State Of Washington, V. F.h.b. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 81447-8-I
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
F.H.B., )
Appellant. )
)
VERELLEN, J. — After declining to adult court, F.H.B. pleaded guilty to one count
of first degree assault with a firearm enhancement. The trial court imposed an
exceptional sentence of 120 months rather than F.H.B.’s requested sentence of 115
months. F.H.B contends the sentencing court failed to meaningfully consider the
mitigating factors of youth. Because the court analyzed sentencing materials and made
findings of fact confirming it meaningfully considered the Miller1 youthfulness factors, his
challenge fails.
F.H.B also argues the court exceeded its authority by speculating about the
effect of good time on his sentence. Because the court discussed good time for the
express and limited purpose of determining whether F.H.B. would be eligible for
rehabilitation programs, the court did not exceed its authority.
Therefore, we affirm.
1 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
No. 81447-8-I/2
FACTS
On the evening of February 23, 2019, three people were sitting in a BMW parked
outside an American Legion hall while waiting to attend a quinceañera. A Honda
backed into an adjacent parking space. The BMW’s passengers recognized 15-year-
old Varrio Locos gang member F.H.B. in the Honda’s passenger seat. F.H.B. fired four
shots at the BMW, which were “clearly intended to hit [the] backseat passenger,” S.E.2
S.E. and another passenger were struck but survived.
In the month before the shooting, F.H.B. had called S.E. a “rat,” publicly
pressuring him not to testify in an upcoming murder trial of another Varrio Locos
member. F.H.B. acted “in an aggressive, violent, premeditated, or willful manner” when
he tried to kill S.E and did so without pressure from Varrio Locos members or others.3
He showed “no regard for the safety of other bystanders.”4
Also in the month before the shooting, F.H.B. had been struggling personally
because his mother and stepfather had just separated. F.H.B. had a close relationship
with them and had been working at a restaurant for several years to help with rent.
Their separation “caused a lot of anger in” F.H.B.5 and made him feel “betrayed” by his
stepfather.6
2 Clerk’s Papers (CP) at 5.
3 CP at 96.
4 Ex. 9, at 4.
5 Ex. 8, at 6.
6 CP at 97.
2
No. 81447-8-I/3
F.H.B. joined the gang in eighth grade after a close friend, who had been a Varrio
Locos member, was murdered. Being a gang member gave F.H.B. a sense of
belonging. In March of 2018, within six months of joining, F.H.B. brought a gun to
school and was expelled. He received a deferred disposition for unlawful possession of
a firearm, successfully participated in community support programs, performed well in
online school, and earned early dismissal of the deferred disposition in November of
2018. He also continued his gang affiliation, successfully hiding it from his juvenile
probation counselor, community mentors, and his mother. F.H.B. attempted to kill S.E.
two months after completing his juvenile court requirements.
After being identified by the shooting victims and arrested after a high speed
chase, F.H.B. was charged in juvenile court with first degree attempted murder with a
firearm, first degree assault with a firearm, witness tampering, second degree unlawful
possession of a firearm, and attempting to elude a pursuing police vehicle. If tried as an
adult, F.H.B. could face a standard-range sentence of 408 to 504 months.
F.H.B. agreed to plead guilty to only first degree assault with a firearm and to
waive juvenile jurisdiction and decline to adult court because he could be eligible for
rehabilitative programs and services until age 25 rather than age 21. The standard-
range sentence for first degree assault with a firearm enhancement would be 153 to 183
months.
The parties agreed an exceptional sentence was appropriate because it “takes
into account [F.H.B.’s] youthfulness at the time of the crime.”7 The State promised to
7 CP at 42.
3
No. 81447-8-I/4
recommend a 120 month sentence—60 months for the assault and 60 months for the
firearm enhancement—and F.H.B. promised to request a sentence of at least 115
months. F.H.B. requested a 115-month sentence for the “primary purpose” of “keep[ing]
him out of any adult facilities” and the additional rehabilitative benefit of letting him serve
part of his sentence in a group home.8 To be eligible for a group home, F.H.B. would
need to have his sentence reduced by good time.
The court accepted F.H.B.’s waiver of juvenile jurisdiction and entered findings of
fact to support its decision. During sentencing presentations, the court asked the
parties whether they objected to it “considering good time . . . given that the reason I’m
doing that is to figure out the best way to engage [F.H.B.] in rehabilitative programs at
juvenile or JRA.”9 F.H.B. did not object. After hearing argument, the court adopted the
State’s recommended 120-month term of confinement and entered findings of fact to
support this exceptional sentence.
F.H.B. appeals.
ANALYSIS
I. Consideration of the Mitigating Circumstances of Youth
F.H.B. contends the trial court failed to “meaningfully consider” the mitigating
circumstances of his youth because it sentenced him to 120 rather than 115 months’
incarceration. Because he is contradicted by the record, his argument is not
persuasive.
8 CP at 49-50.
9 Report of Proceedings (RP) (Apr. 30, 2020) at 33.
4
No. 81447-8-I/5
The Eighth Amendment “place[s] certain adult sentences beyond courts’
authority to impose on juveniles who possess such diminished culpability that the adult
standard SRA [Sentencing Reform Act of 1984] ranges and enhancements would be
disproportionate punishment.”10 When sentencing a juvenile in adult court, a court must
consider the Miller youthfulness factors: the defendant’s age, immaturity, impetuosity,
failure to appreciate risks and consequences, family and social circumstances, conduct
when committing the crime, social pressures, and prospects for rehabilitation.11 The
court has “absolute discretion to impose anything less than the standard adult sentence”
based upon its consideration of the defendant’s youthfulness.12
The record here shows the trial court meaningfully considered the mitigating
circumstances of youth when it determined an exceptional sentence was justified by
F.H.B.’s youthfulness. F.H.B. and the State stipulated “that justice is best served” by
imposing an exceptional sentence.13 The court accepted the stipulation, noting F.H.B.
was 15 at the time of his crime, and concluding mitigating circumstances justified an
exceptional sentence. The only mitigating circumstance discussed was F.H.B.’s
youthful character.
10
Matter of Ali, 196 Wn.2d 220, 242, 474 P.3d 507 (2020), cert. denied sub
nom. Washington v. Ali, 141 S. Ct. 1754, 209 L. Ed. 2d 514 (2021).
11 State v. Houston-Sconiers, 188 Wn.2d 1, 23, 391 P.3d 409 (2017) (citing
Miller, 132 S. Ct. at 2468).
12 Matter of Domingo-Cornelio, 196 Wn.2d 255, 259, 474 P.3d 524 (2020) (citing
id. at 19), cert. denied sub nom. Washington v. Domingo-Cornelio, 141 S. Ct. 1753, 209
L. Ed. 2d 515 (2021).
13 CP at 21.
5
No. 81447-8-I/6
The court expressly considered evidence from the decline hearing to conclude an
exceptional sentence was justified. The evidence included reports on F.H.B from a
forensic psychologist and his juvenile probation counselor and the court’s findings of
fact from the decline hearing. F.H.B. stipulated to the accuracy of those sources.
The psychologist discussed F.H.B.’s immaturity, impetuosity, and inability to
appreciate risks and consequences. He stated that F.H.B. “is likely to be impulsive and
have problems with anger.”14 He explained F.H.B. “has carried very little sense of a
future” and “tends to think about the immediate situation, driven of course, by emotion,”
which “deprives him (and many adolescents) of the ability to realistically anticipate and
weigh the long-term consequences of prospective actions, to consider the scale and
proportionality of likely outcomes.”15 The psychologist also noted F.H.B.’s family history
and “relative immaturity . . . left him vulnerable to the lure and promise of gang cultures
prevalent in” his community.16 The court found F.H.B. committed his crime without any
influence from his gang or any other people.
The court’s oral ruling noted F.H.B.’s strong potential for rehabilitation and
touched upon many of the Miller factors required when sentencing a juvenile in adult
court:
When you fired a gun into that car because there was someone
who was a witness who was part of this [judicial] system, who was doing
not what he wanted to do but what he was required to do and would have
had to do one way or another, you were blowing a hole in the very system
14 Ex. 8, at 10.
15 Ex. 8, at 12.
16 Ex. 8, at 12.
6
No. 81447-8-I/7
that was designed to protect you and [the Varrio Locos gang member on
trial for murder]. And I hope that makes some sort of sense to you.
I also want you to know that as I sit here today, I see you as
somebody who has the potential to do the things the women in your life
who got up here and talked believe that you can do. Mostly because
you’ve done it. You’ve gone to school. You had a job. You love your
family. They love you. You have all the building blocks in place to
succeed. You don’t need the gang that you got involved in in order to be
safe, be protected, and have success in your life. And that’s because you
are smart enough, you’ve got it together enough, and you’re enough of a
leader to do this on your own. And I don’t say that to every kid who sits
here in front of me, but I say it based on what I read about you, what I
understand about you . . . [a]nd what I understand about the people who
are speaking on your behalf.[17]
On this record, the court meaningfully considered the “hallmark features” of F.H.B.’s
youth and related circumstances.
Because F.H.B.’s youth diminished his culpability, the Eighth Amendment gave
the court absolute discretion to fashion a proportionate sentence. The State expressed
serious concerns about the risks to public safety from imposing a shorter sentence that
could let F.H.B. enter a less secure facility and have unsupervised time in the
community. F.H.B. had previously been in a rehabilitative setting and secretly
continued his role in Varrio Locos. The court had the discretion to prioritize public
safety over rehabilitation. F.H.B. cites no authority that the Eighth Amendment requires
prioritizing opportunities for rehabilitation or agreeing to a 115-month rather than 120-
month exceptional sentence below the standard range. Because the court meaningfully
considered the mitigating effects of F.H.B.’s youth and F.H.B. fails to show the court’s
chosen sentence was illegal, his argument is unavailing.
17 RP (Apr. 30, 2020) at 56-58.
7
No. 81447-8-I/8
II. Improper Consideration of Good Time
F.H.B. argues resentencing is required because the trial court improperly
considered the effect of good time when determining the length of his sentence.
The parties agree a trial court errs when it “‘impose[s] a sentence outside the
presumptive range based on an entirely speculative prediction of the likely behavior of
an offender while in confinement.’”18 “If sentence length is fixed based on improper
consideration of potential early release, then it rests on an untenable basis.”19 But, in
State v. Sledge, the Supreme Court explained a court sentencing a juvenile could
consider the possibility of good time when determining the length of a sentence if there
are “facts documenting a need for confinement for a specific treatment program
requiring a set duration to successfully complete.”20
The State’s and F.H.B.’s recommended sentences had similar lengths, but they
disputed whether F.H.B. should be eligible to spend part of his sentence in a group
home. Being in a group home would be rehabilitative and, as defense counsel
explained, “he would have access to some community-based programs.”21 F.H.B.
argues Sledge requires the sentencing court to identify a specific treatment program
18State v. Sledge, 133 Wn.2d 828, 845, 947 P.2d 1199 (1997) (quoting State v.
Wakefield, 130 Wn.2d 464, 478, 925 P.2d 183 (1996)); Appellant’s Br. at 20;
Resp’t’s Br. at 19.
19State v. Bourgeois, 72 Wn. App. 650, 661 n.7, 866 P.2d 43 (1994) (citing State
v. Ross, 71 Wn. App. 556, 573 n.9, 861 P.2d 473 (1993)).
20 133 Wn.2d 828, 845, 947 P.2d 1199 (1997).
RP (Apr. 30, 2020) at 50. Defense counsel and F.H.B.’s probation officer also
21
mentioned several rehabilitative benefits from a group home, including access to good
role models, going to community college, being able to get a job, and having more
opportunities to reintegrate into the community. Id.
8
No. 81447-8-I/9
affected by good time. But when, as here, multiple programs are implicated by a single
sentencing decision, it would be inefficient and redundant for the court to parse each
rehabilitative program.
The court inquired about the effect of good time on the proposed sentences from
F.H.B. and the State to understand how good time affected F.H.B.’s eligibility for entry
into a group home:
COURT: [T]here is case law out there that limits when a court can inquire
about good time when sentencing someone . . . but there’s also
case law that says particularly where, in juvenile situations, the
question of rehabilitation and treatment is at issue[,] that the
court can inquire, can consider how good time will affect
rehabilitative programs in the juvenile system. . . . Do either of
you [F.H.B. or the State] have an objection to me considering
good time in the context of trying to figure out a sentence that
works, given the divergent [sentencing] requests from the
parties --
DEFENSE: No.
COURT: -- given that the reason I’m doing that is to figure out the best
way to engage [F.H.B.] in rehabilitative programs at juvenile or
JRA?
STATE: State has no objection.
DEFENSE: Defense has no objection.[22]
F.H.B.’s eligibility for entry into a group home depended on him being set for
release prior to his 25th birthday. To become eligible for release to a group home at
F.H.B.’s proposed 115-month term of incarceration, he would need to earn enough
good time to reduce his term of incarceration by at least four months. Thus, the specific
duration of F.H.B.’s sentence, including good time, affected his ability to access
22 RP (Apr. 30, 2020) at 32-33.
9
No. 81447-8-I/10
rehabilitative programs. The court did not exceed its authority by considering the
possible effects of good time credit on F.H.B.’s term of incarceration when sentencing
him.23
III. Whether F.H.B.’s Sentence is Contrary to Legislative Intent
F.H.B. appears to argue resentencing is required because the trial court opted for
a more punitive rather than rehabilitative sentence. Citing minimal or inapposite
authority, F.H.B. asserts his sentence “was contrary to the legislature’s intent and to the
developing body of case law prioritizing rehabilitation for juveniles.” 24 He contends the
court “failed to sufficiently consider how imposing a sentence without the opportunity for
community-based programming would negatively impact [F.H.B.]’s development and
chances of rehabilitation.”25 But he cites no authority for this argument. Although he
relies upon the Juvenile Justice Act (JJA)26 to argue the rehabilitative aspects of
incarceration should be prioritized, he fails to explain why the JJA controlled sentencing
23Even if considering good time were erroneous, F.H.B. invited this error. The
invited error doctrine bars a defendant from appealing on the basis of an error it “set up”
at trial. State v. Schierman, 192 Wn.2d 577, 618, 438 P.3d 1063 (2018) (quoting City of
Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273 (2002)). The doctrine applies to
alleged constitutional errors. City of Seattle v. Patu, 108 Wn. App. 364, 374, 30 P.3d
522 (2001) (citing State v. Gentry, 125 Wn.2d 570, 645, 888 P.2d 1105 (1995)). F.H.B.
requested the 115-month sentence and argued it was appropriate because he would be
eligible for entry into a group home. CP at 49-50. But because he would be eligible for
a group home only with good time credits, his sentencing request required the trial
court’s consideration of good time to evaluate his proposed sentence.
24 Appellant’s Br. at 28.
25 Appellant’s Br. at 33.
26 Ch. 13.40 RCW.
10
No. 81447-8-I/11
after F.H.B. declined to adult court. Because F.H.B. fails to cite any apt authority, his
argument is not compelling.
Therefore, we affirm.
WE CONCUR:
11