State v. Flores

Decision Date26 June 2008
Docket NumberNo. 79135-0.,79135-0.
Citation186 P.3d 1038,164 Wn.2d 1
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Octavio Gonzales FLORES, Petitioner.

Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Petitioner.

Karl F. Sloan, Okanogan County Prosecuting Attorney, Okanogan, WA, for Respondent.

Octavio Gonzales Flores, Connell, WA, Appearing Pro Se.

MADSEN, J.

¶ 1 Octavio Gonzales Flores challenges his convictions of six counts of unlawful delivery of a controlled substance, two counts of involving a minor in an unlawful drug transaction, and one count of possession with intent to deliver. He contends that insufficient evidence supports the convictions for involving a minor, that the State's use of a written statement by his wife violated his constitutional right to confrontation, and that the imposition of an exceptional sentence based on judge-made findings violated his constitutional right to a jury trial. The Court of Appeals affirmed the convictions and sentence after considering supplemental briefing on the applicability of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which were published while the case was on direct review.

¶ 2 We hold the offense of involving a minor in a drug transaction, former RCW 69.50.401(f) (1998), recodified as RCW 69.50.4015, does not encompass the act of merely allowing a minor to remain present during the transactions that took place at Flores'1 residence. Accordingly, we reverse his convictions on those charges for insufficient evidence. But we affirm the other convictions, agreeing with the Court of Appeals that the confrontation clause violation was harmless. Finally, we hold the imposition of an exceptional sentence violates Flores' right to a jury trial, following Blakely, because the judge, not the jury, made the factual determination that the offense constitutes a major violation of the Uniform Controlled Substances Act (VUCSA), chapter 69.50 RCW, which was "more onerous than the typical offense." Former RCW 9.94A.535(2)(e) (2001).

FACTS

¶ 3 This case arises from a sting operation conducted by the North Central Washington Narcotics Task Force. In July, August, and September 2001, the task force conducted a series of controlled drug buys from Flores and his wife, Sandra, acting through a confidential informant. The confidential informant agreed to participate in lieu of charges.

¶ 4 The confidential informant did not speak Spanish. Flores did not speak English. Sandra translated during each of the drug transactions.

¶ 5 The first transaction occurred on July 26, 2001, at the orchard cabin where Flores and Sandra lived, together with Sandra's daughter, Jessica (born July 7, 1988). 1 Verbatim Report of Proceedings (VRP) at 108-09 (Feb. 7, 2002); 3 VRP at 449 (Feb. 11, 2002). The confidential informant encountered Sandra and Jessica sitting on a bench outside the cabin. He told Sandra he wanted "150." 1 VRP at 107. Sandra waved Flores over. They conversed in Spanish. The confidential informant gave Sandra the money, and Flores handed her a plastic baggie of 2.5 grams of cocaine. Sandra gave the plastic baggie to the informant. Neither Sandra nor Flores asked Jessica to leave.

¶ 6 Based on the evidence obtained at the first transaction, the police secured a court order that authorized the use of a "body wire." 1 VRP at 118, 126. All of the subsequent controlled buys were recorded via a wire worn by the confidential informant. In addition, aerial surveillance was used during the final controlled buy.

¶ 7 The second transaction occurred inside the cabin. Jessica was sitting on a couch in the living room. Flores either gave the drugs to Sandra in the bedroom, which was separate from the living room, or in the kitchen, which adjoined the living room.2 According to the confidential informant, Jessica "was in the general area. It was a small cabin." 3 VRP at 457. He felt she "was aware of what was going on." Id. at 452. Flores did not ask her to leave.

¶ 8 The final controlled buy occurred on September 25, 2001. 2 VRP at 318 (Feb. 8, 2002). The confidential informant purchased 25.5 grams of cocaine in exchange for $1,425. The transaction took place in an open field. It was videotaped from a military surveillance plane. Police on the ground saw the confidential informant approach a truck, hand money inside, and receive a package of drugs from Flores.

¶ 9 After the transaction was complete, the police arrested Flores and then executed a search warrant at the orchard cabin. Sandra responded to police questioning and provided a written statement.

¶ 10 The police recovered 155 grams of cocaine from the premises, cash, including some of the recorded money used in the controlled buys, cutting agents, and packaging materials. Flores had $1,018 and seven bindles3 of cocaine in his pants pocket when he was arrested. 4 VRP at 670, 720 (Feb. 12, 2002). Sandra had 11 bindles in her pants pocket. 2 VRP at 337.

¶ 11 The State charged Flores with six counts of unlawful delivery of a controlled substance4 (counts I, III, V, VI, VII, VIII), two counts of involving a minor in drug dealing5 (counts II and IV), and one count of unlawful possession with intent to deliver a controlled substance6 (count IX). Clerk's Papers (CP) at 12-16.

¶ 12 Anticipating that Flores would invoke his spousal privilege to prevent Sandra from testifying, the State moved for admission of her out-of-court statements under ER 801(d)(2) (hearsay exemption for admission by party-opponent) and ER 804(b)(3) (hearsay exception for statements against penal interest). Over Flores' objection, the trial court ruled that Sandra's statements made during the controlled buys were admissible under ER 801(d)(2)(v), as statements by a co-conspirator in furtherance of the conspiracy. The trial court also ruled, again over Flores' objection, that Sandra's oral and written statements to the police were admissible under ER 804(b)(3), as statements against penal interest.

¶ 13 Accordingly, a written statement signed by Sandra was read into the record. In it, she admits participating in the drug transactions and inculpates her husband in the offenses. She also states her daughter was present during some of the drug transactions.

¶ 14 The State played the audio recordings of the drug buys for the jury. A translator read the English translation of the recordings into the record.

¶ 15 At the close of the State's case-in-chief, defense counsel moved for dismissal of the two counts for violation of former RCW 69.50.401(f) (involving a minor in an unlawful drug transaction). The trial court denied the motion.

¶ 16 Speaking through a translator, Flores testified. He conceded guilt as to counts eight and nine, relating to the September 25, 2001 controlled buy (which was captured on videotape). He admitted he handed cocaine to the confidential informant (count VIII), and he intended to give the seven bindles of cocaine found in his pocket to his wife (count IX). But he denied involvement in the other transactions.

¶ 17 On cross-examination, Flores admitted he was present when the confidential informant came to his house several times. He also admitted the voices on the audio recordings were his and his wife's.

¶ 18 A jury convicted Flores as charged. CP at 108-10.

¶ 19 The trial court sentenced Flores at the top of the standard range for five of the controlled substance offenses (120 months) and the two offenses for involving a minor (60 months), ordering they run concurrently. CP at 120. The trial court sentenced Flores to 60 months on the remaining two controlled substance offenses (counts VIII and IX) and ordered they run consecutively to the other offenses. Thus, the court sentenced Flores to an exceptional consecutive sentence of 180 months. CP at 127.

¶ 20 The court concluded the offenses were major VUCSAs, "more onerous than the typical offense." CP at 126. The court also concluded the multiple offense policy resulted in a sentence that was "clearly too lenient," based on Flores' offender score (18), and "some additional punishment should be imposed for allowing the child to be present" at two of the drug transactions. Id.

¶ 21 While Flores' case was on direct review, the United States Supreme Court issued its decisions in Crawford and Blakely. The Court of Appeals accepted supplemental briefing on the applicability of those decisions and affirmed the convictions. State v. Gonzales Flores, noted at 134 Wash.App. 1024, 2006 WL 2130668, 2006 Wash.App. LEXIS 1656. The court held that allowing a minor to be present during a drug transaction constitutes sufficient "involvement" to support a conviction for violation of RCW 69.50.4015. The court further held the trial court improperly admitted Sandra's out-of-court statements to police but the error was harmless. Finally, the trial court affirmed the exceptional sentence, holding the trial court did not engage in improper judicial fact-finding because the aggravating factor of a "major VUCSA" is based on facts found by the jury beyond a reasonable doubt, i.e., more than three convictions.

ANALYSIS

¶ 22 Flores challenges the sufficiency of the evidence in support of his convictions for involving a minor in a drug transaction. He argues that allowing a minor to remain present during an unlawful drug transaction does not, alone, constitute a violation of former RCW 69.50.401(f). We agree.

¶ 23 The resolution of this issue depends on this court's interpretation of former RCW 69.50.401(f). Statutory interpretation is a question of law subject to de novo review. State v. Hacheney, 160 Wash.2d 503, 512, 158 P.3d 1152 (2007).

¶ 24 Former RCW 69.50.401(f) provides:

It is unlawful to compensate, threaten, solicit, or in any other manner involve a person under the age of eighteen years in a transaction unlawfully to...

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