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WACDL Advance Sheet Summaries for February 2013

Prepared by MARK W. MUENSTER

Cases from Feb. 1 through Feb.12, 2013


State v. Chambers, No. 86474-8 decided Feb. 7

Issue: was the plea bargain in this case, which covered several different cause numbers “Indivisible”, such that defendant could not withdraw his plea as to some parts without withdrawing as to all.

Facts:  Defendant committed additional crimes in November of 1999 after pleading guilty to crimes committed in Feb. and May of 1999, but before sentencing on them. The parties agreed that the November crimes would run consecutive to the May and February crimes and agreed on a 240 month sentence for the November crimes. Chambers filed PRPs as to both.

Ultimately, the trial court ruled (on remand) that he could withdraw his plea to the February charges, and they were then dismissed because the evidence had been destroyed.  Chambers also sought relief from the November plea, on the basis that the court had erroneously thought the range for the drug offense had doubled, rather than the statutory maximum.


  1. The plea agreements were “global” in nature, and thus indivisible.
  2. The PRP was not time barred. The sentence was invalid on its face, because it was beyond the guideline range, without any findings supporting the exceptional sentence.
  3. Because this is a non constitutional issue, Chambers had to meet the “complete miscarriage of justice” standard to merit relief. The court reasons that the 240 months was what he had expressly bargained for, and was not an illegal sentence in the sense that it did not exceed the statutory maximum. Moreover, had the trial court made any findings it “could have” supported the exceptional sentence. So the majority figures remand is unnecessary because the record indicates the trial court would have done the same thing.

DISSENT: The dissent suggests that the court should remand to let the trial court make its own record, rather than hypothesize about what the trial court could have done.


State v. Lowe, Decided Feb. 4, NO. 67728-4-I

ISSUE: Did the court miscalculate the offender score by including a juvenile deferred disposition that was dismissed but not vacated?

HOLDING: The deferred disposition was “dismissed” but not “vacated” since Lowe had not completed the obligations of the deferral. The deferred disposition could only be dismissed rather than revoked, because the prosecutor did not move to revoke before the expiration of the deferral period.

Since the juvenile disposition was not vacated, it counted as a point.

State v. Holmes and Lindsay,  previously Decided in December, , 39103-1 (12/72012) here after motion for reconsideration granted in part. The motion does not appear to alter the analysis. They just added some footnotes.

Here is Cassandra Stamm’s summary:

State v. Holmes, 39103-1 (12/72012)

Prosecutor engaged in multiple acts of misconduct but reversal was not required; assault and kidnapping merged with robbery.

The Court strongly disapproves of both the prosecutor’s (Pierce County deputy) and defense counsel’s repeated unprofessional conduct in the course of this trial but does not conclude that the prosecutor’s misconduct prejudiced the jury given the strength of the State’s evidence in the case.  Emphasizing the unique role of the prosecuting attorney, the court holds the following all constituted misconduct:  (a) ongoing quarreling with and insults of counsel improperly impugned defense counsel; (b) asking the jury to find the truth and using puzzle and crosswalk analogies improperly trivialized the burden of proof; (c) characterizing defendant’s testimony as funny, disgusting, comical, and ‘the most ridiculous thing I’ve ever heard’ improperly asserted an opinion about credibility; and (d) whispering to the jury off the record improperly deprived the defendant of a proper record.

If evidence proving one crime is also necessary to prove a second crime of a higher degree of the same crime, under double jeopardy principles the court will consider whether the facts show that the additional crime was committed incidental to the original crime. If so, the merger doctrine precludes separate punishment. Here, the assault and kidnapping merged with the robbery.

State v. TROCHEZ-JIMENEZ, decided Feb. 11, No. 67158-8-I

Prosecution for second degree murder. Foreign national arrested in Canada on possible border violation. Given Canadian right to counsel, and asked for one.  He did not get to speak to counsel. King County detectives come up to interrogate him on the murder charge, give Miranda warnings, and defendant gives an incriminatory statement.

Issue: Do Edwards and Arizona v. Roberson apply when a foreign national is interviewed in a foreign country (Oh, Canada) and he asserts his rights based on the Canadian advisement?

HOLDING: Distinguishing Edwards and Roberson, Division One holds that invoking one’s rights to counsel under the Canadian Charter is not equal to an invocation of rights under our  Federal Constitution, relying on a Florida case and some military court cases involving interrogations in Germany of servicemen. The court notes in a footnote that our state constitution has always been interpreted in line with the Federal one on this issue.

Petition for review material??

PRP of Johnson, NO. 66488-3-I, Decided Feb. 12

Johnson filed a PRP seeking a recalculation of good time from pretrial detention. The court dismissed it as frivolous. Current decision is about DOC’s request for $200 attorney’s fees on appeal. Court holds that since this was an attack on the judgment, rather than an attack  on DOC, RCW 10.73.160(2) applies and authorizes fees. State v. Ashby, 141 Wn. App. 549, 170 P.3d 596 (2007) where the attack was on DOC, and the statute did not apply,  is distinguished.

State v. Moreno, NO. 29692-0-III, decided Feb. 12

Prosecution for first degree assault and unlawful possession of firearm, first degree. The jury also found a gang enhancement, so there was an exceptional sentence.


  1. Was the search pursuant to a warrant of the trunk of the car in which Moreno was a passenger supported by probable cause?
  2. Did the first degree assault and UPOF 1 merge?
  3. Was there sufficient evidence of the gang activity aggravator?

Moreno was in the territory of a rival gang, wearing gang colors, shortly after a reported shooting. The car is “Terry” stopped by police, who obtain a warrant for the trunk after a consent search of the interior finds no guns. The court upholds the warrant under the totality of the circumstances.

The assault and UPOF do not merge because you can commit assault in the first degree without the gun possession itself being illegal. So it is not necessary to commit UPOF 1 to commit assault in the first degree.

The court notes there have not been any cases involving the sufficiency of the evidence to support the gang sentence enhancement, although there have been several involving the introduction of gang evidence. Although the court says it cannot rely solely on police testimony to support the aggravator, virtually all the “motivational” evidence was furnished by the police. There was a sufficient nexus, the court says, to support gang motivation as opposed to this being a random act of violence.

As a sop to the defense, the court strikes down a $5,780.50 jury fee, and $100 “domestic violence” fine.

Cases from Feb. 13 through Feb 22, 2013


State v. Cooper, decided Feb. 14, No. 86733-0

Cooper jumped bail in 2009 on pending felony charges in Washington to return to Texas. While there, he entered guilty pleas to two Texas thefts he had committed in 2008. The Texas court deferred sentencing, under its statute, which withholds punishment for a period of time. If successfully completed, the case is dismissed.

Cooper returned to Washington and was sentenced on the bail jump and underlying charge. The Texas deferred sentences were counted in the offender score.


Should the Texas deferred sentences be treated as convictions for purposes of the offender score?

The decision notes some similarities and some difference between Texas’ statute for deferred sentence, and Washington’s vacation procedure. The Texas scheme requires a plea of guilt, which constitutes a conviction under Washington law. So the defendant’s argument that there was no “adjudication of guilt” fails.

In an intriguing footnote at the end of the opinion, the court notes it was not deciding whether a successfully completed Texas deferred sentence would count, suggesting it might be considered to be like a vacation.


State v. Brewczynski, No. 29120-1-III, decided Feb. 14

Prosecution for aggravated first-degree murder. Burglary in the first degree was the predicate felony. Both alternative means (DW and assault) were not alleged in the stand-alone burglary charge. Both were instructed on, however.


  1. Where the court instructed on both means of burglary, but the information did not allege both means, was reversal of the burglary charge required?
    Court hold that the instructions allowed conviction on an uncharged prong of the burglary statute, thus requiring reversal of the “stand alone” burglary count.
    However, the court did not reverse the murder conviction despite the fact that the jury was instructed on both prongs for the burglary aggravating factor. The court said that the aggravator was not an element of the crime, and thus did not have to be charged specifically in the information.
  2. Was shoe print evidence admitted erroneously?
    No problem with general scientific acceptance here, so no error in the admission of the print, despite a slightly novel method of comparison used by the lab guy.
  3. Was counsel ineffective in not specifically impeaching a witness with his prior burglary conviction.
    Since the witness admitted that he had been convicted of a felony, and therefore did not want to touch a gun he found that was later traced to the defendant, the court held it was not error for defense counsel not to specifically call out the type of felony. So neither Strickland prong was met.
  4. There was a special verdict instruction which was bad under Bashaw, but now OK under State v. Guzman Nuñez, 174 Wn.2d 707, 285 P.3d 21 (2012).

State v. Hurtado, Decided Feb. 19,  NO. 67478-1-I

This decision is only partly published.

Prosecution for second-degree assault.

Issues: Admissibility of complaining witness’ statement to police and hospital personnel that defendant assaulted her

The court holds that these statements were testimonial, primarily because they were made in the presence of the police as well as the medical team. But this does not require reversal here because the error was harmless beyond a reasonable doubt. This was because the state also presented a jail phone call in which Hurtado told the listener he had beaten the hell out of someone, blood on his clothes, and calls he made to the C/W not to come to court (the subject of his witness tampering charges).

State v Manion, Decided Feb. 19, NO. 67706-3-I

Prosecution of juvenile for unlawful possession of a firearm. DNA testimony linked the defendant to the gun, which was found in the bushes near him after a chase. The tech who did the original analysis was not called at trial, but his “technical peer reviewer” was, who had reviewed his work and done an independent analysis.

Issue:   does the evidence come in over a Crawford/Melendez/Bullcoming objection?

Holding: Where, as here, the testifying expert has done some work on the case, and is not merely the surrogate for the absent tech, the evidence comes in over a Confrontation Clause objection.

State v. Slattum decided Feb. 19, No.

Motion for post conviction DNA testing. Slattum had served his minimum term sentence, but was still under direct DOC control while serving his life long community custody sentence. The trial court held that this constituted “Imprisonment” under RCW 10.73.170. The panel affirms this holding, reasoning that community custody is akin to imprisonment, the legislature did not specify a place of imprisonment, and the rule of lenity supports the defendant’s position.

State v. Denny, decided Feb. 21, 42447-9-II

Prosecution for theft in the third degree and unlawful possession of a controlled substance.

Defendant stole two pills from his employer. He argued on appeal that double jeopardy required the vacation of the felony drug charge, on the theory that you cannot be charged with unlawful possession of the item you have stolen.

HOLDING: Legislative intent supports the idea that separate punishments were intended by the legislature, based on placement of the two crimes in different areas of the code, different criminal intent requirements, and different victims.

State v. Gasteazoro-Paniagua, NO. 41103-2-II, decided Feb. 20

Prosecution for attempted first-degree murder. Defendant shot a former friend. They had a falling out over the fact the defendant had an affair with the former friend’s brother’s wife.

Only part of the decision is published, and shows that murder charges make for bad decisions.


Was the defendant’s statement., ““I mean I guess I’ll just have to talk to a lawyer about it

and, you know, I’ll mention that you guys are down here with a story ” an equivocal or unequivocal request for counsel.

Holding: Focusing on the vernacular “I guess”, the court says this is equivocal, because to guess connotes uncertainty. Note that one of the cases cited in support of this conclusion says “I believe so” also connoted uncertainty.  Also, unlike one reported case, where the defendant mentioned a specific lawyer by name, the defendant here did not follow this up with someone specific.

The detectives’ thinly veiled threat that this was the last chance to talk about the case is not held coercive:

“when we leave here, understand this really clearly, when we leave and go back, we’re done with the conversations with you. Okay, there’s not going to be a second chance to say, Okay. Let me explain something, let me get something out, let me tell you my side, so on and so on.”

From the court’s footnote 4:

Under some circumstances, the threat that the suspect would not get another chance to tell his side of the story may be coercive and result in the suspect making an irrational judgment about whether to make statements to the police or whether to assert his right to an attorney. But the facts of this case do not support a conclusion that the detectives’ statements had a coercive effect on Gasteazoro-Paniagua.

An interesting issue in the unpublished part of the decision concerns the trial court’s refusal to give a cautionary instruction on the testimony of a jailhouse informant, modeled on the WPIC for accomplice testimony.

A second issue that the unpublished part of the decision glosses over is the comment on the defendant being able to listen to all the trial testimony. As the opinion points out, this was permitted at the time under State v. Miller. However, the rule has changed somewhat, at least in the context of argument rather than cross-examination, in  STATE v. MARTIN, 171 Wn.2d 521 (2011). The opinion does not analyze whether Martin should have been applied to this case.


PRP OF Toledo–Sotelo, decided Feb. 22

Untimely filed PRP challenged the sentence, which petitioner claimed was arrived at by using the wrong standard range. That made the judgment void on its face, by his claim, and therefore an exception to the time bar.

Supreme court reviews the sentence and notes that although the range was incorrectly labeled, the trial court sentenced within the correct range, and thus did not exceed its authority. So his claim that the judgment was void on its face fails, and his PRP was deemed untimely and dismissed.


State v. Douglas, decided Feb. 26, 2013, No. 41133 4- I-I

A cautionary tale of buyer’s remorse. Only part of the decision is published.

Douglas  won a reversal of his first arson conviction based on ineffective assistance of counsel. At his retrial, after some wobbles, he represented himself, at least up to the point of the aggravated circumstances part of the trial, where he absented himself. He had received a sentence of 61 months at his first trial, with no exceptional sentence. After conviction at the second trial, the court imposed an exceptional sentence of 480 months.

Issue: Does RCW 9.94A. 537 (2)  prevent the state from seeking an exceptional sentence after a retrial, when it apparently did not seek , or did not get , an exceptional sentence before the first appeal?

Holding: The panel holds that  the statute was intended only to cover remands for Blakely error where the exceptional sentence had been imposed by a court, not  a jury, and did not prevent the state from seeking an exceptional sentence after a new trial.

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