IN THE COURT OFAPPEALS FOR THE STATE OFWASHINGTON

STATE OF WASHINGTON, 

### ) No. 77856-1 -I 

### ) Respondent, 

### ) DIVISION ONE
v. 

### ) UNPUBLISHED OPINION 

### ) SEBASTIAN MARCUS GUAJARDO, 

### ) Appellant. 

### ) FILED: September23, 2019

________________________________________________________________________________________ 

### ) ANDRUS, J.

—Sebastian Guajardo appeals his convictions and sentencefor second degree murderand unlawful possession ofa firearm. First, he challenges thetrial court’s disqualification oftwo prospectivejurors. Second, he contendsthat his life sentence imposed underthe Persistent OffenderAccountabilityAct (POAA) violates the state and federal constitutional prohibitions on cruel and unusual punishment because he committed hisfirsttwo strike offenseswhile a young man. Finally, he challenges the $100 DNA collection fee. We affirm Guajardo’s convictions and sentence but remand fora ministerial orderstriking the $100 DNA collection fee underStatev. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).No. 77856-1-1-1/2 FACTS The State charged Guajardo with second degree murder and first degree unlawful possession ofa firearm. The State alleged that Guajardo shot and killed Jesse Arabos Dacanay whom Guajardo suspected had stolen a friend’s car, It also alleged that Guajardo had a 2000 conviction forassault in the first degree for stabbing a girlfriend in the abdomen with a knife, and a 2001 conviction forassault in the first degree with a firearm enhancement forshooting atthree people, hitting two ofthem in the process. The State indicated thatthese convictions were strike offenses, and a conviction for murderwould constitute a third strike, requiring that Guajardo be sentenced to life withoutthe possibility of parole. During jury selection, the State notified the trial court that two prospective jurors, Juror33 and Juror42, had indicated thatthey had priorfelony convictions. The State did not knowthe contextofthe convictions or ifthejurors’ civil rights had been restored. Guajardo’s counsel asked the trial court to confirm with each that they had afelony conviction and thattheir rights had been restored. Thetrial court agreed to this procedure. When questioned, Juror33 confirmed that he had previously pleaded guilty to “third degree burglary at 17 years old, [had] several drug possessions, [had participated in] drug court, [and had] multiple DUIs.” He indicated that “[a] couple ofthe drug offenses and the burglary” were felony offenses. The trial court asked Juror 33 if he had “gone back to court or had a court expunge or address those [felonies] since conviction?” Juror 33 answered “no.” The trial court dismissed Juror33:

-2-No. 77856-1-1-1/3
I think perjuror qualifications under state law here, you can’t be a convicted felon, unlessyou’ve actuallygonethrough a court process of having those taken offyour record. So as to your ability to serve on thisjury, you would not be able to serve, so I’m going to excuse you from service on this case

—from service in general here today. Guajardo did not objectto the dismissal ofJuror33. The trial court also questioned Juror 42, who indicated that he had a conviction for felony drug possession from 1998 or 1999. The trial court again inquired ifJuror42 had “taken anysteps to have that [felony] expunged orto have [his] civil rights restored?” Like Juror 33, Juror42 answered “no.” The trial court similarlydismissed Juror42: I’m sorry, there’s confusion, but perWashington State law, there’s a listofwhat

### juryqualifications are, and one ofthe disqualifying factors is if one has been convicted of a felony and hasn’t had their civil rights restored. So whatthat means is thatyou right now as you sit are not qualified to serve as ajuror on ourcase. And entirelyyourcall, butyou can take steps ifyou like atsome point to have your civil rights restored. Guajardo did not objectto the dismissal ofJuror42. The jury convicted Guajardo as charged and returned a special verdict, finding that Guajardo was armed with a firearm at the time he committed the murder. At Guajardo’s sentencing hearing, the State argued that Guajardo was a persistent offender under RCW 9.94A.030(38)1 and thatthe sentencing courtwas

RCW 9.94A.030 defines “persistent offender” as someone who has been convicted in Washington ofanyfelony considered a “mostserious offense” and has, before the commission of thatoffense, been convicted on at leasttwo separate occasions offelonies considered to be“most serious offenses.” This is commonly known as “three strikes.” State v. Thorne, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). -3-No. 77856-1-1-1/4

obligated to impose a sentence of life imprisonment without the possibility of parole. To prove Guajardo’s priorconvictions, the State presented certified copies of Guajardo’s 2000 and 2001 judgments and sentences, the underlying crimes of both qualifying as “most serious offenses” under RCW 9.94A.030(33). The State also presented copies ofGuajardo’s booking photos from each arrestto verifythat each conviction was for the same individual. It then called Cynthia Zeller, a fingerprint expert and trainer with the King County Automated Fingerprint Identification System (AFIS), to testify that Guajardo’s fingerprint cards from his 2000 and 2001 convictions matched the fingerprints ZeIler took of Guajardo in conjunction with the murdertrial and that Guajardo’s AFIS identification numbers
on each card also matched. Guajardo’s counsel neither questioned Zeller nor objected to her testimony. Based on this evidence, the trial court found that Guajardo had two prior most serious offense convictions and that he was a persistent offenderfor purposes ofsentencing under RCW 9.94A.570. Guajardo acknowledged that if the statutory criteria were met under the “three strikes” statute, the only sentence available was life without the possibility of parole and did not dispute the State’s contention that he met the criteria for “three strikes.” Instead, Guajardo’s counsel asked the court to exercise its discretion in imposing his sentence. Guajardo’s counsel submitted a summary of Guajardo’s “social history,” which detailed his turbulent childhood with absentee parents, physical possiblesexual abuse by his brothers, and homelessness byage 15 or 16.

-4-No. 77856-1-1-115 In imposing Guajardo’s sentence, the court held that it did not have the discretion to depart from the POAA, but that even if it did, the mandatory life sentence under the POAA was appropriate in Guajardo’s case, given that the murder was a “senseless killing.” It sentenced Guajardo to life in prison without the possibilityofparole.2 The sentencing courtalso imposed a $500 victim penalty assessment and $100 DNA collection fee. ANALYSIS 1. 

### Jury Selection Guajardo argues that the trial court violated his right to random jury selection when it disqualified Jurors 33 and 42 under RCW 2.36.070(5). We disagree. Both the Sixth Amendment ofthe United States Constitution and article 1, section 22 ofourstate constitution guarantee a defendantthe rightto a fairtrial by
an impartial jury. State v. Latham, 100 Wn.2d 59, 62-63, 667 P.2d 56 (1983). Under our state statutes, members of a jury panel must be randomly selected. Statev. Roberts, 142Wn.2d 471,518, 14 P.3d 713(2000). Adefendant, however, has no right to be tried by a particularjuror orjury. State v. Williamson, 100 Wn. App. 248, 255, 996 P.2d 1097 (2000). Adefendant must show prejudice tojustify reversal if the 

### jury selection process substantially complied with the applicable statute or rules. jç~ at 253. We will presume prejudice only if there has been a material departure from those statutes or rules. We review a trial court’s

2 The sentencing court also imposed a concurrent 54-month sentence for the unlawful possession of a firearm conviction, as well as a 120-month weapons enhancement added to the life sentence forthe murderconviction. -5-No. 77856-1-1-1/6

decision to excuse members of the jury venire for abuse of discretion. Roberts, 142 Wn.2d at 519. RCW2.36.070 provides: A person shall be competent to serve as a juror in the state of Washington unless thatperson: (1) Is less than eighteen years ofage; (2)Is not a citizen ofthe United States; (3) Is not a resident ofthe county in which he orshe has been summoned to serve; (4)Is not able to communicate in the English language; or (5) Has been convicted ofa felonyand has nothad his orhercivil rights restored (emphasis added). RCW 2.36.072(4) requires the trial court to excuse a potential juror if the juror declares that he orshe does not meetthe qualifications. State v. Marsh, 106 Wn. App. 801, 806-07, 24 P.3d 1127 (2001) (jurors properly excused based on their declarations thattheywere unable to communicate in English). After reviewing theirjurorquestionnaires and questioning Jurors 33 and 42, the trial court found—based on the information each provided to the court—that they were disqualified from jury service because they had been convicted of at leastone felony and had not had theircivil rights restored. Guajardo did notobject to either the trial court’s questioning of these two jurors or to its conclusion that theywere disqualified from serving under RCW2.36.070(5). Generally, objections relating to ajuror’s qualifications must be made in a timely mannerto give the trial court the opportunity to correct the error. See City of Seattle v. Erickson, 188 Wn.2d 721, 728, 398 P.3d 1124 (2017) (in the context of a Batson3 challenge,

~ Batson v. Kentucky, 476 u.s. 79, 106 5. Ct. 1712. 90 L. Ed. 2d 69 (1986). -6-No. 77856-1-1-117

objection should be raised no laterthan before anytestimony is heard orevidence admitted). Even if we assume Guajardo preserved this issue for appeal, he has not demonstratedthatthetrial court materiallydeparted from thejuryselection statutes
or applicable court rules. And he has failed to demonstrate that the jurors empaneled as a resultofthe disqualification ofJurors 33 and 42were not impartial. Guajardo relies on State v. Tincidale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991), and Brady v. Fibreboard Corp., 71 Wn. App. 280, 284, 857 P.2d 1094 (1993), to argue thatthe trial court’s disqualification ofthe prospective jurors was a “material departure” from ajury selection statute. Guajardo’s reliance on these
cases is misplaced. In Tinqdale, the Supreme Court concluded thatthe trial court materially departed from former RCW 2.36.090, which required the clerk to be blindfolded and to draw names of prospectivejurors from a box in the presence of
a judge or commissioner, and from CrR 6.4(c)(1), when it relied on the clerk to determine whether three prospective jurors should be removed from the venire based on their possible acquaintance with the petitioner. 117 Wn.2d at 597-601. In Brady, twojudges, neitherofwhom werethetrialjudge, excused 14 prospective jurors for bias based on answers provided in mailed-in questionnaires without requiring the jurors to appear to be questioned by the parties or the judge who actually presided overthe trial. 71 Wn. App at 282-84. Division Two ofthis court held that this process violated the statutory requirement that there be proof of actual bias and a determination ofsuch bias bythe trial judge. j~ at 284. In both

-7-No. 77856-1-1-1/8

instances, the parties were denied the right to be heard on the question of actual bias. These cases are distinguishable because thetrial court here did not rely on othersto determinethatthejurorswere disqualified and did notexcuse eitherjuror until after they were individually questioned about their convictions in open court in the presence ofthe parties, both ofwhom had the opportunity to be heard on the manner in which the trial court questioned the jurors and the ultimate qualifications ofeachjurorto serve. State v. Phillips is more analogous. In Phillips, our Supreme Court upheld the trial court’s disqualification of a juror who stated he was unsure if he was a United States citizen. 65 Wash. 324, 326, 118 P.43 (1911). Phillips challenged thejuror’s disqualification, butthe Court held that “[t]he citizenship ofthejurorwas sufficiently doubtful tojustifythe trialjudge in sustaining the challenge.” ki. Here, thetrial courtsimilarly had reason to doubtthatJurors 33 and 42 had had theircivil rights restored. Both indicated on the record thattheir respective felonies had not been expunged and to their knowledge, their civil rights had not been restored. Based on this record, it is unclear what else the trial court could have done to eliminate the doubt as to theirqualifications. Guajardo argues that the trial court erroneously stated that offenders who had not asked to have their civil rights restored were not qualified to sit asjurors. This statement, he contends, is an incorrect statement ofthe law and constitutes
a “material departure” from “ourstate’s lawgoverningjuryselection.” He does not, however, identify any

### jury selection statute from which the trial court departed.

-8-No. 77856-1-1-1/9 Under RCW9.94A.637(5), a person convicted ofafelony is deemed to have their civil rights restored when they receive a certificate of discharge from the Department of Corrections (DCC) under RCW 9.94A.637(1)(a) or a certificate of discharge from the sentencing court under RCW 9.94A.637(1)(b) or (c). If an offendercompletes all requirements ofa sentence while in custody or under DCC supervision, the Department must issue a certificate ofdischarge, and the offender need nottake any action. If, however, the offenderfails to complete the sentence requirements or is not under DCC supervision at the time of completion, the offender is responsiblefor providing the sentencing courtwith verification thatthey have completed the sentence requirements. RCW 9.94A.637(1)(c). There are circumstances in which an offender does bear responsibility for seeking a restoration of his civil rights, but Guajardo correctly notes that it is not required in all circumstances. But to the extent the trial court incorrectly implied that an offender’s civil rights cannot be restored absent action on their part, RCW 9.94A.637 is nevertheless clearthatan offendershould receive notice that his rights have been restored, eitherfrom the DCC orfrom the sentencing court. Ifa prospectivejuror states that he is not aware of having his civil rights restored, as was the case with Jurors 33 and 42, then it was reasonable for the trial court to conclude that restoration had not in fact occurred. In this case, like in Phillips, the trial court properly relied on the prospectivejurors’ answers to its inquiries about their prior felonies and had sufficientdoubt asto theirqualifications tojustifydisqualification.

-9-No. 77856-1-1-1/10 Moreover, a defendant ‘has no right to be tried by a particularjuror or by a particular jury.” Williamson, 100 Wn. App. at 253-54 (internal quotation marks omitted) (quoting State v. Gentry, 125 Wn.2d 570, 615, 888 P.2d 1105 (1995)). Guajardo has failed to establish that the jury that was ultimately empaneled was not randomlyselected, fair, or impartial. We presumethejurors chosen to replace the ones rejected were impartialjurors. Phillips, 65Wash. at327. There is nothing in the record to suggest otherwise. Because Guajardo was not entitled to be tried by Juror 33 or Juror42 and because he was ultimately tried by ajury deemed to be impartial, he cannotestablish aviolation ofhis constitutional rightto an impartial jury. Finally, Guajardo asserts that the trial court’s disqualification of Jurors 33 and 42 violated the jurors’ equal protection rights.4 We reject this argument as well. The constitutional right to equal protection ofthe law requires that similarly situated persons receive like treatment under the law. State v. Shawn P., 122 Wn.2d 553, 559-60, 859 P.2d 1220 (1993). But states may constitutionally prescribe qualificationsfortheirjurors and a court maypermissiblydischargejurors who do not meet these statutory qualifications. Marsh, 106 Wn. App. at 807-08. Guajardo does not challenge the validity ofthe felony disqualification provision in RCW 2.36.070; instead, he contends that the trial court’s interpretation of that

‘~ Guajardo asserts that he has third party standing to raise the constitutional rights of prospective jurors under State v. Burch, 65 Wn. App. 828, 837, 830 P.2d 357 (1992). The State does not respond to Guajardo’s standing argument so we decline to reach this issue. We note, however, that it is arguable whether Guajardo can meetthe three part testforthird-party standing ofPowersv. Ohio, 499 U.S. 400, 415, 111 S. Ct. 1364, 1373, 113 L. Ed. 2d 411 (1991), when the challenge does not relate to the State’s alleged discriminatory use of peremptory challenges.

- 10-No. 77856-1-I-I/li

provision resulted in prospectivejurors being disqualified from jury service solely becausethey had not proactivelysought reinstatementoftheircivil rights. Adenial of equal protection may occurwhen a valid law is administered in a manner that unjustlydiscriminates between similarlysituated persons. Stone v. Chelan County Sheriff’s De~’t, 110 Wn.2d 806, 811, 756 P.2d 736 (1988). But the unequal enforcement of a statute will violate equal protection rights only if deliberately or purposefully based on an unjustifiable standard such as race, religion or other arbitrary grounds. j~ The disparate treatment must be the result of intentional or purposeful discrimination. State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006). Guajardo concedes thatthe rational basis test applies to the trial court’s decision to exclude Jurors 33 and 42 because the jurors are not members of a suspect class and the exclusion did not threaten a fundamental right. We review allegations of constitutional violations de novo. State v. Siers, 174 Wn.2d 269, 273-74, 274 P.3d 358 (2012). Guajardo argues that the two disqualified jurors belong to a class of prospectivejurors with felony convictions. He contends thatthere was no rational basis for the trial court to have treated jurors who have not proactively sought restoration oftheircivil rights differentlythan felonswho have done so. Guajardo’s argument isflawed, however, because it is based on afalse premise—thatthetrial court rejected these jurors for the sole reason that they had not initiated the restoration process. The record does not support this characterization ofthe trial court’s decision. The trial court informed each juror that they were disqualified because they had been convicted of a felony and either had not “actually gone

-11

-No. 77856-1-1-1/12

through a court process of having [the conviction] taken off [their] record,” or had not ‘had [their] civil rights restored.” Thetrial courtwas clearlyfocused on whether the process had resulted in restoration, not whether the process was initiated by the prospective juror. There is no evidence in this record that the trial court deliberatelyexcluded a particularclass ofprospectivejurorsjust becausethey had failed to request the restoration of their rights. Because there is no evidence to support an assertion of dissimilar treatment of similarly situated jurors, we reject Guajardo’s equal protection challenge. 2. Challenge to Life Sentence Guajardo next challenges his life sentence underthe POAA, claiming that his sentence violates the prohibitions on cruel and unusual punishment underthe state and federal constitutions because the first two of his three strikes occurred when he still had characteristics of youth under State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), despite being a legal adult atthe time. Former RCW 9.94A.030 defined a persistent offenderas an offenderwho: (a)(i) Has been convicted in this state of any felony considered a most serious offense; and (ii) Has, before the commission of the offense

. . . been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, offelonies that under the laws ofthis statewould be considered mostserious offenses and would be included in the offender score under RCW 9.9A.525; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any ofthe other most serious offenses for which the offender was previously convicted. RCW 9.94A.030(38)(a)(i)-(ii). Under former RCW 9.94A.030, any class A felony
was considered a “mostserious offense.” RCW9.94A.030 (2016). Second degree murder is a class Afelony. RCW 9A.32.050. Under RCW 9.94A.570:

- 12-No. 77856-1-1-1/13 Notwithstanding the statutory maximum sentence or any other provision ofthis chapter, a persistent offender shall be sentencedto a term oftotal confinement forlife without the possibility ofrelease or, when authorized by RCW 10.95.030 forthe crime ofaggravated murder in the first degree, sentenced to death. (Emphasis added). Guajardo asserts thatthe sentencing court had the discretion to impose a non-POAA sentence and impose a standard range sentence under the Sentencing Reform Act (SRA) and that it should have done so based on Guajardo’s young age atthetime ofhisfirsttwo strike offenses. Butthis argument fails in theface ofthe cleartext ofthe statute, which saysthata persistentoffender “shall be sentenced to a term of total confinement for life.” RCW 9.94A.570 (emphasis added). Our Supreme Court recently rejected Guajardo’s argument in State v. Moretti, No. 95263-9 (Wash. Aug. 15, 2019).~ In Moretti, trial courts sentenced three defendants, Moretti, Nguyen, and Orr, to life without the possibility of parole underthe POAAafterthe State established that each had committed theirfirsttwo offenses while in their early 20s and committed the third offense in their 30s (Moretti) or40s (Nguyen and Orr). jç~ slip op. at 2-7. Each division ofthe court ofappeals affirmed POAA sentences.6 The defendants argued, as Guajardo does here, that article I, section 14 of theWashington Constitution bars sentences of life in prison withoutthe possibility of parole forfully developed adult offenders who committed one or more oftheir

~ http://www.courts.wa.gov/opinions/pdf/952639. pdf. 6 ~ State v. Moretti, No. 47868-4-Il (Wash. Ct. App. Oct. 21, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2047868-4-ll%20Unpublished%200pinion

.pdf; State v. N~uyen, No. 74962-5-I (Wash. Ct. App. Jan. 16, 2018) (unpublished), https:Ilwww.courts.wa.govlopinions/pdf1749625.pdf; State v. Orr, No. 34729-0-Ill (Wash. Ct. App. April 26, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/347290_unp.pdf. -13-No. 77856-1 -1-1/14

prior strike offenses as young adults over age 18. The Court rejected this argument. First, itfound no national consensus againstapplying recidiviststatutes to adults who committed prior strike offenses as young adults. ~, slip op. at 11. Second, it found no showing of any reduced culpability. j~, slip op. at 14. The Court reasoned that the defendants “have not produced any evidence that their youth contributed to the commission of the instant offenses, or even that youth contributed to their prior offenses.” j4~ slip op. at 15. Instead, it concluded that “[t]hese petitioners are fully developed adults who were repeatedly given opportunitiesto prove they could change.” slip op. at 16. The Court disagreed with the assumption thatthe POAAsentences punished the defendants forcrimes they committed as young adults. jç~ slip op. at 17. “These POAA sentences are not punishmentforthe crimes the petitioners committed as young adults because recidivist statutes do not impose ‘cumulative punishment for prior crimes. The repetition ofcriminal conductaggravatesthe guiltofthe lastconviction andjustifies
a heavier penaltyforthe crime.” [.ç~ slip op. at 17 (quoting Statev. Lee, 87Wn.2d 932, 937, 558 P.2d 236 (1976)). Finally, it determined that the goal of punishing recidivists justified the life sentence. “Because Moretti, Nguyen, and Orr each committed their third most serious offense as adults in their 30s and 40s, they have shown thatthey are part ofthis rare group ofoffenderswho are ‘simply unableto bring [their] conductwithin the social norms prescribed by the criminal law.” j~ slip op. at 22 (quoting Rummel v. Estelle, 445 U.S. 263, 284, 100 S. Ct. 1133,63 L. Ed. 2d 382 (1980)).

- 14-No. 77856-1-1-1/15 Guajardo was 19when he committed hisfirststrike offense, second degree assault, and 20when he committed the second strikeoffense, firstdegree assault.7 But he was 35 when convicted of murder in 2016. Although Guajardo presented
an unsworn report from a private investigator describing a turbulent childhood, it does not explain how, 15 years after committing his second violent felony, his youth impacted his decision to commit murderat age 35. Moreover, atthe time of the third felony, Guajardo had just served 15 years in prison for his 2001 assault conviction and was still on community custody for that offense. Ex. 5. As the Moretti court noted, the POAA“gives offenders a chance to showthatthey can be reformed.” Moretti, slip op. at 17. Guajardo presented no such evidence here. Based on Moretti, we reject Guajardo’s argumentthat his life sente.nce violatesthe prohibitions on cruel and unusual punishment. Even ifthetrial courthad thediscretiontodepartfromthe POAAand impose
a sentence within the SRA standard sentencing range, the trial court stated that Guajardo’s life sentence without parole “seems appropriate here,” reiterating that “the sentence in this particular case is appropriate, in light ofthe history.” Thus,
even if the trial court had the discretion to impose an SRA sentence, we are unconvinced the trial courtwould have done so. 3. $100 DNA Collection Fee Finally, Guajardo challengesthe imposition ofthe $100 DNAfee. The State agrees that Guajardo’s $100 DNAfee should be stricken under Ramirez.

~According to thejudgment and sentence, Guajardo was born on February 10, 1981.

- 15-No. 77856-1 -1-1/16 Therefore, we affirm Guajardo’s convictions and sentence but remand fora ministerial orderstriking the $100 DNAfee. 

# I WE CONCUR:

-16-