Opinion
28299-6-III
12-08-2011
STATE OF WASHINGTON, Appellant, v. MIZAEL MAGANA, Respondent and Cross-Appellant.
UNPUBLISHED OPINION
Kulik, C.J.
Mizael Magana was convicted as an accomplice on two counts of first degree assault, with firearm enhancements, and one count of drive-by shooting. The court granted an exceptional sentence below the standard range. The court found that Mr. Magana was not an instigator of the crime, that he did not fire a weapon, and that he did not direct or control the events. On appeal, the State contends the court erred by granting an exceptional sentence based on the operation of the multiple offense policy and Mr. Magana's age. The State also asserts that Mr. Magana's sentence of 168 months (14 years) is clearly too lenient. Mr. Magana cross-appeals, challenging two conditions of community custody. We conclude that the trial court did not abuse its discretion by imposing an exceptional sentence. But we remand for correction of the community custody conditions.
FACTS
The findings entered after the trial reveal that Yessenia Bravo left high school and picked up her daughter and Jose Cervantes, the baby's father. As they drove past a video store, Ms. Bravo observed Mizael Magana throw gang signs at Mr. Cervantes. Ms. Bravo drove Mr. Cervantes to a friend's home and picked up her brother on his way home from school. They drove to a market and then drove back to the high school, where her vehicle was pursued by a vehicle driven by Saul Valles. Eli Alaniz sat in the front passenger seat of the Valles vehicle, Mr. Magana sat in the center rear seat, and there was at least one other passenger. The Valles vehicle pursued the Bravo vehicle.
Michael Crume, a postal worker, was delivering mail in the area. He testified that he saw one man sitting on the window sill of the right front passenger door of the Valles vehicle firing a gun over the top of that vehicle toward the vehicle driven by Ms. Bravo. Mr. Crume's description of the shooter reasonably matched the description of Mr. Alaniz. It is undisputed that Mr. Alaniz was one of possibly two shooters in the Valles vehicle.
When the incident was over, Ms. Bravo's vehicle had four bullet holes and a flat tire. Police ultimately recovered nine 9 millimeter casings from the area of the shooting. The State's expert testified that all of these shell casings came from the same gun.
Ms. Bravo stated that she saw two guns being fired, including one man shooting from the rear passenger window of the Valles vehicle. She testified that Mr. Magana was one of the shooters firing at her vehicle. In contrast, the court found that other credible evidence indicated that Mr. Magana was seated in the center rear passenger seat and was not firing a gun.
At the time of trial, Mr. Magana was 16 years old and had been declined from juvenile court to adult court. The court found Mr. Magana guilty of acting as an accomplice on two counts of first degree assault, with firearm enhancements, and one count of drive-by shooting. Defense counsel sought a mitigated sentence.
In its findings and conclusions in support of a mitigated sentence, the court noted that Mr. Magana was a juvenile who acted as an accomplice and that a preponderance of the evidence showed that the offense was principally committed by another. The court determined that a mitigated sentence was justified because a substantial difference existed as to Mr. Magana's level of participation in the crime. The court found that Mr. Magana was most likely in the center rear seat and was not firing a weapon. The court also concluded that the evidence did not show that Mr. Magana was an instigator, was in control of the car, or was directing or controlling the events.
The court imposed an exceptional sentence downward on the two first degree assault convictions of 24 months each, to run consecutively. The court then imposed a high-end sentence on the drive-by shooting conviction, 48 months, to run concurrently with the terms for the assaults. Finally, the court imposed 120 months with no credit for good behavior for the two mandatory firearm enhancements. This made the total term of confinement 168 months (14 years).
The court also imposed community custody terms of 48 months on the assault convictions and 36 months on the drive-by shooting conviction. As a sentence condition, Mr. Magana was ordered to attend and participate in a crime-related treatment counseling program if ordered to do so by the supervising community corrections officer.
The State appeals the exceptional sentence. On cross-appeal, Mr. Magana challenges two provisions of the community custody.
ANALYSIS
Exceptional Sentence.
The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, authorizes trial courts to impose sentences outside the standard range if, considering the purposes of the SRA, "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535.
Review of an exceptional sentence is governed by RCW 9.94A.585(4). An appellate court may reverse only if it finds (1) using a clearly erroneous standard, that the reasons supplied by the sentencing court are not supported by the record before the judge; (2) using a de novo standard, that those reasons do not justify a sentence outside the standard sentence range for that offense; or (3) using an abuse of discretion standard, that the sentence imposed was clearly excessive or too lenient. State v. Branch, 129 Wn.2d 635, 645-46, 919 P.2d 1228 (1996) (quoting State v. Garza, 123 Wn.2d 885, 889, 872 P.2d 1087 (1994)). When the sentencing court identifies more than one ground for justification for an exceptional sentence, this court may affirm if one independent ground is valid. State v. Zatkovich, 113 Wn.App. 70, 78, 52 P.3d 36 (2002).
The appeal here asks us to address the second and third issues.
The court's written findings reveal the exceptional mitigated sentence was imposed because the offense was principally committed by another, Mr. Magana's participation in the offense was minimal, and Mr. Magana was only 16 years old.
Minimal Involvement.
While an accomplice and a principal should be treated alike when determining guilt or innocence, minimal involvement in a crime may be considered by the sentencing court when determining whether to impose a sentence below the standard range. State v. Moore, 73 Wn.App. 789, 796-97, 871 P.2d 642 (1994). The defendant's involvement must be "significantly out of the ordinary for the crime in question" to qualify as a mitigating factor. State v. Nelson, 108 Wn.2d 491, 501, 740 P.2d 835 (1987).
Here, the court determined that Mr. Magana was not an instigator, and that a mitigated sentence was justified "as a substantial difference exists as to the level of participation in the crime, " and that "a preponderance of the evidence [established] that the offense was principally accomplished by another person." Clerk's Papers (CP) at 181. The State challenges the sentencing court's conclusion that Mr. Magana's involvement in the offense was minimal.
The State first argues that Mr. Magana's involvement was not minimal because it is reasonable to infer that Mr. Magana was an organizer of the attack. The State bases its argument on testimony that Mr. Magana was throwing gang signs at Jose Cervantes shortly before the incident took place.
The State's argument is unpersuasive. The findings entered after the trial reveal that Ms. Bravo left high school and picked up her daughter and Mr. Cervantes, the baby's father. As they drove past a video store, Ms. Bravo observed Mr. Magana throw gang signs at Mr. Cervantes. Ms. Bravo drove Mr. Cervantes to a friend's home and picked up her brother on his way home from school. They drove to a market and then drove back to the high school, where her vehicle was pursued by Mr. Valles's vehicle.
In short, the testimony relied on by the State to prove that Mr. Magana was an organizer merely showed that Mr. Magana was throwing gang signs at an individual who was not in Ms. Bravo's car at the time of the incident. Substantial evidence exists to support the court's determination that there was a lack of evidence showing that Mr. Magana was an instigator, that he was in control of Mr. Valles's car, or that Mr. Magana was directing or controlling events.
Relying on Nelson, the State argues that the facts here are insufficient to establish that Mr. Magana's involvement in the offense was minimal. In Nelson, the court concluded that minimal involvement requires a showing "significantly out of the ordinary for the crime" in order to qualify as a mitigating factor. Nelson, 108 Wn.2d at 501.
In Nelson, the court examined a fact situation where Mr. Nelson, who served as the bag man for an accomplice, knew the accomplice was armed. Id. Here, Mr. Magana played no obvious role in the shooting or the operation of the vehicle. The court correctly concluded that "there was a lack of evidence that [Mr. Magana] was an instigator, and that he was not in control of the car, and not directing or controlling events." CP at 181.
In Moore, Mr. Moore was given a sentence 27 months below the standard range after the trial court found that his involvement in a criminal operation was minimal. The State appealed. The appellate court affirmed the trial court's conclusion that Mr. Moore's participation was merely incidental to an operation involving the manufacture and sale of marijuana and trafficking in stolen property. The appellate court noted that Mr. Moore had not organized, managed, or financed the grow operation. And Mr. Moore had not possessed firearms at the grow operation, to protect the distribution system, or when trafficking in stolen property. Moore, 73 Wn.App. at 792-93. The court pointed out that Mr. Moore's activities in the overall criminal enterprise were limited to driving a truck containing marijuana; directing individuals to the organizer, Mr. Bunney, for the purpose of trafficking stolen property; and lifting heavy items for Mr. Bunney, who had previously had open-heart surgery. The court concluded that Mr. Moore primarily performed handyman work around Mr. Bunney's residence and heavy lifting at the sites of most of the transactions. Id. at 796-97.
Here, the court found that Mr. Magana acted as an accomplice, was not armed, was not firing a weapon, and was most likely riding in the center back seat of the car. The court also determined that Mr. Magana was not an instigator and was not in control of the car or the events. These findings amply support the court's conclusion that, by a preponderance of the evidence, the offense was principally accomplished by another person and that "a substantial difference exists as to the level of participation in the crime." CP at 181.
Mr. Magana's Age.
The State next argues that the court erred by considering Mr. Magana's age. Relying on State v. Gilmer, 96 Wn.App. 875, 882, 981 P.2d 902 (1999), the State argues that using a juvenile's age to support a lesser sentence ignores the intent of the legislature in providing for automatic adult jurisdiction for 16 and 17 year olds accused of committing serious violent offenses. However, Gilmer deals with jurisdiction over juveniles, not sentencing.
Significantly, youthful age alone is not a proper mitigating factor to support a more lenient sentence. State v. Ha'mim, 132 Wn.2d 834, 846-47, 940 P.2d 633 (1997). However, a court may consider age to support an exceptional sentence when addressing the mitigating factor as to whether the defendant's capacity to appreciate the wrongfulness of his or her conduct or conform it to the legal requirements of the law was impaired. Id.; see former RCW 9.94A.390(1)(e), recodified as RCW 9.94A.535(1)(e) (Laws of 2001, ch. 10, § 6).
Relying on State v. Statler, 160 Wn.App. 622, 248 P.3d 165, review denied, 172 Wn.2d 1002 (2011), Mr. Magana asserts that the court did not err by considering Mr. Magana's age along with other mitigating factors. In Statler, a majority affirmed the imposition of an exceptional sentence downward based on the sentencing court's consideration of "'the age of Mr. Statler, the amount of time Mr. Statler was receiving in comparison to the two co-defendants, and the fact that no victims were seriously injured in the crime.'" Id. at 630.
In Statler, the court was asked to decide that the sentencing court's reasons for imposing the exceptional sentence were not substantial and compelling. Id. at 639-40. The majority did not specifically address the use of age in connection with the other factors considered by the court. Ha'mim indicates that a defendant's age can be used when considering a specific factor related to age. Applying this reasoning here, the trial court erred by considering Mr. Magana's age without showing how his age related to the other factors applied—Mr. Magana's minimal participation and the fact that the offense was principally committed by another.
However, even though the court erred by failing to explain its use of Mr. Magana's age, the court did not err by basing the exceptional sentence on Mr. Magana's minimal involvement in the crime.
Multiple Offense Policy.
The State filed its briefs before the court's written findings were entered. In these briefs, the State argues that the court erred by applying the multiple offense policy to support the exceptional sentence.
RCW 9.94A.535(1)(g) provides that a mitigating circumstance includes that "[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010." "[I]f the difference between the effects of the first criminal act and the cumulative effects of the subsequent criminal acts is nonexistent, trivial or trifling, " sentencing courts are authorized to impose an exceptional sentence below the standard range. State v. Hortman, 76 Wn.App. 454, 463-64, 886 P.2d 234 (1994).
At the sentencing hearing on July 6, 2009, the multiple offense policy was mentioned once—by defense counsel. In the felony judgment and sentence entered on the same date, the court initialed the following change on the form:
Substantial and compelling reasons exist which justify an exceptional sentence, based on disparity length [handwritten] of the sentence, which is clearly excessive.CP at 4 (emphasis added). However, the judgment section of the form contains the phrase "disparity of the sentence" without any change. CP at 4. The court entered its findings of fact and conclusions of law in support of the exceptional sentence on March 7, 2011. These findings and conclusions do not mention the multiple offense policy.
The record does not support the State's assertion that the court applied the multiple offense policy. Our review requires an examination of the sentencing court's reasons for imposing an exceptional sentence downward. We do not expand the inquiry to include reasons that the court might have considered.
Too Lenient.
If substantial and compelling reasons exist to support an exceptional sentence, the length of the sentence is reviewed for an abuse of discretion. Branch, 129 Wn.2d at 644-46. A trial court abuses its discretion by making a decision based on untenable or unreasonable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
The record supports the sentencing court's finding that the presumptive length of the sentence was excessive under the circumstances. Mr. Magana was convicted on an accomplice theory and received two firearm enhancements even though he did not carry or fire a firearm. The court reasonably concluded that the standard ranges for the assaults—111 to 147 months for count one and 93 to 123 months for count two—plus the mandatory 60-month sentences for each of the firearm enhancements was clearly excessive. The court imposed a mitigated sentence of 168 months.
This is the standard range for an individual with no criminal history.
The State argues that the mitigated sentence, 14 years, is too lenient. Here, the court sentenced Mr. Magana to two years for each assault, to be served consecutively. Mr. Magana received two consecutive five-year terms for the firearm enhancements to be served with no reduction for good time. The court imposed a 48-month sentence on the drive-by shooting count to be run concurrently with the terms for the assaults. Based on this record, we cannot conclude that this was an abuse of discretion.
Terms of Community Custody.
Mr. Magana cross-appeals, challenging the terms of community custody. The court imposed community custody terms of 48 months on the assault convictions and 36 months on the drive-by shooting conviction. Mr. Magana points out that the law had changed and that community custody is limited to 36 months for first degree assault and to 18 months for drive-by shooting. RCW 9.94A.701(1)(b); RCW 9.94A.701(2). The State concedes this error.
Mr. Magana challenges the condition of community service requiring him to "[a]ttend and participate in a crime-related treatment counseling program, if ordered to do so by the supervising Community Corrections Officer." CP at 6 (emphasis added). Mr. Magana argues that this provision violates due process and constitutes an excessive delegation of court authority. The State agrees that only the trial court should determine the proper amount of crime-related treatment.
We affirm the sentence and remand to correct two errors in the conditions of community custody.
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.
WE CONCUR: Sweeney, J. Brown, J.