FILED JUNE 15, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34176-3-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) RICHARD GARCIA, ) ) Appellant. )
LAWRENCE-BERREY, J. - Richard Garcia appeals his convictions for second
degree assault, felony harassment, and second degree unlawful possession of a firearm.
He argues ( 1) defense counsel rendered ineffective assistance of counsel by failing to
object to a mid-trial recess, (2) the State's information was constitutionally defective
because it failed to allege essential elements of felony harassment and unlawful
possession of a firearm, (3) the trial court erred in imposing several community custody
conditions, (4) the trial court failed to enter written findings of fact and conclusions of
law setting forth its reasons for imposing a sentence above the standard range, and (5) the
judgment and sentence contains a scrivener's error relating to his felony harassment
sentence. No. 34176-3-111 State v. Garcia
We disagree with Mr. Garcia's argument that defense counsel rendered ineffective
assistance, and disagree that the count in the information charging him with unlawful
possession of a firearm was constitutionally deficient. We do agree the count charging
him with harassment was constitutionally deficient and with his remaining contentions.
Accordingly, we affirm Mr. Garcia's convictions for second degree assault and
second degree unlawful possession of a firearm. We reverse his conviction for felony
harassment and dismiss this charge without prejudice to the right of the State to recharge.
We also remand for the trial court to enter written findings and conclusions supporting
the exceptional sentence and to strike some and amend one of the challenged community
custody conditions.
FACTS
Mr. Garcia and his wife, April, 1 lived together in Cle Elum, Washington. They
had three children together, ages seven, six, and two, and April also had three other
children from another marriage. In September 2015, April's mother was visiting the
family from out of town. On the night of September 21, April and her mother were
having dinner at a local restaurant. Mr. Garcia arrived at the restaurant and was upset at
April for having dinner without permission. April's mother asked him to leave so they
could spend time together.
1 We use April Garcia's first name for clarity.
2 No. 34176-3-111 State v. Garcia
The next day, April was home with their children. Mr. Garcia came home from
work and was upset at April for having gone to dinner the night before. He stated April
was an unfit parent and the two began arguing. As they argued, Mr. Garcia led their
children into the children's bedroom. Mr. Garcia and April went to their bedroom.
Mr. Garcia then grabbed a pistol from a red backpack that was on a shelf in their
closet. Mr. Garcia pointed the pistol at April's head.
He shouted that he would "blow [her] brains out," and that she would "never see
[her] kids again." Report of Proceedings (RP) at 365. He also shouted, "'You will die,
bitch.'" RP at 44 7. As this was happening, their seven-year-old daughter came around
the comer and saw Mr. Garcia pointing the gun at April's head. April took their daughter
back to the other room.
April then went into a hall bathroom, turned on the shower so Mr. Garcia could
not hear her, and called her mother. April told her mother about the incident. Her mother
left work and went to a police station. While there, she approached Officer Jennifer
Rogers and told her what happened. The two then drove together to April and Mr.
Garcia's house.
When they arrived, April was visibly shaken up and was crying hysterically. April
told Officer Rogers about the incident. April led Officer Rogers into the bedroom,
pointed to the closet where Mr. Garcia had gotten the pistol, and told Officer Rogers the
3 No. 34176-3-111 State v. Garcia
pistol was in the red backpack. Officer Rogers took the pistol from the red backpack and
unloaded it. She took it with her to the police station, and it was later sent to the
Washington State Patrol Crime Laboratory for deoxyribonucleic acid (DNA) testing. A
forensic scientist determined Mr. Garcia's DNA was on the pistol.
Shortly after the incident, April's mother helped April move to Oregon.
PROCEDURE
On September 25, 2015, the State charged Mr. Garcia with first degree assault,
felony harassment, and first degree unlawful possession of a firearm. The State included
special allegations that Mr. Garcia was armed with a firearm when he committed the
assault and that the assault constituted an aggravated domestic violence offense.
Mr. Garcia was arraigned and appointed counsel. Trial was set for November 17
and then reset for December 1. On November 18, the State filed its amended witness list,
which listed April as a trial witness.
Trial commenced as scheduled December 1. At the beginning of the proceedings,
the prosecutor informed the trial court that April was unavailable as a witness and the
State would not be calling her. The prosecutor stated he had attempted to secure her
presence but had reached a point where further efforts were futile. He informed the trial
court he would not seek a material witness warrant to avoid disrupting April's and the
4 No. 34176-3-III State v. Garcia
children's lives. Instead, he advised the State would prove its case through April's
mother, April's neighbor, Officer Rogers, and two forensic scientists.
The State moved in limine to admit the statements April gave to Officer Rogers
immediately after Officer Rogers arrived at the house. The State argued these statements
were admissible under the excited utterance and state of mind hearsay exceptions. Over
Mr. Garcia's objection, the trial court admitted April's hearsay statements under the
excited utterance exception.
The State then discussed how it would prove that Mr. Garcia had been convicted
of a "serious offense" for purposes of first degree unlawful possession of a firearm. The
State indicated that Mr. Garcia had an Oregon conviction for third degree robbery.
However, the trial court ruled Mr. Garcia's third degree robbery conviction was not
comparable to a "serious offense" in Washington.
The State then indicated it would later amend the information to charge Mr. Garcia
with second degree unlawful possession of a firearm, instead of first degree unlawful
possession. The State further indicated the felony harassment charge would stay the
same, and that it would ultimately seek a lesser included instruction of second degree
assault. The jury was then seated and sworn. This first day of trial ended without any
witnesses being called.
5 No. 34176-3-111 State v. Garcia
At the beginning of the second day of trial, the trial court asked the State to
describe its efforts to secure April as a witness. The prosecutor stated that because April
was currently in an unknown out-of-state location, he had not attempted to subpoena her.
The prosecutor then gave the following account to the trial court, explaining what
had happened: The victim coordinator had contacted April in the days following the
incident, but April then immediately moved out of her home in Cle Elum and went to
Oregon. After that, the State was unable to contact her-her voicemail was either not set
up, full, or she would not return the State's messages. In the weeks leading up to trial,
the prosecutor personally began reaching out to April. He obtained April's e-mail
address, and sent her at least three e-mails asking for her help. April responded to one of
these. April seemed "upbeat" and had a good conversation with the prosecutor. RP at
111. She did not specify where she was, but said she was in Oregon. She seemed
reluctant to appear as a witness and asked if the State could proceed without her, and the
prosecutor explained the ~tate needed her to prove its case. During this conversation, the
prosecutor explained that April would need to come up from Oregon the day before trial
and also explained someone would pick her up and arrange a hotel for her. April did not
indicate she would not appear. This all occurred before the original November 17 trial
date.
6 No. 34176-3-III State v. Garcia
This was the last the prosecutor heard from April. After that, the prosecutor e-
mailed April to inform her the trial had been reset for December 1. April did not return
his e-mails, and her voicemail was either full or not set up. The prosecutor had Officer
Rogers call April as well, but this was also unsuccessful. The prosecutor then arranged
for an Oregon police officer to locate April. This officer was able to find one of April's
sons, but not her. The prosecutor, Officer Rogers, and the victim coordinator all called
April's mother, who lived in Arizona. They determined April would be more likely to
appear if her mother was also a witness. They booked an airplane ticket for April's
mother to fly up from Arizona. The day before trial, April's mother told the prosecutor
that April had not been responding to her phone calls, text messages, or voicemails. At
this point, the prosecutor determined the State would need to proceed without April.
Throughout the course of his attempt to secure April as a witness, the prosecutor stayed
in communication with defense counsel and provided updates as to his progress.
The prosecutor then explained to the trial court why the State had not requested a
material witness warrant. He explained that because April moved to Oregon, the State
would need to request a warrant from a Washington court, have that warrant recognized
by an Oregon court, and then have an Oregon police officer arrest April and bring her to
the border. The prosecutor further explained that he did not want to further traumatize
7 No. 34176-3-III State v. Garcia
April and her children by putting them through this, so he decided to try the case without
their testimony.
The trial court then revisited its prior ruling admitting April's hearsay statements
to Officer Rogers. The trial court found that the emergency was no longer ongoing when
April gave her statements to Officer Rogers at the house, that they therefore were not
excited utterances, and that introducing these statements would violate the confrontation
clause. The trial court then reversed its prior ruling and concluded that April's statements
to Officer Rogers were inadmissible.
The prosecutor acknowledged that without these hearsay statements, the State
would be unable to prove first degree assault and felony harassment. Defense counsel
stated the defense's theory of the case was that April and her mother formulated a plan to
allow April to move to Oregon, and stated that he believed the case was highly
defensible.
The trial court reiterated that April's statements to Officer Rogers were
inadmissible. However, the trial court indicated it would sign material witness warrants
for April and the children. The State indicated it would call the witnesses it had available
and then seek to continue the trial for good cause based on the warrants and its efforts to
obtain April as a witness.
8 No. 34176-3-III State v. Garcia
The State then called Officer Rogers, April's mother, Mr. Garcia's neighbor, and
its two forensic scientists from the Washington State Patrol Crime Laboratory.
Following these testimonies, the State moved the court to issue material witness warrants
for April, her 7-year-old daughter, and her 16-year-old daughter from her prior marriage.
The State then moved for a two week recess in the trial to allow it to secure April and her
daughters.
The trial court asked defense counsel if he had a position on this course of action,
and asked if it would prejudice the defense's case. Defense counsel stated:
[F]rom my perspective I'm-I'm much more comfortable trying this case with her here. It's-that's just the legal position and the triability of-of the case-just makes it more preferable just for-that's just me. I'd agree with the judge's finding that you can't legally find Ms. Garcia unavailable. And I-I don't find any fault with [the prosecutor's] analysis.
RP at 297. The parties agreed to resume trial on December 15, 2015.
The State then indicated it was amending the information. The amended
information added "some additional language" to the first degree assault charge. RP at
299. The State also amended the count charging first degree unlawful possession of a
firearm to charge second degree unlawful possession of a firearm. Mr. Garcia was
arraigned and waived formal reading of the amended information. The amended
information was never filed with the clerk and is, therefore, not part of the record.
9 No. 34176-3-111 State v. Garcia
The trial court then signed the orders directing the clerk to issue material witness
warrants for April, her 7-year-old daughter, and her 16-year-old daughter. Defense
counsel asked the court to allow him to interview April and her daughters sufficiently
before trial resumed, and the State agreed it would make the witnesses available.
The State commenced the process to have the warrants executed in Oregon. April
and her daughters were eventually located in Oregon, and Officer Rogers accompanied
them back to Washington.
Trial recommenced as scheduled on December 15. April testified that Mr. Garcia
held the pistol to her head and threatened to shoot her. The seven-year-old daughter
testified that she saw this occur.
The next morning, the State indicated it needed to file a second amended
information. The prosecutor put a copy on the bench and provided a copy to defense
counsel. The prosecutor stated the changes were "not substantive," but rather "syntax
errors." RP at 537. The first amended information had referenced first degree unlawful
possession in the summary portion, so the prosecutor edited it to reflect that the State was
charging second degree unlawful possession. The prosecutor also inserted the word
"felony" before "harassment," to distinguish it from misdemeanor harassment. RP at
537-38. The prosecutor also deleted the reference to "Kittitas County" as the venue. RP
at 538. The defense agreed these were the only changes. Mr. Garcia was arraigned and
10 No. 34176-3-111 State v. Garcia
waived formal reading of the second amended information. The second amended
information was never filed with the clerk and is not part of the record.
The jury was unable to reach a verdict on first degree assault, but found Mr.
Garcia guilty of second degree assault. The jury also found Mr. Garcia guilty of felony
harassment and second degree unlawful possession of a firearm. The jury also returned
the special verdicts finding that Mr. Garcia was armed with a firearm when he committed
the assault and that the assault constituted an aggravated domestic violence offense.
A community corrections officer completed a risk assessment report prior to
sentencing. The report documented Mr. Garcia's history with methamphetamine. It
stated Mr. Garcia had used methamphetamine twice a month between 2005 and 2012,
and then became sober. It stated Mr. Garcia began using again in 2015 three weekends
per month, but stopped one month prior to his arrest. The report also stated Mr. Garcia
abused alcohol as a teenager, but successfully completed treatment in 1999. Based on
this information, the community corrections officer recommended that Mr. Garcia
undergo a substance abuse evaluation.
The trial court imposed 14 months' confinement for second degree assault. The
court also imposed 36 months' confinement on the firearm enhancement, and an
additional 10 months' confinement based on the jury's finding that the assault constituted
11 No. 34176-3-III State v. Garcia
an aggravated domestic violence offense. The court did not enter written findings of fact
and conclusions of law supporting the exceptional sentence.
The court also imposed 12 months' confinement for both felony harassment and
second degree unlawful possession of a firearm. However, the judgment and sentence
indicated Mr. Garcia's sentence for the felony harassment conviction was 12 days.
The court also imposed 18 months' community custody to follow Mr. Garcia's
term of confinement. The court imposed a number of community custody conditions,
including conditions requiring Mr. Garcia to undergo a substance abuse evaluation and
comply with treatment, prohibiting him from entering establishments that primarily sell
alcohol, and prohibiting him from going to areas where "dangerous drugs," narcotics, or
controlled substances are sold, possessed, or consumed. Clerk's Papers (CP) at 27.
Mr. Garcia appeals.
ANALYSIS
A. ALLEGED INEFFECTIVE ASSISTANCE FOR FAILURE TO OBJECT TO CONTINUANCE
Mr. Garcia argues he received ineffective assistance because defense counsel
failed to object to the State's request for the two week recess. He argues this recess
allowed the State to secure April and her daughters as witnesses, without whom the State
could have never proved the assault or harassment charges. He argues that if counsel had
12 No. 34176-3-111 State v. Garcia
objected, the trial would have continued without them and thus resulted in a dismissal of
these two counts.
The Sixth Amendment to the United States Constitution guarantees criminal
defendants the right to effective assistance of counsel. Strickla11:d v. Washington, 466
U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant receives
ineffective assistance if the attorney's conduct (1) falls below a minimum objective
standard of reasonable attorney conduct, and (2) prejudices the defendant, i.e., there is a
reasonable probability the attorney's conduct affected the case's outcome. State v. Benn,
120 Wn.2d 631,663, 845 P.2d 289 (1993). Because ineffective assistance of counsel is
an issue of constitutional magnitude, it may be considered for the first time on appeal.
State v. Ky/lo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
There is a strong presumption that counsel rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment. Benn, 120
Wn.2d at 665. Counsel also does not perform deficiently when he or she declines to raise
a nonmeritorious argument at trial, given the argument's likelihood of failure. See State
v. Williams, 152 Wn. App. 937, 944-45, 219 P.3d 978 (2009), rev'd on other grounds,
171 Wn.2d 474,251 P.3d 877 (2011). This court reviews ineffective assistance claims de
novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
13 No. 34176-3-111 State v. Garcia
A trial court has discretion in determining whether to grant a recess to allow a
party to secure or consult with additional witnesses. See State v. Edwards, 68 Wn.2d
246,255,412 P.2d 747 (1966); State v. Delarosa-Flores, 59 Wn. App. 514,516, 799
P .2d 736 ( 1990). "Good faith is, of course, an essential ingredient to any application for
a recess, postponement or continuance, and for the issuance of process." Edwards, 68
Wn.2d at 258. Factors to consider are whether the recess is designed to delay, harry, or
obstruct the orderly process of the trial, or to take the opposing party by surprise. Id. In
Edwards, our Supreme Court held the trial court abused its discretion by denying the
defendant's good faith request for a recess to enable him to compel witnesses he had
properly subpoenaed. Id.
In light of the applicable law governing requests for trial recesses, Mr. Garcia
cannot establish defense counsel performed deficiently. As discussed in detail above, the
State made a good faith, diligent, and honest effort to secure April and her daughter as
witnesses in the weeks leading up to trial. The prosecutor communicated with defense
counsel and updated him regarding the State's progress. There is no evidence the
prosecutor attempted to delay, harry, obstruct the orderly process of the trial, or take Mr.
Garcia by surprise. Based on the applicable law governing recesses, defense counsel
likely knew that even if he had objected, the trial court would have granted the State's
request over his objection.
14 No. 34176-3-III State v. Garcia
Nevertheless, Mr. Garcia argues defense counsel should have objected to the
recess because the State's request was based on the unavailability of witnesses it never
subpoenaed. In the speedy trial context, Washington courts have consistently held that
the failure to properly subpoena a witness constitutes a lack of due diligence. See State v.
Adamski, 111 Wn.2d 574, 578-79, 761 P .2d 621 (1988); City of Kirkland v. Ellis, 82 Wn.
App. 819, 830, 920 P.2d 206 (1996).
Mr. Garcia argues the same due diligence analysis should apply here. But his
argument ignores the critical distinction between a pretrial continuance that results in a
trial starting after the CrR 3 .3 speedy trial deadline and a recess after trial has already
commenced. Where CrR 3.3 is violated, a defendant is not required to show prejudice to
obtain a dismissal. E.g., State v. Teems, 89 Wn. App. 385, 388, 948 P.2d 1336 (1997).
Conversely, a trial court's discretionary decision to grant a recess during a trial, which
does not implicate the rule, will be disturbed only on a showing of prejudice. See
Edwards, 68 Wn.2d at 257. Mr. Garcia cites no Washington authority for the proposition
that a CrR 3 .3 analysis should apply to a recess requested during trial.
Mr. Garcia argues he was prejudiced by the recess because without it, the State
would never have been able to prove its assault or harassment charges and the trial court
would have been required to dismiss them. This argument misconstrues the meaning of
"prejudice." Prejudice, in this context, does not mean contributing to a conviction. If it
15 No. 34176-3-III State v. Garcia
did, then every continuance or recess that helps the State would be prohibited. Prejudice
means unfairly or unjustly contributing to a conviction. State v. Day, 51 Wn. App. 544,
549-50, 754 P.2d 1021 (1988). The two week continuance was neither unfair nor unjust.
For instance, the recess did not cause Mr. Garcia's evidence to spoil, cause his witnesses
to become unavailable, or cause his constitutional rights (such as his right to a speedy
trial) or any other right to be violated. Mr. Garcia contends he was prejudiced because he
did not receive a windfall from April's reluctance to testify, but this is not the kind of
prejudice that deprives a trial court of discretion to grant a recess.
Applying the strong presumption that counsel has rendered adequate assistance,
together with the fact that controlling authority supports the trial court's decision to grant
the recess, we conclude that Mr. Garcia has failed to demonstrate that defense counsel
performed deficiently by not objecting to the recess. Accordingly, we conclude Mr.
Garcia did not receive ineffective assistance of counsel.
B. CONSTITUTIONAL SUFFICIENCY OF THE INFORMATION
Mr. Garcia argues the information was constitutionally defective because it failed
to allege all the essential elements of felony harassment and unlawful possession of a
firearm.
16 No. 34176-3-111 State v. Garcia
1. Missing amended information and second amended information
The central issue with respect to Mr. Garcia's challenge to the charging document
is the question of whether this court should evaluate the sufficiency of the original
information, given that there is no written record of the amended information or the
second amended information.
The State concedes that neither the amended information nor the second amended
information are in the trial court file. However, the State argues that Mr. Garcia was tried
on the second amended information-not the original information. Thus, it argues, he
had the burden of designating this document for this court's review and, because he did
not do so, the record is insufficient for this court to review his challenge to the
constitutional sufficiency of that document.
The State's argument is unpersuasive. The State moved to amend the information
and, thus, it had the burden to ensure its own pleading was properly filed. See CrR 2.1.
On this record, there is no evidence the amended information or second amended
information were ever actually filed.
Moreover, the parties indicated on the record the exact nature of the amendments
to each information. The changes involved minor corrections such as changing syntax,
removing Kittitas County as a venue, and correcting the summary portion of the
information. The parties made a detailed record of the amendments to the information,
17 No. 34176-3-III State v. Garcia
and the record does not reflect that the State ever amended the language to correct any
missing elements. We, therefore, will review the original information and presume that
the elements stated therein were stated in the same manner in the second amended
information.
2. Merits of Mr. Garcia's challenge to the constitutional sufficiency of the information
Criminal defendants have the constitutional right to know "the nature and cause of
the accusation" against them. U.S. CONST. amend. VI; WASH. CONST. art. I,§ 22. To be
constitutionally sufficient, a charging document must include all essential elements of a
crime, statutory and nonstatutory, so as to inform a criminal defendant of the charges and
to allow the defendant to prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 102, 812
P.2d 86 (1991). A charging document that omits an essential element of the charged
crime is constitutionally defective and must be dismissed without prejudice. State v.
Johnson, 180 Wn.2d 295, 300-01, 325 P.3d 135 (2014). "An 'essential element is one
whose specification is necessary to establish the very illegality of the behavior' charged."
State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal quotation marks
omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). This court
reviews the constitutional adequacy of a charging document de novo. State v. Goss, 186
Wn.2d 372, 376, 378 P.3d 154 (2016).
18 No. 34176-3-111 State v. Garcia
When the defendant challenges a charging document for the first time on appeal,
the appellate court will liberally construe it in favor of validity. Kjorsvik, 117 Wn.2d at
102. Under the liberal standard, this court has "considerable leeway .to imply the
necessary allegations from the language of the charging document." Id. at 104.
The liberal review standard employs the two-prong Kjorsvik test: ( 1) do the
necessary elements appear in any form, or by fair construction can they be found, in the
information, and if so (2) can the defendant nevertheless show he or she was actually
prejudiced by the unartful language. Id. at 105-06; see also State v. Zillyette, 173 Wn.2d
784, 786, 270 P.3d 589 (2012). If the necessary elements are not found or fairly implied
on the face of the information, this court must presume prejudice and is required to
reverse without reaching the question of prejudice. Zillyette, 173 Wn.2d at 786. If a
court does find all essential elements, the defendant is still entitled to reversal if he or she
can show actual prejudice. State v. Campbell, 125 Wn.2d 797, 802, 888 P.2d 1185
(1995).
Under the first Kjorsvik prong, this court looks solely to the face of the charging
document. Kjorsvik, 117 Wn.2d at 106. "Words in a charging document are read as a
whole, construed according to common sense, and include facts which are necessarily
implied." Id. at 109. A charging document satisfies the first prong if it includes the
essential elements of the offense even if it does not contain the exact statutory language.
19 No. 34176-3-III State v. Garcia
State v. Hopper, 118 Wn.2d 151,156,822 P.2d 775 (1992). "Even missing elements
may be implied if the language supports such a result." Id. However, "[i]f the document
cannot be construed to give notice of or to contain in some manner the essential elements
of a crime, the most liberal reading cannot cure it." Campbell, 125 Wn.2d at 802.
1. Unlawful possession of a firearm
For unlawful possession of a firearm, Mr. Garcia argues the State did not allege
the nonstatutory element that he knowingly possessed a firearm.
A person is guilty of unlawful possession of a firearm-either first or second
degree-when "the person owns, has in his or her possession, or has in his or her control
any firearm" and is subject to an enumerated disqualifying condition. RCW
9.41.040(1)(a), (2)(a).
Although RCW 9.41.040(1)(a) does not expressly include "knowledge" as an
element of unlawful firearm possession, our Supreme Court has held that "knowledge" is
an additional nonstatutory element that the State must prove beyond a reasonable doubt.
State v. Anderson, 141 Wn.2d 357, 359, 5 P.3d 1247 (2000). Thus, although the statute
does not require the defendant to have known that possessing a firearm was unlawful, it
does require the defendant to have known that he or she actually possessed the firearm.
State v. Marcum, 116 Wn. App. 526, 535, 66 P.3d 690 (2003). Accordingly, when the
State charges a person with unlawful possession of a firearm, the knowledge element
20 No. 34176-3-III State v. Garcia
must either appear in the body of the information, or the information must include
language from which the knowledge element can be inferred. Id. "Simply to state that
the offense charged is unlawful possession is not enough." Id.
Here, the original information alleged:
That on or about September 22, 2015 in Kittitas County, Washington, the defendant, Richard Garcia, owned, had in his possession, or had in his control any firearm after having previously been convicted in this state or elsewhere of any serious offense, as defined in this chapter, thereby committing the felony crime of UNLAWFUL POSSESSION OF A FIREARM IN THE FIRST DEGREE, in violation of RCW 9.41.040(1 )(a).
CP at 2.
In Marcum, this court held that a substantively identical charging document was
constitutionally insufficient, even under a liberal construction, because it omitted the
essential element ofknowledge. 2 See Marcum, 116 Wn. App. at 533, 535-36. The
Marcum court acknowledged the language alleged the defendant "did own or have in
his/her possession or control a firearm," but found this could not conceivably be
2 There, the information alleged: JARED MARCUM of the crime(s) of: COUNT I: UNLAWFUL POSSESSION OF A FIREARM IN THE FIRST DEGREE, RCW 9.41.040(l)(a); ... committed as follows, to-wit: That [he] ... did own or have in his/her possession or control a firearm, to wit: [described] after having been convicted [of a serious offense] .... Marcum, 116 Wn. App. at 533 (alterations in original).
21 No. 34176-3-III State v. Garcia
construed as charging knowledge. Id. at 535; accord State v. 0 'Neal, 126 Wn. App. 395,
415, 109 P.3d 429 (2005) (information alleging defendant had firearm "under his control"
did not substitute for the "knowingly" element), ajf'd, 159 Wn.2d 500, 150 P.3d 1121
(2007). Therefore, because the count charging Mr. Garcia with unlawful possession of a
firearm was nearly identical to the one at issue in Marcum, it failed to allege the essential
element of knowledge.
The State argues the "knowledge" element is present under the liberal standard
because the information also charged Mr. Garcia with assault based on pointing a firearm
at April, which would necessarily have required Mr. Garcia to know he possessed the
firearm. The State's argument has merit.
When evaluating the sufficiency of the information under the liberal standard, this
court may look at the other counts in the information to determine if the challenged count
is constitutionally sufficient. State v. Nonog, 169 Wn.2d 220,227, 237 P.3d 250 (2010).
Here, count one of the information charged Mr. Garcia with first degree assault. It
alleged that Mr. Garcia "pointed a firearm at April Garcia, thereby committing" first
degree assault. CP at 1. Given these allegations, and construing the information liberally
and according to common sense, the missing element that Mr. Garcia knew he possessed
the gun can be fairly inferred here. The charging document, taken as a whole, adequately
informed Mr. Garcia that he knowingly possessed the firearm.
22 No. 34176-3-III State v. Garcia
Although the charging document alleged all of the essential elements, Mr. Garcia
is still entitled to reversal if he can show he was actually prejudiced by the unartful
language in the information. Campbell, 125 Wn.2d at 802. Here, Mr. Garcia makes no
attempt to demonstrate he was prejudiced. See Br. of Appellant at 29. Nor could he.
During pretrial motions, the State expressly discussed its burden to prove knowledge:
"[O]ne of the essential elements is the knowledge element. He has to know. Knowingly
possess the firearm." RP at 62. Accordingly, because the State's charging document
informed Mr. Garcia of all the elements of unlawful possession of a firearm, we affirm
this conviction.
11. Felony harassment
For felony harassment, Mr. Garcia argues the State did not allege the essential
element requiring April to have reasonably feared he would carry out his threat to kill.
The State charged Mr. Garcia with felony harassment under RCW 9A.46.020.
That statute provides, in relevant part:
( 1) A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person [and]
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. ...
23 No. 34176-3-III State v. Garcia
[(2)](b) A person who harasses another ... is guilty of a class C felony if ... (ii) the person harasses another person under subsection (l)(a)(i) of this section by threatening to kill the person threatened ....
RCW 9A.46.020.
Here, the information alleged:
That on or about September 22, 2015, in Kittitas County, WA, the defendant, Richard Garcia, without lawful authority, knowingly threatened to cause bodily injury immediately or in the future to the person threatened, to wit: threatened to kill April Garcia, thereby committing the felony crime of HARASSMENT, in violation ofRCW 9A.46.020(l)(a) and (2)(b)(ii).
CP at 2. The essential element requiring the threatened person to have reasonably feared
the defendant would carry out the threat to kill is completely absent.
Like before, the State argues the "reasonable fear" element is present under
the liberal standard because the information charged Mr. Garcia with assault based
on pointing a firearm at April, which would logically have placed her in
reasonable fear that his threat would be carried out.
However, for this particular charge, this argument stretches the inference too far.
Unlike with the knowledge element for possession of a firearm, it is too great of a factual
leap to conclude April was in reasonable fear of harm. This is because the question of
reasonable fear of harm depends on all the facts and circumstances of the threat. State v.
C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003). This question also often depends on
prior incidents between the defendant and the listener, such as whether the defendant has
24 No. 34176-3-III State v. Garcia
made prior threats or acts of violence. See State v. Ragin, 94 Wn. App. 407, 411-12, 972
P.2d 519 (1999). In light of this authority, the allegation that Mr. Garcia pointed the
firearm at April, even construed according to common sense, did not fairly inform him of
the essential element that April was in reasonable fear that he would act on his threats.
Thus, even "the most liberal reading cannot cure it." Campbell, 125 Wn.2d at 802.
Because this element was missing entirely, Mr. Garcia need not show prejudice.
Zillyette, 173 Wn.2d at 786.
We conclude the information was constitutionally sufficient as to the unlawful
possession of a firearm charge, but defective as to the felony harassment charge. We,
therefore, reverse Mr. Garcia's conviction for felony harassment and dismiss the charge
without prejudice to the right of the State to recharge and retry either the same offense or
any lesser included offense. See State v. Vangerpen, 125 Wn.2d 782, 791-95, 888 P.2d
1177 (1995).
C. COMMUNITY CUSTODY CONDITIONS
Mr. Garcia challenges several of his community custody conditions. He argues
conditions 5 and 10 are not crime related. He argues condition 8 is unconstitutionally
vague. Defendants may challenge community custody conditions for the first time on
appeal. State v. Cordero, 170 Wn. App. 351,373,284 P.3d 773 (2012).
25 No. 34176-3-111 State v. Garcia
This court reviews community custody conditions for an abuse of discretion. State
v. Irwin, 191 Wn. App. 644,652,364 P.3d 830 (2015). The abuse of discretion standard
applies whether this court is reviewing a crime-related community custody condition or
reviewing a community custody condition for vagueness. See id. at 652, 656; State v.
Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010) (vagueness); Cordero,
170 Wn. App. at 3 7-3 (crime related). Imposing an unconstitutional condition is always
an abuse of discretion. Irwin, 191 Wn. App. at 652.
1. Condition number 5: Substance abuse evaluation and treatment
Mr. Garcia challenges community custody condition 5, which requires him to
obtain a substance abuse evaluation and comply with treatment. He argues, and the State
concedes, that neither the evidence nor the trial court's findings established that
substance abuse was related to his crimes.
A trial court lacks authority to impose a community custody condition unless
authorized by the legislature. State v. Warnock, 174 Wn. App. 608, 611, 299 P.3d 1173
(2013 ). As part of any term of community custody, the court may impose and enforce
crime-related prohibitions. RCW 9.94A.505(9); RCW 9.94A.703(3)(f). A crime-related
condition prohibits conduct that "directly relates to the circumstances of the crime for
which the offender has been convicted." RCW 9.94A.030(10). The court may also
require a defendant to participate in crime-related treatment, counseling services,
26 No. 34176-3-III State v. Garcia
rehabilitative programs, or other "affirmative conduct reasonably related to the
circumstances of the offense, the offender's risk of reoffending, or the safety of the
community." RCW 9.94A.703(3)(c)-(d).
The Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, authorizes the court
to order a defendant to obtain a chemical dependency evaluation and to comply with
recommended treatment only if it finds that the offender has a chemical dependency that
contributed to his or her offense:
Where the court finds that the offender has any chemical dependency that has contributed to his or her offense, the court may, as a condition of the sentence and subject to available resources, order the offender to participate in rehabilitative programs or otherwise to perform affirmative conduct reasonably related to the circumstances of the crime for which the offender has been convicted and reasonably necessary or beneficial to the offender and the community in rehabilitating the offender.
RCW 9.94A.607(1); see Warnock, 174 Wn. App. at 609 (trial court may only impose
chemical dependency evaluation and treatment if it finds chemical dependency
contributed to offense). "If the court fails to make the required finding, it lacks statutory
authority to impose the condition." Warnock, 174 Wn. App. at 612.
Here, the trial court ordered Mr. Garcia to undergo substance abuse evaluation and
to comply with treatment as condition 5 of his community custody. The judgment and
sentence contained a provision for the court to find, under RCW 9.94A.607, that "[t]he
27 No. 34176-3-III State v. Garcia
defendant has a chemical dependency that has contributed to the offense(s)." CP at 17.
The trial court did not make this finding.
Condition 5 was also not authorized by RCW 9.94A.703(3)(c)-(d), which allows
courts to impose crime-related treatment, counseling, rehabilitative programs, and other
affirmative conduct. There was no evidence at trial or at sentencing that substance abuse
or chemical dependency played a role in Mr. Garcia's offenses. April testified that Mr.
Garcia did not, to her knowledge, have any problems with drug abuse. And although the
risk assessment submitted for sentencing indicated Mr. Garcia used methamphetamine
intermittently between 2005 and 2015, it also indicated he stopped one month before the
crimes. The risk assessment did not relate Mr. Garcia's prior methamphetamine use to
his crimes.
In the absence of evidence or a finding that substance abuse was directly related to
the circumstances of Mr. Garcia's crimes, the trial court lacked authority to require
substance abuse treatment as a community custody condition. See Warnock, 174 Wn.
App. at 612. Accordingly, we accept the State's concession and remand for the trial court
to strike condition 5.
28 No. 34176-3-111 State v. Garcia
2. Condition number 10: Prohibition on going to establishments where alcohol is the main revenue source
Mr. Garcia challenges community custody condition 10, which prohibits him from
entering establishments where alcohol is the main revenue source. He argues this
condition is not crime related.
A trial court may prohibit any defendant from "possessing or consuming alcohol"
as a condition of community custody, regardless of whether alcohol was crime related.
RCW 9.94A.703(3)(e); see State v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258
(2003 ). Although a trial court may always prohibit the possession and consumption of
alcohol, the trial court here went a step further and prohibited Mr. Garcia from entering
establishments where alcohol is the main revenue source.
The only evidence in the record relating to alcohol is that Mr. Garcia abused
alcohol as a teenager, but successfully completed alcohol treatment in 1999. No evidence
suggests alcohol was directly related to the circumstances of Mr. Garcia's crimes.
Therefore, the condition prohibiting Mr. Garcia from entering establishments where
alcohol is the main revenue source is not crime related. See RCW 9.94A.030(10),
.703(3)(t); Jones, 118 Wn. App. at 207-08. Accordingly, the trial court lacked authority
to impose condition 10 and we remand for the trial court to strike it.
29 No. 34176-3-III State v. Garcia
3. Condition number 8: Prohibition on entering or remaining in areas where controlled substances are sold, possessed, or consumed
Mr. Garcia argues, and the State concedes, that condition 8 is unconstitutionally
vague. Condition 8 states that Mr. Garcia "shall not enter into or remain in areas where
dangerous drugs, narcotics, or controlled substances are being sold/purchased, possessed,
and/or consumed." CP at 27.
Due process requires that laws not be vague. Irwin, 191 Wn. App. at 652. A
community custody condition is not vague as long as it ( 1) provides ordinary people with
fair warning of the proscribed conduct, and (2) has standards that are definite enough to
"' protect against arbitrary enforcement.'" Id. at 652-53 ( quoting State v. Bahl, 164
Wn.2d 739, 752-53, 193 P.3d 678 (2008)).
Importantly, in deciding whether a community custody condition is impermissibly
vague, this court does not consider the terms in a vacuum. Bahl, 164 Wn.2d at 754.
Rather, this court considers them in the context in which they are used. Id. If a person of
ordinary intelligence can understand what conduct the condition prohibits,
notwithstanding some possible areas of disagreement, the condition is not
unconstitutionally vague. Id.
Mr. Garcia argues condition 8 could conceivably prohibit him from going to a
hospital to visit a sick friend, going to a pharmacy to buy cough suppressant, or going to
30 No. 34176-3-III State v. Garcia
a grocery store. While this argument has some merit, the problem is that it focuses on
condition 8 in isolation. Condition 6 allows Mr. Garcia to purchase, possess, and
consume dangerous drugs, narcotics, and controlled substances with a "valid prescription
from a licensed physician." CP at 27. Condition 8 must be read as part of this broader
condition. When the challenged language is read in context, ordinary people can
understand what is prohibited.
However, we agree that, as worded, condition 8 is unclear. There is no precise
distinction between "dangerous drugs," "narcotics," and "controlled substances." CP at
27. Moreover, Mr. Garcia could still conceivably violate condition 8 by entering a
hospital, pharmacy, or grocery store without a valid prescription. Therefore, on remand,
we instruct the trial court to amend condition 8 to read:
(8) Defendant shall not enter into or remain in areas where controlled substances are being unlawfully sold/purchased, possessed, and/or consumed.
D. LACK OF FINDINGS AND CONCLUSIONS FOR EXCEPTIONAL SENTENCE
Mr. Garcia argues, and the State concedes, that the trial court failed to enter
written findings of fact and conclusions of law setting forth its reasons for imposing a
sentence above the standard range.
RCW 9.94A.535 governs exceptional sentences. It provides that "[w]henever a
sentence outside the standard sentence range is imposed, the court shall set forth the
31 No. 34176-3-III State v. Garcia
reasons for its decision in written findings of fact and conclusions of law." RCW
9.94A.535. This requirement is essential whenever a court imposes an exceptional
sentence. State v. Friedlund, 182 Wn.2d 388, 393, 341 P.3d 280 (2015). An oral
colloquy on the record does not satisfy this requirement. Id.
Here, the record does not contain findings and conclusions setting forth the trial
court's reasons for imposing a sentence above the standard range. We remand the case
for entry of those findings and conclusions. Id. at 395.
E. APPELLATE COSTS
Mr. Garcia asks this court to waive appellate costs in the event the State prevails
on appeal. He timely filed a report as to continued indigency in support of his request.
Generally, "the party that substantially prevails on review" will be awarded
appellate costs, unless the court directs otherwise in its decision terminating review.
RAP 14.2. "A 'prevailing party' is any party that receives some judgment in its favor."
Guillen v. Contreras, 169 Wn.2d 769,775,238 P.3d 1168 (2010). "If neither party
completely prevails, the court must decide which, if either, substantially prevailed." Id.
Here, the State prevailed on the first issue. Mr. Garcia partially prevailed on the
second issue, and entirely prevailed on the third and fourth issues. Under such
circumstances, we do not deem the State the substantially prevailing party and deny it an
award of costs on appeal.
32 No. 34176-3-III State v. Garcia
Affirmed in part, reversed in part, and remanded for entry of findings and
conclusions relating to the exceptional sentence, and for striking and amending the
community custody conditions.
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-Berrey, J.
WE CONCUR:
Fearing,