child molestation in the first—in the third degree. There’s also oral sex in this case, which makes it a little bit messier and which is also probably all one act arguably. Therefore, if you find him guilty of rape of a child in the third degree, I’m just going to ask that you not find him guilty of child molestation in the second degree. I think that’s going to keep it cleaner.
Report of Proceedings (RP) (Oct. 13, 2021) at 344 (emphasis added).
In an oral ruling, the trial court remarked that the State proved the elements of all
three charges: rape of a child, child molestation, and incest. Nevertheless, the court
2 No. 38572-8-III State v. Mendez
commented, in light of the State’s concession, that count 2 would be dismissed at the
time of sentencing because of the doctrine of merger.
The trial court entered written findings of fact and conclusions of law. One
conclusion of law read that the conviction for count 2, child molestation, merged with the
conviction for count 1, child rape. None of the court’s findings or conclusions mentioned
Louis Mendez’s mens rea. On the judgment and sentence, the trial court convicted Louis
Mendez of both rape of a child in the third degree and child molestation in the third
degree but noted next to the molestation count “(MERGES WITH COUNT I).” Clerk’s
Papers at 189 (boldface omitted).
The trial court imposed no sentence for child molestation and ran the sentence for
incest concurrent to the sentence for rape. The trial court also imposed a sexual assault
protection order prohibiting Louis Mendez from contacting A.L. until November 14,
2031.
LAW AND ANALYSIS
Child Molestation Conviction
Louis Mendez requests that this court remand to the trial court to strike any
reference to a conviction for child molestation in the third degree from the judgment and
sentence. Mendez argues that the conviction violates his right to be free from double
jeopardy. The State agrees.
3 No. 38572-8-III State v. Mendez
We recognize that child molestation and child rape may not always merge for
purposes of double jeopardy. State v. Hancock, 17 Wn. App. 2d 113, 117-21, 484 P.3d
514 (2021); State v. Sanford, 15 Wn. App. 2d 748, 752-58, 477 P.3d 72 (2020); State v.
Wilkins, 200 Wn. App. 794, 804-14, 403 P.3d 890 (2017); State v. Land, 172 Wn. App.
593, 600, 295 P.3d 782 (2013). The State might have argued that Louis Mendez’s oral-
genital contact supported the child molestation charge while penetration supported the
child rape charge. Nevertheless, we adopt, for purposes of this appeal, the State’s
position that Mendez’s conduct against A.L. probably constituted only one act.
A judgment and sentence must not include a reference to a vacated conviction.
State v. Turner, 169 Wn.2d 448, 464, 238 P.3d 461 (2010). Therefore, we grant Louis
Mendez’s request to remand for the striking of all references to a child molestation
conviction from Mendez’s felony judgment and sentence.
Protection Order
Louis Mendez contends that the trial court erred in entering a 10-year sexual
assault protection order. The State agrees.
The controlling statute places a time limitation on a sexual assault protection
order:
A final sexual assault no-contact order entered in conjunction with a criminal prosecution shall remain in effect for a period of two years following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole.
4 No. 38572-8-III State v. Mendez
Former RCW 7.90.150(6)(c) (2021), recodified as RCW 9A.44.210(6)(c) (LAWS OF
2021, ch. 215, § 168).
The State proposes we remand for the trial court to enter the following language in
the judgment and sentence:
The Sexual Assault No Contact Order shall remain in effect for a period of two years following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole, which the State calculates as (specific date calculated based on earned early release credit) subject to adjustments regarding compliance credits or applicable tolling of community custody.
Br. of Resp’t at 5. We grant this request.
Speedy Trial
We now begin a review of Louis Mendez’s statement of additional grounds.
Louis Mendez contends that the numerous continuances to his trial date violated
his right to a speedy trial. In Washington, CrR 3.3 protects a defendant’s right to a
speedy trial. State v. Denton, 23 Wn. App. 2d 437, 448, 516 P.3d 422 (2022). We
exclude the vast majority of trial continuances from our time-to-trial consideration either
because Mendez agreed to the continuances, CrR 3.3(f)(1), or because Mendez himself
moved for the continuances, CrR 3.3(f)(2).
The record does not account for the period between June 11, 2020, thru July 9,
2020, during the height of the COVID-19 pandemic. On May 28, 2020, the Supreme
Court of Washington issued the Third Revised and Extended Order Regarding Court
5 No. 38572-8-III State v. Mendez
Operations, No. 25700-B-625 (Wash. May 28, 2020),
https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/Extende
d%20and%20Revised%20SCT%20Order%20052820.pdf. The order suspended all
criminal jury trials until at least July 6, 2020. Order at 6.
Louis Mendez raised personal objections to continuances twice. A party loses the
right to object to an improperly set trial date if he fails to raise such objection within ten
days after receipt of notice of the trial date. CrR 3.3(d)(3). On July 9, 2020, Mendez
failed to appear and his attorney noted his personal objection to additional continuances.
Mendez’s failure to appear itself constituted a resetting of the commencement date.
CrR 3.3(c)(2)(ii).
At a July 16, 2020, hearing, Louis Mendez appeared and personally objected to
further continuances. The record does not identify whether Mendez withdrew his
objection in the following months of continuance orders. On February 18, 2021, Mendez
again requested a continuance.
In a series of emergency orders, the Benton and Franklin Counties Superior Court
suspended jury trials from August 2020 to February 1, 2021. County of Benton
Washington, Emergency Orders & Temporary Docket Procedures: Benton and Franklin
Counties Jury Trials, https://co.benton.wa.us/pview.aspx?id=55200&catid=0.
Following the expiration of the COVID-19 emergency orders, Louis Mendez
personally objected to a continuance on July 2, 2021. Nevertheless, a continuance was
6 No. 38572-8-III State v. Mendez
necessitated by Mendez’s withdrawal of a CrR 3.5 waiver on the eve of trial. The court
found good cause for a continuance over Mendez’s personal objection. A court may
continue a trial date for good cause under CrR 3.3(f)(2). Mendez did not move for a
bench trial until September 2, 2021.We conclude that the trial court proceedings did not
violate Louis Mendez’s right to a speedy trial. An appendix lists the continuances and
reasons for the continuances.
Prosecutorial Misconduct
Louis Mendez alleges the State committed prosecutorial misconduct and violated
CrR 8.3(b) by twice amending the information to add charges close to the date of trial.
Mendez never advanced this argument before the trial court.
CrR 8.3(b) permits a court to “dismiss any criminal prosecution due to arbitrary
action or governmental misconduct when there has been prejudice to the rights of the
accused which materially affect the accused’s right to a fair trial.” Mere passage of time
prior to the filing of charges does not, alone, prejudice a defendant’s right to a fair trial.
State v. Rohrich, 149 Wn.2d 647, 658-59, 71 P.3d 638 (2003).
CrR 2.1(d) permits the State to amend an information “at any time before verdict
or finding if substantial rights of the defendant are not prejudiced.” Louis Mendez’s trial
counsel had over three months to prepare defenses to the child molestation and incest
charges. Our Supreme Court has scrutinized, but not categorically prohibited,
amendments following the conclusion of the State’s case in chief. State v. Brooks, 195
7 No. 38572-8-III State v. Mendez
Wn.2d 91, 96-104, 455 P.3d 1151 (2020). Mendez provides no authority suggesting that
a defendant may be prejudiced by an amendment to an information advanced three
months prior to trial.
Lack of Physical Evidence
Louis Mendez contends that no physical evidence supported his convictions.
Physical evidence is not required to sustain a criminal conviction. A reviewing
court defers to the fact finder on issues of witness credibility, testimony, and
persuasiveness of the evidence. State v. Rodriguez, 187 Wn. App. 922, 930, 352 P.3d
200 (2015). A.L.’s trial testimony alone was sufficient to sustain the convictions against
Louis Mendez.
Mens Rea
Louis Mendez argues that the trial court failed to enter any mens rea findings
relating to his convictions. Mendez never advanced this argument before the trial court.
Following a bench trial, a court must enter written findings of facts and
conclusions of law. CrR 6.1(d). Each element must be addressed separately, setting out
the factual basis for each conclusion of law, and each finding must specifically state that
an element has been met. State v. Banks, 149 Wn.2d 38, 43, 65 P.3d 1198 (2003).
Because rape of a child is a strict liability crime, the State need only prove that
a defendant had sexual intercourse with a child under a particular age. State v. Blake,
8 No. 38572-8-III State v. Mendez
197 Wn.2d 170, 194, 481 P.3d 521 (2021). The trial court therefore was not required
to include a mens rea finding relating to the rape conviction.
The lack of a mens rea finding on the incest conviction, however, was error.
A person is guilty of incest in the first degree if he or she engages in sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood.
RCW 9A.64.020(1)(a) (emphasis added). A “descendant” may be a stepchild under
eighteen years of age. RCW 9A.64.020(3)(a). The trial court failed to enter any finding
relating to Louis Mendez’s knowledge that A.L. was his stepdaughter.
Failure by a trial court to enter a finding pertaining to a necessary element is
harmless error when the record demonstrates beyond a reasonable doubt that the error did
not contribute to the verdict obtained. State v. Banks, 149 Wn.2d 38, 44 (2003). Louis
Mendez admitted at trial that he was A.L.’s stepfather. The trial court’s findings and
conclusions, which Mendez did not contest, necessitate an inference of knowledge. We
discern no reasonable probability that the outcome of the incest conviction would differ
on remand.
CONCLUSION
We affirm Louis Mendez’s convictions for child rape and incest. We remand to
the trial court to strike, from the judgment and sentence, all references to a conviction for
9 No. 38572-8-III State v. Mendez
child molestation and for the court to reduce the duration of the protection order
consistent with this opinion.
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.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ Siddoway, C.J.
______________________________ Pennell, J.
10 Appendix: Continuances Table Date Extension Filed New Trial Date Set Defense posture Clerk's Papers Transcript Thursday, June 27, 2019 Monday, August 19, 2019 Initial date setting CP 17 Thursday, August 8, 2019 Monday, October 14, 2019 Defense agrees CP 25 Thursday, October 3, 2019 Monday, December 9, 2019 Defense agrees CP 28 Wednesday, November 27, 2019 Monday, January 13, 2020 Defense agrees CP 32 Thursday, January 2, 2020 Monday, February 3, 2020 No agreement or objection noted CP 35 Thursday, January 30, 2020 Monday, March 9, 2020 Defense agrees CP 38 Thursday, February 27, 2020 Monday, April 6, 2020 Defense agrees CP 40 Friday, March 20, 2020 Thursday, June 11, 2020 Defense motion CP 42-44 Unaccounted period: June 11, 2020-July 9, 2020 Defendant FTA; Att'y notes Thursday, July 9, 2020 Reset for def. failure to appear Defendant objection CP 70 RP (July 9, 2020) 4-6 Thursday, July 16, 2020 Monday, September 21, 2020 Defendant objection CP 71 RP (July 16, 2020) 10-14 Thursday, September 10, 2020 Monday, November 9, 2020 Continuing def. objection (7/16) CP 72 Thursday, October 29, 2020 Monday, December 28, 2020 Continuing def. objection (7/16) CP 78 Thursday, December 17, 2020 Monday, March 1, 2021 Continuing def. objection (7/16) CP 79 Thursday, February 18, 2021 Monday, March 29, 2021 Defense request CP 80 RP (Feb. 18, 2021) 16-17 RP (March 18, 2021) 19- Thursday, March 18, 2021 Monday, April 19, 2021Defense agrees CP 82 20 Thursday, April 1, 2021 Monday, June 7, 2021 Defense request CP 83 RP (April 1, 2021) 10-11 Thursday, May 13, 2021 Sunday, June 20, 2021Defense request CP 84 RP (May 13, 2021) 12 Thursday, June 3, 2021 Monday, July 12, 2021 Defense request CP 86 RP (June 3, 2021) 3-4 Defense counsel agrees; Friday, July 2, 2021 Monday, August 30, 2021 Defendant objects RP 23. CP 102 RP (July 2, 2021) 18-21 Monday, August 23, 2021 Saturday, September 11, 2021 Defense request CP 137-40 RP (Aug. 23, 2021) 48-52 Joint request for September 27; Joint acceptance of revised date. Friday, September 10, 2021 Monday, October 11, 2021 RP 56 CP 152-56 RP (Sept. 10, 2021) 55-59