Full Opinion

FILED NOVEMBER 5, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 41026-9-III Respondent, ) ) v. ) ) RITA GABRIELLA LOZANO, ) UNPUBLISHED OPINION ) Appellant. ) COONEY, A.C.J. — Rita Lozano was convicted of multiple offenses arising from an incident in which she took Antonia Arriola’s vehicle while Ms. Arriola’s grandson was asleep in the backseat. On appeal, Ms. Lozano challenges (1) a condition of community custody that prohibits her from contacting her sister, (2) no contact orders restraining her from contacting her sister and Ms. Arriola, and (3) a condition of her misdemeanor sentence that restricts who can prescribe her medications. We agree with each of Ms. Lozano’s challenges and remand for the trial court to strike the invalid community custody condition, vacate the no contact orders, and amend the overly restrictive condition of the misdemeanor sentence. No. 41026-9-III State v. Lozano BACKGROUND In October 2024, Ms. Arriola drove to Vanessa Velez’s residence with her infant grandson, C.E.P., asleep in the backseat. C.E.P.’s mother is Maria Velez. 1 Expecting the visit to be brief, Ms. Arriola left C.E.P. in the vehicle with the engine running and the doors open. Ms. Lozano entered the vehicle and drove away while Ms. Arriola unsuccessfully attempted to stop her. Vanessa called Ms. Lozano—her sister—to tell her that C.E.P. was in the vehicle and to pull over. Ms. Lozano “seemed to not care” and ended the call. Clerk’s Papers (CP) at 7. Law enforcement quickly located and detained Ms. Lozano in the back seat of a patrol vehicle. While officers spoke among themselves, Ms. Lozano moved into the front seat and drove away. A low-speed pursuit followed ending in Ms. Lozano’s apprehension. Meanwhile, Maria arrived on scene, took custody of C.E.P., and recovered Ms. Arriola’s vehicle. The State initially charged Ms. Lozano with one count of kidnapping in the second degree, two counts of theft of a motor vehicle, and one count of escape in the third degree. At arraignment, the State requested the court issue no contact orders protecting C.E.P., Ms. Arriola, and Vanessa—whom the prosecutor mistakenly identified as 1 We refer to the parties that share a surname by their first names for clarity. No disrespect is intended. 2 No. 41026-9-III State v. Lozano C.E.P.’s mother. As a condition of Ms. Lozano’s pretrial release, the court ordered her not to have contact with Vanessa, Ms. Arriola, or C.E.P. Ms. Lozano later pleaded guilty to the amended charges of unlawful imprisonment (count 1), theft of a motor vehicle (count 2), attempting to elude a police vehicle (count 3), assault in the third degree (count 4), and negligent driving in the first degree (count 5). The State agreed to recommend a total of 12 months and one day of confinement on counts 1 through 4 and recommend 90 days of confinement on count 5, to run concurrently. The sentencing court largely adopted the State’s recommendation. The court deviated on count 5 and imposed a 90-day suspended sentence instead of a 90-day concurrent sentence. The court advised Ms. Lozano that “if [she] do[es] not comply with [her] community custody requirements” then the 90 days could be imposed. Rep. of Proc. at 47. The judgment and sentence also included a “Discretionary [Community Custody] Condition[]” requiring Ms. Lozano to “[r]efrain from direct or indirect contact with” Vanessa and C.E.P. CP at 73. Additionally, the court entered postconviction no contact orders prohibiting Ms. Lozano from contacting Vanessa and Ms. Arriola. Ms. Lozano timely appeals. ANALYSIS On appeal, Ms. Lozano argues (1) the community custody condition barring contact with Vanessa is invalid, (2) the no contact orders protecting Vanessa and Ms. 3 No. 41026-9-III State v. Lozano Arriola are invalid, and (3) the condition of her misdemeanor sentence limiting who may prescribe her medications is invalid. We agree with Ms. Lozano on each argument. COMMUNITY CUSTODY CONDITION PROHIBITING CONTACT Ms. Lozano argues the community custody condition barring contact with her sister, Vanessa, is invalid because the trial court lacked statutory authority to impose it under RCW 9.94A.703(3) and because it infringes on her constitutional right to familial association. U.S. CONST. amend. I. The State responds that the condition was authorized under RCW 9.94A.505(9) and does not violate Ms. Lozano’s constitutional rights. We agree the condition is unauthorized under RCW 9.94A.703(3). Because we resolve this issue on statutory grounds, we decline to reach Ms. Lozano’s constitutional challenge. “Conditions of community custody may be challenged for the first time on appeal and, where the challenge involves a legal question that can be resolved on the existing record, preenforcement.” State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019). A trial court lacks authority to impose a community custody condition unless authorized by statute. State v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008). Though community custody conditions are reviewed for an abuse of discretion, we review de novo whether the trial court had authority to impose such restrictions. In re Pers. Restraint of Winton, 196 Wn.2d 270, 274, 474 P.3d 532 (2020). RCW 9.94A.703(3) authorizes a sentencing court to impose “[d]iscretionary conditions,” including a requirement that a defendant “[r]efrain from direct or indirect 4 No. 41026-9-III State v. Lozano contact with the victim of the crime or a specified class of individuals.” A “victim” is “any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged.” RCW 9.94A.030(55). Separately, RCW 9.94A.505(9) provides that, “[a]s a part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter.” Crime-related prohibitions may include no contact orders protecting witnesses. State v. Armendariz, 160 Wn.2d 106, 113, 156 P.3d 201 (2007). As a threshold matter, the State contends we should decline review because Ms. Lozano raises this challenge for the first time on appeal. RAP 2.5(a). Contrary to the State’s argument, “challenges to illegal or erroneous sentences, including the imposition of a penalty that does not comply with the sentencing statutes, can be raised for the first time on appeal.” State v. Duran, 16 Wn. App. 2d 583, 587, 481 P.3d 623 (2021). Ms. Lozano’s claim is precisely that—she argues the community custody condition prohibiting contact with her sister exceeds the court’s statutory authority. We therefore review the merits. 2 2 The State also argues the record is insufficiently developed to permit review. Where the question is whether the sentencing court had statutory authority to impose the condition as a matter of law, additional factual development is unnecessary. 5 No. 41026-9-III State v. Lozano Ms. Lozano argues the sentencing court lacked statutory authority to impose a community custody condition prohibiting contact with Vanessa. The State responds the condition is valid as a crime-related prohibition. The judgment and sentence requires Ms. Lozano to “[r]efrain from direct or indirect contact with the victim of the crime or a specified class of individuals, to wit: Vanessa Velez.” CP at 73 (boldface omitted). Although the court did not cite a statute in ordering this condition, the condition appears under the heading “Discretionary Conditions” and tracks the language of RCW 9.94A.703(3). CP at 73. We therefore review the condition as imposed under RCW 9.94A.703(3). The State argues the condition can be upheld under RCW 9.94A.505(9) as a crime-related prohibition because Vanessa was a witness and because RCW 9.94A.505(9) and RCW 9.94A.703(3)(f) are not mutually exclusive. We disagree as the State’s approach would render the separation of the two statutory schemes illogical. RCW 9.94A.703(3) governs discretionary community custody conditions and limits when and how such conditions may be imposed. RCW 9.94A.505(9) separately authorizes crime-related prohibitions as part of a sentence. Treating a condition imposed as a discretionary community custody condition as automatically salvageable under RCW 9.94A.505(9) would undermine the legislature’s decision to impose different requirements depending on the type of condition. Because the court imposed this restriction as a discretionary community custody condition under RCW 9.94A.703(3), it 6 No. 41026-9-III State v. Lozano cannot be upheld post hoc under RCW 9.94A.505(9) on a different theory. We reject the State’s argument that the condition is valid as a crime-related prohibition under RCW 9.94A.505(9). Moreover, because the restriction was imposed as a discretionary community custody condition under RCW 9.94A.703, it is valid only if it falls within that statute’s authorization—here, a no contact provision directed at “the victim of the crime or a specified class of individuals.” RCW 9.94A.703(3)(b). Vanessa does not qualify as a “victim” under RCW 9.94A.030(55) because nothing in the record shows she “sustained emotional, psychological, physical, or financial injury” “as a direct result of the crime charged.” At most, Vanessa was a witness. 3 Accordingly, the sentencing court lacked authority to impose the no contact condition under RCW 9.94A.703(3), and we remand for the trial court to strike the condition. Because this issue can be decided on non- constitutional grounds, we decline to reach Ms. Lozano’s constitutional challenge. See City of Seattle v. Williams, 128 Wn.2d 341, 347, 908 P.2d 359 (1995). POSTCONVICTION NO CONTACT ORDERS Ms. Lozano argues the postconviction no contact orders prohibiting contact with Ms. Arriola and Vanessa (1) are invalid as domestic violence no contact orders, (2) do not meet the requirements for special antiharassment no contact orders, and (3) are not 3 The State appears to concede this point by not arguing Vanessa was a victim. 7 No. 41026-9-III State v. Lozano premised on any valid sentencing condition. The State responds that the orders are authorized under RCW 9A.46.080 as special antiharassment no contact orders and need not be premised on a valid sentencing condition. We agree with Ms. Lozano. Under the plain language of RCW 9.94A.080, a special antiharassment no contact order must be based on a valid sentencing condition. These orders are not and are therefore invalid. Ms. Lozano argues the orders are invalid as domestic violence no contact orders because neither Ms. Arriola nor Vanessa was “subjected to domestic violence.” RCW 10.99.020(10). Under RCW 10.99.050(1), when a defendant is found guilty and “a condition of the sentence restricts the defendant’s ability to have contact with the victim,” the condition must be recorded and a certified copy of the order be provided to the victim. Chapter 10.99 RCW defines “victim” as “a family or household member or an intimate partner who has been subjected to domestic violence.” RCW 10.99.020(10). RCW 10.99.020(4) identifies which offenses qualify as “domestic violence” when committed against household members or intimate partners. As Ms. Lozano correctly notes, neither Ms. Arriola nor Vanessa was “subjected to domestic violence” within the meaning of chapter 10.99 RCW. Although unlawful imprisonment is a qualifying domestic violence offense, the person subject to that offense was C.E.P., not Ms. Arriola or Vanessa. RCW 10.99.020(4)(xvii). While Ms. Arriola was the victim of theft of a motor vehicle, that offense is not among the crimes 8 No. 41026-9-III State v. Lozano enumerated in RCW 10.99.020(4) as a qualifying domestic violence offense. Accordingly, neither no contact order can be upheld as a valid domestic violence no contact order. Ms. Lozano next argues the orders cannot be upheld as special antiharassment no contact orders because they (1) do not contain the required warning language required by RCW 9A.46.080 and (2) are not based on any valid sentencing condition restricting contact. The State responds the orders are authorized under RCW 9A.46.080, that the warning language substantially complies with the statute, and that the court need not separately impose a community custody condition to enter the orders. We agree that any defect in the warning language does not, by itself, invalidate the orders. Nevertheless, RCW 9A.46.080 requires the orders to be premised on a valid sentencing condition. Because no valid sentencing conditions support these orders, they are invalid. RCW 9A.46.080 provides: If a defendant is found guilty of a crime of harassment and a condition of the sentence restricts the defendant’s ability to have contact with the victim or witnesses, the condition shall be recorded and a written certified copy of that order shall be provided to the victim or witnesses by the clerk of the court. Willful violation of a court order issued under this section or an equivalent local ordinance is a gross misdemeanor. The written order shall contain the court’s directives and shall bear the legend: Violation of this order is a criminal offense under chapter 9A.46 RCW and will subject a violator to arrest. (Emphasis added.) In both no contact orders, the court found “that [Ms. Lozano] has been charged with, arrested for, or convicted of an offense of: . . . harassment (ch. 9A.46 9 No. 41026-9-III State v. Lozano RCW).” CP at 161, 166. Ms. Lozano’s unlawful imprisonment conviction under RCW 9A.40.040 qualifies as a crime of harassment. RCW 9A.46.060(22). Concerning the written warning, the State concedes the orders do not include the precise statutory language required by RCW 9A.46.080. However, both orders include a materially identical warning: “Violation of this order with actual notice of its terms is a criminal offense under chapter 7.105 RCW and will subject a violator to arrest.” CP at 161, 166. The defect is not the omission of the operative warning language; it is the citation to the wrong chapter. Ms. Lozano cites no authority requiring invalidation of an otherwise clear warning based on what amounts to a scrivener’s error. 4 Ms. Lozano also argues the no contact orders are invalid because they are not grounded in any valid sentencing condition. RCW 9A.46.080 authorizes a special antiharassment no contact order only when “a condition of the sentence restricts the defendant’s ability to have contact with the victim or witnesses.” Thus, the orders must be premised on a valid sentencing condition. In an analogous case, State v. Granath, the defendant was convicted in district court of two domestic violence offenses against her husband. 190 Wn.2d 548, 550, 415 4 See State v. Sutherland, 114 Wn. App. 133, 56 P.3d 613 (2002) (no contact order contained the required warning that a violation was a criminal offense but cited the wrong statutory basis; court held the warning could not have been misunderstood to the defendant’s prejudice for purposes of a sufficiency challenge because the operative warning was clear). 10 No. 41026-9-III State v. Lozano P.3d 1179 (2018). As a condition of her suspended sentence, the court prohibited her from contacting the victim, her estranged husband. Id. The court also entered a separate no contact order under RCW 10.99.050 to reflect that sentencing decision. Id. RCW 10.99.050(1) provides, “When a defendant is found guilty of a crime and a condition of the sentence restricts the defendant’s ability to have contact with the victim, such condition shall be recorded and a written certified copy of that order shall be provided to the victim.” (Emphasis added.) The no contact order in Granath lasted five years, three years longer than the defendant’s 24-month suspended sentence. After completing her 24-month suspended sentence, the defendant moved to vacate the no contact order, arguing it could not outlast the underlying sentencing condition. Id. The district court denied the motion and reasoned it had independent authority under chapter 10.99 RCW to maintain the order. Id. Our Supreme Court reversed. The court held the plain language of RCW 10.99.050 authorizes a no contact order only to “record a condition of sentence,” not to impose an independent restraint untethered to a valid, ongoing sentencing condition. Id. at 555. The same statutory structure applies here. RCW 9A.46.080 provides, in relevant part, “If a defendant is found guilty of a crime of harassment and a condition of the sentence restricts the defendant’s ability to have contact with the victim or witnesses, the condition shall be recorded and a written certified copy of that order shall be provided to the victim or witnesses.” (Emphasis added.) Like RCW 10.99.050(1), RCW 9A.46.080 11 No. 41026-9-III State v. Lozano authorizes entry of a special antiharassment no contact order only to record an underlying sentencing condition restricting contact with a victim or witness. Here, the only sentencing condition restricting Ms. Lozano’s contact with Vanessa was the discretionary community custody condition we have already held was unauthorized under RCW 9.94A.703(3). Because the sentencing condition prohibiting contact with Vanessa was not statutorily authorized, the no contact order flowing from that condition is invalid. The judgment and sentence is also void of any community custody conditions prohibiting Ms. Lozano from contacting Ms. Arriola. Without an underlying sentencing condition, the court lacked statutory authority to enter a no contact order protecting Ms. Arriola. We remand for the trial court to vacate both no contact orders. COMMUNITY CUSTODY CONDITIONS—PRESCRIBED MEDICATIONS Ms. Lozano requests that we remand for the trial court to amend the condition of her misdemeanor sentence that limits her possession and use of controlled substances to only those issued by a physician. The State concedes. We accept the State’s concession and remand for the trial court to amend the condition. Ms. Lozano argues the language prohibiting her from possessing or using any controlled substances except as prescribed by a physician means she cannot use or possess controlled substances lawfully prescribed by other providers such as nurse practitioners and physician assistants. She requests the language be amended to read: 12 No. 41026-9-III State v. Lozano “Defendant shall not use, possess, or deliver any controlled substance except pursuant to lawfully issued prescriptions/authorizations.” See CP at 73; Br. of Appellant at 34. The State concedes the condition should be amended. We agree and remand for the condition to be amended to: “Defendant shall not use, possess, or deliver any controlled substance except pursuant to lawfully issued prescriptions / authorizations.” CONCLUSION We remand for the sentencing court to (1) strike the community custody condition prohibiting Ms. Lozano from contacting Vanessa, (2) vacate the no contact orders protecting Ms. Arriola and Vanessa, and (3) amend the condition of Ms. Lozano’s misdemeanor sentence restricting who can prescribe her controlled substances. 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. Cooney, A.C.J. WE CONCUR: Lawrence-Berrey, J. Murphy, J. 13