IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 71126-1-1
Respondent,
DIVISION ONE
v.
PEDRO PABLO NAVARRO, PUBLISHED OPINION
Appellant. FILED: June 29, 2015
Becker, J. — Interpreting a statute, we hold that all sexual assault
protection orders entered against a defendant in one criminal prosecution expire
two years after the expiration of the longest sentence.
This case involves both sexual assault protection orders and no-contact
orders. A sexual assault protection order protects a victim from contact with an
offender who is not otherwise restrained. Conviction of the offender is not a
prerequisite. No-contact orders, on the other hand, are not limited to victims, and
they are entered only after the offender is convicted of a crime. There are
different provisions governing the length of time these orders may remain in
effect. This is a case where the combination of both types of orders, despite
some overlap, ensures that each victim is protected for at least two years after
the offender is no longer in any form of custody.
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Appellant Pedro Navarro used a cellular phone and social media to
contact eleven boys in two different middle schools. Pretending to be a girl, he
would initiate friendly contact. After a few days, his communication would
become sexual. He asked the boys, among other things, if they would send him
nude photographs and ifthey would like oral sex. He suggested that they could
meet his brother who would perform oral sex on them.
At trial, Navarro faced eleven counts of communication with a minor for
immoral purposes. Navarro was also charged with two counts of extortion for
threatening two of the victims when they stopped responding to his
communications.1
A jury acquitted Navarro on three of the communication counts and
convicted him as charged on the remaining counts. The jury found that Navarro
committed each extortion with sexual motivation. The court imposed a 96-month
base sentence and two 18-month sexual motivation enhancements to run
consecutively for a total of eleven years.
At sentencing on October 11, 2013, the court entered sexual assault
protection orders protecting all eleven of the boys involved in the case. All orders
were set to expire twelve years later on October 11, 2025. As part of the
judgment and sentence for extortion with a sexual motivation, the trial court
1 The counts of communication were I, III, IV, V, VI, VII, IX, X, XI, XII, and XIII.
The extortion counts were II and VIII. It is not clear why the State persists in the archaic
practice of using Roman numerals in charging documents, pleadings, and
briefs. Roman numerals generate confusion because they are hard to read, particularly
where there are more than two or three counts.
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imposed no-contact orders protecting all eleven boys for ten years, the duration
of the maximum term for extortion.
Navarro appeals.
SEXUAL ASSAULT PROTECTION ORDERS
The first issue on appeal is whether the expiration date was calculated
correctly for the sexual assault protection orders. This issue turns on the
interpretation of a statute. Our review is de novo. State v. Thompson, 151
Wn.2d 793, 801, 92 P.3d 228 (2004).
A victim of sexual assault may petition for a protection order against the
offender regardless of whether or not there is a pending lawsuit, complaint,
petition, or other action between the parties. RCW 7.90.020(2).
Sexual assault is the most heinous crime against another person
short of murder. Sexual assault inflicts humiliation, degradation,
and terror on victims. According to the FBI, a woman is raped
every six minutes in the United States. Rape is recognized as the
most underreported crime; estimates suggest that only one in
seven rapes is reported to authorities. Victims who do not report
the crime still desire safety and protection from future interactions
with the offender. Some cases in which the rape is reported are not
prosecuted. In these situations, the victim should be able to seek a
civil remedy requiring that the offender stay away from the victim. It
is the intent of the legislature that the sexual assault protection
order created by this chapter be a remedy for victims who do not
qualify for a domestic violence order of protection.
RCW 7.90.005.
Unless entered in conjunction with a criminal case, sexual assault
protection orders have a maximum duration of two years. RCW 7.90.120(2).
When a criminal prosecution results in a conviction for a sex offense and a
condition of the sentence restricts the defendant's ability to have contact with the
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victim, the condition must be recorded as a sexual assault protection order.
RCW 7.90.150(6)(a). By statute, such an order remains in effect for two years
after the defendant is released from restraint on "any sentence":
A final sexual assault protection order entered in conjunction with a
criminal prosecution shall remain in effect for a period of two years
following the expiration of any sentence of imprisonment and
subsequent period of community supervision, conditional release,
probation, or parole.
RCW 7.90.150(6)(c).
Navarro contends that the statute's reference to "any sentence" means
"any sentence" imposed for the predicate crime. For the crime of communication
with a minor for an immoral purpose, the maximum sentence is five years. RCW
9.68A.090(2); RCW 9A.20.021(1)(c). For extortion, it is ten years. RCW
9.68A.090(2); RCW 9A.20.021(1)(b). Six of the boys were involved only in the
convictions for communication for an immoral purpose. Navarro argues that the
orders protecting these six boys should remain in effect for two years after the
expiration of Navarro's sentences for that crime, while the orders protecting the
two victims of the extortion counts should remain in effect for two years after the
expiration of his sentences for that crime. Under Navarro's interpretation, the
orders protecting the six victims of immoral communication could expire while
Navarro was still under restraint on the longer sentences for the two extortion
convictions.
The statute does not relate the phrase "any sentence" to a predicate crime
or to an offense committed against a particular victim. The phrase "any
sentence" refers back to the order "entered in conjunction with a criminal
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prosecution." Thus, the plain language directs that protection orders entered in
conjunction with a criminal prosecution will remain in effect for two years
following any sentence the court actually imposes in that proceeding. This
interpretation better serves the purpose of a sexual assault protection order,
which is intended to protect a victim for two years after the offender is no longer
restrained. We conclude that where an offender is convicted of various offenses
in a single prosecution, sexual assault protection orders remain in effect for two
years after the expiration of the longest sentence.
Navarro does correctly point out that the sexual assault protection orders
imposed in his case were erroneously set to expire exactly twelve years after he
was sentenced. One reason why that expiration date is erroneous in Navarro's
case is that he is entitled to credit for time served before sentencing. A second
reason why the fixed expiration date exactly twelve years after sentencing is
erroneous is that an offender's actual release date can seldom be pinpointed at
sentencing. The statute does not say that orders entered in conjunction with a
criminal prosecution will remain in effect until two years after the end of the
statutory maximum term, which is apparently how the trial court decided on a
term of twelve years. Rather, the statute provides that the orders shall remain in
effect for a period of two years after "the expiration of any sentence of
imprisonment" and subsequent period of restraint. RCW 7.90.150(6)(c).
Because an offender's actual release date is unknowable at the time of
sentencing, a sexual assault protection order should not provide a fixed
expiration date. A preferable approach is simply to track the language of the
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statute by stating, for example, that the order "shall remain in effect for a period
of two years following the expiration" of the longest sentence served by the
offender as a result of the prosecution. RCW 7.90.150(6)(c).
NO-CONTACT ORDER
In addition to the sexual assault protection orders, the court issued a no-
contact order. By its terms, Navarro was prohibited from contacting the eleven
boys for "the maximum term of 10 years" for the crime of extortion.
Navarro contends that for the nine boys who were not victims of extortion,
the duration of the no-contact order cannot exceed the 5-year statutory maximum
for communication.
The no-contact order was authorized as a crime-related prohibition.
Under RCW 9.94A.505(8), a trial court may impose a no-contact order for the
maximum term of a conviction, even extending beyond community custody.
State v. Armendariz, 160Wn.2d 106, 112, 120, 156P.3d201 (2007).
No-contact orders are not limited to the victims of the crime. See State v.
Warren, 165 Wn.2d 17, 32-34, 195 P.3d 940 (2008), cert, denied, 556 U.S. 1192
(2009). In this case, all eleven boys served as witnesses. The evidentiary value
of each boy's testimony was not limited to proving the count for which he was the
victim. Each boy's testimony helped establish a pattern of activity proving that
one person—defendant Navarro—was responsible for all the immoral
communication. One of the extortion victims testified that in the hope of stopping
Navarro's threats, he provided Navarro with several of his friends' phone
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numbers. The testimony of those friends that they began receiving similar text
messages shortly thereafter confirmed the extortion victim's testimony.
"Crime-related prohibitions" are orders directly related to "the
circumstances of the crime." RCW 9.94A.030(10). As witnesses in support of
the extortion charge, all eleven boys were directly connected to the
circumstances of the crime of extortion. We conclude all of them were properly
included in the no-contact order for the maximum 10-year term of the crime of
extortion.
RIGHT TO PROCEED WITHOUT COUNSEL
Navarro moved to proceed pro se, but he changed his mind after the court
engaged him in a colloquy. He contends the trial court gave him incorrect
information, rendering his waiver of his right to proceed pro se invalid.
When a defendant expresses a desire to proceed without the assistance
of counsel, the trial court must assure the defendant understands the risks of
doing so. Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 45 L. Ed. 2d
562 (1975).
In a colloquy with Navarro after he moved to proceed pro se, the trial court
told him he would be "completely" on his own, with no turning back once he
decided to let his attorney go:
THE COURT: . . . Why would you want to do this on your
own? I don't understand.
MR. NAVARRO: I don't know.
THE COURT: You don't know? But, I have to know before I
let you make this huge decision to represent yourself. And you
don't get to change your mind; once it's done, it's over. She steps
away; she's off the case, and you're completely on your own. Do
you know how to cross-examine a witness?
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MR. NAVARRO: You're saying that if I go pro se, I'm
completely on my own.
THE COURT: You're completely on your own. You have no
right to standby counsel.
MR. NAVARRO: And I can't recall my pro se status.
THE COURT: No. This is not—this is not a game. It's done.
I let her go here today; you're done.
At the end of the colloquy, Navarro withdrew his request to proceed pro
se. He now contends that the trial court should have told him there might be a
possibility, however slim, that if he changed his mind, the court could exercise its
discretion to reappoint counsel.
Navarro was not misinformed. The court accurately conveyed to him that
he could not count on being able to regain the assistance of counsel after
waiving that right. There is no right to reappointment of counsel if, after
successfully obtaining pro se status, a defendant changes his mind. State v.
DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991). We conclude Navarro
validly waived his right to proceed pro se.
STATEMENT OF ADDITIONAL GROUNDS
Navarro submitted a statement of additional grounds for review under
RAP 10.10, alleging three instances of prosecutorial misconduct in closing
argument. In each instance, a prompt objection was made and sustained. The
remarks do not provide a basis for further review.
ERRORS IN THE JUDGMENT & SENTENCE
Navarro was ordered to complete six months of community custody for
failure to register as a sex offender, although he was not charged with that crime.
The State concedes error. On remand, this provision shall be stricken. The
8
No. 71126-1-1/9
State also concedes that remand is necessary to change Navarro's offender
score from 30 to 27.
The convictions are affirmed. The sentence is reversed and remanded to
adjust the language establishing the duration of the sexual assault protection
orders and to make other corrections identified in and consistent with this
opinion.
State Of Washington v. Pedro Navarro
Combined Opinion