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

v. DIVISION ONE No. 73112-2-1 UNPUBLISHED OPINION C3~' "~~-\*~ 'ror-~ \ „.,'/} CP :;:; - ALVARO BALDERAS-LOPEZ, a.k.a. ALVARO BALDERRAS-LOPEZ, Appellant. 03
FILED: August 8, 2016 

### Dwyer, J. —Following ajury trial, Alvaro Balderas-Lopez was convicted of one count of rape in the second degree.1 On appeal, Balderas-Lopez 

### contends that(1) WPIC 4.012—the instruction thatinformed thejury on the 

### concept ofreasonable doubt—is unconstitutional, (2) thatthetrial court erred by not making an individualized inquiry into his ability topay priortoimposing certain discretionary legal financial obligations (LFOs), (3) thathis counsel 

### provided constitutionally ineffective assistance by not objecting to the imposition ofthediscretionary LFOs, and (4) thatthetrial court erred when it imposed 

### certain community custody conditions. Because oferrors in theimposition of a

1 RCW 9A.44.050. 211 Washington Practice: Washington Pattern Jury Instructions: Criminal4.01 (3d ed. 2008) (WPIC).No. 73112-2-1/2 several community custody conditions, we remand with instructions to amend the judgment and sentence. In all other respects, we affirm.
I Sonia Cortes, her adult daughter Jhoanna Recinos-Cortes, and one of Jhoanna's friends went to a casino. They were laterjoined by Balderas-Lopez. Later, the four ofthem decided to leave the casino and go to Cortes's 

### house in Lynden. Recino-Cortes drove Cortes and the friend to the house. Balderas-Lopez followed in his own vehicle. 

### Upon arrival, the four of them went inside. Once inside, they went to Cortes's bedroom and sat on a floor mattress. At about 6 a.m., Recino-Cortes "toldeverybody I'mfalling asleep, I'm very 

### tired, and that's what Idid." At the time, Recino-Cortes was wearing yoga pants 

### and underwear. Recino-Cortes was laying on top of the mattress, "in the corner," in a "fetal position" with a blanket covering her. 

### Shortly thereafter, Cortes, the friend, and Balderas-Lopez also decided to 

### go to sleep. All three ofthem reclined on the mattresswith Recino-Cortes. After sleepingfor several hours, Recino-Cortes "woke up, my head was 

### banging on thewall. . . and Ifelt my head and Irealized he was inside ofme." Balderas-Lopez was "penetrating" her vaginawith "his penis." At the time, Recino-Cortes was "in a fetal position facing the wall" with her "back [ ] towards 

### him." Balderas-Lopez was "[bjehind [her]." Both Recino-Cortes's underwear and her yoga pants were lowered to her knees.No. 73112-2-1/3 "[N]ot very long" after Balderas-Lopez penetrated her, Recino-Cortes "got up and [ ] went crazy." She remembered that "I would scream - Igot up, pulled up my pants and he was doing the same thing and Itold him, 'Why are you doing this? Why did you do this?' And Istarted hitting him and going at him." Balderas-Lopez responded, "I'm sorry. Ithought Iwas somewhere else. I 

### thought you were somebody else." Recino-Cortes then said, "No. No. It's not right," and told Balderas-Lopez that she was going to call the police. BalderasLopez fled the scene.3 Thereafter, Recino-Cortes called 911. Later that same day, BalderasLopez turned himself into the police. 

### The State charged Balderas-Lopezwith one count of rape in the second degree. The jury found him guilty as charged. 

### Balderas-Lopez was sentenced to an indeterminate term ofimprisonment, 

### ranging from a minimum of102months ofconfinementto a maximum oflife. Additionally, the trial courtimposed a lifetime term ofcommunity custodywith conditions and LFOs totaling $1,650.00. Balderas-Lopez now appeals.
II The trial court instructed the jury on reasonable doubt consistent with 

### WPIC 4.01. Balderas-Lopez contends the instruction is unconstitutional because

3Balderas-Lopez's testimony differs on this point. Hetestified that he ended upoutside of the house after Recino-Cortes was "hitting me and pushed the door open, [and] closed the door behind me."No. 73112-2-1/4 

### itmisstates the burden of proof and undermines the presumption of innocence.4 The trial court did not err. In State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007), our 

### Supreme Court mandated that the challenged instruction be given in all cases. The propriety of this instruction was reaffirmed in State v. Kalebaugh, 183 Wn.2d 578, 585-86, 355 P.3d 253 (2015). We have recognized this controlling 

### authority. State v. Lizarraga, 191 Wn. App. 530, 364 P.3d 810 (2015), review denied, 185 Wn.2d 1022 (2016). The trial court did not err by doing the same. Ill 

### Balderas-Lopez next contends that the trial court erred by imposing 

### discretionary LFOs as part of his sentence.5 He claims that the record does not 

### supportthe factual finding that he has the ability to pay the amountordered. His contention cannot be resolved by resort to the record. 

### Here, the discretionary LFOs that the trial court imposed were a $100 

### crime lab fee and a $250jury demand fee.6 See FormerRCW 43.43.690(1) 

### (1992) amended by Laws of 2015, ch. 265, § 30; RCW 36.18.016(3)(b). At sentencing, Balderas-Lopez's counseldid not objectto the imposition ofthese
LFOs.

4Thechallenged instruction provides, in pertinent part, that"[a] reasonable doubtis one forwhich a reason exists and may arise from the evidence or lack of evidence." 5TheState argues thatBalderas-Lopez's claim oferroris not yetripe for review because thetime tochallenge theimposition ofsuchfees is at thetime ofenforcement, not thetime of imposition. Whetherto address theclaim oferror iswithin ourdiscretion. Statev. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 (2015). 6Balderas-Lopez does notchallenge the remaining assessments that wereimposed.
-4-No. 73112-2-1/5 As to the $100 crime lab fee, the relevant statute required Balderas-Lopez to make a "verified petition" to the trial court to facilitate an inquiry into his ability to pay. Former RCW 43.43.690(1). "Upon a verified petition by the person 

### assessed the fee, the court may suspend payment of all or part of the fee if it 

### finds that the person does not have the ability to pay the fee." Former RCW 

### 43.43.690(1). Notwithstanding his statutory obligation to do so (in order to avoid the imposition of the assessment), Balderas-Lopez filed no such petition. Thus, he forfeited any claim of error. 

### As to the $250 jurydemand fee, relevant statutes permit the trial court to 

### orderpayment in such an amount after a defendant has been convicted of a criminal offense by a twelve-personjury. See RCW 36.18.016(3)(b); RCW 10.46.190. Balderas-Lopez's counsel did not object to the imposition of this fee. We cannot determine from the record how the trial court would have ruled on 

### such an objection. Thus, Balderas-Lopez does not establish that a "manifest"
erroroccurred.7 RAP 2.5(a); State v. Kirkman, 159Wn.2d 918, 927, 155 P.3d 125 (2007) ("It is this showing of actual prejudice that makes the error 'manifest.'"). 

### Accordingly, we affirm the imposition of both fees.
IV 

### Balderas-Lopez nextasserts that he was deprived of the effective assistance ofcounsel. This is so, he asserts, because his counsel did not object 7Balderas-Lopez does notassert that the trial court neglected to make the necessary 

### factual findings. Rather, heclaims thatthe findings were mere "boilerplate" and did not follow the necessary inquiry. An inquiry, we note, that he did not request.No. 73112-2-1/6
to the imposition of the discretionary LFOs. "In order to succeed in [an ineffective assistance of counsel] claim, the defendant must show both that the attorney's performance was deficient and that the defendant was prejudiced by that deficient performance." State v. Borsheim, 140 Wn. App. 357, 376, 165 P.3d 417 (2007) (citing Strickland v. Washington, 466 U.S. 668, 688-93, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). "Deficient 

### performance is that which falls below an objective standard ofreasonableness." State v. Weaville, 162 Wn. App. 801, 823, 256 P.3d 426 (2011). "Prejudice
occurs where there is a reasonable probability that, but for the deficient 

### performance, the outcome of the proceedings would have been different." Weaville, 162 Wn. App. at 823 (citing State v. McFarland, 127 Wn.2d 322, 335, 899P.2d 1251 (1995)). Based on the record before us, we cannot determine whether the 

### sentencing courtwould have imposed the fees in the face of a properpetition or 

### objection by the defendant. See State v. Stoddard, 192Wn. App. 222, 366 P.3d 474 (2016) (no manifest error in imposition ofDNA fee). Ifthe facts do not 

### support such a petition orobjection, then counsel did not act below the standard of care in refraining from objecting. Similarly, ifthe facts do not support such a petition or objection, Balderas-Lopez cannot show prejudice. Moreover, because Balderas-Lopez has a statutory right to a remission hearing, he cannot show prejudice. His claim of ineffective assistance fails.No. 73112-2-1/7

V Balderas-Lopez next contends that the community custody condition 

### requiring him to submit to a plethysmograph assessment at the direction of the 

### department ofcorrections and his therapist was improperly imposed.8 The State concedes that "the condition should be modified to state that the community corrections officer's] and therapist[']s authority is limited to order plethysmograph 

### testing onlyforpurposes of sexual deviancy evaluation/treatment and not for monitoring purposes. See State v. Land, 172 Wn. App. 593, 295 P.2d 782 

### (2013)." Br. ofResp'tat 12-13. We accept the State's concession. On remand, the trial court shall modify the sentence accordingly. VI 

### Balderas-Lopez next contends that the community custody condition 

### requiring that he notdate or engage in sexualactivity with otherswithout prior 

### approval ofhis community custody officer ortherapist was improperly imposed.9 He claims that this condition is neither crime-related nor constitutional because it 

### infringes on hisright tofreedom ofassociation. We disagree with both
contentions. The trial court "has discretion to order an offender to refrain from 'direct or 

### indirect contact with the victim of the crime or a specified class ofindividuals.'"
8The trial court ordered that Balderas-Lopez "[sjubmitto [a] polygraph and/or 

### plethysmograph assessment at[his] own expense as directed by Department ofCorrections and therapist, but limited totopics related tomonitoring compliance with crime-related sentencing conditions." (Emphasis added.) Balderas-Lopez wrongfully arguesthatDOC could have ordered this on its own. 9The trial court ordered that Balderas-Lopez not "date people or engage in sexual activity with otherswithout prior approval ofyour Community Corrections Officer &/or therapist."
-7-No. 73112-2-1/8
State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870 (quoting RCW 9.94A.703(3)(b)), review denied, 181 Wn.2d 1019 (2014). Here, Balderas-Lopez
was convicted of raping a woman in her mother's home. He raped her while she slept. Given these facts, a condition requiring preapproval of any dating or sexual relationship is a proper crime-related condition. For the first time on appeal, Balderas-Lopez contends that this condition violates his First Amendment right of association. When necessary to 

### accomplish the needs of public order, sentencing conditions may properly restrict 

### that right. State v. Riles, 135 Wn.2d 326, 347, 957 P.2d 655 (1998) abrogated on othergrounds bvState v. Valencia, 169 Wn.2d 782, 239 P.3d 1059 (2010); State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993); State v. Ancira, 107 

### Wn. App. 650, 654, 27 P.3d 1246 (2001). There was no error. VII 

### Balderas-Lopez next contends that the community custody condition requiring that he notwithhold information or keep secrets from his treatment 

### provider orcommunity corrections officerwasimproperly imposed.10 Additionally, he contends that the community custody condition requiring that he 

### not use or possess sexually explicit material was improperly imposed.11 The State concedes error with regard to both ofthese conditions and concedes that 

### they should each be stricken on remand. We accept the State's concessions.
10 The trial court ordered that Balderas-Lopez "not withhold information or keep secrets from [his] treatmentprovider orCommunity Corrections Officer." 11 The trial court ordered that Balderas-Lopez not "use or possess sexually explicit material in anyform as described by thetreatment provider and/or Community Corrections Officer, including internet use and possession." -8-No. 73112-2-1/9 

### Affirmed in part. Reversed and remanded to the trial court with instructions to amend the judgment and sentence in accordance with this opinion 12

We concur:

12 Balderas-Lopez isbeing granted substantial reliefon appeal. Thus, heshall not be responsible for costs on appeal.