Opinion
No. 53696-6-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-01523-3. Judgment or order under review. Date filed: 01/16/2004. Judge signing: Hon. Richard F. McDermott.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Amy R. Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
The fact that a defendant is on community placement at the time of his offense will increase his offender score and the applicable standard range. In State v. Jones, we held that whether a defendant is on community placement at the time of the offense is a finding a jury must make beyond a reasonable doubt. Because Anthony Trujillo's community placement status was not proved to a jury, and because harmless error analysis is foreclosed by binding precedent, we reverse Trujillo's sentence for robbery, assault, and possession of heroin and remand for resentencing.
Wn. App. ___, ___ P.3d ___ (No. 53322-3-I) (Wash. Feb. 28, 2005).
The facts material to the issues on appeal are undisputed and will be mentioned here only when necessary to explain our decision.
DECISION
Trujillo contends his sentences violate due process because his offender score was based in part on the fact that he was on community placement when he committed his current offenses. Trujillo contends that under Blakely v. Washington, the fact he was on community placement had to be proved to a jury beyond a reasonable doubt. He is correct. Contrary to the State's assertions, the error is not subject to harmless error analysis. Accordingly, Trujillo must be resentenced.
U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
State v. Jones, ___ Wn. App. ___, ___ P.3d ___ (No. 53322-3-I) (Wash. Feb. 28, 2005).
State v. Jones, ___ Wn. App. ___, No. 53322-3-I, slip op. at 12 (citing State v. Thomas, 150 Wn.2d 821, 83 P.3d 970 (2004)).
Trujillo argues that double jeopardy principles preclude the State from attempting to prove his community placement status at resentencing. We rejected identical arguments in State v. Harris and State v. Maestas. Trujillo also contends his convictions should be reversed because the superior court erred in denying his motion to suppress a witness's montage and in-court identifications. We review the court's admission of the identification evidence for abuse of discretion.
123 Wn. App. 906, 99 P.3d 902 (2004).
124 Wn. App. 352, 101 P.3 d 426 (2004).
State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001).
A pretrial identification procedure violates due process if it is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. A defendant challenging a photomontage must demonstrate that the montage directed undue attention to a particular photograph. Generally, courts have found montages impermissibly suggestive only when the defendant is the sole possible choice in light of the witness's earlier description.
State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977).
State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343 (2002).
State v. Ramires, 109 Wn. App. at 761; State v. Traweek, 43 Wn. App. 99, 715 P.2d 1148 (1986) (robber described as blond; defendant was the only blond in lineup); State v. Burrell, 28 Wn. App. 606, 625 P.2d 726 (1981) (suspect described as having "frizzy Afro" hairstyle; defendant was the only subject with that characteristic).
Trujillo contends the photo montage in this case was impermissibly suggestive because witnesses described the suspect as a `young thin kid', but only Trujillo's photo fit that description. We disagree. The descriptions known to police when the montage was created described the suspect as tall, thin, fair skinned, and around 25 years old. They made no reference to him looking like a `young kid.' In any event, the montage was not suggestive. With one possible exception, all of the suspects have similar features, including light complexion, long dark hair, and facial hair. They appear to be roughly the same age. The suspects' builds cannot be assessed because the photos are from the shoulders up. While Trujillo's face is arguably the thinnest, the faces of the other suspects in his row are similar in shape and size. No attention is drawn to Trujillo's photo over the others in his row.
We conclude that the montage was not suggestive, and that the trial court did not abuse its discretion in admitting the identification evidence. Trujillo's convictions are affirmed. The sentences are reversed and remanded for resentencing. On remand the trial court has inherent authority to impanel a jury to decide whether Trujillo was on community placement at the time of the offenses.
Harris, 124 Wn. App. 905.