Opinion
No. 51905-1-I.
Filed: April 26, 2004.
Appeal from Superior Court of Skagit County. Docket No: 02-1-00571-2. Judgment or order under review. Date filed: 02/20/2003. Judge signing: Hon. Susan K Cook.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Maureen Marie Cyr, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Santiago-Perez/Doc #852484 (Appearing Pro Se), Stafford Creek Correction Center, 191 Constantine Way, Aberdeen, WA 98520.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 So. 3rd St, Mount Vernon, WA 98273-3867.
Skagit Count Prosecuting Atty, Attorney at Law, 605 So. Third St, Courthouse Annex, Mount Vernon, WA 98273.
While under the influence of alcohol and cocaine, Nazario Santiago-Perez drove his truck into an apartment killing a four year-old boy who was asleep on the living room floor. Santiago-Perez pleaded guilty to vehicular homicide, hit and run-death, possession of cocaine, and fourth degree assault. The trial court imposed an exceptional sentence of 120 months. Santiago-Perez argues the trial court erred when it imposed an exceptional sentence because his conduct was more egregious than typical of vehicular homicide cases and the victim was particularly vulnerable. In supplemental briefing, Santiago-Perez contends the court's imposition of an exceptional sentence violated his right to a jury trial. Pro se, he challenges the evidence supporting his hit and run conviction. We affirm the exceptional sentence of 120 months.
FACTS
In the early morning of Sunday, October 10, 2002, Nazario Santiago-Perez drove his truck through the wall of an apartment. Three quarters of the truck, up to the rear wheels, landed in the living room. Rubber scuff marks in the parking lot of the apartment complex showed Santiago-Perez accelerated approximately fifteen feet before vaulting his truck over a curb and crashing through the apartment wall. Seven people, including four children, were asleep on the living room floor of the apartment. A front wheel landed on the head of four year-old Miguel Bailon.
One of the older children, awakened by the crash, saw that Santiago-Perez was trying to back out of the apartment. The child pounded on the truck window and screamed at him to stop because two children were underneath the truck.
Miguel's aunt and uncle, who had been sleeping upstairs, ran into the living room and saw the passenger of the truck get out and leave. Miguel's uncle went to the driver's side and ordered Santiago-Perez to stay in the truck. Santiago-Perez agreed, but after the uncle left to chase the passenger, he moved to the passenger's side and got out. Miguel's aunt tried to prevent him from fleeing and grabbed onto his shirt. Santiago-Perez turned, punched her in the face, and ran away through the narrow opening between the truck and the apartment wall.
Santiago-Perez was caught by the uncle and a neighbor about a block away. He fought with the two men and threatened to `kill them all.' They eventually restrained him until the police arrived.
Clerk's Papers (CP) at 75-6.
When the police officers arrived, they found a crowd gathered around Miguel. Miguel had a serious head injury. He had difficulty breathing, was bleeding from his nose and mouth, and his eyes were swollen shut. Miguel was airlifted to Harborview Medical Center and admitted to the pediatric intensive care unit.
When the officers arrested Santiago-Perez, he appeared to be extremely intoxicated. He smelled strongly of alcohol, his eyes were bloodshot and he was `muttering unintelligibly.' A blood draw approximately two hours after the crash showed the presence of cocaine (at a level of 0.16 mg/L) and an alcohol concentration over twice the legal limit (blood ethanol level of 0.19 g/100ml). In a search incident to Santiago-Perez's arrest, the police found two plastic bags containing cocaine.
CP 66.
Miguel remained in a coma and never recovered from his injuries. A month after the accident, life support was terminated and Miguel returned home. He died on December 24, 2002.
On January 16, 2003, the State charged Santiago-Perez with vehicular homicide, hit and run-death, possession of cocaine, and fourth degree assault. The same day, Santiago-Perez pleaded guilty to all four counts. He stipulated to the facts contained in the police reports as well as other facts including the results of the blood draw, the assault on Miguel's aunt, and his flight from the scene of the accident. Santiago-Perez's standard range sentence for vehicular homicide was 41-54 months; for hit and run-death, 46-61 months; for possession of cocaine, 3-9 months; and for fourth degree assault, 1-12 months.
CP 58-103; 104-6.
As part of the plea, the State indicated that it would seek an exceptional sentence of 120 months of confinement.
At sentencing, the State argued the court should impose a 120 month exceptional sentence because Santiago-Perez's conduct was more egregious than typical of vehicular homicide cases, and the victim was particularly vulnerable. Santiago-Perez asked the court to impose a standard range sentence of 46 to 61 months. The court concluded an exceptional sentence of 120 months was warranted. The court entered `Findings of Fact and Conclusions of Law Regarding Sentencing'. Santiago-Perez appeals the exceptional sentence.
CP 111; RCW 9.94A.535.
DISCUSSION
A trial court may impose an exceptional sentence only if it finds substantial and compelling reasons to support doing so. RCW 9.94A.535; State v. Halgren, 137 Wn.2d 340, 345, 971 P.2d 512 (1999). Any such reasons must relate to the crime and must make it more or less egregious. State v. Fowler, 145 Wn.2d 400, 403, 38 P.3d 335 (2002). For an exceptional sentence, the sentencing court may not take into account the defendant's scored criminal history and the seriousness of the offense because those factors are already considered in the presumptive standard range for the offense. Fowler, 145 Wn.2d at 405. Appellate review of an exceptional sentence is governed by a three-part analysis. RCW 9.94A.585(4). First, the court must determine, under a clearly erroneous standard, whether the record supports the trial court's reasons for the exceptional sentence. Next, the appellate court must decide whether, as a matter of law, the reasons justify an exceptional sentence. Finally, the court determines whether, under an abuse of discretion standard, the exceptional sentence is clearly excessive or clearly too lenient. RCW 9.94A.585(4); State v. Cardenas, 129 Wn.2d 1, 5-6, 914 P.2d 57 (1996).
The statute lists aggravating and mitigating factors, but the listed factors are illustrative rather than exclusive. RCW 9.94A.535.
Santiago-Perez does not contend that the exceptional sentence is clearly excessive.
Exceptional Sentence Findings of Fact
Santiago-Perez challenges several of the trial court's exceptional sentence findings that he argues are unsupported by the record. A finding of fact is clearly erroneous if no substantial evidence supports it. State v. Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991).
(1) Attempt to flee by reversing the truck.
In its findings and conclusions, the court twice characterized Santiago-Perez's attempt to reverse the truck as an attempt to leave the scene of the accident. Santiago-Perez argues that this finding is not supported by the record and should be stricken. He does not dispute that after crashing through the apartment wall, he attempted to leave by putting the truck in reverse, he claims the record establishes that his intent was only to extricate himself from the collision, not to leave. The record does not support this claim.
Finding of fact #11 states:
[T]he Defendant made three separate attempts to flee: once by rocking and attempting to back his truck out of the apartment, once by assaulting Antonia Paz and running out of the apartment, and once by fighting with and threatening Jesus Morales-Lopez after being captured; CP 112. Conclusion of Law #3 states:
[T]he Defendant further endangered the seven persons in the room, including the three children trapped under his truck when he rocked the truck back and forth in an attempt to free the truck so that he could escape. CP 114.
The evidence of burn marks under the rear tires also indicates that Santiago-Perez spun the back wheels trying to reverse.
Santiago-Perez points to his presentencing memorandum. In that memorandum, Santiago-Perez acknowledged that he had virtually no memory of the accident other than getting into the truck, putting it in gear and then struggling with some men. CP 47-48. Counsel states that it `appears' Santiago-Perez's immediate reaction was to reverse gears `attempting to stop the forward progress and/or back away from the collision point'. CP 48. The evidence in the record does not support Santiago-Perez's argument that his intent was only to back away from the collision and not to leave.
The record supports the trial court's conclusion that Santiago-Perez was trying to back out of the apartment in order to leave. After one of the children pounded on the window and stopped him from trying to move the truck, Santiago-Perez got out of the truck and fled on foot as soon as he could. The inference that he put his truck in reverse to leave the apartment is warranted.
Even if we were to conclude that this finding is not supported by the evidence, it is of no consequence to Santigo-Perez's appeal. The court did not rely on Santiago-Perez's flight to impose the exceptional sentence.
(2) Number of children pulled out from under the truck.
Santiago-Perez argues that no substantial evidence supports the finding that there were three children pulled out from underneath his truck. The police reports indicate that the child who stopped Santiago-Perez from moving the truck pulled two children out from under the truck. The evidence also establishes that Miguel was struck on the head by a truck tire. The inference that a total of three children were pulled out from under the truck is supported by the record.
Finding of fact #18 states:
[T]hree of the children were pulled from under the Defendant's truck after it crashed into the living room. CP 113.
Again, the court did not base its exceptional sentence on this finding.
Exceptional Sentence Conclusions of Law
The trial court's exceptional sentence was based on on two independent legal grounds: (1) conduct more egregious than typical of vehicular homicide, and (2) the particular vulnerability of the four year-old victim, Miguel. Santiago-Perez argues that, as a matter of law, the reasons articulated by the court do not justify imposing an exceptional sentence.
(1) Conduct More Egregious than Typical.
Santiago-Perez argues the trial court erred in concluding his crime was more egregious than typical because it relied on factors already considered by the Legislature in calculating the standard range: his use of drugs and alcohol, and his attempts to leave the scene of the accident. In its written order, the court outlines the reasons it concluded Santiago-Perez's conduct was a substantial and compelling reason to impose an exceptional sentence:
(1) the Defendant's blood alcohol concentration was more than twice the legal limit for operating a motor vehicle;
(2) the Defendant's combined use of alcohol and cocaine resulted in greater impairment than consumption of alcohol or cocaine alone;
(3) the Defendant further endangered the seven persons in the room, including the three children trapped under his truck, when he rocked back and forth in an attempt to free the truck so that he could escape;
(4) the facts of this case are markedly different than typical of vehicular assault and vehicular homicide cases;
(5) the Defendant's conduct was more egregious than typical for these types offenses;
(6) the Defendant's egregious conduct alone, in and of itself, is a sufficiently substantial and compelling reason to justify departing upward from the standard range and imposing an exceptional sentence.
CP 114.
Facts `more egregious than typical of the offense is a legally adequate aggravating factor." State v. Perez, 69 Wn. App. 133, 139, 847 P.2d 532 (1993); State v. Owens, 95 Wn. App. 619, 626, 976 P.2d 656 (1999); State v. Flores-Moreno, 72 Wn. App. 733, 744, 866 P.2d 648 (1994). The combined use of drugs and alcohol is contemplated in the crime of vehicular homicide. See RCW 46.61.502(1)(c). But, a high level of intoxication, together with other facts, can make conduct more egregious than typical of the crimes of vehicular homicide or vehicular assault. State v. Oksoktaruk, 70 Wn. App. 768, 856 P.2d 1099 (1993) (high blood alcohol level together with driving at a high rate of speed, on a crowded street, in the middle of town, on a rainy night, without headlights, and nearly colliding with other vehicles before the accident made the defendant's conduct more egregious than typical); State v. Perez, 69 Wn. App. 133, 847 P.2d 532 (1993) (defendant's conduct was more egregious than typical because he had an unusually high blood alcohol level, drove at high speed at night with headlights deliberately off, weaved in and out of oncoming lane and collided with victim's car head on in the opposite curb lane); State v. Jacobsen, 92 Wn. App. 958, 965 P.2d 1140 (1998) (defendant's conduct was more egregious than typical where he drove southbound in northbound highway lanes, at night, with the headlights off, while intoxicated and fleeing the police).
Santiago-Perez does not challenge the court's conclusion that his blood alcohol concentration was over twice the legal limit.
Here, the trial court's conclusions focus not on the consumption of alcohol or the combination of drugs and alcohol, but on the resulting degree of impairment. In addition, the trial court found that Santiago-Perez's conduct was more egregious than typical because he endangered the seven people sleeping in the living room including the children trapped by his truck; he further endangered them when he put the truck in reverse and rocked it back and forth; and he assaulted both the victim's aunt and uncle in his attempt to escape. At sentencing, the court specifically noted that assaults were not counted in Santiago-Perez's offender score, and therefore were not reflected in the standard range sentence. The court also found that the defendant drove his truck with enough force and speed to leave fifteen feet of acceleration marks, vault his truck over a curb and through an apartment wall, landing almost completely in the apartment. The record justifies the trial court's conclusion that Santiago-Perez's conduct was more egregious than typical.
Although Santiago-Perez was charged and pleaded guilty to fourth degree assault, assault is not an element of vehicular homicide. RCW 46.61.520 (1)(a).
Santiago-Perez agreed with the court's assessment. RP (2/19/03) at 40.
Finding of Fact #4.
Because flight was an element of hit and run and was already included in the standard range sentence, Santiago-Perez also argues the court improperly relied on his attempt to put his truck in reverse and leave after the accident. But the gist of the trial court's conclusion about Santiago-Perez's attempt to move his truck is not that he tried to escape but that he `further endangered' the seven people in the room including the children trapped underneath his truck.
Finally, Santiago-Perez argues the court's conclusion that his conduct was more egregious than typical is clearly erroneous because there are no written findings describing the facts of a typical vehicular homicide case. He cites no authority that such findings are required. See State v. Cardenas, 129 Wn.2d 1, 10, 914 P.2d 57 (1996) (while the trial court must enter findings to support its legal conclusion that the defendant's conduct is more egregious than typical, there is no additional requirement to describe a typical vehicular assault case). Nevertheless, the court, in its oral decision, described how this case differs from typical vehicular homicide cases:
There is a broad spectrum of conduct that can constitute vehicular homicide. But ordinarily what the Court sees are lapses of judgment or momentary inability to control a vehicle. The typical kind of things that happen [are that] somebody has too much to drink and they become drowsy or they fall asleep at the wheel and drift over the center line and they hit an oncoming vehicle, or they over correct and go off the side of the road, or they misjudge the speed of an oncoming vehicle and turn right in front of it. Lapses of judgment or physical inability to properly control the vehicle because of their having been affected by alcohol.
RP 2/19/03 at 66.
The court did not improperly rely on factors already reflected in the standard range and as a matter of law, its conclusion that Santiago-Perez's conduct was more egregious than typical is a substantial and compelling reason to impose an exceptional sentence.
(2) Particular Vulnerability of the Victim
The court also concluded that the vulnerability of the victim justified the imposition of an exceptional sentence. In reaching this conclusion, the court focused on the following facts: the offense occurred in a residential multi-family apartment complex; Miguel was four years-old; Miguel and the other occupants were sleeping in the living room where they had a `right to expect safety'; they were not able to protect against or avoid the collision; and the defendant knew or should have known of the high likelihood of injury to vulnerable residents living in the apartment complex.
Conclusion # 7. CP 114.
Santiago-Perez argues that because the record does not show he knew or should have known the victim was present in the apartment and particularly vulnerable, the trial court erred when it imposed an exceptional sentence based on Miguel's vulnerability.
Particular vulnerability of the victim is a statutory factor for imposing an exceptional sentence if `[t]he defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.' RCW 9.94A.535(2)(b). To justify imposing an exceptional sentence this vulnerability must be a substantial factor in the crime. State v. Gore, 143 Wn.2d 288, 318, 21 P.3d 262 (2001); Cardenas, 129 Wn.2d at 11; State v. Ross, 71 Wn. App. 556, 565-66, 861 P.2d 473 (1994). Review of the trial court's finding of particularized vulnerability is under a clearly erroneous standard to determine if the record supports it. Cardenas, 129 Wn.2d at 5.
Santiago-Perez argues that because there was no evidence he knew of or saw the victim before the crash, the trial court could not conclude he should have known of the victim's vulnerability. But our Supreme Court has held that where a defendant is driving in a residential neighborhood, a defendant either knows or should know of the presence of individuals who are vulnerable, unprepared for, and unprotected against a collision, and the victim's particular vulnerability in these circumstances is a substantial factor in the crime. Cardenas, 129 Wn.2d at 12. In Cardenas, the defendant was intoxicated and driving 35-45 miles per hour in a residential neighborhood. He lost control of his car while making a turn, crashed through a retaining wall into the victim's back yard, and pinned the 69 year-old victim to a tree, seriously injuring her. The Court upheld the exceptional sentence on the ground of victim vulnerability even though Cardenas had no reason to know of the existence of the specific victim or her particular vulnerability at the time of the offense. The Court described the reasons for its decision as follows:
Santiago-Perez contrasts the facts of this case where the victim was asleep inside with State v. Nordby, 106 Wn.2d 514, 723 P.2d 1117 (1986) and State v. Morris, 87 Wn. App. 654, 943 P.2d 329 (1997), where exceptional sentences were justified because the victims were pedestrians and cyclists. In Nordby, the victim was a pedestrian pushing her bike along the side of the road when a car swerved and struck her. She did not have the protection afforded by a car and was "completely defenseless and vulnerable" and unable to avoid the impact. Nordby, 106 Wn.2d at 518. In Morris, the defendant struck several cyclists from the rear who were cycling together.
The trial court made no specific findings regarding whether Cardenas knew or should have known of a risk to pedestrians. Nonetheless, it is apparently undisputed that the incident occurred in a residential area, and there is no reason to suppose Cardenas did not know this. It is also reasonable to assume that given this, Cardenas either knew or should have known that there would be people such as the victim here, totally unprepared and vulnerable, when he drove recklessly through this area careening finally into the victim's own backyard.
Cardenas, 129 Wn.2d at 12.
The same analysis applies here. Santiago-Perez was in the parking area of a residential apartment complex and knew or should have known there would be residents in the apartment units who would be unprepared, unprotected, and vulnerable when he crashed his truck through an apartment. To an even greater extent than the driver in Cardenas, Santiago-Perez knew or should have known vulnerable residents were in the apartment. And by driving with extreme speed in the apartment complex parking lot while highly impaired, Santiago-Perez knew or should have known of the high likelihood of injury to vulnerable residents. As the trial court concluded:
[T]he Defendant knew or should have known of the high likelihood of injury to vulnerable pedestrians, other drivers, or residents in the apartment complex as the result of his conduct.
Conclusion #8. CP 114.
Santiago-Perez asserts the Court's holding in Cardenas is undermined by its more recent decision in State v. Fowler, 145 Wn.2d 400, 38 P.3d 335 (2002). But Fowler is inapposite and does not undermine the holding of Cardenas. In Fowler the Court reversed the trial court's decision to impose an exceptional sentence downward. The trial court's decision was based on its findings that the defendant had no criminal record, the crime was an aberrant and isolated incident, there was a low risk of reoffense, lack of sleep, and the defendant had strong family support. The Court determined that the absence of prior criminal behavior and a low risk of reoffense were factors already encompassed in the standard range. Fowler, 145 Wn.2d at 409. In concluding that strong family support was not a mitigating factor or a substantial and compelling reason to impose an exceptional sentence, the Court pointed out that support was not related to the crime committed and therefore does not `distinguish his crime from others' committing crimes in the `same statutory category'. Fowler, 145 Wn.2d at 411. The Court's conclusion in Fowler that the defendant's family support was not a mitigating factor because it was not related to the crime does not call into question the Cardenas Court's conclusion that the victim's vulnerability was a substantial factor in the defendant's crime. In Cardenas, the Court concluded that the victim's vulnerability related to the crime and distinguished the defendant's conduct from other crimes of vehicular assault.
The record supports the trial court's conclusion that the victim's vulnerability was a substantial and compelling reason to impose an exceptional sentence and, under Cardenas, was a substantial factor in the crime. Miguel was asleep on the living room floor of his apartment totally unprepared and vulnerable to Santiago-Perez driving his truck through the apartment wall and into the living room. His particular vulnerability was a substantial factor in the crime.
At oral argument for the first time, Santiago-Perez made the argument that the victim's vulnerability was not a substantial factor in the crime based on State v. Gore, 143 Wn.2d 288, 21 P.3d 262 (2001). We do not consider arguments raised for the first time in oral argument. We disagree that Gore is inconsistent with or alters the analysis of Cardenas.
Right to Jury Trial
In supplemental briefing Santiago-Perez argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the State must prove to a jury, beyond a reasonable doubt, aggravating factors that support an exceptional sentence.
In Apprendi, the United States Supreme Court struck down a hate crime statute that authorized a judge to increase a defendant's maximum prison sentence if the judge found, by a preponderance of the evidence that the defendant had acted with a purpose to intimidate because of race. In concluding that the statute violated the defendant's due process rights and right to a jury trial, the Court held that `[o]ther 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, 530 U.S. at 490.
The Washington Supreme Court addressed Apprendi's effect on Washington's Sentencing Reform Act (SRA) in Gore, 143 Wn.2d 288. The aggravating facts justifying an exceptional sentence under Washington's SRA do not increase the maximum sentence nor define a separate offense and separate penalty. Therefore, the Court concluded that Apprendi did not require the State to prove the factual basis for an exceptional sentence to a jury beyond a reasonable doubt. Gore, 143 Wn.2d at 313-14.
Santiago-Perez also contends that Gore is inconsistent with Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court's decision following Apprendi. In Ring, a death penalty case, the Supreme Court held that a jury must determine beyond a reasonable doubt the factors used to increase the maximum sentence allowed by the Legislature. Ring, 536 U.S. at 587. But this court has concluded that Ring `does not call into question Gore's validity' because the statutory maximum is the upper limit set by the Legislature which the sentencing court cannot exceed even in the presence of aggravating factors. State v. Xavier, 117 Wn. App. 196, 205, 69 P.3d 901 (2003). Santiago-Perez's right to a jury trial was not violated.
Pro Se Brief
Pro se, Santiago-Perez challenges the evidence supporting his hit and run conviction. Because Santiago pleaded guilty to this offense and stipulated to the facts of the accident, including his flight from the scene, he cannot raise this argument on appeal.
We affirm the trial court's decision to impose an exceptional sentence.
ELLINGTON and KENNEDY, JJ., concurs.