State v. Serrano
| Decision Date | 18 May 1999 |
| Docket Number | No. 17269-4-III,17269-4-III |
| Citation | 95 Wn.App. 700,977 P.2d 47 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Jose Lopez SERRANO, Appellant. |
Suzanne L. Elliott, Attorney at Law, Seattle, for Appellant.
Lauri M. Boyd, Deputy Prosecuting Attorney, Yakima, for Respondent.
Jose Lopez Serrano appeals his convictions and sentence for second degree murder and second degree unlawful possession of a firearm. He raises several issues related to the trial court's deadly weapon instruction and special verdict form. Pro se, he contends the trial court unlawfully failed to provide a certified interpreter, trial counsel was constitutionally ineffective, and the sentencing court improperly questioned him and ordered an unjustified exceptional sentence. We affirm the convictions but remand for entry of a sentence within the standard range.
Froilan Gutierrez was shot five times while he was working in an apple orchard on June 28, 1997. His coworker, Juan Antonio Ramos Lopez, heard the shots from nearby and returned to see Mr. Serrano leaving in a car. 1 Mr. Serrano was arrested later that day and was charged with first degree murder and second degree unlawful possession of a firearm. A jury found him guilty of the firearm crime 2 and the lesser included crime of second degree murder. On a special verdict form, the jury also found Mr. Serrano was armed with a deadly weapon at the time of the murder. The court ordered an exceptional sentence of 360 months, 66 months above the top of the standard range. 3
Before addressing the sentencing issues, we first briefly address Mr. Serrano's pro se contention that reversal is required because a certified interpreter was not used at trial. As the trial began, the court had the following colloquy:
THE COURT: We're here to begin the case of State versus Jose Lopez Serrano.
Can you hear the interpreter, Mr. Serrano?
When a non-English-speaking person is a party to a legal proceeding, a "certified" interpreter must be appointed unless good cause is shown. RCW 2.43.030(1)(b); see State v. Pham, 75 Wash.App. 626, 633, 879 P.2d 321 (1994), review denied, 126 Wash.2d 1002, 891 P.2d 37 (1995). Mr. Serrano contends he is entitled to a new trial because the interpreter at his trial was "qualified" but not "certified." Because defense counsel did not object at trial, he may not raise the issue for the first time on appeal unless the error was of constitutional magnitude. See RAP 2.5(a)(3).
A defendant has a constitutional right to "a competent interpreter, [but] not necessarily a certified interpreter." Pham, 75 Wash.App. at 633, 879 P.2d 321. Nothing in the record suggests the interpreter in this case was incompetent. The record certainly does not support Mr. Serrano's allegation that the interpreter ordered him to answer as the interpreter directed. Nor is there any support for Mr. Serrano's allegation that he did not speak Spanish and thus was unable to understand the Spanish-speaking interpreter. The record indicates Mr. Serrano was aware of what was happening and was able to participate throughout the proceedings. Because there is no basis for Mr. Serrano's contention the interpreter was incompetent, he has no constitutional claim and may not raise the statutory issue for the first time on appeal.
Mr. Serrano also contends, however, that his attorney was constitutionally ineffective in failing to object to the uncertified interpreter. Because there is no indication the interpreter was incompetent, Mr. Serrano cannot establish he was prejudiced as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v. McFarland, 127 Wash.2d 322, 899 P.2d 1251 (1995). There was no reversible error.
We now address the sentencing issues. Mr. Serrano first contends the 60-month sentence enhancement was unlawful because the jury instruction and special verdict form used the phrase "deadly weapon" rather than the term "firearm." The information charging Mr. Serrano with first degree murder contained the following special allegation:
[N]otice is hereby given that it is alleged that during the commission of the crime above, you and/or an accomplice were armed with a firearm, to-wit: .22 caliber pistol as defined by RCW 9.41.010, 9.94A.310 and 9.94A.125 whereby under those statutory provisions certain sentencing enhancements are imposed.
At trial, the court instructed the jury on the elements of first degree murder, second degree murder (as a lesser included offense) and second degree possession of a firearm. Instruction 15 defined firearm as "a weapon or device from which a projectile may be fired by an explosive such as gunpowder." Instruction 18 provided:
For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime of murder.
A pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded.
The jury answered the special verdict as follows:
Was the defendant JOSE LOPEZ SERRANO armed with a deadly weapon at the time of the commission of the crime of murder?
At the time of sentencing, the court entered a separate finding stating:
The Court finds that on June 28, 1997, in Yakima County, State of Washington, that the defendant committed the crime of Second Degree Murder, and during the commission of that offense the defendant was armed with a firearm as defined in RCW 9.94A.125, 9.94A.310, 9.41.010, to wit: .22 caliber pistol.
The court enhanced Mr. Serrano's sentence by 60 months for use of a firearm.
The Sentencing Reform Act of 1981(SRA) contains two provisions for enhancing sentences on the basis of the defendant's use of a weapon. The more general provision, RCW 9.94A.310(4), provides for various enhancements (depending on the class of the crime) if the offender was "armed with a deadly weapon as defined in this chapter other than a firearm as defined in RCW 9.41.010." A deadly weapon is defined as an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are included in the term deadly weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.
A second, more specific provision provides for relatively longer enhancement periods if the defendant was "armed with a firearm as defined in RCW 9.41.010." RCW 9.94A.310(3). For purposes of this provision, a firearm is defined as "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." RCW 9.41.010(1).
Here, the information alleged Mr. Serrano was armed with a firearm, but it confusingly cited RCW 9.94A.125, which defines the phrase "deadly weapon." Adding to the confusion, jurors were instructed on the definitions of both "firearm" 4 and "deadly weapon," and the jury was required to find on a special verdict form whether Mr. Serrano was armed with a deadly weapon.
The instructions at issue here are all correct statements of the law. The problem is that the State sought a sentence enhancement based on Mr. Serrano's use of a firearm, but the jury was required to decide instead whether he used a deadly weapon. The superior court apparently recognized this inconsistency at the time of sentencing and entered its own, more specific finding that Mr. Serrano was armed with a firearm. Mr. Serrano contends in part that the 60-month enhancement must be stricken because the information and the special verdict were inconsistent. See State v. Smith, 11 Wash.App. 216, 225, 521 P.2d 1197 (1974). But there was no inconsistency between the information's special allegation and the sentencing court's firearm enhancement under RCW 9.94A.310(3). The jury's determination that he was armed with a deadly weapon was simply meaningless.
The precise issue raised here is whether the court properly entered its own special firearm finding or whether the question was for the jury. Although the SRA expressly requires a jury finding on the question whether the defendant was armed with a deadly weapon, see RCW 9.94A.125, there is no corresponding jury requirement for a firearm finding. State v. Meggyesy, 90 Wash.App. 693, 708, 958 P.2d 319, review denied, 136 Wash.2d 1028, 972 P.2d 465 (1998). Mr. Serrano concedes his trial attorney failed to raise this issue at trial, but he contends nonetheless that he may raise it for the first time on appeal pursuant to RAP 2.5(a)(3) because it is an issue of constitutional magnitude. But a defendant does not have a constitutional right to a jury determination of a fact related to sentencing. McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (); State v. Thorne, 129 Wash.2d 736, 782, 921 P.2d 514 (1996); Meggyesy, 90 Wash.App. at 708, 958 P.2d 319. The error, if any, was not of constitutional magnitude and may not be raised for the first time on appeal.
Finally, Mr. Serrano contends his trial counsel was constitutionally ineffective in failing to object to the inapplicable jury instruction and special verdict form. 5 The Sixth Amendment guarantees criminal defendants the effective...
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