FILED AUGUST 30, 2018 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STATE OF WASHINGTON, ) No. 35478-4-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) LUIS ALBERTO LUNA LANDEROS, ) also known as LUIS A. LANDEROS, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Luis A. Landeros broke into a Spokane home and
had an encounter with a woman in her bedroom. Based on these and other actions that
night, the superior court in a bench trial convicted him of first degree burglary with
sexual motivation. On appeal, he contends the evidence is insufficient to prove the
sexual motivation sentencing enhancement. He also challenges a community custody
provision that requires him to obtain prior approval from his community custody officer
(CCO) or therapist before entering into a romantic or sexual relationship. The State
concedes that the community custody condition is unconstitutionally vague. We hold
that the evidence is sufficient to support the sexual motivation enhancement and affirm.
But we remand for removal of the community custody condition. No. 35478-4-III State v. Landeros
FACTS
Mildred Morris lived with her brother, Doug Soapes (Doug), in north Spokane.
Another brother, Jerry Soapes (Jerry), lived next door. On the night of December 18,
2015, Doug went to bed at around 10:30 p.m. while Ms. Morris drank and visited at
Jerry’s home. At around 1:30 a.m., Jerry walked Ms. Morris back to her house. He then
returned to his own house. Ms. Morris warmed up chili in her kitchen, ate it in her
bedroom, and then went to bed.
Several hours later, Ms. Morris woke to find a man on her bed. She had never
seen the man before. She later told police that the man climbed on top of her, pushed her
face into the pillow, and said, “‘It’s okay. It’s okay,’” as he touched her hair. Report of
Proceedings (RP) at 102. Ms. Morris managed to get out of her bed and ran down the
hall to Doug’s room.
Doug testified that his sister was hysterical when she woke him up. He went to
investigate and found Mr. Landeros, wearing only jeans and socks, standing in Ms.
Morris’s room. When confronted, Mr. Landeros said, “‘Me and her, we had a couple of
beers.’” RP at 69. Doug punched Mr. Landeros in the face and then tried to force him
out of the house. When the two of them reached the kitchen, Doug saw that the sliding
glass door that led outside from the kitchen had been shattered.
In the meantime, Ms. Morris had called 911, and the police arrived at around 7:15
a.m. After arresting Mr. Landeros at the kitchen door, the officers found an unused
2 No. 35478-4-III State v. Landeros
condom on Ms. Morris’s bed, an empty condom package on her bedroom floor, and
opened cabinets in the basement. Ms. Morris stated that she did not own the condom.
She also said that the basement cabinets had been closed and that the kitchen slider had
been intact before she went to bed. Officers found a pair of shoes on top of the snow
outside the kitchen, foot impressions in the snow on a barrel outside the kitchen window,
and the screen of the kitchen window pried open. It appeared to the officers that the
slider had been shattered with a flower pot that was found broken on the kitchen floor.
Ms. Morris later found in her room a shirt and sweater that did not belong to her or her
brothers.
The State charged Mr. Landeros with first degree burglary with a sexual
motivation sentence enhancement. He waived his right to a jury trial. His defense at trial
was that all of the witnesses were unreliable because they had been drinking heavily, the
State presented no physical evidence that he had broken the kitchen slider or touched Ms.
Morris, and he was guilty—at most—of trespass or residential burglary. After hearing
evidence from Ms. Morris, her brothers, and police officers, the court found him guilty as
charged.
The trial court imposed a 42-month minimum sentence, including a 24-month
enhancement for the finding of sexual motivation. RCW 9.94A.533(8)(a). His term of
community custody is life. RCW 9.94A.507(1)(a)(ii), (3). One of the conditions of
community custody imposed by the trial court states “[t]hat you do not enter into
3 No. 35478-4-III State v. Landeros
romantic/sexual relationships without the prior approval of your CCO and/or Therapist
and not without disclosing your criminal history as verified by your CCO and/or
Therapist.” Clerk’s Papers (CP) at 97.
SEXUAL MOTIVATION ENHANCEMENT
Mr. Landeros challenges the sufficiency of the evidence to support the sexual
motivation sentence enhancement. He contends the State’s evidence does not prove
beyond a reasonable doubt that he committed first degree burglary for sexual
gratification.
In 1990, the Washington Legislature enacted the “Community Protection Act,”
which authorizes the prosecutor to allege sexual motivation as an aggravating factor in
sentence enhancements for crimes other than sex offenses. LAWS OF 1990, ch. 3, §§ 601,
603 (codified at RCW 9.94A.835; RCW 9.94A.535(3)(f)); State v. Halstien, 122 Wn.2d
109, 115, 857 P.2d 270 (1993). “Sexual motivation” means that one of the defendant’s
purposes in committing the crime was sexual gratification. RCW 9.94A.030(48); State v.
Murray, 190 Wn.2d 727, 733-34, 416 P.3d 1225 (2018). “Sexual gratification” refers to
a motivation to stimulate or gratify sexual desire. Halstien, 122 Wn.2d at 119-20. The
State must prove the allegation of sexual motivation beyond a reasonable doubt, with
evidence of identifiable conduct by the defendant while he or she was committing the
crime. State v. Vars, 157 Wn. App. 482, 494, 237 P.3d 378 (2010). This conduct is not
4 No. 35478-4-III State v. Landeros
limited to criminal sexual contact, which would be charged properly under one of the sex
offense crimes. Halstien, 122 Wn.2d at 120-21.
Mr. Landeros challenges the evidentiary basis of the trial court’s finding of sexual
motivation. We view the evidence and the inferences arising from that evidence in the
light most favorable to the State and determine whether any rational fact finder could
have found sexual motivation beyond a reasonable doubt. See State v. Homan, 181
Wn.2d 102, 105, 330 P.3d 182 (2014) (general standard of review for sufficiency of the
evidence to support a criminal conviction). Because this was a bench trial, our review is
limited to determining whether substantial evidence supports the findings of fact, and
whether those findings support the conclusions of law. Id. at 105-06. “Substantial
evidence” is the quantum sufficient to persuade a fair-minded person of the truth of the
asserted premise. Id.
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FILED AUGUST 30, 2018 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. 35478-4-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) LUIS ALBERTO LUNA LANDEROS, ) also known as LUIS A. LANDEROS, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Luis A. Landeros broke into a Spokane home and
had an encounter with a woman in her bedroom. Based on these and other actions that
night, the superior court in a bench trial convicted him of first degree burglary with
sexual motivation. On appeal, he contends the evidence is insufficient to prove the
sexual motivation sentencing enhancement. He also challenges a community custody
provision that requires him to obtain prior approval from his community custody officer
(CCO) or therapist before entering into a romantic or sexual relationship. The State
concedes that the community custody condition is unconstitutionally vague. We hold
that the evidence is sufficient to support the sexual motivation enhancement and affirm.
But we remand for removal of the community custody condition. No. 35478-4-III State v. Landeros
FACTS
Mildred Morris lived with her brother, Doug Soapes (Doug), in north Spokane.
Another brother, Jerry Soapes (Jerry), lived next door. On the night of December 18,
2015, Doug went to bed at around 10:30 p.m. while Ms. Morris drank and visited at
Jerry’s home. At around 1:30 a.m., Jerry walked Ms. Morris back to her house. He then
returned to his own house. Ms. Morris warmed up chili in her kitchen, ate it in her
bedroom, and then went to bed.
Several hours later, Ms. Morris woke to find a man on her bed. She had never
seen the man before. She later told police that the man climbed on top of her, pushed her
face into the pillow, and said, “‘It’s okay. It’s okay,’” as he touched her hair. Report of
Proceedings (RP) at 102. Ms. Morris managed to get out of her bed and ran down the
hall to Doug’s room.
Doug testified that his sister was hysterical when she woke him up. He went to
investigate and found Mr. Landeros, wearing only jeans and socks, standing in Ms.
Morris’s room. When confronted, Mr. Landeros said, “‘Me and her, we had a couple of
beers.’” RP at 69. Doug punched Mr. Landeros in the face and then tried to force him
out of the house. When the two of them reached the kitchen, Doug saw that the sliding
glass door that led outside from the kitchen had been shattered.
In the meantime, Ms. Morris had called 911, and the police arrived at around 7:15
a.m. After arresting Mr. Landeros at the kitchen door, the officers found an unused
2 No. 35478-4-III State v. Landeros
condom on Ms. Morris’s bed, an empty condom package on her bedroom floor, and
opened cabinets in the basement. Ms. Morris stated that she did not own the condom.
She also said that the basement cabinets had been closed and that the kitchen slider had
been intact before she went to bed. Officers found a pair of shoes on top of the snow
outside the kitchen, foot impressions in the snow on a barrel outside the kitchen window,
and the screen of the kitchen window pried open. It appeared to the officers that the
slider had been shattered with a flower pot that was found broken on the kitchen floor.
Ms. Morris later found in her room a shirt and sweater that did not belong to her or her
brothers.
The State charged Mr. Landeros with first degree burglary with a sexual
motivation sentence enhancement. He waived his right to a jury trial. His defense at trial
was that all of the witnesses were unreliable because they had been drinking heavily, the
State presented no physical evidence that he had broken the kitchen slider or touched Ms.
Morris, and he was guilty—at most—of trespass or residential burglary. After hearing
evidence from Ms. Morris, her brothers, and police officers, the court found him guilty as
charged.
The trial court imposed a 42-month minimum sentence, including a 24-month
enhancement for the finding of sexual motivation. RCW 9.94A.533(8)(a). His term of
community custody is life. RCW 9.94A.507(1)(a)(ii), (3). One of the conditions of
community custody imposed by the trial court states “[t]hat you do not enter into
3 No. 35478-4-III State v. Landeros
romantic/sexual relationships without the prior approval of your CCO and/or Therapist
and not without disclosing your criminal history as verified by your CCO and/or
Therapist.” Clerk’s Papers (CP) at 97.
SEXUAL MOTIVATION ENHANCEMENT
Mr. Landeros challenges the sufficiency of the evidence to support the sexual
motivation sentence enhancement. He contends the State’s evidence does not prove
beyond a reasonable doubt that he committed first degree burglary for sexual
gratification.
In 1990, the Washington Legislature enacted the “Community Protection Act,”
which authorizes the prosecutor to allege sexual motivation as an aggravating factor in
sentence enhancements for crimes other than sex offenses. LAWS OF 1990, ch. 3, §§ 601,
603 (codified at RCW 9.94A.835; RCW 9.94A.535(3)(f)); State v. Halstien, 122 Wn.2d
109, 115, 857 P.2d 270 (1993). “Sexual motivation” means that one of the defendant’s
purposes in committing the crime was sexual gratification. RCW 9.94A.030(48); State v.
Murray, 190 Wn.2d 727, 733-34, 416 P.3d 1225 (2018). “Sexual gratification” refers to
a motivation to stimulate or gratify sexual desire. Halstien, 122 Wn.2d at 119-20. The
State must prove the allegation of sexual motivation beyond a reasonable doubt, with
evidence of identifiable conduct by the defendant while he or she was committing the
crime. State v. Vars, 157 Wn. App. 482, 494, 237 P.3d 378 (2010). This conduct is not
4 No. 35478-4-III State v. Landeros
limited to criminal sexual contact, which would be charged properly under one of the sex
offense crimes. Halstien, 122 Wn.2d at 120-21.
Mr. Landeros challenges the evidentiary basis of the trial court’s finding of sexual
motivation. We view the evidence and the inferences arising from that evidence in the
light most favorable to the State and determine whether any rational fact finder could
have found sexual motivation beyond a reasonable doubt. See State v. Homan, 181
Wn.2d 102, 105, 330 P.3d 182 (2014) (general standard of review for sufficiency of the
evidence to support a criminal conviction). Because this was a bench trial, our review is
limited to determining whether substantial evidence supports the findings of fact, and
whether those findings support the conclusions of law. Id. at 105-06. “Substantial
evidence” is the quantum sufficient to persuade a fair-minded person of the truth of the
asserted premise. Id. at 106. “We review challenges to a trial court’s conclusions of law
de novo.” Id.
The trial court here entered several findings that Mr. Landeros contends are not
supported by the evidence:
10. Millie Morris had never seen the defendant prior to awaking to him lying next to her in her bed in the early morning hours of December 19, 2015. .... 12. When Millie Morris awoke the defendant was lying next to her in her bed and he had no shirt on. 13. The defendant stroked her hair, pushing her head into the pillow firmly, more than softly, and whispered, “Its ok,” “Its ok.” ....
5 No. 35478-4-III State v. Landeros
15. The totality of the circumstances presents as horrifying for a single woman alone in what she thought was the safety of her home and bedroom.
CP at 100 (emphasis added). Mr. Landeros argues that Ms. Morris did not testify that he
was lying next to her when she woke up, never used the word “stroke” (which he
contends has a sexual or intimate connotation), and was not alone in the house she shared
with her brother.
It is correct that Ms. Morris testified in court that Mr. Landeros was sitting—not
lying—on the bed when she first became aware of him. She also stated that he was
“touching,” rather than “stroking,” her hair while he said, “‘It’s okay. It’s okay.’” RP at
102. But an officer testified that soon after the incident, Ms. Morris reported that Mr.
Landeros was lying on top of her when she woke up. The inferences arising from the
evidence substantially support the trial court’s findings that Mr. Landeros actually lay on
the bed and touched Ms. Morris’s hair in an intimate manner. Furthermore, a fact finder
could reasonably find that Ms. Morris considered herself “alone” in the safety of her own
bedroom. The evidence substantially supports the trial court’s findings of fact.
In turn, the findings of fact support beyond a reasonable doubt the trial court’s
conclusion that at least one purpose of Mr. Landeros’s burglary was his sexual
gratification. Viewed in the light most favorable to the State, the evidence is sufficient to
show that Mr. Landeros removed his shoes outside the house, broke the kitchen slider,
entered the house, went to Ms. Morris’s room, removed some of his clothes, took a
6 No. 35478-4-III State v. Landeros
condom from its wrapper, and climbed on top of Ms. Morris. These facts in turn support
a fair-minded fact finder’s conclusion that he was motivated at least in part by a desire for
sexual gratification.
CONDITION OF COMMUNITY CUSTODY
Mr. Landeros challenges the condition of community custody that prohibits him
from engaging in a romantic relationship without prior approval from his therapist or
CCO. As the State concedes, this court recently considered and rejected as
unconstitutionally vague a condition of community custody nearly identical to the one
challenged here. In an unpublished opinion, this court in State v. Dickerson, noted at 194
Wn. App. 1014, 2016 WL 3126480, at *5, held that this condition is unconstitutionally
vague because it is open to arbitrary enforcement by CCOs and therapists who have
different ideas about which relationships are romantic.1 We remain committed to the
analysis in Dickerson and therefore accept the State’s concession that Mr. Landeros’s
judgment and sentence should be remanded to strike the community custody condition
that requires prior approval of “romantic/sexual relationships.” See CP at 97 (App. H).
1 We note that under GR 14.1, unpublished opinions have no precedential value, but may be cited as nonbinding authorities and accorded such persuasive value as the court deems appropriate.
7 No. 35478-4-III State v. Landeros
CONCLUSION
The evidence is sufficient to support the trial court's findings of fact, which in tum
support beyond a reasonable doubt the conclusion that Mr. Landeros committed the
burglary with sexual motivation. We agree with the parties, however, that the condition
of community custody requiring the CCO's or the therapist's approval before Mr.
Landeros engages in a romantic or sexual relationship is void for vagueness.
Judgment affirmed; remanded to superior court for vacation of the community
custody condition requiring prior approval of romantic or sexual relationships.
No costs are awarded to the State in light of Mr. Landeros' s continued indigency.
RAP 14.2.
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.
Lawrence-Beriey, CJ. 44 c.. ~. WE CONCUR: R rr t!J!LL- r 6,,
:n~~.Jt_. Siddoway, J.