FILED
APRIL 21, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
I THE STATE OF WASHINGTON,
Respondent, ) ) ) No. 31585-1-111
) v. ) ) MISAEL CORTES-PEREZ ) UNPUBLISHED OPINION (aka MISAEL VILLA), ) ) Appellant. )
SIDDOWAY, C.J. - Misael Cortes-Perez l appeals his conviction of three counts of
delivery of marijuana. He contends he was denied his constitutional right to present a
defense when the trial court limited his cross-examination of the Walla WaHa police
department's paid informant and that the trial court imposed a 12-month term of
community custody in violation of the constitutional prohibition against ex post facto
laws.
In the record, we note different spellings for Mr. Cortes-Perez's last name. For 1 the purposes of this opinion, we will use the spelling which appears on the amended information. No. 31585-1-111 State v. Cortes-Perez
We find no abuse of discretion in the trial court's limitations on cross-
examination. But the community custody term imposed for these crimes committed in
2008 was based, in error, on current law. We affirm the conviction and remand for
resentencing.
FACTS AND PROCEDURAL BACKGROUND
In January 2008, Walla Walla police detectives conducted three controlled buys of
marijuana from Misael Cortes-Perez using a paid informant, Jose Luis Gonzalez. Mr.
Cortes-Perez was arrested immediately after the third controlled buy and was thereafter
charged with three counts of involving a person under 18 in an unlawful controlled
substance transaction. Several months later, Mr. Cortes-Perez pleaded guilty to one
count and was sentenced to 51 months of confinement and 9 to 12 months of community
custody.
More than four years later, and after serving his time, Mr. Cortes-Perez's guilty
plea was vacated based on his trial lawyer's failure to adequately advise him of the
immigration consequences of his guilty plea. 2 The State filed an amended information
adding three charges of delivery of marijuana within 1,000 feet of the perimeter of a
school grounds and the case proceeded to trial.
2On the first day of trial, the prosecutor explained to the court that Mr. Cortes Perez had served his prison time, "[a]nd the only reason why we are back here now is because of this immigration issue." Report of Proceedings (RP) at 71.
No.31585-I-III State v. Cortes-Perez
In a motion in limine raised at the outset of trial, the prosecutor asked that the
defense be precluded from questioning Mr. Gonzalez about his personal use of marijuana
other than any use during the controlled buys, arguing that other use was irrelevant. Mr.
Cortes-Perez resisted the motion, claiming that Mr. Gonzalez had admitted in a defense
interview to weekly marijuana use over many years and the history of use (at least up to
the effective date of Initiative 502, which legalized the possession and consumption of
marijuana) was relevant to show both that he was in violation ofthe contract he had
signed to serve as an informant and that he had access to marijuana from sources other
than Mr. Cortes-Perez. On the latter point, Mr. Cortes-Perez told the court he wished to
offer evidence of Mr. Gonzalez's habitual use of marijuana as a motive for Mr. Gonzalez
to feign buys from Mr. Cortes-Perez so that he could continue to be paid and "keep on
getting his drugs." RP at 27. Mr. Cortes-Perez acknowledged that officers involved in
the controlled buys would testify that they searched Mr. Gonzalez before and after the
controlled buys but argued that the officers never did a strip search, and "essentially ...
what we would be showing is that the repeated ... use of marijuana gave him the
opportunity to ... do the old switch-a-roo thing." RP at 26.
The trial court ruled tentatively that evidence of Mr. Gonzalez's marijuana use
unconnected in time to the controlled buys or appearance at trial had a prejudicial effect
that outweighed its probative value. But it said it would entertain further argument of
Mr. Cortes-Perez's objection to the limitation later in the trial.
No. 31585-I-III State v. Cortes-Perez
Mr. Cortes-Perez's lawyer renewed his argument that the evidence should be
admitted at least three additional times. He raised it the second morning of trial,
identifying a further reason for wishing to examine Mr. Gonzalez: he informed the court
that Mr. Gonzalez admitted when interviewed that he worked as a paid informant in part
"because I want to get drugs off the street[s]"-a motive for working as an informant that
Mr. Cortes-Perez wanted to impeach. RP at 89.
The trial court was not persuaded and ruled that Mr. Gonzalez could be examined
as to his use of marijuana only at times close to the drug buys or close to the time of his
testimony. The court indicated that under a balancing test "we're way off track" and that
it viewed any violation of the informant contract as a collateral matter. RP at 93. As to
reasons why Mr. Gonzalez might be working as an informant, the court responded that he
would not have a problem with the lawyer asking. But he then warned, "To then say,
well, I'm going to impeach you because, no, I think the real reason you're doing this is
for some other reason, I think that's where we start to go off track here, and that's where I
think it's just more prejudicial than it is probative of anything." RP at 100-01.
Walla Walla police Sergeant Chris Buttice, who had been a detective at the time of
the controlled buys in 2008, was called by the State thereafter and testified to the
controlled buy procedure that was followed in the case of each purchase from Mr. Cortes-
Perez. It included searching Mr. Gonzalez before the purchase to ensure that he had no
money or drugs on him, providing him with bills whose serial numbers had been
recorded, taking him to within several blocks of where he would be meeting Mr. Cortes-
Perez, arranging for him to be observed by one or more detectives who could see that
there was a hand-to-hand exchange, obtaining the acquired drugs from Mr. Gonzalez
upon his return, and searching him again to ensure that he had no other drugs or money
on him.
Sergeant Buttke testified that on January 8, 2008 he had provided Mr. Gonzalez
with $40 with which Mr. Gonzalez purchased an eighth of an ounce of marijuana, on
January 9 he provided him with $80 with which Mr. Gonzales purchased a quarter ounce
of marijuana, and on January 30 he provided him with $250 with which Mr. Gonzalez
purchased an ounce. The sergeant testified that on the second occasion, he was close
enough to see the money change hands and to see Mr. Cortes-Perez counting the bills as
he walked away; on the third occasion, they actually arrested Mr. Cortes-Perez following
the hand-to-hand exchange and recovered the $250 in recorded bills in his possession.
On cross-examination, Sergeant Buttke acknowledged that informants are
required to sign a contract stating that they will not violate any laws. He agreed with Mr.
Cortes-Perez's lawyer that he would have stopped using Mr. Gonzalez as an informant if
he had learned he was violating the law. He also agreed on cross-examination that Mr.
Gonzalez was getting paid anywhere from "$50 to $100 to $200, depending on what it
was that he was purchasing," but added that "$200 would be an extraordinary
circumstance. That was not the norm." RP at 186.
During Sergeant Buttice's testimony, an objection by the State led to excusing the
jury, and the trial court and the lawyers engaged in their third extended discussion of the
defense's desire to present evidence of Mr. Gonzalez's drug habit in order to show a
motive to feign drug buys from Mr. Cortes-Perez. The trial court expressed its view that
the theory that Mr. Gonzalez would get marijuana from a third party, not smoke it but
"keister" it to evade search, produce the keistered marijuana following the ostensibly
controlled buy, and then use the cash he was paid as an informant to buy other marijuana
that he would smoke, "just defies logic." RP at 202. Later, the court observed:
There again, you just lose me. He just gave the police an ounce of marijuana, worth $250, and you're saying he's doing it for the money[?] He gave away the $250, too.
RP at 297. The court refused to reconsider its order excluding the evidence.
When the State called Mr. Gonzalez as a witness, he admitted he began working
with police after being caught with marijuana but had become a paid informant by the
time he engaged in the three controlled buys from Mr. Cortes-Perez. In cross-examining
Mr. Gonzalez, defense counsel asked if Mr. Gonzalez shared Detective Buttice's desire to
take drugs off the streets and Mr. Gonzalez agreed that was something he wanted.
During a recess following that testimony, defense counsel argued that Mr.
Gonzalez opened the door to inquiry into his drug use by agreeing that he shared then-
Detective Buttice's desire to get drugs offthe streets. Consistent with its prior ruling that
No. 31585-1-111 State v. Cortes-Perez
it would not allow a setup, 3 the court did not find that any door had been opened and
cautioned defense counsel, "Once 1 made a ruling, 1 made a ruling. 1 don't want you to
look for ways to get around it." RP at 325.
Finally, and through a subsequent offer of proof outside the presence of the jury,
Mr. Cortes-Perez's lawyer elicited testimony from Mr. Gonzalez that he once told the
detectives with whom he was working that he used marijuana weekly. Mr. Gonzalez
claimed not to remember when. Mr. Cortes-Perez argued that he should be allowed to
present evidence of Mr. Gonzalez's weekly habit to impeach Sergeant Buttice's
testimony that he had been unaware Mr. Gonzalez was violating any laws, and would not
have used him ifhe had known. The court again refused to allow the questioning.
The jury found Mr. Cortes-Perez guilty of three counts of delivery of marijuana.
The court sentenced Mr. Cortes-Perez to 18 months confinement and imposed a
community custody term of 12 months. Mr. Cortes-Perez appeals.
3 The court had told defense counsel: [W]e'll see if the door is opened to impeach a statement like, ["]well, it is just to get drugs off the street.["] And I'm not going to let you ... set it up yourself to introduce a statement like that, and then impeach it in that manner." RP at 92.
No. 31585-1-III State v. Cortes-Perez
ANALYSIS
I. Limitation on cross-examination ofthe paid informant
Mr. Cortes-Perez's first assignment of error is that,the trial court denied his
constitutional right to present a defense by improperly limiting his examination of Mr.
Gonzalez.
State rule makers have broad latitude under the United States Constitution to
establish rules excluding evidence from criminal trials, but "[t]his latitude ... has limits.
'Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in
the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants "a meaningful opportunity to present a
complete defense."'" Holmes v. South Carolina, 547 U.S. 319, 324,126 S. Ct. 1727,
164 L. Ed. 2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct.
2142,90 L. Ed. 2d 636 (1986)).
Evidentiary rules can impermissibly abridge a criminal defendant's right to present
a defense, but only if they are'" arbitrary or disproportionate' and 'infringe[ ] upon a
weighty interest of the accused.'" State v. Rafay, 168 Wn. App. 734, 796,285 P.3d 83
(2012) (alteration in original) (internal quotation marks omitted) (quoting United States v.
Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998)), review denied,
176 Wn.2d 1023, cert. denied, 134 S. Ct. 170, 187 L. Ed. 2d 117 (2013). "The Supreme
Court has generally found such an abridgment only when the evidentiary ruling
effectively prohibited the substantive testimony of the defendant on matters relevant to
the defense or the testimony of a percipient witness." Id. (citing examples). The
constitutional concern, then, is with evidence that is relevant but excluded by rules that
serve no legitimate purpose or that are disproportionate to the ends they are asserted to
promote. Washington v. Texas, 388 U.S. 14,23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019
(1967). Article I, section 22 of the Washington Constitution guarantees criminal
defendants a right to present testimony in their defense that is equivalent to the right
guaranteed by the United States Constitution. See State v. Hudlow, 99 Wn.2d 1,659 P.2d
514 (1983).
Mr. Cortes-Perez frames his assignment of error in constitutional terms but then
fails to articulate a constitutional challenge to any state evidentiary rule or to its
application to particular evidence. He argues only that the evidence of Mr. Gonzalez's
marijuana use was relevant, was admissible under ER 404(b), was admissible under ER
607, and was admissible for impeachment purposes. Since he is challenging only the trial
court's application of state evidence rules rather than the rules themselves, he has not
sufficiently presented any issue of due process. See RAP 1O.3(a)(6).
We review a trial court's decision to admit or exclude evidence for abuse of
discretion. Diaz v. State, 175 Wn.2d 457, 462, 285 P.3d 873 (2012). Discretion is
abused if it is exercised on untenable grounds or for untenable reasons. State ex rei.
Carrollv. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
Although the rules of evidence allow some attacks on character and some
impeachment of credibility, they impose limitations on such evidence even where the
evidence is arguably relevant. As Professor Edward J. Imwinkelried has explained,
Ideally, we want the jury to: use admitted items of evidence as proof of only the factual propositions the judge admits them to prove, ascribe the proper probative weight to each item of evidence, and concentrate on the historical issues in dispute in the case.
EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS, § 501 at 211 (9th ed. 2015). To
that end, Prof. Imwinkelried has described the federal rules of evidence, on which the
Washington evidence rules are largely patterned, as "empower[ing] the judge to exclude
technically relevant evidence which realistically poses a danger to this model." Id. at
212.
In this case, ER 403 and other principles that limit character evidence and
impeachment to its proper roles were reasonably applied by the trial court.
ER 404(b); Evidence ofMotive
Mr. Cortes-Perez first contends that the trial court erred by not admitting evidence
of Mr. Gonzalez'S prior marijuana use under ER 404(b) to show motive, intent and
opportunity to fabricate marijuana buys from Mr. Cortes-Perez in order to make money to
support his weekly drug habit.
The trial court viewed the notion that Mr. Cortes-Perez got marijuana that he
craved from a third party, so he could pretend to get it from Mr. Cortes-Perez, so that he
could get paid, so that he could buy the marijuana he craved from a third party and smoke
it, as implausible. Had a dubious theory of defense not gone hand-in-hand with evidence
of illegal drug use by the State's witness, the court might have allowed Mr. Cortes-Perez
to present his theory and let the jury decide for itself. Under ER 404(b), however, the
trial court was required to engage in a well-settled analysis before admitting evidence of
this other crime, wrong, or act by Mr. Gonzalez.
Evidence of a person's other bad acts is never admissible to prove the character of
a person to show that he acted in conformity with his character on a particular occasion.
State v. Gresham, 173 Wn.2d 405,420,269 P.3d 207 (2012). But evidence ofa person's
other acts may be admissible for other purposes, including to prove motive, opportunity,
or intent. Nothing in the text ofER 404(b) limits its application to prior misconduct of a
party.
To satisfy itself that evidence of prior misconduct is not being employed for the
purpose forbidden by ER 404(b), the trial court must, before admitting such evidence,
"(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify
the purpose for which the evidence is sought to be introduced, (3) determine whether the
evidence is relevant to prove an element of the crime charged, and (4) weigh the
probative value against the prejudicial effect." State v. Yarbrough, 151 Wn. App. 66, 81
82,210 P.3d 1029 (2009) (citing State v. Thang, 145 Wn.2d 630,642,41 P.3d 1159
(2002)).
11 No.31585-I-III State v. Cortes-Perez
In the view ofthe trial court, Mr. Cortes-Perez's proposed evidence ran into
trouble at the third and fourth steps of the analysis. While the evidence was ostensibly
offered for intent, motive, and opportunity, the court found the defense theory too
implausible to support true relevance for any of those identified purposes. And even if
theoretically relevant, the trial court concluded that the limited relevance was outweighed
by the prejudicial effect of the evidence. We find no abuse of discretion in the trial
court's application ofER 404(b).
ER 607 and 608: Impeachment by Specific Instances ofConduct
Mr. Cortes-Perez next argues that Mr. Gonzalez's marijuana use was admissible
under ER 607, which provides, "The credibility of a witness may be attacked by any
party, including the party calling the witness." He argues that the marijuana use
demonstrated Mr. Gonzalez's ongoing violation of his informant contract, a matter
relevant to his credibility.
ER 607 makes the "relatively narrow point" that even the party calling a witness
may impeach him or her; it is the rules following ER 607, and in a few instances case
law, that regulate methods of impeachment. 5A KARL B. TEGLAND, WASHINGTON
PRACTICE: EVIDENCE LAW AND PRACTICE § 607.1 at 378 (5th ed. 2007). Mr. Cortes
Perez's argument that he should have been allowed to use Mr. Gonzalez's violation of the
informant contract to demonstrate his lack of credibility is governed by ER 608(b),
addressing when specific instances of conduct can be offered to attack credibility.
ER 608(b) provides that such instances may, "in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired into on cross examination." Not
every instance of even a key witness's misconduct is probative of a witness's truthfulness
or untruthfulness under ER 608(b). State v. O'Connor, 155 Wn.2d 335, 350, 119 P.3d
806 (2005). An instance of dishonesty can be collateral and not relevant to the guilt
issues in a case. State v. Griswold, 98 Wn. App. 817, 831, 991 P.2d 657 (2000),
abrogated on other grounds by State v. DeVincentis, 150 Wn.2d 11, 74 P.3d 119 (2003).
In exercising its discretion, a trial court properly considers both (1) whether the instance
of misconduct is relevant to the witness's veracity on the stand and (2) whether it is
germane or relevant to the issues presented at trial. O'Connor, 155 Wn.2d at 349. The
trial court should be reversed only if no reasonable person would have decided the matter
as the trial court did. Id. at 351 (citing State v. Thomas, 150 Wn.2d 821, 856, 83 PJd
970 (2004)).
The State argued that since the Walla Walla police department's contract
prohibited violating laws while working for the police in an informant capacity, Mr.
Gonzalez "by the letter of the contract ... complied with the contract." RP at 354. And
when the court commented on the application ofER 608, Mr. Cortes-Perez's trial lawyer
stated, "Just so the Court has a heads-up as to where we are coming from, we wouldn't be
offering it [the evidence of Mr. Gonzalez's personal marijuana usage or contract
. violation] under Evidence Rule 608." RP at 25. Given the disagreement over whether
the contract was violated, its collateral relationship to the prosecution, and Mr. Cortes
Perez's disavowal of reliance on ER 608(b), we find no abuse of discretion.
Impeachment by contradiction
Mr. Cortes-Perez next argues that he should have been allowed to offer evidence
of Mr. Gonzalez's marijuana use as contradicting and thereby impeaching testimony of
both Mr. Gonzalez and Sergeant Buttice.
He wished to use the evidence of drug use to impeach Mr. Gonzalez's agreement
with defense counsel's leading question about how Mr. Gonzalez, like Sergeant Buttice,
wanted to "tak[e] drugs off the streets." RP at 321. The trial court had warned the
defense that it would not allow it to elicit Mr. Gonzalez's agreement with that lofty
motive and then impeach him with otherwise inadmissible evidence. It did not abuse its
discretion. Cf State v. Howard, 127 Wn. App. 862, 869, 113 P.3d 511 (2005) (criminal
defendant may not call a witness as a subterfuge to place before the jury evidence that is
otherwise inadmissible).
Finally, the trial court did not abuse its discretion by refusing to allow Mr. Cortes-
Perez to impeach Sergeant Buttice's testimony that he would not have used Mr. Gonzalez
as an informant ifhe knew he was violating the law with the offered proof that Mr.
Gonzalez once told detectives about his weekly marijuana use.
Impeachment by specific contradiction is presumptively admissible under modem
evidence rules, but when the matter on which a witness is being contradicted is collateral
it presents dangers of waste of time and confusion of issues. JOHN W. STRONG ET AL., 1
MCCORMICK ON EVIDENCE, § 45 at 185 (5th ed. 1999). Mr. Cortes-Perez's offer of proof
did not establish that Mr. Gonzalez's statement to detectives took place at a time when it
would be inconsistent with Sergeant Buttice's testimony. Moreover, whether then-
Detective Buttice was aware that Mr. Gonzalez was using marijuana was a collateral
matter. A matter is collateral if the fact, as to which error is predicated, could not have
been shown in evidence for any purpose independently of the contradiction. State v.
Rosborough, 62 Wn. App. 341, 349, 814 P.2d 679 (1991).
The trial court did not abuse its discretion in excluding evidence of Mr.
Gonzalez's marijuana use for this purpose. 4
II Community custody sentence
Mr. Cortes-Perez's second assignment of error is to the 12-month term of
community custody imposed, which he argues violates the prohibition on ex post facto
laws. Statutes in effect when Mr. Cortes-Perez committed the three marijuana deliveries
imposed a discretionary range of postconfinement community custody of9 to 12 months.
4 The State also makes a persuasive argument that any error in admitting the evidence was harmless because Mr. Cortes-Perez's lawyer developed evidence throughout trial that Mr. Gonzalez was not credible and was motivated by self-interest. Even without Mr. Gonzalez's admission that he was smoking weekly, the defense was able to demonstrate that Mr. Gonzalez used marijuana in violation of his contract with Walla Walla police. It was the central theme of the defense's closing argument. See Br. ofResp't at 14-16. In light of our finding of no abuse of discretion, however, we need not review the issue of harmless error further.
Former RCW 9.94A.505(2)(a)(iii); .715(1); .850(5) (2008). Consistent with those
provisions, Mr. Cortes-Perez was sentenced to 9 to 12 months of community custody
after entering his guilty plea.
The legislature amended the Sentencing Reform Act in 2009 to impose a
mandatory 12-month term of community custody. LAWS OF 2009, ch. 375, § 5; RCW
9.94A.701(3)(c). Following the jury trial in 2013, the court sentenced Mr. Cortes-Perez
to "community custody ... for 12 months." Clerks Papers at 74. While the court did not
indicate whether it was applying the statutes as they existed in 2008 or 2013, the
judgment and sentence referred only to the then-current statute. Id.
We review alleged violations of the prohibition of ex post facto laws de novo.
State v. Pillatos, 159 Wn.2d 459,469,474-77, 150 PJd 1130 (2007). The party
disputing the constitutionality of a statute bears the burden of proving that the statute is
unconstitutional beyond a reasonable doubt. State v. Enquist, 163 Wn. App. 41, 45,256
PJd 1277 (2011).
Both the United States and Washington Constitutions prohibit ex post facto laws.
U.S. CONST. art. I, § 10; WASH. CONST. art. I, § 23. "A law that imposes punishment for
an act that was not punishable when committed or increases the quantum of punishment
violates the ex post facto prohibition," In re Pers. Restraint ofHinton, 152 Wn.2d 853,
861, 100 P.3d 801 (2004). To demonstrate that the law being challenged operates ex post
facto as to his crime, a defendant must show that the law "operates retroactively, i.e., it
.
•
applies to conduct that was completed before the law was enacted, and that the
challenged law increases the penalty over what it was at the time of the conduct." In re
Pers. Restraint ofFlint, 174 Wn.2d 539, 545,277 P.3d 657 (2012).
The 2009 amendments whose application is challenged by Mr. Cortes-Perez do
operate retroactively, as expressly provided by the legislature:
This act applies retroactively and prospectively regardless of whether the offender is currently on community custody or probation with the [Department of Corrections], currently incarcerated with a term of community custody or probation with the department, or sentenced after the effective date of this section.
LAWS OF 2009, ch. 375, § 20.
And the challenged law changes the penalty for the conduct from 9 to 12 months
of community custody to a mandatory 12 months. In Lindsey v. Washington, 301 U.S.
397,401-02, 57 S. Ct. 797, 81 L. Ed. 1182 (1937), the United States Supreme Court held
that if the effect of a new statute is to make mandatory what was before only a maximum
sentence, then it operates to the detriment of a defendant within the sense proscribed by
the federal ex post facto clause. Lindsey is controlling here.
Because the statutory provision challenged by Mr. Cortes-Perez was applied
retroactively and increased the amount of prescribed standard of punishment, we reverse
his sentence and remand for resentencing in accordance with this opinion. The
convictions are affirmed.
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.
WE CONCUR:
Brown, J.