Opinion
No. 53953-1-I
Filed: June 6, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No. 03-1-01638-4. Judgment or order under review. Date filed: 03/18/2004. Judge signing: Hon. David a Nichols.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
The State charged Felipe Villarreal with assault in the second degree and alleged that he recklessly inflicted substantial bodily harm on his estranged girlfriend, Renee Williams. RCW 9A.04.110(4)(b) defines substantial bodily harm as `bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ[.]' At trial, the State presented evidence that Villarreal punched and choked Williams and produced photographs showing bruises, red marks, and a burst blood vessel in her eye. The jury convicted him.
The State and Villarreal's counsel submitted an agreed recommendation for sentencing. The recommendation included a federal conviction for conspiracy to import marijuana as one of his prior crimes. Villarreal's counsel did not challenge the inclusion of this crime. The court assigned Villarreal an offender score of 3. The court sentenced Villarreal to 15 months in prison; the standard range was 13 to 17 months. Villarreal appeals his conviction on the grounds of insufficiency of the evidence to support a finding of substantial bodily harm. Villarreal also makes an ineffective assistance of counsel claim concerning his sentence on the ground that his counsel should not have agreed to the inclusion of a foreign conviction in his criminal history.
We affirm the conviction, as testimony about the choking and punching and the photographs constitute sufficient evidence that Williams suffered a temporary but substantial disfigurement. We also affirm the 15-month sentence, as this court cannot determine from the record whether Villarreal's counsel analyzed the comparability of Villarreal's federal conviction to Washington's counterpart or whether a failure to make a comparability analysis would have prejudiced Villarreal. We also reject Villarreal's related argument that the inclusion of the foreign conviction in his criminal history violates his Sixth Amendment right to a jury trial on all elements that increases his sentence beyond the statutory maximum, because Villarreal's counsel agreed to the inclusion of the foreign conviction and therefore eliminated any dispute about the conviction.
FACTS
In December 2003, Felipe Villarreal attacked his estranged girlfriend, Renee Williams, in her apartment. The police went to Williams' apartment in response to her 911 telephone call and arrested him. The State charged him with assault in the second degree. The State's information alleged that Villarreal recklessly inflicted substantial bodily harm on Williams in violation of RCW 9A.36.021(1)(a).
Williams described the attack during the State's case in chief. According to Williams' testimony, Villarreal came to her apartment drunk. He punched her in the face and grabbed her. He then choked her with his left hand on her throat. He tried repeatedly to punch her with his right hand, but his swings did not connect. The younger son of Villarreal and Williams woke up and cried. Villarreal went to comfort him. Williams made a 911 telephone call. Their other son woke up, and Williams began to go to him. Villarreal grabbed her, and she found herself on the linoleum floor of her kitchen with Villarreal's thumb in her mouth. Villarreal choked her with his right hand, although not as strongly as before. Williams pleaded with Villarreal to stop, and he did. He tried to leave the apartment through the front door, but was stopped by the police.
The State also introduced into evidence photographs taken of Williams immediately after Villarreal's arrest and three days after the arrest. The photographs taken immediately after the arrest showed a bruise on Williams' jaw and red marks on her neck made by a necklace while being choked. The photographs taken three days after the arrest showed a bruise on Williams' cheek, a burst blood vessel in her eye, and a bruise on the back of her neck. Williams testified that she did not have the bruises or the red eye before the attack and nothing happened after the attack to cause them.
The jury found Villarreal guilty of assault in the second degree. The State and Villarreal's counsel presented an agreed recommendation for sentencing to the court. The agreed recommendation included a prior federal conviction for conspiracy to import marijuana in the criminal history used to calculate Villarreal's offender score. Villarreal's attorney did not object to the inclusion of the prior federal conviction. The court record does not indicate the federal statutory provision under which he was convicted, and it does not contain any part of the court record for the conviction. The court assigned Villarreal an offender score of 3 and sentenced him within the standard range. Villarreal appeals.
ANALYSIS
We begin by analyzing Villarreal's argument that the trial court lacked sufficient evidence to convict him for second degree assault. `A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree[,] intentionally assaults another and thereby recklessly inflicts substantial bodily harm[.]' RCW 9A.36.021(1)(a). "`Substantial bodily harm' means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.' RCW 9A.04.110(4)(b). In an analysis of the sufficiency of the evidence for a conviction, `the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).
Villarreal contends that Williams' testimony about his violence against her and the photographs of Williams' bruises, red marks, and the burst blood vessel in her eye do not constitute sufficient evidence to support a finding of substantial bodily injury. But the decision in State v. Ashcraft, 71 Wn. App. 444, 859 P.2d 60 (1993), indicates that bruises can be sufficient evidence of substantial bodily harm. The defendant in Ashcraft, like Villarreal, appealed her conviction for assault in the second degree on the ground that the evidence was insufficient to prove substantial bodily harm. Ashcraft, 71 Wn. App. at 454-55. At trial, a physician who examined the defendant's child testified that the child had bruises, some of them more than three days old. Ashcraft, 71 Wn. App. at 448-49. The physician also testified that some bruise marks were consistent with being hit by a shoe with a rigid sole. Ashcraft, 71 Wn. App. at 449. The Court of Appeals ruled that the presence of the bruise marks indicated temporary but substantial disfigurement. Ashcraft, 71 Wn. App. at 455. Here, too, a rational trier of fact could find that Williams' testimony of punching and choking and the photographs of bruises, red marks, and a burst blood vessel establish temporary but substantial disfigurement and therefore establish substantial bodily injury.
Villarreal argues that State v. Dolan, 118 Wn. App. 323, 73 P.3d 1011 (2003), supports his argument. We disagree. In Dolan, the court ruled that a trial court erred in giving a jury instruction that read, `The presence of bruising and swelling can be sufficient evidence of substantial bodily harm. The bruising and swelling can constitute temporary but substantial disfigurement.' Dolan, 118 Wn. App. at 331. The Dolan court held that the trial court erred in giving the jury instruction because the instruction was immaterial to the fact-finding function of the jury and/or an improper commentary. Dolan, 118 Wn. App. at 331. But the Dolan court did not hold that bruising and swelling could never support a finding of substantial bodily harm. Instead, the issue of substantial bodily harm remains for the trier of fact to determine. For this reason, Dolan does not support Villarreal's contention that Williams' testimony about his violence and the photographs of her bruises, red marks, and burst blood vessel are insufficient as a matter of law to establish substantial bodily harm.
Villarreal also contends that fair-skinned people will more readily show bruising than people with darker skin and that the use of evidence of bruises to establish substantial bodily injury constitutes race-based action implicating constitutional guarantees of equal protection. While Villarreal cites the equal protection clauses of the United States and Washington Constitutions and one state decision that generally discusses strict scrutiny analysis, he does not cite any authority or provide any argument to support this application of equal protection guarantees to the use of evidence of bruises. Without argument or authority on an issue, we decline to address it. See RAP 10.3(a)(5).
We next analyze Villarreal's claim of ineffective assistance of counsel. Courts have interpreted the constitutional right to counsel as a guarantee of effective assistance by counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). The right to counsel attaches at every critical stage of a criminal prosecution, and sentencing is such a stage. State v. Bandura, 85 Wn. App. 87, 97, 931 P.2d 174 (1997). An appellate court must follow a two-part test for determining whether the assistance of counsel was ineffective. First, the defendant must show deficient performance. Strickland, 466 U.S. at 688-89; State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To show deficient performance and overcome the presumption of proper representation, `the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.' State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
Villarreal contends that his trial counsel provided deficient performance by agreeing to the use of Villarreal's conviction for the federal offense of conspiracy to import marijuana to calculate his offender score. The Sentencing Reform Act of 1981 requires that when a sentencing court determines a defendant's criminal history, it classify prior out-of-state and federal convictions according to the comparable offense definitions and sentences provided by Washington law. RCW 9.94A.525(3); State v. Ross, 152 Wn.2d 220, 229, 95 P.2d 1225 (2004). Federal conspiracy law is broader than Washington's conspiracy law in that it allows for conviction of a crime committed by a co-conspirator under a theory of vicarious liability as long as the crime was reasonably foreseeable. State v. Stein, 144 Wn.2d 236, 243-44, 27 P.3d 184 (2001) (citing the analysis of Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946)). Washington law allows for conviction of a crime committed by a co-conspirator only when the State establishes knowledge of the particular crime. Stein, 144 Wn.2d at 244-46. Villarreal contends that his trial counsel should have challenged the comparability of his federal conspiracy conviction to Washington's conspiracy law. But the record does not indicate whether Villarreal's counsel analyzed the comparability of the federal conspiracy conviction before agreeing to its inclusion in the criminal history. The record of the federal conspiracy conviction might have demonstrated that the facts found in the conviction would satisfy an analysis of comparability to Washington conspiracy law. If so, Villarreal's counsel would have no reason to dispute the inclusion of the conviction in the agreed recommendation. We therefore cannot say that Villarreal's counsel acted without legitimate strategic or tactical reason or that the counsel's performance was deficient.
"To determine whether a foreign conviction counts toward an offender score, the sentencing court first compares the elements of the crime [of which the defendant was convicted] in the out-of-state statute to those of comparable Washington statutes in effect when the crime was committed.' If the statutory formulation of the out-of-state crime did not contain one or more of the elements of the Washington crime on the date of the offense, it means that the out-of-state court or jury did not have to find each fact that must be found to convict the defendant of the essential elements of liability under the Washington counterpart crime.' State v. Bunting, 115 Wn. App. 135, 140, 61 P.2d 375 (2003) (quoting State v. Mutch, 87 Wn. App. 433, 436-37, 942 P.2d 1018 (1997)). `If the elements are not identical, it may be necessary to look into the record of the out-of-state conviction to determine whether the defendant's conduct would have violated the comparable Washington offense.' State v. Russell, 104 Wn. App. 422, 442 n. 41, 16 P.3d 664 (2001). But a defendant's acknowledgement of the comparability of a prior foreign conviction allows the sentencing court to rely on unchallenged facts and information introduced for the purposes of sentencing. Ross, 152 Wn.2d at 233.
The Sixth Amendment right to a jury trial limits this analysis to conclusive documents such as the charging document, jury instructions, or a plea agreement. In Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254, ___ L. Ed. 2d ___ (2005), five justices of the United States Supreme Court held that a sentencing court will implicate a defendant's Sixth Amendment and Fourteenth Amendment rights to a jury trial on any fact that would increase the ceiling of a potential sentence if it goes beyond conclusive documents in a prior conviction to determine the facts found in the prior conviction. Shepard, 125 S. Ct. at 1262-64. Similarly, in State v. Ortega, 120 Wn. App. 165, 84 P.3d 935 (2004), the court ruled that a sentencing court cannot look beyond the indictment, jury instructions, or judgment and verdict to determine the facts of a prior conviction without violating the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Ortega, 120 Wn. App. at 172.
The second part of the two-part test for ineffective representation by counsel is prejudice — `that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' Strickland, 466 U.S. at 687; Hendrickson, 129 Wn.2d at 78. A defendant establishes prejudice `when there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different.' State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003). In the record before us, Villarreal does not establish a reasonably probability that, but for the decision of his trial counsel to include the federal conviction for conspiracy to import marijuana, the offender score would have been different, resulting in a lower standard range.
To determine whether the trial court in the federal conspiracy conviction found facts that would constitute the same felony under Washington law, it is necessary to examine the underlying record of that conviction. When a defendant raises issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a timely personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Given that a determination of prejudice requires the underlying record, Villarreal can raise this issue only through a personal restraint petition. On the existing record, we cannot find that his trial counsel's actions prejudiced him. We therefore deny Villarreal's claim of ineffective assistance of counsel.
We next analyze Villarreal's argument that the sentencing court violated his Sixth Amendment right to a jury determination of any fact that increases a sentence beyond the statutory maximum when it used the federal conviction for conspiracy to import marijuana in its calculation of his offender score. In Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court stated, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 124 S. Ct. at 2533 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). But Villarreal agreed to the court's use of the federal conviction when his counsel included it in the agreed recommendation for sentencing. Furthermore, the courts in Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254, 1262-64, L. Ed. 2d (2005) and State v. Ortega, 120 Wn. App. 165, 172, 84 P.3d 935 (2004) have examined the application of the rule in Apprendi to determine the applicability of foreign convictions and have ruled only that the Sixth Amendment right to a jury trial prohibits sentencing courts from going beyond facts established in the prior proceedings in conclusive documents such as a charging document, jury instructions, verdicts, and plea agreements. For the reasons set forth in our analysis of Villarreal's ineffective assistance of counsel claim, his Sixth Amendment claim also fails.
In conclusion, we affirm the conviction of Villarreal for assault in the second degree, as the testimony of Williams and the photographs of bruising, red marks, and a burst blood vessel were sufficient to support a finding of substantial bodily injury. We affirm the sentence, as Villarreal has not on this record established prejudice based on ineffective assistance of counsel, nor has he established a violation of his Sixth Amendment rights.
GROSSE and COX, JJ., Concur.