State v. Mendoza

• Decision Date: 17 July 2007
• Docket Number: No. 34698-2-II.,34698-2-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Frank C. MENDOZA, Appellant.

162 P.3d 439

139 Wn. App. 693

STATE of Washington, Respondent, v. Frank C. MENDOZA, Appellant.

No. 34698-2-II.

Court of Appeals of Washington, Division 2.

July 17, 2007.

Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Gerald R. Fuller, Grays Harbor County Prosecutor's Office, Montesano, WA, for Respondent.

OPINION PUBLISHED IN PART

VAN DEREN, J.

¶ 1 Frank C. Mendoza appeals his convictions for second degree robbery and unlawful imprisonment, arguing that (1) the trial court erred by not determining his criminal history or calculating his offender score on the record, (2) the prosecutor committed misconduct by eliciting testimony about Mendoza's prior contacts with police, and (3) his counsel was ineffective. We affirm Mendoza's convictions but remand for resentencing, requiring the State to prove his criminal history by a preponderance of the evidence, without limiting the State to the record at the prior sentencing hearing.

FACTS

¶ 2 On August 7, 2005, Lester A. Selin, age 84, encountered Mendoza on his way to a local convenience store. As he left the store, Selin realized that Mendoza was following him and, when he reached his driveway, Selin turned and asked Mendoza what he wanted. Mendoza responded, "I come ... to shoot you and kill you.... You're a bad man." Report of Proceedings (RP) (Apr. 4, 2006) at 10. Selin believed that Mendoza had a gun because he kept his hand in his pocket.

¶ 3 Mendoza told Selin that he belonged to a drug cartel that would pay him a large sum of money for killing Selin. His girlfriend had been "roughed up" while she was in jail, and he wanted to kill the Lester Selin that has a mole on his face. RP (Apr. 4, 2006) at 11. When Mendoza realized that Selin did not have a mole on his face, he acknowledged that he might have the wrong man. Mendoza had mistaken Lester Selin for Selin's son, also named Lester, who works as a corrections officer for the Grays Harbor Sheriff's Office.

¶ 4 Then Mendoza said, "I want money." RP (Apr. 4, 2006) at 12. Selin took $16 in cash from his wallet and gave it to Mendoza. Mendoza checked the name on Selin's Visa credit card inside the wallet. Apparently now satisfied that he did have the wrong Selin, Mendoza demanded a ride to a local tavern. Outside the tavern Mendoza told Selin that if he called the police, he would come back and kill him.

¶ 5 Despite this threat, Selin contacted the police and officers viewed the surveillance video from the convenience store that showed Mendoza hanging around for about an hour before he encountered Selin. Officers also lifted a latent print matching Mendoza's thumbprint from the outside door handle of Selin's truck.

¶ 6 The police arrested Mendoza that day. Mendoza acknowledged that he was the individual in the video, but denied any involvement with Selin. Selin was unable to identify Mendoza when officers showed him a photo array, instead commenting that the hairstyle of a different individual was similar to his assailant's hair.

¶ 7 The State charged Mendoza with one count of second degree robbery and one count of second degree kidnapping. Later, the State filed notice that it intended to seek an exceptional sentence because Mendoza knew, or should have known, that Selin was particularly vulnerable and incapable of resistance.

¶ 8 During trial, Aberdeen Police Officer Steve Timmons testified that he was looking for Mendoza because there was "PC (probable cause) to arrest [Mendoza] for a separate charge, and also that he was a suspect in this case." RP (Apr. 4, 2006) at 103. Lieutenant Kevin Darst testified that he used a booking photograph of Mendoza from "sometime earlier when he was arrested a previous time," to compile a photo array for identification purposes. RP (Apr. 4, 2006) at 109. Corporal Darrin King testified that he knew Mendoza because of "several prior contacts," and Detective George Kelley testified that he was acquainted with Mendoza before August 7, 2005. RP (Apr. 4, 2006) at 111. Defense counsel did not object to any of this testimony or request curative instructions relating to it.

¶ 9 While cross-examining Kelley, Mendoza's counsel inadvertently elicited the fact that Mendoza was violating the law while at the convenience store because he had failed to register his current address with law enforcement. The trial court immediately directed Mendoza's counsel to re-phrase the question, but Mendoza's counsel did not object to Kelley's answer or request a curative instruction.

¶ 10 The jury found Mendoza guilty of second degree robbery and the lesser included charge of unlawful imprisonment. The jury also returned a special verdict on both counts, finding that Selin was particularly vulnerable and that Mendoza knew, or should have known, that Selin was particularly vulnerable.

¶ 11 At sentencing, the State provided a statement of a prosecuting attorney that included the State's recitation of the evidence at trial and a list of what the prosecutor believed was Mendoza's criminal history.¹ Mendoza did not object to the prosecutor's list of his prior criminal history. The trial court declined to impose an exceptional sentence. It sentenced Mendoza to concurrent terms of 84 months for second degree robbery and 60 months for unlawful imprisonment.

¶ 12 Mendoza appeals.

ANALYSIS

I. PROVING CRIMINAL HISTORY — ACKNOWLEDGEMENT, WAIVER, SILENCE

¶ 13 Mendoza claims that the trial court erred by using only the prosecuting attorney's statement to determine his criminal history. The State responds that Mendoza is deemed to have acknowledged² the criminal history listed in the prosecutor's statement because he did not object at sentencing.

¶ 14 "We review de novo the sentencing court's calculation of the offender score." State v. Rivers, 130 Wash.App. 689, 699, 128 P.3d 608 (2005), review denied, 158 Wash.2d 1008, 143 P.3d 829 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1882, 167 L.Ed.2d 370 (2007). "[I]llegal or erroneous sentences may be challenged for the first time on appeal." State v. Ford, 137 Wash.2d 472, 477, 973 P.2d 452 (1999). Although a defendant generally "cannot waive a challenge to a miscalculated offender score," he may waive his challenge if "the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." State v. Ross, 152 Wash.2d 220, 231, 95 P.3d 1225 (2004) (quoting In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 874, 50 P.3d 618 (2002)).

¶ 15 Mendoza claims that the trial court erred by failing to require evidence of his criminal history. On April 6, 2006, before sentencing, the State provided defense counsel and the trial court with the prosecutor's written statement containing a table listing Mendoza's prior convictions. The table included the crimes, sentencing courts, dates of crimes, and types of crimes. The State also listed its offender score calculation, sentencing recommendation, and the costs to be imposed. The trial court determined that Mendoza had an offender score of 9, based solely on the prosecutor's statement. Mendoza did not object, but he also did not affirmatively acknowledge the factual basis of the prosecutor's statements. See Ross, 152 Wash.2d at 230, 95 P.3d 1225 ("a defendant's affirmative acknowledgement that his prior ... convictions are properly included in his offender score satisfies [Sentencing Reform Act of 1981(SRA) ] requirements").

¶ 16 On appeal, the State does not argue that this statement of a prosecuting attorney proved Mendoza's criminal history by a preponderance of the evidence. The State did not provide a certified copy of the judgment and sentence for any of Mendoza's convictions and did not offer any reason for failing to do so. See Rivers, 130 Wash.App. at 699, 128 P.3d 608.

¶ 17 Rather, the State argues that Mendoza waived his right to challenge the prosecutor's listing of his criminal history because he failed to object at sentencing. The State relies on RCW 9.94A.530, but offers no further argument or explanation, other than postulating that Mendoza failed to object because he knew the history was correct. Mendoza contends that his silence does not equate to acknowledgement of the criminal history provided by the State.

¶ 18 In Goodwin, the State conceded that the trial court miscalculated Goodwin's offender score because his judgment and sentence were fundamentally defective. 146 Wash.2d at 867, 50 P.3d 618. The State argued, however, that Goodwin failed to show "a complete miscarriage of justice because he agreed to the criminal history stated in his plea agreement." 146 Wash.2d at 867, 50 P.3d 618. In addressing the State's argument that Goodwin waived the miscalculation of his offender score, our Supreme Court noted:

This court recently held, in a case in which no negotiated plea agreement was involved, that a petitioner is unlawfully restrained "to the extent he [or she] was sentenced on the basis of an incorrect calculation of his [or her] offender score." In re Pers. Restraint of Johnson, 131 Wash.2d 558, 568, 933 P.2d 1019 (1997). This is because "[a] sentencing court acts without statutory authority ... when it imposes a sentence based on a miscalculated offender score." [Johnson, 131 Wash.2d at 568, 933 P.2d 1019.]. Moreover, a sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice. Johnson, 131 Wash.2d at 569, 933 P.2d 1019. This is true even where the sentence imposed is actually within the correct standard range. 146 Wash.2d at 867-68, 50 P.3d 618 (footnotes omitted).

¶ 19 Also in Goodwin, the Court overruled its prior decisions "that, depending upon the circumstances, a defendant can waive any challenge to a miscalculated offender score by agreeing to that score (or to criminal history on which the score is based) in a plea agreement or by other stipulation." 146 Wash.2d at 873, 50 P.3d 618. It held:

In keeping with...