FILED 


APRIL 21, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


I IN THE COURT OF APPEALS OF THE ST ATE OF WASHINGTON 

DIVISION THREE 

I THE STATE OF WASHINGTON, ) 

) No. 31585-1-111 

Respondent, ) 

) 

v. 	 ) 

) 

MISAEL CORTES-PEREZ ) UNPUBLISHED OPINION 

(aka MISAEL VILLA), ) 

) 

Appellant. ) 

SIDDOWAY, C.J. - Misael Cortes-Perezl appeals his conviction ofthree counts of 

delivery ofmarijuana. He contends he was denied his constitutional right to present a 

defense when the trial court limited his cross-examination ofthe Walla WaHa police 

department's paid informant and that the trial court imposed a 12-month term of 

community custody in violation ofthe constitutional prohibition against ex post facto 

laws. 

1 In the record, we note different spellings for Mr. Cortes-Perez's last name. For 

the purposes ofthis opinion, we will use the spelling which appears on the amended 

information. 
No. 31585-1-111 

State v. Cortes-Perez 

We find no abuse of discretion in the trial court's limitations on crossexamination. But the community custody term imposed for these crimes committed in 

2008 was based, in error, on current law. We affirm the conviction and remand for 

resentencing. 

FACTS AND PROCEDURAL BACKGROUND 

In January 2008, Walla Walla police detectives conducted three controlled buys of 

marijuana from Misael Cortes-Perez using a paid informant, Jose Luis Gonzalez. Mr. 

Cortes-Perez was arrested immediately after the third controlled buy and was thereafter 

charged with three counts of involving a person under 18 in an unlawful controlled 

substance transaction. Several months later, Mr. Cortes-Perez pleaded guilty to one 

count and was sentenced to 51 months of confinement and 9 to 12 months of community 

custody. 

More than four years later, and after serving his time, Mr. Cortes-Perez's guilty 

plea was vacated based on his trial lawyer's failure to adequately advise him of the 

immigration consequences of his guilty plea.2 The State filed an amended information 

adding three charges of delivery of marijuana within 1,000 feet of the perimeter of a 

school grounds and the case proceeded to trial. 

2 On the first day of trial, the prosecutor explained to the court that Mr. CortesPerez had served his prison time, "[a]nd the only reason why we are back here now is 

because of this immigration issue." Report of Proceedings (RP) at 71. 

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No.31585-I-III 

State v. Cortes-Perez 

In a motion in limine raised at the outset oftrial, the prosecutor asked that the 

defense be precluded from questioning Mr. Gonzalez about his personal use ofmarijuana 

other than any use during the controlled buys, arguing that other use was irrelevant. Mr. 

Cortes-Perez resisted the motion, claiming that Mr. Gonzalez had admitted in a defense 

interview to weekly marijuana use over many years and the history of use (at least up to 

the effective date of Initiative 502, which legalized the possession and consumption of 

marijuana) was relevant to show both that he was in violation ofthe contract he had 

signed to serve as an informant and that he had access to marijuana from sources other 

than Mr. Cortes-Perez. On the latter point, Mr. Cortes-Perez told the court he wished to 

offer evidence ofMr. Gonzalez's habitual use ofmarijuana as a motive for Mr. Gonzalez 

to feign buys from Mr. Cortes-Perez so that he could continue to be paid and "keep on 

getting his drugs." RP at 27. Mr. Cortes-Perez acknowledged that officers involved in 

the controlled buys would testify that they searched Mr. Gonzalez before and after the 

controlled buys but argued that the officers never did a strip search, and "essentially ... 

what we would be showing is that the repeated ... use ofmarijuana gave him the 

opportunity to ... do the old switch-a-roo thing." RP at 26. 

The trial court ruled tentatively that evidence ofMr. Gonzalez's marijuana use 

unconnected in time to the controlled buys or appearance at trial had a prejudicial effect 

that outweighed its probative value. But it said it would entertain further argument of 

Mr. Cortes-Perez's objection to the limitation later in the trial. 

3 

No. 31585-I-III 

State v. Cortes-Perez 

Mr. Cortes-Perez's lawyer renewed his argument that the evidence should be 

admitted at least three additional times. He raised it the second morning of trial, 

identifying a further reason for wishing to examine Mr. Gonzalez: he informed the court 

that Mr. Gonzalez admitted when interviewed that he worked as a paid informant in part 

"because I want to get drugs offthe street[s]"-a motive for working as an informant that 

Mr. Cortes-Perez wanted to impeach. RP at 89. 

The trial court was not persuaded and ruled that Mr. Gonzalez could be examined 

as to his use of marijuana only at times close to the drug buys or close to the time of his 

testimony. The court indicated that under a balancing test "we're way off track" and that 

it viewed any violation ofthe informant contract as a collateral matter. RP at 93. As to 

reasons why Mr. Gonzalez might be working as an informant, the court responded that he 

would not have a problem with the lawyer asking. But he then warned, "To then say, 

well, I'm going to impeach you because, no, I think the real reason you're doing this is 

for some other reason, I think that's where we start to go off track here, and that's where I 

think it's just more prejudicial than it is probative of anything." RP at 100-01. 

Walla Walla police Sergeant Chris Buttice, who had been a detective at the time of 

the controlled buys in 2008, was called by the State thereafter and testified to the 

controlled buy procedure that was followed in the case of each purchase from Mr. CortesPerez. It included searching Mr. Gonzalez before the purchase to ensure that he had no 

money or drugs on him, providing him with bills whose serial numbers had been 

4 

No. 31585-I-III 

State v. Cortes-Perez 

recorded, taking him to within several blocks ofwhere he would be meeting Mr. CortesPerez, arranging for him to be observed by one or more detectives who could see that 

there was a hand-to-hand exchange, obtaining the acquired drugs from Mr. Gonzalez 

upon his return, and searching him again to ensure that he had no other drugs or money 

on him. 

Sergeant Buttke testified that on January 8, 2008 he had provided Mr. Gonzalez 

with $40 with which Mr. Gonzalez purchased an eighth of an ounce ofmarijuana, on 

January 9 he provided him with $80 with which Mr. Gonzales purchased a quarter ounce 

of marijuana, and on January 30 he provided him with $250 with which Mr. Gonzalez 

purchased an ounce. The sergeant testified that on the second occasion, he was close 

enough to see the money change hands and to see Mr. Cortes-Perez counting the bills as 

he walked away; on the third occasion, they actually arrested Mr. Cortes-Perez following 

the hand-to-hand exchange and recovered the $250 in recorded bills in his possession. 

On cross-examination, Sergeant Buttke acknowledged that informants are 

required to sign a contract stating that they will not violate any laws. He agreed with Mr. 

Cortes-Perez's lawyer that he would have stopped using Mr. Gonzalez as an informant if 

he had learned he was violating the law. He also agreed on cross-examination that Mr. 

Gonzalez was getting paid anywhere from "$50 to $100 to $200, depending on what it 

was that he was purchasing," but added that "$200 would be an extraordinary 

circumstance. That was not the norm." RP at 186. 

5 

No.31585-I-III 

State v. Cortes-Perez 

During Sergeant Buttice's testimony, an objection by the State led to excusing the 

jury, and the trial court and the lawyers engaged in their third extended discussion ofthe 

defense's desire to present evidence ofMr. Gonzalez's drug habit in order to show a 

motive to feign drug buys from Mr. Cortes-Perez. The trial court expressed its view that 

the theory that Mr. Gonzalez would get marijuana from a third party, not smoke it but 

"keister" it to evade search, produce the keistered marijuana following the ostensibly 

controlled buy, and then use the cash he was paid as an informant to buy other marijuana 

that he would smoke, "just defies logic." RP at 202. Later, the court observed: 

There again, you just lose me. He just gave the police an ounce of 

marijuana, worth $250, and you're saying he's doing it for the money[?] 

He gave away the $250, too. 

RP at 297. The court refused to reconsider its order excluding the evidence. 

When the State called Mr. Gonzalez as a witness, he admitted he began working 

with police after being caught with marijuana but had become a paid informant by the 

time he engaged in the three controlled buys from Mr. Cortes-Perez. In cross-examining 

Mr. Gonzalez, defense counsel asked if Mr. Gonzalez shared Detective Buttice's desire to 

take drugs offthe streets and Mr. Gonzalez agreed that was something he wanted. 

During a recess following that testimony, defense counsel argued that Mr. 

Gonzalez opened the door to inquiry into his drug use by agreeing that he shared thenDetective Buttice's desire to get drugs offthe streets. Consistent with its prior ruling that 

6 

No. 31585-1-111 

State v. Cortes-Perez 

it would not allow a setup,3 the court did not find that any door had been opened and 

cautioned defense counsel, "Once 1 made a ruling, 1 made a ruling. 1 don't want you to 

look for ways to get around it." RP at 325. 

Finally, and through a subsequent offer ofproof outside the presence ofthe jury, 

Mr. Cortes-Perez's lawyer elicited testimony from Mr. Gonzalez that he once told the 

detectives with whom he was working that he used marijuana weekly. Mr. Gonzalez 

claimed not to remember when. Mr. Cortes-Perez argued that he should be allowed to 

present evidence ofMr. Gonzalez's weekly habit to impeach Sergeant Buttice's 

testimony that he had been unaware Mr. Gonzalez was violating any laws, and would not 

have used him ifhe had known. The court again refused to allow the questioning. 

The jury found Mr. Cortes-Perez guilty of three counts of delivery ofmarijuana. 

The court sentenced Mr. Cortes-Perez to 18 months confinement and imposed a 

community custody term of 12 months. Mr. Cortes-Perez appeals. 

3 The court had told defense counsel: 

[W]e'll see ifthe door is opened to impeach a statement like, ["]well, it is 

just to get drugs off the street.["] And I'm not going to let you ... set it up 

yourself to introduce a statement like that, and then impeach it in that 

manner." 

RP at 92. 

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No. 31585-1-III 

State v. Cortes-Perez 

ANALYSIS 

I. Limitation on cross-examination ofthe paid informant 

Mr. Cortes-Perez's first assignment of error is that,the trial court denied his 

constitutional right to present a defense by improperly limiting his examination ofMr. 

Gonzalez. 

State rule makers have broad latitude under the United States Constitution to 

establish rules excluding evidence from criminal trials, but "[t]his latitude ... has limits. 

'Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in 

the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the 

Constitution guarantees criminal defendants "a meaningful opportunity to present a 

complete defense."'" Holmes v. South Carolina, 547 U.S. 319, 324,126 S. Ct. 1727, 

164 L. Ed. 2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 

2142,90 L. Ed. 2d 636 (1986)). 

Evidentiary rules can impermissibly abridge a criminal defendant's right to present 

a defense, but only if they are'" arbitrary or disproportionate' and 'infringe[ ] upon a 

weighty interest ofthe accused.'" State v. Rafay, 168 Wn. App. 734, 796,285 P.3d 83 

(2012) (alteration in original) (internal quotation marks omitted) (quoting United States v. 

Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998)), review denied, 

176 Wn.2d 1023, cert. denied, 134 S. Ct. 170, 187 L. Ed. 2d 117 (2013). "The Supreme 

Court has generally found such an abridgment only when the evidentiary ruling 

8 

No. 31585-1-III 

State v. Cortes-Perez 

effectively prohibited the substantive testimony ofthe defendant on matters relevant to 

the defense or the testimony of a percipient witness." Id. (citing examples). The 

constitutional concern, then, is with evidence that is relevant but excluded by rules that 

serve no legitimate purpose or that are disproportionate to the ends they are asserted to 

promote. Washington v. Texas, 388 U.S. 14,23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 

(1967). Article I, section 22 ofthe Washington Constitution guarantees criminal 

defendants a right to present testimony in their defense that is equivalent to the right 

guaranteed by the United States Constitution. See State v. Hudlow, 99 Wn.2d 1,659 P.2d 

514 (1983). 

Mr. Cortes-Perez frames his assignment of error in constitutional terms but then 

fails to articulate a constitutional challenge to any state evidentiary rule or to its 

application to particular evidence. He argues only that the evidence ofMr. Gonzalez's 

marijuana use was relevant, was admissible under ER 404(b), was admissible under ER 

607, and was admissible for impeachment purposes. Since he is challenging only the trial 

court's application of state evidence rules rather than the rules themselves, he has not 

sufficiently presented any issue ofdue process. See RAP 1O.3(a)(6). 

We review a trial court's decision to admit or exclude evidence for abuse of 

discretion. Diaz v. State, 175 Wn.2d 457, 462, 285 P.3d 873 (2012). Discretion is 

abused if it is exercised on untenable grounds or for untenable reasons. State ex rei. 

Carrollv. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). 

9 

No. 31585-1-111 

State v. Cortes-Perez 

Although the rules of evidence allow some attacks on character and some 

impeachment of credibility, they impose limitations on such evidence even where the 

evidence is arguably relevant. As Professor Edward J. Imwinkelried has explained, 

Ideally, we want the jury to: use admitted items of evidence as proof of 

only the factual propositions the judge admits them to prove, ascribe the 

proper probative weight to each item of evidence, and concentrate on the 

historical issues in dispute in the case. 

EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS, § 501 at 211 (9th ed. 2015). To 

that end, Prof. Imwinkelried has described the federal rules of evidence, on which the 

Washington evidence rules are largely patterned, as "empower[ing] the judge to exclude 

technically relevant evidence which realistically poses a danger to this model." Id. at 

212. 

In this case, ER 403 and other principles that limit character evidence and 

impeachment to its proper roles were reasonably applied by the trial court. 

ER 404(b); Evidence ofMotive 

Mr. Cortes-Perez first contends that the trial court erred by not admitting evidence 

ofMr. Gonzalez'S prior marijuana use under ER 404(b) to show motive, intent and 

opportunity to fabricate marijuana buys from Mr. Cortes-Perez in order to make money to 

support his weekly drug habit. 

The trial court viewed the notion that Mr. Cortes-Perez got marijuana that he 

craved from a third party, so he could pretend to get it from Mr. Cortes-Perez, so that he 

10 

No. 31585-1-111 

State v. Cortes-Perez 

could get paid, so that he could buy the marijuana he craved from a third party and smoke 

it, as implausible. Had a dubious theory of defense not gone hand-in-hand with evidence 

of illegal drug use by the State's witness, the court might have allowed Mr. Cortes-Perez 

to present his theory and let the jury decide for itself. Under ER 404(b), however, the 

trial court was required to engage in a well-settled analysis before admitting evidence of 

this other crime, wrong, or act by Mr. Gonzalez. 

Evidence of a person's other bad acts is never admissible to prove the character of 

a person to show that he acted in conformity with his character on a particular occasion. 

State v. Gresham, 173 Wn.2d 405,420,269 P.3d 207 (2012). But evidence ofa person's 

other acts may be admissible for other purposes, including to prove motive, opportunity, 

or intent. Nothing in the text ofER 404(b) limits its application to prior misconduct of a 

party. 

To satisfy itself that evidence ofprior misconduct is not being employed for the 

purpose forbidden by ER 404(b), the trial court must, before admitting such evidence, 

"(1) find by a preponderance ofthe evidence that the misconduct occurred, (2) identify 

the purpose for which the evidence is sought to be introduced, (3) determine whether the 

evidence is relevant to prove an element ofthe crime charged, and (4) weigh the 

probative value against the prejudicial effect." State v. Yarbrough, 151 Wn. App. 66, 81­

82,210 P.3d 1029 (2009) (citing State v. Thang, 145 Wn.2d 630,642,41 P.3d 1159 

(2002)). 

11 
No.31585-I-III 

State v. Cortes-Perez 

In the view ofthe trial court, Mr. Cortes-Perez's proposed evidence ran into 

trouble at the third and fourth steps ofthe analysis. While the evidence was ostensibly 

offered for intent, motive, and opportunity, the court found the defense theory too 

implausible to support true relevance for any ofthose identified purposes. And even if 

theoretically relevant, the trial court concluded that the limited relevance was outweighed 

by the prejudicial effect ofthe evidence. We find no abuse of discretion in the trial 

court's application ofER 404(b). 

ER 607 and 608: Impeachment by Specific Instances ofConduct 

Mr. Cortes-Perez next argues that Mr. Gonzalez's marijuana use was admissible 

under ER 607, which provides, "The credibility of a witness may be attacked by any 

party, including the party calling the witness." He argues that the marijuana use 

demonstrated Mr. Gonzalez's ongoing violation of his informant contract, a matter 

relevant to his credibility. 

ER 607 makes the "relatively narrow point" that even the party calling a witness 

may impeach him or her; it is the rules following ER 607, and in a few instances case 

law, that regulate methods ofimpeachment. 5A KARL B. TEGLAND, WASHINGTON 

PRACTICE: EVIDENCE LAW AND PRACTICE § 607.1 at 378 (5th ed. 2007). Mr. CortesPerez's argument that he should have been allowed to use Mr. Gonzalez's violation ofthe 

informant contract to demonstrate his lack of credibility is governed by ER 608(b), 

addressing when specific instances of conduct can be offered to attack credibility. 

12 

No. 31585-1-III 

State v. Cortes-Perez 

ER 608(b) provides that such instances may, "in the discretion ofthe court, if 

probative of truthfulness or untruthfulness, be inquired into on cross examination." Not 

every instance of even a key witness's misconduct is probative of a witness's truthfulness 

or untruthfulness under ER 608(b). State v. O'Connor, 155 Wn.2d 335, 350, 119 P.3d 

806 (2005). An instance of dishonesty can be collateral and not relevant to the guilt 

issues in a case. State v. Griswold, 98 Wn. App. 817, 831, 991 P.2d 657 (2000), 

abrogated on other grounds by State v. DeVincentis, 150 Wn.2d 11, 74 P.3d 119 (2003). 

In exercising its discretion, a trial court properly considers both (1) whether the instance 

of misconduct is relevant to the witness's veracity on the stand and (2) whether it is 

germane or relevant to the issues presented at trial. O'Connor, 155 Wn.2d at 349. The 

trial court should be reversed only if no reasonable person would have decided the matter 

as the trial court did. Id. at 351 (citing State v. Thomas, 150 Wn.2d 821, 856, 83 PJd 

970 (2004)). 

The State argued that since the Walla Walla police department's contract 

prohibited violating laws while working for the police in an informant capacity, Mr. 

Gonzalez "by the letter ofthe contract ... complied with the contract." RP at 354. And 

when the court commented on the application ofER 608, Mr. Cortes-Perez's trial lawyer 

stated, "Just so the Court has a heads-up as to where we are coming from, we wouldn't be 

offering it [the evidence ofMr. Gonzalez's personal marijuana usage or contract 

. violation] under Evidence Rule 608." RP at 25. Given the disagreement over whether 

13 

No. 31585-1-111 

State v. Cortes-Perez 

the contract was violated, its collateral relationship to the prosecution, and Mr. CortesPerez's disavowal of reliance on ER 608(b), we find no abuse of discretion. 

Impeachment by contradiction 

Mr. Cortes-Perez next argues that he should have been allowed to offer evidence 

ofMr. Gonzalez's marijuana use as contradicting and thereby impeaching testimony of 

both Mr. Gonzalez and Sergeant Buttice. 

He wished to use the evidence of drug use to impeach Mr. Gonzalez's agreement 

with defense counsel's leading question about how Mr. Gonzalez, like Sergeant Buttice, 

wanted to "tak[e] drugs offthe streets." RP at 321. The trial court had warned the 

defense that it would not allow it to elicit Mr. Gonzalez's agreement with that lofty 

motive and then impeach him with otherwise inadmissible evidence. It did not abuse its 

discretion. Cf State v. Howard, 127 Wn. App. 862, 869, 113 P.3d 511 (2005) (criminal 

defendant may not call a witness as a subterfuge to place before the jury evidence that is 

otherwise inadmissible). 

Finally, the trial court did not abuse its discretion by refusing to allow Mr. CortesPerez to impeach Sergeant Buttice's testimony that he would not have used Mr. Gonzalez 

as an informant ifhe knew he was violating the law with the offered proof that Mr. 

Gonzalez once told detectives about his weekly marijuana use. 

Impeachment by specific contradiction is presumptively admissible under modem 

evidence rules, but when the matter on which a witness is being contradicted is collateral 

14 

No. 31585-1-111 

State v. Cortes-Perez 

it presents dangers of waste oftime and confusion of issues. JOHN W. STRONG ET AL., 1 

MCCORMICK ON EVIDENCE, § 45 at 185 (5th ed. 1999). Mr. Cortes-Perez's offer ofproof 

did not establish that Mr. Gonzalez's statement to detectives took place at a time when it 

would be inconsistent with Sergeant Buttice's testimony. Moreover, whether thenDetective Buttice was aware that Mr. Gonzalez was using marijuana was a collateral 

matter. A matter is collateral ifthe fact, as to which error is predicated, could not have 

been shown in evidence for any purpose independently ofthe contradiction. State v. 

Rosborough, 62 Wn. App. 341, 349, 814 P.2d 679 (1991). 

The trial court did not abuse its discretion in excluding evidence ofMr. 

Gonzalez's marijuana use for this purpose.4 

II Community custody sentence 

Mr. Cortes-Perez's second assignment of error is to the 12-month term of 

community custody imposed, which he argues violates the prohibition on ex post facto 

laws. Statutes in effect when Mr. Cortes-Perez committed the three marijuana deliveries 

imposed a discretionary range of post confinement community custody of9 to 12 months. 

4 The State also makes a persuasive argument that any error in admitting the 

evidence was harmless because Mr. Cortes-Perez's lawyer developed evidence 

throughout trial that Mr. Gonzalez was not credible and was motivated by self-interest. 

Even without Mr. Gonzalez's admission that he was smoking weekly, the defense was 

able to demonstrate that Mr. Gonzalez used marijuana in violation ofhis contract with 

Walla Walla police. It was the central theme of the defense's closing argument. See Br. 

ofResp't at 14-16. In light of our finding of no abuse of discretion, however, we need 

not review the issue of harmless error further. 

15 

No. 31585-1-III 

State v. Cortes-Perez 

Former RCW 9.94A.505(2)(a)(iii); .715(1); .850(5) (2008). Consistent with those 

provisions, Mr. Cortes-Perez was sentenced to 9 to 12 months of community custody 

after entering his guilty plea. 

The legislature amended the Sentencing Reform Act in 2009 to impose a 

mandatory 12-month term of community custody. LAWS OF 2009, ch. 375, § 5; RCW 

9.94A.701(3)(c). Following the jury trial in 2013, the court sentenced Mr. Cortes-Perez 

to "community custody ... for 12 months." Clerks Papers at 74. While the court did not 

indicate whether it was applying the statutes as they existed in 2008 or 2013, the 

judgment and sentence referred only to the then-current statute. Id. 

We review alleged violations of the prohibition of ex post facto laws de novo. 

State v. Pillatos, 159 Wn.2d 459,469,474-77, 150 PJd 1130 (2007). The party 

disputing the constitutionality of a statute bears the burden of proving that the statute is 

unconstitutional beyond a reasonable doubt. State v. Enquist, 163 Wn. App. 41, 45,256 

PJd 1277 (2011). 

Both the United States and Washington Constitutions prohibit ex post facto laws. 

U.S. CONST. art. I, § 10; WASH. CONST. art. I, § 23. "A law that imposes punishment for 

an act that was not punishable when committed or increases the quantum of punishment 

violates the ex post facto prohibition," In re Pers. Restraint ofHinton, 152 Wn.2d 853, 

861, 100 P.3d 801 (2004). To demonstrate that the law being challenged operates ex post 

facto as to his crime, a defendant must show that the law "operates retroactively, i.e., it 

16 

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• 

No. 31585-1-111 

State v. Cortes-Perez 

applies to conduct that was completed before the law was enacted, and that the 

challenged law increases the penalty over what it was at the time of the conduct." In re 

Pers. Restraint ofFlint, 174 Wn.2d 539, 545,277 P.3d 657 (2012). 

The 2009 amendments whose application is challenged by Mr. Cortes-Perez do 

operate retroactively, as expressly provided by the legislature: 

This act applies retroactively and prospectively regardless of whether the 

offender is currently on community custody or probation with the 

[Department of Corrections], currently incarcerated with a term of 

community custody or probation with the department, or sentenced after the 

effective date of this section. 

LAWS OF 2009, ch. 375, § 20. 

And the challenged law changes the penalty for the conduct from 9 to 12 months 

of community custody to a mandatory 12 months. In Lindsey v. Washington, 301 U.S. 

397,401-02, 57 S. Ct. 797, 81 L. Ed. 1182 (1937), the United States Supreme Court held 

that if the effect of a new statute is to make mandatory what was before only a maximum 

sentence, then it operates to the detriment of a defendant within the sense proscribed by 

the federal ex post facto clause. Lindsey is controlling here. 

Because the statutory provision challenged by Mr. Cortes-Perez was applied 

retroactively and increased the amount ofprescribed standard of punishment, we reverse 

his sentence and remand for resentencing in accordance with this opinion. The 

convictions are affirmed. 

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No. 31585-1-III 

State v. Cortes-Perez 

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. 

WE CONCUR: 


Brown, J. 

18