State Of Washington, V. Sergio Hernandez

• Court: Court of Appeals of Washington
• Decided: June 11, 2024
• Docket: 57657-1
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

June 11, 2024 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 57657-1-II

Respondent,

v.

SERGIO HERNANDEZ, UNPUBLISHED OPINION

Appellant.

GLASGOW, J.—Sergio Hernandez was subject to a domestic violence no-contact order in

which he was restrained from having contact with Jessica Crawford, except under very limited

circumstances. With the no-contact order in place, Hernandez made 10 phone calls to Crawford

from a phone number marked “private.” On one occasion, Crawford answered a call, recognized

Hernandez’s voice, and heard Hernandez threaten to kill her. Crawford did not answer the other 9

calls. A phone application on Crawford’s phone and call logs from Crawford’s phone company

showed that the private calls originated from Hernandez’s cell phone number. Crawford reported

the calls to law enforcement.

A Cowlitz County Sherriff’s Deputy met with Hernandez at Hernandez’s brother’s home

and did not give Hernandez Miranda1 warnings. At the end of that meeting, Hernandez admitted

to having made the calls to Crawford.

The State charged Hernandez with 10 counts of violating of a domestic violence no-contact

order. A jury found him guilty on all counts. The court found Hernandez to be indigent. The court

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). No. 57657-1-II

imposed a $500 crime victim penalty assessment and a $100 domestic violence assessment. The

State has since agreed to strike the crime victim penalty assessment but not the domestic violence

assessment.

Hernandez appeals, arguing that his confession was obtained while he was in custody but

without Miranda warnings, that there was insufficient evidence to sustain his convictions on 9 of

the 10 counts, and that the trial court erred by imposing the crime victim penalty assessment and

the domestic violence assessment.

We accept the State’s concession and remand for the trial court to strike the crime victim

penalty assessment. On remand, the trial court may revisit the domestic violence assessment in

light of Hernandez’s indigence. We otherwise affirm.

FACTS

A. Background

1. November 2021 phone calls

In April 2021, the Clark County Superior Court entered a domestic violence no-contact

order against Hernandez preventing him from contacting Crawford. Specifically, the order

provided that Hernandez was restrained from “[c]oming near and from having any contact

whatsoever in person or . . . by phone, mail, or any means, directly or indirectly,” with Crawford,

with exceptions for effectuating service of process through a third party or mail, and for making

written contact through text or email for the sole purpose of raising the child Hernandez and

Crawford have in common. 1 Verbatim Rep. of Proc. (VRP) at 111 (emphasis added). The order

was set to expire April 2026.

In November 2021, Crawford received and answered a phone call from a phone number

marked “private.” The caller, who she recognized as Hernandez, said, “I will kill you.” 1 VRP at

2 No. 57657-1-II

114. Throughout that month, Crawford received nine more calls from a number marked “private.”

Crawford did not answer those nine calls.

To identify the private caller, Crawford installed an application on her phone that revealed

phone numbers linked to private calls. The application showed that the calls to Crawford were

coming from the same phone number which Crawford recognized as Hernandez’s cell phone

number. Crawford then contacted law enforcement and reported the calls from Hernandez. Law

enforcement obtained call logs from Crawford’s cell phone provider. The call records showed that

Crawford indeed received nine calls in November 2021, all from the same phone number.

2. Hernandez’s meeting with law enforcement

After receiving reports from Crawford about the calls, Cowlitz County Sheriff’s Deputy

Gary Enbody called Hernandez at the number Crawford gave him. During that phone call,

Hernandez agreed to speak with Enbody in person. The two arranged to meet at Hernandez’s

brother’s house.

Enbody arrived in uniform, alone, at Hernandez’s brother’s house, where Hernandez was

present, along with two of his family members. There, Enbody asked Hernandez if he had called

Crawford, as shown in the call logs that Crawford’s phone company provided. Hernandez denied

having made the calls to Crawford. Enbody then told Hernandez the easiest way to determine if

the calls came from Hernandez’s phone “would be for [Hernandez] to consent to have our detective

search his phone.” 1 VRP at 96.

Hernandez said he would need to talk to his attorney about the search, but not in regards to

speaking further with the Enbody. Deputy Enbody testified in the CrR 3.5 hearing that at that point,

he told Hernandez “if you had a lawyer already in mind, I’d certainly let you call and talk to him

if that’s what you wanted to do.” Id. at 99.

3 No. 57657-1-II

Enbody then ceased questioning and told Hernandez that he was going to seek a search

warrant. Hernandez then asked Enbody if the two could speak outside the home, away from

Hernandez’s family members. Once they were outside, Hernandez admitted to Enbody that he had

placed the calls to Crawford. Enbody did not recite a Miranda warning to Hernandez at any point

during their interaction.

B. Trial

At trial, the jury heard testimony from Crawford about the 10 calls she received in

November 2021. The jury also saw the domestic violence no-contact order and the call logs

provided by Crawford’s cell phone provider. Finally, Enbody testified about the interaction he had

with Hernandez at Hernandez’s brother’s home consistent with the facts described above.

The jury found Hernandez guilty of all 10 counts of violating a domestic violence no-

contact order. The court found Hernandez indigent. At sentencing, the court imposed a $500 crime

victim penalty assessment and a $100 domestic violence assessment.

ANALYSIS

I. HERNANDEZ’S STATEMENTS TO ENBODY

Hernandez argues that the trial court erred in concluding that he was not in custody for

purposes of Miranda when he spoke to Enbody, thus rendering his confession inadmissible. We

conclude that it is immaterial whether Hernandez was in custody when he admitted to law

enforcement that he called Crawford in violation of a domestic violence no-contact order because

his conviction is otherwise supported by overwhelming untainted evidence.

The admission of a confession obtained in violation of Miranda is subject to harmless error

analysis. State v. Mayer, 184 Wn.2d 548, 550, 362 P.3d 745 (2015) (holding a sheriff’s Miranda

advisement to defendant was contradictory and confusing and thus rendered his confession not

4 No. 57657-1-II

knowing and intelligent; but admission of defendant’s improperly admitted confession was

harmless error in light of overwhelming untainted evidence of defendant’s guilt). A constitutional

error is harmless if we find that the jury verdict is unattributable to the error beyond a reasonable

doubt. State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007). The Washington Supreme Court

has adopted the “‘overwhelming untainted evidence’” standard for this purpose. State v. Anderson,

171 Wn.2d 764, 770, 254 P.3d 815 (2011) (quoting State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d

1182 (1985)). Assuming without deciding that Hernandez’s confession was admitted in error, we

review the record on appeal, looking only to the “untainted evidence,” to determine whether it is

so overwhelming that it necessarily leads to a finding of guilt. Id.

Here, the remaining untainted evidence of guilt is overwhelming. Crawford testified that

she received calls linked to Hernandez’s cell phone number, and exhibits admitted into evidence

at trial included call records establishing that the “private” calls to Crawford originated from

Hernandez’s cell phone number. Moreover, there was never any assertion that someone else had

control of Hernandez’s cell phone, and Hernandez never contended that someone else made calls

from his phone. In fact, Hernandez’s arguments to this court are predicated on the assertion that

he indeed called Crawford’s phone, but that Crawford did not answer all of his calls. Not once did

Hernandez argue that he did not call Crawford himself, nor was there any evidence in the record

to suggest the contrary.

Taken together, the evidence showed that Hernandez was the restrained party of a domestic

violence no-contact order in which he was prohibited from contacting Crawford, the protected

party. This no-contact order was in effect in November 2021, when Crawford’s cell phone records

show 10 occasions in which calls were placed to her from Hernandez’s cell phone number. Again,

Hernandez has never asserted someone else had control over his phone.

5 No. 57657-1-II

It is immaterial whether the trial court erred in concluding that Hernandez was not in

custody for the purposes of Miranda because absent Hernandez’s confession, the remaining

untainted evidence of Hernandez’s guilt was overwhelming.

II. DOMESTIC VIOLENCE NO-CONTACT ORDER VIOLATION

Hernandez concedes that he made prohibited contact once, when Crawford answered the

phone, but he argues there was insufficient evidence for the jury to conclude that the nine

remaining unanswered calls Hernandez made to Crawford constituted “making contact” in

violation of the domestic violence no-contact order. We disagree.

In a sufficiency of the evidence challenge, we review the evidence in the light most

favorable to the State to determine whether any rational trier of fact could have found Hernandez

guilty of violating the domestic violence no-contact order beyond a reasonable doubt. See State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). See also State v. Green, 94 Wn.2d 216, 221,

616 P.2d 628 (1980). Insufficient evidence claims “admit[] the truth of the State’s evidence and

all inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201. However, we

must reverse a conviction if there is insufficient evidence to prove an element of the crime. State

v. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998).

Here, court documents establish that Hernandez was subject to a domestic violence no-

contact order prohibiting various forms of “contact” with Crawford, including contact by phone.

Nine of the 10 counts of Hernandez’s violation of the no-contact order were based on instances

where Hernandez called Crawford, but Crawford did not answer her phone. Hernandez contends

that his unanswered calls to Crawford did not constitute “contact,” and at most, they amounted

only to attempted violations of the domestic violence no-contact order. Appellant’s Br. at 25.

6 No. 57657-1-II

Hernandez cites no published case law to support his argument that unanswered calls do not rise

to the level of “contact.”

Not only does Hernandez’s argument lack precedential support, it is also directly at odds

with cases establishing that a defendant may be guilty of violating a no-contact order without ever

effectuating actual or direct communication with a protected party. See State v. Ward, 148 Wn.2d

803, 816, 64 P.3d 640 (2003) (holding that there was sufficient evidence to support a defendant’s

violation of a no-contact order when the defendant went to the protected party’s home and spoke

with his spouse, absent any evidence that the spouse conveyed the defendant’s message to the

protected party).

In Ward, the defendant was subject to a no-contact order, which provided that the defendant

“‘have no contact with [the protected party] in person, by telephone or letter, through an

intermediary, or in any other way, except through an attorney of record.’” 148 Wn.2d at 815

(quoting record). As in Ward, Hernandez’s no-contact order similarly restrained Hernandez from

“[c]oming near and from having any contact whatsoever in person or through other[s] by phone,

mail, or any means, directly or indirectly, except for mailing or service of process of court

documents, by a third party or contact by [Hernandez’s] lawyers with [Crawford].” 1 VRP at 111.

Like Hernandez, the defendant in Ward argued that the evidence showed no more than an

attempted violation of the no-contact order because the defendant did not willfully contact the

protected party.

The Washington Supreme Court rejected Ward’s argument and affirmed the violation,

ultimately establishing that a defendant may be guilty of violating a no-contact order without ever

directly communicating with the protected party. See Ward, 148 Wn.2d at 816. Moreover,

Hernandez does not dispute the fact that he willfully and knowingly called Crawford’s cell phone.

7 No. 57657-1-II

Though Crawford did not answer 9 of the 10 calls, she did receive them, and she was able to later

identify the private call number as belonging to Hernandez.

Viewing the evidence in the light most favorable to the State, there was sufficient evidence

for a rational juror to conclude beyond a reasonable doubt that Hernandez violated a provision of

the domestic violence no-contact order prohibiting “any contact whatsoever . . . by phone” when

he called Crawford’s cell phone 10 times, regardless of whether Crawford answered the calls. 1

VRP at 111.

III. LEGAL FINANCIAL OBLIGATIONS

Hernandez argues that the trial court erred when it imposed both the $500 crime victim

penalty assessment and the $100 domestic violence assessment because it failed to properly

consider the assessments’ impact on Hernandez, despite his indigence. The State concedes that the

crime victim penalty assessment should be stricken on remand. We agree that the crime victim

penalty assessment must be stricken, but the domestic violence assessment can be imposed

regardless of indigence.

The domestic violence assessment statute encourages the court to solicit input from the

protected party about the impact of imposing the assessment, but the court is not required to do so.

RCW 10.99.080(5) provides that “[w]hen determining whether to impose a penalty assessment

under this section, judges are encouraged to solicit input from the victim or representatives for the

victim in assessing the ability of the convicted offender to pay the penalty, including information

regarding current financial obligations, family circumstances, and ongoing restitution.” RCW

10.99.080(5); see State v. Smith, 9 Wn. App. 2d 122, 127, 442 P.3d 265 (2019) (noting that RCW

10.00.080(5) “encourages judges to inquire as to whether imposition of an assessment on the

8 No. 57657-1-II

defendant will impact the victim” but “does not require courts to examine the assessment’s effect

on the defendant”).

Here, as in Smith, the trial court was encouraged, but not required, to solicit information

from Crawford as the protected party regarding the impact the penalty assessment may have on

her. The trial court was not required by statute to examine the impact of the penalty assessment on

Hernandez himself.

Because the law did not require the trial court to consider Hernandez’s indigence, the trial

court acted within its discretion when it imposed the domestic violence assessment without

soliciting input regarding potential hardships. However, because we remand for the trial court to

strike the $500 crime victim penalty assessment, the trial court may want to take the opportunity

on remand to revisit the $100 domestic violence assessment’s impact in light of Hernandez’s

indigence.

CONCLUSION

We affirm the convictions and remand to the trial court to strike the $500 crime victim

penalty assessment. On remand, the trial court may choose to revisit the $100 domestic violence

9 No. 57657-1-II

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

Glasgow, J. We concur:

Veljacic, A.C.J.

Che, J.