State of Washington v. Jose Manuel Quintero ( 2020 )

FILED
JANUARY 7, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35752-0-III
Respondent, )
)
v. )
)
JOSE MANUEL QUINTERO, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — Federal law provides for a U visa, which can be obtained by
someone illegally in the United States who (among other requirements) has been helpful
to a law enforcement agency in the investigation or prosecution of a qualifying crime.
Several appellate courts from around the country have held that where a State’s witness
in a criminal case has applied for a U visa and been promised State support for the
application if their testimony proves helpful, the defendant must be allowed to question
the witness about that possible motivation for the witness’s testimony.
At Jose Quintero’s trial, two witnesses against him were promised by the State that
if they provided the type of help required for the U visa, it would sign off on a required
certification of their assistance. The trial court ruled that the defense could not question
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State v. Quintero
either witness about the State’s promise because it would necessarily reveal their
undocumented status, which would be unduly prejudicial,
In this case, neither witness against Mr. Quintero had applied for a U visa by the
time of trial and the defense was able to demonstrate only a possibility that the witnesses
would apply, qualify, and realize any benefit from the State’s promise. Because the
evidence that Mr. Quintero sought to develop was not highly probative, we find no error
or abuse of discretion in the trial court’s decision to exclude it as unduly prejudicial. We
affirm the convictions but remand with directions to address a challenged DNA
(deoxyribonucleic acid) collection fee.
FACTS AND PROCEDURAL BACKGROUND
In April 2016, Jose Quintero, a member of the 18th Street Gang in Walla Walla,
was charged with the first degree murder of Janette Rojas Balderas and her boyfriend,
Jon Cody Cano, as well as first degree unlawful possession of a firearm. The State would
present evidence at trial that Ms. Rojas had been an informant for the Walla Walla police,
participating in 15 controlled drug buys until, in 2015, she told police that the 18th Street
Gang had “green-lighted” her—meaning she had been identified as okay to kill. Report
of Proceedings (RP) at 963.
One of Ms. Rojas’s controlled drug buys was from Charley Lozano, who was
charged and later pleaded guilty to delivery of methamphetamine. At the time of the
Rojas and Cano murders, Mr. Lozano was the only individual from whom Ms. Rojas had
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both done a controlled buy and whose case had proceeded to the point where her identity
would have been revealed to his defense lawyer.
Mr. Lozano was scheduled to be sentenced on his drug conviction on Monday,
August 10, 2015. A “going away” party for Mr. Lozano was held the prior Friday night.
At around midnight that night, as Ms. Rojas and Mr. Cona sat outside their home, Ms.
Rojas was shot 11 times and Mr. Cona was shot 5 times. Both died.
Months later, Mr. Lozano and Mr. Quintero were identified as the shooters. Two
key State witnesses were Birzavit Carmona-Hernandez and Diego Bante Rivera, both
members of the 18th Street Gang with whom Mr. Quintero had shared a cell while in jail
following his arrest for the murders. Mr. Quintero allegedly told both men that he and
Mr. Lozano shot Ms. Rojas and her boyfriend because she was an informant. The
principal issue on appeal concerns limits that the trial court imposed on cross-
examination of Mr. Carmona-Hernandez and Mr. Bante Rivera.
Birzavit Carmona-Hernandez
In May 2017, many months before Mr. Quintero’s October 2017 trial, the State
arranged a perpetuation deposition of Mr. Carmona-Hernandez and moved the court for
an order in limine preventing Mr. Quintero’s lawyer from inquiring into certain gang
matters and Mr. Carmona-Hernandez’s immigration status. The perpetuation deposition
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had been scheduled because Mr. Carmona-Hernandez was subject to “an ICE[1] hold,”
and may or may not be available for trial. RP at 92. It was made clear at the hearing on
the motion that any rulings the trial court made were preliminary and addressed evidence
that would be admitted at trial; they would not preclude defense counsel from
questioning Mr. Carmona-Hernandez during the deposition in order to create a record for
an offer of proof.
Relevant to this appeal, the State wanted the trial court to preclude questioning
about the fact that Mr. Carmona-Hernandez did not have citizenship status in the United
States and was subject to deportation. The prosecutor was aware that defense counsel
wanted to explore with Mr. Carmona-Hernandez assistance the State had agreed to
provide him in obtaining a U visa to remain in the United States. A U visa, provided for
by the federal Immigration Naturalization Act, can be applied for by a victim of crime
who has “suffered substantial physical or mental abuse as a result of having been a
victim” of qualifying criminal activity and who “has been helpful, is being helpful, or is
likely to be helpful to a Federal, State, or local law enforcement official, to a Federal,
State, or local prosecutor, to a Federal or State judge . . . or local authorities investigating
or prosecuting criminal activity.” 8 U.S.C. § 1101(a)(15)(U)(i)(I), (III). The duration of
a U visa, once granted, is up to four years and may be extended. 8 C.F.R. § 214.14(g).
1
United States Immigration and Customs Enforcement.
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After three years, U visa holders are eligible for adjustment of status from
“nonimmigrant” to “lawfully admitted permanent residen[t]” if the visa holder’s
provision of information “has substantially contributed to the success of an authorized
criminal investigation or the prosecution of an individual.” 8 U.S.C. § 1255(j).
The State had agreed that if Mr. Carmona-Hernandez applied for a U visa claiming
that he was eligible based on testimony helpful in the prosecution of Mr. Quintero, the
prosecutor’s office would review any statement required of the State and, if appropriate,
would sign it. The prosecutor insisted that providing a statement in support of a U visa
had never been a part of the deal offered for Mr. Carmona-Hernandez’s testimony in Mr.
Quintero’s case. The prosecutor told the court, “When he pled guilty, his immigration
status was not even in issue.” RP at 92.
Given an opportunity to respond, Mr. Quintero’s lawyer represented to the trial
court that based on her discussion with gang detectives, Mr. Carmona-Hernandez had a
history of gang involvement for well over 10 years, which “renders him the highest
potential priority for deportation.” RP at 96. She continued, “[T]hat places him in
extreme peril, gives him a very high incentive to do what he needs to do to get the
cooperation from the State to be able to help him try to get this visa form that would then
give him a legal authority to stay here.” RP at 97. She said that while she sympathized
with individuals who were brought to the United States as children and were faced with
deportation from the only place they had ever known—apparently Mr. Carmona-
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Hernandez’s situation—“[T]he problem is now that’s exactly what he has the motivation
to avoid. That’s what he is at risk of. That’s why it’s relevant.” RP at 100.
The trial court acknowledged a legitimate defense interest in attacking Mr.
Carmona-Hernandez’s truthfulness by demonstrating a motive for cooperating with the
State, but explained:
The whole problem with the issue is that it’s so highly toxic at this point in
time. You bring up the issue of immigration and immigration law, the
potential for deportation, and immediately the focus of the jury isn’t on this
trial, it’s going to be on, well, what’s happening here? Is this guy going to
be deported? Does that give him a motive to lie? And should we just
disregard his testimony totally, instantly because of it?
I suppose there might be people on the jury who feel just the
opposite, that they’re overwhelmed with sympathy but at the same time
their view of the testimony would be so colored by the fact of this issue—
long story short, I think it’s too toxic, too prejudicial, and my preliminary
ruling at this time is I’m not going to allow it.
RP at 107.
Mr. Carmona-Hernandez turned out to be available for trial, and Mr. Quintero’s
pretrial motions in limine asked the trial court to reconsider its preliminary ruling
foreclosing cross-examination about Mr. Carmona-Hernandez’s U visa understanding
with the State. It supported the motion with testimony given by Mr. Carmona-Hernandez
at his perpetuation deposition. Among statements made by Mr. Carmona-Hernandez in
the deposition excerpts provided to the court were that after his plea deal, the State agreed
to sign off on a U visa. Mr. Carmona-Hernandez testified that he did not really know
what a U visa was, but his understanding was that it would help him “[t]o stay here in the
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United States.” Clerk’s Papers (CP) at 169. There was no discussion of whether Mr.
Carmona-Hernandez had applied for a U visa or how he had been victimized in a way
that would qualify him for the visa. He testified that he “kind of” had an immigration
lawyer, “but not really, not right now.” CP at 165. The trial court stood by its
preliminary ruling.
At trial, Mr. Carmona-Hernandez testified that he, like Mr. Quintero, was a
member of the 18th Street Gang. Mr. Carmona-Hernandez had been arrested a couple of
years earlier and charged with first degree murder, first degree assault, and intimidating a
witness in an unrelated case and upon being arrested, had shared a cell with Mr. Quintero
for about a week. He told jurors that not only did Mr. Quintero tell him that he and Mr.
Lozano murdered Ms. Rojas and her boyfriend, but Mr. Quintero had also described the
handguns he and Mr. Lozano had used. Mr. Carmona-Hernandez testified that he
informed police, through his wife, of the information he could provide about the Rojas
and Cona murders. Asked by the prosecution if he had asked for anything in return for
the information, Mr. Carmona-Hernandez said he did not. He testified that in later
providing additional information, he still did not ask for anything in return.
Mr. Carmona-Hernandez did admit that when he eventually pleaded guilty, it was
with the understanding that his charges would be reduced to misdemeanors if he agreed
to testify for the State in Mr. Quintero’s case. He was allowed to plead guilty to fourth
degree assault and criminal mischief.
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Outside the presence of the jury, defense counsel asked the trial court to revisit the
issue of the admissibility of Mr. Carmona-Hernandez’s immigration status, since the
State had elicited his testimony that he asked for nothing in exchange for the information
he provided. The trial court adhered to its ruling, pointing out that the dramatic reduction
in the charges against Mr. Carmona-Hernandez—from first degree murder to
misdemeanors—was significant by itself, providing the defense with a basis for arguing
his motivation.
In cross-examining Mr. Carmona-Hernandez thereafter, defense counsel asked
why it was important to him to avoid felony charges. He responded, “Because I’m an
illegal alien and I didn’t want to get no felonies. Felonies are deportable.” RP at 694.
Defense counsel relied on that statement as a further reason the trial court should
reconsider its ruling, but the trial court was unpersuaded. It did not strike Mr. Carmona-
Hernandez’s testimony about being an illegal alien and subject to deportation, however.
Witness: Diego Bante Rivera
Later in the trial, the State called Mr. Bante Rivera to testify. The State had never
moved in limine to prevent the defense from questioning Mr. Bante Rivera about his
immigration status, and Mr. Quintero’s pretrial motions in limine sought permission to
impeach only Mr. Carmona-Hernandez with evidence of immigration benefits promised
by the State.
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In his direct examination, Mr. Bante Rivera testified that while spending a couple
of months in a jail cell with Mr. Quintero less than two years earlier, Mr. Quintero told
him that he and Mr. Lozano shot Ms. Rojas and her boyfriend because Ms. Rojas was a
snitch. He testified that Mr. Quintero also told him about the .9 millimeter and .25
caliber handguns they used in the shootings.
Mr. Bante Rivera testified that in July 2016, months after Mr. Quintero told him
about his and Mr. Lozano’s role in the murders, Walla Walla police had interviewed him
for about 30 minutes. He refused to provide any information about the Rojas and Cano
murders because, he said, “I was still part of the gang and there was a code that you are
not supposed to say nothing to the cops.” RP at 1134. Members of the 18th Street Gang
apparently incorrectly believed he provided information to police however, because
shortly after the interview, gang members shot Mr. Bante Rivera 13 times, leaving him
paralyzed from the chest down. After he was released from the hospital, Mr. Bante
Rivera agreed to speak with police about the shootings. He testified that being shot by
his fellow gang members “changed the way . . . I view things and what my family
wanted.” RP 1135-36.
It was only during Mr. Bante Rivera’s redirect examination that the State triggered
an evidentiary issue about immigration status by asking if he “receiv[ed] any benefit” for
the information he provided or was providing. RP at 1146. He answered no. Early in re-
cross-examination, defense counsel asked the trial court outside the presence of the jury
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whether she could inquire about the State’s offer to support a U visa for Mr. Bante
Rivera, telling the court that
[a]t our previous interview, as with the case of Mr. Carmona Hernandez,
the State indicated that it was intending to participate in helping him
become a United States citizen by writing a letter in support of an
application for a U-Visa. We think that the nature of the question that was
asked and the answer that was given, answer to the jury, is misleading
because it necessarily leads the jury to think there is no benefit whatsoever
contemplated. That is plainly not the case. In light of the communications
that have been had, there is an expectation of a benefit with the immigration
assistance.
RP at 1154. Defense counsel made no representation to the court that Mr. Bante Rivera
was likely to be deported, as she had when arguing for the right to cross-examine Mr.
Carmona-Hernandez. The trial court adhered to its prior rulings, adding, “It is also
highly uncertain as to whether or not there would be any benefit derived in fact.” RP at
1155.
The jury found Mr. Quintero guilty as charged. With consecutive sentencing for
the murder counts, he was sentenced to a total term of confinement of 780 months. The
court ordered Mr. Quintero to pay restitution in the amount of $14,048.26 and imposed
the $200.00 criminal filing fee, $500.00 for the crime victim fund, and the $100.00 DNA
collection fee. Mr. Quintero appeals.
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ANALYSIS
I. EXCLUSION OF U VISA EVIDENCE
The principal issue on appeal is whether the trial court erred or abused its
discretion in prohibiting the defense from cross-examining Mr. Carmona-Hernandez and
Mr. Bante Rivera about their immigration status and the prospect of obtaining a U visa.
Mr. Quintero contends the trial court abused its discretion in finding the evidence unduly
prejudicial under ER 403 and violated his right to due process by depriving him of the
ability to present a defense. Additionally, he relies on case law holding that evidentiary
rulings that deny the right of effective cross-examination violate the Sixth Amendment to
the United States Constitution and article I, section 22 of the Washington Constitution.
Constitutional issues, such as an asserted violation of a defendant’s confrontation clause
and due process rights, are reviewed de novo on appeal. State v. Jones, 168 Wn.2d 713,
719, 230 P.3d 576 (2010).
Both the state and federal constitutions guarantee a criminal defendant the right to
present a defense and to confront adverse witnesses at trial. State v. Romero-Ochoa, 193
Wn.2d 341, 347, 440 P.3d 994 (2019). “[T]he exposure of a witness’ motivation in
testifying is a proper and important function of the constitutionally protected right of
cross-examination.” Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d
347 (1974) (citing Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d
1377 (1959)). “A defendant has a right to cross-examine the State’s witness concerning
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possible self-interest in cooperating with the authorities.” State v. Pickens, 27 Wn. App.
97, 100, 615 P.2d 537 (1980).
The State argued below and argues on appeal that its agreement to review and, if
appropriate, sign a certification is only relevant if it was part of a plea agreement with the
witnesses. The case law does not support that distinction. It recognizes a defendant’s
right to expose a witness’s motivation regardless of when or how that motivation arose.
The threshold to admit relevant evidence is very low; even minimally relevant
evidence is admissible. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). The
State informed Mr. Quintero’s trial lawyer that it had understandings with Mr. Carmona-
Hernandez and Mr. Bante Rivera that if they applied for a U visa, the prosecutor’s office
would review and, if appropriate, sign certifications that they were helpful in the
prosecution of qualifying criminal activity. Evidence that the men knew their testimony
could help them get a visa to remain in the United States was relevant to motivation.
Where the State seeks to exclude relevant evidence on the basis that it is
prejudicial, the State’s burden for constitutional purposes is “‘to show the evidence is so
prejudicial as to disrupt the fairness of the fact-finding process at trial.’” Jones, 168
Wn.2d at 720 (quoting Darden, 145 Wn.2d at 622). “The State’s interest in excluding
prejudicial evidence must also ‘be balanced against the defendant’s need for the
information sought,’ and relevant information can be withheld only ‘if the State’s interest
outweighs the defendant’s need.’” Id. (quoting Darden, 145 Wn.2d at 622). “For
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evidence of high probative value ‘it appears no state interest can be compelling enough to
preclude its introduction consistent with the Sixth Amendment and Const. art. 1, § 22.’”
Id. (quoting State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983)).2
Courts in several other jurisdictions have held that an order foreclosing the cross-
examination of a State witness in a criminal case about the witness’s pending application
for a U visa violates the confrontation clause or is an abuse of the trial court’s discretion.
As observed by the court in a Kentucky case:
One can readily see how the U-Visa program’s requirement of
“helpfulness” and “assistance” by the victim to the prosecution could create
an incentive to victims hoping to have their U-Visa’s granted. Even if the
victim did not outright fabricate the allegations against the defendant, the
structure of the program could cause a victim to embellish her testimony in
the hopes of being as “helpful” as possible to the prosecution.
Romero-Perez v. Commonwealth, 492 S.W.3d 902, 906 (Ky. Ct. App. 2016); see also
State v. Perez, 423 S.C. 491, 816 S.E.2d 550 (2018) (prohibiting testimony about a
witness’s U visa application prevented defendant from establishing a full picture of her
2
Under state evidence rules, relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. ER 403. We review
a trial court’s balancing of probative value against prejudice for abuse of discretion.
State v. Kennealy, 151 Wn. App. 861, 890, 214 P.3d 200 (2009). “A trial court abuses its
discretion if its decision is manifestly unreasonable or based on untenable grounds or
untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362(1997).
We lead with review of the constitutional challenge, with its bright line that
“highly probative” impeachment evidence will not be outweighed by an assertion of
prejudice, and as to which our review is de novo. It follows from our finding of no
constitutional error that the trial court did not abuse its discretion in applying ER 403.
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bias and was not harmless); State v. Valle, 255 Or. App. 805, 815, 298 P.3d 1237 (2013)
(trial court’s exclusion of evidence was harmful because the jury was not fully informed
of matters relevant to an assessment of the witness’s credibility, which was essential to
the State’s case). In Commonwealth v. Sealy, the Supreme Court of Massachusetts held
that the trial court did not abuse its discretion in excluding evidence of a remote incident
in which the alleged victim received immigration-related assistance, recognizing that the
judge had “permitted extensive inquiry into how the victim learned of her eligibility for a
U-Visa, her knowledge of the visa’s legal requirements and benefits, and the
circumstances of her application.” 467 Mass. 617, 624, 6 N.E.3d 1052 (2014).3
In all of the cases cited, the witness who was impeached, or who the criminal
defendant sought to impeach, had applied for a U visa. In this case, the evidence
suggests that neither witness had made application. Where a witness has already made an
application for a U visa, there is a stronger implication that the benefits of obtaining the
visa could be a motivation for the witness’s testimony.
3
Earlier this year, our Supreme Court reviewed an unpublished decision of
Division Two of this court that had found constitutional error when the trial court
excluded evidence that the testifying victim had applied for a U visa. Romero-Ochoa,
193 Wn.2d 341. There, as here, the trial court’s concern had been with the prejudicial
nature of the immigration evidence.
The State appealed only the appellate court’s finding that the error was, for the
most part, harmful error, requiring reversal. The Supreme Court reversed, finding the
error to be harmless as to all of the counts.
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Even more importantly, the offer of proof in this case established only a possibility
that Mr. Carmona-Hernandez and Mr. Bante Rivera would apply, qualify, and realize any
benefit from the State’s promise. No evidence was offered that Mr. Carmona-Hernandez
could meet the requirement of 8 U.S.C. § 1101(a)(15)(U)(i)(I) that he has suffered
substantial physical or mental abuse as a victim of a qualifying crime. In the hearing
preceding the perpetuation deposition, defense counsel told the court she questioned
whether Mr. Carmona-Hernandez could meet the victim requirement and she intended to
ask him about that. The deposition excerpts she later filed with the court did not include
testimony explaining how he qualified as a victim. They did include Mr. Carmona-
Hernandez’s testimony that he did not “really” have an immigration attorney helping him
“right now.” CP at 165.
As for Mr. Bante Rivera, there was no offer of proof that he faced a substantial
risk of deportation as there had been with Mr. Carmona-Hernandez. The trial court
commented on this in adhering to its ruling, stating that not only would the questioning
be prejudicial, but “[i]t is also highly uncertain as to whether or not there would be any
benefit derived in fact.” RP at 1155.
Washington courts have recognized that evidence of a witness’s undocumented
status can be prejudicial and distract jurors from the important matters submitted for their
determination. In State v. Avendano-Lopez, this court held that “appeals to nationality or
other prejudices are highly improper in a court of justice, and evidence as to the race,
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color, or nationality of a person whose act is in question is generally irrelevant and
inadmissible if introduced for such a purpose.” 79 Wn. App. 706, 718, 904 P.2d 324(1995) (emphasis added). In 2010, our Supreme Court agreed that a plaintiff’s
undocumented status was relevant to his claim for lost earnings even given his low risk of
being deported, given that ER 401 requires minimal relevance. Salas v. Hi-Tech
Erectors, 168 Wn.2d 664, 670, 230 P.3d 583 (2010). It nonetheless recognized that
“[i]ssues involving immigration can inspire passionate responses that carry a significant
danger of interfering with the fact finder’s duty to engage in reasoned deliberation,” and,
“[i]n light of the low probative value of immigration status with regard to lost future
earnings, the risk of unfair prejudice brought about by the admission of a plaintiff’s
immigration status is too great.” Id. at 672.4
In Mr. Quintero’s trial, the defense did not offer the evidence for an improper
purpose. If it had been able to present evidence that Mr. Carmona-Hernandez or Mr.
Bante Rivera were motivated by the prospect of obtaining a U visa beyond the State’s
4
Following Mr. Quintero’s trial, ER 413 became effective and governs the
admissibility of evidence of immigration status. It provides that in criminal cases, a party
proposing to offer evidence of immigration status for an impeachment purpose under ER
607 must make a written pretrial motion that includes an offer of proof supported by
affidavit, and that following a hearing the trial court may admit the evidence “if it finds
the evidence is reliable and relevant, and that its probative value outweighs the
prejudicial nature of evidence of immigration status.” ER 413(a)(1)-(4). Elsewhere the
rule provides, “Nothing in this section shall be construed to exclude evidence that would
result in the violation of a defendant’s constitutional rights.” ER 413(a)(5).
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bare offer—for instance, if it had presented evidence that they had applied for U visas,
evidence that Mr. Carmona-Hernandez could meet the victim requirement, and evidence
specific to Mr. Bante Rivera’s risk of deportation—it would have been error and an abuse
of discretion to prohibit examination. In light of the speculative nature of the offers of
proof, however, the proposed evidence was not highly probative. We find no
constitutional error or abuse of discretion in the trial court’s decision to exclude the
evidence as unduly prejudicial.
II. LEGAL FINANCIAL OBLIGATIONS (LFOS)
Mr. Quintero also challenges the $200 criminal filing fee and the $100 DNA
collection fee imposed at his December 21, 2017 sentencing.
Statutory amendments dealing with LFOs that were made by Engrossed Second
Substitute House Bill 1783, 65th Leg., Reg. Sess. (Wash. 2018), effective June 7, 2018,
apply prospectively to criminal cases on direct appeal. State v. Ramirez, 191 Wn.2d 732,
749, 426 P.3d 714 (2018). Among those changes was an amendment to former RCW
36.18.020(2)(h) (2015) that prohibits the imposition of the $200 criminal filing fee on
defendants who are indigent as defined in RCW 10.101.010(3)(a) through (c). The
changes also prohibit the assessment of a DNA collection fee if the State has previously
collected the defendant’s DNA as a result of a prior conviction. RCW 43.43.7541.
Mr. Quintero points out that he has a prior adult felony conviction from 2016, as a
result of which his DNA should have been collected. But as observed by this court in
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State v. Thibodeaux, defendants do not always submit to DNA collection despite being
ordered to do so. 6 Wn. App. 2d 223,230,430 P.3d 700 (2018) (citing State v. Thornton,
188 Wn. App. 371,372,353 P.3d 642 (2015), review denied, 192 Wn.2d 1029, 435 P.3d
278 (2019)). As for the $200 criminal filing fee, the State points out that in its order of
indigency for appeal, the trial court found "the Defendant lacks sufficient funds to
prosecute an appeal and the applicable law grants the Defendant a right to review at
public expense," which employs language from RCW 10.101.010(3)(d), a form of
indigency that does not exempt Mr. Quintero from application of the fee. CP at 213. We
direct the court on remand to strike the DNA collection fee, subject to the State's
opportunity to present evidence that the fee remains mandatory for Mr. Quintero.
We affirm the convictions and remand for proceedings consistent with this
opm10n.
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.
Siddoway, J.
WE CONCUR:
Fearing,-M ,.::r;
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