State Of Washington v. Pedro Navarro

• Court: Court of Appeals of Washington
• Decided: June 29, 2015
• Docket: 71126-1
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 71126-1-1 Respondent, DIVISION ONE v.

PEDRO PABLO NAVARRO, PUBLISHED OPINION

Appellant. FILED: June 29, 2015

Becker, J. — Interpreting a statute, we hold that all sexual assault

protection orders entered against a defendant in one criminal prosecution expire

two years after the expiration of the longest sentence.

This case involves both sexual assault protection orders and no-contact

orders. A sexual assault protection order protects a victim from contact with an

offender who is not otherwise restrained. Conviction of the offender is not a

prerequisite. No-contact orders, on the other hand, are not limited to victims, and

they are entered only after the offender is convicted of a crime. There are

different provisions governing the length of time these orders may remain in

effect. This is a case where the combination of both types of orders, despite

some overlap, ensures that each victim is protected for at least two years after

the offender is no longer in any form of custody. No. 71126-1-1/2

Appellant Pedro Navarro used a cellular phone and social media to

contact eleven boys in two different middle schools. Pretending to be a girl, he

would initiate friendly contact. After a few days, his communication would

become sexual. He asked the boys, among other things, if they would send him

nude photographs and ifthey would like oral sex. He suggested that they could

meet his brother who would perform oral sex on them.

At trial, Navarro faced eleven counts of communication with a minor for

immoral purposes. Navarro was also charged with two counts of extortion for

threatening two of the victims when they stopped responding to his

communications.1

A jury acquitted Navarro on three of the communication counts and

convicted him as charged on the remaining counts. The jury found that Navarro

committed each extortion with sexual motivation. The court imposed a 96-month

base sentence and two 18-month sexual motivation enhancements to run

consecutively for a total of eleven years.

At sentencing on October 11, 2013, the court entered sexual assault

protection orders protecting all eleven of the boys involved in the case. All orders

were set to expire twelve years later on October 11, 2025. As part of the

judgment and sentence for extortion with a sexual motivation, the trial court

1 The counts of communication were I, III, IV, V, VI, VII, IX, X, XI, XII, and XIII. The extortion counts were II and VIII. It is not clear why the State persists in the archaic practice of using Roman numerals in charging documents, pleadings, and briefs. Roman numerals generate confusion because they are hard to read, particularly where there are more than two or three counts. No. 71126-1-1/3

imposed no-contact orders protecting all eleven boys for ten years, the duration

of the maximum term for extortion.

Navarro appeals.

SEXUAL ASSAULT PROTECTION ORDERS

The first issue on appeal is whether the expiration date was calculated

correctly for the sexual assault protection orders. This issue turns on the

interpretation of a statute. Our review is de novo. State v. Thompson, 151

Wn.2d 793, 801, 92 P.3d 228 (2004).

A victim of sexual assault may petition for a protection order against the

offender regardless of whether or not there is a pending lawsuit, complaint,

petition, or other action between the parties. RCW 7.90.020(2).

Sexual assault is the most heinous crime against another person short of murder. Sexual assault inflicts humiliation, degradation, and terror on victims. According to the FBI, a woman is raped every six minutes in the United States. Rape is recognized as the most underreported crime; estimates suggest that only one in seven rapes is reported to authorities. Victims who do not report the crime still desire safety and protection from future interactions with the offender. Some cases in which the rape is reported are not prosecuted. In these situations, the victim should be able to seek a civil remedy requiring that the offender stay away from the victim. It is the intent of the legislature that the sexual assault protection order created by this chapter be a remedy for victims who do not qualify for a domestic violence order of protection.

RCW 7.90.005.

Unless entered in conjunction with a criminal case, sexual assault

protection orders have a maximum duration of two years. RCW 7.90.120(2).

When a criminal prosecution results in a conviction for a sex offense and a

condition of the sentence restricts the defendant's ability to have contact with the No. 71126-1-1/4

victim, the condition must be recorded as a sexual assault protection order.

RCW 7.90.150(6)(a). By statute, such an order remains in effect for two years

after the defendant is released from restraint on "any sentence":

A final sexual assault protection 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.

RCW 7.90.150(6)(c).

Navarro contends that the statute's reference to "any sentence" means

"any sentence" imposed for the predicate crime. For the crime of communication

with a minor for an immoral purpose, the maximum sentence is five years. RCW

9.68A.090(2); RCW 9A.20.021(1)(c). For extortion, it is ten years. RCW

9.68A.090(2); RCW 9A.20.021(1)(b). Six of the boys were involved only in the

convictions for communication for an immoral purpose. Navarro argues that the

orders protecting these six boys should remain in effect for two years after the

expiration of Navarro's sentences for that crime, while the orders protecting the

two victims of the extortion counts should remain in effect for two years after the

expiration of his sentences for that crime. Under Navarro's interpretation, the

orders protecting the six victims of immoral communication could expire while

Navarro was still under restraint on the longer sentences for the two extortion

convictions.

The statute does not relate the phrase "any sentence" to a predicate crime

or to an offense committed against a particular victim. The phrase "any

sentence" refers back to the order "entered in conjunction with a criminal No. 71126-1-1/5

prosecution." Thus, the plain language directs that protection orders entered in

conjunction with a criminal prosecution will remain in effect for two years

following any sentence the court actually imposes in that proceeding. This

interpretation better serves the purpose of a sexual assault protection order,

which is intended to protect a victim for two years after the offender is no longer

restrained. We conclude that where an offender is convicted of various offenses

in a single prosecution, sexual assault protection orders remain in effect for two

years after the expiration of the longest sentence.

Navarro does correctly point out that the sexual assault protection orders

imposed in his case were erroneously set to expire exactly twelve years after he

was sentenced. One reason why that expiration date is erroneous in Navarro's

case is that he is entitled to credit for time served before sentencing. A second

reason why the fixed expiration date exactly twelve years after sentencing is

erroneous is that an offender's actual release date can seldom be pinpointed at

sentencing. The statute does not say that orders entered in conjunction with a

criminal prosecution will remain in effect until two years after the end of the

statutory maximum term, which is apparently how the trial court decided on a

term of twelve years. Rather, the statute provides that the orders shall remain in

effect for a period of two years after "the expiration of any sentence of

imprisonment" and subsequent period of restraint. RCW 7.90.150(6)(c).

Because an offender's actual release date is unknowable at the time of

sentencing, a sexual assault protection order should not provide a fixed

expiration date. A preferable approach is simply to track the language of the No. 71126-1-1/6

statute by stating, for example, that the order "shall remain in effect for a period

of two years following the expiration" of the longest sentence served by the

offender as a result of the prosecution. RCW 7.90.150(6)(c).

NO-CONTACT ORDER

In addition to the sexual assault protection orders, the court issued a no-

contact order. By its terms, Navarro was prohibited from contacting the eleven

boys for "the maximum term of 10 years" for the crime of extortion.

Navarro contends that for the nine boys who were not victims of extortion,

the duration of the no-contact order cannot exceed the 5-year statutory maximum

for communication.

The no-contact order was authorized as a crime-related prohibition.

Under RCW 9.94A.505(8), a trial court may impose a no-contact order for the

maximum term of a conviction, even extending beyond community custody.

State v. Armendariz, 160Wn.2d 106, 112, 120, 156P.3d201 (2007).

No-contact orders are not limited to the victims of the crime. See State v.

Warren, 165 Wn.2d 17, 32-34, 195 P.3d 940 (2008), cert, denied, 556 U.S. 1192

(2009). In this case, all eleven boys served as witnesses. The evidentiary value

of each boy's testimony was not limited to proving the count for which he was the

victim. Each boy's testimony helped establish a pattern of activity proving that

one person—defendant Navarro—was responsible for all the immoral

communication. One of the extortion victims testified that in the hope of stopping

Navarro's threats, he provided Navarro with several of his friends' phone No. 71126-1-1/7

numbers. The testimony of those friends that they began receiving similar text

messages shortly thereafter confirmed the extortion victim's testimony.

"Crime-related prohibitions" are orders directly related to "the

circumstances of the crime." RCW 9.94A.030(10). As witnesses in support of

the extortion charge, all eleven boys were directly connected to the

circumstances of the crime of extortion. We conclude all of them were properly

included in the no-contact order for the maximum 10-year term of the crime of

extortion.

RIGHT TO PROCEED WITHOUT COUNSEL

Navarro moved to proceed pro se, but he changed his mind after the court

engaged him in a colloquy. He contends the trial court gave him incorrect

information, rendering his waiver of his right to proceed pro se invalid.

When a defendant expresses a desire to proceed without the assistance

of counsel, the trial court must assure the defendant understands the risks of

doing so. Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 45 L. Ed. 2d

562 (1975).

In a colloquy with Navarro after he moved to proceed pro se, the trial court

told him he would be "completely" on his own, with no turning back once he

decided to let his attorney go:

THE COURT: . . . Why would you want to do this on your own? I don't understand. MR. NAVARRO: I don't know. THE COURT: You don't know? But, I have to know before I let you make this huge decision to represent yourself. And you don't get to change your mind; once it's done, it's over. She steps away; she's off the case, and you're completely on your own. Do you know how to cross-examine a witness? No. 71126-1-1/8

MR. NAVARRO: You're saying that if I go pro se, I'm completely on my own. THE COURT: You're completely on your own. You have no right to standby counsel. MR. NAVARRO: And I can't recall my pro se status. THE COURT: No. This is not—this is not a game. It's done. I let her go here today; you're done.

At the end of the colloquy, Navarro withdrew his request to proceed pro

se. He now contends that the trial court should have told him there might be a

possibility, however slim, that if he changed his mind, the court could exercise its

discretion to reappoint counsel.

Navarro was not misinformed. The court accurately conveyed to him that

he could not count on being able to regain the assistance of counsel after

waiving that right. There is no right to reappointment of counsel if, after

successfully obtaining pro se status, a defendant changes his mind. State v.

DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991). We conclude Navarro

validly waived his right to proceed pro se.

STATEMENT OF ADDITIONAL GROUNDS

Navarro submitted a statement of additional grounds for review under

RAP 10.10, alleging three instances of prosecutorial misconduct in closing

argument. In each instance, a prompt objection was made and sustained. The

remarks do not provide a basis for further review.

ERRORS IN THE JUDGMENT & SENTENCE

Navarro was ordered to complete six months of community custody for

failure to register as a sex offender, although he was not charged with that crime.

The State concedes error. On remand, this provision shall be stricken. The

8 No. 71126-1-1/9

State also concedes that remand is necessary to change Navarro's offender

score from 30 to 27.

The convictions are affirmed. The sentence is reversed and remanded to

adjust the language establishing the duration of the sexual assault protection

orders and to make other corrections identified in and consistent with this

opinion.

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