Opinion
No. 34698-2-II
Filed: July 16, 2007
OPINION PUBLISHED IN PART
Frank C. Mendoza appeals his convictions for second degree robbery and unlawful imprisonment, arguing that (1) the trial court erred by not determining his criminal history or calculating his offender score on the record, (2) the prosecutor committed misconduct by eliciting testimony about Mendoza's prior contacts with police, and (3) his counsel was ineffective. We affirm Mendoza's convictions but remand for resentencing, requiring the State to prove his criminal history by a preponderance of the evidence, without limiting the State to the record at the prior sentencing hearing.
FACTS
On August 7, 2005, Lester A. Selin, age 84, encountered Mendoza on his way to a local convenience store. As he left the store, Selin realized that Mendoza was following him and, when he reached his driveway, Selin turned and asked Mendoza what he wanted. Mendoza responded, "I come . . . to shoot you and kill you. . . . You're a bad man." Report of Proceedings (RP) (Apr. 4, 2006) at 10. Selin believed that Mendoza had a gun because he kept his hand in his pocket.
Mendoza told Selin that he belonged to a drug cartel that would pay him a large sum of money for killing Selin. His girlfriend had been "roughed up" while she was in jail, and he wanted to kill the Lester Selin that has a mole on his face. RP (Apr. 4, 2006) at 11. When Mendoza realized that Selin did not have a mole on his face, he acknowledged that he might have the wrong man. Mendoza had mistaken Lester Selin for Selin's son, also named Lester, who works as a corrections officer for the Grays Harbor Sheriff's Office.
Then Mendoza said, "I want money." RP (Apr. 4, 2006) at 12. Selin took $16 in cash from his wallet and gave it to Mendoza. Mendoza checked the name on Selin's Visa credit card inside the wallet. Apparently now satisfied that he did have the wrong Selin, Mendoza demanded a ride to a local tavern. Outside the tavern Mendoza told Selin that if he called the police, he would come back and kill him.
Despite this threat, Selin contacted the police and officers viewed the surveillance video from the convenience store that showed Mendoza hanging around for about an hour before he encountered Selin. Officers also lifted a latent print matching Mendoza's thumbprint from the outside door handle of Selin's truck.
The police arrested Mendoza that day. Mendoza acknowledged that he was the individual in the video, but denied any involvement with Selin. Selin was unable to identify Mendoza when officers showed him a photo array, instead commenting that the hairstyle of a different individual was similar to his assailant's hair.
The State charged Mendoza with one count of second degree robbery and one count of second degree kidnapping. Later, the State filed notice that it intended to seek an exceptional sentence because Mendoza knew, or should have known, that Selin was particularly vulnerable and incapable of resistance.
During trial, Aberdeen Police Officer Steve Timmons testified that he was looking for Mendoza because there was "PC (probable cause) to arrest [Mendoza] for a separate charge, and also that he was a suspect in this case." RP (Apr. 4, 2006) at 103. Lieutenant Kevin Darst testified that he used a booking photograph of Mendoza from "sometime earlier when he was arrested a previous time," to compile a photo array for identification purposes. RP (Apr. 4, 2006) at 109. Corporal Darrin King testified that he knew Mendoza because of "several prior contacts," and Detective George Kelley testified that he was acquainted with Mendoza before August 7, 2005. RP (Apr. 4, 2006) at 111. Defense counsel did not object to any of this testimony or request curative instructions relating to it.
While cross-examining Kelley, Mendoza's counsel inadvertently elicited the fact that Mendoza was violating the law while at the convenience store because he had failed to register his current address with law enforcement. The trial court immediately directed Mendoza's counsel to re-phrase the question, but Mendoza's counsel did not object to Kelley's answer or request a curative instruction.
The jury found Mendoza guilty of second degree robbery and the lesser included charge of unlawful imprisonment. The jury also returned a special verdict on both counts, finding that Selin was particularly vulnerable and that Mendoza knew, or should have known, that Selin was particularly vulnerable.
At sentencing, the State provided a statement of a prosecuting attorney that included the State's recitation of the evidence at trial and a list of what the prosecutor believed was Mendoza's criminal history. Mendoza did not object to the prosecutor's list of his prior criminal history. The trial court declined to impose an exceptional sentence. It sentenced Mendoza to concurrent terms of 84 months for second degree robbery and 60 months for unlawful imprisonment.
The State filed supplemental clerk's papers that included this document.
Mendoza appeals.
ANALYSIS
I. Proving Criminal History — Acknowledgement, Waiver, Silence
Mendoza claims that the trial court erred by using only the prosecuting attorney's statement to determine his criminal history. The State responds that Mendoza is deemed to have acknowledged the criminal history listed in the prosecutor's statement because he did not object at sentencing.
The State argues that the trial court was entitled to rely on the statement of the prosecuting attorney, which listed Mendoza's alleged prior history, pursuant to RCW 9.94A.530. Former RCW 9.94A.530(2) (2002) (emphasis added) provided:
In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or provided in a trial or at the time of sentencing. Acknowledgment includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence.
"We review de novo the sentencing court's calculation of the offender score." State v. Rivers, 130 Wn. App. 689, 699, 128 P.3d 608 (2005), review denied, 158 Wn.2d 1008, 143 P.3d 829 (2006), cert. denied, ___U.S. ___, 127 S. Ct. 1882, 167 L. Ed. 2d. 370, 2007 U.S. LEXIS *3643 (2007). "[I]llegal or erroneous sentences may be challenged for the first time on appeal." State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). Although a defendant generally "cannot waive a challenge to a miscalculated offender score," he may waive his challenge if "the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." State v. Ross, 152 Wn.2d 220, 231, 95 P.3d 1225 (2004) (quoting In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)).
Mendoza claims that the trial court erred by failing to require evidence of his criminal history. On April 6, 2006, before sentencing, the State provided defense counsel and the trial court with the prosecutor's written statement containing a table listing Mendoza's prior convictions. The table included the crimes, sentencing courts, dates of crimes, and types of crimes. The State also listed its offender score calculation, sentencing recommendation, and the costs to be imposed. The trial court determined that Mendoza had an offender score of 9, based solely on the prosecutor's statement. Mendoza did not object, but he also did not affirmatively acknowledge the factual basis of the prosecutor's statements. See Ross, 152 Wn.2d at 230 ("a defendant's affirmative acknowledgement that his prior . . . convictions are properly included in his offender score satisfies [Sentencing Reform Act of 1981 (SRA)] requirements").
On appeal, the State does not argue that this statement of a prosecuting attorney proved Mendoza's criminal history by a preponderance of the evidence. The State did not provide a certified copy of the judgment and sentence for any of Mendoza's convictions and did not offer any reason for failing to do so. See Rivers, 130 Wn. App. at 699.
Rather, the State argues that Mendoza waived his right to challenge the prosecutor's listing of his criminal history because he failed to object at sentencing. The State relies on RCW 9.94A.530, but offers no further argument or explanation, other than postulating that Mendoza failed to object because he knew the history was correct. Mendoza contends that his silence does not equate to acknowledgement of the criminal history provided by the State.
In Goodwin, the State conceded that the trial court miscalculated Goodwin's offender score because his judgment and sentence were fundamentally defective. 146 Wn.2d at 867. The State argued, however, that Goodwin failed to show "a complete miscarriage of justice because he agreed to the criminal history stated in his plea agreement." 146 Wn.2d at 867. In addressing the State's argument that Goodwin waived the miscalculation of his offender score, our Supreme Court noted:
This court recently held, in a case in which no negotiated plea agreement was involved, that a petitioner is unlawfully restrained "to the extent he [or she] was sentenced on the basis of an incorrect calculation of his [or her] offender score." In re Pers. Restraint of Johnson, 131 Wn.2d 558, 568, 933 P.2d 1019 (1997). This is because "[a] sentencing court acts without statutory authority . . . when it imposes a sentence based on a miscalculated offender score." [ Johnson, 131 Wn.2d at 568.]. Moreover, a sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice. Johnson, 131 Wn.2d at 569. This is true even where the sentence imposed is actually within the correct standard range.
146 Wn.2d at 867-68 (footnotes omitted).
Also in Goodwin, the Court overruled its prior decisions "that, depending upon the circumstances, a defendant can waive any challenge to a miscalculated offender score by agreeing to that score (or to criminal history on which the score is based) in a plea agreement or by other stipulation." 146 Wn.2d at 873. It held:
In keeping with long-established precedent, we adhere to the principles that a sentence in excess of statutory authority . . . is excessive if based upon a miscalculated offender score (miscalculated upward), and that a defendant cannot agree to punishment in excess of that which the [l]egislature has established. Accordingly, we hold that in general a defendant cannot waive a challenge to a miscalculated offender score. There are limitations on this holding. While waiver does not apply where the alleged sentencing error is a legal error leading to an excessive sentence, waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion. 146 Wn.2d at 873-74. Goodwin's discussion of State v. Majors, 94 Wn.2d 354, 616 P.2d 1237 (1980), is instructive to determine whether waiver occurs in a particular circumstance: In Majors, the defendant pleaded guilty to reduced charges and agreed to being a habitual offender based on a supplemental information alleging two prior convictions, in hopes of obtaining a shorter sentence under the habitual offender statute. On appeal, the defendant argued that his sentence was erroneous, arguing that the supplemental information was defective because one of the convictions did not precede the current offense, as required for habitual offender status. This court concluded: "We see no reason why a defendant who agrees to be designated a habitual criminal should not be held to his bargain under the circumstances here presented, when he undisputedly was aware of the consequences of his waiver and there was plainly a factual basis for the plea." The court said the error was a technical defect, reasoning that defendant was collaterally attacking the sufficiency of the supplemental information where he had clearly not been misled as to the charges; the court observed that in the federal system collateral attacks on the sufficiency of charging instruments were generally not permitted except in exceptional circumstances. Majors thus involved a stipulation to facts constituting an element of the charge, unlike an agreement that prior history includes certain convictions for purposes of sentencing. Majors thus highlights the distinction between a stipulation based on erroneous facts and one involving a stipulation or agreement to a sentence that legally exceeds statutory authority of the sentencing court.
Goodwin, 146 Wn.2d at 874-75 (quoting Majors, 94 Wn.2d at 358) (internal citations omitted). See also In re Pers. Restraint of Shale, No. 78254-7, 2007 WL 1501125 (Wash.), at *2 (May 24, 2007) (noting the Goodwin Court clarified that "waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion").
Ross further explained the holding of Goodwin, emphasizing that an appellant cannot waive a challenge to a miscalculated offender score where the alleged sentencing error is a legal error, but that the appellant may waive a challenge to a factual error or issue of trial court discretion if the appellant affirmatively acknowledges the prior convictions at trial. 152 Wn.2d at 230-31. If the appellant has acknowledged the prior convictions, "[t]o invoke the waiver analysis set forth in Goodwin, a defendant must first show on appeal . . . that an error of fact or law exists within the four corners of his judgment and sentence." Ross, 152 Wn.2d at 231. The defendant in Ross, unlike Mendoza, affirmatively acknowledged the existence and comparability of his out-of-state convictions. Thus, our Supreme Court held that further proof of the out-of-state convictions was unnecessary and that the defendant waived his challenge to a miscalculated offender score. Ross, 152 Wn.2d at 233.
An offender score is "based on [the defendant's] prior convictions and the level of seriousness of the current offense." Ross, 152 Wn.2d at 229. The State must prove a defendant's criminal history by a preponderance of the evidence. Ford, 137 Wn.2d at 479-80 (citing RCW 9.94A.110). "[T]he trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing." RCW 9.94A.530(2).
To establish the existence of a [previous] conviction, a certified copy of the judgment and sentence is the best evidence. The State may introduce other comparable evidence only if it shows that the writing is unavailable for some reason other than the serious fault of the proponent. In that case, comparable documents of record or trial transcripts may suffice.
Rivers, 130 Wn. App. at 698-99 (citations omitted).
RCW 9.94A.530(2) provides that failure to object to "information stated in the presentence reports" constitutes acknowledgement. Presentence reports are documents prepared by the Department of Corrections (DOC) at the trial court's request under RCW 9.94A.500. The DOC did not file a presentence report in this case. The State appears to contend that the statement of prosecuting attorney constitutes a presentence report, but it offers no support for this presumption. Mendoza claims that he could not have acknowledged the criminal history because the statement of prosecuting attorney does not constitute a presentence report.
Mendoza cites Ford to support his contention that the statement of a prosecuting attorney constitutes only bare assertions, unsupported by evidence.
The State does not meet its burden through bare assertions, unsupported by evidence. Nor does failure to object to such assertions relieve the State of its evidentiary obligations. To conclude otherwise would not only obviate the plain requirements of the SRA but would result in an unconstitutional shifting of the burden of proof to the defendant.
Without citation to any additional authority in either its brief or at oral argument, the State's argument is essentially that a defendant's failure to object to a list of prior convictions constitutes waiver of any objection because the defendant is deemed to have acknowledged the convictions. We disagree with the dissent that the bare assertions contained in the prosecutor's statement constitute a presentence report within the contemplation of RCW 9.94A.500.
Our Supreme Court has made clear that "[t]he best evidence of a prior conviction is a certified copy of the judgment" and that "[t]he State may introduce other comparable evidence only if it is shown that the [certified copy] is unavailable for some reason other than the serious fault of the proponent." State v. Lopez, 147 Wn.2d 515, 519, 55 P3d 607 (2002). The origin of this sentencing rule began with State v. Fricks, 91 Wn.2d 391, 588 P.2d 1328 (1979). Following a robbery, the State sought to prove the contents of a gas station's daily receipt tally sheets. Fricks, 91 Wn.2d at 397. Our Supreme Court stated:
In seeking to prove the contents of the tally sheet, the State must comply with the so-called Best Evidence Rule. This basic principle of evidence generally requires that "the best possible evidence be produced." Larson v. A.W. Larson Constr. Co., 36 Wn.2d 271, 217 P.2d 789 (1950). As applied to proof of the terms of a writing, it requires that the original writing be produced unless it can be shown to be unavailable "for some reason other than the serious fault of the proponent." McCormick, Handbook of the Law of Evidence § 230, at 560 (2d ed. 1972).
Fricks, 91 Wn.2d at 397. Because the State did not produce the document or provide any reason for its unavailability, our Supreme Court did not allow the manager's testimony to prove the monetary loss. Fricks, 91 Wn.2d at 398.
Our Supreme Court has also addressed waiver and the burden of proof relating to criminal history in Ford, 137 Wn.2d at 478-79. Ford challenged the trial court's inclusion of foreign convictions in his sentencing score because the State failed to prove that the convictions were felonies under comparable Washington law. Ford, 137 Wn.2d at 476. Our Supreme Court rejected the Court of Appeals' decision that Ford had waived any objection to his alleged criminal history by failing to object during the sentencing hearing. Ford, 137 Wn.2d at 475. Our Supreme Court first addressed the State's burden of proof, making it clear that:
[T]he use of a prior conviction as a basis for sentencing under the SRA is constitutionally permissible if the State proves the existence of the prior conviction by a preponderance of the evidence. See [former] RCW 9.94A.110 [(1999)].
Former RCW 9.94A.110 (1999) provided: "[T]he court shall, at the time of plea or conviction, order the department to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense." Further, "[i]f the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist." Laws of 2001, ch. 10 § 6 recodified RCW 9.94A.110 as RCW 9.94A.500.
. . . .
The best evidence of a prior conviction is a certified copy of the judgment. However, the State may introduce other comparable documents of record or transcripts of prior proceedings to establish criminal history.
. . . .
The above underscores the nature of the State's burden under the SRA. It is not overly difficult to meet. The State must introduce evidence of some kind to support the alleged criminal history. . . . The SRA expressly places this burden on the State because it is inconsistent with the principles underlying our system of justice to sentence a person on the basis of crimes that the State either could not or chose not to prove.
. . . .
Thus, contrary to the State's position, it is the State, not the defendant, which bears the ultimate burden of ensuring the record supports the existence and classification of out-of-state convictions. Absent a sufficient record, the sentencing court is without the necessary evidence to reach a proper decision, and it is impossible to determine whether the convictions are properly included in the offender score.
. . . .
[F]undamental principles of due process prohibit a criminal defendant from being sentenced on the basis of information which is false, lacks a minimum indicia of reliability, or is unsupported in the record.
. . . .
Information relied upon at sentencing "is `false or unreliable' if it lacks `some minimal indicium of reliability beyond mere allegation.'"
. . . .
The State does not meet its burden through bare assertions, unsupported by the evidence.
Ford, 137 Wn.2d at 479-82 (internal citations omitted) (emphasis added).
The Ford court then addressed acknowledgment as it relates to prior criminal history.
We also reject the State's argument that Ford "acknowledged" the classification of the California convictions by failing to specifically take issue with the State's position at sentencing. Under the SRA, acknowledgement allows the judge to rely on unchallenged facts and information introduced for the purposes of sentencing. See [former] RCW 9.94A.370(2) [(1999)]. . . . Acknowledgment does not encompass bare assertions by the State unsupported by the evidence.
Former RCW 9.94A.370(2) (1999) provided: "In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgment includes not objecting to information stated in the presentence reports." Laws of 2001, ch. 10, § 6 recodified RCW 9.94A.370 as RCW 9.94A.530.
Ford, 137 Wn.2d at 482-83 (emphasis added). The Supreme Court further noted, "[n]ot being a witness, a prosecutor's assertions are neither fact nor evidence, but merely argument." Ford, 137 Wn.2d at 483 n. 3.
And, in 1994, Division I of this court clearly required the State to prove prior convictions by use of more than the prosecutor's statement. "While the best evidence of a prior conviction is a certified copy of the judgment, the State may introduce documents of record or transcripts of prior proceedings to establish the defendant's criminal history." State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994) (internal citations omitted). Nothing in this language suggests that a prosecutor's argument contained in a filed report to the trial court may be substituted for documentary support of any claimed criminal history.
Yet, in 2002, the State argued that it did not have to provide supporting evidence of prior convictions in Lopez, 147 Wn.2d at 520. Our Supreme Court reiterated the rules from Fricks and Ford in reversing the trial court's reliance on the State's mere allegations of prior convictions:
The best evidence of a prior conviction is a certified copy of the judgment. Ford, 137 Wn.2d [at] 480 . The State may introduce other comparable evidence only if it is shown that the writing is unavailable for some reason other than the serious fault of the proponent. Fricks, 91 Wn.2d [at] 397.
. . . .
[T]he State . . . alleged prior convictions for delivery of controlled substances and second degree assault, but failed to provide any supporting evidence. . . . Thus, the sentencing court erred when it considered these unproved convictions.
Lopez, 147 Wn.2d at 519-20 (footnotes omitted). Thus, our Supreme Court has made it clear that in order to prove criminal history, the State must provide a certified copy of the judgment and may introduce other comparable evidence only if the certified copy is unavailable through no fault of the State. Here, the State did not do so.
In order to clarify that the State may not rely on Criminal Rule (CrR) 7.1(c) and (d) to allow the prosecutor to merely list what the State believes is the applicable criminal history in order to satisfy its burden to prove criminal history, we provide the following analysis. CrR 7.1(a) grants authority to a trial court to order a presentence report from the Department of Corrections (DOC). CrR 7.1(b) describes the appropriate content for the DOC generated reports. CrR 7.1(c) allows either party to inform the opposing party and the trial court of any new evidence that will controvert the presentence report. CrR 7.1(d), provides "[a]ny interested person, as designated in RCW 9.94A.500 may submit a report separate from that furnished by the Department of Corrections." RCW 9.94A.500(1) provides in relevant part:
"At least 3 days before the sentencing hearing, defense counsel and the prosecuting attorney shall notify opposing counsel and the court of any part of the presentence report that will be controverted by the production of evidence." CrR 7.1(c).
The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed.
If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record. . . . Court clerks shall provide, without charge, certified copies of documents relating to criminal convictions requested by prosecuting attorneys.
We find no authority in CrR 7.1, or elsewhere, stating that a document generated by a prosecutor containing a list of a defendant's previous convictions may be used to prove criminal history. We find no authority providing that anything other than a document ordered by the trial court from the DOC can constitute a "presentence report." As discussed above, our Supreme Court has already answered this question by holding that "a prosecutor's assertions are neither fact nor evidence, but merely argument." Ford, 137 Wn.2d at 483 n. 3. Furthermore, our Supreme Court has repeatedly held that a certified copy of the judgment is the best evidence of a prior conviction and that "[t]he State may introduce other comparable evidence only if it is shown that the writing is unavailable for some reason other than the serious fault of the proponent." Lopez, 147 Wn.2d at 519 (emphasis added). See also Ford, 137 Wn.2d at 480; Fricks, 91 Wn.2d at 397.
For clarification, we note that our holding is limited solely to proof of prior convictions for the purpose of calculating offender scores and not to the other types of evidence that a trial court can consider during sentencing. CrR 7.1 and RCW 9.94A.500 provide that the trial court can allow argument from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer, as well as the submission of documents other than those provided by the DOC. But neither allows these arguments to supplant the State's burden to prove criminal history by a preponderance of the evidence by submitting certified copies of judgments and sentences or other record evidence upon a showing that the judgment and sentence is not available through no fault of the State.
Recognizing this distinction, we note that language from other decisions has led to some confusion about the trial court's use of information to prove criminal history at sentencing. Although each case addresses some form of acknowledgment or waiver at sentencing, no case has held that failure to object to a prior conviction constitutes waiver. We address the oft-cited cases chronologically.
In State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 724, amended on recons., 105 Wn.2d 175, 718 P.2d 796 (1986), a case consolidating several challenges to the SRA and its application, Ammons pleaded guilty and, on appeal, challenged former RCW 9.94A.100 (1985) and former RCW 9.94A.370 (1985) claiming that they violated his Fifth Amendment right against self- incrimination. Former RCW 9.94A.100 (1985) required a defendant who entered a guilty plea to disclose any prior convictions. Ammons, 105 Wn.2d at 183. Former RCW 9.94A.370 (1985) required the defendant to challenge any information contained in presentence reports or face waiver. To prove the previous convictions, the State had to provide certified copies of Ammon's four previous convictions, which it did. Ammons, 105 Wn.2d at 177. Our Supreme Court held that both provisions withstood the constitutional challenge and clarified:
Former RCW 9.94A.370 (1985) mirrors former RCW 9.94A.370 (1999) as discussed in note 4.
Our federal constitution provides in relevant part: "nor shall [the person] be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.
Former RCW 9.94A.100 (1985) provided: "The prosecuting attorney and the defendant shall each provide the court with their understanding of what the defendant's criminal history is prior to a plea of guilty pursuant to a plea agreement. All disputed issues as to criminal history shall be decided at the sentencing hearing." Laws of 2001, ch. 10, § 6 recodified RCW 9.94A.100 at RCW 9.94A.441.
[Former] RCW 9.94A.370 does not compel a defendant to provide any information. The defendant has the right to know of and object to adverse facts in the presentence reports. If he contests any facts, an evidentiary hearing must be held before they are used.
Ammons, 105 Wn.2d at 185 (emphasis added).
In State v. Herzog, 112 Wn.2d 419, 421-22, 771 P.2d 739 (1989), upon remand, the trial court sentenced Herzog to a standard range sentence based on an offender score of 0, even though it had a translated copy of the findings and judgment from a West German rape conviction that was constitutionally invalid. Division One of our court certified the question to our Supreme Court of whether the trial court erred in considering the facts alleged underlying the West German conviction. Herzog, 112 Wn.2d at 420. Our Supreme Court held that because the defendant did not object to the facts underlying the conviction in West Germany, the trial court did not err in relying on them for sentencing. Herzog, 112 Wn.2d at 432.
Four cases have dealt with whether a defendant may remain silent at sentencing when the trial court is asked to consider facts or information outside the record for imposition of an exceptional sentence. State v. Handley, 115 Wn.2d 275, 796 P.2d 1266 (1990); State v. Blunt, 118 Wn. App. 1, 71 P.3d 657 (2003); State v. Zatkovich, 113 Wn. App. 70, 52 P.3d 36 (2002); and State v. Morreira, 107 Wn. App. 450, 27 P.3d 639 (2001). All four cases involve a guilty plea by the defendant and the imposition of an exceptional or enhanced sentence based on information, other than certified copies of judgments and sentences, the trial court considered at sentencing.
Morreira is not helpful to our analysis because it deals with a second remand for the trial court to consider facts relating only to the charged offense, second degree assault, and not the facts from the Washington State Patrol investigative report and the community corrections officer's testimony contained in the presentence investigation report.
In Blunt, the defendant argued that the State had not proven his three prior DUI convictions, even though the State submitted copies of the judgment of conviction and sentencing order from Oregon, the judgment and sentence from a Lewis County District Court, and a "Lewis County District Court Docket computer printout" showing that Blunt had pleaded to and had been found guilty of a third DUI. Blunt, 118 Wn. App. at 5. Because it lacked an actual copy of the third conviction, the State also called the Lewis County District Court Administrator to testify that: the county destroyed court files for cases after five years, the county retains the docket for reference purposes by the court, the docket used for sentencing accorded with the way their dockets appear, and the docket contained Blunt's birth date, driver's license number, height, weight, and eye and hair color. Blunt, 118 Wn. App. at 5. Citing Ford, we upheld Blunt's sentencing enhancement based on three prior DUIs because the State's information — copies of judgments and sentence documents and live testimony on the conviction in which the judgment and sentence has been destroyed — bore "minimum indicia of reliability" and was not challenged. Blunt, 118 Wn. App. at 8 (quoting Ford, 137 Wn.2d at 481). But here, unlike in Blunt, the State failed to provide copies of judgment and sentence documents and failed to provide a reason for its failure to do so.
Handley, Zatkovich, and Morreira appealed exceptional sentences based on the trial court's consideration of facts underlying their previous crimes. In Handley, the trial court's exceptional sentence for the robbery and murder of an elderly woman was based on its consideration of "statements made by defendant and his attorney during sentencing, presentence reports from the State and defense counsel, defendant's statement on his plea of guilty, statements made by defendant and his codefendants soon after the crime, an autopsy report, and testimony from the medical examiner who conducted the victim's autopsy." Handley, 115 Wn.2d at 278.
Handley "objected to the trial court's consideration of some information in the . . . presentencing report, the out-of-court statements made by him and his codefendants, and the autopsy report." Handley, 115 Wn.2d at 278-79. In upholding the trial court's reliance on other sources of information at sentencing, the Supreme Court distinguished use of information for imposition of an exceptional sentence from a trial court's determination of criminal history:
Unlike criminal history, the particular circumstances surrounding a crime are not factored into the calculation of the standard range. Yet, . . . it is exactly those unique circumstances[,] which determine the appropriateness of an exceptional sentence.
. . . .
Furthermore, the defendant is protected from consideration of unreliable or inaccurate information because when "the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point." [Former] RCW 9.94A.370(2). This procedure safeguards the defendant's right to know and object to adverse facts. If the defendant does not exercise this right, the facts are deemed acknowledged for purposes of the sentencing judge's consideration.
Handley, 115 Wn.2d at 282 (internal citations omitted) (emphasis added).
Our Supreme Court affirmed the exceptional sentence, finding these facts sufficient for the trial court to establish that Handley was in a position of trust with the victim and that his failure to object to the information the trial court relied on to justify the exceptional sentence constituted acknowledgment. Handley, 115 Wn.2d at 284. The Handley court's decision does not suggest nor support the argument that a defendant's silence regarding his criminal history following a trial constitutes acknowledgment, as the State urges.
In Zatkovich, the trial court's reliance on facts in a stipulated presentence report about the "facts demonstrating Zatkovich's ongoing pattern of domestic, emotional, and physical abuse of the victim and his violence toward her in front of their minor children" was sufficient to justify an exceptional sentence. Zatkovich, 113 Wn. App. at 81. In Zatkovich, the trial court did not rely solely on a prosecutor's argument to determine the defendant's criminal history and to calculate his offender score.
Here, the State did not produce certified copies of any judgment or sentence showing Mendoza's alleged criminal history and also failed to provide a reason for this omission. The State relied solely on the argumentative statement of the prosecuting attorney. Thus, the State failed to prove Mendoza's criminal history by a preponderance of the evidence or that Mendoza waived any challenge to the criminal history. As such, the trial court lacked statutory authority to calculate Mendoza's offender score based on convictions the State failed to prove. Accordingly, Mendoza's sentence, based upon an incorrect offender score, is defective and we remand for resentencing requiring the State to prove Mendoza's criminal history by a preponderance of evidence.
In doing so, the State may introduce certified copies of judgment and sentence documents relating to Mendoza's prior criminal history. It is not held to the existing record. Our Supreme Court has held that "remand for an evidentiary hearing is appropriate only when the defendant has failed to specifically object to the State's evidence of the existence or classification of a prior conviction." Lopez, 147 Wn.2d at 520. Here, Mendoza failed to object to the State's alleged evidence of his criminal history. Accordingly, we hold that the State is entitled to an evidentiary hearing so that it may produce certified copies of Mendoza's criminal history.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
II. Prosecutorial Misconduct
Mendoza claims that the prosecutor committed multiple instances of misconduct by repeatedly eliciting testimony relating to Mendoza's prior contacts with the criminal justice system, "thus portray[ing] Mendoza as a persistent criminal, well known to the entire Aberdeen Police Department." Br. of Appellant at 5.
To establish prosecutorial misconduct, Mendoza must establish that "the conduct complained of was both improper and prejudicial." State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). "If the defendant proves the conduct was improper, the prosecutorial misconduct still does not constitute prejudicial error unless the appellate court determines there is a substantial likelihood that the misconduct affected the jury's verdict." Stenson, 132 Wn.2d at 718-19. If the defendant fails to object, the misconduct is only reversible if the conduct was so flagrant and ill-intentioned that "it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995) (footnote omitted). It is possible that the cumulative effect of multiple instances of misconduct may be so flagrant that no instruction can erase the error. State v. Henderson, 100 Wn. App. 794, 804-805, 998 P.2d 907 (2000).
Mendoza acknowledges that defense counsel did not object to the police officers' references to their knowledge of and contacts with Mendoza, but asserts that the conduct was so flagrant and ill-intentioned that it caused enduring prejudice to Mendoza that a curative jury instruction could not have neutralized. This argument lacks merit.
A. Timmons
First, during direct examination, the State asked Timmons whether he was looking for Mendoza on August 7, 2005, and if so, why. Timmons testified that "there was PC to arrest [Mendoza] for a separate charge, and also that he was a suspect in this case." RP (Apr. 4, 2006) at 103. Timmons did not elaborate regarding the separate charge and proceeded to discuss how he later found and arrested Mendoza.
The State's question was not improper but, rather, was an attempt to elicit the August 7, 2005 events. When Timmons provided an unexpected, additional reason for locating Mendoza, the State did not attempt to draw attention to the separate charge but, rather, directed the questioning to Mendoza's arrest. Under these circumstances, the State's conduct was not flagrant or ill-intentioned.
B. Darst
Darst testified that he prepared the photo array for Selin in an attempt to identify his assailant. When the State asked when Mendoza's photograph was taken, Darst responded, "It's earlier, sometime earlier when he was arrested a previous time." RP (Apr. 4, 2006) at 109. The State did not question Darst further and Mendoza's counsel did not object.
Mendoza relies on State v. Sanford, 128 Wn. App. 280, 286, 115 P.3d 368 (2005), in which we recognized that "referring to booking photos may raise a prejudicial inference of criminal propensity." In Sanford, defense counsel objected to a police officer's testimony about the defendant's prior booking photograph. 128 Wn. App. at 285-286. The State countered that the photograph was admissible to show the defendant's identity and guilty conscience. Sanford, 128 Wn. App. at 287. But in Sanford the defendant admitted that he had been involved in the alleged altercation; therefore, his identity was not an issue at trial and his booking photo was unnecessary to link him to the crime. 128 Wn. App. at 287. Thus, the trial court committed reversible error by admitting the officer's testimony about the booking photograph. 128 Wn. App. at 287.
This case is distinguishable from Sanford. First, identity was clearly an issue here. Mendoza denied any interaction with Selin. The State asked Darst the date of the previous booking photograph to show that Mendoza could have had a different hairstyle when he encountered Selin and was arrested on these charges. By comparing the previous booking photograph with the current booking photograph, the State intended to show the similarity between the man Selin identified in the array and Mendoza. Although Darst's response to the question provided clearly prejudicial information, the State's conduct in asking the date of the earlier booking photograph was not flagrant or ill-intentioned, such that a curative instruction could not have neutralized any prejudice.
Unlike Sanford, Mendoza does not challenge the trial court's admission of the previous booking photograph but, rather, challenges Darst's testimony about the photograph. Mendoza is unable to challenge the admission because failure to object to the admission of evidence at trial or to testimony precludes appellate review. State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000); State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985).
If an objection is made at trial, "[a] party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial." Guloy, 104 Wn.2d at 422. Here, Mendoza's counsel objected to the admission of Mendoza's current booking photo because Mendoza was shown in an orange prison outfit, but the trial court admitted the photograph for identification purposes so the State could present its theory about Mendoza's differing hairstyles.
C. King and Kelley
King testified that Kelley asked him to look at the store video to see if he could identify the person of interest. King testified that he recognized Mendoza in the surveillance video and that he knew him from several prior contacts. Kelley also testified that he was acquainted with Mendoza. Neither Kelley nor King indicated how they knew Mendoza or referenced any prior criminal history. Asking Kelley and King how they could identify the individual in the video was not flagrant or ill-intentioned and a curative instruction could have avoided any prejudice. III. Ineffective Assistance of Counsel
Mendoza claims that his counsel provided ineffective assistance because (1) he failed to object to law enforcement officers' testimony about their prior knowledge of and contacts with him and (2) inadvertently elicited that Mendoza is required to register his address with law enforcement. Mendoza claims that his counsel's conduct allowed the jury to hear the officers' opinions about Mendoza's guilt and inadmissible propensity evidence. Both the United States and Washington Constitutions guarantee effective assistance of counsel. We give great judicial deference to trial counsel's performance and we begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 332, 335, 899 P.2d 1251 (1995).
In all criminal prosecutions, the accused shall enjoy the right to a public and speedy trial, by an impartial jury . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
U.S. Const. amend. VI.
"In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel." Wash. Const. art. I, § 22.
To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance was deficient and (2) that deficient performance prejudiced him. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Counsel's performance is deficient when it "[falls] below an objective standard of reasonableness." State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. Hendrickson, 129 Wn.2d at 78.
When reviewing for prejudice, we view challenged testimony against "the backdrop of the evidence in the record," including whether the challenged evidence was central to the State's case. Hendrickson, 129 Wn.2d at 80. We are not required to address both prongs of the test if the defendant makes an insufficient showing on one prong. State v. Jeffries, 105 Wn. 2nd 398, 418, 717 P.2d 722 (1986) (quoting Strickland, 466 U.S. at 687). Furthermore, if trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel. Hendrickson, 129 Wn.2d at 77-78.
Evidence Rule (ER) 404(b) prohibits evidence of prior acts to prove the defendant's propensity to commit the charged crime. See State v. Holmes, 43 Wn. App. 397, 400, 717 P.2d 766 ("once a thief always a thief" is not a valid basis to admit evidence). ER 404(b) provides that the trial court can admit evidence of prior acts for limited purposes, including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
King and Kelley watched the store video to identify a potential suspect because Selin reported that he passed his assailant coming from the direction of the convenience store. Neither Kelley nor King provided any details about how they knew Mendoza nor did they refer to any prior criminal history. There are many reasons why law enforcement officers contact private citizens other than to make an arrest.
Further, after reviewing this testimony against the backdrop of the entire record, ample evidence still supports Mendoza's conviction. The State presented the victim's testimony, a videotape showing Mendoza near the scene of the crime close to the time it occurred, and evidence that Mendoza's fingerprint was on Selin's vehicle's door handle. Mendoza has not shown that the result of the trial would have differed if his counsel had objected to King and Kelley's testimony that they knew him and thus fails to show prejudice.
Mendoza also alleges that his counsel's failure to object to Darst's testimony that he used a previous booking photograph to assemble the photo array for Selin constituted ineffective assistance. Mendoza's counsel did not object to the testimony, presumably because Selin was unable to identify Mendoza, which supported Mendoza's defense that he did not commit the crime. Thus, Mendoza's counsel needed the earlier booking photo to show the jury that Selin could not identify Mendoza. This trial tactic cannot support a claim for ineffective assistance.
Mendoza further challenges his counsel's failure to object to Timmon's testimony that there was "PC to arrest the defendant for a separate charge, and also that he was a suspect in this case." RP (Apr.4, 2006) at 103. Again, Mendoza's counsel m ay have chosen not to object to avoid drawing the jury's attention to the separate charge. But even if Mendoza could show that his counsel had no legitimate trial strategy or tactic in bringing attention to this response and also that the trial court would have sustained an objection, in light of all the evidence, he has not shown that the result of the trial would have differed if the evidence had been stricken.
Finally, Mendoza alleges his counsel's performance was ineffective because he inadvertently elicited damaging testimony while cross-examining Kelley about Mendoza's activities at the convenience store:
Defense Counsel: Did [Mendoza] commit any crimes while standing there?
Kelley: Well, as a matter of fact, [Mendoza] actually was in the process of committing a crime that — it's not observed there, but he is also required to register his address.
The Court: Excuse me, would you please rephrase your question[?]
Defense Counsel: Thank you, Judge.
Defense Counsel: Let me rephrase that question. At the time you observed Mr. Mendoza in the video, was he committing an actual crime, was he doing anything wrong at the time?
Kelley: No.
RP 147-48. His counsel was clearly trying to show that Mendoza's conduct in the video was not illegal or improper. Mendoza's counsel did not object nor request a mistrial in response to Kelley's unexpected answer.
Kelley's response did not directly refer to Mendoza's history as a convicted sex offender, but it was clearly prejudicial to Mendoza. The trial court immediately interjected and asked defense counsel to rephrase the question. Mendoza's counsel may have realized that objecting immediately after the trial court had interjected on his behalf would highlight the inadvertently-elicited information, causing the jury to focus on the unexpected response and speculate about why Mendoza was required to register his address. Under these circumstances, Mendoza's counsel's conduct was a legitimate trial strategy or tactic following the inadvertent testimony and, as such, is not a valid basis for a claim of ineffective assistance. McNeal, 145 Wn.2d at 362. Here, the State's evidence was overwhelming that Mendoza was responsible for the charged crimes without the objected-to evidence and the result of the trial would not have differed. Thus, Mendoza fails to show that his counsel's performance was ineffective.
We affirm Mendoza's convictions and remand for recalculation of his sentence based on his criminal record proven by a preponderance of the evidence, without limiting the State to the record at the prior sentencing hearing.
I concur:
Houghton, C.J.
I concur with the majority regarding prosecutorial misconduct and ineffective assistance of counsel. But I disagree with the majority's holding regarding the sentencing issue.
I believe the majority mischaracterizes the prosecuting attorney's criminal history statement as something other than a presentence report. The criminal history is a presentence report and, as such, Frank C. Mendoza was required to object to it before sentencing to preserve this challenge for review. RCW 9.94A.530(2); State v. Garza, 123 Wn.2d 885, 890, 872 P.2d 1087 (1994); State v. Handley, 115 Wn.2d 275, 283-84, 796 P.2d 1266 (1990).
CrR 7.1(a) grants a trial court authority to order "a risk assessment or presentence investigation and report be prepared by the Department of Corrections [DOC], when authorized by law." And CrR 7.1(d) contemplates other reports, allowing "[a]ny interested person, as designated in RCW 9.94A.500 [to] submit a report separate from that furnished by the [DOC]."
Former RCW 9.94A.500 (2000), in turn, grants authority for several reports: (1) a risk assessment report completed by DOC; (2) a chemical dependency screening report prepared by DOC; (3) a "presentence report" for defendants convicted of a felony sexual offense prepared by DOC; (4) a "presentence report" for mentally ill defendants prepared by DOC; and (5) a victim impact statement. The statute goes on to say:
The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed.
Former RCW 9.94A.500(1) (emphasis added).
The emphasized language above means that the term "presentence report" has a wider definition than that used by the majority. It includes a victim impact statement, a document that is not prepared by DOC. Crucially, the term includes criminal history. No law requires that a defendant's criminal history be prepared by the DOC. Indeed, presentence reports of criminal history are typically prepared by the prosecutor or defense attorney and the DOC is only called upon to author such reports, causing much delay, in more serious cases or special circumstances such as the presence of mental illness or a felony sexual offense.
If, conversely, DOC does prepare a presentence report, it should include criminal history. See CrR 7.1(b).
The majority here holds that an offender acknowledges prior convictions only if he fails to object to a presentencing report that is prepared by the DOC, rather than an attorney. I disagree and would accordingly affirm on all grounds.