Opinion
No. 26579-6-II c/w 27512-1-II
Filed: March 4, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County Docket No: 00-1-00529-4 Judgment or order under review Date filed: 10/20/2000
Counsel for Appellant(s), Joanne E. Dantonio, Stenberg Law Office, 707 Pacific Ave, Tacoma, WA 98402.
Counsel for Respondent(s), Timothy A. Drury, Kitsap Co Pros Ofc, Msc 35, 614 Division St, Port Orchard, WA 98366-4691.
Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Arnold Cruz appeals convictions of the manufacture of methamphetamine, possession of methamphetamine with intent to manufacture or deliver, and unlawful possession of a firearm in the first degree; he also challenges the order of restitution. He raises issues regarding the search warrant and jury instructions, as well as contending that the restitution order improperly charged him for losses and expenses unrelated to his crimes.
We affirm Cruz's convictions but reverse the restitution order, in part, and remand for the taking of additional evidence.
FACTS
This case began when Detective Jacob McMillen conducted an aerial surveillance flight and observed forty to fifty vehicles in various stages of disrepair at 2270 S.W. Lake Flora Road in Kitsap County. He followed up by approaching the property from the ground; again he observed several inoperable vehicles. McMillen then determined that Cruz, who McMillen believed to be the principal resident, did not have a license to operate a wrecking yard and that the Department of Licensing listed no vehicles registered to Cruz. Further, Kitsap County had not issued a wrecking yard license for the property. McMillen obtained a warrant to search the property for the operation of an unlicensed wrecking yard in violation of RCW 46.80.020; he included the above information in his supporting complaint and affidavit. The officers executing the warrant discovered Cruz and Tonja Stepper in a bedroom, a .22 caliber pistol on the bedroom closet shelf, and another .22 caliber pistol in Stepper's hand bag. According to Officer Roy Alloway's testimony, Cruz acknowledged that he owned the pistol and knew that it was illegal for him to have it because of his criminal history. The officers also found marijuana and methamphetamine in the bedroom and .22 rounds on Cruz's person.
Based upon this evidence, Alloway applied for a warrant to search for evidence of drug crimes. During the execution of this second search warrant, the officers found evidence of methamphetamine manufacturing, including numerous toxic-chemical containers.
The State charged Cruz with the manufacture of methamphetamine, possession of methamphetamine with intent to manufacture or deliver, and unlawful possession of a firearm in the first degree. The State sought sentencing enhancements on the first two charges, alleging that Cruz was armed with a firearm during their commission.
At a CrR 3.6 hearing, Cruz challenged the validity of the search warrants, arguing that there was no probable cause to support issuance of the first warrant regarding the unlicensed wrecking yard. Following the court's denial of Cruz's suppression motion, a jury found Cruz guilty of all three charges. The jury rejected the sentencing enhancements.
Following sentencing, the trial court ordered Cruz to pay restitution of $12,163.16 to his sister, Helen C. Quintanilla, the property owner.
Cruz now appeals his convictions and the restitution award.
DISCUSSION I. Probable Cause
Cruz claims that the affidavit and complaint for the first search warrant failed to establish probable cause, thus invalidating that warrant and the second warrant. Specifically, he argues that there was an insufficient showing that he was the primary resident of the subject property, and, thus, his lack of a license to operate a wrecking yard and the absence of any Department of Licensing vehicle registration in his name were irrelevant.
The State responds that there need not be a nexus between the suspect and the property to be searched, but merely `facts from which an ordinary, prudent person would conclude that a crime has occurred and evidence of a crime could be found at the location to be searched.' Amended Br. of Resp. at 4 (quoting State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998)). It argues that the affidavit contained such facts.
'A search warrant may issue only upon a determination of probable cause.' State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999) (citing State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995)). Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to show that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched. Thein, 138 Wn.2d at 140 (citing Cole, 128 Wn.2d at 286); State v. Dalton, 73 Wn. App. 132, 136, 868 P.2d 873 (1994).
We give great deference to the issuing judge's determination of probable cause; we review this determination for an abuse of discretion. State v. Olson, 73 Wn. App. 348, 354, 869 P.2d 110 (1994). And we test an affidavit supporting a search warrant in a commonsense, non-hypertechnical manner, resolving doubts in favor of the warrant's validity. State v. Kalakosky, 121 Wn.2d 525, 531, 852 P.2d 1064 (1993). Nonetheless, `mere conclusory statements in an affidavit cannot alone establish probable cause.' State v. Trasvina, 16 Wn. App. 519, 524, 557 P.2d 368 (1976).
Although McMillen's complaint stated that Cruz was the primary resident of the property to be searched, it did not describe the evidence supporting this allegation. But when we read the affidavit as a whole, it is clear that McMillen, a police officer, extensively investigated the case; he also mentioned in the complaint that he was relying on `information acquired through personal interviews with other law enforcement officers as well as personal observations.' Clerk's Papers (CP) at 28. Resolving doubts in favor of the complaint, we conclude that the issuing judge could weigh the assertion about Cruz's residency in conjunction with the more detailed facts stated in the complaint to find probable cause.
RCW 46.80.020 provides that '[i]t is unlawful for a person to engage in the business of wrecking vehicles without having first applied for and received a license.' Although there is neither a statutory nor a case law definition of `the business of wrecking vehicles,' the Legislature has declared that `it is necessary to regulate and license vehicle wreckers . . . doing business in Washington[.]' RCW 46.80.005 (emphasis added). And it has defined '[v]ehicle wrecker' as:
every person, firm, partnership, association, or corporation engaged in the business of buying, selling, or dealing in vehicles of a type required to be licensed under the laws of this state, for the purpose of wrecking, dismantling, disassembling, or substantially changing the form of a vehicle, or who buys or sells integral second-hand parts of component material thereof, in whole or in part, or who deals in second-hand vehicle parts.
An inoperable vehicle is presumed to be a wrecked vehicle: `it is presumed that a vehicle is a wreck if it has sustained such damage or deterioration that it may not lawfully operate upon the highways of this state.' RCW 46.80.010(6). Further, '[i]t is unlawful for a vehicle wrecker to keep a vehicle or any integral part thereof in any place other than the established place of business, designated in the certificate issued by the department, without permission of the department'; '[a]ll premises containing vehicles or parts thereof shall be enclosed by a wall or fence of such height as to obscure the nature of the business carried on therein.' RCW 46.80.130.
Finally, the Legislature provided that these statutes shall be liberally construed to the end that traffic in stolen vehicle parts may be prevented, and irresponsible, unreliable, or dishonest persons may be prevented from engaging in the business of wrecking vehicles or selling used vehicle parts in this state and reliable persons may be encouraged to engage in businesses of wrecking or reselling vehicle parts in this state.
McMillen stated in the complaint that (1) a double wide mobile home was located on the property; (2) to operate an illegal wrecking yard, it `takes time to establish an inventory of vehicles'; (3) during a surveillance flight, he observed `forty to fifty vehicles throughout the property that appeared to be in various stages of disassembly or otherwise inoperable in their present condition'; (4) upon driving to the property he observed `several inoperable vehicles on the property'; (5) no barriers, natural or man-made, obstructed the yard from outside view; (6) Cruz did not have a license to operate a wrecking yard; (7) the Department of Licensing listed no vehicles registered to Cruz; and (8) Trooper Don Blumberg, `who is charged with inspecting all licensed wrecking yards within district eight[,]' informed McMillen that he had never contacted or inspected the property and he provided McMillen with a list of all licensed wrecking yards in Kitsap County. CP at 28-30.
Reading the complaint in a non-hypertechnical manner and resolving doubts in favor of its validity, a reasonable person could conclude, given the number of vehicles on the premises in an inoperable state, that someone, possibly Cruz, was engaging in the business of wrecking vehicles without a license. The presence of a residence makes it unlikely that the vehicles were dumped and abandoned there. Further, it is reasonable to conclude that evidence of the crime of operating an unlicensed wrecking yard and the perpetrator could be found at the property. Thus, the trial court did not err in determining that probable cause supported the first search warrant.
II. Pretext
Cruz argues that McMillen applied for a warrant to search the property for evidence of an unlicensed wrecking yard merely as a pretext to search for evidence of other crimes. But the Washington Supreme Court has declined `to apply a pretext analysis to searches pursuant to a valid warrant.' State v. Lansden, 144 Wn.2d 654, 662, 30 P.3d 483 (2001). Thus, this argument is unpersuasive.
III. Unlawful Possession of a Firearm Jury Instruction
The trial court instructed the jury to convict Cruz of unlawful possession of a firearm in the first degree if it found that (1) he owned, possessed, or controlled a firearm (2) in the State of Washington; and (3) after having been convicted of residential burglary. The instruction did not require the jury to find that Cruz knew he owned, possessed, or controlled a firearm.
Cruz claims that the jury instruction deprived him of due process because it relieved the State of its burden of proving to a jury beyond a reasonable doubt that he knew that he owned, possessed, or controlled the firearm. Although RCW 9.41.040 does not expressly state that knowledge is an element of first degree unlawful possession of a firearm, case law so holds. State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000).
Cruz argues that (1) Anderson requires automatic reversal when a jury instruction fails to require proof of every element of the crime charged; (2) Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), does not alter Anderson's automatic reversal rule because Neder only establishes minimum due process requirements; and (3) the instruction's shortcoming was not harmless error. The State concedes that the instruction was erroneous but argues the error was harmless.
The Washington Supreme Court recently followed Neder's holding `that an erroneous jury instruction that omits an element of the offense is subject to harmless error analysis[.]' State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002). A constitutional error is harmless if "it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."' Brown, 147 Wn.2d at 341 (quoting Neder, 527 U.S. at 15 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967))). `When applied to an element omitted from, or misstated in, a jury instruction, the error is harmless if that element is supported by uncontroverted evidence.' Brown, 147 Wn.2d at 341.
The officers found .22 caliber rounds on Cruz's person and a .22 caliber pistol in the bedroom where they found him while serving the first search warrant. There also was testimony that Cruz told an officer that `he had a handgun and he knew that he shouldn't. . . .' because '[h]e has a [criminal] history that doesn't allow him to legally possess weapons.' Report of Proceedings (9/19/00) (RP) at 86-87. Thus, uncontroverted evidence established that Cruz knowingly possessed the firearm. Nor are we persuaded by Cruz's argument that under State v. Jones, 106 Wn. App. 40, 21 P.3d 1172 (2001), the erroneous jury instruction was prejudicial. Although Jones found a similar jury instruction to be harmful, the trial court gave that instruction before issuance of the Anderson case, which held that knowledge was an element of unlawful possession of a firearm in the first degree. 106 Wn. App. at 44-45. Thus, the defendant in Jones did not have a legal reason to present evidence of lack of knowledge and, consequently, the record was silent as to what evidence the defendant could have offered to controvert any proof of knowledge. 106 Wn. App. at 44-45. Thus, the reviewing court could not hold the deficient instruction to be harmless. Here, Cruz was tried more than a month after publication of Anderson. Given the undisputed evidence in this case of knowledge, the erroneous instruction was harmless.
IV. Accomplice Liability Jury Instruction
Cruz next claims that the court gave an erroneous accomplice liability instruction. He argues that Jury Instruction 10 provided that a person is an accomplice if he `aids or agrees to aid another person in planning or committing a crime[,]' instead of using the phrase `the crime' that appears in the accomplice liability statute. Pro Se Br. of App. 23, 24.
The State concedes error, but again contends that the error was harmless because the undisputed evidence established that Cruz knowingly possessed the firearm, making him guilty of the crime as a principal rather than as an accomplice.
The Brown court dealt with an identical jury instruction. It noted that '[i]n order to hold the error harmless, [it] must `conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error." Brown, 147 Wn.2d at 341 (quoting Neder, 527 U.S. at 19).
Here, the State presented evidence that officers found two .22 caliber pistols in the mobile home when executing the first search warrant, one on a closet shelf and one in Stepper's handbag, along with .22 caliber rounds on Cruz's person. There was also evidence that Cruz admitted having a handgun, knowing that doing so was illegal. And the State proved that Cruz had earlier been convicted of residential burglary.
There was no evidence that Stepper had been convicted of any serious offense defined by RCW 9.41.010(12) that would make it a crime for her to possess a firearm. Given this record, we are satisfied beyond a reasonable doubt that the jury found Cruz guilty of first degree unlawful possession of a firearm as a principal, not as an accomplice to Stepper's commission of the same crime. The erroneous instruction was harmless.
RCW 9.41.040(1)(a) provides that '[a] person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted in this state or elsewhere of any serious offense as defined in this chapter.' (emphasis added).
V. Restitution
Finally, Cruz claims that the State proved only $2,180 of the trial court's $12,163 restitution order and improperly included charges for expenses unrelated to the crime of which he was found guilty. The restitution order contained 8 items:
Demolition of Mobile Home, three travel $5,572.30 trailers and camper shell Sewer Drainage $243.45 Demolition Permit $25.00 Asbestos Report $315.00 Asbestos Removal $1,562.41 Removal of Vehicles $1,000.00 Sample Testing [including $765.00 for $2,945.00 asbestos sample testing] Paid Clean Up $500.00
Brief of App. (3/13/02) at 3. The trial court's authority to order restitution comes entirely from statute. State v. Moen, 129 Wn.2d 535, 543, 919 P.2d 69 (1996). We review a restitution order for an abuse of discretion. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999). A trial court abuses its discretion when its decision is manifestly unreasonable, exercised on untenable grounds, or imposed for untenable reasons. Enstone, 137 Wn.2d at 679-80.
Court-ordered restitution must `be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury.' RCW 9.94A.753(3). But this does not require `specific accuracy.' State v. Fleming, 75 Wn. App. 270, 274, 877 P.2d 243 (1994) (citing former RCW 9.94A.142(1) recodified as RCW 9.94A.753). `Evidence of damages is sufficient if it provides the trial court with a reasonable basis for estimating losses and requires no speculation or conjecture.' State v. Hahn, 100 Wn. App. 391, 399, 996 P.2d 1125 (2000). `The trial court may determine the amount of restitution `by either (1) the defendant's admission or acknowledgment or (2) a preponderance of the evidence." Hahn, 100 Wn. App. at 399 (quoting State v. Ryan, 78 Wn. App. 758, 761, 899 P.2d 825 (1995)). But there must be a causal relationship between the loss and the crime committed. Hahn, 100 Wn. App. at 399 "A causal connection exists when, `but for' the offense committed, the loss or damages would not have occurred." Hahn, 100 Wn. App. at 399 (quoting State v. Enstone, 89 Wn. App. 882, 886, 951 P.2d 309 (1998)).
At the restitution hearing, the State offered a Victim Impact Statement and Restitution Estimate. As the restitution hearing judge also presided at Cruz's trial, he was aware of and could consider facts proved at Cruz's criminal trial. State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000) (`In determining any sentence, including restitution, the sentencing court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.').
A. Sewer Drainage — $243.45
Cruz claims that the State presented no proof that this expense was related to his criminal convictions. We disagree.
The Victim Impact Statement and Restitution Estimate described the property damage as including contamination of the sewer, requiring it to be tested and drained. It included an invoice for a $243.45 charge for draining the sewer. Given Cruz's conviction for manufacturing methamphetamine, a particularly toxic process, and the presence of numerous toxic-chemical containers on the property, the State proved that it was more likely than not that Cruz's crime caused the need to drain the sewer.
B. Asbestos Reports $315.00; Asbestos Removal — $1,562.41
Again, Cruz argues that the State presented no evidence that these expenses were related to his criminal convictions.
Officers found items commonly associated with manufacturing methamphetamine in the mobile home's kitchen. The State advised the trial court that '[a]s a result of the drug activity in the home, it was condemned by the Department of Health, and the victim has effectually had to have the home destroyed.' RP (6/20/01) at 2. The Victim Impact Statement and Restitution Estimate declared that the mobile home had to be demolished and that asbestos had to be removed from the home. An attached invoice noted that demolition of the mobile home, trailer, and camper shell `will be scheduled when bid is accepted and asbestos team is finished. Asbestos team will get demo permit.' Supplemental CP at 97. And two other invoices prepared by the same asbestos contractor charged $315.00 for an inspection and report and $1562.41 for '[r]emoval of asbestos-containing building materials from residence located at 1170 Lake Flora Road[.]' Supplemental CP at 100.
Given this evidence, the trial court did not abuse its discretion in determining that Cruz's crime caused the need for demolition of the mobile home, a process that included asbestos testing and removal.
C. Demolition of the Mobile Home, Three Travel trailers, and a Camper
Shell — $5,572.30
Cruz claims that the three travel trailers and camper shell did not contain the majority of the evidence related to methamphetamine manufacturing and, thus, their demolition was not related to his criminal convictions. He argues that because the State did not prove the specific cost of demolishing only the mobile home, a cost he does not challenge, he cannot be charged for any of the demolition expenses.
There was no evidence connecting the camper shell to Cruz's crime and sparse evidence linking the travel trailers to the manufacture of methamphetamine. Officer Alloway testified that he found pill blister packs outside a travel trailer and that Cruz told him someone was manufacturing methamphetamine in that trailer. Another officer testified that he found a container of toluene and dismantled lithium batteries next to one of the trailers. Without further evidence connecting Cruz's crime to the demolition of the travel trailers and camper shell, or evidence establishing the separate cost of demolishing the mobile home, a sentencing court could not estimate demolition expenses connected to Cruz's crime without speculation or conjecture. Hahn, 100 Wn. App. at 400.
D. Removal of the Abandoned Vehicles — $1,000.00
Cruz also correctly argues that he was neither charged with nor convicted of any crime related to the vehicles removed from the property or the unlawful operation of a wrecking yard. The State conceded at oral argument that this item was not related to the crimes of which Cruz was convicted. Thus, it was error to include this $1,000.00 item.
E. Asbestos Samples — $765.00
Cruz argues that the asbestos samples taken at the property, as distinguished from the asbestos inspection and report associated with the mobile home, were not related to testing for toxic substances associated with methamphetamine manufacturing. The State presented no evidence explaining the link between this item and the manufacture of methamphetamine; nor did it specify the source of these asbestos samples. Thus, it was error to include this item as part of the restitution order.
F. Paid Cleanup — $500.00
The victim impact statement and restitution estimate listed $500.00 for `paid cleanup.' Supplemental CP at 95. Given the disruption of property and significant demolition resulting from Cruz's criminal activities, it is reasonable to find that the need for this cleanup resulted from Cruz's crime.
Accordingly, we affirm the conviction, reverse that part of the restitution order charging Cruz for the removal of vehicles from the property and for taking asbestos samples from the property, and remand for the taking of additional evidence to clarify the causal connections between the charges for the demolition of the travel trailers and camper shell and Cruz's crimes and, if necessary, for segregation of the cost of demolishing the mobile home from the other demolition costs.
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.
HUNT, C.J. and MORGAN, J., concur.