State v. Paz, No. 51889-5-I (WA 7/6/2004)

• Decision Date: 06 July 2004
• Docket Number: No. 51889-5-I,51889-5-I
• Parties: STATE OF WASHINGTON, Respondent, v. CONRAD RAMOS PAZ, aka CARLOS GOMEZ, Appellant, BONNIE JEAN AGUILLAR and DEAN EDWARD STAFFORD and each of them, Defendants.
• Court: Washington Supreme Court

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. CONRAD RAMOS PAZ, aka CARLOS GOMEZ, Appellant BONNIE JEAN AGUILLAR and DEAN EDWARD STAFFORD and each of them, Defendants.

No. 51889-5-I

Court of Appeals of Washington, Division One.

Filed: July 6, 2004

Appeal from Superior Court of King County. Docket No: 00-1-10212-3. Judgment or order under review. Date filed: 02/19/2003. Judge signing: Hon. Michael C Hayden.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Sara Lynn McCulloch, King Co Pros Office, 516 3rd Ave, Seattle, WA 98104-2390.

PER CURIAM.

Conrad Ramos Paz appeals his sentence for possession with intent to deliver heroin. He argues the trial court erred by including his Oregon convictions in his offender score without comparing them to Washington crimes and by finding the convictions encompassed separate criminal conduct. We conclude that while the trial court did not explicitly classify Paz's Oregon offenses according to comparable Washington crimes, its analysis was adequate. And the trial court did not err by counting Paz's Oregon convictions as separate instances of criminal conduct because his actions demonstrated his intent to commit drug crimes in both the present and future. We affirm.

FACTS

In May 2001, Paz was convicted in Washington of possession with intent to deliver heroin. He received a Drug Offender Sentencing Alternative (DOSA) sentence of 60 months' confinement and 60 months' community custody. In June 2001, the trial court modified the judgment and sentence without notifying Paz, increasing the sentence to 63 months' confinement and 63 months' community custody. He appealed his conviction and sentence. In May 2002, we affirmed his conviction but remanded the case for resentencing and directed the State to be prepared to prove Paz's criminal history so as to establish the correct offender score.¹ At resentencing, the State argued that his offender score should be based on three prior drug convictions: a 1991 delivery conviction from Yakima and two 1994 delivery convictions from Oregon. The trial court agreed and again sentenced Paz to a DOSA sentence of 63 months' confinement and 63 months' community custody.

The incident giving rise to Paz's Oregon convictions happened in Portland in 1994. An undercover officer approached Paz and his co-defendant and asked to buy drugs. Paz took a balloon containing cocaine out of his mouth and gave it to his co-defendant, who in turn gave it to the officer. Police then arrested both men. They searched Paz and found one bindle of heroin in his mouth and 19 bindles of cocaine and heroin in his anal cavity. Paz was convicted of two counts of delivery of a controlled substance and two counts of possession of a controlled substance.

Paz now challenges the Washington court's decision to count the Oregon delivery convictions toward his offender score. Specifically he argues the trial court erred by failing to classify the Oregon convictions according to comparable Washington offenses and by finding that the Oregon offenses did not encompass the same criminal conduct when calculating his offender score.

DISCUSSION

I. Crime Comparability

When a defendant's criminal history includes an out-of-state conviction, the Sentencing Reform Act (SRA) requires a sentencing court to classify the conviction according to comparable offense definitions and sentences under Washington law.² To do so, the court must compare the elements of the foreign criminal statute to the elements of the Washington counterpart.³ If the out-of-state crime is comparable, and the State proves the conviction by a preponderance of the evidence, the conviction counts toward the defendant's offender score.⁴ But if the elements are not identical or the out-of-state statute is broader than Washington's statute, the court may look at the indictment or information to determine whether the defendant's conduct would have violated Washington law.⁵ When comparing the foreign crime's elements to the potentially comparable Washington crime, the court `must use the Washington elements in effect on the date that the out-of-state crime was committed.'⁶ We review a sentencing court's offender score calculation de novo.⁷

Classification of an out-of-state conviction is a mandatory step in Washington.⁸ Paz argues that the trial court failed to perform this step but instead summarily concluded that the Oregon offenses would be felonies under Washington law. We agree that the court did not directly discuss crime comparability during the sentencing, but it nevertheless performed the proper analysis in the context of ruling on the same criminal conduct issue. While addressing whether the Oregon offenses constituted the same criminal conduct, the court indicated it had read and relied on State v. Boyd.⁹ In Boyd, the Oregon Court of Appeals held that possession of a drug with the intent to deliver it amounts to attempted delivery of that drug under Oregon law, and thus delivery and possession with intent to deliver are crimes punishable by the same penalties.¹⁰ Washington's equivalent statute also criminalizes both delivery of and possession with intent to deliver a controlled substance.¹¹ Thus the Oregon and Washington statutes are sufficiently comparable. The trial court in this case relied on this comparison when it did its same criminal conduct analysis.

Sentencing courts should not confuse the distinct issues of comparable foreign convictions and same criminal conduct, and courts should resolve crime comparability before determining whether out-of-state offenses constitute the same or separate criminal conduct. But because the trial court did adequately analyze crime comparability, albeit elliptically in the context of same criminal conduct analysis, it would be a waste of court resources to remand for another hearing in which the court would reach the same result under the same analysis. We can determine from the record that the analysis was correct and thus we find no error.

II. Same Criminal Conduct

If a court, while calculating a defendant's offender score, finds that some or all of the offenses encompass the same criminal conduct, the offenses will count as only one crime for sentencing purposes.¹² The trial court in this case determined that Paz's Oregon offenses constitute separate criminal conduct. We review this finding for abuse of discretion.¹³

Here, the issue is whether Paz's drug delivery to the undercover officer and his continued possession of drugs constitute the same or separate criminal conduct. `Same criminal conduct' is: (1) two or more crimes that require the same criminal intent, (2) were committed at the same time and place, and (3) involve the same victim.¹⁴ First, there is no dispute in this case that the crimes involved the same victim because the victim in drug crimes is the public at large.¹⁵ Second, the crimes satisfy the same time and place requirement, as Paz delivered some of the drugs while continuing to possess others.

Whether Paz's crimes involved the same criminal intent depends on whether his intent, viewed objectively, remained the same from one act to the next.¹⁶ A review of the relevant case law suggests that, in making this determination, courts look at whether one crime furthers the other, whether the quantity of drugs recovered is greater than that delivered, and whether the crimes took place as part of the same scheme, plan, or transaction.

For example, in State v. Burns,¹⁷ an undercover officer tried to buy drugs in a park. A man named Ervan Ellingson discussed the transaction with the officer and informed him that the man in a nearby van was in charge of the transaction. Ellingson went to the van to get the drugs and the officer saw Bruce Burns kneeling inside the van and handing a bag to Ellingson. Ellingson returned with the drugs. At that point, police arrested Ellingson and Burns and recovered a small quantity of cocaine from the van. Burns was charged with delivery of a controlled substance and possession with intent to deliver. The court held that these two criminal acts were separate criminal conduct because although the crimes were contemporaneous, Burns' possession of additional cocaine indicated a separate intent to deliver drugs in the future:

`The `same course of conduct' exception was meant to apply to situations where there is only one criminal purpose or motive. Here, as in State v. Boze, 47 Wn. App. 477, 735 P.2d 696 (1987), the criminal objective of each crime was realized independently of the other. When Burns delivered he committed one crime, but he still had in his possession a significant amount of cocaine which he intended to sell to others. The delivery did not further his intent to sell the remaining cocaine. Had Burns possessed only the cocaine delivered there is no question but that the objective would be the same, as one must be in possession in order to deliver. Where, as in this case, the evidence shows possession of a quantity greater than that delivered, that same evidence indicates an independent objective to make other deliveries. . . .'¹⁸

In State v. Lewis,¹⁹ the defendant sold marijuana on three different days. Concluding the transactions did not require the same criminal intent,²⁰ the court noted that `the commission of one drug deal did not further the commission of the other drug deals, and they were not part of a recognizable scheme or plan.'²¹ In State v. Garza-Villarreal,²² Francisco Garza-Villarreal possessed two types of drugs and was convicted of two counts of possession with intent to deliver. Defendant Joseph Casarez sold two types of drugs and was convicted of two counts of delivery. Each of the defendants argued their two convictions should count as the same criminal conduct for...