State v. Delbosque

• Decision Date: 04 December 2018
• Docket Number: No. 49792-1-II,49792-1-II
• Citation: 430 P.3d 1153
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent v. Cristian J. DELBOSQUE, Appellant

430 P.3d 1153

STATE of Washington, Respondent

v.Cristian J. DELBOSQUE, Appellant

No. 49792-1-II

Court of Appeals of Washington, Division 2.

Filed December 4, 2018

As Corrected December 11, 2018

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Timothy J. Higgs, Mason County Prosecuting Attorney Office, PO Box 639, Shelton, WA, 98584-0639, for Respondent.

PUBLISHED OPINION

Sutton, J.

¶ 1 In 1994, a jury found Cristian Delbosque guilty of aggravated first degree murder committed when he was 17 years old. The superior court imposed a life sentence without the possibility of parole. In 2016, under RCW 10.95.030 (the Miller -fix statute) ¹ and RCW 10.95.035, the superior court held an evidentiary hearing and entered an order imposing a minimum term of 48 years with a maximum term of life imprisonment.

¶ 2 Delbosque challenges his judgment and sentence, arguing that the superior court’s findings of fact are unsupported by substantial evidence and that the superior court failed to adequately consider the diminished culpability of youth as required by the Miller -fix statute when setting the minimum term. We hold that the superior court’s findings regarding Delbosque having an attitude towards others reflective of the underlying crime, and of Delbosque’s permanent incorrigibility and irretrievable depravity are not supported by substantial evidence. We further hold that the superior court failed to comply with the Miller -fix statute when setting Delbosque’s minimum term. Thus, Delbosque’s restraint is unlawful. Accordingly, we grant his Personal Restraint Petition (PRP), reverse the judgment and sentence, and remand for resentencing.

FACTS

¶ 3 In 1994, Delbosque was convicted of aggravated first degree murder for the murder of a young woman. Delbosque was sentenced to a mandatory sentence of life without parole. Delbosque was 17 years old when he committed the murder.

¶ 4 In June 2016, the superior court conducted an evidentiary hearing to set a minimum term of confinement under the Miller -fix statute and RCW 10.95.035(1). During this hearing, the superior court heard extensive testimony from Delbosque’s friends and relatives regarding his difficult and troubled childhood. The State presented testimony from the officer who investigated the murder and victim impact testimony.

¶ 5 The State also presented evidence from Robert Schreiber, the unit supervisor of the prison where Delbosque was incarcerated. Schreiber testified that Delbosque was currently classified as medium security and would qualify for minimum security except for the term of his sentence and an immigration detainer. Schreiber testified that between 1995 and 2008, Delbosque had 10 prison infractions, and that Delbosque’s last infraction was in 2010. The 2010 infraction asserted that Delbosque used his leadership position in a gang to attempt to arrange an assault on another inmate.

¶ 6 Delbosque presented the testimony of two experts. Dr. Manuel Saint Martin evaluated Delbosque for past and current mental health issues. Dr. Saint Martin diagnosed Delbosque with borderline intellectual functioning and alcohol dependence at the time he committed the crime. Dr. Saint Martin also testified that he believed the murder likely involved "some sort of psychotic episode due to alcohol." III Verbatim Report of Proceeding (VRP) at 423. In Dr. Saint Martin’s opinion, Delbosque’s dependence on alcohol played a significant role in the murder.

¶ 7 Dr. Sarah Heavin testified specifically regarding whether youth was a factor in Delbosque’s case. Dr. Heavin testified that the major area in which youthfulness affects behavior is executive functioning because of the youth’s underdeveloped frontal lobe. Generally, this results in juveniles being more likely to engage in risk-taking behavior and more susceptible to peer pressure or peer approval. Dr. Heavin opined that Delbosque was even more likely to exhibit these behaviors because of his lower intellectual functioning and traumatic upbringing. Specifically, Dr. Heavin testified that "youthfulness, combined with trauma, made him less likely to monitor his own behavior responsibly, inhibit aggressive behavior." III VRP at 513. In summary, Dr. Heavin testified,

Well, I’m not suggesting that Mr. Delbosque’s homicide be excused. I’m suggesting that the [c]ourt respectfully consider the effect that his early childhood had on his brain development. It’s my opinion that his relative risk taking was greater than a typically developing youth without those same risk factors, which placed him in the apartment drinking alcohol excessively with a gun. And once essentially this string of crimes that were committed that night started, he had more difficulty than the average teen behaving in a reasonable way.

III VRP at 537-38.

¶ 8 After the hearing, the superior court entered the following findings of fact:

2. Childhood and Life Experiences. Mr. Delbosque endured a very difficult childhood up until the time of the murder, including a life with little nurturing, limited nutrition, and much chaos. Many risk factors are associated with the upbringing and development of Mr. Delbosque, including utero exposure to alcohol, his mother’s death at an early age, a life of impoverishment, and both sexual and physical abuse as a child.

3. Degree of Responsibility. Mr. Delbosque is entirely responsible for the murder. No other person assisted him in the design or implementation of the murder. Alcohol dependence was not a predominate factor in the murder. Anger and a desire to conceal guilt were the predominate factors.

4. Mr. [Delbosque]’s chances of becoming rehabilitated and the reflection of transient immaturity. Mr. Delbosque committed an extraordinarily brutal and vicious murder of a minor victim. Mr. Delbosque does not suffer from any diagnosable mental illness, but has been diagnosed with alcohol dependence. Mr. Delbosque continues to exhibit an ongoing attitude to others that is reflective of Mr. Delbosque’s underlying murder where he is choosing to advance his needs, even resorting to violence, over the well-being of others. This reflects an attitude that a third party’s well-being is insignificant and expendable in comparison to his needs. There is no identified program or treatment presented to deal with this negative attribute.

Clerk’s Papers (CP) at 30-31. Based on its findings, the superior court concluded,

The brutal murder that Mr. Delbosque committed in October of 1993 was not symptomatic of transient immaturity, but has proven over time to be a reflection of irreparable corruption, permanent incorrigibility, and irretrievable depravity.

CP at 31.² The superior court set a minimum term of 48 years with a maximum term of life imprisonment.

ANALYSIS

I. PROPER REVIEW OF DELBOSQUE’S CLAIMS

¶ 9 Delbosque filed a direct appeal of the superior court’s order imposing the new minimum term. However, the proper method for Delbosque to seek review of the superior court’s order is a PRP. State v. Bassett , 198 Wash. App. 714, 721, 394 P.3d 430 (2017), aff’d , ––– Wash. ––––, 428 P.3d 343 (2018). As a result, we requested supplemental briefing to allow Delbosque to address whether the superior court’s order satisfied the requirements for relief from restraint under RAP 16.4. Order Requesting Supplemental Briefing at 2 (April 17, 2018).

¶ 10 In his supplemental brief, Delbosque argues that we should review his direct appeal of the superior court’s order imposing the new minimum term of incarceration as a PRP.³ We agree.

¶ 11 RCW 10.95.035 provides for certain juvenile offenders sentenced to life without parole or release before June 1, 2014, to be resentenced consistent with the Miller -fix statute. Bassett , 198 Wash. App. at 718, n.6, 394 P.3d 430. RCW 10.95.035(3) also provides that "[t]he court’s order setting a minimum term is subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986." Review of a minimum term decision by the parole board before July 1, 1986, was obtained by filing a PRP. Bassett , 198 Wash. App. at 721, 394 P.3d 430.

¶ 12 "In order to facilitate review of a minimum term decision on the merits, we may disregard a filing defect and treat a direct appeal as a PRP." Bassett , 198 Wash. App. at 721-22, 394 P.3d 430. Although Delbosque filed a direct appeal of the superior court’s order imposing the new minimum term of incarceration, we disregard this procedural defect and review Delbosque’s appeal as a PRP.

II. MINIMUM TERM SENTENCE

¶ 13 Delbosque argues that the superior court’s findings of fact are unsupported by substantial evidence and that the superior court failed to adequately consider the diminished culpability of youth as required by the Miller -fix statute when setting the minimum term of his sentence. We hold that (1) the superior court’s findings regarding Delbosque having an attitude towards others reflective of the underlying crime, and of Delbosque’s permanent incorrigibility and irretrievable depravity are not supported by substantial evidence, and (2) the superior court failed to comply with the Miller -fix statute when setting the minimum term.

A. LEGAL PRINCIPLES

¶ 14 "To obtain relief under a PRP where no prior opportunity for judicial review was available, a petitioner must show that he is restrained under RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c)." Bassett , 198 Wash. App. at 722, 394 P.3d 430. A petitioner is restrained under RAP 16.4(b) when he is confined. Under RAP 16.4(c)(2), restraint is unlawful when "[t]he conviction was obtained or the sentence or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government was imposed or entered in violation of the Constitution of the United States or the Constitution or laws of the State of Washington." Here, it is undisputed that Delbosque is restrained.

¶ 15 We review challenged findings of fact for...