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State v. Garcia

The Court of Appeals of Washington, Division Two
Oct 23, 2007
141 Wn. App. 1013 (Wash. Ct. App. 2007)

Opinion

No. 35735-6-II.

October 23, 2007.

Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-05265-1, John R. Hickman, J., entered December 6, 2006.


Affirmed in part and remanded by unpublished opinion per Bridgewater, J., concurred in by Houghton, C.J., and Hunt, J.


Jason Robert Garcia appeals his sentences for two felony convictions. He argues, and the State concedes, the sentencing court improperly issued three domestic violence protection orders when the State failed to establish a domestic relationship between Garcia and the named victims. Garcia also claims the facts do not support the additional anti-harassment order the sentencing court imposed. Accepting the State's concession with respect to the challenged domestic violence protection orders, we remand for resentencing. Regarding the issuance of the anti-harassment order, we affirm.

FACTS

On October 29, 2006, Rosco Wood was outside his father Robert Wood's residence when he observed Garcia sitting in a vehicle about 50 feet away. Garcia held a handgun outside the car window. Rosco witnessed Garcia fire the gun two times in the direction of the residence. As Garcia fled the scene, Rosco ran back into the house to check on the people inside. Inside were Angelena Gillespie and three children. No one was hurt in the incident, and the police arrested Garcia a few days later.

To avoid confusion, we refer to Garcia's victims by their first names. We intend no disrespect.

We note in the record there are two different spellings of Angelena Gillespie's first name. We use Angelena in this opinion.

The record does not identify the names of the three children who were present at the time of the shooting.

The State filed an amended information, charging Garcia with one count of a drive-by shooting (count I) and one count of second degree unlawful possession of a firearm (count II). A drive-by shooting constitutes a violent offense and is a class B felony, which carries a statutory maximum sentence of 10 years. The second degree unlawful possession of a firearm is a class C felony, with a statutory maximum sentence of five years. Garcia pleaded guilty to both counts, and admitted his actions created a substantial risk of serious physical injury to all persons and/or persons inside the residence.

At the sentencing hearing, Robert asked the court to impose maximum sentences for the two crimes, explaining his family feared for their lives. Robert stated he spoke on behalf of his 7 children and 13 grandchildren, some of whom were inside the residence at the time of the incident. Robert testified Garcia was Angelena's ex-boyfriend, who "partially" lived at the residence, and was the father to one of Angelena's children. The State did not establish paternity of the child.

Again, the record does not identify which children or grandchildren were inside the residence at the time of the incident.

The record does not identify the child to whom Garcia is alleged to be the father.

The trial court sentenced Garcia to the following concurrent sentences: 95 months for the crime of a drive-by shooting, and 57 months for the second degree unlawful possession of a firearm. The trial court also imposed a community custody sentence of 18-36 months for the drive-by shooting. As a community custody condition, the court entered four domestic violence protection orders, each with a 10-year expiration, prohibiting Garcia from having contact with Angelena, Robert, Monteia Gillespie, and Jason Garcia (dob 1/9/06). The sentencing court issued the domestic violence protection orders under chapters 10.99 and 26.50 RCW. The sentencing court also prepared a permanent anti-harassment order under chapter 9A.46 RCW to protect Rosco from future contact with Garcia.

Garcia did not object to the order that protects Angelena, but he did contest the three other protection orders and the anti-harassment order. Garcia argued the protection orders were not appropriate because the State's evidence did not establish a domestic relationship with the victims other than Angelena. Garcia also claimed the court did not have the authority under the harassment statute or the real facts doctrine to impose the anti-harassment order. The sentencing court noted Garcia's objections, and signed the orders.

Garcia appeals his sentences. The State only concedes error with respect to the challenged domestic violence orders.

ANALYSIS I. The Domestic Violence Protection Orders

We review the imposition of crime-related prohibitions for an abuse of discretion. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). A court abuses its discretion when its decision is manifestly unreasonable or has an untenable basis. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).

A sentencing court has the discretion to impose crime-related prohibitions. See RCW 9.94A.030(13), RCW 9.94A.505(8), and RCW 9.94A.715(2)(a). Crime-related prohibitions include no-contact orders. Armendariz, 160 Wn.2d at 119. The imposition of a no-contact order prohibits conduct that relates directly to the circumstances of the crime charged. RCW 9.94A.030(13).

Chapter 10.99 RCW applies to no-contact orders that protect victims of domestic violence. RCW 10.99.020(8) defines a "[v]ictim" as "a family or household member who has been subjected to domestic violence." "Domestic violence" is a crime committed by one family or household member against another. RCW 10.99.020(5).

A drive-by shooting constitutes a crime of domestic violence. RCW 10.99.020(5)(e).

When a sentencing court imposes a domestic violence protection order, it must base its decision only on the information the offender admits in a plea agreement, acknowledges at the time of sentencing, or that the State establishes before the court. See RCW 9.94A.530(2). When an offender disputes material facts, the sentencing court must either not consider the contested facts, or grant an evidentiary hearing. RCW 9.94A.530(2).

Here, Garcia accepted the no-contact order that protects Angelena, but objected to the three orders protecting Robert, Monteia, and Jason. Garcia argues, and the State concedes, the only victim with whom he acknowledged a domestic relationship was with Angelena. Garcia disputed the claim that he was the biological father of Angelena's children, and never admitted he lived with Robert or Angelena's three children. Considering Garcia's specific objection to three protection orders, the sentencing court was required to hold an evidentiary hearing to determine the existence of a domestic relationship with respect to Robert, Monteia, and Jason before it imposed the challenged orders under chapter 10.99 RCW.

We vacate the formal no-contact orders that protect Robert, Monteia, and Jason, and remand for resentencing. At resentencing, the State may present evidence of Garcia's domestic relationship with Robert, Monteia, and Jason at an evidentiary hearing. If the State can establish the requisite relationship for these three individuals, the sentencing court has the discretion to issue a no-contact order under chapter 10.99 RCW.

The sentencing court may also consider at resentencing whether an anti-harassment order is appropriate under chapter 9A.46 RCW with respect to Garcia's victims. If not appropriate, the sentencing court may still impose a no-contact provision under RCW 9.94A.030(13), RCW 9.94.505(8), and RCW 9.94A.715(2)(a).

II. Anti-Harassment Protection Order

Whether a sentencing court has statutory authority to enter a crime-related prohibition is an issue of law we review de novo. Armendariz, 160 Wn.2d at 110. Chapter 9A.46 RCW permits a sentencing court to enter no-contact orders as conditions of sentence in cases involving crimes of harassment. See RCW 9A.46.080. RCW 9A.46.060 provides a non-exhaustive list of harassment crimes. While the crime of drive-by shooting is not included on the list, we conclude that it does in fact constitute a crime of harassment.

Reckless endangerment is a crime of harassment. RCW 9A.46.060(9). Reckless endangerment is a crime that is similar to a drive-by shooting. An offender is guilty of reckless endangerment when the individual engages in conduct not amounting to a drive-by shooting, but creates a substantial risk of death or serious physical injury to another person. RCW 9A.36.050(1) (emphasis added). An offender is guilty of a drive-by shooting when the individual recklessly discharges a firearm in a manner that creates a substantial risk of death or serious physical injury to another person, and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm. RCW 9A.36.045(1) (emphasis added). The inclusion of reckless endangerment under chapter 9A.46 RCW supports our conclusion that a drive-by shooting is also a crime of harassment. Thus, a sentencing court has discretion to impose an anti-harassment order under chapter 9A.46 RCW when an offender is convicted for the crime of a drive-by shooting.

Reckless endangerment is a gross misdemeanor, a less serious offense than the crime of drive-by shooting. RCW 9A.36.050.

A sentencing court's decision to impose an anti-harassment order under chapter 9A.46 RCW is limited to the evidence that is acknowledged, pleaded, or proven at trial. See RCW 9.94A.530(2). When sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the offender. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

RCW 9.94A.530(2) is the basis for the real facts doctrine. Garcia argues the real facts doctrine precludes the issue of a no-contact order under chapter 9A.46 RCW because the State did not charge him with a harassment crime. But the real facts doctrine only limits sentencing decisions to the facts which are acknowledged, proven, or pleaded. State v. Reynolds, 80 Wn. App. 851, 857, 912 P.2d 494 (1996). Because Garcia acknowledged and pleaded to facts that support a harassment crime, the real facts doctrine does not apply as Garcia contends.

Here, the evidence is sufficient to support the anti-harassment under chapter 9A.46 RCW. Rosco was outside the residence at the time of the incident and witnessed Garcia fire a gun in the direction of the residence. Furthermore, Garcia's own plea admits he engaged in harassment when he created a substantial risk of serious physical injury to persons present at the time of the shooting. The evidence is sufficient to support the anti-harassment order that protects Rosco. We affirm.

We vacate Garcia's sentence that pertains to the domestic violence protections orders that protect Robert, Monteia, and Jason, and remand for (1) an evidentiary hearing at which the State may establish the requisite domestic relationships to support the challenged protection orders under RCW 10.99, and (2) resentencing.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HUNT, J. and HOUGHTON, C.J., concur.


Summaries of

State v. Garcia

The Court of Appeals of Washington, Division Two
Oct 23, 2007
141 Wn. App. 1013 (Wash. Ct. App. 2007)
Case details for

State v. Garcia

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JASON ROBERT GARCIA, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Oct 23, 2007

Citations

141 Wn. App. 1013 (Wash. Ct. App. 2007)
141 Wash. App. 1013