IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ARISTEO GARCIA RUBIO,

Appellant.

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No. 34958-6-III

UNPUBLISHED OPINION

FEARING, J. — Aristeo Rubio, a sex offender, challenges language in his judgment 

and sentence imposing time restraints for registering as an offender. He also challenges 

an order to pay incarceration costs. We agree, in part, with the challenges and remand for 

correction of the judgment and sentence. 

FACTS

Aristeo Rubio worked as a paraeducator at a Yakima middle school. While 

employed, he befriended a twelve-year-old student and eventually engaged in intercourse 

with the girl. 

PROCEDURE 

The State of Washington charged Aristeo Rubio with rape of a child in the second 

degree. The State also sought a sentence enhancement for the aggravating circumstance 

that Rubio used his position of trust and confidence to facilitate the offense. The jury 

FILED

MAY 1, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34958-6-III

State v. Rubio

2

convicted Rubio of the underlying crime and the enhancement. 

Due to the finding of an aggravating circumstance, the trial court imposed an 

exceptional sentence. The sentencing court sentenced Aristeo Rubio to one hundred and 

twenty months’ confinement to life. The judgment and sentence includes an order for 

community custody, but the sentence does not delineate the length of community 

custody. 

We quote numerous paragraphs from the judgment and sentence, which relate to 

Aristeo Rubio’s assignments of error and his community custody conditions. Paragraph 

4.B.1 reads:

Community Custody: The defendant shall serve community custody 

for any period of time the defendant is released from total confinement 

before the expiration of the maximum sentence on Count 1 pursuant to 

RCW 9.94A.507. The defendant shall report, in person, within 24 hours of 

this order or release from incarceration, whichever is later, to the 

Washington State Department of Corrections, 210 North Second Street, 

Yakima, Washington. 

Clerk’s Papers (CP) at 103. As a condition of community custody, paragraph 4.C.3 

similarly demands that Aristeo Rubio:

Register as a sex offender as required by RCW 9A.44.130 within 24 

hours of release from incarceration. 

CP at 104. Section 5.7 of the judgment and sentence also includes a registration 

requirement that states:

1. General Applicability and Requirements: Because this crime 

involves a sex offense or kidnapping offense involving a minor as defined 
No. 34958-6-III

State v. Rubio

3

in RCW 9A.44.130, the defendant is required to register with the sheriff of 

the county of the state of Washington where he or she resides. If the 

defendant is not a resident of Washington but is a student in Washington or 

is employed in Washington or carries on a vocation in Washington, the 

defendant must register with the sheriff of the county of his or her school, 

place of employment, or vocation. The defendant must register 

immediately upon being sentenced unless he or she is in custody, in which 

case the defendant must register within 24 hours of release. 

CP at 107. 

After imposing the term of confinement, the court engaged in a brief inquiry 

regarding Aristeo Rubio’s ability to pay legal financial obligations. Defense counsel 

informed the sentencing court that a school district previously employed Rubio, but he 

lost employment upon his incarceration. Counsel reminded the court that Rubio would 

remain in jail for at least ten years and predicted that Rubio, because of the nature of his 

crime, would encounter difficulty gaining employment on release from prison. The 

sentencing court found Rubio currently indigent for purposes of appeal and that Rubio 

lacked the present and future ability to pay financial obligations. As a result, the court 

struck a discretionary attorney fee recoupment provision, but imposed discretionary costs 

of incarceration. Defense counsel did not object to the imposition of incarceration costs 

but asked that costs be capped at $300. The sentencing court agreed. Otherwise, the 

court only imposed mandatory legal financial obligations. 
No. 34958-6-III

State v. Rubio

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LAW AND ANALYSIS 

On appeal, Aristeo Rubio asks this court to amend his judgment and sentence to 

reflect that he receives three days to register as a sex offender and to remove the 

obligation to pay for incarceration costs. We grant the requests in part. 

Sex Offender Registration

Aristeo Rubio registered no objection before the sentencing to the portions of the 

sentence he now challenges. Nevertheless, a defendant cannot agree to a sentence in 

excess of what the legislature authorized. In re Personal Restraint of Moore, 116 Wn.2d 

30, 38-39, 803 P.2d 300 (1991). An offender may challenge an unlawful sentence for the 

first time on appeal. State v. Warnock, 174 Wn. App. 608, 611, 299 P.3d 1173 (2013). 

RCW 9A.44.130 imposes registration requirements on a sex offender. Aristeo 

Rubio argues his judgment and sentence went a step too far in requiring him to register 

within twenty-four hours as it conflicts with the statutory obligations. He further argues 

that the language fails to identify the recipient of the registration under the twenty-fourhour requirement.

The lengthy statute, RCW 9A.44.130 declares, in part:

(1)(a) Any adult or juvenile residing whether or not the person has a 

fixed residence, or who is a student, is employed, or carries on a vocation in 

this state who has been found to have committed or has been convicted of 

any sex offense or kidnapping offense . . . shall register with the county 

sheriff for the county of the person’s residence. . . . When a person 

required to register under this section is in custody of the state department 

of corrections . . . as a result of a sex offense or kidnapping offense, the 
No. 34958-6-III

State v. Rubio

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person shall also register at the time of release from custody with an official 

designated by the agency that has jurisdiction over the person.

(b) Any adult or juvenile who is required to register under (a) of this 

subsection must give notice to the county sheriff of the county with whom 

the person is registered within three business days:

(i) Prior to arriving at a school or institution of higher education to 

attend classes;

(ii) Prior to starting work at an institution of higher education; or

(iii) After any termination of enrollment or employment at a school 

or institution of higher education.

. . . .

(4)(a) Offenders shall register with the county sheriff within the 

following deadlines:

(i) OFFENDERS IN CUSTODY. Sex offenders or kidnapping 

offenders who are in custody of the state department of corrections . . . 

must register at the time of release from custody with an official designated 

by the agency that has jurisdiction over the offender. The agency shall 

within three days forward the registration information to the county sheriff 

for the county of the offender’s anticipated residence. The offender must 

also register within three business days from the time of release with the 

county sheriff for the county of the person’s residence. . . . The agency that 

has jurisdiction over the offender shall provide notice to the offender of the 

duty to register.

RCW 9A.44.130 repeatedly imposes, on a sex offender, two registration 

obligations. First, the offender must register with the Department of Corrections on his 

release from incarceration or within twenty-four hours of the release. Second, the 

offender must register with the sheriff of the county, in which the offender resides, within 

three business days of release. 

Aristeo Rubio’s judgment and sentence fails to always distinguish between the 

two distinct registration requirements. Paragraph 4.B.1 correctly imposes an obligation 
No. 34958-6-III

State v. Rubio

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to report to the Department of Corrections within twenty-four hours. Paragraph 4.C.3 

imposes a similar obligation to register as a sex offender within twenty-four hours, but 

the order does not identify the office at which Rubio registers. Conceivably Rubio could 

violate the order if he fails to register with his county sheriff within one day. Paragraph 

5.7 expressly imposes on Rubio the obligation to register with the county sheriff within 

twenty-four hours of his release. Therefore, we remand to the sentencing court to modify 

the judgment and sentence. All references to registration within twenty-four hours 

should limit the duty to reporting to the Department of Corrections. All references to 

registration with the county sheriff should afford three business days for accomplishing 

the obligation. 

Incarceration Costs

Aristeo Rubio next challenges the imposition of $300 in incarceration costs. RCW 

10.01.160(2) allows a trial court to impose costs, including incarceration expenses, on a 

convicted defendant. The court, however, “shall not order a defendant to pay costs 

unless the defendant is or will be able to pay them.” RCW 10.01.160(3) (emphasis 

added). Use of the word “shall” does not confer discretion but creates a duty not to 

impose costs. State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015). 

The statutory language provides that the sentencing court may only impose 

discretionary costs if it finds the defendant has the likely present or future ability to pay. 
No. 34958-6-III 

State v. Rubio 

The sentencing court found Aristeo Rubio lacked any present or future ability to pay and 

found Rubio indigent for purposes of this appeal. 

Pursuant to the discretion imposed on this court under State v. Blazina, this court 

often declines to address challenges to amounts of discretionary legal financial 

obligations, when the offender failed to object before the trial court. Because we remand 

this case on other grounds, we choose to also remand for the striking of the incarceration 

costs. 

CONCLUSION 

We remand to the sentencing court to amend the sex off ender ;reporting 

requirements consistent with this decision. We also remand for the striking of the 

imposition of incarceration costs. Because Aristeo Rubio prevails in part, we decline to 

award appellate costs to the State. 

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. 

Fearing, i 

WE CONCUR: 

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