                                                                          FILED
                                                                      JANUARY 4, 2018
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 34703-6-111
                     Respondent,              )
                                              )
       V.                                     )
                                              )
JOSE LUIS MATA,                               )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, C.J. -Jose Luis Mata asks for a new trial on charges that he possessed

methamphetamine with the intent to deliver. He claims his trial counsel performed

ineffectively when failing to request a lesser included offense jury instruction for the

inferior crime of possession ofmethamphetamine only. We affirm his conviction

because the trial evidence did not support a jury instruction for mere possession. We

remand, nonetheless, for a hearing on the imposition of legal financial obligations.

                                          FACTS

       The story behind the prosecution of Jose Mata begins with law enforcement's

apprehension of Christian Gonzalez. Christian Gonzalez later informed on Mata.
No. 34703-6-III
State v. Mata


      On April 14, 2016, Pasco Police Detective Jeremy Jones patrolled the streets of

Pasco when he spotted Christian Gonzalez, then unknown to Jones, commit a bicycle

infraction. Detective Jones signaled the bicyclist to stop and attempted to speak with

Gonzalez, but, as Jones exited his patrol car, Gonzalez escaped on his bike. A chase

ensued as Jones radioed police dispatch for assistance. Upon catching Gonzalez, Jones

shoved him from the bike. Gonzalez escaped again, and the chase continued on foot.

After a block and a half, Jones apprehended Gonzalez.

      In the meantime, other officers arrived at the location where Detective Jeremy

Jones arrested Christian Gonzalez. Pasco Detective Chad Pettijohn detained Gonzalez

and searched his person incident to arrest. Detective Pettijohn found a bag of

methamphetamine in Gonzalez's pants back pocket and $200 on his person. Detective

Jones asked Detective Nathan Carlisle to retrace and search Gonzalez's path. Detective

Carlisle found methamphetamine in a large bag on the ground near where Jones shoved

Gonzalez from the bicycle. The large bag contained smaller bags. Later another officer

found a bag of methamphetamine inside a sock in Gonzalez's waistband.

      Eventually law enforcement weighed the amount of methamphetamine found in

the respective bags. The bag found in the pants pocked weighed 16.78 grams. The bag

found in the waistband contained 29 .69 grams of methamphetamine. The large bag on

the ground held 350.53 grams of the controlled substance.

      Detective Jeremy Jones took Christian Gonzalez to the Franklin County jail.

                                            2
No. 34703-6-III
State v. Mata


Because of the amount of methamphetamine captured, Jones also invited United States

Drug Enforcement (DEA) Agent Andrew Corral to join him in interviewing Gonzalez

about his possession of controlled substances.

       Andrew Corral and Jeremy Jones questioned Christian Gonzalez on April 14.

Gonzalez boasted about a large amount of methamphetamine stored inside a garage. He

specified that officers would find the drugs inside the garage wall's sheetrock and that

officers could pull a rope attached to the wall in order to remove the drugs. Gonzalez

utilized Google Maps on a detective's phone to identify the address of the garage, which

identification introduces us to defendant Jose Mata. The address constituted the home of

Jose Mata's parents. Mata lived inside the garage, which had been converted into a

bedroom and living room. Gonzalez insisted that the officers would find drugs only in

the garage and not inside the home. Gonzalez stated that no one in the Mata family knew

of the presence of the methamphetamine.

       On the night of April 14, 2016, Pasco Police Department officers, including

Detectives Jeremy Jones and Nathan Carlisle, along with DEA Agent Andrew Corral

procured a search warrant for the Mata garage. Law enforcement went immediately to

the Mata home. Jose Mata's mother and stepfather opened the front door and allowed the

officers access inside the home. Meanwhile additional officers secured the perimeter of

the home. Dogs in the backyard barked at the officers' presence, at which time Jose Mata

exited the garage's large windowless window to discern the reason for the yelping dogs.

                                             3
No. 34703-6-111
State v. Mata


Officers detained Mata, who asked the officers to explain their presence. Detective Jones

shrewdly responded with a question: "[w]hat does it say on the back of their vests?"

Report of Proceedings (RP) (July 27, 2016) at 17. Mata read "DEA" and thoughtfully

replied: "oh shit." RP (July 27, 2016) at 17.

       Law enforcement officers next searched inside the wall of the Mata garage.

Officers found two "food saver" bags of methamphetamine taped together. Both bags

contained smaller bags of methamphetamine similar to the small bags officers found on

Christian Gonzalez when arresting him. Officers found another "food saver" bag of

similar packaging near a couch and a mannequin inside the garage. The packaging

coincided with the packaging that law enforcement found on the person of Christian

Gonzalez and on the ground where Gonzalez fled. In total, officers seized six pounds of

methamphetamine, with a street value of at least $20,000, from the garage. Officers also

snatched, from the top drawer of a dresser in the middle of the garage, a digital scale with

white residue thereon and, from another dresser against the wall, a heavily used

methamphetamine pipe. Officers discovered no money in the garage or on Jose Mata's

person. The police forwarded the bags to the crime laboratory for fingerprint analysis.

Officers found no controlled substances on the person of Mata.

      During his arrest on April 14 and thereafter, Jose Mata declined to speak to

officers. Christian Gonzalez, however, expanded his narrative during a law enforcement

interview on the morning of April 15 at the Franklin County jail. Gonzalez stated the

                                                4
No. 34703-6-III
State v. Mata


methamphetamine was manufactured in Mexico. He identified a copious drug trafficker

in Tijuana, named Fabio. Fabio transferred the drugs to Huero, who drove the controlled

substances from Mexico to Pasco.

       Throughout the April 15 law enforcement interview, Christian Gonzalez

repeatedly requested the detectives for help in reducing his charges. Detectives promised

to speak with prosecutors about his cooperation. Gonzalez repeated that Jose Mata did

not distribute methamphetamine, but only stored the drugs. DEA Agent Andrew Corral's

notes of the interview read:

               "Detectives Jones, TFO Task Force Officer Corral, myself,
       continued to speak to Gonzalez about the locations of narcotics, and
       Gonzalez stated that the family-Gonzalez stated that the family that lived
       at the residence where the narcotics were located had no knowledge of him
       hiding the narcotics there. Gonzalez also stated that had his friend that
       lives at the location did not have knowledge of the narcotics and that the
       friend had always been there-had always been there for him, for
       Gonzalez."

RP (July 27, 2016) at 67. A later paragraph of Corral's notes recorded Gonzalez's

comments:

              "Gonzalez again stated that the people that live at the residence do
       not have any knowledge that narcotics were there."

RP (July 27, 2016) at 67. A third paragraph noted that officers asked Gonzalez again

about Mata's role:

               "Gonzalez was again asked about Mata's involvement with narcotics
       trafficking, and Gonzalez said that he didn't know Joey [Mata] to deal
       drugs at all and that they just smoke together."

                                             5
No. 34703-6-III
State v. Mata



RP (July 27, 2016) at 68. A fourth paragraph of Corral's report noted more questioning:

               "Gonzalez was again asked about Mata's involvement in narcotics
       trafficking, and again Gonzalez stated that he didn't know of Joey's
       involvement."

RP (July 27, 2016) at 69. Detectives refused to believe Gonzalez's denial of Mata's

participation in sales. The officers emphasized the importance of full disclosure for

Gonzalez to "get consideration" for the federal narcotics charges he faced.

       Christian Gonzalez eventually changed his story and claimed that Jose Mata

showed Gonzalez the hole in the wall, helped him place the methamphetamine bags

inside the wall, and assisted in reinforcing the wall to further conceal the drugs.

Gonzalez added that he handed Mata $20 to purchase the scale seized during the officers'

execution of the warrant and he also gave Mata an ounce of methamphetamine for Mata's

help. Gonzalez told officers that Mata helped sell methamphetamine at a Pasco motel.

       Law enforcement never corroborated Christian Gonzalez's claim, uttered after

continuous pressure, that Jose Mata aided in hiding or selling the methamphetamine. The

laboratory did not find Mata's fingerprints on the methamphetamine bags. Officers never

found the ounce of methamphetamine that Mata supposedly received from Gonzalez.

                                       PROCEDURE

       The State of Washington charged Jose Luis Mata with unlawful possession of a

controlled substance with intent to deliver. The prosecution proceeded to a jury trial.


                                              6
No. 34 703-6-111
State v. Mata


       At trial, Detective Nathan Carlisle testified for the State of Washington. Detective

Carlisle had worked in the Pasco Police Department's street crimes unit for five years.

During his testimony, Carlisle described his involvement in executing the search warrant

at Jose Mata's home. The State asked Carlisle about the scale found in the garage: "In

your experience what are these scales used for?" RP (July 27, 2016) at 42. Detective

Carlisle responded: "These digital scales are commonly used for narcotics and measuring

up and dividing up for amounts for sale or use." RP (July 27, 2016) at 42 (emphasis

added). DEA Agent Andrew Corral averred that the amount of methamphetamine found

in the garage identified the presence of a person high in the drug trafficking strata.

       In the cross-examination of DEA Agent Andrew Corral, Jose Mata's counsel

asked him to read portions of his written report, which detailed the events that transpired

during the night of April 14 and the April 14 and 15 interviews of Christian Gonzalez.

Agent Corral read the entries in his notes where Gonzalez repeatedly averred that Mata

knew not of the methamphetamine stored in his garage. A forensic drug chemist testified

and identified the seized drugs as methamphetamine.

       The State sought to admit, as exhibits, two pictures of Jose Mata's personal

belongings. In objecting to the photographs' admission, Mata's counsel explained:

               MR. STOVERN: It is not necessary for them to show items 3 and 4
       to prove dominion and control. They have already testified that Joey Mata
       lives there. They've already got a prescription bottle with his name on it.
       It's not our intention to--to say that he does not live there ....



                                              7
No. 34703-6-111
State v. Mata


               MR. DOWNER: As Mr. Chow stated, I disagree, your Honor. It's
       just one of the many things that led officers to believe that, one, Mr. Mata
       was staying there, and there's many items of his, his personal effects
       throughout there.
               MR. STOVERN: We'll stipulate that he lived in the garage on the
       record right now.
               MR. CHOW: We have the burden. I don't think the defense gets to
       tell us how to do our job.

RP (July 27, 2016) at 14-15. The trial court sustained the objection to admission of the

photographs while commenting that he accepted Jose Mata's stipulation that he lived in

the garage.

       Neither Christian Gonzalez nor Jose Mata testified at trial. Mata called no

witnesses.

       During closing arguments, defense counsel underscored that Christian Gonzalez,

not Jose Mata, faced federal charges for trafficking in methamphetamine. Counsel

emphasized that Gonzalez repeatedly told law enforcement that Mata knew not of the

methamphetamine stashed in the garage wall. Counsel emphasized that Gonzalez

accused Jose Mata of planning to deliver the methamphetamine only after four denials

and only after Gonzalez concluded he must implicate Mata in order to lessen his federal

charges or sentence. Counsel highlighted the facts that law enforcement found no drugs

or money on Mata and no fingerprints of Mata on the methamphetamine bags. Counsel

highlighted that Gonzalez failed to testify in person such that the jury heard his story only

by second hand or third hand.



                                             8
No. 34703-6-III
State v. Mata


       The trial court instructed the jury on the elements of unlawful possession of a

controlled substance with intent to deliver. The instructions included a definition of

"possession" as "having a substance in one's custody or control. It may be either actual

or constructive." Clerk's Papers (CP) at 60. Finally, the court instructed the jury on

intent to deliver:

              Deliver or delivery means the actual or constructive or attempted
       transfer of a controlled substance from one person to another.

CP at 63. Defense counsel did not request an instruction for possession only.

       The jury found Jose Mata guilty of the charge of unlawful possession with intent

to deliver. Mata faced a standard range sentence of five to ten years. The trial court

sentenced him to seven and one-half years.

       During the sentencing hearing, the trial court asked defense counsel if he had

spoken to Jose Mata about his ability to pay fines, restitution, and fees. Counsel

responded:

              MR. STOVERN: I know currently he has a lot of [legal financial
       obligations] LFO's from previous matters.
              THE COURT: That doesn't have anything to do with whether he can
       work or not.
              MR. STOVERN: He is applying for [Social Security Insurance] SSI,
       but that's gonna be delayed.
              THE COURT: I will assess the appropriate fines and he can address
       those later with the LFO clerks.

RP (Aug. 16, 2016) at 4. The court signed boilerplate language findings in the judgment

and sentence that read: "the defendant is an adult and is not disabled and therefore has the

                                             9
No. 34703-6-III
State v. Mata


ability or likely future ability to pay the legal financial obligations" including the

defendant's financial resources and the likelihood that the defendant's status will change.

CP at 78.

                                  LAW AND ANALYSIS

                             Ineffective Assistance of Counsel

                             And Lesser Crime Jury Instruction

       Although Jose Mata did not testify, under Mata's version of the events, he never

intended to deliver the drugs found inside his garage bedroom wall. Mata protests that

only Christian Gonzalez planned to distribute the methamphetamine and that Gonzalez

merely stored the substance at Mata's house. He emphasizes that Gonzalez implicated

him only after threats and promises from law enforcement. Mata contends that, at most,

he is guilty of possession of controlled substances. Since simple possession of a

controlled substance is a lesser included offense of possession with the intent to deliver,

Mata argues he was entitled to such an instruction permitting the jury to convict him of

the inferior crime. He faults his attorney for failing to propose the lesser included offense

instruction. He asks us to reverse his conviction and remand for a new trial based on

ineffective assistance of counsel.

       The Sixth Amendment to the United States Constitution guarantees an accused the

right to legal counsel in criminal trials. Washington's Constitution also grants an accused

in a criminal prosecution the right to appear by counsel. WASH. CONST. art. I,§ 22.

                                              10
No. 34703-6-III
State v. Mata


The right to counsel under the state and federal constitutions is coextensive. State v.

Long, 104 Wri.2d 285,288, 705 P.2d 245 (1985).

          The constitution secures the accused more than an attorney who sits next to him

during trial. To meaningfully protect an accused's right to counsel, the constitution

demands effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The law recognizes the right to effective

assistance not for its own sake, but for its effect on the ability of the accused to receive a

fair trial. State v. Wehbe, 122 Wn. App. 683, 694, 94 P.3d 994 (2004).

       State and federal decisions follow the teachings and legal test announced in the

United States Supreme Court's seminal decision of Strickland v. Washington, 466 U.S.

668. A claim of ineffective assistance of counsel requires a showing that (1) counsel's

performance was deficient, and (2) the deficient performance prejudiced the defendant.

Strickland v. Washington, 466 U.S. at 687. If one prong of the test fails, we need not

address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563

(1996).

       For an accused to show ineffective assistance of counsel for failing to request a

jury instruction, the accused must establish entitlement to the instruction. State v.

Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007). Therefore, we first review whether

the trial court should have, assuming Jose Mata requested one, delivered a lesser included

jury instruction for the inferior crime of possession of a controlled substance. Because

                                              11
No. 34703-6-III
State v. Mata


we hold that the evidence did not support a conviction for possession without an intent to

deliver, we do not further address whether defense counsel's failure to seek the

instruction constituted ineffective assistance of counsel.

       RCW 10.61.006 codifies the right to a lesser included offense jury instruction.

The statute reads:

               In all other cases the defendant may be found guilty of an offense the
       commission of which is necessarily included within that with which he or
       she is charged in the indictment or information.

       Washington's leading decision on lesser included offenses jury instruction is State

v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). In Workman, the state high court

instituted a two-tine test to determine whether a party is entitled to an instruction on a

lesser included offense. Under the first prong of the test, labeled the legal prong, the

court asks whether the lesser included offense consists solely of elements necessary to

conviction of the greater, charged offense. State v. Condon, 182 Wn.2d 307, 316, 343

P.3d 357 (2015). If one may commit the greater offense without committing the lesser

offense, the latter is not an included crime. State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d

718 ( 1973 ). Under the second or factual prong, the court asks whether the evidence

presented in the case supports an inference that only the lesser offense was committed, to

the exclusion of the greater, charged offense. State v. Condon, 182 Wn.2d at 316. The

requesting party is entitled to the lesser included offense instruction when the answer to

both questions is yes. State v. Condon, 182 Wn.2d at 3 16.

                                             12
No. 34703-6-III
State v. Mata


          The State impliedly concedes that Jose Mata fulfills the legal prong of the

Workman test. Simple possession of a controlled substance is a lesser included offense of

the crime of possession with the intent to deliver. State v. Hassan, 151 Wn. App. 209,

216,211 P.3d 441 (2009); State v. Harris, 14 Wn. App. 414,418,542 P.2d 122 (1975).

          Jose Mata must still satisfy the factual prong of the Workman test. An accused

fulfills the factual prong when the evidence permits a jury to rationally find the accused

guilty of the lesser offense and acquit him of the greater. State v. Fernandez-Medina, 141

Wn.2d 448,455, 6 P.3d 1150 (2000). In making this determination, the court must

consider all evidence presented at trial by either party. State v. Fernandez-Medina, 141

Wn.2d at 455-56. The court must also view the evidence in the light most favorable to

the party requesting the lesser included offense instruction. State v. Condon, 182 Wn.2d

at 321.

          We base our decision on the following principles applied to the second or factual

prong of the Workman test. The evidence presented in the case must support an inference

that the accused committed only the lesser offense to the exclusion of the greater, charged

offense. State v. Condon, 182 Wn.2d at 316 (2015). The evidence must affirmatively

establish the defendant's theory of the case. State v. Fernandez-Medina, 141 Wn.2d at

456. The accused does not prevail by merely contending the jury may disbelieve the

State's evidence. State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990).

          In examining whether Jose Mata was entitled to a lesser included offense jury

                                               13
No. 34703-6-III
State v. Mata


instruction, we outline the differing stories. Since Jose Mata remained silent and

exercised his right not to testify, the facts come from the statements rendered by Christian

Gonzalez to law enforcement and the physical facts as observed by law enforcement

officers. The physical facts showed a large amount of methamphetamine inside the wall

of a garage that functioned as the living quarters of Jose Mata. The amount prompted the

involvement of federal agents. A bag of methamphetamine lay near a couch in the

middle of the garage and a scale used to measure drugs rested in a dresser drawer. Mata

crawled through the garage's open window when he heard barking dogs and used an

obscenity when he observed the presence of DEA agents.

       Under Christian Gonzalez's first story about Jose Mata's participation in the

crime, Gonzalez insisted that his friend, Mata, knew not of the presence of the

methamphetamine in the garage and did not assist in the methamphetamine operation.

Gonzalez provided no explanation as to how someone stashed the methamphetamine

inside the wall and left a bag of methamphetamine near the couch without the knowledge

of the occupant of the garage. Later Gonzalez told a variant story, under which Mata did

not deal drugs but the two friends smoked together. Gonzalez did not identify the

substance that the two smoked.

       During his third version of Jose Mata's participation, Christian Gonzalez stated

that Jose Mata knew of the presence of the methamphetamine, identified the location of

hole in the garage wall used for stashing drugs, and assisted in storing the

                                             14
No. 34703-6-III
State v. Mata


methamphetamine in the wall. When relating this later version of the story, Gonzalez

added that Mata assisted in selling methamphetamine at a Pasco hotel and purchased the

scale. During cross-examination of law enforcement officers and during closing

argument, defense counsel underscored that officers found no drugs or money on Jose

Mata and officers never found the ounce of methamphetamine that Mata supposedly

received from Gonzalez as payment for Mata's assistance.

       From Christian Gonzalez's first story we glean that Jose Mata knew not of the

presence of methamphetamine in the garage. Under this theory, Mata would enjoy the

defense of unwitting possession to both a charge of possession with intent to distribute

and a charge of possession without intent. State v. Staley, 123 Wn.2d 794, 799, 872 P.2d

502 ( 1994 ); City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P .3d 304 (2000). Thus,

under story one, the evidence did not support a conviction for possession alone or a jury

instruction to gamer the conviction.

      According to the second story, Mata "smoked" with Gonzalez, but still knew not

of the presence of methamphetamine in the garage. Mata could possess without the

intent to deliver a substance that he smoked. Nevertheless, the jury heard no testimony

about the substance smoked. A detective testified that law enforcement found a used

methamphetamine pipe, but the State did not link Gonzalez's testimony of smoking to the

pipe. In a prosecution for unlawful possession, the State must establish beyond a

reasonable doubt the nature of the substance. State v. Staley, 123 Wn.2d at 798; State v.

                                            15
No. 34703-6-111
State v. Mata


Pierce, 134 Wn. App. 763, 774, 142 P.3d 610 (2006). The jury might guess that the

smoked substance was methamphetamine, but a jury may not convict on speculation.

United States v. Michel, 446 F.3d 1122, 1127 (10th Cir. 2006).

       In the third version of Christian Gonzalez's story, Gonzalez indicated that he gave

Jose Mata an ounce of methamphetamine, but this transfer of an ounce for personal use

was integral to Mata's assistance in secreting and selling the unlawful drug. We must

view the totality of the evidence when determining the suitability of a jury instruction.

We are not free to believe a portion of the story and discount an undivided portion of the

same story. Thus, the only evidence of Gonzalez possessing a controlled substance is

within the context of storing, hiding, and marketing the substance. For this reason, the

affirmative evidence only supported a finding of possession with an intent to deliver.

       Jose Mata does not argue evidence supported a jury instruction for possession

without an intent to distribute based on his alleged smoking with Christian Gonzalez or

his allegedly receiving an ounce of methamphetamine from Gonzalez in payment for

services. To the contrary, he claims the absence of evidence to confirm his possession of

the ounce. Mata instead, when arguing the facts supported a lesser included offense

instruction, highlights the evidence that he controlled the garage and officers found

methamphetamine in the garage. He contends this actual or constructive possession of

the methamphetamine could convict him solely of possession. We disagree. Mata's

argument ignores the legal implications of his dominion over the methamphetamine

                                             16
No. 34703-6-III
State v. Mata


found in the garage.

       RCW 69.50.401 proscribes:

              ( 1) Except as authorized by this chapter, it is unlawful for any person
       to manufacture, deliver, or possess with intent to manufacture or deliver, a
       controlled substance.

       RCW 69.50.101 declares:

             (g) "Deliver" or "delivery" means the actual or constructive transfer
       from one person to another of a substance, whether or not there is an
       agency relationship.

Under the crime of possession with intent to deliver, the State need not show a sale or

even a delivery of a controlled substance, only an intent to deliver at some time in the

past or future. State v. Atsbeha, 142 Wn.2d 904, 921, 16 P.3d 626 (2001); State v. Vike,

125 Wn.2d 407, 411-12, 885 P.2d 824 (1994).

       Possession of a controlled substance, without more, fails to establish an inference

of intent to deliver. State v. Hagler, 74 Wn. App. 232, 235, 872 P.2d 85 (1994).

Nevertheless, Mata stipulated that he possessed dominion and control over the garage.

Since Jose Mata controlled the garage, the possession of the methamphetamine

necessarily passed to and from Mata and Christian Gonzalez or someone else involved in

the sale of drugs. A transfer entails relinquishing control to another. State v. Martinez,

123 Wn. App. 841, 847, 99 P.3d 418 (2004). Thus, at some point, Mata participated in a

delivery. He presented no testimony that he intended for personal use all six pounds of

methamphetamine, a powerful stimulant, embedded in his garage.

                                             17
No. 34703-6-III
State v. Mata


          Generally, the State must present one factor, in addition to possession and

suggestive of sale, to establish an inference of intent to deliver. State v. Todd, 101 Wn.

App. 945,953, 6 P.3d 86 (2000), overruled by State v. Rangel-Reyes, 119 Wn. App. 494,

81 P.3d 157 (2003). In the case on appeal, the State presented evidence of an excessive

wad of methamphetamine, a scale to weigh individual portions of the unlawful drug, and

unique packaging. In State v. Simpson, 22 Wn. App. 572, 575, 590 P.2d 1276 (1979),

this court considered the quantity of drugs and nature of packaging to support an

inference of possession with intent to deliver. Foreign cases recognize the presence of a

scale as evidence of intent to distribute the controlled substance. State v. Purvis, 51, 215

(La. App. 2 Cir. 4/15/17) 217 So. 3d 620, 624; Beard v. State, 318 Ga. App. 128, 130,

733 S.E.2d 426 (2012); State v. Leyva, 229 Or. App. 479, 485, 211 P.3d 968 (2009);

People v. Deluna, 334 Ill. App. 3d 1, 777 N.E.2d 581, 602, 267 Ill. Dec. 778 (2002);

State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001); Herbert v. State, 136 Md. App. 458, 766

A.2d 190, 192 (2001 ). Law enforcement officers found six pounds of methamphetamine

in the garage compartment, while Washington law considers even one ounce a large

amount of a controlled substance. State v. Lopez, 79 Wn. App. 755, 769, 904 P.2d 1179

(1995).

       Jose Mata's permission to allow storage of Christian Gonzalez's stock in trade of

methamphetamine alone establishes possession with the intent to deliver, not simply

possess10n. In United States v. Valencia, 907 F.2d 671,674 (7th Cir. 1990), defendant

                                               18
No. 34703~6-III
State v. Mata


Ivan Martinez built a twenty-four by twenty-four inch storage compartment for his

associate Jose Valencia, who marketed cocaine. Although the court noted that officers

found cash on Martinez's person, the court also affirmed the conviction on the basis of

construction of the storage compartment.

                               Legal Financial Obligations

       Jose Mata challenges the imposition of $5,700 in discretionary legal financial

obligations. He did not object to the imposition before the trial court. This court is not

required to grant review, but may exercise its discretion to do so. State v. Blazina, 182

Wn.2d 827, 834-35, 344 P.3d 680 (2015). In Blazina, our Supreme Court stated that each

appellate court must make its own decision to accept discretionary review. State v.

Blazina, 182 Wn.2d at 835. The court continued that national and local cries for reform

of broken financial obligations systems encourage review of the merits of the financial

obligations. State v. Blazina, 182 Wn.2d at 835. The State of Washington does not

object to this court's review of Jose Mata's second assignment of error. A majority of

this court accepts review.

       $5,000 of Jose Mata's $5,700 in discretionary legal financial obligations result

from two different discretionary fines. The trial court imposed a methamphetamine

cleanup fine of $3,000. The court also imposed a $2,000 fine pursuant to RCW

9A.20.021(l)(b), which allows for imposition of fines for punishment of class B felonies.

This fine does not constitute "costs" for the purposes of the mandate in RCW

                                             19
No. 34703-6-III
State v. Mata


 10.01.160(3), that directs the trial court to conduct an inquiry into the defendant's ability

to pay. State v. Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). Therefore, we

affirm $5,000 of the fines.

       Jose Mata cites to a Supreme Court order from 2017, in State v. Clark, 187 Wn.2d

 1009, 388 P.3d 487 (2017), wherein the court remanded the case to the trial court for an

· individualized inquiry into the ability to pay. Nevertheless, the remand concerned a

different Clark case from 2016 so it is not relevant to the inquiry here. State v. Clark,

 195 Wn. App. 868, 381 P .3d 198 (2016), review granted in part by 187 Wn.2d 1009, 3 88,

P.3d 487 (2017).

       The trial court imposed costs of $600 fee for a court appointed attorney and $100

as a crime lab fee. These costs fall under the mandate of RCW 10.01.160, by which the

court must assess the offender's ability to pay. The trial court conducted no inquiry into

Jose Mata's ability to pay. In these circumstances, we would normally remand to the trial

court to conduct an individualized inquiry into the offender's financial capability to pay

costs. Because the trial court judge has retired and the amount of the costs at issue is

only $700, we order the vacation of $700 in costs without any further hearing.

                                      CONCLUSIONS

        We affirm Jose Mata's conviction for possession of methamphetamine with the

intent to deliver the controlled substance. We direct a remand of the case to the trial




                                              20
No. 34703-6-III
State v. Mata


court to vacate $700 in legal financial obligations. Otherwise, we affirm the costs

imposed by the trial court. We deny the State costs on appeal.
                                                 .
       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                             Fear,ing, C.J.

WE CONCUR:




Siddoway, J.



Pennell, J.




                                            21
