t'-MU uLi C I f li i w-
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 73198-0-
Respondent,
v.
A.D.B.,d.o.b. 10/14/98 UNPUBLISHED OPINION
Appellant. FILED: September 21,2015
Verellen, A.C.J. — A.B. appeals from a standard range disposition after he
pleaded guilty to three felony charges. He contends that the juvenile court erred when it
applied the Sentencing Reform Act of 1981 (SRA)1 same criminal conduct test in
determining that his prior adjudications for possession of a stolen laptop and possession
of a controlled substance did not arise out of the same course of conduct under the
Juvenile Justice Act of 1977 (JJA).2 A.B. also argues that the court failed to exercise its
discretion when it categorically refused to consider his request for a manifest injustice
disposition below the standard range.
In State v. Contreras, our Supreme Court concluded that the test for the same
criminal conduct under the SRA governs the analysis of the same course of conduct
under the JJA.3 Two offenses encompass the same criminal conduct under the SRA
1 Ch. 9.94A RCW.
2Ch. 13.40 RCW.
3124Wn.2d741,880P.2d 1000(1994).
No. 73198-0-1/2
only if they involve the same victim.4 Because A.B.'s prior adjudications did not involve
the same victim, his argument fails. Furthermore, because the court expressly
considered A.B.'s cognitive impairments and other mitigating factors in its determination
that a downward exceptional sentence was not warranted, we conclude that the
standard range disposition was neither a failure to exercise discretion nor an abuse of
discretion. Accordingly, we affirm.
FACTS
Around 8:00 p.m. on April 2, 2014, then 15-year-old A.B. and a group of
approximately nine other teenagers surrounded three foreign exchange students
leaving Northgate Mall.5 In view of security cameras, one member of the group
brandished a knife and robbed one of the students while A.B. violently shoved another
student who was attempting to stop the robbery. After the student being robbed
relinquished his iPhone, A.B. again confronted the student he shoved and repeatedly
attempted to punch him in the head. The students were able to escape, but were
followed by A.B. and the group to Northgate Transit Center, where one of the students
called 911. A.B. and the group eventually fled to escape from responding police
officers.
Around 10:00 that same evening, A.B. and four of the group members walked
past a teenager who was using an iPad while waiting for a bus. One of the group
4RCW9.94A.589(1)(a).
5A.B. stipulated as part of his guilty pleas that the juvenile court could use the
certifications for determination of probable cause to find a factual basis for his pleas. The
facts are drawn from those certifications.
No. 73198-0-1/3
members stole the iPad and fled. The teenager chased him. Again in view of security
cameras, A.B. and two of the group members ran after the teenager and pushed him to
the ground. They repeatedly punched and kicked him, causing swelling, contusions,
and bleeding to the teenager's face, head, and hand. Afterwards, A.B. and the group
members boarded a bus, where a fellow passenger who had witnessed the iPad
robbery and heard the group bragging about it on the bus notified the driver. The police
arrived and A.B. and the group were taken into custody.
The State charged A.B. with two counts of robbery in the second degree and one
count of attempted robbery in the first degree. A.B. pleaded guilty to the charges. At
his disposition hearing, A.B. asked the juvenile court to find that a prior felony
adjudication for possession of a controlled substance and a prior misdemeanor
adjudication for possession of stolen property in the third degree arose out of the same
course of conduct under the JJA. Such a finding would have resulted in a rounding
down of A.B.'s offender score from 2 to 1 and consequently, a reduction in his standard
range sentence.6
The juvenile court found that the test for same course of conduct under the JJA,
was the same as the test for same criminal conduct under the SRA, ruling:
Therefore, all the elements under 9.94A.589 must be met. And that
does require that there be a finding that [they] occurred at the same time,
with the same intent, with identical victims. The victims here are not the
same. [Possession of a controlled substance] is a drug offense which
violates the laws of the community at large, and was charged as such.
The [possession of stolen property] is for possession of [a] laptop. The
6 A.B.'s prior history included three other misdemeanors, each counting .25 points
towards his offender score.
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court will not reduce the number of points. The points remain at 2,
standard range of 52 to 65 [weeks] in each of the counts.171
Following the court's ruling, A.B. asked the juvenile court to instead impose a
downward disposition of 15 to 36 weeks because the standard range disposition would
effectuate a manifest injustice. Additionally, he asked that the court construct an
alternative disposition whereby A.B. would serve his time in treatment in the community
rather than in a Juvenile Rehabilitation Administration (JRA) facility.
A.B. acknowledged that he was asking for the equivalent of an "Option B" or
"Option C" disposition,8 for both of which he was statutorily ineligible, but he argued
that the court had authority to construct such a disposition as a manifest injustice
downward sentence because his cognitive and mental health issues significantly
reduced his culpability for the offenses, a statutory mitigating factor.9 A.B. also argued
that "[t]he respondent's conduct neither caused nor threatened serious bodily injury or
the respondent did not contemplate that his or her conduct would cause or threaten
serious bodily injury," another statutory mitigating factor, applied because he "did not
cause an injury."10 Lastly, he argued that nonstatutory mitigating factors, including
substance abuse and a lack of any meaningful adult supervision in recent years,
justified a manifest injustice disposition below the standard range.
7 Report of Proceedings (RP) (Jan. 9, 2015) at 31.
8 RCW 13.40.0357.
9 See RCW 13.40.150(3)(h)(iii) (addressing factors to be considered prior to entry of
dispositional order, including the mitigating factor that "[t]he respondent was suffering from
a mental or physical condition that significantly reduced his or her culpability for the
offense though failing to establish a defense").
10 Clerk's Papers at 54.
No. 73198-0-1/5
The juvenile court acknowledged that it had discretion to impose such a
disposition and found that "the record does clearly show cognitive mental health
challenges, as well as a history of substance abuse."11 But the court expressed
concern for community safety in light of the seriousness of A.B.'s crimes and
determined that he would "remain a risk to the community until he receive[d] some
modicum of services."12 It concluded that a standard range disposition of 52 to 65
weeks at a JRA facility would not effectuate a manifest injustice and would instead
appropriately rehabilitate A.B. and allow him to successfully transition back into the
community.
A.B. appeals.
ANALYSIS
A.B. argues that the juvenile court erred when it applied the SRA same criminal
conduct test to determine that his prior offenses for the possession of a stolen laptop
and possession of a controlled substance involved different victims and therefore did
not arise out of the same course of conduct under the JJA. We find his argument
unpersuasive.
The interpretation of a statutory provision is a question of lawthat this court
reviews de novo.13 The JJA provides that "when a juvenile 'is convicted of two or more
charges arising out of the same course of conduct, only the highest charge from among
these shall count as an offense'" for purposes of calculating the juvenile's criminal
11 RP(Jan. 9, 2015) at 48.
12 \± at 49.
13 State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
No. 73198-0-1/6
history score.14 But the legislature did not define "same course of conduct" and the
phrase is not used elsewhere in the JJA or the SRA.15
However, the SRA does contain a similar provision. RCW 9.94A.589(1)(a)
provides that "if the court enters a finding that some or all of the current offenses
encompass the same criminal conduct then those current offenses shall be counted as
one crime." RCW 9.94A.589(1)(a) defines "same criminal conduct" as "two or more
crimes that require the same criminal intent, are committed at the same time and place,
and involve the same victim."
In State v. Contreras, our Supreme Court analyzed the SRA's same criminal
conduct provision and the JJA's same course of conduct provision in the context of
construing the meaning of the phrase "single act" as used in a provision of the JJA that
limited juvenile sentences for multiple crimes to 150 percent of the most serious offense
when the offenses were committed "through a single act or omission."16 The court
reasoned that a single act should be consistent with the same course of conduct
provision of the JJA, which in turn should not be read more narrowly than the SRA's
definition of "same criminal conduct." The court expressly concluded that "[d]espite
differences in terminology, the tests for determining whether the phrases 'same course
of conduct' used in the [JJA] and 'same criminal conduct' used in the SRA are
essentially the same."17
14 Contreras. 124 Wn.2d at 746 (quoting former RCW 13.40.020(8)(a) (1977)).
15 Id
16 Id, at 743-48.
17 Id. at 748.
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A.B. contends that this portion of the Contreras analysis is merely dicta. "'A
statement is dicta when it is not necessary to the court's decision in a case' and as such
is not binding authority."18 Because that analysis was integral in arriving at the court's
ultimate holding, we conclude that it was not dicta.
Next, relying on a concurring opinion in State v. Haddock, A.B. argues that his
prior offenses meet the SRA's definition "same criminal conduct" because "the public at
large was likewise 'victimized' by [his] illegal possession of someone else's property."19
Because the majority in Haddock expressly rejected that proposition, we find no merit in
his argument.20
A determination of same criminal conduct will not be disturbed absent an abuse
of discretion or misapplication of the law.21 For purposes of a same criminal conduct
analysis, the victim of a possession of stolen property offense is the rightful owner of the
property,22 whereas the victim of an unlawful possession of a controlled substance
offense is the general public.23 Here, the victim of A.B's stolen property offense was the
laptop's rightful owner, while the general public was the victim of his controlled
18 Gabelein v. Diking Dist. No. 1 of Island County, 182 Wn. App. 217, 239, 328
P.3d 1008 (2014) (quoting Protect the Peninsula's Future v. City of Port Angeles, 175
Wn. App. 201, 215, 304 P.3d 914 (2013)).
19 Appellant's Br. at 12.
20 Haddock, 141 Wn.2d at 111 ("While we recognize that all crimes victimize the
public in a general sense, we are satisfied that these crimes directly inflicted specific injury
on individuals.").
21 State v. Graciano. 176 Wn.2d 531, 536, 295 P.3d 219 (2013).
22 Haddock, 141 Wn.2d at 111 (victims of possession of stolen firearm counts were
the owners of the firearms).
23 Id. at 110-11: see also State v. Porter, 133Wn.2d 177, 181, 942 P.2d 974
(1997); State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993).
No. 73198-0-1/8
substance offense. Because the victims were not the same, the court's determination
that A.B.'s prior offenses did not encompass the same course of conduct was not an
abuse of discretion or a misapplication of the law.
Lastly, A.B. contends that the juvenile court failed to exercise its discretion
because it categorically refused to consider his request for a manifest injustice
disposition below the standard range. We disagree.
A "juvenile court may enter a manifest injustice finding and impose a downward
exceptional disposition where the juvenile court finds by clear and convincing evidence
that a standard range disposition would be detrimental to the goal of rehabilitating the
juvenile offender, and such a disposition would not endanger the public."24 A juvenile
court's determination that a standard range disposition would effectuate a manifest
injustice is reviewed for an abuse of discretion.25
Here, the juvenile court found that "the record does clearly show cognitive
mental health challenges, as well as a history of substance abuse."26 But expressly
recognizing its discretion in imposing a downward exceptional disposition, the court
determined:
And I looked closely at the issues that [A.B.] faces, and they simply—
they're horribly unfortunate, they're extremely challenging, but they're not
exceptional. They are what this court deals with every day.
And the question really is, where will he and the community most
benefit? I do have concerns about community safety. These are
extremely serious crimes. . . .
24 State v.K.E., 97 Wn. App. 273, 282-83, 982 P.2d 1212 (1999).
25 State v. Sledge, 133 Wn.2d 828, 844, 947 P.2d 1199 (1997).
26RP(Jan. 9, 2015) at 48.
8
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I have a different perspective on JRA then perhaps counsel does.
And that is that there's always a risk of institutionalization. And I will not
be naive enough to say that that cannot occur. But I've also seen youth
turn around. [A.B.] is in need of services. And is he going to be
sufficiently stabilized and supported in the community that those services
are going to be pursued, and that he does not remain a risk to the
community prior to his receiving services, and I don't think he does.
I think that he does remain a risk to the community until he receives
some modicum of services. JRA is set up so at the time that it believes
that a youth has been sufficiently rehabilitated, that they will be
transitioned to a group home, and will receive services in the community.
And that's the judgment that they make after a youth has been there for a
certain period of time and has shown receptiveness and responsiveness
to services.[27]
The record demonstrates that the court's observation that A.B.'s cognitive
impairment and substance abuse issues were common among juvenile defendants was
not a categorical refusal to consider his request for a manifest injustice disposition
downward. Rather, it was an appropriate component of its ultimate determination that a
downward exceptional sentence was not warranted. Having focused its analysis upon
where A.B. and the community would most benefit, the court addressed its concerns for
the public's safety given the seriousness of A.B.'s crimes and concluded that he would
remain a risk to society until he received effective treatment. Thus, the court made an
individualized determination that a standard range sentence at a juvenile facility would
best provide A.B. treatment and would allow him to successfully transition back into the
community.
We note that our Supreme Court recently held that a defendant's youthfulness,
including the science supporting youthful impaired cognitive ability, can be a possible
mitigating factor justifying an exceptional adult sentence below the standard sentence
27
Id. at 49-50 (emphasis added).
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range.28 The court here reviewed and expressly considered A.B.'s cognitive
impairments and other mitigating factors before focusing on the question of what was
best for A.B. and for the community. We conclude that the court properly exercised its
discretion in imposing a standard range disposition.
We affirm.
WE CONCUR:
28 State v. O'Dell, No. 90337-9, 2015 WL 4760476, at *9 (Wash. Aug. 13, 2015).
10