IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON,

Respondent,

v. JULIO CESAR PANTOJA,

Appellant. )

) ) ) ) ) ) ) ) No. 37477

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UNPUBLISHED OPINION

S IDDOWAY , A.C. J.

— Julio Cesar Pantoja appeals his convictions for two counts of second degree assault and challenges two terms of his sentence. All the issues are raised for the first time on appeal , but the instructional error alleged is of constitutional magnitude. In a supplemental challenge that we allowed Mr. Pantoja to raise following the Washington Supreme Court’s decision in State v. Blake , 197 Wn.2d 170, 481 P.3d 521 (2021), he appeals his conviction for unlawful possession of a controlled substance.
We find no instructional error. Followin g Blake , his controlled substance
conviction must be vacated. R esentencing will be required, at which Mr. Pantoja can object to the community custody condition and the legal financial obligation that he did not challenge at his original sentencing. We af firm his convictions for second degree assault, vacate his controlled substance conviction, and remand for resentencing. 

### FILED JUNE 10 , 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 37477

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2

FACTS AND PROCEDURAL BACKGROUND The second degree assaults at issue on appeal occurred on an evening in July 2018, followin g a barbecu e at the home o f the parents of Mr. Pantoja. Mr. Pantoja was living at the home at the time, as was Danielle Passmore, Mr. Pantoja ’s girlfriend , and the couple’s three children. After most of the family had gone inside (Mr. Pantoja was still outside) Ms

. Pa ssmore asked her son B.P., who was then 14 , to go downstairs and retrieve her phone

. Just as B.P. went downstairs , Mr. Pantaj o came inside, angry about someone having
turned off his m usic

. Mr. Pantoja followed B.P. downstairs and called him in to the living area, where his (Mr. Pantoja ’s) bed was located. When B.P. entered, Mr. Pantoja was holding a pistol that he pointed at B.P. and angrily asked if B.P. had turned off his music. Ms. Passmore
heard Mr. Pantoja yelling at B.P. and ran downstairs, whe re she saw Mr. Pantoja pointing

a gun at her son. She pushed B.P. toward the stairs , told him to run , and moved toward
Mr. Pantoja , telling him that if he was going to shoot someone, he should shoot her. He grabbed her by the neck and pulled her to him, her back against his chest. As he held he r, he hit her head with the gun. S he described it a t Mr. Pantoja’s trial a s “tappi ng ” her head, explaining that “I didn’t

— well, sustain any injuries or anything.” R eport of P roceedings (RP) at 295. B.P. saw Mr. Pantoja grab his mother and tap his gun on her head before running upstairs. Mr. Pantoja then let Ms. Passmore go
. B.P.’s cousin called police.No. 37477

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State v. Pantoja

3 Mr. Pantoja left through the home garage. He would later testify that he drove down the street, briefly spok e with a coworker, and then returned to his parent’s backyard . He was emptying water from his young childre n’s pool when officers arrived. Sergeant Brian Miller and another r esponding officer found Mr. Pantoja in the backyard. When Mr. Pantoja c onfirmed his identity, Sergeant Miller pointed his gun at him and told him to put his hands in the air. After initially ar guing with the sergeant that
he ha d done nothing wrong, Mr. Pantoja complied, but only after pulling a wallet from his pocket and tossing it to the side. After interviewing B.P. and Ms. Passmore, the officers informed Mr. Pantoja that
he was under arrest. Their search incident to arrest included the wallet he had tossed
aside. Inside the wallet was a folded

- up dollar bill that contain ed a wh ite powdery
substance. I t proved to be cocaine hydrochloride.
Officer s obtained a search warrant for Mr. Pantoja ’s car and the home. A Glock pistol with a loaded magazine was found in the car . T hree additional magazines were found in the living area w here Mr. Pa ntoja slept. T wo shotguns were found under the

mattress in that room

. Mr. Pantoja w as charged w ith two counts of assault in the second degree with firearm and domestic violence enhancements, unlawful possession of a controlled
substance with a firearm enhancement, and three counts of first degree unlawful possession of a firearm.No. 37477

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State v. Pantoja

4 At Mr. Pantoja’ s three

- day jury trial, Ms. Passmore, B.P. , three responding police officers, a detective who assisted with the search warrants, and a forensic witne ss from the Washington State Patrol Crime L ab oratory testified for the State. Mr. Pantoja testified in his own defense and acknowledged that as he and his father were outside cleaning up after the barbecue someone turned off their music, which led to an a rgument with Ms. Passmore. After they argued, he went downstairs to get his keys, because he usually left when he and Ms. Passmore argued. He denied that the gun

- wielding described by Ms. Passmore and B.P. ever occurred

. He testified he had found the f olded dollar bill earlier that day , while friends were

over. He claimed he put it in his wallet without unfolding it and was unaware that anything was inside. He denied owning any firearms or being in possession of any on the day of his arrest. The j ury acquitted Mr. Pantoja of the charges of unlawful possession of the two shotguns and found he was not armed during his commission of possession of a
controlled substance. It otherwise found him guilty as charged. At sentencing the State
asked the cour t to assess the $100 DNA 1 collection fee because “according to his criminal history, has not been previously collected or typed. I think that’s a result of the age of his prior convictions.” RP at 437. The court imposed mid

- range concurrent sentences fo r the crimes plus 36 mont hs for the firearm enhancements, resulting in a total sentence of

1 Deoxyribonucleic acid.No. 37477

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5 90 months. It imposed the $100 DNA collection fee and 18 months of community custody for counts I and II, and 12 months for count III, with standard conditions
requ ested by the State. The conditions did not include a prohibition on alcohol, but did require him to submit to “random urinalysis, BAC, [ 2 ] or other tests” as directed by community corrections officers. C lerk’s P apers (CP) at 138. Mr. Pantoja appeals.
ANALYSIS Mr. Pantoja contends the trial court erred by 1) omitting intent from the to

- convict instruction and including it only in the definitional instruction for assault, 2) imposing a community custody condition that requires him to submit to BAC testin g when the court did not prohibit him from consuming alcohol, 3) imposing the $100 DNA collection fee
when he has previously been convicted of a felony that would have required DNA collection, and 4) supplementally, that his conviction for unlawful possess ion of a
controlled substance must be vacated in light of Blake , and resentencing is required. We decline to reach the second and third contentions because they were not raised in the trial
court, see RAP 2.5(a), and because Mr. Pantoja will be able to ra ise the issues at resentencing. We address the two remaining issues in the order stated.

2 Blood alcohol content.No. 37477

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State v. Pantoja

6 I. T HE TRIAL COURT ’ S TO

- CONVICT INSTRUCTIONS WERE NOT CONS T ITUTIONALLY DEFICIENT The trial court provided the jury with a definition of assault and the following to

c onvict instruction for the count alleging Mr. Pantoja’s second degree assault of Ms.
Passmore:
INSTRUCTION NO. 12

To convict the defendant of the crime of assault in the second degree as charged in count I, each of the following elements of the crime mus t be proved beyond a reasonable doubt: (1) That on or about the 29th day of July, 2018, the defendant assaulted Danielle Susanne Passmore with a deadly weapon; and (2) That this act occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it wil l be your duty to return a verdict of not guilty.
CP at 91. The court’s to

- convict instruction for the count alleging th e second degree
assault of B.P. was identical to i nstruction 12 except for its identification of the victim.
Mr. Pant oja did not obje ct to the jury instructions. For the first time on appeal, he contends that the to

- convict instructions for the assault counts relieved the State of its burden of proof because they omitted the element
of intent.No. 37477

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State v. Pantoja

7 Both the United States and Washington C onstitutions require that a jury be instructed on all essential elements of the crime charged. State v. O’Donnell , 142 Wn. App. 314, 322, 174 P.3d 1205 (2007); U.S. C ONST

. amend

. VI; W A SH

. C ONST

. art. I, § 22. The omission of an element of a charged cri me creates manifest error affecting a constitutional right that can be considered for the first time on appeal. State v. Mills , 154 Wn.2d 1, 6 , 109 P.3d 415 (2005) . We review the adequacy of a challe nged “ to con vict”
instruction de novo. Id. at 7.
Mr. P antoja was charged with second degree assault under RCW 9A.36.021 (1)(c), which applies when a person, under circumstances not amounting to assault in the first degree, “ [a] ssaults another with a deadly weapon .” Two of seven subsections of RCW 9A.36.021(1 ) do not contain language explicitly requiring a particular state of
mind ; the subsection under which Mr. Pantoja was charged is one of them

. See also RCW 9A.36.021(g). Nonetheless, all three common law forms of assault recognized by Washington require intentional conduct. Assault by actual battery requires the intent to do the physical act constituting assault. State v. Hall , 104 Wn. App. 56, 62, 14 P.3d 884 (2000).
Assault by an attempt with unlawful force to in flict bodily injury , tending but faili ng to accomplish it (attempted battery) , requires the specific intent to inflict substantial bodily
harm. State v. Eastmond , 129 Wn.2d 497, 500, 919 P.2d 577 (1996), overruled in part on other grounds by State v. Easterlin , 159 Wn.2d 203, 208 n.2, 149 P.3 d 366 (2006).No. 37477

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State v. Pantoja

8 Assault by placing the victim in reasonable apprehension of bodily harm requires the specific intent to cause that apprehension. State v. Byrd , 125 Wn.2d 707, 713 , 887 P.2d 396 (1995).
The trial court’s instruction to Mr. Pantoja’s jury d efining the forms of common law assault recognized in Washington included the requirement of intentional conduct:
INSTRUCTION NO. 11
An assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether an y physical injury is done to the person. A touching or striking is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive. An assault is also an act, with unlawful force, done with intent to inflict bodily injur y upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. An assault is also an act done with the intent to c reate in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. CP at 90 (emphasis added). “Appellate courts ‘analyze a challenged jury instruction by considering the instructions as a whole and reading the challenged portions in context. ’” State v.
Cordero , 170 Wn. App. 351, 370, 284 P.3d 773 (2012) (quoting State v. Hayward , 152 Wn. App. 632, 642, 217 P.3d 354 (2009)). “ ‘Ju ry instructions, taken in their entirety , must inform the jury that the State bears the burden of proving every essential element ofNo. 37477

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State v. Pantoja

9 a criminal offense beyond a reasonable doubt. ’” State v. Johnson , 180 Wn.2d 295, 306,
325 P.3d 135 (2014) (quoting State v. Pirtle , 127 Wn.2d 628, 656, 904 P.2d 245 (1995) )

. Mr. Pantoja relies, however, on Washington cases holding that an instruction that purports to be a complete statement of the crime must contain every element of the crime charged. Mills , 154 Wn.2d at 8. “When the trial court gives a to

- convict instruction, that instruction must ‘contain all of the elements of th e crime because it serves as a “yardstick” by which the jury measures the evidence to determine guilt or innocen ce. ’”
State v. Orn , 197 Wn.2d 343, 361, 482 P.3d 913 (2021) (quoting State v. Smith , 131 Wn.2d 258, 263, 930 P.2d 917 (1997)). Courts “will not look to other jury instructions to supplement a defective ‘to convict’ instruction.” Johnson , 180 Wn.2d at 30 6. We acknowledge that Washington decisi ons sometimes speak of intent being an element of assault. Indeed, this court’s decision in Hall , which rejected the argument that intent must be identified as an element in a “to convict” instruction given in a thi rd degree assault case, st ates in conclusion that th e jury instructions given (that omitted intent from the “to convict” instruction) “properly informed the jury that intent was an
essential element. ” 104 Wn. App. at 63. Nonetheless, co ntrolling Washingt on cases are reasonably read as holding that assault , not intent, is an essential element; that “assault” conveys intentional conduct; and that the pattern instruction that identifies the forms of assault recognized in Washington (including their require me nt of intentional conduct) is merely definitional.No. 37477

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State v. Pantoja

10 “The eleme nts of a crime are those facts ‘ that the prosecution must prove to sustain a conviction. ’” State v. Miller , 156 Wn.2d 23, 27, 123 P.3d 827 (2005) (quoting
B LACK ’ S L AW D ICTIONARY 559 (8th ed. 200 4)) . “ It is proper to first look to the statute to
determine the elements of a crime. ” Id. Looking first to statutory language respects the authority of the legislature to define and punish criminal conduct, subject only to the
constraints of the consti tution. State v. Wu , 194 Wn.2d 880, 890, 453 P.3d 975 (2019). To be guilty of assault under RCW 9A.36.021(c) requires only that a person “[a]ssaults another with a deadly weapon.” The stat ute does not mention intent. The Washington Supreme Court has hel d that the word “assault” has a plain meaning that “ convey s an intentional or knowing act. ” State v. Taylor , 140 Wn.2d 229, 242, 996 P.2d 571 (2000). Taylor involved a challenge to a charging document, which the court held was constitutionally sufficient under the strict standard of construction
without including intent as an element of the charge of fourth degree assault.
In State v. Smith , the court considered whether the common law forms of assault

are “ alternative means ” of committing assault , which w ould require the State to present substantial evidence to support each form of assault that wa s charged or instructed. 159 Wn.2d 778, 787, 154 P.3d 873 (2007). In holding that they are not alternative means , the court reasoned that when the jury is provi ded with definitions of the common law forms, those definitions “merely define the element of assault.” Id

.No. 37477

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11 Providing jurors with a definition that clarifies an element , but is not itself an element, does not relieve the State of its burden to prove the elemen t as clarified

. See,
e.g. , State v. Stevens , 158 Wn.2d 304, 309

- 10, 143 P.3d 817 (2006)

. In Stevens , the court
was called on to clarify the application of State v. Lorenz , 152 Wn.2d 22, 93 P.3d 133 (2004), in which it held that sexual gr atificatio n was not an element o f child molestation
that needs to be included in the to

- convict instruction, but is essential to the statutorily required element of “ sexual contact. ” In Stevens , the court held that while not an element, the State still “ must prove a defendant acted for the purpose of sexual gratification. ” 158 Wn.2d at 309

- 10. “ Intent is relevant to the crime of second degree child molestation because it is necessary to prove the element of sexual contact.” Id. at 310.
The same is true here. Int ent is relevant to the crime of second degree assault because it is necessary to prove the element of assault. It is not itself an element. The trial court’s “to convict” instructions were not constitutionally deficient.
II. F OLLOWING B LAKE , IT IS NECESS ARY TO VACATE M R

. P ANTOJA ’ S CONTROLLED SUBSTANCE CONVICTION AND REMAND FOR RESENTENC ING In supplemental briefing, Mr. Pantoja argues that his conviction for possession of a controlled substance is void in light of Blake and his remaining convictions requir e resentencing.No. 37477

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12 T he Washington Supreme Court recently held in Blake that RCW 69.50.4013(1), the simple drug possession statute , violates the due process clauses of the state and
fed eral constitutions and is void because it “criminalize[s] innocent and pa ssive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess.” 197 Wn.2d at 195 . “A statute or ordinance which is void as being in conflict with a prohibition contained in th e constitution is of no force and effect.” City of Seattle v. Grundy , 86 Wn.2d 49, 5 0, 541 P.2d 994 (1975). T he State properly concedes that Mr. Pantoja’s conviction should be vacated and the case remanded for resentencing. We affirm Mr. Pantoja’s assau lt convictions. We vacate his conviction for violation of RCW 69.50.4013(1) and remand for resentencing. 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 p ursuant to RCW
2.06.040.

_____________________________ Siddoway, A.C. J.
WE CONCUR:

_____________________________ _____________________________ Lawrence

- Berrey, J

. Fearing , J.