State Of Washington v. Isabel Rocha, Jr. ( 2020 )

FILED
MARCH 24, 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. 36604-9 -III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ISABEL * ROCHA, JR, )
)
Appellant. )
P ENNELL, C.J. — Isabel Rocha, Jr. appeals his Spokane County 2019 judgment and
sentence imposed following his guilty plea to one count of first degree rape of a child and
one count of first degree child molestation. Mr. Rocha challenges a community custody
condition and the imposition of interest on his legal financial obligations (LFOs). We
accept the State’s concession as to the legal financial obligations, and remand for
correction of the judgment and sentence.
FACTS
The State charged Mr. Rocha with rape of a child in the first degree and child
molestation in the first degree based on allegations of inappropriate sexual contact with the
minor daughters of Mr. Rocha’s neighbors. Mr. Rocha pleaded guilty after the State agreed
to amend the charges to reflect their commission against only one child.
At sentencing, the court imposed conditions of community custody, including a
condition that Mr. Rocha “not frequent parks, playgrounds, schools or other locations
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State v. Rocha
frequented by minors.” Clerk’s Papers (CP) at 120 (Condition 12). The court also assessed
$600 in LFOs consisting of a victim assessment and a DNA (deoxyribonucleic acid)
collection fee, but reserved the issue of restitution. The judgment and sentence contained a
boilerplate paragraph providing that the LFOs imposed in the judgment “shall bear interest
from the date of the judgment until payment in full.” Id. at 106. Mr. Rocha timely appeals.
ANALYSIS
Mr. Rocha initially argues that the interest accrual provision must be struck from his
judgment and sentence based on State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018).
The State concedes, and we agree.
House Bill 1783, which became effective June 7, 2018, prohibits trial courts from
imposing discretionary LFOs on defendants who are indigent at the time of sentencing.
LAWS OF 2018, ch. 269, § 6(3); Ramirez, 191 Wash. 2d at 746. Ramirez held that the
amendment applies prospectively and is applicable to cases pending on direct review and
not final when the amendment was enacted. Among the changes was an amendment to RCW
10.82.090(1) to provide that “[a]s of June 7, 2018, no interest shall accrue on
nonrestitution legal financial obligations.” LAWS OF 2018, ch. 269, §§ 1, 17(2)(h), 18.
The parties agree that Ramirez controls Mr. Rocha’s appeal. He was indigent
throughout the trial court proceedings and remains indigent on appeal. Accordingly, the
interest accrual provision should be struck pursuant to Ramirez. Given that the corrections
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will involve no exercise of the court’s discretion, Mr. Rocha’s presence is not required at
any hearing to make this ministerial correction. See State v. Ramos, 171 Wash. 2d 46, 48,
246 P.3d 811 (2011).
Mr. Rocha also argues that community custody condition 12, prohibiting him from
frequenting “locations frequented by minors,” is unconstitutionally vague and must be
modified.
Community custody conditions are unconstitutionally vague if they fail to provide
ordinary people fair warning of the proscribed conduct, or fail to establish standards that are
definite enough to protect against arbitrary enforcement. State v. Bahl, 164 Wash. 2d 739,
752-53, 193 P.3d 678 (2008). Conditions of community custody may be challenged for the
first time on appeal and, where the challenge involves a legal question that can be resolved
on the existing record, preenforcement. State v. Padilla, 190 Wash. 2d 672, 677, 416 P.3d
712 (2018) (citing Bahl, 164 Wash. 2d at 744). This court reviews community custody
conditions for abuse of discretion. Id. (citing State v. Irwin, 191 Wash. App. 644, 652, 364
P.3d 830 (2015)). A trial court necessarily abuses its discretion if it imposes an
unconstitutional community custody condition, and we review constitutional questions de
novo. State v. Wallmuller, 194 Wash. 2d 234, 238, 449 P.3d 619, 621 (2019).
Several appellate decisions in recent years have considered vagueness challenges to
community custody conditions similar to the one at issue here. See, e.g., State v. Irwin,
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191 Wash. App. 644, 652, 655, 364 P.3d 830 (2015) (condition reading “‘Do not frequent
areas where minor children are known to congregate, as defined by the supervising
[community custody officer]’” was unconstitutionally vague in the absence of clarifying
language or an illustrative list of prohibited locations); State v. Norris, 1 Wash. App. 2d 87,
95, 404 P.3d 83 (2017), reversed in part on other grounds by State v. Nguyen, 191
Wash. 2d 671, 425 P.3d 847 (2018) (accepting State’s concession that condition stating “‘Do
not enter any parks/playgrounds/schools and or any places where minors congregate’” was
unconstitutionally vague); State v. Johnson, 4 Wash. App. 2d 352, 360, 421 P.3d 969 (2018)
(upholding condition requiring defendant to avoid “‘places where children congregate to
include, but not limited to: parks, libraries, playgrounds, schools, school yards, daycare
centers, skating rinks, and video arcades,’” and noting that a clarifying list of prohibited
places need not be exclusive).
The Washington Supreme Court recently considered a similar condition in
State v. Wallmuller, 194 Wash. 2d 234, 237, 449 P.3d 619 (2019). The condition at issue
provided that the defendant “‘shall not loiter nor frequent places where children congregate
such as parks, video arcades, campgrounds, and shopping malls.’” A majority of the Court
held that although the phrase “where children congregate” was vague on its own, it was
sufficiently specific when modified by a nonexclusive list of places illustrating its scope.
Id. at 245.
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In reaching that decision, the Wallmuller Court distinguished the condition at issue
from the offending condition at issue in Norris, which prohibited the defendant from
“‘enter[ing] any parks/playgrounds/schools and or any places where minors congregate.’”
Norris, 1 Wash. App. 2d at 95. Division One of this court struck the phrase “‘and or any
places’” so that the condition read “‘Do not enter any parks/playgrounds/schools where
minors congregate. ’” Id. at 95-96. The Wallmuller Court noted that although the Norris
opinion contained no analysis of the court’s reason for accepting the State’s concession as
to vagueness, its revision to the condition suggests that the court was “concerned with the
alternative ‘and or’ phrasing that arguably left the phrase, ‘where children congregate’
unmodified.” Wallmuller, 194 Wash. 2d at 240. The Court noted that this was consistent with
other Washington cases and at least one federal case, United States v. Peterson, 248 F.3d
79, 86 (2d Cir. 2001) (holding condition prohibiting defendant from “being on any school
grounds, child care center, playground, park, recreational facility or in any area in which
children are likely to congregate” is vague because it is “not clear whether the clause ‘in
which children are likely to congregate’ applies only to ‘any area’ or to the other places
listed”).
Mr. Rocha contends that the condition at issue does not satisfy the Wallmuller
standard because the use of the disjunctive “or” language to impose a catch-all prohibition
is not limited by the nonexclusive list of places and the condition is therefore overly vague,
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similar to Norris and Peterson. The State contends that Peterson is distinguishable because
the condition specifically states “‘or other locations frequented by minors,’” and the use of
“‘other’” clearly means the condition is in addition to the enumerated places and therefore
the illustrative list cannot be interpreted as being divorced from the general condition,
unlike Peterson. Br. or Resp’t at 2-3 (emphasis added).
At least one other state court has approved the use of similar language. See Wilfong
v. Commonwealth, 175 S.W.3d 84, 101 (Ky. Ct. App. 2004) (rejecting vagueness challenge
to condition prohibiting defendant from “residing near, visiting or being in or about parks,
schools, day care centers, swimming pools, beaches, theaters, or other places where
children congregate,” noting that the prohibition was sufficiently precise because “[a]
commonsense reading . . . suggests an interplay between the several places listed and the
reference to locations where children congregate”) (emphasis added). However, there
appear to be no federal cases discussing conditions with similar “or other” language. It
further appears the Washington Supreme court has never considered whether the use of
“other” with the disjunctive “or” apparently disapproved of by Norris renders a condition
sufficiently precise.
This court need not resolve this novel issue. The parties agree that remand is
necessary to strike the LFO interest accrual provision. Accordingly, we also direct the
superior court on remand to correct condition 12 to read “Do not frequent locations
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frequented by minors such as parks, playgrounds, and schools” to ensure compliance with
Wallmuller.
CONCLUSION
We agree with the parties that the LFO interest accrual provision must be struck
pursuant to Ramirez. We remand for the sentencing court to strike the interest provision
and to correct condition 12 to ensure compliance with the Supreme Court’s decision in
Wallmuller.
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.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Siddoway, J. Lawrence-Berrey, J.
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