FILED 

DECEMBER 6, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHING TON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

v. 

FIDEL CORTEZ, JR., 

Appellant. 

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No. 31996-2-111 

UNPUBLISHED OPINION 

LAWRENCE-BERREY, A.CJ. - Fidel Cortez appeals his conviction for burglary 

and two counts of robbery as an accomplice. He argues ( 1) prosecutorial misconduct, 

(2) improper denial of a motion to suppress evidence, (3) insufficiency of the evidence to 

convict, ( 4) the trial court impermissibly limited cross-examination, ( 5) the trial court 

improperly admitted evidence, and (6) cumulative error. In his statement of additional 

grounds for review (SAG), he argues the trial court erred when it imposed legal financial 

obligations (LFOs) against him without first inquiring into his current and future ability 

to pay. The State concedes one LFO should be stricken. We agree and otherwise affirm. 
No. 31996-2-111 

State v. Cortez 

FACTS 

On January 29, 2012, Cortez and Christopher Blanco discussed their plan to rob 

Cody Spicer, whom Cortez believed was a heroin dealer. They planned for Johnny 

Torres to assist them. 

That night, Blanco and Robert Cooper were at Spicer's duplex. While there, 

Blanco used Cooper's and Spicer's cellular phones to call Cortez five or six times. After 

making the calls, Blanco returned the phones. In one of the calls, he asked Cortez to pick 

him up from Spicer's duplex. 

Cortez asked Homero Villanueva for a ride so he could pick up Blanco. 

Villanueva had been drinking, so Cortez agreed to drive. When the two got into 

Villanueva's car they were joined by Torres, Ismael Ortiz, and Alejandro Castro. 

Cortez and the others arrived at Spicer's duplex in the early morning hours of 

January 30. Torres. gave Blanco money to buy heroin from Spicer to confirm that heroin 

was present. After Blanco returned with the drugs, Ortiz, Torres, and Castro exited the 

car wearing bandanas covering their faces. One of them had a gun. 

The three originally went to the wrong side of the duplex, where Amy Gioletti 

lived. Gioletti heard someone tapping on her back door. Blanco directed the three men 

to Spicer's side of the duplex. Blanco then returned to the car. 

Cooper was still at Spicer' s house. As Cooper was talking to friends, three people 

wearing masks or bandanas covering their faces entered the duplex and yelled at people 

to get on the ground. Cooper noticed a silver gun. Cooper and Spicer got on the ground. 

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No. 31996-2-III 

State v. Cortez 

Someone yelled, "Give me the stuff," and removed Cooper's wallet from his pocket. 2 

Report of Proceedings (RP) at 157. Gioletti heard the yelling from her duplex and called 

the police. 

Villanueva, Blanco, and Cortez had remained in the car. Villanueva asked Cortez 

what the other three were doing. Cortez responded, "Heroin." 1 RP at 72. Soon after, 

Ortiz, Torres, and Castro exited the duplex and ran back to the car, saying "hell, yeah, we 

did it." 1 RP at 73. The group fled in Villanueva's car. 

The police arrived at Spicer's duplex shortly after the group had fled. The robbers 

had taken Cooper's and Spicer's cellular phones. Cooper told police his phone had 

global positioning system (GPS) tracking on it, but he needed his wife to access his 

account. 

Corporal Juan Loera of the Moses Lake Police Department went with Cooper to 

his house and met with Cooper's wife, Crystal Cooper. Crystal used the laptop in 

Corporal Loera's patrol car to track Cooper's phone. 

The tracking dot generally followed a logical course before settling on a house 

located on Miller Drive. There, the robbers had recently arrived, and one or more of 

them were drinking beer and injecting heroin. Corporal Loera and Officer Paul Ouimette 

arrived at the house and called for backup. 

Corporal Loera also sought a search warrant for the house based on Cooper's 

statement and the results from the GPS tracking. In his application for the search 

warrant, Corporal Loera described the robbery, Cooper's stolen phone, how he and 

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No. 31996-2-III 

State v. Cortez 

Crystal had tracked Cooper's stolen phone to the subject house, and how the GPS 

tracking provided a margin of error of between 1 7 and 20 yards. 

After more officers arrived, Officer Ouimette called to the occupants to come out 

and talk to police. The occupants panicked, and hid the items seized in the robbery 

around the house. Before the search warrant was authorized, the occupants-including 

Cortez-came outside and submitted to police. 

Once the search warrant was authorized, police searched the house. In addition, 

Corporal Loera used his cellular phone to call Cooper's phone. Police found a silver 

handgun, a knife, and items belonging to Spicer and Cooper, including cellular phones 

belonging to each, and Cooper's wallet. 

Police took Cooper's phone as evidence, but Cooper requested it back for his use. 

Mike Shay, the prosecutor's investigator, met with Cooper to return his phone. Shay 

asked Cooper to show him the call log on the phone. The call log for January 30 showed 

Corporal Loera' s cellular number as a missed call, and preceding that, repeated outgoing 

calls to the same number. 

PROCEDURE 

At a hearing before trial, Cortez moved the court to suppress all evidence taken 

from the search of the house at Miller Drive. He argued there was insufficient 

information for a magistrate to know the GPS tracking was accurate. The parties 

stipulated that Cortez did not live at the house. The State argued that a reasonable person 

was sufficiently familiar with cellular phones and GPS tracking for a magistrate to make 

4 
No. 31996-2-III 

State v. Cortez 

a decision about probable cause. The trial court agreed and denied Cortez's motion to 

suppress. 

At trial, Blanco testified on direct that he cooperated with police and testified 

against Cortez to obtain a lesser sentence. He testified he faced a maximum sentence of 

22 years, including firearm enhancements, but received a sentence of only 2 years 

because of his agreement to cooperate. Cortez sought to admit Bianco's charging 

information to show how the sentence was structured with the firearm enhancements. 

The State objected and argued the charging information was irrelevant. Cortez agreed 

Blanco testified accurately about the maximum sentence he faced, and the lesser sentence 

he received. The trial court sustained the State's objection and prevented Cortez from 

admitting the charging information. 

Later, the State attempted to admit a photograph of Cooper's cellular phone log 

through Shay, its investigator. Cortez objected and questioned Shay's ability to 

authenticate the photograph. The trial court excused the jury so the trial court could hear 

argument. After argument, the trial court overruled Cortez's objection. But the trial 

court largely neutralized the call log by also ruling that Shay could not testify that the 

outgoing number that was repeatedly dialed belonged to Cortez. 1 

At trial, Officer Ouimette testified Corporal Loera initially sent him to a location 

on Grape and Dale. This location was not on the route taken by the robbers, and was 

1 Blanco testified he did not remember Cortez's cellular number. Shay would 

have confirmed the number belonged to Cortez, but the basis of his knowledge depended 

on hearsay. 

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No. 31996-2-III 

State v. Cortez 

nowhere near the house on Miller Drive. During closing arguments, Cortez questioned 

the accuracy of the OPS tracking. In rebuttal, the State responded: 

[STATE:] We do have this one random OPS hit. Yeah. If you've 

ever used one of those things-and I'm sure you all have, with cell phone 

OPS-they sometimes give big circles, they're not accurate sometimes 

when they're displaying themselves. We have a couple along the route 

right there-

[DEFENSE]: Your Honor, I think I need to make an objection. 

THE COURT: Sustained. That's arguing facts not in evidence. 

4 RP at 680-81. Cortez did not request an admonition from the bench for the jury to 

ignore the argument or a curative instruction. 

The jury found Cortez guilty on counts 1, 2, and 3-the robberies of Spicer and 

Cooper and the burglary in Cooper's residence. The jury found Cortez not guilty of 

various other charged crimes. And the jury answered no to the questions of whether 

Cortez was armed with a firearm during the commission of counts 1, 2, and 3. 

Cortez appeals. 

ANALYSIS 

A. PROSECUTORIAL MISCONDUCT 

Cortez argues the State committed prosecutorial misconduct in closing by 

engaging in inconsistent arguments. At the suppression hearing, the State argued the 

OPS tracking was accurate and common enough that a layperson could reasonably rely 

on it. But the OPS tracking once showed Cooper's cellular phone at a location other than 

the route taken from Spicer's house and across town from the house at Miller Drive. 

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No. 31996-2-III 

State v. Cortez 

Cortez argued this in closing. In rebuttal, the State began to tell the jury how GPS 

worked, and that individual GPS signals sometimes were inaccurate. 

To establish prosecutorial misconduct, a defendant has the burden to show that the 

prosecutor's statements were improper and, as a result, prejudicial. State v. Dhaliwal, 

150 Wn.2d 559, 578, 79 P.3d 432 (2003). For improper statements that were followed by 

a proper objection, a prosecutor's statements are prejudicial if the statement had a 

substantial likelihood of affecting the jury's verdict. State v. Emery, 174 Wn.2d 741, 

760, 278 P.3d 653 (2012). Reversal is not required if the error could have been obviated 

by a curative instruction that the defense did not request. State v. Russell, 125 Wn.2d 24, 

85, 882 P.2d 747 (1994). 

Cortez contends, without elaboration, that the prejudice is clear. But the accuracy 

of the GPS tracking was not an issue for the jury. The events of the robbery and the 

starting location of Spicer's home were corroborated by Cooper. The events at the house 

at Miller Drive were also corroborated by testimony of other witnesses, as well as the 

items found by law enforcement at the house. We conclude that the accuracy of the GPS 

tracking, or arguable lack thereof, did not have a substantial likelihood of affecting the 

jury's verdict. 

B. SUPPRESSION HEARING 

Cortez argues the trial court erred in denying his motion to suppress the evidence 

seized from the house at Miller Drive. He argues there was no evidence whether the GPS 

tracking was reliable. 

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No. 31996-2-III 

State v. Cortez 

As a threshold issue, this court must determine whether Cortez has standing to 

challenge the search warrant. The trial court concluded Cortez did have standing. 

This court may affirm on any ground supported by the record. State v. White, 13 7 

Wn. App. 227, 230, 152 P.3d 364 (2007). "[R]esolution of a motion to suppress requires 

a two-part inquiry: (1) whether a defendant has standing to challenge the police conduct; 

and (2) whether the police conduct is contrary to the constitutional protections and 

guarantees." 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL 

PRACTICE AND PROCEDURE§ 2402, at 533 (3d ed. 2004). We review conclusions of law 

following a suppression hearing de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 

P .2d 722 ( 1999). 

The United States Supreme Court has held that a guest, present in the home of 

another, with consent, does not possess a privacy interest in that other's home. 

Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). The 

Fourth Amendment to the United States Constitution protects people, not places, and is a 

personal right that must be invoked by the individual. Id. at 88. As a limited safeguard, 

courts have developed the doctrine of automatic standing to confer third party standing 

under certain conditions. 

Here, the parties stipulated that Cortez was only a short-term invited guest and did 

not reside at the subject house. Cortez thus must rely on the doctrine of automatic 

standing. At the suppression hearing, the State argued, albeit unsuccessfully, Cortez did 

not have automatic standing. 

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No. 31996-2-III 

State v. Cortez 

To assert automatic standing, a defendant must be charged with a possessory 

offense and be in possession of the subject matter at the time of the search or seizure. 

State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). In addition to the charges of 

robbery and burglary, the State charged Cortez with intimidating a witness, witness 

tampering, and delivery of a controlled substance. It is obvious that robbery, burglary, 

intimidating a witness, and witness tampering are not possessory offenses. Although less 

obvious, delivery of a controlled substance is not a possessory offense either. See State v. 

De Vries, 149 Wn.2d 842, 849-50, 72 P.3d 748 (2003) (The elements of delivery of a 

controlled substance are: ( 1) delivery of a controlled substance, and (2) knowledge that 

the substance delivered was a controlled substance.). Also, Cortez was outside the Miller 

Drive house at the time of the search. Because Cortez cannot establish he has automatic 

standing, we do not reach the substantive issue he presents. 

C. ADMISSION OF THE CALL LOG 

Cortez next argues the trial court erred when it admitted a photograph of a call log 

without proper authentication. Cortez contends Cooper, not Shay, should have been the 

person to authenticate the photograph. 

A trial court's determination of whether evidence has been properly authenticated 

is reviewed for an abuse of discretion. In re Det. of HN, 188 Wn. App. 744,753,355 

P.3d 294 (2015), review denied, 185 Wn.2d 1005, 366 P.3d 1244 (2016). An abuse of 

discretion occurs when the trial court's decision is manifestly unreasonable or based on 

untenable grounds or reasons. Id. 

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No. 31996-2-III 

State v. Cortez 

ER 90l(a) requires authentication or identification as a condition precedent to 

admissibility. State v. Bradford, 175 Wn. App. 912, 928, 308 P.3d 736 (2013). This 

determination is a preliminary question, so the rules of evidence do not apply. Id. The 

court should admit the evidence if there is sufficient proof to permit a reasonable juror to 

find that something is what it purports to be. Passovoy v. Nordstrom, Inc., 52 Wn. App. 

166, 171, 758 P.2d 524 (1988). For example, testimony that the person on the other end 

of a telephone call identified himself as a specific person is, alone, insufficient. Id. 

However, courts routinely find identity authenticated when self-identification is 

combined with virtually any circumstantial evidence. Id. 

Cortez contends Cooper was the best person to authenticate the photograph of his 

own call log. That may be, but that does not disqualify the State's investigator, Shay, 

from authenticating the photograph. Here, Shay was the person who took the 

photograph. Prior to taking it, he asked Cooper to display his call log on his cellular 

phone. That, combined with the photograph showing Corporal Loera's missed call, was 

sufficient to properly authenticate the photograph. We determine the trial court did not 

abuse its discretion when it admitted the photograph of the call log. 

D. SUFFICIENCY OF THE EVIDENCE FOR FIRST DEGREE ROBBERY CONVICTIONS 

Cortez contends the evidence was insufficient to convict him of the two first 

degree robbery charges. Here, the State charged Cortez, as a principal or an accomplice, 

with first degree robbery under RCW 9A.56.200(l)(a)(i) or (ii). This required the State 

to prove beyond a reasonable doubt that Cortez or an accomplice was armed with a 

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No. 31996-2-111 

State v. Cortez 

deadly weapon or displayed what appeared to be a firearm or other deadly weapon. 

Cortez makes three arguments that we will address in tum below. 

In a criminal case, the State must provide sufficient evidence to prove each 

element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307,316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When evaluating the sufficiency of 

the evidence, the court must determine whether, when viewing the evidence in the light 

most favorable to the State, any rational trier of fact could have found guilt beyond a 

reasonable doubt. State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995). A claim of 

insufficiency admits the truth of the State's evidence and all reasonable inferences from 

that evidence. State v. Kintz, 169 Wn.2d 537,551,238 P.3d 470 (2010). Reviewing 

courts also must defer to the trier of fact "on issues of conflicting testimony, credibility of 

witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 

874-875, 83 P.3d 970 (2004). We do not reweigh the evidence and substitute our 

judgment for that of the jury. State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980). 

For sufficiency of evidence claims, circumstantial and direct evidence carry equal weight. 

State v. Varga, 151 Wn.2d 179,201, 86 P.3d 139 (2004). 

1. Inconsistency of verdicts 

Cortez first contends the evidence was insufficient because the jury's special 

verdict determined that neither he nor a principal was armed with a firearm when 

committing the robberies. "Where the jury's verdict is supported by sufficient evidence 

from which it could rationally find the defendant guilty beyond a reasonable doubt, we 

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No. 31996-2-III 

State v. Cortez 

will not reverse on grounds that the guilty verdict is inconsistent with an acquittal on 

another count." State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988). 

Here, the jury was asked in the special verdict forms, "Was the defendant FIDEL* 

CORTEZ, JR armed with a firearm at the time of the commission of the [robberies]." 

Clerk's Papers (CP) at 182. Pages earlier, in a somewhat lengthy jury instruction, the 

jurors were informed, "For purposes of a special verdict ... [i]f one participant to a crime 

is armed with a deadly weapon, all accomplices to that participant are deemed to be so 

armed, even if only one deadly weapon is involved." CP at 164. We note the jury had to 

wade through 43 separate instructions to arrive at its verdicts. It is likely that the jurors, 

when answering the robbery special verdict forms, did not recall the one sentence quoted 

above. That is, by answering no in the special verdict forms, the jurors were merely 

finding that Cortez, himself, was not armed with a firearm during the commission of the 

robberies. 

Nevertheless, the facts are sufficient for a rational trier of fact to find a firearm 

was used in the robberies of Spicer and Cooper. Blanco testified he saw one of the 

accomplices with a gun before the accomplices left the car and went into the duplex. 

Cooper testified he saw a silver handgun during the robbery. And Officer Ouimette 

found a silver handgun inside the house at Miller Drive. 

2. No evidence a firearm was used or displayed 

Cortez also argues there was no evidence that an accomplice used or displayed a 

firearm. In State v. Henderson, 34 Wn. App. 865, 868, 664 P.2d 1291 (1983), we held 

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No. 31996-2-III 

State v. Cortez 

the purpose of the first degree robbery statute was to "proscribe conduct in the course of a 

robbery which leads the victim to believe the robber is armed with a deadly weapon, 

whether the weapon is actually loaded and operable or not, and whether the weapon is 

real or toy." Here, Cooper testified he saw one of the robbers with a silver handgun "out 

of the comer of [his] eye." 2 RP at 156. This is sufficient for a rational trier of fact to 

find beyond a reasonable doubt that an accomplice used or displayed a firearm. 

3. Spicer did not testify any item was taken from him 

Cortez next contends because Spicer did not testify, the evidence was insufficient 

to establish Spicer was a victim of the robbery. We disagree. Blanco used Spicer's 

cellular phone but returned it to him prior to the robbery. Spicer was ordered to the 

ground during the robbery alongside Cooper. Spicer's cellular phone and wallet were 

found in the house at Miller Drive. This evidence permits a rational trier of fact to have 

found beyond a reasonable doubt that Spicer was a victim of the robbery. 

E. SUFFICIENCY OF EVIDENCE FOR BURGLARY CONVICTION 

Cortez argues Spicer did not testify at trial so it was unclear whether the three 

masked men were licensed or privileged to enter his duplex. Here, the State 

charged Cortez, as a principal or as an accomplice, with first degree burglary under 

RCW 9A.52.020. One of the elements the State was required to prove was that an 

accomplice entered or remained unlawfully in or upon the subject premises. "A person 

'enters or remains unlawfully' in or upon premises when he or she is not then licensed, 

13 
No. 31996-2-III 

State v. Cortez 

invited, or otherwise privileged to so enter or remain." Former RCW 9A.52.010(3) 

(2011). 

Circumstantial evidence is entitled to as much weight as direct evidence. Varga, 

151 Wn.2d at 201. Here, three men with their faces covered with masks or bandanas 

entered the duplex and yelled at everyone to get down on the floor. There was no 

evidence that any of the accomplices knocked or rang the doorbell. There was no 

evidence Spicer answered the door. Instead, he was next to Cooper, near the couch, 

when the robbers ordered everyone to the ground. But even if Spicer opened the door, it 

is highly improbable that Spicer invited three masked men into his duplex. Cortez was 

free to argue that the masked robbers were invited in by Spicer. But the jury was 

permitted, by circumstantial evidence, to find otherwise. 

F. LIMITATION OF CROSS-EXAMINATION 

Cortez next assigns error to the trial court's exclusion of Bianco's criminal 

information during his cross-examination of Blanco. Cortez contends the confrontation 

clause allows him to explore the bias Blanco had because Bianco's cooperation with the 

State was due to a plea deal. 

A trial court's ruling on the admissibility of evidence is reviewed for abuse of 

discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). Abuse exists 

when the trial court's exercise of discretion is "' manifestly unreasonable or based upon 

untenable grounds or reasons."' Id. (quoting State v. Powell, 126 Wn.2d 244, 258, 893 

P.2d 615 (1995)). Relevant evidence may be excluded if"its probative value is 

14 
No. 31996-2-III 

State v. Cortez 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste of time, or needless 

presentation of cumulative evidence." ER 403. A trial court's limitation of crossexamination will not be disturbed unless it is the result of manifest abuse of discretion. 

Darden, 145 Wn.2d at 619. "However, the more essential the witness is to the 

prosecution's case, the more latitude the defense should be given to explore fundamental 

elements such as motive, bias, credibility, or foundational matters." Id. 

Under the Sixth Amendment's confrontation clause, an accused has a right to 

confront the witnesses against him. U.S. CONST. amend. VI; see also Crawford v. 

Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). This right, 

which applies to the states through the Fourteenth Amendment's due process clause, 

speaks to a defendant's right to cross-examine adverse witnesses. See Pointer v. Texas, 

380 U.S. 400, 404-05, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). However, the right to 

cross-examine witnesses is not absolute: "Courts may, within their sound discretion, deny 

cross-examination if the evidence is vague, argumentative, or speculative." Darden, 145 

Wn.2d at 620-21. Further, the subject matter of the cross-examination is "limited by 

general considerations of relevance." Id. at 621 (citing ER 401; ER 403). 

Our Supreme Court follows a three-pronged approach to determine the limitations 

of a defendant's confrontation clause right to cross-examination. Id. at 622. First, the 

evidence sought must have at least minimal relevance. Id. Second, if relevant, the 

burden is on the State to show the evidence is "so prejudicial as to disrupt the fairness of 

15 
No. 31996-2-III 

State v. Cortez 

the fact-finding process at trial." Id. Third, the court must balance the State's interest in 

excluding prejudicial evidence against the defendant's need for the information. "[O]nly 

if the State's interest outweighs the defendant's need can otherwise relevant information 

be withheld." Id. Ultimately, restrictions on cross-examination are subject to the trial 

court's discretion, and this court reviews for abuse of discretion. State v. Fisher, 165 

Wn.2d 727,752,202 P.3d 937 (2009). 

The trial court did not allow defense to use Bianco's criminal information during 

cross-examination to ask him how many firearm enhancements he faced. The trial court 

stated it was not helpful and wasteful of the jury's time. We agree. The State elicited 

testimony from Blanco that he agreed to cooperate in exchange for receiving a reduced 

sentence of 2 years instead of a maximum sentence of 22 years. Defense counsel agreed 

that Blanco testified accurately both to the sentence he received and the maximum 

sentence he faced. 

The criminal information shows charged crimes and the authorizing statutes, but 

the actual sentences for each charge are not listed. Nor is there any indication of total 

time potentially faced. Blanco did testify he wanted to cooperate when he saw the gun 

enhancements, but the document in no way shows what amount of time each 

enhancement would carry. Nor did the document contain any information about the twoyear deal Blanco received instead. At best, the document showed Blanco faced criminal 

charges and three firearm enhancement stemming from those charges. 

16 
No. 31996-2-III 

State v. Cortez 

In light of Bianco's admission of the prison time he faced and the prison time he 

received, it was not manifestly unreasonable for the trial court to determine that the 

charging information was vague or not relevant. The information provided no further 

relevant information. We determine the trial court did not abuse its discretion by 

excluding Bianco's charging information. 

G. CUMULATIVE ERROR 

Cortez argues cumulative error requires reversal of his convictions. Under the 

cumulative error doctrine, a defendant may be entitled to a new trial when several trial 

errors cumulatively produced a fundamentally unfair trial. State v. Coe, 101 Wn.2d 772, 

789,684 P.2d 668 (1984). Cumulative error may require reversal even if each error 

standing alone would be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149 

P.3d 646 (2006). However, the cumulative error doctrine does not apply here, where 

Cortez has failed to establish any trial error. See State v. Saunders, 120 Wn. App. 800, 

826, 86 P.3d 232 (2004). 

ST A TEMENT OF ADDITIONAL GROUNDS 

Cortez argues the trial court erred when it imposed LFOs without first inquiring 

into his current and future ability to pay them. The trial court imposed a $500 victim 

assessment fee, a $200 criminal filing fee, a $100 DNA 2 collection fee, and a $600 courtappointed attorney fee. Cortez argues, and the State concedes, the court-appointed 

attorney fee cost should not have been imposed because Cortez hired a private attorney. 

2 Deoxyribonucleic acid. 

17 
No. 31996-2-III 

State v. Cortez 

Although Cortez contests all LFOs, only the court-appointed attorney fee is a 

discretionary cost. The victim assessments, DNA fees, and criminal filing fees are 

mandatory costs. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013). There is 

no requirement for courts to conduct an individualized inquiry before imposing 

mandatory costs. 

We accept the State's concession of error and direct the trial court to amend the 

judgment and sentence to remove the $600 court-appointed attorney fee cost. This 

amendment, favorable to Cortez, does not require his presence. 

Affirm, but strike attorney fee LFO. 

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. 

Law~nce-Berrey~ A.CJ. ( 

WE CONCUR: j 

;J2~w .). doway, J. · ~ Pennell, J. 

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