Opinion
No. 28315-8-II.
Filed: October 25, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Mason County, No. 011003194, Hon. James B. Sawyer II, January 3, 2002, Judgment or order under review.
Counsel for Appellant(s), Thomas E. Doyle, Attorney At Law, P.O. Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Carol L. Case, Mason Co. Deputy Pros. Atty., P.O. Box 639, Shelton, WA 98584.
Marcus Dale Roldan appeals his Mason County convictions of two counts of second degree possession of stolen property, and the sentence imposed thereon. He contends that two convictions under the same statute violate the double jeopardy clauses in the United States and Washington constitutions. He also claims that the trial court incorrectly calculated his offender score. A commissioner of this court initially considered this matter pursuant to Roldan's motion for accelerated review, RAP 18.15, and the State's motion on the merits to reverse, RAP 18.14, and subsequently referred it to a panel of judges. We hold that the two convictions merge into one crime and we remand for resentencing.
Facts
On September 9, 2001, Marcus Roldan and Gavin Hernandez stole Tim Sheedy's 1980 Mazda RX-7. Before abandoning the car, they removed the engine and Sheedy's personal belongings, including golf clubs, tools and a C.D. player, and stored those items on a friend's property. Sheedy estimated that the car was worth $800 to $1,000, and the personal property was worth $1,200 or $1,300 at most.
The State charged Roldan with two counts of second degree possession of stolen property under RCW 9A.56.160(1)(a), and the jury convicted him of both counts. The court found that Roldan's criminal history included two non-violent juvenile crimes (taking a motor vehicle without permission and residential burglary), and two adult crimes (second degree theft and trafficking in stolen property). It counted each of these crimes as one point and added one point for the other current offense, giving Roldan an offender score of 5, and a standard range of 4 to 12 months. Roldan asked for a mid-range sentence but told the court that if he was going to get 12 months, he would like to take advantage of the services offered in the state institutions. On the basis of this 'stipulation', the court imposed an exceptional sentence of 366 days.
Discussion
Roldan first contends that two convictions under RCW 9A.56.160(1)(a) violate the double jeopardy clauses in the Fifth Amendment of the federal constitution and art. I, § 9 of the state constitution. We agree, as does the State. Under double jeopardy protections, a defendant may not be punished multiple times for the same offense. State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995); State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). As Roldan was convicted of two crimes under the same statutory provision, this court must determine what the Legislature intended the punishable act, or 'unit of prosecution' to be. State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998). If there is any ambiguity, the rule of lenity dictates that only one count can be permitted. Adel, 136 Wn.2d at 634-35 (citing Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955)).
Although Roldan did not raise this issue below, he may do so for the first time here. State v. Turner, 102 Wn. App. 202, 206, 6 P.3d 1226 (2000), review denied, 143 Wn.2d 1009 (2001).
RCW 9A.56.160(1)(a) provides in pertinent part:
(1) A person is guilty of possessing stolen property in the second degree if:
(a) He or she possesses stolen property other than a firearm as defined in RCW 9.41.010 which exceeds two hundred fifty dollars in value but does not exceed one thousand five hundred dollars in value;. . . .
This provision defines no unit of prosecution but only specifies a monetary amount, and therefore must be construed to permit only one charge pertaining to acts committed against the same victim in the same period of time. See State v. Turner, 102 Wn. App. 202, 6 P.3d 1226 (2000) (applying the rule of lenity to similar language in the first degree theft statute, RCW 9A.56.030(1)(a)), review denied, 143 Wn.2d 1009 (2001); see also Adel, 136 Wn.2d at 635 (applying the rule of lenity to the drug possession statute, RCW 69.50.401(e)).
We note that under RCW 9A.56.160(1)(d), a person commits second degree possession of stolen property by possessing a motor vehicle valued at less than $1,500. The State amended the information on the first day of trial to include this language in Count I, but it did not change the statutory citation. Despite the amended language, it could not charge two counts under RCW 9A.56.160(1)(a).
Roldan also asserts several errors in the calculation of his offender score. He first contends that the trial court should have counted only — point for each of his juvenile crimes as they were non-violent crimes. He is correct. See RCW 9.94A.525(7). The State urges us to consider Roldan's November 28, 2001 judgment and sentence for first degree trafficking in stolen property and second degree theft (Mason County cause number 01-1-00226-1). The 2001 judgment lists four juvenile convictions, two in addition to the ones listed in the current judgment and sentence. Under the Sentencing Reform Act, the defendant is not required to disclose prior convictions. See State v. Ammons, 105 Wn.2d 175, 184, 713 P.2d 719 (citing former RCW 9.94A.370 (1984)), cert. denied, 479 U.S. 930 (1986). It was the State's burden to prove Roldan's prior convictions. State v. Ford, 137 Wn.2d 472, 482-83, 973 P.2d 452 (1999); Ammons, 105 Wn.2d at 186. The deputy prosecutor did not present evidence of the additional crimes to the trial court, and it is now too late to correct that error. See State v. Gill, 103 Wn. App. 435, 450, 13 P.3d 646 (2000).
As Roldan's 'stipulation' to an exceptional sentence was based on an incorrect offender score, he is not bound by it. See State v. Hilyard, 63 Wn. App. 413, 418, 819 P.2d 809 (1991), review denied, 118 Wn.2d 1025 (1992) (stipulation must be made intelligently and voluntarily and with an understanding of the consequences).
Roldan next contends that his trafficking in stolen property conviction is void because the statute under which he was charged and convicted was no longer in effect at the time he committed the crime. As Roldan asserts, this court found that the Legislature failed to continue the life of the criminal profiteering act in 1995. See State v. Thomas, 103 Wn. App. 800, 803, 14 P.3d 854 (2000), review denied, 143 Wn.2d 1022 (2001). However, the Legislature reenacted it in 2001, with an effective date of May 9, 2001. Laws of 2001, ch. 222, § 8. Roldan committed the trafficking crime on June 13, 2001 (see exh. A to appellant's motion). The trial court did not err in including it in his offender score.
Roldan also contends that the trial court should have considered his two current crimes to be the same criminal conduct. In light of our resolution of the double jeopardy issue, we need not address that question.
In conclusion, we hold that Roldan's two current convictions merge into one crime. We also hold that the trial court incorrectly counted each of his juvenile convictions as a full point. His correct offender score is three, and his standard range is two to five months. We remand this matter for resentencing in accordance with this opinion.
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.
WE CONCUR: HOUGHTON, J., QUINN-BRINTNALL, A.C.J.