In the Matter of The Pers. Restraint Petition of Mansour Heidari

• Citation: 248 P.3d 550,159 Wash.App. 601
• Decision Date: 24 January 2011
• Docket Number: No. 63040–7–I.,63040–7–I.
• Parties: In the Matter of the Personal Restraint Petition of Mansour HEIDARI, Petitioner.
• Court: Court of Appeals of Washington

159 Wash.App. 601

248 P.3d 550

In the Matter of the Personal Restraint Petition of Mansour HEIDARI, Petitioner.

No. 63040–7–I.

Court of Appeals of Washington, Division 1.

Jan. 24, 2011.

David Bruce Koch, Nielsen Broman & Koch, Seattle, WA, for Appellant.Ann Marie Summers, King County Prosecutor's Office, Seattle, WA, for Respondent.APPELWICK, J.

[159 Wash.App. 602] ¶ 1 Heidari was convicted of one count of rape of a child in the first degree, one count of child molestation in the second degree, and one count of child molestation in the third degree. In response to Heidari's personal restraint petition, the State concedes that the evidence was insufficient as a matter of law to support his conviction on child molestation in the second degree. But, the State requests that this court remand for entry of judgment on the lesser included offense of attempted child molestation. The State also concedes a sentencing error on count I and requests resentencing. We hold that a remand for resentencing on the lesser included crime of attempt is precluded where the jury was not instructed on that crime. We grant the petition, reverse the conviction for second degree child molestation, accept the State's concession of error on count I, and remand for resentencing.

FACTS

¶ 2 The facts of this case were set forth in this court's previous opinion resulting from Mansour Heidari's direct appeal. State v. Heidari, noted at 125 Wash.App. 1009, 2005 WL 91696, at *1–2. For the purposes of this personal restraint petition (PRP), only the facts relating to count IV are relevant.

¶ 3 B.Z. testified that when she was in sixth grade, she was in her uncle Heidari's bedroom playing with her aunt's makeup when Heidari emerged from the bathroom wearing a robe. Heidari sat down at the edge of the bed and told B.Z. to come over, pulling her leg toward him. Heidari then pulled his robe away and exposed his penis to her. Heidari put his hand on B.Z.'s head and tried to push her down toward his penis. B.Z. moved her head to the side and eventually ran out of the room. B.Z. testified that her mouth did not touch his penis. No other evidence of sexual contact was put forth by the State.

¶ 4 Among other charges, the State charged Heidari with child molestation in the first degree as count IV. Only the lesser included offense of child molestation in the second degree was submitted to the jury as count IV. ¹ The jury found Heidari guilty. Heidari was also convicted of one count of rape of a child in the first degree and one count of child molestation in the third degree. This court affirmed the convictions. Heidari, 2005 WL 91696, at *1. The Supreme Court denied review. State v. Heidari, 155 Wash.2d 1008, 122 P.3d 912 (2005). The case was mandated on December 9, 2005. Certiorari and habeas corpus were also denied. Heidari v. Washington, 547 U.S. 1075, 126 S.Ct. 1779, 164 L.Ed.2d 525 (2006); Heidari v. Pacholke, 2008 WL 2435891 (W.D.Wash. June 13, 2008) (unpublished opinion). Finally, Heidari's previous PRP was denied.

¶ 5 Heidari then filed a motion for relief from judgment under CrR 7.8. After receiving Heidari's motion, the superior court transferred it to this court pursuant to CrR 7.8(c)(2) for treatment as a PRP.

DISCUSSION

I. Standard of Review

¶ 6 An appellate court will grant substantive review of a PRP only when the petitioner makes a threshold showing of constitutional error from which he has suffered actual prejudice or nonconstitutional error which constitutes a fundamental defect that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990).

II. Grant of Petition

¶ 7 The State concedes that Heidari properly brought this PRP even though it was filed more than one year after entry of the judgment and sentence in violation of RCW 10.73.090, as the PRP is based on grounds that the evidence introduced at trial was insufficient to support the conviction. RCW 10.73.100(4). Heidari's petition is not time barred.

¶ 8 The State concedes that the second degree child molestation charge in count IV is not supported by sufficient evidence because no evidence proves that sexual contact occurred. The State also concedes that the judgment and sentence reflected an incorrect seriousness level for count I. The parties agree that the correct seriousness level was XI.

¶ 9 We agree and grant the petition.

III. Remedy

¶ 10 The agreed remedy for the mistaken seriousness level for count I is resentencing. We remand for resentencing as to count I with the corrected seriousness level of XI.

[159 Wash.App. 605] ¶ 11 The parties dispute the remedy with respect to count IV. The State argues that because the evidence established the crime of attempted child molestation in the second degree, this court should remand for entry of judgment as to that crime. Generally, an appellate court “may reverse, affirm, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may require.” RAP 12.2; State v. Gilbert, 68 Wash.App. 379, 384, 842 P.2d 1029 (1993). Heidari contends that, based on due process and double jeopardy protections, this court must reverse his conviction and dismiss rather than impose a conviction for attempted child molestation. We review alleged due process and double jeopardy violations de novo. State v. Cantu, 156 Wash.2d 819, 831, 132 P.3d 725 (2006); State v. Jackman, 156 Wash.2d 736, 746, 132 P.3d 136 (2006). However, we need not reach Heidari's argument that the remand for resentencing on the lesser included remedy would also violate protections against double jeopardy. Heidari prevails on this issue, because the outcome is controlled by State v. Green, 94 Wash.2d 216, 234, 616 P.2d 628 (1980).

¶ 12 RCW 9A.44.086 defines child molestation in the second degree as, “[W]hen the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.” A person is guilty of attempt if “with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.” RCW 9A.28.020. Attempted child molestation in the second degree is a lesser offense included in the crime of child molestation in the second degree, because all elements of the lesser offense are necessary elements of the greater crime. See State v. Berlin, 133 Wash.2d 541, 548, 947 P.2d 700 (1997) (“To establish that an offense is a lesser included offense, the rule is: first, each of the elements of the lesser offense must be a necessary element of the offense charged; second, the evidence in the case must support an inference that the lesser crime was committed.” (Emphasis omitted.)); State v. Mannering, 150 Wash.2d 277, 284, 75 P.3d 961 (2003) ( “[A]n attempt to commit a crime is included in the crime itself.”). Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense. RCW 10.61.003.

¶ 13 Our Supreme Court has indicated that the remedy of remand for resentencing on a lesser included offense generally is permissible only when the jury has been explicitly instructed on it. Green, 94 Wash.2d at 234, 616 P.2d 628. In that case, Green was convicted of aggravated murder for killing his eight year old victim in the course of either kidnapping or raping her. State v. Green, 91 Wash.2d 431, 433–35, 588 P.2d 1370 (1979), superseded in part on recons. by Green, 94 Wash.2d at 216, 616 P.2d 628. On reconsideration, our Supreme Court reversed the aggravated murder conviction due to insufficiency of the evidence of kidnapping and verdict form errors and remanded for a new trial on the charge of aggravated murder in the first degree based on first degree rape or attempted rape. Green, 94 Wash.2d at 233, 616 P.2d 628. The State sought the imposition of the lesser included offense of first degree murder. Id. at 234, 616 P.2d 628. The court refused, stating:

In the case at hand the jury was not instructed on the subject of a “lesser included offense”. In general, a remand for simple resentencing on a “lesser included offense” is only permissible when the jury has been explicitly instructed thereon. Based upon the giving of such an instruction it has been held that the jury necessarily had to have disposed of the elements of the lesser included offense to have reached the verdict on the greater offense.

Id. (alteration in original). The court additionally clarified that, “[i]n addition, it is clear a case may be remanded for resentencing on a ‘lesser included offense’ only if the record discloses that the trier of fact expressly found each of the elements of the lesser offense.” Id. at 234–35, 616 P.2d 628.

¶ 14 Subsequent Court of Appeals cases have characterized this statement in Green as dictum. For example, in Gilbert, the trial court convicted Gilbert of first degree burglary after a bench trial. 68 Wash.App. at 381, 842 P.2d 1029. This court reversed Gilbert's first degree burglary conviction for insufficient evidence and remanded for entry of judgment and sentence for residential burglary. Id. at 388, 842 P.2d 1029. In doing so, we discussed the language in Green, calling it “dictum” and “unsupported by any citation to authority.” Id. at 384–85, 842 P.2d 1029. We stated that our research had not “revealed any authority which supports that proposition.” Id. at 385, 842 P.2d 1029. Instead, we concluded, “[T]he dispositive issue should not be whether the jury was instructed on the lesser included offense, but rather whether the jury necessarily found each element of the lesser included offense in...