IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,

v. CALEB JOEL STANLEY, Appellant. ) ) ) ) ) ) ) ) ) No. 36070

- 9

- III

UNPUBLISHED OPINION

P ENNELL , J.

— Caleb Joel Stanley appeals two fi rst degree assault convictions, arguing a violation of his right to jury unanimity
. We affirm
. FACTS Nikia Gabriel was fueling up a Cadillac Escalade owned by his godfather, Jacob Level, when he was approached by an acquaintance named Caleb Stanley. Mr. St anley was complimentary of the Escalade, and stated he “‘ want[ed] a ride. ’” Re port of Proceedings (Apr. 9, 2018) at 143. Mr. Gabriel did not agree to give him one. Mr. Stanley 

### FILED OCTOBER 24, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 36070

- 9

- III State v. Stanley

2 walked into the gas station’s convenience store while Mr. Gabriel continued pump ing gas
. When Mr. Stanley returned, he “started to move stuff out o f the [ vehicle ’s] passenger seat.” Id
. Mr. Gabriel asked what Mr. Stanley was doing, and then told him, “‘ Dude, I didn’t t ell you I’m giving you a ride. I didn’ t say I could give you a ride
. This is not my vehicle and I don’t have time for thi s; I got to get it back home. ’” Id
. at 144
. Mr. Stanley grabbed a blue wrench from the passenger seat and responded:

“‘ Well, if you don’t give me a ride I’m going to take your ride. ’” Id
. Mr. Gabriel re lented. He told Mr. Stanley he wa s going back to his residence. At the time, Mr. Gabriel lived at the same apartment complex as the vehicle ’s owner, Mr. Level. During the ride, Mr. Stanley repeatedly stated his d esire to acquire the Escalade. Mr. Gabriel a rrived at the apartment complex and entered the building; Mr. S tanley remained in the vehicle
. Mr. Gabriel contacted Mr. Level and said , “ ‘Look, Caleb [Stanley] is down in your vehicle , and he’s not getting out.’ ” Id . at 146 ; see also id
. at 174. Mr. Lev el and Mr. Gabriel ran ou tside to confront Mr. Stanley. As he approached the vehicle , Mr. Level “could see [Mr. Stanley] . . . rummaging around [ in the vehicle ’s] center console.” Id
. at 175. Mr. Level confronted Mr. Stanley. He demanded Mr. StanleyNo. 36070

- 9

- III State v. Stanley

3 “‘ get the F out of my vehicle. I know what you’re doing. ’” Id
. Mr . Level saw Mr. Stanley was holding what appeared to be on e of Mr. Level’s pill bottles. He instruct ed Mr. Stanley to put it back. Mr. Stanley responded by grabbing Mr. Level’s hair and stating,

“‘ [t] his is mine, bitch
. ’” Id
. He then began spraying Mr. Level with bear mace
. Mr. Level started screa ming for help
. Mr. Gabriel responded by putting Mr. Stanley in a chokehold until Mr. Stanley ceased his attack on Mr. Level. After Mr. Gabriel released him , Mr. Stanley started “unload[ing] the entire can of bear mace” in the alley wh ere the fight had taken place. Id
. at 147

- 48. Mr. Gabriel was caught in the fog of mace unleashed by Mr. Stanley. After the mace can was empty, Mr. Stanley threw it at Mr. Ga bri el, hitting him in the eye. “After that
. . . [Mr. Stanley] acted like he was going to advance on [Mr. Gabriel] again, and [Mr. Gabriel] just hugged him and [t hey] both fell to the ground.” Id
. at 148. Mr. Gabriel repelled Mr. Stanley after a short scuffle
. Mr. Stanl e y ran away and was later arrested. He did not succeed in acquiring the Escalade. The State charged Mr. Stanley with one count of first degree extortion, one count of resisting arrest, and two counts of second degree assault

— one for each victim
. The State alleged two alternative s for each of the second degree assaults. I t alleged Mr. Stanley committed assault ( 1) with intent to commit a felony and (2) by administering

a poison or other destructive noxious substance . RCW 9A
. 36.021(1)(d)

- (e).No. 36070

- 9

- III State v. Stanley

4 The c ase proceeded to trial. A jury acquitted Mr. Stanley of extortion , but convicted him of resisting arrest and both assault charges
. At sentencing, the trial court imposed $1,100 in legal financial obligations (LFOs) , including a $200 criminal filing fee, a $250 court

- appointed attorney fee, a $100 DNA 1 collection fe e, and a $50 jail booking fee. Mr. Stanley filed a declaration noting he had no assets or income; the court allowed hi m to appeal at public expense. Mr. Stanley appeals
. ANALYSIS Jury unanimity an d alternative means Washington’s criminal code specifies seven alternative means of committing second degree assault. RCW 9A.36.021(1). Mr. Stanley was charged with two: assault with intent to commit a felony and assault through use of a “destructive or no xious substance
. ” RCW 9 A .36.021(1)(d)

- (e)
. Where , as here, the defendant is charged with more than one alternative means of committing the same crime, t he State can avoid jury unanimity problems by introducing sufficient evidence to support each alleged al ternative
. State v. Owens , 180 Wn.2d 90 , 95, 323 P.3d 1030 (2014). The standard sufficiency analysis governs our review : we ask whether the evidence, viewed in the light

1 D eoxyribonucleic acid
.No. 36070

- 9

- III State v. Stanley

5 most favorable to the State, could justify a rational juror finding guilt beyond a rea sona ble doubt as to each alternate means. State v. Armstrong , 188 Wn.2d 333, 341, 394 P.3d 373 (2017)
. Mr. Stanley does not dispute the jury was presented with sufficient evidence to find assault by administration of a noxious substance. His sole complaint is that the evidence was insufficient to justify a finding of guilt by means of intent to commit another felony. We therefore focus on the law and evidence relevant to that claim. 2 The evidence easi ly supports a jury finding Mr. Stanl e y assaulted Mr. Gabr iel and Mr. Level with intent to commit vehicle theft. Theft of a motor vehicle is a felony involving the wrongful acquisition or unauthorized exertion of control over a motor vehicle. RCW 9A.56. 020(1), .065
. Mr. Stanl e y repeatedly made clear his aggressiv e
w ords and conduct against Mr. Gabriel and Mr. Level were motivated by a desire to

2 Mr. Stanley’s assault charges alleged he committed assault with intent to commit two different felonies: (1) extortion and (2) theft of a motor vehicle. The parties fail to clarify whether th os e two intended felo nies are themselves alternative means (thus necessitating sufficient proof as to each) or whether they are definitional means within a means (thus requiring sufficient proof as to only one intended felony). See State v. Smith , 159 Wn.2d 778, 784

- 90, 154 P. 3d 873 (2007) (explaining the alternative means doctrine has not been extended to definitional means within a means). We need not resolve this issue as the evidence was sufficient as to each intended felony
.No. 36070

- 9

- III State v. Stanley

6 illegally obtain the Escalade. The e vidence was therefore sufficient to find Mr. Stanley acted with the intent to commit the felony of theft of a motor vehicle. The extort ion analysis is a bit more complex. Extortion is a felony that requires intent to obtain property or services by means of threat. RCW 9A.56.110

- . 130. The threat can be indirect or direct, RCW 9A.04.110(28), and may be “implied by words or conduct.” State v . Farnsworth , 185 Wn.2d 768, 771, 374 P.3d 1152 (2016). Wh ile robbery involves an immediate threat of harm, extortion happens when a threat extends into the future. City of Seattle v. Allen , 80 Wn. App. 824, 831, 911 P.2d 1354 (1996). As previously noted, Mr. Stanley used threatening words and conduct against Mr. Gabriel and Mr. Level while trying to illegally obtain the Escalade. Because Mr. Stanley was an acquaintance of Mr. Gabriel and Mr. L evel, the jury could infer Mr. Stanley’s words and conduct did n ot merely threaten immediate harm. See id . at 832 . Instead, by verbally threatening and physically assaulting the two men, the jury could infer that Mr. Stanley intended to send a message that if the Escalade was not permanently released to Mr. Stanley, ad ditional assaultive conduct would continue into the future. See i d . This was suffi cient for the jury to find Mr. Stanley acted with intent to commit extortion as to each of the two victims
.No. 36070

- 9

- III State v. Stanley

7 The fact that the jury acquitted Mr. Stanley of extortion has no b earing on our analysis. A jury can refuse to convict regardless of whether the State has presented sufficient evidence to justify a guilty verdict. Furthermore, Mr. Stanley’s assault charge only involved proof of intent to commit extortion; a completed cri minal act was unnecessary. Thus, the jury’s acquittal on the extortion count does not suggest the State presented insufficient evidence that Mr. Stanley committed assault with intent to commit extortion. L

FO s Citing 2018 amendments to Washington’s LFO laws 3 and State v. Ramirez , 191 Wn.2d 732, 426 P.3d 714 (2018), Mr. Stanley requests we strike hi s $200 criminal filing fee, $50 booking fee, and $250 court
- appointed attorney fee on the basis of indigence
. He also asks that his $100 DNA collection fee be str u ck because his sample is already on file. The 2018 LFO amendments came into effect approximately two months after Mr. Stanley’ s sentencing
. Ramirez was decided after that. Mr. Stanley is correct that, under the terms of the law now in effect, he is e ntitle d to relief from the $200 criminal filing fee, $250 court

- appointed attorney fee, and $100 DNA collection fee
. Although at the time of sentencing the trial court may have exercised

3 L AWS OF 2018, c h. 269
.No. 36070

- 9

- III State v. Stanley

8 valid discretion to impose discretionary LFOs based on Mr. Stanley’s abilit y to work, the law has since changed. Under current law , certain LFOs “ may not” be imposed against a defendant who is “indigent” at the time of sentencing as that term is defined by RCW 10.101.010(3)(a)

- (c). RCW 9.94A.760(1) ; s ee also RCW 10.01.160(3); RCW 36.18.020(2)(h). Furthermore, Ramirez held that a defendant like Mr. Stanley, whose case was pending direct review at the time of the effective date of the 2018 LFO amendments , is entitled to the benefit of the 2018 law
. Ramirez , 191 Wn.2d at 747

- 48
. The record here indicates that, at the time of sentencing, Mr. Stanley was indigent as defined by RCW 10.101.010(3) (c) . Thus , he is entitled to relief from the criminal filing fee and court

- appointed attorney fee. State v. Smith , 9 Wn. App. 2d 122, 126

- 27, 442 P.3d 265 (2019) ; RCW 36.18.020(2)(h); RCW 10.01.160(3)
. In addition, Mr. Stanley’s recent felony history indicates the State has previously collected a DNA sample. As a result , the $100 DNA collection fee is not required

. RCW 43.43.7541. The $50 booking f ee merits different treatment. The booking fee is authorized by RCW 70.48.390. This statute w as unaltered by the 2018 LFO amendments
. Resultantly, his indigence does not entitle Mr. Stanley to relief from the booking fee.No. 36070-9-III State v. Stanley

CONCLUSION The judgment of conviction is affirmed. We remand with instructions to strike the $200 criminal filing fee, $250 court-appointed attorney fee, and $100 DNA collection fee from the judgment and sentence. 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, J. WE CONCUR:

( ..,.._r\ r.<..t- 

# C) ""''-/, [.. ~· Lawrence-Berrey, C.J. 

### I Fearing, J.

9