State of Washington v. Jose Luis Mata ( 2018 )

FILED
JANUARY 4, 2018
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. 34703-6-111
Respondent, )
)
V. )
)
JOSE LUIS MATA, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, C.J. -Jose Luis Mata asks for a new trial on charges that he possessed
methamphetamine with the intent to deliver. He claims his trial counsel performed
ineffectively when failing to request a lesser included offense jury instruction for the
inferior crime of possession ofmethamphetamine only. We affirm his conviction
because the trial evidence did not support a jury instruction for mere possession. We
remand, nonetheless, for a hearing on the imposition of legal financial obligations.
FACTS
The story behind the prosecution of Jose Mata begins with law enforcement's
apprehension of Christian Gonzalez. Christian Gonzalez later informed on Mata.
No. 34703-6-III
State v. Mata
On April 14, 2016, Pasco Police Detective Jeremy Jones patrolled the streets of
Pasco when he spotted Christian Gonzalez, then unknown to Jones, commit a bicycle
infraction. Detective Jones signaled the bicyclist to stop and attempted to speak with
Gonzalez, but, as Jones exited his patrol car, Gonzalez escaped on his bike. A chase
ensued as Jones radioed police dispatch for assistance. Upon catching Gonzalez, Jones
shoved him from the bike. Gonzalez escaped again, and the chase continued on foot.
After a block and a half, Jones apprehended Gonzalez.
In the meantime, other officers arrived at the location where Detective Jeremy
Jones arrested Christian Gonzalez. Pasco Detective Chad Pettijohn detained Gonzalez
and searched his person incident to arrest. Detective Pettijohn found a bag of
methamphetamine in Gonzalez's pants back pocket and $200 on his person. Detective
Jones asked Detective Nathan Carlisle to retrace and search Gonzalez's path. Detective
Carlisle found methamphetamine in a large bag on the ground near where Jones shoved
Gonzalez from the bicycle. The large bag contained smaller bags. Later another officer
found a bag of methamphetamine inside a sock in Gonzalez's waistband.
Eventually law enforcement weighed the amount of methamphetamine found in
the respective bags. The bag found in the pants pocked weighed 16.78 grams. The bag
found in the waistband contained 29 .69 grams of methamphetamine. The large bag on
the ground held 350.53 grams of the controlled substance.
Detective Jeremy Jones took Christian Gonzalez to the Franklin County jail.
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Because of the amount of methamphetamine captured, Jones also invited United States
Drug Enforcement (DEA) Agent Andrew Corral to join him in interviewing Gonzalez
about his possession of controlled substances.
Andrew Corral and Jeremy Jones questioned Christian Gonzalez on April 14.
Gonzalez boasted about a large amount of methamphetamine stored inside a garage. He
specified that officers would find the drugs inside the garage wall's sheetrock and that
officers could pull a rope attached to the wall in order to remove the drugs. Gonzalez
utilized Google Maps on a detective's phone to identify the address of the garage, which
identification introduces us to defendant Jose Mata. The address constituted the home of
Jose Mata's parents. Mata lived inside the garage, which had been converted into a
bedroom and living room. Gonzalez insisted that the officers would find drugs only in
the garage and not inside the home. Gonzalez stated that no one in the Mata family knew
of the presence of the methamphetamine.
On the night of April 14, 2016, Pasco Police Department officers, including
Detectives Jeremy Jones and Nathan Carlisle, along with DEA Agent Andrew Corral
procured a search warrant for the Mata garage. Law enforcement went immediately to
the Mata home. Jose Mata's mother and stepfather opened the front door and allowed the
officers access inside the home. Meanwhile additional officers secured the perimeter of
the home. Dogs in the backyard barked at the officers' presence, at which time Jose Mata
exited the garage's large windowless window to discern the reason for the yelping dogs.
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Officers detained Mata, who asked the officers to explain their presence. Detective Jones
shrewdly responded with a question: "[w]hat does it say on the back of their vests?"
Report of Proceedings (RP) (July 27, 2016) at 17. Mata read "DEA" and thoughtfully
replied: "oh shit." RP (July 27, 2016) at 17.
Law enforcement officers next searched inside the wall of the Mata garage.
Officers found two "food saver" bags of methamphetamine taped together. Both bags
contained smaller bags of methamphetamine similar to the small bags officers found on
Christian Gonzalez when arresting him. Officers found another "food saver" bag of
similar packaging near a couch and a mannequin inside the garage. The packaging
coincided with the packaging that law enforcement found on the person of Christian
Gonzalez and on the ground where Gonzalez fled. In total, officers seized six pounds of
methamphetamine, with a street value of at least $20,000, from the garage. Officers also
snatched, from the top drawer of a dresser in the middle of the garage, a digital scale with
white residue thereon and, from another dresser against the wall, a heavily used
methamphetamine pipe. Officers discovered no money in the garage or on Jose Mata's
person. The police forwarded the bags to the crime laboratory for fingerprint analysis.
Officers found no controlled substances on the person of Mata.
During his arrest on April 14 and thereafter, Jose Mata declined to speak to
officers. Christian Gonzalez, however, expanded his narrative during a law enforcement
interview on the morning of April 15 at the Franklin County jail. Gonzalez stated the
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State v. Mata
methamphetamine was manufactured in Mexico. He identified a copious drug trafficker
in Tijuana, named Fabio. Fabio transferred the drugs to Huero, who drove the controlled
substances from Mexico to Pasco.
Throughout the April 15 law enforcement interview, Christian Gonzalez
repeatedly requested the detectives for help in reducing his charges. Detectives promised
to speak with prosecutors about his cooperation. Gonzalez repeated that Jose Mata did
not distribute methamphetamine, but only stored the drugs. DEA Agent Andrew Corral's
notes of the interview read:
"Detectives Jones, TFO Task Force Officer Corral, myself,
continued to speak to Gonzalez about the locations of narcotics, and
Gonzalez stated that the family-Gonzalez stated that the family that lived
at the residence where the narcotics were located had no knowledge of him
hiding the narcotics there. Gonzalez also stated that had his friend that
lives at the location did not have knowledge of the narcotics and that the
friend had always been there-had always been there for him, for
Gonzalez."
RP (July 27, 2016) at 67. A later paragraph of Corral's notes recorded Gonzalez's
comments:
"Gonzalez again stated that the people that live at the residence do
not have any knowledge that narcotics were there."
RP (July 27, 2016) at 67. A third paragraph noted that officers asked Gonzalez again
about Mata's role:
"Gonzalez was again asked about Mata's involvement with narcotics
trafficking, and Gonzalez said that he didn't know Joey [Mata] to deal
drugs at all and that they just smoke together."
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RP (July 27, 2016) at 68. A fourth paragraph of Corral's report noted more questioning:
"Gonzalez was again asked about Mata's involvement in narcotics
trafficking, and again Gonzalez stated that he didn't know of Joey's
involvement."
RP (July 27, 2016) at 69. Detectives refused to believe Gonzalez's denial of Mata's
participation in sales. The officers emphasized the importance of full disclosure for
Gonzalez to "get consideration" for the federal narcotics charges he faced.
Christian Gonzalez eventually changed his story and claimed that Jose Mata
showed Gonzalez the hole in the wall, helped him place the methamphetamine bags
inside the wall, and assisted in reinforcing the wall to further conceal the drugs.
Gonzalez added that he handed Mata $20 to purchase the scale seized during the officers'
execution of the warrant and he also gave Mata an ounce of methamphetamine for Mata's
help. Gonzalez told officers that Mata helped sell methamphetamine at a Pasco motel.
Law enforcement never corroborated Christian Gonzalez's claim, uttered after
continuous pressure, that Jose Mata aided in hiding or selling the methamphetamine. The
laboratory did not find Mata's fingerprints on the methamphetamine bags. Officers never
found the ounce of methamphetamine that Mata supposedly received from Gonzalez.
PROCEDURE
The State of Washington charged Jose Luis Mata with unlawful possession of a
controlled substance with intent to deliver. The prosecution proceeded to a jury trial.
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No. 34 703-6-111
State v. Mata
At trial, Detective Nathan Carlisle testified for the State of Washington. Detective
Carlisle had worked in the Pasco Police Department's street crimes unit for five years.
During his testimony, Carlisle described his involvement in executing the search warrant
at Jose Mata's home. The State asked Carlisle about the scale found in the garage: "In
your experience what are these scales used for?" RP (July 27, 2016) at 42. Detective
Carlisle responded: "These digital scales are commonly used for narcotics and measuring
up and dividing up for amounts for sale or use." RP (July 27, 2016) at 42 (emphasis
added). DEA Agent Andrew Corral averred that the amount of methamphetamine found
in the garage identified the presence of a person high in the drug trafficking strata.
In the cross-examination of DEA Agent Andrew Corral, Jose Mata's counsel
asked him to read portions of his written report, which detailed the events that transpired
during the night of April 14 and the April 14 and 15 interviews of Christian Gonzalez.
Agent Corral read the entries in his notes where Gonzalez repeatedly averred that Mata
knew not of the methamphetamine stored in his garage. A forensic drug chemist testified
and identified the seized drugs as methamphetamine.
The State sought to admit, as exhibits, two pictures of Jose Mata's personal
belongings. In objecting to the photographs' admission, Mata's counsel explained:
MR. STOVERN: It is not necessary for them to show items 3 and 4
to prove dominion and control. They have already testified that Joey Mata
lives there. They've already got a prescription bottle with his name on it.
It's not our intention to--to say that he does not live there ....
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MR. DOWNER: As Mr. Chow stated, I disagree, your Honor. It's
just one of the many things that led officers to believe that, one, Mr. Mata
was staying there, and there's many items of his, his personal effects
throughout there.
MR. STOVERN: We'll stipulate that he lived in the garage on the
record right now.
MR. CHOW: We have the burden. I don't think the defense gets to
tell us how to do our job.
RP (July 27, 2016) at 14-15. The trial court sustained the objection to admission of the
photographs while commenting that he accepted Jose Mata's stipulation that he lived in
the garage.
Neither Christian Gonzalez nor Jose Mata testified at trial. Mata called no
witnesses.
During closing arguments, defense counsel underscored that Christian Gonzalez,
not Jose Mata, faced federal charges for trafficking in methamphetamine. Counsel
emphasized that Gonzalez repeatedly told law enforcement that Mata knew not of the
methamphetamine stashed in the garage wall. Counsel emphasized that Gonzalez
accused Jose Mata of planning to deliver the methamphetamine only after four denials
and only after Gonzalez concluded he must implicate Mata in order to lessen his federal
charges or sentence. Counsel highlighted the facts that law enforcement found no drugs
or money on Mata and no fingerprints of Mata on the methamphetamine bags. Counsel
highlighted that Gonzalez failed to testify in person such that the jury heard his story only
by second hand or third hand.
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State v. Mata
The trial court instructed the jury on the elements of unlawful possession of a
controlled substance with intent to deliver. The instructions included a definition of
"possession" as "having a substance in one's custody or control. It may be either actual
or constructive." Clerk's Papers (CP) at 60. Finally, the court instructed the jury on
intent to deliver:
Deliver or delivery means the actual or constructive or attempted
transfer of a controlled substance from one person to another.
CP at 63. Defense counsel did not request an instruction for possession only.
The jury found Jose Mata guilty of the charge of unlawful possession with intent
to deliver. Mata faced a standard range sentence of five to ten years. The trial court
sentenced him to seven and one-half years.
During the sentencing hearing, the trial court asked defense counsel if he had
spoken to Jose Mata about his ability to pay fines, restitution, and fees. Counsel
responded:
MR. STOVERN: I know currently he has a lot of [legal financial
obligations] LFO's from previous matters.
THE COURT: That doesn't have anything to do with whether he can
work or not.
MR. STOVERN: He is applying for [Social Security Insurance] SSI,
but that's gonna be delayed.
THE COURT: I will assess the appropriate fines and he can address
those later with the LFO clerks.
RP (Aug. 16, 2016) at 4. The court signed boilerplate language findings in the judgment
and sentence that read: "the defendant is an adult and is not disabled and therefore has the
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No. 34703-6-III
State v. Mata
ability or likely future ability to pay the legal financial obligations" including the
defendant's financial resources and the likelihood that the defendant's status will change.
CP at 78.
LAW AND ANALYSIS
Ineffective Assistance of Counsel
And Lesser Crime Jury Instruction
Although Jose Mata did not testify, under Mata's version of the events, he never
intended to deliver the drugs found inside his garage bedroom wall. Mata protests that
only Christian Gonzalez planned to distribute the methamphetamine and that Gonzalez
merely stored the substance at Mata's house. He emphasizes that Gonzalez implicated
him only after threats and promises from law enforcement. Mata contends that, at most,
he is guilty of possession of controlled substances. Since simple possession of a
controlled substance is a lesser included offense of possession with the intent to deliver,
Mata argues he was entitled to such an instruction permitting the jury to convict him of
the inferior crime. He faults his attorney for failing to propose the lesser included offense
instruction. He asks us to reverse his conviction and remand for a new trial based on
ineffective assistance of counsel.
The Sixth Amendment to the United States Constitution guarantees an accused the
right to legal counsel in criminal trials. Washington's Constitution also grants an accused
in a criminal prosecution the right to appear by counsel. WASH. CONST. art. I,§ 22.
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No. 34703-6-III
State v. Mata
The right to counsel under the state and federal constitutions is coextensive. State v.
Long, 104 Wri.2d 285,288, 705 P.2d 245 (1985).
The constitution secures the accused more than an attorney who sits next to him
during trial. To meaningfully protect an accused's right to counsel, the constitution
demands effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The law recognizes the right to effective
assistance not for its own sake, but for its effect on the ability of the accused to receive a
fair trial. State v. Wehbe, 122 Wn. App. 683, 694, 94 P.3d 994 (2004).
State and federal decisions follow the teachings and legal test announced in the
United States Supreme Court's seminal decision of Strickland v. Washington, 466 U.S.
668. A claim of ineffective assistance of counsel requires a showing that (1) counsel's
performance was deficient, and (2) the deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. at 687. If one prong of the test fails, we need not
address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996).
For an accused to show ineffective assistance of counsel for failing to request a
jury instruction, the accused must establish entitlement to the instruction. State v.
Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007). Therefore, we first review whether
the trial court should have, assuming Jose Mata requested one, delivered a lesser included
jury instruction for the inferior crime of possession of a controlled substance. Because
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No. 34703-6-III
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we hold that the evidence did not support a conviction for possession without an intent to
deliver, we do not further address whether defense counsel's failure to seek the
instruction constituted ineffective assistance of counsel.
RCW 10.61.006 codifies the right to a lesser included offense jury instruction.
The statute reads:
In all other cases the defendant may be found guilty of an offense the
commission of which is necessarily included within that with which he or
she is charged in the indictment or information.
Washington's leading decision on lesser included offenses jury instruction is State
v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). In Workman, the state high court
instituted a two-tine test to determine whether a party is entitled to an instruction on a
lesser included offense. Under the first prong of the test, labeled the legal prong, the
court asks whether the lesser included offense consists solely of elements necessary to
conviction of the greater, charged offense. State v. Condon, 182 Wn.2d 307, 316, 343
P.3d 357 (2015). If one may commit the greater offense without committing the lesser
offense, the latter is not an included crime. State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d
718 ( 1973 ). Under the second or factual prong, the court asks whether the evidence
presented in the case supports an inference that only the lesser offense was committed, to
the exclusion of the greater, charged offense. State v. Condon, 182 Wn.2d at 316. The
requesting party is entitled to the lesser included offense instruction when the answer to
both questions is yes. State v. Condon, 182 Wn.2d at 3 16.
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No. 34703-6-III
State v. Mata
The State impliedly concedes that Jose Mata fulfills the legal prong of the
Workman test. Simple possession of a controlled substance is a lesser included offense of
the crime of possession with the intent to deliver. State v. Hassan, 151 Wn. App. 209,
216,211 P.3d 441 (2009); State v. Harris, 14 Wn. App. 414,418,542 P.2d 122 (1975).
Jose Mata must still satisfy the factual prong of the Workman test. An accused
fulfills the factual prong when the evidence permits a jury to rationally find the accused
guilty of the lesser offense and acquit him of the greater. State v. Fernandez-Medina, 141
Wn.2d 448,455, 6 P.3d 1150 (2000). In making this determination, the court must
consider all evidence presented at trial by either party. State v. Fernandez-Medina, 141
Wn.2d at 455-56. The court must also view the evidence in the light most favorable to
the party requesting the lesser included offense instruction. State v. Condon, 182 Wn.2d
at 321.
We base our decision on the following principles applied to the second or factual
prong of the Workman test. The evidence presented in the case must support an inference
that the accused committed only the lesser offense to the exclusion of the greater, charged
offense. State v. Condon, 182 Wn.2d at 316 (2015). The evidence must affirmatively
establish the defendant's theory of the case. State v. Fernandez-Medina, 141 Wn.2d at
456. The accused does not prevail by merely contending the jury may disbelieve the
State's evidence. State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990).
In examining whether Jose Mata was entitled to a lesser included offense jury
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No. 34703-6-III
State v. Mata
instruction, we outline the differing stories. Since Jose Mata remained silent and
exercised his right not to testify, the facts come from the statements rendered by Christian
Gonzalez to law enforcement and the physical facts as observed by law enforcement
officers. The physical facts showed a large amount of methamphetamine inside the wall
of a garage that functioned as the living quarters of Jose Mata. The amount prompted the
involvement of federal agents. A bag of methamphetamine lay near a couch in the
middle of the garage and a scale used to measure drugs rested in a dresser drawer. Mata
crawled through the garage's open window when he heard barking dogs and used an
obscenity when he observed the presence of DEA agents.
Under Christian Gonzalez's first story about Jose Mata's participation in the
crime, Gonzalez insisted that his friend, Mata, knew not of the presence of the
methamphetamine in the garage and did not assist in the methamphetamine operation.
Gonzalez provided no explanation as to how someone stashed the methamphetamine
inside the wall and left a bag of methamphetamine near the couch without the knowledge
of the occupant of the garage. Later Gonzalez told a variant story, under which Mata did
not deal drugs but the two friends smoked together. Gonzalez did not identify the
substance that the two smoked.
During his third version of Jose Mata's participation, Christian Gonzalez stated
that Jose Mata knew of the presence of the methamphetamine, identified the location of
hole in the garage wall used for stashing drugs, and assisted in storing the
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No. 34703-6-III
State v. Mata
methamphetamine in the wall. When relating this later version of the story, Gonzalez
added that Mata assisted in selling methamphetamine at a Pasco hotel and purchased the
scale. During cross-examination of law enforcement officers and during closing
argument, defense counsel underscored that officers found no drugs or money on Jose
Mata and officers never found the ounce of methamphetamine that Mata supposedly
received from Gonzalez as payment for Mata's assistance.
From Christian Gonzalez's first story we glean that Jose Mata knew not of the
presence of methamphetamine in the garage. Under this theory, Mata would enjoy the
defense of unwitting possession to both a charge of possession with intent to distribute
and a charge of possession without intent. State v. Staley, 123 Wn.2d 794, 799, 872 P.2d
502 ( 1994 ); City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P .3d 304 (2000). Thus,
under story one, the evidence did not support a conviction for possession alone or a jury
instruction to gamer the conviction.
According to the second story, Mata "smoked" with Gonzalez, but still knew not
of the presence of methamphetamine in the garage. Mata could possess without the
intent to deliver a substance that he smoked. Nevertheless, the jury heard no testimony
about the substance smoked. A detective testified that law enforcement found a used
methamphetamine pipe, but the State did not link Gonzalez's testimony of smoking to the
pipe. In a prosecution for unlawful possession, the State must establish beyond a
reasonable doubt the nature of the substance. State v. Staley, 123 Wn.2d at 798; State v.
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No. 34703-6-111
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Pierce, 134 Wn. App. 763, 774, 142 P.3d 610 (2006). The jury might guess that the
smoked substance was methamphetamine, but a jury may not convict on speculation.
United States v. Michel, 446 F.3d 1122, 1127 (10th Cir. 2006).
In the third version of Christian Gonzalez's story, Gonzalez indicated that he gave
Jose Mata an ounce of methamphetamine, but this transfer of an ounce for personal use
was integral to Mata's assistance in secreting and selling the unlawful drug. We must
view the totality of the evidence when determining the suitability of a jury instruction.
We are not free to believe a portion of the story and discount an undivided portion of the
same story. Thus, the only evidence of Gonzalez possessing a controlled substance is
within the context of storing, hiding, and marketing the substance. For this reason, the
affirmative evidence only supported a finding of possession with an intent to deliver.
Jose Mata does not argue evidence supported a jury instruction for possession
without an intent to distribute based on his alleged smoking with Christian Gonzalez or
his allegedly receiving an ounce of methamphetamine from Gonzalez in payment for
services. To the contrary, he claims the absence of evidence to confirm his possession of
the ounce. Mata instead, when arguing the facts supported a lesser included offense
instruction, highlights the evidence that he controlled the garage and officers found
methamphetamine in the garage. He contends this actual or constructive possession of
the methamphetamine could convict him solely of possession. We disagree. Mata's
argument ignores the legal implications of his dominion over the methamphetamine
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No. 34703-6-III
State v. Mata
found in the garage.
RCW 69.50.401 proscribes:
( 1) Except as authorized by this chapter, it is unlawful for any person
to manufacture, deliver, or possess with intent to manufacture or deliver, a
controlled substance.
RCW 69.50.101 declares:
(g) "Deliver" or "delivery" means the actual or constructive transfer
from one person to another of a substance, whether or not there is an
agency relationship.
Under the crime of possession with intent to deliver, the State need not show a sale or
even a delivery of a controlled substance, only an intent to deliver at some time in the
past or future. State v. Atsbeha, 142 Wn.2d 904, 921, 16 P.3d 626 (2001); State v. Vike,
125 Wn.2d 407, 411-12, 885 P.2d 824 (1994).
Possession of a controlled substance, without more, fails to establish an inference
of intent to deliver. State v. Hagler, 74 Wn. App. 232, 235, 872 P.2d 85 (1994).
Nevertheless, Mata stipulated that he possessed dominion and control over the garage.
Since Jose Mata controlled the garage, the possession of the methamphetamine
necessarily passed to and from Mata and Christian Gonzalez or someone else involved in
the sale of drugs. A transfer entails relinquishing control to another. State v. Martinez,
123 Wn. App. 841, 847, 99 P.3d 418 (2004). Thus, at some point, Mata participated in a
delivery. He presented no testimony that he intended for personal use all six pounds of
methamphetamine, a powerful stimulant, embedded in his garage.
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Generally, the State must present one factor, in addition to possession and
suggestive of sale, to establish an inference of intent to deliver. State v. Todd, 101 Wn.
App. 945,953, 6 P.3d 86 (2000), overruled by State v. Rangel-Reyes, 119 Wn. App. 494,
81 P.3d 157 (2003). In the case on appeal, the State presented evidence of an excessive
wad of methamphetamine, a scale to weigh individual portions of the unlawful drug, and
unique packaging. In State v. Simpson, 22 Wn. App. 572, 575, 590 P.2d 1276 (1979),
this court considered the quantity of drugs and nature of packaging to support an
inference of possession with intent to deliver. Foreign cases recognize the presence of a
scale as evidence of intent to distribute the controlled substance. State v. Purvis, 51, 215
(La. App. 2 Cir. 4/15/17) 217 So. 3d 620, 624; Beard v. State, 318 Ga. App. 128, 130,
733 S.E.2d 426 (2012); State v. Leyva, 229 Or. App. 479, 485, 211 P.3d 968 (2009);
People v. Deluna, 334 Ill. App. 3d 1, 777 N.E.2d 581, 602, 267 Ill. Dec. 778 (2002);
State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001); Herbert v. State, 136 Md. App. 458, 766
A.2d 190, 192 (2001 ). Law enforcement officers found six pounds of methamphetamine
in the garage compartment, while Washington law considers even one ounce a large
amount of a controlled substance. State v. Lopez, 79 Wn. App. 755, 769, 904 P.2d 1179(1995).
Jose Mata's permission to allow storage of Christian Gonzalez's stock in trade of
methamphetamine alone establishes possession with the intent to deliver, not simply
possess10n. In United States v. Valencia, 907 F.2d 671,674 (7th Cir. 1990), defendant
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No. 34703~6-III
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Ivan Martinez built a twenty-four by twenty-four inch storage compartment for his
associate Jose Valencia, who marketed cocaine. Although the court noted that officers
found cash on Martinez's person, the court also affirmed the conviction on the basis of
construction of the storage compartment.
Legal Financial Obligations
Jose Mata challenges the imposition of $5,700 in discretionary legal financial
obligations. He did not object to the imposition before the trial court. This court is not
required to grant review, but may exercise its discretion to do so. State v. Blazina, 182
Wn.2d 827, 834-35, 344 P.3d 680 (2015). In Blazina, our Supreme Court stated that each
appellate court must make its own decision to accept discretionary review. State v.
Blazina, 182 Wn.2d at 835. The court continued that national and local cries for reform
of broken financial obligations systems encourage review of the merits of the financial
obligations. State v. Blazina, 182 Wn.2d at 835. The State of Washington does not
object to this court's review of Jose Mata's second assignment of error. A majority of
this court accepts review.
$5,000 of Jose Mata's $5,700 in discretionary legal financial obligations result
from two different discretionary fines. The trial court imposed a methamphetamine
cleanup fine of $3,000. The court also imposed a $2,000 fine pursuant to RCW
9A.20.021(l)(b), which allows for imposition of fines for punishment of class B felonies.
This fine does not constitute "costs" for the purposes of the mandate in RCW
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No. 34703-6-III
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10.01.160(3), that directs the trial court to conduct an inquiry into the defendant's ability
to pay. State v. Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). Therefore, we
affirm $5,000 of the fines.
Jose Mata cites to a Supreme Court order from 2017, in State v. Clark, 187 Wn.2d
1009, 388 P.3d 487 (2017), wherein the court remanded the case to the trial court for an
· individualized inquiry into the ability to pay. Nevertheless, the remand concerned a
different Clark case from 2016 so it is not relevant to the inquiry here. State v. Clark,
195 Wn. App. 868, 381 P .3d 198 (2016), review granted in part by 187 Wn.2d 1009, 3 88,
P.3d 487 (2017).
The trial court imposed costs of $600 fee for a court appointed attorney and $100
as a crime lab fee. These costs fall under the mandate of RCW 10.01.160, by which the
court must assess the offender's ability to pay. The trial court conducted no inquiry into
Jose Mata's ability to pay. In these circumstances, we would normally remand to the trial
court to conduct an individualized inquiry into the offender's financial capability to pay
costs. Because the trial court judge has retired and the amount of the costs at issue is
only $700, we order the vacation of $700 in costs without any further hearing.
CONCLUSIONS
We affirm Jose Mata's conviction for possession of methamphetamine with the
intent to deliver the controlled substance. We direct a remand of the case to the trial
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No. 34703-6-III
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court to vacate $700 in legal financial obligations. Otherwise, we affirm the costs
imposed by the trial court. We deny the State costs on appeal.
.
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.
Fear,ing, C.J.
WE CONCUR:
Siddoway, J.
Pennell, J.
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