Opinion
No. 24005-3-III.
Filed: April 27, 2006.
Appeal from Superior Court of Benton County. Docket No: 04-1-00803-8. Judgment or order under review. Date filed: 04/01/2005. Judge signing: Hon. Robert G. Swisher.
Counsel for Appellant(s), Janet G. Gemberling, Gemberling Dooris Ladich PS, PO Box 20129, Spokane, WA 99204-7129.
Counsel for Respondent(s), Jana Ranae Franklin, Attorney at Law, 7122 W Okanogan Ave, Kennewick, WA 99336-2341.
UNPUBLISHED OPINION
Tony Sanchez was convicted of third degree assault, despite his self-defense claim. The victim was a bouncer at the Sports Page bar in Kennewick, Washington. On appeal, Mr. Sanchez contends he received ineffective assistance of counsel, and the court erred in including his prior juvenile adjudications in his offender score. We affirm.
FACTS
On April 3, 2004, Tony Sanchez and Marco Valasquez visited the Sports Page bar. Mr. Sanchez finished a beer and took Mr. Valasquez' unfinished bottle of beer with him as they left. Arthur Brown, a Sports Page bouncer, followed Mr. Sanchez out of the bar, grabbed him by the shoulder, told him he could not leave with the beer, and brought Mr. Sanchez back inside. According to Mr. Sanchez, Mr. Brown struck Mr. Sanchez in the face while reaching for the beer. According to Mr. Brown, Mr. Sanchez then head butted him. During the ensuing fight, Mr. Sanchez struck Mr. Brown on the head with a beer bottle. Both men were injured.
Mr. Sanchez was charged with third degree assault. At trial, Mr. Sanchez admitted fighting with Mr. Brown and hitting him with the beer bottle. He testified he was merely protecting himself and argued self-defense. The court gave self-defense instructions. During initial closing argument, the State partly argued that ejecting Mr. Sanchez from the bar was Mr. Brown's job: `Ultimately, the defendant was bounced from the bar. That's what Arthur Brown's job is. He bounces guys out who aren't following the rules.' Report of Proceedings (RP) at 141. Mr. Sanchez did not object, but he responded to the argument during his closing argument. The jury found Mr. Sanchez guilty of third degree assault. The court included Mr. Sanchez' juvenile adjudications in calculating his offender score and sentenced him within the standard range. He appeals.
ANALYSIS A. Assistance of Counsel
The issue is whether Mr. Sanchez received effective assistance of counsel. Mr. Sanchez contends the prosecution improperly argued the law without any objection.
Ineffective counsel assistance claims require showing both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). `Deficient performance is not shown by matters that go to trial strategy or tactics.' State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). We strongly presume effective performance by defense counsel. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Mr. Sanchez mainly argues the prosecutor's argument that Arthur Brown was merely doing his job constituted prosecutorial misconduct. Thus, he reasons the failure to object was defective performance, prejudicing his self-defense claim. We disagree. The criticized argument was not a legal theory but a factual statement drawn from the trial record examined `in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.' State v. Stith, 71 Wn. App. 14, 19, 856 P.2d 415 (1993).
The deputy prosecutor argued: `Ultimately, the defendant was bounced from the bar. That's what Arthur Brown's job is. He bounces guys out who aren't following the rules.' RP at 141. Contrary to Mr. Sanchez' argument, the State did not imply Mr. Brown made a citizen's arrest or argue law outside of the jury instructions. The State argued a reasonable factual inference from the evidence. The State is permitted to counter Mr. Sanchez' self-defense theory. This is not misconduct. See State v. Knap, 14 Wn. App. 101, 111, 540 P.2d 898 (1975). Moreover, Mr. Sanchez' counsel chose to respond by arguing opposite inferences from the same evidence rather than objecting.
Because Mr. Sanchez does not establish prosecutorial misconduct, his counsel's failure to object is not deficient performance. See Strickland, 466 U.S. at 687. Mr. Sanchez' claim of ineffective assistance therefore fails.
B. Offender Score
The issue is whether the court erred in including Mr. Sanchez' juvenile adjudications when calculating his offender score.
`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.' Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Mr. Sanchez contends the Apprendi exception for prior convictions does not extend to his juvenile adjudications.
Juveniles do not have the right to a jury trial under either the state or federal constitutions. State v. Schaaf, 109 Wn.2d 1, 16, 743 P.2d 240 (1987). A juvenile does not have the right to a jury determination at an adjudicative hearing because the punitive purpose of adult proceedings is inapposite to the dual purposes of juvenile adjudications, accountability and rehabilitation. Id. at 4, 16. Alleged juvenile offenders do have the due process protections of a reasonable doubt standard of proof, the right to counsel, the right to cross-examine witnesses, and the right against self-incrimination. In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). These constitutional protections ensure accuracy without the need for a jury trial. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).
Juvenile adjudications meeting these constitutionally required safeguards fall within the prior conviction exception upheld in Apprendi and Blakely. State v. Weber, 127 Wn. App. 879, 892-93, 112 P.3d 1287 (2005), review granted, 156 Wn.2d 1010 (2006). `[J]uvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption.' United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002); see also State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002); People v. Lee, 111 Cal. App. 4th 1310, 4 Cal. Rptr. 3d 642 (2003). Mr. Sanchez does not contest the facts of his prior adjudications. Thus, under the prior conviction exception, Mr. Sanchez' juvenile adjudications were properly considered in calculating his offender score. Accordingly, the trial court did not err.
Affirmed.
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.
KATO, J. and KULIK, J., concur.