FILED OCTOBER 30, 2025 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STATE OF WASHINGTON, ) ) No. 40351-3-III Respondent, ) ) v. ) ) REYMUNDO IZAAK HERNANDEZ, ) UNPUBLISHED OPINION Also known as REYMUNDO “REY” I. ) HERNANDEZ, ) ) Appellant. )
STAAB, J. — Reymundo Hernandez appeals several community custody conditions
that were imposed after he pleaded guilty to second degree rape of a child committed
against his stepdaughter. He contends that some of the conditions violate his
constitutional rights and others are not crime related. Hernandez also filed a statement of
additional grounds (SAG) for review.
We affirm all the community custody conditions except those concerning internet
use: 17, 18, and 19. We remand for the limited purpose of striking these three conditions.
BACKGROUND
Hernandez pleaded guilty to second degree rape of a child committed against his
stepdaughter, K.G., who was approximately 12-13 years old at the time of the crimes. No. 40351-3-III State v. Hernandez
K.G. had disclosed to her mother, Jessica, that Hernandez had been raping her for
approximately 18 months. At the time, Hernandez and Jessica had been dating for 9 to
10 years and have three biological children together.
Hernandez was charged by information in May 2022, following K.G.’s disclosure.
At Hernandez’s release hearing in June, he was ordered not to have contact with either
K.G. or Jessica. An agreed order amending his release conditions was later entered,
allowing Hernandez to have supervised contact with his minor children.
The following year, the State requested a warrant for Hernandez’s arrest after
receiving complaints that he was not following his release conditions. A family member
reported to law enforcement that Hernandez and Jessica were living together with their
children. A few weeks later, Hernandez was arrested inside a known drug house where
Jessica and their three children were asleep in the living room. The officers reported that
the home smelled of a substance consistent with recently smoked fentanyl.
As part of a plea agreement, Hernandez pleaded guilty to rape of a child in the
second degree. The court ordered the Department of Corrections (DOC) to complete a
pre-sentence investigation (PSI) report. During the PSI interview, Hernandez answered
questions about his alcohol and drug use. Hernandez explained that he smoked marijuana
daily for the six years prior to his arrest and admitted that he has an “addiction” to
marijuana.
2 No. 40351-3-III State v. Hernandez
Hernandez’s characterization of his alcohol use was inconsistent. While he
claimed he had not consumed alcohol for four years, he admitted drinking a significant
amount when camping and bored. The PSI noted that in an earlier interview with his
attorney and DOC, Hernandez admitted that prior to his arrest he “had been drinking all
week for 5 weeks straight while camping in Montana” and that he “may have been still
intoxicated.” Clerk’s Papers (CP) at 58. He reported buying “three 48 packs and drank
most if it myself.” CP at 58. Hernandez thought he may need drug/alcohol treatment
because he “still craves beer now and then.” CP at 70.
The PSI indicated that Hernandez had a history of sexual involvement with
minors, noting that years earlier he began a sexual relationship with a 15-year-old female
when he was 30 years old. The female was pregnant with Hernandez’s child when she
was “about 17 years old.” CP at 67.
Finally, the PSI concluded that Hernandez has an extensive history of failing to
comply “with conditions of supervision for both misdemeanor and felony convictions.”
CP at 73. The PSI described Hernandez’s behavior as manipulative, dishonest, and
defiant toward the court. The PSI recommended a standard range sentence of 78 months’
confinement with lifetime community supervision and numerous community custody
conditions, including restrictions on Hernandez’s access to minors.
Prior to sentencing, the court also considered the probable cause affidavit. The
affidavit summarized statements that Jessica made to law enforcement shortly before
3 No. 40351-3-III State v. Hernandez
Hernandez was charged. At one point, Jessica showed officers text messages from
Hernandez. The messages seemed to admit he had sexual contact with K.G., but blamed
K.G. for instigating the contact and alleged that K.G. was trying to set him up. Jessica
also relayed concerns she had about Hernandez’s treatment of his own daughters. She
reported that when Hernandez changed the youngest daughter’s diapers, he was not
gentle with “her private areas.” CP at 9. When Jessica would comment on this
treatment, Hernandez became offended. This behavior led to so many fights that Jessica
vowed to change all the diapers to avoid the fights.
The probable cause affidavit also described another prior incident with
Hernandez’s infant daughter, when Jessica had reported that Hernandez left with his
youngest daughter and was gone long enough to cause Jessica to worry. When he
returned, the baby’s diaper was wet, and the baby’s private areas were red and “looked
different.” Although Jessica suspected some type of abuse, the doctor who examined the
baby opined that the baby’s rash was from urine and not from sexual abuse.
At the beginning of the sentencing hearing, the trial court advised the attorneys
that recent case law made it clear that the court must carefully consider any conditions
that restricted Hernandez’s right to parent his own children, and it must make appropriate
findings if such conditions were imposed.
K.G. gave a statement at the sentencing hearing and indicated that for many years
Hernandez played pornography on the television and left pornographic materials lying
4 No. 40351-3-III State v. Hernandez
around the house in full view of K.G. and her siblings. K.G. expressed fear that “[b]ased
off of what he did to me, I would fear that it would happen to [my siblings] as well.”
Rep. of Proc. (RP) at 33. When the court asked K.G., “What gives you concerns about
his own biological children?” K.G. answered:
The simple fact that he was willing to swear up and down, say, “I’m the parent. I’m the parent. You have to do this. You have to do that. You have to do what I say,” but he still did it to me. He claimed to consider me one of his own but he still did it to me.
RP at 34.
Jessica also spoke and told the court that Hernandez was not a risk to his three
biological children. She explained that he paid all of their bills and child support, that the
“kids love their dad,” and that they missed him. RP at 45-46. She said that Hernandez
had a good relationship with his children and limiting their contact would be devastating.
Hernandez allocuted and apologized to K.G. and his family. He asked the court to
impose a special sexual offender sentencing alternative (SSOSA) sentence. Hernandez’s
attorney addressed the court, urging the court not to impose restrictions on Hernandez’s
ability to contact his own children. He asserted that Hernandez’s relationship with his
biological children was different than his relationship with K.G., refuting K.G.’s claim
that Hernandez acted like a father to her and pointing out that the two never had an
acrimonious relationship. Finally, the attorney argued that the PSI did not indicate that
Hernandez would be a danger to his own children.
5 No. 40351-3-III State v. Hernandez
The court denied Hernandez’s request for a SSOSA sentence and imposed an
indeterminate sentence of 78 months to life followed by community custody for life in
accordance with the joint recommendation in the plea agreement. In addition, the court-
imposed several community custody conditions.
Relevant to this appeal, the court prohibited Hernandez from having unsupervised
contact with minors, including his own children. To support this condition, the court
made the following findings:
I do have concerns that you pose a risk of other danger to other children based on all the information in the PSI as well as the probable cause affidavit that I reviewed. ....
And I also am concerned about your interactions with your own children. I did want to listen, hear from your wife in this case, because I wanted to see if she might be a protective factor to your own children. And I was not persuaded that she’s a protective factor for your—for your own biological children. In fact, her comments led me to believe, consistent with the PSI and the probable cause affidavit that I reviewed, that she sees you as the—the breadwinner. I think there’s a lot of financial motive she has. And I don’t think she has good judgment as to the danger that you pose to children, and including your own children. She was certainly not a protective factor with her own daughter. And so I—I do have concerns. ....
The court is aware that you do have a fundamental constitutional right to have a parenting relationship with your children. However, the court makes the finding that restricting that right with these conditions is necessary for the preservation of public order; specifically, preventing any future sexual acts on your own children. The court is also mindful of the PSI, which documented that you had issues going way back with another stepdaughter [sic]. And the court 6 No. 40351-3-III State v. Hernandez
worries that if you are in a position of having that fiduciary duty, even with your own biological children, that would be very concerning to the court and the court feels that we’d be placing your children at grave risk.
RP at 54-56.
Additionally, the court imposed all of the conditions listed in Appendix H of the
PSI. Although the court did not go over each individual condition, defense counsel
informed the court that he reviewed the conditions with Hernandez, and they did not need
to be recited. Hernandez did not object to any of these additional conditions.
ANALYSIS
On appeal, Hernandez challenges numerous community custody conditions
imposed by the court. Before considering his specific challenges, we set forth the general
rules on a court’s authority to impose such conditions.
“The Sentencing Reform Act of 1981(SRA),[1] provides that “when a court
sentences a person to a term of community custody, the court shall impose conditions of
community custody.” State v. Peters, 10 Wn. App. 2d 574, 580-81, 455 P.3d 141 (2019).
Under the SRA, community custody provisions are either (1) mandatory, (2) waivable,
(3) discretionary, or (4) special conditions. RCW 9.94A.703.
Discretionary community custody provisions tend to be the most complex aspect
of the statute because of the different requirements based on the subsection of the statute.
For example, some of the discretionary conditions must be crime related. See, e.g.,
1 Chapter 9.94A RCW. 7 No. 40351-3-III State v. Hernandez
RCW 9.94A.703(3)(c), (f) (“crime-related treatment” and “crime-related prohibitions”).
However, some only need to have a loose connection to the convicted offense. See State
v. Geyer, 19 Wn. App. 2d 321, 496 P.3d 322 (2021); see, e.g., RCW 9.94A.703(3)(b), (d)
(“Refrain from direct or indirect contact with the victim of the crime or a specified class
of individuals” and “Participate in rehabilitative programs or otherwise perform
affirmative conduct reasonably related to the circumstances of the offense, the offender’s
risk of reoffending, or the safety of the community.”). And finally, some of the
conditions do not require any particular connection. See, e.g., RCW 9.94A.703(3)(a), (e)
(“Remain within, or outside of, a specified geographical boundary” and “[r]efrain from
possessing or consuming alcohol.”).
Among the discretionary conditions, a court is authorized to impose an order that
an offender “[c]omply with any crime-related prohibitions.” RCW 9.94A.703(3)(f).
“Crime-related prohibition[s], in turn, are those orders that prohibit “conduct that directly
relates to the circumstances of the crime for which the offender has been convicted.”
RCW 9.94A.030(10). If there is no evidence in the record linking the circumstances of
the crime to the particular condition, the court will strike the challenged condition. State
v. Padilla, 190 Wn.2d 672, 683, 416 P.3d 712 (2018).
For these types of challenges, a “reasonable relationship” must exist between the
crime of conviction and the community custody condition. State v. Irwin, 191 Wn. App.
644, 658-59, 364 P.3d 830 (2015). That is, “there must be ‘some basis for the
8 No. 40351-3-III State v. Hernandez
connection.’” State v. Nguyen, 191 Wn.2d 671, 684, 425 P.3d 847 (2018) (quoting
Irwin, 191 Wn. App. at 657). We will review the “factual basis for a trial court’s implicit
finding that a condition is crime related using a ‘substantial evidence’ standard.” Peters,
10 Wn. App. 2d at 591.
However, where there is no objection to community custody conditions below,
“there is no reason for the parties or the court to create a record on the relationship
between the crime and the conditions imposed.” Id. As such, we are not required to
consider an argument that a condition is not crime-related “when the offender had the
opportunity to raise the contention in the trial court, creating a record, and failed to do
so.” Id.
With these principles in mind, we turn to Hernandez’s specific challenges.
1. COMMUNITY CUSTODY CONDITIONS THAT LIMIT HERNANDEZ’S CONTACT WITH HIS OWN CHILDREN
Hernandez contends that community custody conditions 13, 14, and 15 violate his
constitutional right to parent and should be modified to allow unsupervised contact with
his biological children. The State responds that the court’s findings support the
restrictions on Hernandez’s contact with his own children.
We review the imposition of community custody conditions for abuse of
discretion. In re Pers. Restratint of Ansell, 1 Wn.3d 882, 892, 533 P.3d 875 (2023). As
such, we will reverse “such conditions only if they are manifestly unreasonable.” Peters,
10 Wn. App. 2d at 583. “A court abuses its discretion if a condition is either 9 No. 40351-3-III State v. Hernandez
unconstitutional or manifestly unreasonable.” State v. Lee, 12 Wn. App. 2d 378, 401,
460 P.3d 701 (2020).
The right of a parent to make decisions concerning the care, custody, and control
of their children is protected as a matter of substantive due process. In re the Matter of
the Adoption of K.M.T., 195 Wn. App. 548, 559, 381 P.3d 1210 (2016). However, the
State also has an interest in the welfare of children and can intervene when “parental
actions or decisions seriously conflict with the physical or mental health of the child.” In
re Dependency of M.-A.F.-S., 4 Wn. App. 2d 425, 446, 421 P.3d 482 (2018). For this
reason, “[m]ore careful review of sentencing conditions is required where those
conditions interfere with a fundamental constitutional right.” State v. Warren, 165 Wn.2d
17, 32, 195 P.3d 940 (2008).
The SRA affords judges discretionary authority to order a defendant to “[r]efrain
from direct or indirect contact with the victim of the crime or a specified class of
individuals.” RCW 9.94A.703(3)(b). While a court may impose a community custody
condition that interferes with a defendant’s fundamental right to parent, such conditions
“must be ‘sensitively imposed’ so that they are ‘reasonably necessary to accomplish the
essential needs of the State and public order.’” In re Pers. Restraint of Rainey, 168
Wn.2d 367, 377, 229 P.3d 686 (2010) (quoting Warren, 165 Wn.2d at 32).
Here, the challenged community custody conditions impose the following
restrictions:
10 No. 40351-3-III State v. Hernandez
(13) That you do not have contact with minors without an adult present who has been approved in advance by your CCO[2]; (14) That you do not hold a position of authority or trust over minors without prior approval from your CCO; (15) That you do not stay the night or reside on premises where minors are also staying the night or reside, without prior approval from your CCO;
CP at 110.
The sentencing court imposed these conditions without exception because it was
concerned that Hernandez would victimize his own biological children. Prevention of
harm to children is a compelling state interest. State v. Letourneau, 100 Wn. App. 424,
439, 997 P.2d 436 (2000). Thus, we must decide whether the record is sufficient to show
that the restrictions imposed here are reasonably necessary to prevent Hernandez from
committing similar crimes against his biological children. Id.
“As to the ‘reasonable necessity’ requirement, the interplay of sentencing
conditions and fundamental rights is delicate and fact-specific, not lending itself to broad
statements and bright line rules.” Rainey, 168 Wn.2d at 377. Here, Hernandez relies on
Letourneau to support his argument that the record does not support a restriction on
contact with his own children. We find Letourneau to be factually distinguishable.
In Letourneau, the defendant pleaded guilty to two counts of second degree rape
of a child for instigating a sexual relationship with one of her primary school students.
100 Wn. App. at 428-29. After the defendant’s SSOSA was revoked, the court restricted
2 Community corrections officer. 11 No. 40351-3-III State v. Hernandez
the defendant from unsupervised in-person contact with minors, including her own
children. Id. at 430.
On appeal, the court struck down this restriction, concluding that the record did
not support a finding that such a restriction was reasonably necessary to prevent the
defendant from harming her biological children. Id. at 444. This court pointed out that
the SSOSA evaluators unanimously agreed that the defendant was not a pedophile. Id. at
441. Moreover, the defendant’s children were not the same age or under the same
circumstances as the defendant’s victim. Id. at 441-42. And while one evaluator
expressed general concerns that many people who molest children unrelated to them will
later offend against their own children, the court found this general observation to be
insufficient to allow interference with one’s own children. Id. at 442. Instead, the court
held “[t]here must be an affirmative showing that the offender is a pedophile or that the
offender otherwise poses the danger of sexual molestation of his or her own biological
children to justify such State intervention.” Id.
A more factually analogous case is State v. Berg, 147 Wn. App. 923, 198 P.3d 529
(2008), overruled on other grounds by State v. Mutch, 171 Wn.2d 646, 254 P.3d 803
(2011). In Berg, the defendant was convicted of raping his live-in girlfriend’s 14-year-
old daughter. On appeal, the court upheld a community custody condition that prohibited
the defendant from having unsupervised contact with any minor females, including his
own children. Id. at 941, 943-44. Specifically, the court reasoned:
12 No. 40351-3-III State v. Hernandez
[the victim] lived in the home where Berg was acting as her parent when the abuse occurred. By allowing Berg to be alone with [his own child], who also lived in the home as his child, the court reasonably feared that it would be putting [his own child] in the same situation that [the victim] was in when Berg sexually abused her. Thus, the trial court’s order restricting contact was reasonably necessary to protect [the defendant’s own child].
Id. at 942-43.
Here, the circumstances are even more compelling than in Berg. The record
indicates that Hernandez has a history of victimizing teenage girls, one of whom he
parented in his home. During sentencing, K.G. advised the court that Hernandez left
pornography around the house and played it on the television for all the children to see.
There is also information in the record that Hernandez’s wife was, at one point,
concerned that Hernandez was victimizing his biological daughter.3 Finally, the PSI
characterized Hernandez as manipulative and concluded that “his ongoing predatory
behaviors indicate that he should be considered a high risk to our community.” CP at 73.
Hernandez argues that the court’s findings are insufficient because they focus
primarily on the mother’s inability to protect her children instead of Hernandez’s
penchant to victimize minors. We find this argument unconvincing. The court’s focus
3 Hernandez does not separately challenge the court’s restriction on his ability to have contact with his son. See State v. Corbett, 158 Wn. App. 576, 600, 242 P.3d 52 (2010) (finding that record was sufficient to support no contact with biological sons after defendant was convicted of raping his stepdaughter). 13 No. 40351-3-III State v. Hernandez
on the mother’s apparent failure to protect her children does not detract from the court’s
finding that Hernandez posed a risk to his own children.
The trial court did not abuse its discretion by imposing conditions that limited
Hernandez’s ability to have unsupervised contact with his minor children.
2. GEOGRAPHIC RESTRICTIONS
The court ordered Hernandez to “(8) Remain within geographic boundary, as set
forth in writing by the Community Corrections Officer.” CP 110. Hernandez argues this
condition is unconstitutionally vague, contending that it violates due process because it
does not proscribe the geographic region within which he must remain but rather leaves it
to the unfettered discretion of his CCO.
Under the Fourteenth Amendment to the United States Constitution and article I,
section 3 of the Washington Constitution, due process “requires that citizens have fair
warning of proscribed conduct.” State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678
(2008). As such, a community custody provision that does not provide this warning will
be considered unconstitutionally vague. Id. at 752-53.
“A condition of community custody is unconstitutionally vague if it either fails to
give fair warning of what is forbidden or fails to give ascertainable standards that will
prevent arbitrary enforcement.” State v. Johnson, 197 Wn.2d 740, 747, 487 P.3d 893
(2021). Hernandez argues that delegating geographic restrictions to the CCO, without
providing the CCO with guidance or clarification on how those restrictions are to be set,
14 No. 40351-3-III State v. Hernandez
fails to give ascertainable standards that will prevent arbitrary enforcement. This court
has previously agreed with this statement in at least two unpublished opinions. See In re
Pers. Restraint of Bratcher, No. 39758-1-III, slip op. at *2-3 ( Wn. Ct. App. Apr. 2,
2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/397581_unp.pdf; In re
Pers. Restraint of Alaniz, No. 39631-2-III, slip op. at *6 (Wn. Ct. App. Mar. 21, 2024)
(unpublished), https://www.courts.wa.gov/opinions/pdf/396312_unp.pdf.
Division One of this court recently disagreed with our unpublished decisions in
State v. Lundstrom, __ Wn. App. 2d __, 572 P.3d 1243 (2025). In Lundstrom, the court
held that the same condition imposed on Hernandez was not vague as failing to provide
ascertainable standards. Instead, the court held that the condition was specifically
authorized, citing RCW 9.94A.703(1)(b), (3)(a) and 9.94A.704(3)(b). Under RCW
9.94A.703(3)(a), a sentencing court has discretion to order an offender to “[r]emain
within, or outside of, a specified geographical boundary”. Similarly, when DOC
supervises an offender, “the department shall at a minimum instruct the offender to . . .
Remain within prescribed geographical boundaries.” RCW 9.94A.704(3)(b). We agree
with Lundstrom that these statutes authorize a court and DOC to define geographical
boundaries within which an offender must remain.4
4 We note that while a sentencing court has the authority to order an offender to remain either within or outside of specific geographic boundary, DOC’s authority is limited to requiring that offender remain within a prescribed boundary. The statute does not grant DOC the authority to exclude the offender from a particular area. 15 No. 40351-3-III State v. Hernandez
In rejecting the defendant’s constitutional argument that the same community
custody condition gives CCOs “‘unfettered discretion to arbitrarily’ set geographical
boundaries,” the Lundstrom court noted that a CCO’s authority to impose conditions is
limited and must be “‘reasonably related to . . . [t]he crime of conviction, the offender’s
risk of reoffending, or the safety of the community.’” Lundstrom, 572 P.3d at 1245-46
(alterations in original) (quoting RCW 9.94A.704(7)(b); (2)(a)). . To the extent that an
offender believes a geographic restriction is not related to one of these categories, the
offender has the right to pursue administrative review. Id. at 1246.
We agree with Lundstrom’s analysis. Because the statutes specifically authorize
DOC to set geographic boundaries as a community custody condition, and such
restrictions are limited in application and subject to review, a court’s order that
recognizes DOC’s authority to require a geographic boundary is not vague.
3. CRIME-RELATED COMMUNITY CUSTODY CONDITIONS
Hernandez challenges community custody conditions 11, 16, 17, 18, 19, 21, 22,
23, and 24 arguing that they are not crime-related and therefore the trial court exceeded
its authority. Hernandez did not object to any of these conditions at sentencing. Br. of
Appellant at 16. His challenges to conditions 17, 18, and 19 also raise constitutional
issues. The State argues that all the conditions were within the trial court’s authority but
concedes that 17, 18, and 19 are not crime related. We address each challenged condition
in turn.
16 No. 40351-3-III State v. Hernandez
A. Alcohol and Drug Related Conditions—11, 21, 22, 23, and 24
Hernandez challenges several community custody conditions that pertain to
alcohol and drugs, arguing they are not crime-related:
(11) That you complete a drug/alcohol evaluation and complete all recommendations for further evaluation, treatment, and/or monitoring to include medication management; .... (21) That you must not use, purchase, possess or control any alcohol; (22) That you must stay out of establishments, such as bars, taverns, casinos, and cocktail lounges, where alcohol is the primary beverage served, without prior approval from your CCO; (23) That you must not use, purchase, possess or control any marijuana; (24) That you must not enter any establishments whose primary purpose is the sale of Marijuana/THC, without prior approval from your CCO.
CP at 110-11.
i) Conditions 21 and 23—using, purchasing, possessing, or controlling alcohol or marijuana
Beginning with community custody conditions 21 and 23, both conditions are
statutorily valid and thus not an abuse of discretion. As previously discussed, some
community custody conditions must be crime-related while others do not. In particular,
RCW 9.94A.703(3)(e) is a discretionary condition that authorizes a court to order the
offender to “[r]efrain from possessing or consuming alcohol.” Likewise, RCW
9.94A.703(2)(c) is a waivable condition that states that a court shall order an offender to
“[r]efrain from possessing or consuming controlled substances.”
17 No. 40351-3-III State v. Hernandez
Our Washington Supreme Court has recently clarified this issue and held “it is
undisputed” that “conditions prohibiting alcohol and drug use [are] validly imposed
pursuant to [a] sentencing court’s statutory authority.” State v. Nelson, 4 Wn.3d 482,
503-04, 565 P.3d 906 (2025). As such, the conditions are valid.
ii) Conditions 11, 22, and 24—completing a drug/alcohol evaluation along with recommended treatment and staying out of establishments where alcohol is the primary beverage served or whose primary purpose is the sale of marijuana
We decline to review conditions 11, 22 and 24 because Hernandez did not object
to these conditions and the record is insufficient to provide meaningful review. Although
both conditions relate to drugs and alcohol like conditions 21 and 23, they pertain to more
than just the possession or consumption of drugs and alcohol. For this reason, conditions
22 and 24 would fall under RCW 9.94A.703(3)(f), which allows a court to order an
offender to “[c]omply with any crime-related prohibitions.” Likewise, for condition 11,
RCW 9.94A.703(3)(c) allows a court to order an offender to participate in “crime-related
treatment or counseling services,” but it must be crime-related. A crime-related
prohibition means “an order of a court prohibiting conduct that directly relates to the
circumstances of the crime for which the offender has been convicted” and may include
“affirmative acts necessary to monitor compliance with the order of a court.” RCW
9.94A.030(10).
18 No. 40351-3-III State v. Hernandez
Here, the record provides some information suggesting that alcohol and marijuana
use may have contributed to the offense. Nevertheless, because Hernandez did not object
to the conditions at sentencing, neither the State nor the court were given an opportunity
to develop the record. We therefore decline to review these challenges. See Peters, 10
Wn. App. 2d at 591 (“We are not required to consider an argument that a sentencing
condition is not crime related when the offender had the opportunity to raise the
contention in the trial court, creating a record, and failed to do so.”).
B. Sexual or Sexual Relationship Condition—16
Hernandez next contends community custody condition 16 is not crime-related,
requiring removal or modification. The condition states:
(16) That you do not engage in a dating or sexual relationship without approval from your your [sic] CCO. You must disclose your status as a sex offender and the nature of your offending to include un-adjudicated victims to anyone with whom you intend to begin such a relationship. The disclosure must be verified by your CCO;
A similar argument was raised in State v. Autrey, where the defendant argued that
a prior approval condition as it related to adult sexual contact did not relate to crimes
involving children and the court disagreed. 136 Wn. App. 460, 150 P.3d 580 (2006). In
particular, the court explained that “a court is generally permitted to impose crime-related
prohibitions on a convicted sex offender’s period of community custody to protect the
public and offer the offender an opportunity for self-improvement.” Id. at 468. 19 No. 40351-3-III State v. Hernandez
Importantly, it noted that an offender’s freedom of “choosing even adult sexual partners
is reasonably related to their crimes because potential romantic partners may be
responsible for the safety of live-in or visiting minors.” Id.
The same logic applies here. Hernandez pleaded guilty to second degree rape of a
child committed against his stepdaughter. Although Hernandez is currently in a long-
term relationship, there is still a possibility of dating or sexual relationships with future
partners. And this possibility reasonably relates to his crime of second degree rape of a
child because those partners may be responsible for the safety of minors. As such, the
condition is crime related, and the court did not abuse its discretion by imposing this
condition.
Hernandez acknowledges the legitimate concern that he should not have access to
children through an adult relationship, but he contends that condition 16 can be modified
to require notification of any dating relationship with a person who has a minor child. Br.
of Appellant at 36. However, as an appellate court, our review is limited to whether the
trial court abused its discretion by imposing a condition that either is or is not crime-
related and because this condition is crime-related, we find no abuse of discretion. See
Bahl, 164 Wn.2d at 753 (“[I]mposing conditions of community custody is within the
discretion of the sentencing court and will be reversed if manifestly unreasonable.”).
20 No. 40351-3-III State v. Hernandez
C. Internet Conditions—17, 18, and 19
Hernandez argues that community custody condition 17, 18, and 19 are not
statutorily authorized because they are not crime related. The State concedes that the
conditions are not tied in any way to Hernandez’s crime of conviction. The conditions
state:
(17) That you may not own/use/possess an internet capable device without first completing a safety plan and meeting with your CCO to fully and accurately complete the “Social Media and Electronic Device Monitoring Agreement” DOC Form # 11-080. You must install a monitoring program, at your own expense, and your CCO must be your designated accountability partner;
(18) That you must not use the internet to seek out sexual conversations or sexual partners without prior approval from your CCO;
(19) That you must not access on-line chatrooms, social media, dating websites, and/or apps, without prior approval from your CCO.
CP at 111.
We accept the State’s concession and remand to strike conditions 17, 18, and 19.
As the State notes, although the PSI discusses Hernandez’s alleged use of sexually
explicit materials and the allegation that he exposed K.G. to some of those materials,
there is nothing in the record discussing a factual basis that links Hernandez’s criminal
acts with internet use. As such, the conditions are not crime-related and should be struck.
21 No. 40351-3-III State v. Hernandez
4. STATEMENT OF ADDITIONAL GROUNDS (SAG)
In his SAG, Hernandez contends that none of his biological children were able to
speak on his behalf at sentencing because of a law that was passed the day before
sentencing.
Hernandez does not identify the statute he is discussing, but at sentencing the State
objected to Hernandez calling character witnesses at sentencing citing RCW 9.94A.500.
Relevant to Hernandez’s sentencing, this statute outlines what the court is to consider at
sentencing:
The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed.
RCW 9.94A.500(1).
Despite the State’s objection and reference to this statute at Hernandez’s
sentencing, the court allowed Hernandez’s wife to testify on his behalf. When the court
asked Hernandez’s attorney if he planned to present any other testimony, the attorney
indicated that he did not have any other witnesses.
Because Hernandez does not show error or prejudice, we conclude that Hernandez
does not raise any issues in his SAG that warrant relief.
22 No. 40351-3-III State v. Hernandez
We affirm community custody conditions 8, 11, 13, 14, 15, 16, 21, 22, 23, and 24.
We remand for the limited purpose of striking conditions 17, 18, and 19 for not being
crime related.
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.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Lawrence-Berrey, C.J.
_________________________________ Murphy, J.