Opinion
No. 34178-6-II.
April 17, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 02-1-05813-4, Ronald E. Culpepper, J., entered December 9, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Lawrence Labarbera appeals from a sentence that included a California conviction in his offender score calculation. After he originally appealed the sentence, we remanded, ordering the sentencing court to perform a comparability analysis of the California conviction to a Washington offense. The sentencing court did so, found that the two were comparable, and did not change the sentence. Labarbera asserts various arguments attacking the comparability analysis, none of which has merit.
We hold that second degree robbery in California is legally comparable to second degree robbery in Washington. Because the crimes are legally comparable, a factual comparability analysis is unnecessary. The sentence is affirmed.
FACTS
I. Trial
The following facts are adopted from State v. Labarbera, 128 Wn. App. 343, 345-47, 115 P.3d 1038 (2005):
On October 4, 1999, Labarbera kidnapped and raped A.S. Based on DNA evidence, the State charged Labarbera with first degree kidnapping (count I), two counts of first degree rape (count II and III), and first degree burglary (count IV). The State later dismissed counts I and IV because the statute of limitations had expired, and Labarbera waived his right to a jury trial. The parties filed stipulated facts on April 21, and, on May 21, 2004, the trial court found Labarbera guilty of counts II and III.
At sentencing, Labarbera objected to various convictions being included in his offender score. We resolved most of those issues in the previous appeal. Labarbera, 128 Wn. App. at 348. However, we found that the trial court had failed to perform a comparability analysis regarding a previous California robbery conviction, and we remanded, ordering the court to perform a comparability analysis "based on the record before the court at the time of sentencing." Labarbera, 128 Wn. App. at 351.
II. Resentencing
On remand, both the State and Labarbera filed sentencing memoranda. The State's memorandum consisted of a recitation of the facts and an argument section, including citations to Washington caselaw, the California Penal Code robbery statute in effect in 1991, and the Washington robbery statute from 1991. Labarbera's memorandum asserted that the State had violated our order by submitting additional evidence, and attached several documents including (1) a copy of our decision; (2) a copy of the California court's 1991 order sentencing Labarbera for second degree robbery; (3) a copy of Labarbera's 1992 declaration (similar to a guilty plea) for the same charge; (4) a copy of the California court's judgment; (5) a copy of the felony complaint from that robbery (similar to an information); and (6) a copy of the 2005 Washington and California statutes defining robbery.
After hearing from both parties, the trial court examined the California charging document and Labarbera's declaration, both of which had been available to the court at the first sentencing. It concluded that second degree robbery is the same in California as Washington. Report of Proceedings (RP) (Dec. 9, 2005) at 11. "The elements of the crime in California include taking of personal property from another person by willfully, unlawfully, means of force. I believe that's pretty much the same as our definition of robbery under 9A.56.190." RP (Dec. 9, 2005) at 11. The court did not change Labarbera's sentence, and he now appeals.
ANALYSIS
Labarbera argues that we should reverse his sentence because (1) the prosecution failed to provide sufficient evidence to prove the California conviction was comparable to a Washington crime; (2) imposition of a sentence based on this insufficient evidence violated his due process rights; (3) the sentencing court applied the wrong standard, engaging in a factual comparability analysis when (according to Labarbera) it could not properly perform a legal comparability analysis; and (4) the sentencing court's determination of factual comparability violated Labarbera's due process rights under Lavery and Blakely.
In re the Pers. Restraint of Lavery, 154 Wn.2d 249, 111 P.3d 837 (2005).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
I. Comparability of Second Degree Robbery in California and Washington
The elements of second degree robbery in California and Washington appear to be identical and support a holding that the two crimes are legally comparable. Therefore, Labarbera's California conviction was properly included in calculating his offender score and we affirm the sentence.
In State v. Morley, the Washington Supreme Court set out a two-part test to determine whether foreign convictions are comparable to Washington offenses. State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1988). The court must first compare the elements of the crimes (legal comparability analysis). In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). The legal comparability test consists of comparing the elements of the out-of-state crime to the elements of the Washington criminal statute in effect when the foreign crime was committed. Morley, 134 Wn.2d at 605-06; Lavery, 154 Wn.2d at 255.
If the elements of the Washington crime and the foreign crime are not substantially similar, the court may look at the defendant's conduct, as evidenced by the indictment or information, to determine if the conduct itself would have violated a comparable Washington statute (factual comparability analysis). Lavery, 154 Wn.2d at 255. However, even where the court looks into the record of a foreign conviction, "the elements of the charged crime must remain the cornerstone of the comparison." Morley, 134 Wn.2d at 606; see also Lavery, 154 Wn.2d at 255.
At the time of Labarbera's California conviction for second degree robbery, the Washington crime of robbery required: (1) the unlawful taking (2) of personal property (3) from the person of another or in his presence (4) against his will (5) by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. RCW 9A.56.190. Second degree robbery included all robberies in which the perpetrator (1) was not armed with a deadly weapon, (2) did not display what appeared to be a firearm or other deadly weapon, or (3) did not inflict bodily injury. See RCW 9A.56.200 (1975); RCW 9A.56.210. An additional, nonstatutory requirement in Washington is the specific intent to steal. See Lavery, 154 Wn.2d at 255-56; State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991) ("our settled case law is clear that `intent to steal' is an essential element of the crime of robbery").
RCW 9A.56.200, defining first degree robbery, was amended in 2002 to include robberies within and against financial institutions.
RCW 9A.56.210, defining second degree robbery, has not changed since it was enacted in 1975.
California Penal Code, as applied in 1992, defined robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal. Penal Code § 211. Every robbery except (1) of an operator or passenger of any type of vehicle or (2) if committed in an inhabited dwelling house or vessel, was defined as second degree robbery. Cal. Penal Code § 212.5 (1989). Additionally, "[a] specific intent to steal is an essential element of the crime of robbery. . . ." People v. Morlock, 46 Cal. 2d 141, 146, 292 P.2d 897 (1956).
California's statutory definition of robbery has not changed since it was enacted in 1872.
A legal comparison of the elements of second degree robbery in California and Washington illustrates that the two appear essentially identical. Both require (1) a taking (2) of personal property (3) from another person or his immediate presence (4) against his will (5) by use of force or fear. Both also require a specific intent to steal. Because the elements of California and Washington second degree robbery are substantially equivalent, if not identical, we hold that the convictions are legally comparable.
Labarbera argues that the sentencing court could not properly perform a comparability analysis without the State presenting evidence of the elements of the crimes, and he contends that " both factual and [legal] comparability have to be proven." Appellant's Br. at 16. He is incorrect on both counts. The court may take judicial notice of the laws of other states. RCW 5.24.010. Therefore, the elements of the crimes in California and Washington were properly before the court for comparison.
Additionally, the law does not require a factual comparability analysis if a foreign conviction is legally comparable to a Washington offense. See Lavery, 154 Wn.2d at 255; Morley, 134 Wn.2d at 606. Although the sentencing court did conduct a factual analysis (examining the information and guilty plea) rather than a legal analysis, we may affirm on any correct ground. See State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
Because the two crimes are legally comparable, the sentencing court was correct to include the California conviction in calculating Labarbera's offender score.
II. Blakely Concerns
Labarbera's contention that the sentencing court's factual comparability analysis denied him his due process rights under Lavery and Blakely is without merit.
The Lavery court held that a sentencing court can engage in limited fact finding to determine comparability, but cautioned that "[a]ny attempt to examine the underlying facts of a foreign conviction, facts that were neither admitted or stipulated to, nor proved to the finder of fact beyond a reasonable doubt in the foreign conviction, proves problematic." Lavery, 154 Wn.2d at 258.
The Lavery court's reasoning is consistent with the Supreme Court's decision in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). The Shepard Court held that a later court, in examining a prior conviction, may consider only the statutory definition, charging documents, written plea agreements, transcripts of the plea colloquy, and explicit factual findings stipulated to by the defendant. Shepard, 544 U.S. at 16.
Here, the court limited its factual analysis to the charging document and the guilty plea. Therefore, its analysis was proper under Shepard.
Furthermore, we have rejected the argument that a defendant's constitutional rights are violated when a judge, rather than a jury, determines that an out-of-state prior conviction is factually comparable and should be included in a defendant's offender score, as long as the judicial fact finding is limited. State v. Farnsworth, 133 Wn. App. 1, 130 P.3d 389 (2006). If the relevant facts in the record were proved beyond a reasonable doubt, admitted or stipulated to, or found by the trier of fact, the court does not violate the defendant's constitutional right to a jury trial in determining whether an out-of-state conviction is factually comparable. Farnsworth, 133 Wn. App. at 21-22.
III. Sufficient Evidence
Labarbera's assertion that the State did not present sufficient evidence to prove comparability is not persuasive. According to his argument, the State must present out-of-state judgments and sentences, offer the out-of-state statutes into evidence, and identify comparable Washington statutes in order to meet its burden.
Labarbera cites Ford to support this contention, but the Ford court set no such specific requirements when it overturned the defendant's sentence. State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999). In that case, the State apparently failed to introduce any evidence regarding comparability of his out-of-state convictions and argued that the burden was on the defendant to object to the classification at sentencing. Ford, 137 Wn.2d at 478-79.
The Ford court did note that the best evidence of a prior conviction is a certified copy of the judgment, which the State provided in this case. See Ford, 137 Wn.2d at 480.
In stark contrast to Ford, the State here offered several documents into evidence to support the comparability of the California conviction.
The sentencing packet before the court included a minute order, a probation officer's recommendation, a declaration by the defendant (similar to a guilty plea), an abstract of judgment, the felony complaint (similar to an information), and the court's order to hold Labarbera for judgment.
IV. Additional Evidence
Labarbera's argument that the State improperly submitted additional evidence when it included statutes and legal authority in its sentencing memorandum (after remand) is also unpersuasive. RCW 5.24.010 allows courts to take judicial notice of the laws of other states. The sentencing court was therefore permitted to examine whatever statutes it deemed necessary to determine comparability of the crimes.
Labarbera also discredits the State's reliance on Mutch in its sentencing memorandum, as Lavery explicitly overrules the reasoning from Mutch. See Lavery, 154 Wn.2d at 259. This argument is inapposite. Neither of those cases examined the comparability of California robbery and Washington robbery; both were instead concerned with the comparability of federal bank robbery and Washington robbery. See Lavery, 154 Wn.2d at 255-56; State v. Mutch, 87 Wn. App. 433, 438, 942 P.2d 1018 (1997). The Lavery court rebuked the Mutch court for conflating legal and factual comparability and held that a strictly legal comparison of the elements of federal bank robbery and Washington robbery illustrates that the two are not substantially similar.
State v. Mutch, 87 Wn. App. 433, 942 P.2d 1018 (1997).
Lavery, 154 Wn.2d at 256, 259. Federal bank robbery does not mirror Washington's requirement of specific intent to steal, therefore it is conceivable that one guilty of federal bank robbery would not be guilty of Washington robbery. Lavery, 154 Wn.2d at 256.
Where the statutory elements of a foreign conviction are broader than those under a similar Washington statute, the foreign conviction cannot truly be said to be comparable. Lavery, 154 Wn.2d at 258. There is no such problem here, as California's and Washington's intent requirements are exactly the same.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and QUINN-BRINTNALL, J., concur.