State Of Washington v. Derek John Dossantos
47773-4
Wash. Ct. App. USep 26, 2017Background
- Defendant Derek J. Dossantos was convicted (after a second trial) of first-degree child molestation and indecent liberties by forcible compulsion for an incident at a condominium pool involving an 8-year-old victim.
- At sentencing the court imposed a Special Sex Offender Sentencing Alternative (SSOSA) for a minimum of three years and lifetime community custody, adopting recommendations from a psychosexual evaluation and presentence report.
- SSOSA conditions included a prohibition on perusing pornography (defined by the treatment provider), prohibitions on frequenting places where minors congregate, and a requirement to obtain a chemical dependency evaluation if the treatment provider recommended it.
- Community custody conditions barred possessing or perusing sexually explicit materials, joining or perusing public social media sites, using Skype, calling sexually-oriented 900 numbers, and required mental health and chemical dependency evaluations/treatment; a $200 criminal filing fee was also imposed.
- On appeal the court considered (1) whether various SSOSA/community-custody conditions were statutorily authorized as crime-related or precursor-based, (2) vagueness challenges, (3) the mandatory $200 filing fee, and (4) several SAG arguments (double jeopardy, sufficiency, ineffective assistance, juror misconduct, comfort dog, prosecutorial conduct).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dossantos) | Held |
|---|---|---|---|
| Validity of SSOSA porn prohibition | Psychosexual report tied defendant’s history of pornography to risk; so SSOSA may restrict perusal as a precursor | Porn prohibition not crime-related and/or vague | SSOSA porn ban authorized as precursor in treatment plan but void for vagueness (reversed) |
| Community custody ban on sexually explicit materials | Condition flows from SSOSA treatment recommendations | Not crime-related to the pool molestation; not identified as precursor for community custody | Not crime-related; court lacked authority to impose (reversed) |
| Ban on public social media, Skype, 900 numbers (community custody) | Treatment recommendations about monitoring justify condition | No evidence these communications related to the offense | Not crime-related; court lacked authority to impose (reversed) |
| Chemical dependency evaluation/treatment (SSOSA & community custody) | Psychosexual evaluation suggested evaluation; recommended by probation | Court must make statutory finding that chemical dependency contributed to offense | Statutorily required finding was not made; condition invalid (reversed) |
| Prohibition on frequenting places where children congregate (SSOSA & community custody) — vagueness | N/A (State defended conditions) | Condition vague and susceptible to arbitrary enforcement | Not unconstitutionally vague; examples supplied adequate and not arbitrary (affirmed) |
| $200 criminal filing fee | Fee is mandatory under statute | Fee is discretionary and requires Blazina-style ability-to-pay inquiry | Fee is mandatory; trial court properly imposed it without individualized inquiry (affirmed) |
| Double jeopardy / sufficiency / IAC / juror misconduct / other SAG claims | State: convictions supported; procedural rulings correct | Dossantos raised double jeopardy, insufficiency, IAC, juror bias, etc. | Convictions affirmed; double jeopardy rejected; evidence sufficient; most IAC/juror claims rejected or unreviewable on record |
Key Cases Cited
- State v. Warren, 165 Wn.2d 17 (2008) (crime-related condition standard)
- State v. Bahl, 164 Wn.2d 739 (2008) (pornography condition vagueness analysis)
- State v. Irwin, 191 Wn. App. 644 (2015) (vagueness and overbroad "places children congregate" condition)
- State v. Warnock, 174 Wn. App. 608 (2013) (statutory finding required to order chemical dependency treatment)
- State v. Lundy, 176 Wn. App. 96 (2013) (criminal filing fee interpretation)
- State v. Blazina, 182 Wn.2d 827 (2015) (ability-to-pay inquiry for discretionary legal financial obligations)
- State v. Harstad, 153 Wn. App. 10 (2009) (criteria for inferring sexual gratification from touching)
- State v. Price, 127 Wn. App. 193 (2005) (sufficiency review and inferences)