Filed Washington State Court of Appeals Division Two

March 3, 2020

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 52416-3-II

Respondent, v. ISIDRO LYNN APODACA, UNPUBLISHED OPINION

Appellant.

LEE, A.C.J. — Isidro L. Apodaca appeals his unlawful possession of a stolen vehicle conviction. He challenges the trial court’s refusal to give his abandoned property jury instruction and its imposition of interest on nonrestitution legal financial obligations (LFOs). The State concedes that the interest accrual provision on nonrestitution LFOs should be stricken. We affirm Apodaca’s conviction, but we remand to the sentencing court to strike the interest provision on nonrestitution LFOs.

FACTS

On February 1, 2018, William Marks discovered his green Honda Civic was missing. He had parked his locked vehicle at his apartment complex the night before. Marks reported to the police that his vehicle had been stolen.

The next day, Keola Ceridon, an asset protection team leader for a department store, observed a man and a woman in the parking lot with a stick object poking through the window of a green Honda Civic. The man appeared to be trying to open the window of the car. The two individuals eventually got into the vehicle and drove across the street to another parking lot. Ceridon called the police.

Officer Brian VanSickle responded and found the Honda in the parking lot. VanSickle ran the license plate through dispatch and discovered the vehicle was stolen. As he drove around to the front of the car, VanSickle saw a man, later identified as Apodaca, walking away from the back of the car. VanSickle stopped Apodaca. As VanSickle patted Apodaca down for weapons, Apodaca said, “‘Just let her go. She didn’t know the vehicle was stolen,’” referring to the woman with him. ^[2] Verbatim Report of Proceedings (VRP) (August 20, 2018) at 213.

Officer Vansickle then arrested Apodaca and he again stated, “‘Let her go. She did not know.’” 2 VRP (August 20, 2018) at 214. Apodaca told the officer he got the car in Kent, that he knew he should not have taken it, but he was cold. Apodaca then stated that someone else had already taken the car and he had gotten it off the side of the road. VanSickle found shaved keys and a file in Apodaca’s pockets.^[1]

The State charged Apodaca with unlawful possession of a stolen vehicle. During trial, Marks testified that his locked vehicle was taken from where he had parked it the night before and that he did not give anyone permission to use his vehicle. He also testified that when he retrieved his vehicle after Apodaca’s arrest, the ignition was “punched in” and the plastic between the dash and steering wheel was removed. ^[2] VRP (August 20, 2018) at 177-78. Officer VanSickle testified to Apodaca’s statements that the woman did not know the car was stolen, he took the vehicle because he was cold, and he got it off the side of the road.

Apodaca requested the following jury instruction: “Abandoned property is not the property of another. Property is abandoned when the owner intentionally gives up possession of the property.” Clerk’s Papers (CP) at 18. The trial court declined to give the proposed instruction, concluding, “In this particular case, I do not believe [the instruction] factually or legally fits the facts within this case.” 2 VRP (August 20, 2018) at 247. The trial court clarified that assuming Apodaca’s statement was true, “[t]he fact that [the vehicle] was left by the side of the road would also imply that a person had left to go get a tow truck, or some other such thing” and would not support that the vehicle was abandoned. ^[2] VRP (August 20, 2018) at 249. Thus, “there is not, to this Court’s mind, sufficient facts before the trier of fact in order to make that particular argument.”

2 VRP (August 20, 2018) at 249.

The trial court also stated that Apodaca could still argue to the jury that he did not have knowledge the vehicle was stolen. Defense repeatedly argued to the jury that Apodaca did not know the vehicle was stolen. Specifically, defense counsel argued to the jury that if someone else stole the car and abandoned it on the side of the road, then it was “not a crime” for Apodaca to take possession of the vehicle. ^[2] VRP (August 20, 2018) at 273. Defense counsel also argued to the jury that the evidence suggested that Apodaca did not know the car was stolen “until he was arrested.” 2 VRP (August 20, 2018) at 274.

The jury found Apodaca guilty as charged. The sentencing court found Apodaca indigent. Apodaca’s judgment and sentence includes a boilerplate interest provision, stating, “The financial obligations imposed in this judgment shall bear interest from the date of the judgment until payment in full, at the rate applicable to civil judgments.” CP at 79. Apodaca appeals.

ANALYSIS

A. JURY INSTRUCTION

Apodaca argues that the trial court erred by refusing to provide his proposed jury instruction regarding abandoned property. He further argues the trial court’s refusal to provide his proposed jury instruction denied Apodaca his constitutional right to present a defense. We disagree.

When reviewing trial court discretionary rulings that potentially implicate constitutional rights, we engage in a “two-step review process.” See State v. Arndt, ___ Wn.2d ___, 453 P.3d 696, 703 (2019) (concerning discretionary evidentiary rulings) (citing State v. Clark, 187 Wn.2d 641, 648-56, 389 P.3d 462 (2017)). We first review whether there has been an abuse of discretion and then consider de novo the constitutional question of whether the ruling deprived the defendant of his or her Sixth Amendment right to present a defense. Id.

twice told the officer that the woman he was with did not know the vehicle was stolen, but did not reference his own knowledge. Instead, Apodaca told VanSickle he got the car in Kent and that he knew he should not have taken it, but he was cold. He later told VanSickle that someone else had already taken the vehicle and he just got it off the side of the road. VanSickle found shaved keys and a file in Apodaca’s pockets.

The trial court declined to give Apodaca’s proposed instruction, concluding, “In this particular case, I do not believe [the instruction] factually or legally fits the facts within this case.”

2 VRP (August 20, 2018) at 247. The trial court clarified that assuming Apodaca’s statement about finding the vehicle on the side of the road was true, “that . . . would . . . imply that a person had left to go get a tow truck, or some other such thing” and would not support that the vehicle was abandoned. ^[2] VRP (August 20, 2018) at 249. The trial court also stated that Apodaca could still argue to the jury that he did not have knowledge the vehicle was stolen, which he did.

Because the evidence in the record did not support Apodaca’s proposed jury instruction, the trial court’s ruling was not manifestly unreasonable. Thus, there was no abuse of discretion.

that the evidence suggested that Apodaca did not know the car was stolen “until he was arrested.”

2 VRP (August 20, 2018) at 274.

Accordingly, Apodaca’s proposed jury instruction was not necessary in order for him to argue that he did not know the vehicle was stolen. He, therefore, fails to show that omission of his proposed jury instruction limited his right to present a defense.^[3]

B. LFOS

Apodaca challenges the provision of his judgment and sentence imposing interest on nonrestitution LFOs in light of State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018). The State concedes that the interest accrual provision on nonrestitution LFOs should be stricken. We accept the State’s concession.

Currently, the LFO statutes prohibit sentencing courts from imposing interest accrual on the nonrestitution portions of LFOs. RCW 10.82.090(2)(a); Ramirez, 191 Wn.2d at 746-47 (2018 legislative amendments apply prospectively to all cases pending on direct review and not final when the amendment was enacted). Therefore, we accept the State’s concession that the interest accrual provision on nonrestitution LFOs should be stricken, and we remand to the sentencing court to strike the interest accrual provision on nonrestitution LFOs from Apodaca’s judgment and sentence.

We affirm Apodaca’s conviction, but we remand to the sentencing court to strike the interest provision on nonrestitution LFOs.

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

Lee, A.C.J.

We concur:

Worswick, J.

Cruser, J.