State Of Washington, Respondent V. Benjamin C. Serrato

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53574-2-II
Respondent,
v.
BENJAMIN C. SERRATO, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. —After a jury convicted Benjamin Serrato of murder in the first degree, he
appeals his sentence. He argues that the court erred in imposing a community custody condition
prohibiting him from possessing or consuming alcohol because the condition is not crime related.
He also argues that the judgment and sentence contains two scrivener’s errors regarding legal
financial obligations (LFOs).
The State concedes that the judgment and sentence contains scrivener’s errors but argues
that the challenged community custody condition is authorized by statute. We agree with the State
and remand to strike the criminal filing fee and interest bearing provisions of the judgment and
sentence, but affirm the community custody condition.
FACTS
The State charged Serrato with murder in the first degree after the body of his partner and
roommate, Christopher Libert, was found next to a parking lot near Dougan Falls in Skamania
County with multiple gunshot and stab wounds. After a trial, the jury found Serrato guilty of
murder in the first degree. The jury also found that Serrato committed a crime against a family or
Filed
Washington State
Court of Appeals
Division Two
October 19, 2021

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household member, and that he was armed with a firearm and a deadly weapon at the time of the
commission of the crime.
The court sentenced Serrato to 364 months of confinement and 36 months of community
custody. The court prohibited Serrato from possessing or consuming alcohol as a community
custody condition. The court also ordered Serrato to pay restitution, a victim’s assessment fee,
and a mandatory deoxyribonucleic acid (DNA) collection fee. At the sentencing hearing, the court
stated, “I am going to make a finding, that you are, and continue to be indigent, and will be, for
the foreseeable future, waive any other discretionary costs.” Report of Proceedings (RP) at 1701.
The judgment and sentence listed a $200 criminal filing fee, in addition to the financial
obligations listed above, and contained a paragraph that reads: “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. RCW 10.82.090. An award of costs on appeal against the defendant
may be added to the total legal financial obligations. RCW 10.73.160.” Clerk’s Papers (CP) at
111.
Serrato appeals.
ANALYSIS
I. COMMUNITY CUSTODY CONDITION
Serrato argues that the court erred when it imposed a community custody condition
prohibiting him from possessing alcohol because the crime had no relation to possessing alcohol.
The State asserts that the trial court did not err in imposing the prohibition of possession
of alcohol because it is expressly permitted by statute. We agree with the State.
We review the imposition of community custody conditions for abuse of discretion,
reversing the condition if it is manifestly unreasonable. State v. Sanchez Valencia, 169 Wn.2d

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782, 791-92, 239 P.3d 1059 (2010). A condition is illegal or erroneous if it exceeds statutory
authority. See State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018).
The trial court’s discretionary community custody conditions include ordering an offender
to “[r]efrain from possessing or consuming alcohol.” RCW 9.94A.703(3)(e). A separate provision
allows a court to order a defendant to “[c]omply with any crime-related prohibitions.” RCW
9.94A.703(3)(f). A “crime-related prohibition” is defined as “an order of a court prohibiting
conduct that directly relates to the circumstances of the crime for which the offender has been
convicted.” RCW 9.94A.030(10).
The plain language of RCW 9.94A.703(3)(e) allows the court to impose this prohibition
regardless of whether the possession of alcohol related to the commission of the crime. See State
v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258 (2003) (holding that a trial court could impose
an earlier version of this prohibition regardless of whether alcohol contributed to the commission
of the underlying crime because it is statutorily authorized). Accordingly, we conclude that the
trial court did not err in imposing this condition.
II. LEGAL FINANCIAL OBLIGATIONS
By statute, the court is not authorized to order a defendant to pay costs if they are indigent
at the time of sentencing. RCW 10.01.160(3). Accordingly, a sentencing court cannot order a
person who is indigent as defined in RCW 10.101.010(3)(a)-(c) to pay the $200 criminal filing
fee. State v. Ramirez, 191 Wn.2d 732, 746, 426 P.3d 714 (2018). The proper remedy for a
scrivener’s error is correction upon remand. State v. Makekau, 194 Wn. App. 407, 421, 378 P.3d
577 (2016).

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A. Filing Fee
Serrato argues that the court erred in ordering him to pay a discretionary filing fee because
he is indigent. The State concedes that the court erred in ordering Serrato to pay the filing fee.
The record shows that the trial court found Serrato indigent and it specifically “waive[d]
any . . . discretionary costs.” RP at 1701. The $200 filing fee meets the definition of a cost under
RCW 10.01.160(2) because it is an expense incurred by the State in prosecuting the defendant.
However, the court failed to check the box next to the paragraph in the judgment and sentence
stating, “The defendant is indigent as defined by RCW 10.101.010(3)(a)-(c).” CP at 106. The
judgment and sentence also imposes the $200 criminal filing fee. This appears to be a scrivener’s
error because the trial court said in its oral ruling that it was waiving discretionary costs and the
filing fee is not mandatory. Accordingly, we accept the State’s concession and direct the trial court
to correct the scrivener’s error on remand.
B. Interest
Serrato argues that the court erred by ordering interest to accrue on his non-restitution LFO
charges. The State concedes that the judgment and sentence mistakenly included an order that all
LFOs bear interest.
The judgment and sentence contains a paragraph stating that “[t]he 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. RCW 10.82.090.” CP at 111. After the 2018 amendments
to statutes governing LFOs, RCW 10.82.090 prohibits interest from accruing on non-restitution
LFOs. LAWS OF 2018, ch. 269, § 1. We accept the State’s concession and remand to strike this
erroneous provision.

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CONCLUSION
We affirm the challenged community custody condition, but remand to strike the $200
criminal filing fee and interest bearing provisions on Serrato’s judgment and sentence.
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.
Veljacic, J.
We concur:
Worswick, J.
Glasgow, A.C.J.