Opinion
No. 52447-0-I.
April 9, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-1-06035-4, Catherine D. Shaffer, J., entered May 5, 2003.
Affirmed by unpublished opinion per Baker, J., concurred in by Coleman and Agid, JJ.
Our Supreme Court remanded this matter to this court for reconsideration of our opinion in light of State v. Suleiman and State v. Hagar. We affirm Robinson's sentence, because the judicial fact finding in violation of Blakely v. Washington was harmless error.
158 Wn.2d 280, 143 P.3d 795 (2006).
158 Wn.2d 369, 144 P.3d 298 (2006).
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d. 403 (2004).
Both Suleiman and Hagar acknowledge that under Washington v. Recuenco, Blakely error is subject to a constitutional harmless error analysis. A harmless error under the constitutional standard occurs if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. A constitutional error is presumed prejudicial and the burden is on the State to prove that it is harmless.
___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d. 466 (2006).
Suleiman, 158 Wn.2d at 294-95; Hagar, 158 Wn.2d at 373 n. 2.
State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
Guloy, 104 Wn.2d at 425 (citing State v. Stephens, 93 Wn.2d 186, 190-191, 607 P.2d 304 (1980)).
Robinson argues on remand that because he pled guilty and was not afforded a jury trial, this court should not engage in speculation as to what a fictional jury would have concluded. Further, at the time of his guilty plea, there was no procedure available in our law for a jury to try issues of aggravating factors which might justify exceptional sentences. However, harmless error analysis always involves an inquiry into the hypothetical. The analysis here asks whether the evidence presented at a hypothetical jury trial would have resulted in the enhanced sentence beyond a reasonable doubt. Robinson suggests that in a jury trial, he would have contested, not stipulated, to the facts contained in his guilty plea, and that there is no way of knowing what evidence a jury would have heard. However, Robinson has never sought to withdraw his guilty plea; he only seeks resentencing within the standard range. We therefore assume that the same stipulated facts contained in his plea agreement would have been submitted to a jury. Therefore, we proceed with the harmless error analysis based on the record below.
The trial court ruled that each aggravating factor, standing alone, is sufficient to support the enhanced sentence. Therefore to sustain the sentence, the State need only demonstrate that one of the three factors would have been found by a jury beyond a reasonable doubt.
State v. Hughes, 154 Wn.2d 118, 134, 110 P.3d 192 (2005).
One of the factors supporting Robinson's enhanced sentence was the finding that his victims were particularly vulnerable. This aggravating factor justifies an exceptional sentence if the State shows (1) that the defendant knew or should have known (2) of the victim's particular vulnerability and (3) that vulnerability was a substantial factor in the commission of the crime. Our Supreme Court has upheld a finding of particular vulnerability when the victim was a pedestrian pushing her bicycle along the shoulder of the road.
Suleiman, 158 Wn.2d at 291-92.
State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986). Despite the fact that the victim in Nordby was only 15 years old, the court found that her status as a pedestrian alone supported a finding of particular vulnerability. Nordby, 106 Wn.2d at 516 n. 1.
Although he did not stipulate to the aggravating factor of particularly vulnerable victims, he did stipulate to all of the facts underlying that finding. All three victims were undisputedly pedestrians, which is sufficient for a finding of vulnerability under Nordby. In fact, the victims here were even more vulnerable than the Nordby victim. First, two of the three victims were children ages 8 and 12. Second, they were standing on a sidewalk with a curb, not on the shoulder of the road where they might be more alert to passing traffic.
The stipulated facts prove beyond a reasonable doubt that Robinson knew or should have known that these victims were particularly vulnerable when he drove his vehicle onto the sidewalk. Their particular vulnerability was certainly a substantial factor in the crime: had they been in another car, they might have been able to swerve and avoid Robinson, or might have been afforded some protection by their car's safety systems. Were the trial court, on remand to submit the aggravating factors to a jury, on this record, Robinson's sentence would have been the same.
AFFIRMED.
WE CONCUR: