Opinion
No. 26653-2-III.
March 24, 2009.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 07-1-00293-3, Robert L. Zagelow, J., entered December 3, 2007.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Korsmo, JJ.
UNPUBLISHED OPINION
Alfredo Cantu Lopez appeals three convictions for complicity in the delivery of cocaine within 1,000 feet of a school bus route stop. Error is assigned to: (1) the admission of coconspirator statements under the ER 801(d)(2) hearsay exemption without a proper foundation of conspiracy evidence; (2) the admission of irrelevant and unfairly prejudicial evidence that a drug dog alerted to cash on Mr. Lopez's person; (3) the sufficiency of notice of the State's intention to seek an exceptional sentence for a major violation of the Uniform Controlled Substances Act (VUCSA), chapter 69.50 RCW; (4) the sufficiency of evidence to instruct the jury on the issue of a major VUCSA; (5) the State's improper remarks, urging the jury to find a major VUCSA, by arguing that Mr. Lopez was the type of person it needed to get off of the street; (6) the special verdict form, which did not permit the jury a choice in arriving at a verdict for a major VUCSA; and (7) the trial court's instruction in response to the jury's mid-deliberation inquiry as to how the 1,000-foot distance for the school bus route stop enhancement is to be measured, which did not give Mr. Lopez an opportunity to argue the facts against the instruction. Mr. Lopez makes numerous other contentions in a statement of additional grounds for review. We find no reversible error and affirm.
FACTS
On August 6, 2007, Mr. Lopez was charged with complicity to deliver cocaine within 1,000 feet of a designated school bus route stop (counts 1 through 5) and conspiracy to deliver cocaine within 1,000 feet of a designated school bus route stop (count 6). The State filed a document, giving notice of its intention to seek an exceptional sentence on five bases. It later pared those bases down to three aggravating circumstances.
At trial, the following evidence was presented through the testimony of the State's informant, Robert Mazetta, regarding the conduct associated with each count.
Count 1. On July 18, 2007, the informant called Mr. Lopez's cell phone to arrange a controlled buy of $40 worth of cocaine. The informant lived next door to the home shared by Mr. Lopez and Kim Hodgen. Shortly after the call, the informant saw that a car Mr. Lopez was known to drive arrived at the Lopez/Hodgen home. Ms. Hodgen was a passenger. Another vehicle pulled up driven by an unidentified male. The informant went to the Lopez/Hodgen home next door. Ms. Hodgen introduced the unidentified male as her cousin. The informant handed Ms. Hodgen $40. Ms. Hodgen stepped into a bedroom and quickly returned with two $20 bindles of cocaine for the informant.
Count 2. On July 20, the informant called Ms. Hodgen to arrange a second controlled buy. The informant went next door and gave Ms. Hodgen $70. While there, Ms. Hodgen received a phone call. After the call, she told the informant that the caller was Mr. Lopez, who was on his way, and the informant needed to leave. The informant went home, waited a while, and then returned. Mr. Lopez answered the door. Ms. Hodgen scolded the informant for coming over before being asked. Ms. Hodgen handed the informant the cocaine and told him to leave.
Count 3. On July 25, the informant and Ms. Hodgen had telephone conversations to set up a $40 buy. The informant went next door and gave Ms. Hodgen $40. Mr. Lopez later arrived. Mr. Lopez and Ms. Hodgen went into the kitchen. Ms. Hodgen came out and delivered the cocaine to the informant.
Count 4. On July 26, the informant spoke to Ms. Hodgen about the purchase of $40 worth of cocaine. The informant went next door and gave Ms. Hodgen $40. She gave him the cocaine. The informant asked Ms. Hodgen about purchasing an "eight-ball" — approximately 3.25 grams, worth approximately $160 to $180. Report of Proceedings (RP) at 130. Ms. Hodgen told him that she could probably set it up, but she would need some time to do so.
Uncharged conduct. On July 27, the informant spoke to Ms. Hodgen about buying $40 worth of cocaine. She gave him "rock" cocaine, explaining that she had smoked all of her powder cocaine. RP at 135. Because he preferred powder, they discussed exchanging the rock for powder. Ms. Hodgen said that upon Mr. Lopez's return, she would find out if she could get some powder and then she would call the informant. Mr. Lopez was not charged as a result of this transaction.
Count 5. On July 31, the informant called Mr. Lopez concerning the purchase of $40 worth of cocaine. Mr. Lopez never called back to make arrangements, so the informant called Mr. Lopez a few times and left messages. Later, Ms. Hodgen called the informant. Over a hearsay objection, the informant testified that Ms. Hodgen told him that Mr. Lopez had advised her that the informant was to deal through her only.
Count 6. On August 2, the informant spoke with Ms. Hodgen about purchasing a $180 eight-ball. He gave Ms. Hodgen the money. She told him that the cocaine was "close," but he had to leave and she would call him. RP at 143. The police had planned a buy/bust upon this transaction. They arrested Mr. Lopez outside of his home upon his arrival.
Other witnesses testified that in a search incident to arrest, the police patted down Mr. Lopez — who was wearing shorts, a t-shirt, and sandals — and searched his pockets. He had approximately $1,100 in cash in his pocket. No drugs were found on his person or in his car.
At the jail, Mr. Lopez was led to an area where he was to undergo a strip search. The officer escorting Mr. Lopez went into the clothing room to get jail attire for Mr. Lopez. The officer heard a toilet flush and turned around to see Mr. Lopez emerging from a cell. Mr. Lopez explained that he had flushed his chewing tobacco. The officer could not tell if Mr. Lopez previously had something in his mouth. No contraband was found in the strip search.
Officer Steven Echevarria testified over a defense relevancy objection that a drug-sniffing dog alerted on the cash recovered from Mr. Lopez when he was arrested. According to Officer Echevarria, the alert indicated the presence of heroin, cocaine, methamphetamine, or marijuana. The dog also alerted on Mr. Lopez's car.
Ms. Hodgen was called as a State witness. She testified that she was acting alone when she delivered cocaine to the informant on July 18, 20, and 25, which resulted in Mr. Lopez's charges under counts 1, 2, and 3. Ms. Hodgen denied delivering cocaine to the informant on July 26 (Mr. Lopez's count 4), 27 (uncharged), and 31 (Mr. Lopez's count 5). She also testified that, although she was charged similarly to Mr. Lopez, she was permitted to plead guilty only to charges related to her conduct on July 18, 20, and 25, and not to any charges related to her conduct on any other date.
Ms. Hodgen testified that Mr. Lopez never supplied drugs to her. She identified two other individuals as the source of the cocaine she provided to the informant. Ms. Hodgen admitted that she told police conflicting stories upon her arrest. Initially, she told police that Mr. Lopez was not involved. But when they told her she would not immediately go to jail if she identified Mr. Lopez as her supplier, she gave them such a statement and she was allowed to go home that day. In a later interview, Ms. Hodgen stated that Mr. Lopez was not involved and she had lied to police in order to be released.
School Transportation Director Steve Olsen testified that 244 East Poplar, the Hodgen/Lopez residence, was located within a 1,000-foot radius of the school bus route stop at 121 East Birch. The measurements were taken from a map with the aid of a computer program that measured 815 feet from the front of the residence at 244 East Poplar to the front of the school bus route stop at 121 East Birch.
Defense counsel took exceptions to the instructions and the special verdict concerning the school bus route stop enhancement because the court did not instruct the jury regarding the method of measuring the 1,000-foot distance. The defense also argued that the evidence was insufficient to instruct the jury on any school bus route stop enhancements. The court ruled that the evidence was sufficient but did not include a measurement methodology instruction.
The defense also objected to the special verdict for a major VUCSA under RCW 9.94A.535(3)(e)(i). Defense counsel argued that the State provided insufficient notice of its intention to seek the enhancement and the verdict form was inadequate for the jury to make a finding. The court ruled that the notice and verdict form were each sufficient under the statute.
During deliberation, the jury inquired as to how it should measure the 1,000-foot distance for the school bus route stop enhancement — whether it should consider the distance "`as the crow flys [sic],'" a radius, or the distance along the street. Clerk's Papers (CP) at 102. The court responded: "The `1,000 feet' is measured as the radius of a circle emanating from the location of a designated school bus stop." CP at 102. The court rejected the defense argument that the belated instruction afforded the defense no opportunity to argue to the jury that the State had not met its burden under the facts as applied to the new definition.
The jury found Mr. Lopez not guilty of counts 1 and 2 and guilty of counts 3 through 5. The jury decided in the special verdict that Mr. Lopez or a "co-defendant" delivered cocaine within 1,000 feet of a school bus route stop in counts 3 through 5. CP at 106-07.
The court then asked the jury to consider the special verdict for a major VUCSA under RCW 9.94A.535(3)(e)(i). After argument was heard, the jury returned the special verdict finding a major VUCSA. Before sentencing, the State again gave notice of its intention to seek an exceptional sentence based on unpunished offenses.
Mr. Lopez was sentenced on December 3, 2007. The court imposed an exceptional sentence on two bases: (1) as a consequence of Mr. Lopez's 11 prior convictions, his offender score was 9 even before 3 points were added for current offenses, which resulted in a total offender score of 12 and left some crimes unpunished; and (2) the jury's special verdict for a major VUCSA under RCW 9.94A.535(3)(e)(i). Mr. Lopez's standard sentence range was 84-120 months. The court imposed 84 months on each count to be served consecutively, for a total sentence of 252 months. This timely appeal followed.
DISCUSSION a. Evidentiary issues
A trial court's evidentiary rulings are reviewed for abuse of discretion. State v. Davis, 141 Wn.2d 798, 841, 10 P.3d 977 (2000).
According to ER 801(d)(2)(v), "[a] statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Mr. Lopez contends that some of the informant's statements were improperly admitted under ER 801(d)(2). He argues that he did not receive notice that the State intended to rely on the rule for the admission of the statements and the State did not provide the proper foundation to invoke the rule.
Before invoking ER 801(d)(2)(v), the court must decide, by a preponderance of the evidence, that evidence other than hearsay statements show the defendant was a member of a conspiracy. State v. Guloy, 104 Wn.2d 412, 420, 705 P.2d 1182 (1985). To establish a conspiracy under the rule, the State need only show "`an agreement . . . made by two or more persons confederating to do an unlawful act.'" State v. Halley, 77 Wn. App. 149, 154, 890 P.2d 511 (1995) (alteration in original) (quoting Webster's Third New International Dictionary 485 (1969)). Here, the evidence was sufficient.
When the defense made its objection, the informant had already testified without objection as to facts that support a conspiracy. The informant completed a drug deal with Ms. Hodgen that he set up with Mr. Lopez on July 18, 2007. Ms. Hodgen was able to complete a drug transaction with the informant on July 20, only after Mr. Lopez arrived and she spent some time alone with him in the house. The transaction of July 25 was completed only after Mr. Lopez arrived and was alone with Ms. Hodgen in the kitchen. The evidence showed that a number of the transactions were stalled until Ms. Hodgen was alone with Mr. Lopez. A conspiracy was proven by a preponderance of the evidence.
Although Mr. Lopez was not ultimately convicted of crimes relating to this conduct as charged in counts 1 and 2 under the beyond-a-reasonable-doubt standard, a conspiracy under the evidentiary standard is the lower preponderance standard.
Notice was also adequate in this case. When an accused is charged with a crime, which was committed in the promotion of the conspiracy to commit a different crime, the admission of evidence of the conspiracy may violate the due process right of the accused to know the charge the accused must defend against. State v. Dictado, 102 Wn.2d 277, 284-86, 687 P.2d 172 (1984).
In Dictado, the State charged the defendant with aggravated first degree murder, relying on the aggravating factor of the killing of more than one victim as part of "`a common scheme or plan or the result of a single act of the person.'" Id. at 285 (quoting former RCW 10.95.020(8) (1981)). The court determined that notice was adequate because the defendant was charged as an accomplice to first degree murders committed in the furtherance of the defendant's preconceived gambling scheme. The information gave notice that the State would be seeking to prove that multiple victims were killed to advance the common gambling scheme. Further, the State's theory was not concealed from the defendant — he knew that deaths resulted from the actions of two previously convicted defendants and that the State sought to prove his participation as an accomplice to the killings. Id. at 285-86.
As in Dictado, Mr. Lopez was charged in the information as an accomplice to Ms. Hodgen. Further, Mr. Lopez does not assert that the discovery indicated anything other than the conspiratorial acts and communications to which the informant testified. Mr. Lopez's due process rights were not violated by lack of notice.
Mr. Lopez also contends that the drug dog sniff of the cash was unfairly prejudicial, an improper use of evidence, and not relevant. ER 402, 403, 404(b). The State correctly points out that the evidence was relevant to the conspiracy charge in count 6.
b. Exceptional sentence
Mr. Lopez next challenges his exceptional sentence for a major VUCSA. Review of Mr. Lopez's contentions requires interpretation of the exceptional sentence statutes. This is an issue of law reviewed de novo. State v. Bright, 129 Wn.2d 257, 265, 916 P.2d 922 (1996).
The legislature set forth certain aggravating circumstances as criteria for an exceptional sentence, the facts for which are to be determined by procedures specified in RCW 9.94A.537. RCW 9.94A.535. The State must provide pretrial notice that an exceptional sentence will be sought and identify which aggravating circumstances it will seek to prove. RCW 9.94A.537(1). The facts to support aggravating circumstances such as RCW 9.94A.535(3)(e)(i) must be (1) proved to a jury beyond a reasonable doubt, (2) upon evidence presented during the trial of the crime alleged, (3) unanimous, and (4) by special interrogatory. RCW 9.94A.537(3), (4). Such aggravating circumstances include, as Mr. Lopez was charged here:
The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:
(i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so.
Mr. Lopez contends that the State was required to give notice of and prove, and the jury was required to find three components: (1) his offense "was a major violation of the Uniform Controlled Substances Act"; (2) it "was more onerous than the typical offense of its statutory definition"; and (3) it "involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so." RCW 9.94A.535(3)(e)(i). Relying on State v. Hrycenko, 85 Wn. App. 543, 933 P.2d 435 (1997), abrogated by State v. Gonzales Flores, 164 Wn.2d 1, 186 P.3d 1038 (2008), the State disagrees. Hrycenko held that the statutory phrase "more onerous than the typical offense," as used in RCW 9.94A.535(3)(e), is not an additional element, but rather it is a restatement of the requirement of a "`major violation.'" Hrycenko, 85 Wn. App. at 548. The Washington State Supreme Court agrees with Mr. Lopez's construction. Gonzales Flores, 164 Wn.2d at 22.
Mr. Lopez argues that he was not given notice, as required by RCW 9.94A.537(1), that the State would seek to prove that his offense was a major VUCSA and that his offense was more onerous than the typical offense. The notice, conveyed in the form of a pleading, states:
Counts 1-6 of the Information were aggravated by the following one or more circumstances: (1) the current offense(s) involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; and/or (2) the circumstances of the current offense(s) reveal the offender to have occupied a high position in the drug distribution hierarchy; and/or (3) the current offense(s) involved a high degree of sophistication or planning, as provided in RCW 9.94A.535(3)(e)(i) and/or (iv) and/or (v); and/or (4) the defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished, as provided in RCW 9.94A.535(2)(c).
CP at 26.
Counsel obviously received the document — he sought to compel discovery on the aggravating factors, but only as to factors (2) and (3). Then, at the hearing on discovery, counsel acknowledged that of the several bases listed as exceptional circumstances, "I thought I figured out most of them, but these two I don't have a clue as to why he would think he has evidence to present to a jury." RP at 12 (emphasis added). The court ordered the State to provide written discovery responses on the two factors. The State ultimately abandoned factors (2) and (3). The record shows that Mr. Lopez received adequate notice of the relevant aggravating factors.
Mr. Lopez next argues that the evidence was insufficient to instruct the jury on an exceptional sentence on the basis of a major VUCSA. He also alludes to the adequacy of the instruction and the sufficiency of the evidence to support the special verdict. He further argues that the verbiage of the special verdict did not give the jurors a choice in their response and did not require unanimity. Finally, he argues that the special verdict is tainted by improper remarks in the closing argument of the bifurcated issue of a major VUCSA.
The exceptional sentence, however, was ordered not only on the major VUCSA, but also for unpunished crimes. RCW 9.94A.535(2)(c) ("The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished."). The trial court found that the same sentence would be given "if only one of either of the two statutory grounds existed." CP at 220. Therefore, even if this court invalidated the major VUCSA factor, remand would not be required because the record clearly indicates the court would have imposed the same sentence absent the factor. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003). Because this court cannot provide relief to Mr. Lopez, his challenge to the major VUCSA is moot. State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983).
c. School bus route stop enhancement
Next, Mr. Lopez asserts that, although the trial court's response to the mid-deliberation inquiry concerning the measurement of the 1,000-foot distance for the school bus route stop enhancement is a correct statement of the law, the late submission of the instruction prohibited the defense from arguing the evidence that showed that the delivery did not occur within 1,000 feet of this radius.
CrR 6.15(f) provides the procedure for jury inquiries and the court's response during deliberation. It is within the court's discretion whether to provide additional instructions on the law in response to an inquiry from a deliberating jury. State v. Becklin, 163 Wn.2d 519, 529, 182 P.3d 944 (2008).
During deliberation in this case, the jury made an inquiry regarding the manner in which the 1,000-foot distance should be measured. The trial court answered, over a defense objection, that the distance is measured "as the radius of a circle emanating from the location of a designated school bus stop." CP at 102. The defense's objection related to counsel's inability to argue the facts against this new definition to the jury.
The record shows, however, the defense pointed out in its closing that the State presented evidence of a measurement of 815 feet taken from somewhere in the middle of Birch Street to somewhere in the middle of 244 East Poplar. The defense argued that the measurement was not helpful because the State did not show that it was 1,000 feet between the actual school bus route stop to the actual place of the crime. Thus, the defense did in fact argue the evidence to the jury in relation to the measurement standards set forth in the court's new definition. Further, the new definition was the one the defense wished the court to provide in the first instance when it excepted to the court's instructions for not providing a measurement standard instruction. We are not persuaded an error occurred.
d. Statement of additional grounds for review
In his statement of additional grounds, Mr. Lopez contends that surplusage in the court's findings of fact and conclusions of law is not supported by the record.
The court's findings of fact are prefaced by the following: "Based on the defendant's criminal history, the presumptive sentence is clearly too lenient in light of the purposes expressed in RCW 9.94A.010 and 9.94A.535(2)(c)." CP at 218. This is an erroneous statement that incorporated elements of the former statute. Former RCW 9.94A.535(2)(i) (2003) ("The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010."). In response to Blakely , the legislature omitted the "clearly too lenient" language from the free-crimes statute, which is the statute under which Mr. Lopez's exceptional sentence is based. Laws of 2005, ch. 68, § 3. The erroneous surplusage does not affect Mr. Lopez's exceptional sentence.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Mr. Lopez also contends that the court erred in overruling the defense objection to permitting the jury to hear only a portion of Ms. Hodgen's taped statement, rather than the statement in its entirety. The record shows that the taped portion was used to correct a typographical error in the transcript of the taped statement, which was already before the jury as it was used for impeachment purposes in Ms. Hodgen's testimony. The trial judge noted that playing the portion of the tape was the best way to correct the mistake without commenting on the evidence. This decision was a proper exercise of the judge's discretion. See Davis, 141 Wn.2d at 841.
Next, Mr. Lopez contends that the exceptional sentence is clearly excessive in light of the conduct for which he was accused and convicted. We disagree and find that the exceptional sentence was within the court's discretion. State v. Fowler, 145 Wn.2d 400, 405-06, 38 P.3d 335 (2002).
Mr. Lopez then contends that trial counsel's failure to seek an exceptional sentence downward constituted ineffective assistance of counsel. To show ineffective assistance of counsel, Mr. Lopez has to show (1) counsel's performance was deficient and (2) the deficient performance prejudiced him. State v. Davis, 119 Wn.2d 657, 664-65, 835 P.2d 1039 (1992); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Even if defense counsel's failure constituted deficient performance, Mr. Lopez cannot show the requisite prejudice. RCW 9.94A.535 permits a sentencing court to consider a downward departure from the standard range sentence, but it does not mandate one. See State v. Hernandez-Hernandez, 104 Wn. App. 263, 266, 15 P.3d 719 (2001). The court had discretion to impose an exceptional sentence downward with or without counsel's request. It did not. To the contrary, the trial court held that an upward exceptional sentence was warranted. Mr. Lopez did not receive ineffective assistance of counsel.
Finally, Mr. Lopez argues that he was prejudiced by cumulative error. He relies heavily on a statement made by the trial judge at sentencing: "I looked at the history. What I've done, again, this is probably going to have more grounds for appeals than one we have had in a long time. And I don't need to add to that, so I scratched out the Idaho one." RP at 586-87. This does not show an acknowledgement of cumulative error, but simply an expression of close issues.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and KORSMO, J., concur.