State v. Davis

• Decision Date: 29 May 2018
• Docket Number: No. 75610-9-I,75610-9-I
• Citation: 418 P.3d 199
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Tommie Lee DAVIS, Appellant.

418 P.3d 199

STATE of Washington, Respondent,

v.Tommie Lee DAVIS, Appellant.

No. 75610-9-I

Court of Appeals of Washington, Division 1.

FILED: May 29, 2018

Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Suite 701, Seattle, WA, 98101-3647 for Appellant.

Ann Marie Summers, King County Prosecutor's Office, Prosecuting Attorney King County, King County Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2362 for Respondent.

PUBLISHED

Cox, J.

¶ 1 Tommie Davis appeals his judgment and sentence following his conviction for unlawful possession of a firearm. He argues that five prior California burglary convictions were neither legally nor factually comparable to burglary in Washington and should not have been included in his offender score at sentencing. We agree.

¶ 2 He also argues that the failure to personally provide him with discovery and his inability to obtain access to the jail library while awaiting trial deprived him of due process and the right to consult with counsel in a meaningful manner. He further claims that he was deprived of effective assistance of counsel in certain respects. He also argues that the trial court abused its discretion by denying motions for a continuance, substitution of counsel, and a new trial. We reject all of these arguments, except one.

¶ 3 In his statement of additional grounds, Davis claims that the taking of his DNA unconstitutionally compelled him to incriminate himself. He also claims unconstitutional discovery violations. These arguments are unpersuasive and we reject them all.

¶ 4 We affirm in part, reverse in part, and remand for resentencing.

¶ 5 Davis got into a fight one night with Linda Wilson. As tensions rose, Davis drew a handgun. By Wilson’s account, he fired the gun at her abdomen. He claimed that the gun fired accidentally when Wilson grabbed at it.

¶ 6 Davis was arrested as he fled the scene. As he fled, he stashed the gun under a parked car, where police retrieved it. Forensic analysis found Davis’s DNA on the gun and a ballistic match to the bullet removed from Wilson. But the analysis showed no evidence of Davis’s fingerprints on the gun.

¶ 7 The State charged Davis with one count of first-degree assault with a firearm allegation, and one count of first-degree unlawful possession of a firearm. Pretrial, police disclosed to Davis’s counsel the lack of Davis’s fingerprints on the gun. At trial, Davis testified that he owned the gun in question. Accordingly, he conceded that he was guilty of unlawfully possessing a firearm. The jury found him guilty of this crime but not guilty of first-degree assault.

¶ 8 Davis then moved pro se for a new trial based on the State’s alleged failure to provide adequate discovery. The trial court denied that motion, concluding that Davis lacked an independent right to discovery because he was represented by counsel through trial.

¶ 9 The trial court duly sentenced Davis. In doing so, the court included in his offender score of eight five prior burglary convictions in California.

¶ 10 This appeal followed.

COMPARABILITY

¶ 11 Davis argues that the five prior California burglary convictions are neither legally nor factually comparable to Washington burglary and should not have been included in his offender score. We agree.

¶ 12 "The offender score is the sum of points accrued as a result of prior convictions."¹ Out-of-state convictions count towards that score if the trial court determines them to be comparable.² The State bears the burden to show that out-of-state convictions exist and are comparable.³

¶ 13 The comparability analysis has two steps, one legal, and the other factual. At the legal step, the trial court "compare[s] the elements of the out-of-state conviction to the relevant Washington crime."⁴ The conviction counts if its statutory definition "is identical to or narrower than the Washington statute and thus contains all the most serious elements of the Washington statute."⁵ The foreign statute establishing the offense carries with it the construction placed upon it by the other jurisdiction’s controlling court.⁶

¶ 14 If the statutory definition of the relevant conviction is broader than its Washington equivalent, then the trial court proceeds to the factual step.⁷ It determines whether the conduct underlying the out-of-state conviction would have violated the comparable Washington statute.⁸ In making this determination, the trial court considers "only facts that were admitted, stipulated to, or proved beyond a reasonable doubt."⁹

¶ 15 Thus, the court cannot consider " ‘[f]acts or allegations contained in the record, if not directly related to the elements of the charged crime, [which] may not have been sufficiently proven in the trial.’ "¹⁰ Accordingly, for example, the court cannot consider factual allegations in an indictment that were not tested and proven in trial.¹¹

¶ 16 This court reviews de novo the trial court’s comparability analyses in calculating a defendant’s offender score.¹²

Legal Prong

¶ 17 The first step in our analysis is to determine whether burglary in California is legally comparable to burglary in Washington. They are not legally comparable.

¶ 18 RCW 9A.52.030(1) defines burglary in the second degree in Washington as follows:

A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling.

¶ 19 Burglary in California is defined by Cal. Penal Code § 459, in relevant part, as follows:

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or

other building, tent, vessel ... or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.

¶ 20 A straightforward reading of the plain words of the two statutes shows that they are not legally comparable. First, the Washington burglary statute requires proof that the "entry" itself must be independently "unlawful."¹³ In contrast, the plain words of the California statute only require an "ent[ry]." The words of the statute do not require that the entry itself be independently unlawful.

¶ 21 Second, the Washington second degree burglary statute is confined to entry of "buildings," as that term is used in Washington. In contrast, § 459 has a broader scope. For example, it includes "mine[s] or any underground portion thereof." This is beyond the scope of "buildings," as used in Washington.

¶ 22 The State concedes in its briefing that the scope of the California statute is broader than that of Washington. But it does so solely on the basis that the California statute does not confine its scope to "buildings," as does Washington’s burglary statute.¹⁴

¶ 23 The State further argues that the California statute "[i]mposes [a] [c]ommon [l]aw [r]equirement [o]f [u]nlawful [e]ntry."¹⁵ Because this is not supported by a close reading of relevant authorities, we disagree.

¶ 24 We are guided in our analysis of whether "unlawful entry" is an element of § 459 by the decision of the United States Supreme Court in Descamps v. United States.¹⁶ There, the Court considered whether Michael Descamps’s prior California convictions for burglary and other crimes could be used to enhance his sentence under the Armed Career Criminal Act (ACCA). He argued that the burglary convictions could not count under federal law. As in this case, he had pleaded guilty to violating § 459.

¶ 25 He also argued that the text of § 459 broadly states the elements of burglary in California by providing that " ‘a person who enters’ certain locations ‘with intent to commit grand or petit larceny or any felony is guilty of burglary.’ "¹⁷

¶ 26 Citing its earlier decision in Taylor v. United States, the Court started its analysis of whether a prior conviction for burglary could be used to enhance an ACCA sentence:

But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. The key, we emphasized, is elements, not facts. So, for example, we held that a defendant can receive an ACCA enhancement for burglary only if he was convicted of a crime having ‘the basic elements’ of generic burglary—i.e., ‘unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.’ And indeed, we indicated that the very statute at issue here, § 459, does not fit that bill because "California defines ‘burglary’ so broadly as to include shoplifting."^{[18 ]}

¶ 27 Had the Supreme Court viewed § 459 to include "unlawful entry," it would have said so. But it concluded that the scope of the statute exceeded the scope of what it called "generic burglary—i.e., unlawful or unprivileged entry " into a building with the requisite intent to commit a crime.

¶ 28 Applying this principle to the statutes before us, the Washington burglary statute encompasses what the Supreme Court calls "generic burglary" because it requires unlawful entry as an independent element. The California burglary statute, on the other hand, does not require unlawful entry as an element. It is broader. For example, as the Descamps court observed, it includes shoplifting. The two statutes do not have comparable legal elements.

¶ 29 The State principally relies on People v. Davis,¹⁹ a California Supreme Court case, to support its argument that the crime of burglary in California includes the element of unlawful entry. That reliance is misplaced.

¶ 30 There, Michael Wayne Davis was convicted of burglary and other crimes.²⁰ He had presented a forged check to the teller at a check-cashing business by placing a check at a chute in a walk-up window.²¹ On appeal, he challenged the sufficiency of the evidence to convict him of burglary because his use of the chute at a check cashing...