FILED
MAR 19,2013
In the Office ofthe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30547-3-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ALFRED GALINDO JR., )
)
Appellant. )
KORSMO, C.J. -The trial 'court denied Alfred Galindo's request for an
exceptional sentence. He has not identified any failures by the trial court that would
justify review of his standard range sentence, so we affirm.
FACTS
This is the second appeal brought by Mr. Galindo following his convictions on
three counts of first degree assault. In the first appeal, we described the incident:
This case arises from a practical joke gone horribly wrong. Mr.
Galindo received text messages and telephone calls from his girl friend,
Kimberly Brown, and her friends, indicating that Ms. Brown had been
kidnapped by people to whom Mr. Galindo owed money. Mr. Galindo,
driving a large sports utility vehicle (SUV), went looking for Ms. Brown
and her alleged captors.
No.30S47-3-III
State v. Galindo
He circled a Safeway parking lot. His driving scared the three
occupants of a small compact car-two bible students and a woman they
were counseling. The car drove off at the approach of the SUV and Mr.
Galindo pursued it in the apparent belief that it might contain Ms. Brown.
He repeatedly rammed the vehicle in the rear and also pointed a realistic
looking toy gun out the window and yelled at the driver to stop. The car
eventually evaded Mr. Galindo.
Several people, including the driver of the victimized car, identified
Mr. Galindo in a photo montage. Mr. Galindo was charged with three
counts of first degree assault. He testified at trial that he had been the
driver who rammed the car, but did not intend to hurt anyone because he
was trying to save his girl friend.
State v. Galindo, noted at 160 Wn. App. 1033, slip op. at 1-2 (2011).
Although the defense argued for fourth degree assault verdicts, the jury found Mr.
Galindo guilty on three charges of first degree assault. Id. at 2. The trial court imposed
an exceptional sentence based on Mr. Galindo's chemical dependency and the fact that
the three victims were injured by a single violent act, but did not file written findings of
fact. Id. at 2-3. This court reversed the exceptional sentence, finding that the record did
not support the stated bases. Id. at 9-13. We suggested that the exceptional sentence
might have been justified based on the harm to the victims being less egregious than
typical, but the lack of findings left us unclear on the trial court's rationale. The court
was free to consider an exceptional sentence on remand. Id. at 13.
At the resentencing, Mr. Galindo urged an exceptional sentence on the basis
suggested by our previous opinion that the victims had suffered less injury than typical
. for the offense. The trial court disagreed with that rationale and stated that its original
2
No. 30547-3-111
State v. Galindo
exceptional sentence had been based on the multiple offense policy, an argument this
court rejected in the first appeal. The trial court did not believe that the injury to the
victims was less egregious than typical. The court imposed a standard range sentence of
324 months, consisting ofthree consecutive low-end sentences in accordance with the
sentencing requirements for multiple serious violent offenses. See RCW
9.94A.589(l )(b).
Mr. Galindo again appealed to this court.
ANALYSIS
Mr. Galindo argues that the court erred by not imposing an exceptional sentence.
We disagree.
An exceptional sentence may be imposed if the trial court finds "substantial and
compelling" reasons to go outside the standard range. RCW 9.94A.535. However, the
general rule is that a standard range sentence cannot be appealed. State v. Friederich-
Tibbets, 123 Wn.2d 250, 252,866 P.2d 1257 (1994). A standard range sentence can only
be challenged on the basis that the court refused to exercise discretion or relied on an
improper basis for declining to consider the request. State v. Garcia-Martinez, 88 Wn.
App. 322, 330, 944 P.2d 1104 (1997). In such circumstances, it is the court's refusal to
exercise discretion that is appealable rather than the sentence itself. Id. "Conversely, a
trial court that has considered the facts and has concluded that there is no basis for an
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No. 30547-3-111
State v. Galindo
exceptional sentence has exercised its discretion, and the defendant may not appeal that
ruling." Id.
This case finds itself in that same situation. The trial court considered the basis for
an exceptional sentence suggested by this court and urged by Mr. Galindo-comparative
lack of harm to the victims-and declined to find that was the situation. That
determination is the end of the story. The trial court considered the factual circumstances
and determined that the case was not an atypical first degree assault case. The court
exercised its discretion and decided that a low-end standard range sentence was
appropriate. There simply is no basis for appeal. Id.
Mr. Galindo also urges that the trial court overlooked the "failed defenses"
mitigating factor. RCW 9.94A.535(1)(c)-(e); State v. Jeannotte, 133 Wn.2d 847,851-52,
947 P.2d 1192 (1997). That argument fails for two reasons. First, Mr. Galindo has never
argued-at either sentencing hearing-that the mitigating factor applied to this case. A
trial judge cannot abuse discretion she was not asked to exercise. Second, the veteran
trial judge has twice canvassed the record without citing this argument as a potential basis
for imposing an exceptional sentence. Given the circumstances, the trial court apparently
did not believe this factor-which is applied in the context of the defendant's diminished
ability to conform to the law-was implicated in this case. We agree with that apparent
assessment. A mistaken view of the facts is not an inability to conform to the law.
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No.30547-3-III
State v. Galindo
The trial court was aware of its discretionary authority and declined to grant an
exceptional sentence at the resentencing. There was no error.
Affinned.
A majority of the panel has determined 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.
~I Korsmo, C.J.
WE CONCUR:
Brown, J.
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State of Washington v. Alfred Galindo, Jr.
Combined Opinion