State Of Washington, Respondent V Genaro Brandon Villanueva, Appellant (Majority)
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FILED COURT OF APPEALS T 01V1S f0N ?I 2014 AUG 19 J1 9 : 38 S¢ ! ,~ IN THE COURT OF APPEALS OF THE STATE OF WASHIN ON4.. \( DIVISION II ` ' No. 44911 -1 - II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION GENARO BRANDON VILLANUEVA, Appellant. BJORGEN, A. C. J. second degree theft, and A jury found Genaro Villanueva guilty of second degree burglary, forgery. He appeals his sentence, arguing that the trial court erred by including in his offender score ( 1) two New Mexico convictions that should have washed out, and ( 2) a Texas conviction that was not comparable to a Washington offense. The State concedes that the trial court erred in concluding that the Texas conviction is legally comparable to the Washington offense, and we accept that concession. We hold also that the record is insufficient for us to determine whether the Texas conviction is factually comparable to the Washington remand and offense to the trial court whether the New Mexico for resentencing. Grounds ( SAG) challenging his convictions. convictions washed out. Therefore, we Villanueva also filed a Statement of Additional 1 We reject Villanueva' s SAG claims and affirm his 2 convictions. 1 RAP 10. 10. 2 A commissioner of this court initially considered Villanueva' s appeal as a motion on the merits under RAP 18. 14 and then transferred it to a panel of judges. TON 44911 -1 - II FACTS On April 11, 2013, a jury found Villanueva guilty of second degree burglary, second degree theft, and forgery. Villanueva' s prior convictions included a 2000 Texas conviction for burglary of a habitation, a 1999 New Mexico conviction for taking a motor vehicle, a 1996 New Mexico conviction for attempted larceny, a 2004 Washington conviction for first degree burglary, and a 2004 Washington conviction for second degree theft. At sentencing, Villanueva challenged his The trial court found the 1999 offender score. New Mexico taking a motor vehicle conviction comparable to Washington' s second degree 3 taking a motor vehicle without permission, to comparable conviction Washington' comparable s attempted to Washington' s the 1996 New Mexico attempted larceny conviction first degree theft, residential burglary. 4 5 and the 2000 Texas burglary Villanueva argued that because the New Mexico convictions were comparable to Washington class C felonies, they should wash out pursuant to RCW 9. 94A. 525( 2)( c). The trial court rejected this argument, concluding that the five year period for determining when a conviction washes out does not begin until after a defendant has finished serving his community custody time and, therefore, Villanueva' s convictions did not wash out because he did not finish serving community custody until 2009. The trial court included the Texas conviction and both New Mexico convictions in Villanueva' s offender score and sentenced Villanueva to a standard range sentence. Villanueva appeals. 3 RCW 9A.56. 075. 4 RCW 9A.56. 030, RCW 9A.28. 020. 5 RCW 9A.52. 025. 2 44911 - 1 - II ANALYSIS A. Offender Score Villanueva challenges his offender score on two First, he alleges that the trial grounds. court improperly counted his prior New Mexico convictions because they had washed out. Second, he alleges that the trial court improperly counted the prior Texas conviction because it is not legally comparable to residential burglary. The State concedes that the trial court erred by concluding the Texas conviction is legally comparable to residential burglary. The record is not sufficient for us to determine whether the New Mexico convictions washed out or whether the Texas conviction is factually comparable to a Washington offense. Therefore, we remand to the trial court to calculate Villanueva' s accurate offender score and resentence Villanueva accordingly. Under RCW 9. 94A.525( 2)( c): class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement ( including full -ime residential treatment) pursuant to a felony conviction, if any, or entry of t judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction. This statute year clearly begins the five - period upon release from confinement. Therefore, the trial court erred in beginning this period when Villanueva was released from community custody. The record, however, indicates that Villanueva may have been confined for a period of time 6 in 2009, which would prevent the convictions from washing out. 6 Because the record is not During sentencing defense counsel stated: What I did, your Honor, is I called Shelton and they indicated he was released from Clallam Bay on November 27, 2006, however, there was. some DOC time, but I can' t I mean violation time, but I can' t give your Honor the specifics on that. 3 44911 - 1 - II sufficient to determine when Villanueva' s last date of release from confinement was, on remand the trial court should determine the last date of actual confinement and count Villanueva' s New Mexico convictions, if See RCW 9. 94A.525( 22) ( Prior convictions that were not appropriate. included in criminal history or in the offender. score shall be included upon any resentencing to ensure imposition of an accurate sentence). Villanueva also argues that the trial court erred by including his Texas conviction for burglary of a habitation under V.T.C. A., Penal Code § 30. 02 because the conviction is not legally comparable to residential burglary. The State concedes that the convictions are not legally comparable. We accept the State' s concession. Out -of - tate convictions for offenses shall be classified according to the comparable s definitions offense and sentences provided by Washington law." RCW 9. 94A. 525( 3). To determine legal comparability, we determine whether the elements of the foreign offense are substantially similar to the Washington 415, 158 P. 3d 580 ( 2007). vehicle. burglary offense' s elements. The Texas burglary statute' s definition of habitation includes a V.T. C. A., Penal Code § 30. 01( 1). statute State v. Thiefault, 160 Wn.2d 409, specifically excludes In contrast, the applicable Washington residential vehicles. Former RCW 9A. 52. 025( 1) ( 1989). Accordingly, the State correctly concedes that Villanueva' s prior Texas conviction for burglary of a habitation is not legally comparable to Washington' s residential burglary statute. Report of Proceedings ( RP) at 284. Defense counsel stated also: I did call the prison and my client was actually released in 2006, however, it sounds like there was some DOC time in 2009. I' m not exactly certain of that .. . RP ( May 2, 2013) at 7. 4 44911 -1 - II If a foreign statute is not legally comparable to a Washington offense, the court must determine foreign at 415. whether the have offense would factually offenses are violated the comparable comparable whether the conduct underlying the Washington statute. Thiefault, 160 Wn.2d The State also properly points out that the record is insufficient to determine whether Villanueva' s prior Texas conviction is factually comparable to Washington' s residential burglary. Therefore, remand for a resentencing hearing is appropriate. In sum, on remand for resentencing the trial court shall determine, consistently with this opinion, which of Villanueva' s prior convictions are properly included in his offender score. The court shall hold any evidentiary hearing needed to make that determination. B. SAG Villanueva raises two issues in his SAG. First, he states that one of the witnesses was under the influence of heroin while he testified at trial. However, Villanueva fails to identify any legal error resulting from this the credibility jurors who of the assertion. witness' s personally observe At best, Villanueva' s claim can be read as challenging testimony. the Credibility determinations, however, are left to the witnesses and will not be reviewed by our court. State v. Carter, 113 Wn.2d 591, 604, 781 P. 2d 1308, 789 P. 2d 306 ( 1989). Second, Villanueva asserts that he received ineffective assistance of counsel because his attorney refused to listen to his requests regarding objections and questions during cross examination. This claim rests on facts outside the record, and we do not address claims based on facts outside the record on direct appeal. State v. McFarland, 127 Wn.2d 322, 338, 899 P. 2d 1251 ( 1995). Villanueva' s SAG claims lack merit and we affirm his convictions. We remand for 5 44911 -1 - II resentencing as directed in this opinion. 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 in accordance with RCW 2. 06. 040, it is so ordered. We concur: 6
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