### FILED 

### May 3, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEAL OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) Respondent, ) ) v. ) ) FRANCISCO GONZALEZ-GONZAL Z, ) ) Appellant. ) No. 33027-3-111

PUBLISHED OPINION

LAWRENCE-BERREY,J.

- Franc·sco Gonzalez-Gonzalez appeals his conviction for unlawful imprisonment. He argues e trial court erred when it overruled his hearsay objectionto a police officer'stestimony and thatthis ruling affected the outcome ofthe trial. Forthe first time on appeal, heals argues the trial court erred in imposing $700 in discretionary legal financial obligations (LFOs) without making an adequate inquiry into his ability to pay. We clarify that ourre iew ofa trial court's hearsay ruling is de novo, except when review requires applicatio ofevidentiary factors. Although we agree with Mr. Gonzalez-Gonzalez's argumenttha the challenged statementwas hearsay, we hold that its admission was harmless error. lso, we exercise our discretion againstreviewing his unpreserved LFO argument. We thdrefore affirm.No. 33027-3-111 State v. Gonzalez-Gonzalez
FACTS OnAugust 26, 2014, C.H. 1rode is bike to Mr. Gonzalez-Gonzalez's apartmentto buy marijuana. When C.H. arrived, Mr. Gonzalez-Gonzalez came outside ofthe apartment and invited C.H. inside. Mr. onzalez-Gonzalezthenpulled C.H. into the apartment and accused C.H. ofstealing is watch. Mr. Gonzalez-Gonzalez's brother stood between C.H. andthe apartment d or and held a knife. Mr. Gonzalez-Gonzalez told C.H. thathe could not leave the apa ment unless it was to retrieve the stolenwatch. C.H. told Mr. Gonzalez-Gonzalezthat h would go getthe watch, and Mr. GonzalezGonzalez let C.H. leave the apartment. .H. then rode his bike to a nearby restaurant and calledthe police. Officer Jasen McClintockrespon ed to the call and met C.H. atthe restaurant. Officer Kari Skinner and Sergeant Jame Thompson also responded to the call andjoined OfficerMcclintock at the restaurant. A the restaurant, C.H. described the general location ofMr. Gonzalez-Gonzalez's ap rtment building to OfficerMcClintock. Officer McClintockthen sent Officer Skinner d Sergeant Thompson overto the apartment building. Officer Skinner arrived at the partmentbuilding first and sawtwo men onthe apartmentbalcony who matched the dis atcher's description. Officer Skinner did not

1Forpurposes ofthis opinion, th minor's initials are used in place ofhis name. 2No. 33027-3-111 State 

### v. Gonzalez-Gonzalez approach the apartment, butinstead wai d for backup. After backup arrived, Mr. Gonzalez-Gonzalez walked overto her nd identified himselfas "Kiko." Report of Proceedings (RP) (Nov. 19, 2014) at 89. OfficerMcClintockthen took C.
.to the general area ofthe apartmentbuilding. C.H. pointed outMr. Gonzalez-Gonzale 's specific apartment. OfficerMcClintock conducted a show-up, and C.H. identifi Mr. Gonzalez-Gonzalez and his brother as the individuals who restrained him. Officer Skinnerthen arrested Mr. Gonzalez-Gonzalez. The State charged Mr. Gonzalez- onzalez with first degree robbery, unlawful imprisonment, and harassment. Attrial, C.H. testified he had known Mr. GonzalezGonzalez for three to four years and kn him by the nickname "Kiko." RP (Nov. 19, 2014) at 54. Duringthe State's direct e amination ofOfficer Skinner, the following exchange occurred: [Prosecutor:] Were you a le to locate the residence where this incident occurred? [Officer Skinner:] Yes, a'am, I was. [Prosecutor:] How so? [Officer Skinner:] Origin lly, the reporting party had indicated a general areato OfficerMcClinto k, and then dispatch had done a records management search on an alias n e thathadbeenprovided by the name of Kiko. RP (Nov. 19, 2014) at 86. Mr. Gonzale -Gonzalez objected to Officer Skinner's testimony as hearsay and argued that O 1cer Skinner described an out-of-court statement 3No. 33027-3-111 State v. Gonzalez-Gonzalez
that the State offered for the purpose of·dentifying Mr. Gonzalez-Gonzalez. The trial court overruled Mr. Gonzalez-Gonzalez s objection. Thejury convicted Mr. Gonzalez Gonzalez ofunlawful imprisonmentbut acquitted him ofrobbery and harassmen. The trial court sentenced Mr. GonzalezGonzalezto two months' incarceration d gave him credit for time served in pretrial custody, which exceededhis two-month sentence. The trial court imposed a total of

I $1,800 inLFOs, comprised ofa $500 fi · e, mandatory costs of$600, and discretionary costs of$700 for a court-appointed atto ey. Before it imposedthe LFOs, the trial court conductedthe following inquiry: THE COURT: Okay. No , were you employed atthe time ofthe events-atthe time ofyour arres? [MR. GONZALEZ-GON ALEZ]: Yeah. I was working helping a mechanic in Kennewick. THE COURT: Okay. RP (Dec. 19, 2014) at 6. Thejudgment nd sentence containedthe following boilerplate language: "The defendant has the abili or likely future ability to pay the legal financial obligations imposed herein." Clerk's P pers (CP) at 20. Mr. Gonzalez-Gonzalez did not objectto the LFOs. This appeal follow d. The trial court stayed Mr. GonzalezGonzalez's kidnapping offenderregistr ionrequirementpending the outcome ofthis appeal.
4No. 33027-3-111 State v. Gonzalez-Gonzalez
ALYSIS A. Allegedhearsay error Mr. Gonzalez-Gonzalez argues t at Officer Skinner'stestimony concerning how she found his apartment was hearsay. 0 fleer Skinnertestifiedthat dispatch located the defendant's address by doing a records anagement search using his alias, Kiko. Mr. Gonzalez-Gonzalez argues thatthis "su gested to thejury that [he] was known to the police, used an alias
...perhaps had a c iminal record, [and the admission ofthis hearsay] was notharmless." Appellant' Br. at 7. 1. Standardof review We take this opportunity to clari the proper standard ofreview oftrial court hearsay rulings. This court reviews whe her a statementwas hearsay de novo. State v. Hudlow, 182 Wn. App. 266, 281, 331 P. d 90 (2014) (citingState v. Neal, 144 Wn.2d 600, 607, 30 P.3d 1255 (2001)); State v. Edwards, 131 Wn. App. 611, 614, 128 P.3d 631 (2006); butsee State v. Woods, 143 Wn. d 561, 595, 23 P.3d 1046 (2001) (applying an abuse ofdiscretion standard ofreview t the excited utterance hearsay exception, which requires application ofevidentiary facto s by the trial court). The reason we do not review for an abuse ofdiscretion is beca se ER 802 explicitly states thathearsay evidence is not admissible except as providedby he hearsay exceptionrules. The rules do not give


### 5No. 33027-3-111 State v. Gonzalez-Gonzalez
trial courts discretion to admit inadmissi le evidence. The more deferential abuse of discretion standard generally applies to urreview ofthose trial courtrulings where trial courts mustuse their discretion whenw ighing various factors. As with either standard ofreview an erroneous evidentiary ruling does notresult in reversal unless the defendant was prej diced. State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004). For evidentiary err rs not implicating a constitutional mandate, we
reverse only if, "'within reasonable pro abilities, the outcome ofthe trial would have been materially affectedhadthe errorn t occurred.'" Id. (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). '"The improper admission ofevidence constitutes harmless error ifthe evidenc is ofminor significance in reference to the overall, overwhelming evidence as aw le."' Id. (quoting State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)) 2. Whether Officer Sk"nner 's testimony was hearsay Hearsay is an out-of-court state ent offeredto prove the truth ofthe matter asserted. ER 801(c). A "statement" is n oral orwritten assertion, or a person's nonverbal conduct ifthatperson intend that conductto be an assertion. ER 801(a). "Whether a statement is hearsay depen suponthe purpose for whichthe statement is offered." State v. Crowder, 103 Wn. A p. 20, 26, 11 P.3d 828 (2000). "A statement is
6No. 33027-3-111 State v. Gonzalez-Gonzalez

not hearsay ifit is used only to show the effect onthe listener, without regard to the truth ofthe statement." Edwards, 131 Wn. A p. at 614. However, where an out-of-court statement is offered for the truth ofwhat someone toldthe witness, the statement is hearsay eventhough the witness only im lies the out-of-court statement. Hudlow, 182 Wn. App. at 276-77. In determining wh therthe statementwas offeredto prove its truth instead offor a benignpurpose as the St te asserts, we examine whetherthe benign purpose was relevant. Id. at 278-80. The prosecutor asked Officer Ski erhow she was able to find Mr. GonzalezGonzalez's apartment, and Officer Ski ertestifiedthat "dispatchhad done a records management search on an alias name th t had been provided by the name ofKiko." RP (Nov. 19, 2014) at 86. The trial court o erruled Mr. Gonzalez-Gonzalez's objection on the grounds that Officer Skinner did not repeat what someone else had said. The trial court'sview ofhearsay as too narrow. As mentioned above, hearsay includes an implied statement, providedthatthe statementwas offered for its truth. Here, the implied statement, according to Mr. onzalez-Gonzalez, is that law enforcement knew him based onhis alias name, Kiktj. The State responds that it elicitedthis testimony for the benign purpose ofestablishing hy Officer Skinner approached the particular apartment.
7No. 33027-3-111 State 

### v. Gonzalez-Gonzalez
We hold that the State has failed t establish the relevancy ofthe statement's purported benignpurpose and, therefore, the State elicited the statement for a hearsay purpose. There is no relevance to why fficer Skinner approached the particular apartment. The officertestified that she id not approachthe apartment but instead waited for backup, andMr. Gonzalez-G nzalez approached her and identified himselfas Kiko afterbackup arrived. Nevertheless, the erroneous admi sion ofhearsay is harmless error unless, within reasonable probabilities, the improper ev dence affected the outcome ofthe trial. Thomas, 150 Wn.2d at 871. Mr. Gonzal z-Gonzalez argues thatthejury could have found him guilty basedonthe fact thath was known to law enforcementby the name Kiko. His argumentrequires too much s eculation. First, thejury acquitted Mr. Gonz lez-Gonzalez ofthe more serious offense offirst degree robbery, and also ofharassment. his shows thatthejurybased its verdict on evidence, not improper bias. Second, th re is no evidence that only persons with criminal histories are known by law enforcement. Third, the State did not argue or imply thatMr. Gonzalez-Gonzalez was guilty because e was known by law enforcement orhad a criminal history. We fail to see the conn ction between a nonpejorative alias such as "Kiko" and thejury'sverdict in this case. We holdthe admission ofOfficer Skinner's


### 8No. 33027-3-111 State v. Gonzalez-Gonzalez hearsay statementimplyingthat law en:fi rcementknewMr. Gonzalez-Gonzalez as Kiko
was harmless error. B. Whenever a person is convicted, he trial court "may orderthe payment ofa legal financial obligation" as part o the sentence. RCW 9.94A.760(1); accord RCW 10.01.160(1). Becauseboth statu s use the word "may" when authorizing imposition ofcosts described therein, w referto such costs as "discretionary costs." By statute, the trial court is not authorizedt order a defendanttopay discretionary costs unless he or she is orwill be able topay them. RCW 10.01.160(3). In determining the amount and method ofpayment ofdiscr tionary costs, the trial court shall take account of the financial resources ofthe defendant ndthe nature ofthe burden that payment ofsuch costs will impose. RCW 10.01.160(3). ccordingly, "atrial courthas a statutory obligationto make an individualized in uiry into a defendant's current and future ability to pay before the court imposes LFOs." State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015). Importantly, ''the court must do ore than sign ajudgment and sentence with boilerplate language stating that it enga ed in the required inquiry." Id. at 838. Therefore, ~'[t]he record must reflect th the trial court made an individualized
9

### No. 33027-3-111 State 

### v. Gonzalez-Gonzalez 

### inquiry into the defendant's current and ture ability to pay."2 Id. 

### However, "[n]either RCW 10.01.160 'northe constitution re uires a trial court to enter formal, specific findings regarding a defendant's ability t pay [discretionary] court costs.'" State 

### v. Lundy, 

### 176 Wn. App. 96, 105, 308 P.3d 55 (2013) (quoting State 

### v. Curry, 

### 118 Wn.2d 911, 916, 829 P.2d 166 (1992)). "The trial court's determination' s to the defendant's resources and ability to pay is essentially factual and should be revie ed under the clearly erroneous standard.'" State 

### v. Bertrand, 

### 165 Wn. App. 393, 40 n.13, 267 P.3d 511 (2011) (quoting State 

### v. Baldwin, 

### 63 Wn. App. 303, 312, 818 P.2 1116, 837 P.2d 646 (1991)). A finding offact is clearly erroneous when, "'although th re is some evidence to support it, review ofall ofthe evidence leads to a definite and fi conviction that a mistake has been committed.'" Lundy, 

### 176 Wn. App. at 1 5 (internal quotation marks omitted) (quoting Schryvers v. Coulee Cmty. Hosp., 

### 138 n. App. 648, 654, 158 P.3d 113 (2007)). "Adefendant who makes no obje tion to the imposition ofdiscretionary LFOs at sentencing is not automatically entitledt review." Blazina, 

### 182 Wn.2d at 832. Subject

2 

### Although courts have little guid nee regarding what counts as an "individualized inquiry,"Blazina 

### makes clear, at a mini um, the sentencing court "mustalso consider important factors
... such as incarcerati n and a defendant's other debts, including restitution, when determining a defenda t's ability to pay," and "should also look to the comment in courtrule GR 34 for guidan e." Blazina, 

### 182 Wn.2d at 838. 10No. 33027-3-111 State v. Gonzalez-Gonzalez

to three exceptions that do not apply her , RAP 2.5(a) provides that an "appellate court may refuse to review any claim oferror hich was notraised inthe trial court." Blazina confirmed that an appellate court's discr tion underRAP 2.5(a) extends to review ofa trial court's imposition ofdiscretionary FOs. Id. at 834-35. UnderBlazina, each appellate co rt is entitledto "make its own decision to accept discretionary review" ofunpreserved LF errors. Id. at 835. Admittedly, thejudges of this court are not in agreement as to wha extent discretion should be exercisedto review unpreserved LFOs. An approach favore by this author is to considerthe administrative burden and expense ofbringing a defend t to court for a new hearing, versus the likelihood that the discretionary LFO res lt will change. "An important consideration of this analysis is the dollar amount ofdisc etionary LFOs imposed by the sentencing court." State v. Arredondo, 190 Wn. App. 512, 38, 360 P.3d 920 (2015). In this case, the majority ofthese factors weigh against r viewing Mr. Gonzalez-Gonzalez's unpreserved LFO challenge. First, the dollar amount ofthe dis retionary LFOs the trial court imposed does not support granting review. The t al court imposed both mandatory and discretionary LFOs. The mandatory LF s included the $500 victim assessment and the $100 deoxyribonucleic acid (DNA) colle tion fee. See RCW 7.68.035(l)(a);
11No. 33027-3-111 

### State v. 

### Gonzalez-Gonzalez
RCW 43.43.7541. These mandatory LF s arerequired irrespective ofMr. GonzalezGonzalez's ability topay. 

### Lundy, 176 W .App. at 103. Accordingly, the only discretionary cost thatrequired the trial c urt to inquire into Mr. Gonzalez-Gonzalez's ability to pay was the $700 court-appoint d attorney fee. 3 The second factor-the administr tive burden and expense ofbringing Mr. Gonzalez-Gonzalez to court for a new se tencing hearing-does notweigh in favor of either side in this case. Remand is not re uired for the trial court to address any other sentencing errors, so the trial court woul have to hold a resentencing hearing for the sole purpose ofconducting a 

### Blazina inquiry. However, Mr. Gonzalez-Gonzalez is not incarcerated, so the State also would not ncurthe expense oftransporting him to court. However, the final factor weighs gainst granting review-anew sentencing hearing would not likely change the LFO result. Althoughthe trial court found thatMr. Gonzalez-Gonzalez was indigent and thu qualified for publicly funded counsel both for trial and on appeal, Mr. Gonzalez-Gonza ez testified that he was employed helping a mechanic at the time ofhis arrest. In ad ition, Mr. Gonzalez-Gonzalez was released from

3 The trial court also imposed a $5 0 fine under RCW 9A.20.021. This division recently decided that a trial courtmay im ose fines under RCW 9A.20.021 without inquiring into a defendant's ability topa . 

### See State v. 

### Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015); 

### accordState v. 

### Cal in, 176 Wn. App. 1, 24-25, 316 P.3d 496 (2013), 

### remanded, 183 Wn.2d 1013, 353 .3d 640 (2015).

1 12No. 33027-3-111 State v. Gonzalez-Gonzalez
confinement on the day ofhis sentencing earmg. Accordingly, Mr. Gonzalez-Gonzalez is not subject to the negative effects that n extendedperiod ofincarceration would have
on his employment prospects, and there is no reason to suspect that he had difficulty resuming gainful employment. Considering the small amount ofd scretionary LFOs imposed in this case and the unlikelihood that a new sentencing hearin would change the LFO result, we exercise our discretion and decline to review this alleg d error. Because Mr. Gonzalez-Gonzalez i indigent and his appeal has merit, we exercise
our discretion under RCW 10.73.160(1) a d RAP 14.l(a) to not award costs. Affirmed.

Lawrence-Berrey, 

### J. WE CONCUR: 

## j

Cooney, J.P.T. 13