### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 51629

- 2

- II Respondent,

v. RYAN ESTAVILLO, UNPUBLISHED OPINION Appellant.
W ORSWICK , J.

— Ryan Estavillo appeals his convictions and various legal financial obligations (LFOs) for one count each of first degree robbery, 1 first degree unlawful possession of a firearm, 2 and first degree theft. 3 Estavillo argues that the trial court erred in admitting his
statements at trial because he was not adequately provided his Miranda 4 warnings . The State argues Estavillo failed to preserve t his argument. He also argues, and the State concedes, that the trial court improperly imposed various LFOs , namely a criminal filing fee, a DNA (deoxyribonucleic acid) collection fee, collection costs, sup ervision assessment, and interest

. We hold that Estavillo failed to preserve his argument regarding the Miranda warnings

. Further, we hold that the trial court properly imposed the supervision assessment, but improperly

1 RCW 9A.56.200.

2 RCW 9.41.040 (2018).

3 RCW 9A.56.030.

4 Miranda v. Arizona , 384 U.S. 436, 8 6 S. Ct. 1602 (1966). Filed Washington State Court of Appeals Division Two October 15, 2019No. 51629

- 2

- II

2

imposed the other LFOs. Accordingly , we affirm Estavillo’s convictions, but remand to strike the improper LFOs

. FACTS Estavillo and a female accomplice devised a plan to entice men to a motel room w here the men believed they would have a sexual encounter with a prostitute. On two separate occasions , men went to the motel room where the accomplice was waiting

. On the first occasion, a man entered the motel room and began to undress. There was a loud knock at the door, and the accomplice let Estavillo inside. Estavillo pointed a s tun gun at the man and told him t o leave his money in the room. The man left money and exited the room. 5 On the second occasion, the victim entered the motel room, paid the accomplice with five
20

- dollar bills , and began to undress. Estavillo came into the room, hit the victim in the face , and displayed a gun. Estavillo told the victim to empty his pockets. After being threatened, the victim surrendered two knives, a challenge coin, a leather sheathe, and two bracelets. 6 The victim grabbed his clothes and ran out of the room shouting that Estavillo had a gun. Motel staff called law enforcement officers. Estavillo left the gun with an acquaintance in a neighb oring

room. The gun was eventually provided to law enforcement officers. Law enforcement officers contact ed Estavillo, placed him in hand restraints, and sat him down on a nearby curb. Bremerton Police Officer Steven Forbragd asked Estavillo what happened , and Estavillo made statements to Officer Forbragd. Estavillo stated t hat the man was

5 This incident forms the basis of the theft charge

.
6 This incident forms the basis of the first degree robbery and first degree unlawful po ssession of a firearm charges.No. 51629

- 2

- II

3

“ buck

- a** naked on top of [Estavillo’s] girlfriend in the hotel room.” V erbatim R eport of
P roceedings (VRP) (March 8, 2018) at 157. Estavillo said he asked the man to leave, grabbed him, and placed him against the wall to detain him

. Fol lowing a brief period of time, Officer Forbragd placed Estavillo under arrest and read Miranda warnings from his department

- issued card to Estavillo. Estavillo made additional statements to Officer Forbragd. Estavillo stated that he walked in on the man in the room, told him to get out, and pushed him out of the room. Estavillo denied detaining the man

. During the police investigation, law enforcement officers searched motel room, interviewed witnesses, and photographed the victim’s face. Officers loca ted the knives, coin, sheathe , and bracelets in the hotel room where the robbery occurred , and discovered five 20

- dollar bills in the accomplice’s possession. The State charged Estavillo with first degree robbery, first degree unlawful possession of a fir earm, first degree theft, and second degree promoting prostitution.
O ffice r Forbragd testified at Estavillo’s CrR 3.5 hearing

. Officer Forbragd stated that after restraining and frisking Estavillo for weapons , Officer Forbragd asked Estavillo what was
go ing on, and Estavillo made statements. A few minutes later, Officer Forbragd placed Estavillo under arrest and read Estavillo Miranda warnings from a department

- issued card

. Officer Forbragd did not testify as to what the card said . Estavillo stated tha t he understood his rights. Estavillo then made additional statements. Estavillo also testified at the CrR 3.5 hearing , stating that an officer “came and read me
my Miranda rights.” VRP (March 8, 2018) at 101. When asked if he understood his rights, Estavillo testified, “Yeah. Yeah.” VRP (March 8, 2018) at 103. At the CrR 3.5 hearing,No. 51629

- 2

- II

4

Estavillo argued only that the initial statements he made before being read the Mirand a warnings were inadmissible. Estavillo did not argue that Officer Forbragd inadequately provided Estavillo with Miranda warnings or that the statements after the Miranda warnings were inadmissible

. The trial court ruled that all of Estavillo’s statement s were admissible. The trial court ’s finding of fact 8 found that Officer Forbragd read Miranda warnings to Estavillo from a department

- issued card , and finding of fact 9 found that Estavillo understood the Miranda warnings and agreed to speak to Forbragd . The trial court concluded that Estavillo knowingly, voluntarily , and intelligently waived his Miranda rights

. The trial court concluded that all of Estavillo’s statements were admissible. The matter proceeded to a jury trial. Nineteen witnesses , incl uding both victims and Estavillo’s accomplice, testified to the above facts. Additionally, the jury viewed a photograph of a victim with facial injuries; copies of messages from and to Estav illo, the accomplice , and the victim s ; and a video clip of one vi ctim running from the hotel room in the manner he described. The j ury found Estavillo guilty of first degree robbery, first degree unlawful possession of a firearm, and first degree theft. The jury found Estavill o not guilty of second degree promotion of prostitution. At Estavillo’s sentencing hearing , the trial court found Estavillo indigent. The trial court then imposed a criminal filing fee, a DNA collection fee , collection costs, and a supervision
assessment

. The trial court also imposed 12 percent interest on the LFOs. Estavillo appeals his convictions and sentence

.No. 51629

- 2

- II

5 ANALYSIS
I. M IRANDA W ARNINGS Estavillo argues that because Officer Forbragd did not testify to the exact rights he read to Estavillo, the t rial court’s findings that Office r Forbragd read Miranda warnings to Estavillo and that Estavillo understood these Miranda warnings are unsupported by substantial evidence. The State argues that Estavillo failed to preserve this argument

. We hold that Es tavillo failed to preserve his argument and that the claimed error is not manifest

. Accordingly, we decline to consider Estavillo’s argument.
A. CrR 3.5 Legal Principles
We review a trial court’s ruling after a CrR 3

. 5 suppression hearing to determine whether substantial ev idence supports the trial court’ s findings of fact and whether those findings, i n turn, support the trial court’ s conclusions of law. State v. Russell , 180 Wn.2d 860, 866, 330 P.3d 151 (2014). Evide nce is substantial when it is sufficient to persuade a fair

- minded, rational person of the truth of the finding. State v. Levy , 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). We review the trial court’ s conclusions of law de novo. Russell , 180 Wn.2d at 867. Miranda warnings provide that a suspect “be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he canno t afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda , 38 4 U.S. at 479. When a state agent conducts a custodial investigation but does not give Miranda warnings, we presume that the suspe ct’ s self

- incriminating statements are involuntary and cannot be admitted at trial. State v. Rhoden , 189 Wn. App. 193, 199, 356 P.3d 242 (2015).No. 51629

- 2

- II

6

B. Estavillo Failed T o Preserve His Argument As an initial matter, t he State argues that the post

- Miranda stat ements are not properly before this court because at the CrR 3.5 hearing, Estavillo failed to raise the Miranda issues he asserts on appeal. Speci fic ally, the State argues that at the CrR 3.5 hearing , the only issues Estavillo raised concerned the admissi bility of statements he made before being given Miranda warning s , and that Estavillo conceded the admissibility of his statements made after Officer Forbragd read Estavillo his Miranda rights. 7 Estavillo do es not respond to this argument

. 8 We hold that Estavillo failed to preserve this argument for appeal and that any error regarding what rights Officer Forbragd read to Estavillo is not manifest constitutional error. A party generally may not raise an argument on appeal that the party did not make to the trial court. State v. McFarland , 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). However, RAP 2.5(a)(3) permits review of an unpreserved claim of error if that error is a “ manifest error

7 T he State frames this as an invited error issue , stating , “Estavillo below made no argument that he was not properly advised or that he exercised his rights and thereby invited any error occasioned by omission from Officer Forbragd’s testimony.” Br. of Resp’t at 9

- 10. Further, the State argues that Estavillo conceded the issue, inviting the error. The invited error doctrine prohibits a party from appealing based on an error that he “set up” at trial. State v. Schierman , 192 Wn.2d 577, 618, 438 P.3d 1063 (2018) (plural ity opinion)

. We consider whether the defendant affirmatively assented to the error, materially contributed to it, or benefited from it. In re Pers. Restraint of Serano Salinas , 189 Wn.2d 747, 755, 408 P.3d 344 (2018)

. In the State’s briefing, it cites Estavillo’s “concession” as, “I think the statements [that were] prior to Miranda rights being read were not voluntary.” Br. of Resp’t at 8

. However, from reading the full record of Estavillo’s argument at the CrR 3.5 hearing, Estavillo did not affirmatively concede. Because a review of the record shows that Estavillo did not set up the error, and because the record cannot be fairly read to interpret Estavillo’s arguments as a concession of this issue, we do not consider this issue as invited error

. R ather , we address the issue as a failure to preserve argument

.
8 Estavillo did not file a reply brief.No. 51629

- 2

- II

7

affecting a constitutional righ t

. ” To show the error is man ifest, the defendant must show actual prejudice. State v. O’

Hara , 167 Wn.2d 91, 99 , 217 P.3d 756 (2009) . Prejudice is shown when it is plausible that the claimed error had practical and identifiable consequences in the trial. O’ Hara , 167 Wn.2d at 99. I f the facts necessary to adjudicate the claimed error are not in the appellate record, no actual prejudice has been shown , and the error is not manifest. O’ Hara , 167 Wn.2d at 99.
1. Estavillo Did Not Raise His Argument Below Here, Estavillo’s argument is that testimony offered during the CrR 3.5 hearing was not specific enough to support the trial court’s finding that adequate Miranda warnings were given and waived

. Estavillo argues that the record does not show Estavillo wai ved his specific rights, including the right to remain silent and the right to an attorney. Estavillo did not raise this argument below. Estavillo argu ed at the CrR 3.5 hearing only about statements he made prior to Officer Forbragd ’s warnings. At the h earing, Estavillo did not argue his Miranda warnings were inadequate.
2. Estavillo Fails T

o Show Manifest Error Because Estavillo did not make his argument below, he now has the burden on appeal to make a plausible showing that the State’s failure to specifically identify what rights Estavillo was read created practical and identifiable consequences at trial. We ho ld that Estavillo does not show any error is manifest. Here, Officer Forbragd testified only that he read a department

- issued card before questioning Estavillo

. T he State did not request Officer Forbragd recite the warnings he provided from the departmen t

- issued Miranda warnings card. Officer Forbragd’s testimonyNo. 51629

- 2

- II

8

ambiguously includes all Miranda warnings. Thus, n othing in the record supports that Estavillo was not read his complete Miranda warnings. And there is no evidence showing that the failure
to state which Miranda rights Estavillo heard created errors at trial. Without anything in the record to show actual prejudice, we hold that Estavillo ’s claimed error is not manifest

. C. Alternatively, Any Error I s Harmless
E ven if the trial court erred, any resulting error wa s harmless. Under the constitutional harmless error standard, an error is harmless if , within the entire context of the record , we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same verdict w ithout the error

. State v. Romero

- Ochoa , 193 Wn.2d 341, 347

- 4 8 , 440 P.3d 994 (2019). To make this determination, we utilize the “ overwhelming untainted evidence” test , which requires u s to consider the untainted evidence admitted at trial to determine if it is so overwhelming that it necessarily leads to a finding of guilt. State v. Scherf , 192 Wn.2d 350, 371, 429 P.3d 776 (2018)

. First, Estavillo’s statements did not concern the theft or the unlawful po ssession of a firearm charges. Initially, Estavillo stated that the man was “buck

- a** naked on top of [Estavillo’s] girlfriend in the hotel room.” VRP (March 8, 2018) at 157. Estavillo said he asked the man to leave, grabbed him, and placed him against the wall to detain him. Following Office r Forbragd’s reading of Miranda rights, Estavillo’s statements were similar to his first statements, except Estavillo “changed the story a little bit.” VRP (March 8, 2018) at 95. Estavillo again stated that told the victim to get out and pushed the victim out of the room. However, in his post

- Miranda statements, Estavillo denied grabbing the victim to detain him. Estavillo alsoNo. 51629

- 2

- II

9

spoke about his accomplice’s prostitution activities at the motel, and said he paid for the motel

room. Regarding the robbery ch arge, o verwhelming , untainted evidence from 19 witness testimonies a t trial supports Estavillo’s convictions. The plan to have the accomplice lure potential male victims into a hotel room with the promise of sex was testified to by the accomplice

. Facts of the robbery were testified to by the victim s , the accomplice, and multiple witnesses who saw the victim immediately after the robbery. Photographic and video evidence supported these testimonies. The gun used during the robbery was recovered from a wi tness who testified that Estavillo gave the gun to her and her ex

- boyfriend

. In the context of the entire record, we hold that , beyond a reasonable doubt , a reasonable jury would have found Estavillo guilty without Estavillo’s statements . As a result, we hold that any error was harmless.
II. LFO S Following Estavillo’s initial briefing, our Supreme Court decided State v. Ramirez , 191 Wn.2d 732, 426 P.3d 714 (2018) . In his supplemental briefing, Estavillo argues that the trial court improperly imposed a criminal filing fee, DNA collection fee, collection costs, and supervision assessment . Estavillo further argues that the trial court applied an improper interest provision

. The State concedes these errors and agrees with Estavillo

. We accept the State’s
concession s regarding the criminal filing fee, DNA collection fee, collection costs, and interest provision, and hold that the trial court erred when imposing the se LFOs and interest provision insofar as it applied to non

- restitution LFOs

. However, we ho ld that the community custody supervision assessment is not a “cost” under RCW 10.01.160(3) , and, therefore, was not improperly imposed

.No. 51629

- 2

- II

10

The State concedes that the criminal filing fee, DNA collection fee, collection costs, and the interest provision are improper under recent legislative amendments and State v. Ramirez , 19 1 Wn.2d 732 . We accept the State’s concession s and remand to the trial court to strike the criminal filing fee, DNA collection fee, collection costs, and interest accrual on non

- restitution
LFOs. Estavillo also argues, and the State concedes, that the supervision assessment must be stricken because i t is a discretionary cost

. Because the supervision assessment is not a cost, we disagree. RCW 10.01.160(3) now provides that the trial court shall not order a defendant to pay

costs if a defendant is indigent as defined in RCW 10.101.010(3)(a) through (c ). Similarly, RCW 9.94A.760 now provides that the trial court cannot order “costs” as described in RCW 10.01.160 if the defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). RCW 10.01.160(2) limits costs “to expenses specially incurred by the state in prosecuting the defendant or in administering the deferred prosecution program under chapter 10.05 RCW or pretrial supervision.” Here, Estavillo’s supervision assessment was imposed under RCW 9.94A.703(2)(d), which states, “Unless waived by the court, as part of any term of community custody, the court shall order an offender to . . . [p]ay supervision fees as determined by the [Department of Corrections].” The supervision assessment is a discretionary LFO. State v. Lundstrom , 6 Wn. App. 2d 388, 39 6 n.3, 429 P.3d 1116 (2018). However, the supervision assessment is not a discretionary “cost” merely because it is a discretionary LFO. Rather, the supervision assessment fails to meet the RCW 10.01.160(2)No. 51629

- 2

- II

11

definition of a “cost” because it is no t an expense specially incurred by the State to prosecute the defendant, to administer a deferred prosecution program, or to ad minister pretrial supervision. Because the supervision assessment is not a cost under RCW 10.01.160 , the trial court was not
req uired to conduct an inquiry into Estavillo’s ability to pay under RCW 10.01.160(2)

. See State v. Clark , 191 Wn. App. 369, 362 P.3d 309 (2015) (distinguishing fines from costs). However, Div ision Three of this court noted strong policy arguments in favor of the consideration of a defendant’s ability to pay discretionary LFOs even when such consideration is not required. Clark , 191 Wn. App. at 376. That court stated, “ The barriers that LFOs impose on an offender’s reintegration to society are well documen ted . . . and should not be imposed lightly merely because the legislature has not dictated that judges conduct the same inquiry required for discretionary costs. ” Clark , 191 Wn. App. at 376. We agree that this important policy should be broadly supporte d. Therefore , on remand, although the trial court is not required to reevaluate imposing the community custody supervision assessment in light of Estavillo’s ability to pay, we encourage the trial court to do so. Accordingly, we decline to accept the Sta te’s concession as to the supervision

assessment. However, because we are remanding for reconsideration of other LFOs in light of Estavillo’s financial status, we do not restrict the trial court from reconsidering the imposition of this discretionary asse ssment as well. We affirm Estavillo’s convictions, but remand for the trial court to strike the improper
LFOs.No. 51629

- 2

- II

12

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for publ ic record in accordance with RCW 2.06.040, it is so ordered.

Worswick, We concur:

Lee, A.C.J.

Cruser, J.