Opinion
No. 35896-4-II.
October 16, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-01154-6, John F. Nichols, J., entered February 2, 2007.
Remanded by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Bridgewater, J.
Lucadio Aguilar-Torres appeals part of his sentence for first-degree child molestation. He argues that the trial court incorrectly imposed crime-related prohibitions and affirmative conditions on his community custody term that are unrelated to the offense of child molestation. The State concedes that the trial court erred when it imposed these sentencing conditions. Accepting the State's concession, we remand for resentencing.
FACTS
A jury found Lucadio Aguilar-Torres guilty of three counts of first-degree child molestation of his biological daughter. He had no prior sex offense convictions. His only prior conviction was in 1991 for drug transportation or sale, but that conviction "washed out," and, therefore, could not be considered. Neither at trial nor at sentencing did the State allege or establish that alcohol or deadly weapons were related to the circumstances of the crime.
The trial court sentenced Aguilar-Torres to concurrent sentences of 120 months to life for each of the three counts of first-degree child molestation. The court also imposed lifetime community custody with various conditions, including requiring Aguilar-Torres to take Antabuse, if his community corrections officer so directed, and prohibitions against (1) possessing or consuming alcohol, (2) visiting places where alcoholic beverages are the primary sale item, (3) possessing paraphernalia for the use of controlled substances, and (4) possessing, using, or owning deadly weapons. Aguilar-Torres did not object to the conditions of his community custody term.
"Antabuse" is a drug used to treat patients with alcohol dependencies.
Aguilar-Torres objects to these community custody conditions for the first time on appeal. The State concedes error.
Analysis
Aguilar-Torres argues that the trial court erred in imposing crime-related prohibitions relating to drug, alcohol, and paraphernalia and deadly weapon use and possession as affirmative conditions of his community custody term because these conditions are unrelated to his child molestation convictions. Except for the drug paraphernalia condition, the State concedes error.
See Aguilar-Torres's Judgment and Sentence, which lists the conditions the trial court imposed on his community custody term.
The State argues that the trial court had tenable grounds to impose the drug paraphernalia condition.
I. Standard of Review
Defendants can object to community custody conditions for the first time on appeal. State v. Jones, 118 Wn. App. 199, 204, 76 P.3d 258 (2003). We review sentencing conditions, including crime-related prohibitions, for abuse of discretion. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). A trial court abuses its discretion if it imposes a condition that was manifestly unreasonable or based on untenable grounds, including conditions unauthorized by law. Id.
A trial court may impose a sentence only if it is authorized by statute. State v. Barnett, 139 Wn.2d 462, 464, 987 P.2d 626 (1999). A trial court has the authority to impose crime-related prohibitions and affirmative conditions when a defendant commits certain crimes, including the crime of first-degree child molestation. RCW 9.94A.505(8); State v. Warren, 134 Wn. App. 44, 70-71, 138 P.3d 1081 (2006). But conditions that do not reasonably relate to the circumstances of the crime are unlawful, unless those conditions are explicitly permitted by statute. See Jones, 118 Wn. App. at 207-08.
II. Lawfulness of Community Custody Conditions The Sentencing Reform Act, under which the trial court sentenced Aguilar-Torres, provides in relevant part: Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). The court may also order the offender to participate in rehabilitative programs or otherwise perform 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.712(6)(a)(i) (emphasis added).
A. Alcohol-related Prohibitions
Two of Aguilar-Torres's community custody conditions are that he "shall not possess or consume alcohol" and he "shall not be in any place where alcoholic beverages are the primary sale item." Clerk's Papers (CP) at 64. He argues that the trial court lacked statutory authority to prohibit him from possessing alcohol or being in places that sell alcoholic beverages. See Jones, 118 Wn. App. at 207-08 (error to mandate alcohol counseling without evidence to indicate the requirement of alcohol counseling was crime related).
Aguilar-Torres acknowledges, and he does not challenge, that the trial court had authority to prohibit him from consuming alcohol while on community custody. RCW 9.94A.700(5)(d); Jones, 118 Wn. App. at 202. He does not challenge that part of the community custody alcohol-prohibition condition.
We accept the State's concession that these two conditions were not properly imposed by the trial court. Nothing in the record shows that alcohol contributed to Aguilar-Torres's child molestation offenses or that the conditions prohibiting him from possessing alcohol and being in places that sell alcohol were "crime-related."
Thus, unless the State comes forward on remand with evidence connecting Aguilar-Torres's alcohol use to his crime, the trial court should (1) modify the condition prohibiting alcohol possession and consumption to delete the possession prohibition, such that the condition prohibits only alcohol consumption; and (2) strike the condition prohibiting Aguilar-Torres from being in places that sell alcoholic beverages.
See the presentence report, where it says the "extent of his substance abuse" is "unknown." CP at 39. The State acknowledges in its Brief of Respondent that the trial court's alcohol and drug paraphernalia conditions appear to have been suggested by the Department of Corrections' portion of the presentence report; therefore, "[t]he State agrees with the defense that it may be appropriate to refer this back to the trial court for clarification" of the alcohol and drug paraphernalia conditions. Br. of Resp't at 2.
B. Antabuse Requirement
Aguilar-Torres's judgment and sentence also requires him to "take Antabuse per [his] Community Corrections Officer's direction, if so ordered." CP at 64. Aguilar-Torres argues that the trial court erred in imposing this condition because it appears to permit his Community Corrections Officer to require him to take Antabuse without a valid prescription. Although the State's brief does not explicitly respond to this argument, it concedes that nothing in the case or in the presentence report indicates that Aguilar-Torres has an alcohol problem. We agree.
But see n. 5, supra.
Thus, as with the previous alcohol-related community custody conditions, this Antabuse condition does not reasonably relate to the circumstances of Aguilar-Torres' child molestation offense. Accordingly, this condition is also erroneous and, unless the State produces supporting evidence on remand, the trial court should strike this Antabuse condition.
C. Prohibiting Possession of Paraphernalia
Aguilar-Torres next challenges the community custody condition prohibiting him from "possess[ing] any paraphernalia for the use of ingestion of controlled substances." CP at 64. RCW 9.94A.700(4)(c) authorizes a sentencing court to prohibit an offender from possessing or consuming controlled substances without a lawfully issued prescription. But there is no similar statute authorizing the trial court to prohibit a defendant from possessing or using lawful "paraphernalia" for any purpose, including to ingest controlled substances, regardless of whether a physician prescribed them for him.
If the defendant ingests or possesses controlled substances not prescribed by a physician, then the statutorily-authorized condition that he would be violating would be the condition prohibiting possessing or using the controlled substances themselves, not the paraphernalia.
The State agrees that this paraphernalia-possession condition requires clarification. But it also argues that a restriction on drug paraphernalia is nevertheless appropriate because of Aguilar-Torres's lack of cooperation during the sentencing process and his prior drug conviction. We disagree. Neither Aguilar-Torres's lack of cooperation nor his prior "washed out" drug conviction provide tenable grounds unless the record shows some connection between possession of paraphernalia and the child molestation crime. See, e.g., RCW 9.94A.700(e) authorizing impose of any crime-related condition. Although under RCW 9.94A.700(4)(c) the trial court might prohibit the use of drug paraphernalia (as defined in the Uniform Controlled Substances Act, RCW 69.50.102) to ingest controlled substances, no corresponding statute authorizes the trial court to prohibit mere possession of such paraphernalia, even if possessed with the intent to use it for ingestion of controlled substances.
Accordingly, we remand to the trial court to strike or to modify this condition.
See, e.g., RCW 69.50.412, which prohibits the use of drug paraphernalia to "introduce into the human body a controlled substance," with the exception of sterile syringes and needles.
D. Deadly Weapon Prohibition
One of the "standard" conditions included in Aguilar-Torres's judgment and sentence is that he "shall not possess, use or own firearms, ammunition, or deadly weapons. [The] Community Corrections Officer shall determine what those deadly weapons are." CP at 63 (emphasis added). Aguilar-Torres agrees that the trial court has the authority to prohibit him from possessing, using, or owning firearms and ammunition. But he argues that the trial court lacked authority to prohibit Aguilar-Torres from possessing deadly weapons and to delegate to his Community Corrections Officer the power to define "deadly weapons."
Aguilar-Torres also raises a constitutional challenge to the community custody condition prohibiting him from possessing, using, or owning a deadly weapon. He contends that the prohibition on "deadly weapons," as defined by RCW 9.94A.602, is unconstitutionally vague as applied. In light of our accepting the State's concession that the trial court lacked statutory authority to impose this deadly weapon prohibition condition, we do not reach the constitutional issue.
The State concedes that the trial court lacked statutory authority to allow Aguilar-Torres's CCO to define what type of deadly weapon Aguilar-Torres could not possess. Moreover, although RCW 9.41.045 prohibits convicted felons from possessing firearms, there is no similar statute prohibiting felons from possessing all potentially deadly weapons. Accepting the State's concession, we remand to the trial court to modify or to strike this deadly weapon condition.
RCW 9.41.045 already prohibits Aguilar-Torres from possessing firearms or ammunition. If, however, the trial court wishes to emphasize this restriction, it can modify the condition to correspond with the prohibitions in the statute by deleting the deadly weapon prohibition and the language allowing the CCO to define "deadly weapon."
III. Conclusion Accepting the State's concessions, we remand to the trial court (1) to strike or to modify the condition prohibiting Aguilar-Torres from possessing or consuming alcohol, depending on whether the State presents evidence linking alcohol to his crimes; (2) to strike the condition prohibiting him from being in a place where alcohol is the primary sale item, unless the State sufficiently connects Aguilar-Torres's presence in places where alcohol is sold to his crimes; (3) to strike the condition requiring him to take Antabuse, unless the State links alcohol abuse to his crimes; (4) to strike the condition prohibiting him from possessing controlled-substances paraphernalia; and (5) to strike the condition prohibiting him from possessing, using, or owning deadly weapons, regardless of whether or not his CCO defines what constitutes such deadly weapons, unless specifically tied to his crimes.
On remand, the trial court could consider substituting a prohibition against using paraphernalia to ingest illegal controlled substances, but such condition might be redundant with the general prohibition against consuming or possessing illegal substances.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, CJ. and BRIDGEWATER, J. concur.