State v. Batista

• Decision Date: 18 April 1991
• Docket Number: No. 56334-9,56334-9
• Citation: 116 Wn.2d 777,808 P.2d 1141
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Alfonso BATISTA, Petitioner. En Banc

Page 777

116 Wn.2d 777

808 P.2d 1141

STATE of Washington, Respondent, v. Alfonso BATISTA, Petitioner.

No. 56334-9.

Supreme Court of Washington,

En Banc.

April 18, 1991.

Alfonso Batista, Walla Walla, Washington Appellate Defender Ass'n, Eric J. Nielsen, Seattle, Walter E. Curnutt, Yakima, for petitioner.

Jeffrey C. Sullivan, Yakima County Prosecutor, John C. Monter, Deputy, Yakima, for respondent.

Mark W. Muenster, Vancouver, amicus curiae for petitioner on behalf of Washington Ass'n of Crim. Defense Lawyers.

Norm Maleng, King County Prosecutor, Donna L. Wise, Sr. Appellate Atty., Seattle, amicus curiae for respondent.

BRACHTENBACH, Justice.

Alfonso Batista was convicted of first degree murder and first degree assault. Batista maintains that the trial court erred in imposing an exceptional sentence, consisting of consecutive sentences for the crimes. The trial court justified the consecutive sentences by relying upon RCW 9.94A.390(2)(f), ¹ which allows for an exceptional sentence where a presumptive sentence would be clearly too lenient in light of the purposes of the Sentencing Reform Act of 1981 (SRA). In doing so, however, the trial court misconstrued the nature and effect of RCW 9.94A.390(2)(f).

The trial court seemed to believe that consecutive sentencing was justified by relying on this factor despite the fact that the trial court stated that an exceptional sentence in the form of concurrent sentences was not justified. The trial court seemed to regard the "clearly too lenient" factor as a device for imposing consecutive sentences, rather than treating it as an aggravating factor like others set out in RCW 9.94A.390(2).

Because of this manner of applying RCW 9.94A.390(2)(f), the trial court's imposition of an exceptional sentence is affected by legal error aside from other issues raised by defendant at this stage of review. We note that the same error made by the trial court in this case is reflected in the trial court's findings and conclusions set out in State v. Vandervlugt, 56 Wash.App. 517, 521, 784 P.2d 546 (1990). We take this opportunity to resolve this confusion, particularly because it is necessary for full disposition of the case before us. See RAP 1.2(a), RAP 12.2. We explain the applicable legal standards and remand for resentencing in light of our analysis herein.

On November 3, 1987, about 4 p.m., a brown or dark maroon El Camino pulled into an alley in downtown Yakima and stopped. Batista was the driver of the car. The passenger, Carlos Garcia Hernandez, got out of the car with a semiautomatic rifle, in the nature of an AK 47 assault rifle, and fired a number of times into a group of men playing dice in the backyard of an apartment building. One man was shot and killed. Another man was shot in the leg; the bullet shattered his ankle. Bullets sprayed the area, one striking a ceiling fan and light in a nearby house and another striking a truck.

Hernandez got back into the El Camino and the car sped north in the alley and then onto a nearby street. Batista and Hernandez were apprehended shortly thereafter.

Following trial and return of the jury verdict of guilty on the murder and assault charges, the trial court entered the following findings of fact:

Both the victims herein, on the afternoon of November 3, 1987, were in the back/side yard of an apartment building in the City of Yakima, playing a dice game with several other persons. None of these individuals, including the victims, had had any prior dealings of any kind with either defendant, and had no reason to suspect that what would shortly happen would happen. Both victims herein were totally exposed, and unsuspecting of anything as they innocently played dice.

Finding of fact 3.

As testified to by witnesses herein at trial, defendant Batista as the driver and defendant Hernandez as the passenger had driven by the subject apartment building on several occasions prior to the shooting including driving northbound in the alley immediately behind the apartment in the same direction as when the shooting occurred on the afternoon of November 3. This activity took place on more than one occasion, during the hours of darkness as well as shortly before the shooting and was participated in by both defendants. It is obvious that from this activity the defendants were trying to learn when, where people would be in and around the residence, its yard, the layout of the building, yard, etc., as well as the ingress and escape routes.

Finding of fact 4.

The type of weapon used by defendants, an AK 47 Assault Rifle, while it can be purchased by members of the public, it is not a commonly found or used firearm. It, as well as its ammunition, obviously had to be obtained especially for its intended use on November 3.

Finding of fact 5.

The actual shooting as well as materials noted in Sections IV and V, above, clearly show that this was a very deliberate execution.

Finding of fact 6.

The trial court entered the following conclusions of law:

The defendants engaged in a very deliberate and sophisticated murder and assault far exceeding the normal planning for same and thereby exhibited the degree of sophistication contemplated by RCW 9.94A.390(2f) [sic].

Conclusions of law 3.

Given the foregoing Findings of Fact the court also concludes that the victims herein were particularly vulnerable as that term is used in the sentencing reform act.

Conclusions of law 4.

Considering the purposes of the sentencing reform act as expressed in RCW 9.94A.010(1)(4) the multiple offense policy of RCW 9.94A.400 results in sentences for these defendants which are clearly too lenient.

Conclusions of law 5.

In oral remarks the trial court discussed the degree of sophistication involved in carrying out the crimes and vulnerability of the victims, and then said that these factors did not justify going beyond the standard range, "in other words, the upper part of the standard range...." Verbatim Report of Proceedings, at 760. The court did feel, though, that the aggravating circumstances were sufficient to allow consecutive sentencing, as opposed to concurrent sentencing. In response to a question from the prosecutor, the court said that the aggravating factors it found resulted in a presumptive sentence which would be clearly too lenient in light of the purposes of the Sentencing Reform Act of 1981, and this was why the court imposed consecutive terms.

The trial court sentenced Batista to consecutive terms of 388 months for the murder, and 133 months for the assault. Given Batista's offender score, the standard range sentences for the offenses are 291 to 388 months for the murder, and 100 to 133 months for the assault; thus, the consecutive terms were each set at the high end of Batista's standard range.

Batista appealed, arguing that the trial court erred in imposing an exceptional sentence. The Court of Appeals upheld the trial court's findings that the degree of sophistication and the vulnerability of the victims justified an exceptional sentence, and then, applying an abuse standard of review, held that the trial court did not err in finding that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA) resulted in a sentence that was clearly too lenient. State v. Hernandez, 54 Wash.App. 323, 328, 773 P.2d 857 (1989), review granted, 113 Wash.2d 1035, 785 P.2d 828 (1990). The Court of Appeals upheld Batista's sentence.

We granted review. In addition to other issues raised by Batista, the parties were directed to address the trial court's reliance on the "clearly too lenient" factor and the Court of Appeals' analysis of that issue in light of State v. Fisher, 108 Wash.2d 419, 739 P.2d 683 (1987), State v. Pittman, 54 Wash.App. 58, 772 P.2d 516 (1989), and State v. Tunell, 51 Wash.App. 274, 753 P.2d 543, review denied, 110 Wash.2d 1036 (1988).

We begin with the statutory framework for exceptional sentencing. Where multiple offenses are involved, RCW 9.94A.400(1) and (2) provide for presumptive sentences which are either concurrent or consecutive, depending upon the particular circumstances. For example, RCW 9.94A.400(1)(b) provides that where a person is convicted of three or more serious violent offenses arising from separate and distinct criminal activity, the sentences shall be served consecutively. ² Most multiple current offenses must be served concurrently, however. RCW 9.94A.400(1)(a). The multiplicity of the offenses is accounted for because, when a trial court sentences a person for two or more current offenses, each counts as criminal history with respect to the other thus increasing the offender score for purposes of calculating the standard range sentences for the offenses. RCW 9.94A.400(1)(a).

Exceptional sentences outside the standard range may be imposed under proper circumstances. Under RCW 9.94A.120(13), ³ a "departure from the standards in RCW 9.94A.400(1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence...." In order to impose an exceptional sentence, one outside the standard range, the trial court must find, considering the purposes of RCW ch. 9.94A, "that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2).

RCW 9.94A.390 sets out "illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence." The list in RCW 9.94A.390 is illustrative only, and is not an exclusive or exhaustive collection of all possible "substantial and compelling reasons" which may support an exceptional sentence. RCW 9.94A.390; State v. McAlpin, 108 Wash.2d 458, 463, 740 P.2d 824 (1987). The listed factors include both mitigating factors, which might support a lesser sentence than a standard range sentence, RCW 9.94A.390(1)(a)-(g), and aggravating factors, which might support a greater sentence than a standard range sentence, RCW 9.94A.390(2)(a)-(f). ⁴ Where a single...