State Of Washington, V Guadalupe Solis Diaz ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
May 5, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52599-2-II
Respondent,
v.
GUADALUPE SOLIS-DIAZ, JR. UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Guadalupe Solis-Diaz Jr. appeals his exceptional downward sentence of 360
months for a drive-by shooting that involved six uninjured victims, arguing that the court failed to
consider his youthfulness and other mitigating factors. The State disagrees, arguing that the court
properly considered the operation of the multiple offense policy and other mitigating factors when
it sentenced him to an exceptional sentence that was more than a 50 percent reduction from his
original sentence of 1,111 months. We hold that the trial court did not abuse its discretion by
imposing an exceptional downward sentence of 360 months. We affirm.
FACTS
I. BACKGROUND1
At approximately midnight on August 10, 2007, 16-year-old Solis-Diaz, a passenger in a
car driven by an adult male, fired seven shots into a crowd of people outside of a tavern in
1
The facts in this section are derived from the record and from In re Pers. Restraint of Diaz, noted
at 170 Wash. App. 1039, 2012 WL 5348865, unless otherwise cited.
No. 52599-2-II
Centralia. All, including the intended target of the drive-by shooting, escaped injury. Several days
later, police arrested Solis-Diaz and charged him with six counts of first degree assault
(Counts I-VI), one count of drive-by shooting (Count VII), and one count of second degree
unlawful possession of a firearm (Count VIII), all counts included firearms enhancements.
Because the six charges of first degree assault were considered serious violent offenses under
former RCW 9.94A.030(40) (2006), Solis-Diaz was tried as an adult under former RCW
13.04.030(1)(e)(v)(E)(I) (2005).
Before trial, the State offered Solis-Diaz a plea agreement: 180 months confinement plus
24 to 48 months community supervision. Solis-Diaz declined the offer. At the end of a five-day
trial, the jury found Solis-Diaz guilty of all eight counts as charged and, by special verdict, found
that he committed the six assaults while armed with a firearm.
At sentencing, Solis-Diaz’s counsel requested the low end of the standard range, but did
not ask for an exceptional sentence below the standard range.2 The State requested a high end
sentence of 1,111 months. The trial court sentenced Solis-Diaz to 196 months on Count I, 183
months each on Counts II-VI, 27 months on Count VII, and 29 months on Count VIII in addition
to community custody supervision. The trial court ran Counts I-VI consecutively as required by
RCW 9.94A.589(1)(b)3 and ran Counts VII and VIII concurrently. The trial court imposed a 60
2
The total standard range (including enhancements) for each count is as follows: 162-196 months
for Count I, 153-183 months for Count II, 153-183 months for Count III, 153-183 months for
Count IV, 153-183 months for Count V, 153-183 months for Count VI, 21-27 months for count
VII, and 22-29 months for count VIII.
3
The legislature amended RCW 9.94A.589 in 2015. LAWS OF 2015, 2d Spec. Sess., ch., 3 § 13.
Because these amendments are not relevant here, we cite to the current version of this statute.
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No. 52599-2-II
month firearm enhancement for each count. The total time imposed was 1,111 months, or
approximately 92.5 years. Solis-Diaz appealed his convictions and we affirmed his convictions
and sentence. See State v. Solis-Diaz, noted at 152 Wash. App. 1038, 2009 WL 3261249. A mandate
was issued on May 10, 2010.
On May 17, 2010, the United States Supreme Court decided Graham v. Florida, and held
that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the
sentence of life without parole” and if a court “imposes a sentence of life it must provide him or
her with some realistic opportunity to obtain release before the end of that term.” 560 U.S. 48,130
S. Ct. 2011, 2030, 2034, 176 L. Ed. 2d 825 (2010). In light of Graham and the assistance Solis-
Diaz received from counsel at his 2007 sentencing, Solis-Diaz filed a personal restraint petition
(PRP) to challenge his sentence. See In re Pers. Restraint of Diaz, noted at 170 Wash. App. 1039,
2012 WL 5348865.
We reviewed his 2007 sentencing. We noted that neither party had prepared a
presentencing report and that counsel failed to properly inform the trial court that Solis-Diaz’s case
was automatically declined from juvenile court by operation of statute, former RCW
13.04.030(1)(e)(v)(E)(I). As a result, no judicial officer held a declination hearing to consider his
maturity and mental development and determine whether he had the mental and emotional
sophistication necessary to warrant prosecution as an adult. The sentencing court determined that
the drive-by shooting conviction encompassed the same criminal conduct as the assault
convictions. No one spoke on Solis-Diaz’s behalf, other than counsel’s agreement with the court’s
same criminal conduct analysis and request for a low end range sentence of 927 months. We held
that Solis-Diaz’s counsel was ineffective at sentencing, but did not grant the request for sentencing
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No. 52599-2-II
before a different judge, and granted the PRP in part, reversed the sentence, and remanded the case
for resentencing.
On remand, the State asked the court to “conduct an individualized determination of the
propriety of an exceptional downward sentence,” due to the recent changes in the law regarding
considering youthfulness and other mitigation factors for a juvenile offender. State v. Solis-Diaz,
187 Wash. 2d 535, 537, 387 P.3d 703 (2017). The State requested that the court impose the same
1,111 month sentence. Solis-Diaz, 187 Wash. 2d at 537. Solis-Diaz’s counsel requested an
exceptional downward sentence of 180 months (15 years) based on grounds that the multiple
offense policy of the Sentencing Reform Act of 1981 (SRA)4 operated to impose a clearly
excessive sentence and based on Solis-Diaz’s age which indicated he had a diminished capacity to
understand the wrongfulness and consequences of his actions. State v. Solis-Diaz, 194 Wash. App.
129, 134, 376 P.3d 458 (2016), reversed, 187 Wash. 2d 535 (2017).
The same judge presided over the sentencing hearing and determined that it could not
sentence Solis-Diaz to an exceptional sentence below the standard range because consecutive
sentences were required under the multiple offense policy of the SRA. Solis-Diaz, 194 Wash. App.
at 135. The trial court then again imposed the same 1,111 month fixed term sentence. Solis-Diaz,
194 Wash. App. at 133.
Solis-Diaz appealed the sentence and we remanded the matter back to the trial court,
concluding that “the sentencing court erred in failing to consider whether the operation of the . . .
multiple offense policy and Solis-Diaz’s youth at the time he committed the crimes should mitigate
4
Ch. 9.94A RCW.
4
No. 52599-2-II
his standard range sentence and warrant an exceptional downward sentence.” Solis-Diaz, 194 Wn.
App. at 144.
II. THIRD SENTENCING
On July 10, 2018, a third sentencing hearing was held. The trial court stated,
I do intend to hear everything that you want to present, but I want you to
know that I have prepared for today’s hearing. I’ve read everything that’s been
presented, and to the extent that that alters what you intend to put before me today,
I’ll leave that to your discretion.
Report of Proceedings (RP) at 8. Several attorneys represented Solis-Diaz and submitted
significant mitigation materials to the court in the form of briefing, a sentencing mitigation video,
live testimony, and several declarations. The witnesses who testified were: Dr. Kate McLaughlin,
an adolescent brain scientist; Dr. Ronald Roesch, a professor of psychology and the director of the
Mental Health Law and Policy Institute at Simon Frazier University in Vancouver, British
Columbia; Jesse Dow, the intended victim of Solis-Diaz’s shooting, and Solis-Diaz himself.
Dr. McLaughlin’s testimony focused on adolescent brain development and how
adolescents are influenced by their surroundings and their peers. She explained, in general, how
adolescents differ from adults when it comes to their decision making abilities and what that looks
like in real world application.
Dr. Roesch also testified. Dr. Roesch tested Solis-Diaz in 2014 and retested him in 2018.
Dr. Roesch drafted a report and explained that Solis-Diaz in 2018 presented as “substantially
different” with evidence of significant maturation, and was “stable, self-confident, and relaxed,”
and did not show the same tendencies for “impulsive and self-destructive behaviors that were noted
[in] 2014.” Clerk’s Papers (CP) at 60. Dr. Roesch testified that Solis-Diaz was “showing less anti-
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No. 52599-2-II
social features, more empathy, more contrition, more respect for the rights of others, and also
thinking more about the long-term consequences of decisions that he made then back 10 or 11
years ago, and the decisions he’s making now in terms of planning for his future.” RP at 50.
Jesse Dow, the victim of Count I, testified that he believed Solis-Diaz had served enough
time and deserved a second chance. Solis-Diaz addressed the court directly, apologizing to his
victims and explaining how much he has grown and changed.
The State recommended that Solis-Diaz serve a total sentence of 525 months, or 43.75
years. The State noted that its recommended sentence was more than a 50 percent reduction from
the original sentence of 1,111 months and the sentence recognized that children are different from
adults. Solis-Diaz’s counsel requested credit for time served5 or if that was not sufficient, a 15
year sentence.
Before imposing the sentence, the court explained that he was familiar with the latest
research on adolescent brain development and that there were multiple options for resentencing.
He also indicated:
I will state for the record that I’ve considered all of the evidence that's been
presented before and during today's hearing. I’ve looked at the Miller factors. I
am going to impose an exceptional sentence downward. It’s based on youth as a
mitigating factor. It’s based on the application of the Miller factors. It’s based on
the multi-offense policy of the Sentencing Reform Act. And just to be thorough, I
reviewed RCW 9.94A.535, and I looked at each one of the mitigating factors to see
if any of the others might apply.
RP at 87.
5
Solis-Diaz was 27 years old and had served 11 years by the time of the third sentencing hearing.
6
No. 52599-2-II
The court found that Solis-Diaz had committed the charged offenses6 as to counts I-VII,
that he had used a firearm, that he was a juvenile at the time, that a juvenile’s brain is different
than a fully developed brain, and that this different development is a factor recognized and
considered by the parties and the court. Based on its findings, the court concluded that under
Miller, an exceptional sentence downward was appropriate and it sentenced Solis-Diaz to 360
months, or 30 years as follows: Count I, a sentence of zero days; Counts II-VI, a sentence of 60
months per count to run consecutively; Counts I-VI, a sentence of 60 months on each count for the
firearm enhancements to run concurrently; Count V, a sentence of 27 months, to run concurrently;
Count VIII, a sentence of 29 months to run concurrently.
The court credited Solis-Diaz for 4,093 days for time served, including 2,382 days from
his 2014 judgment and sentence, plus 1,711 days until entry of the 2018 judgment and sentence.
The court also imposed community custody supervision, but those are not challenged on appeal.
The court entered written findings of fact, conclusions of law, and the judgment and sentence.
Defense counsel filed a motion to reconsider supported by declarations from two of the victims,
Sean Thomas and Cassandra Norskog. The court denied the motion.
Solis-Diaz timely appeals the judgment and sentence resulting from the third sentencing.
ANALYSIS
Solis-Diaz argues that the trial court abused its discretion by imposing an exceptional
downward sentence of 360 months, or 30 years. He argues that the sentence is clearly excessive
6
Counts I-VI were charged as one count of assault in the first degree for each victim under RCW
9A.36.011(1)(A). Count VII was charged as a drive by shooting under RCW 9A.36.045(1) and
Count VIII was charged as second degree unlawful possession of a firearm under former RCW
9.41.040(2)(a)(iii) (2005).
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No. 52599-2-II
and the court failed to adequately consider the operation of the multiple offense policy under the
SRA and other mitigating factors such as his youthfulness. The State argues the trial court properly
considered the multiple offense policy and the mitigating factors, and thus, the sentence is not
excessive. We hold that because the court properly considered the multiple offense policy and the
mitigating factors, the trial court did not abuse its discretion by imposing an exception downward
sentence of 360 months, or 30 years.
I. LEGAL PRINCIPLES
We review the appropriateness of an exceptional sentence by answering the following three
questions:
“1. Are the reasons given by the sentencing judge supported by evidence in the
record? As to this, the standard of review is clearly erroneous.
2. Do the reasons justify a departure from the standard range? This question is
reviewed de novo as a matter of law.
3. Is the sentence clearly too excessive or too lenient? The standard of review on
this last question is abuse of discretion.”
State v. Law, 154 Wash. 2d 85, 93, 110 P.3d 717 (2005) (quoting State v. Ha’mim, 132 Wash. 2d 834,
840, 940 P.2d 633 (1997). Here, Solis-Diaz’s appeal focuses on the third question. The trial court
abuses its discretion when it bases its decision on untenable reasons or grounds or the decision is
manifestly unreasonable. State v. Solomon, 3 Wash. App. 2d 895, 910, 419 P.3d 436 (2018).
When sentencing a juvenile offender, a court must consider the juvenile’s youthfulness and
other mitigation circumstances related to the juvenile’s youth, to include, “age and its ‘hallmark
features,’ such as the juvenile’s ‘immaturity, impetuosity, and failure to appreciate risks and
consequences.’” State v. Houston-Sconiers, 188 Wash. 2d 1, 23, 391 P.3d 409 (2017) (quoting Miller
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No. 52599-2-II
v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2468, 183 L. Ed. 2d 407 (2012)). The court also must
consider other factors, including the extent of the juvenile’s participation in the crime, what
pressures may have affected the juvenile such as familial or peer, and the nature of the family
circumstances and surrounding environment. Houston-Sconiers, 188 Wash. 2d at 23. The trial court
also “must consider how youth impacted any legal defense, along with any factors suggesting that
the child might be successfully rehabilitated.” Houston-Sconiers, 188 Wash. 2d at 23.
II. EXCEPTIONAL DOWNWARD SENTENCE
Solis-Diaz argues that the sentence of 360 months was clearly excessive for a 16-year-old
with no criminal history who committed offenses that did not result in death or serious bodily
injury when considering the multiple offense policy and other mitigating factors under Miller.7
Solis-Diaz points out that Jesse Dow, the person targeted in the shooting, testified on his behalf
and requested that he be immediately released because he had already served 11 years of the
sentence.
The State recommended a 586 month downward reduction from the original 1,111 month
fixed term sentence, or 525 months (43.75 years). Solis-Diaz’s attorney recommended credit for
time served, or if that was not sufficient, a 15 year sentence. The trial court considered all of the
testimony, all of the evidence, and the arguments presented before rendering its decision. The trial
court noted how helpful the hearing was and explained its challenge was to craft a sentence for
Solis-Diaz somewhere between, the presumptive sentence he was previously given (1,111 months)
7
Solis-Diaz also argues that his sentence was excessive as compared to other cases. This is a
proportionality challenge of a sentence length which is not allowed. In determining whether a
sentence is clearly excessive, we are prohibited from comparing the underlying sentence with other
cases for proportionality. State v. Ritchie, 126 Wash. 2d 388, 392, 894 P.2d 1308 (1995).
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No. 52599-2-II
and the credit for time served, 11 years. The trial court stated, “I make it a point to not make a
decision until I’ve heard everything, and that is the case today, but I did look at many ways of
figuring out what would be an outcome that would make sense, [and] that would be a logical
framework.” RP at 86. The trial court discussed how it considered the State’s recommendation,
a bottom range sentence, whether to run the firearms enhancements consecutive or concurrently,
and the different options for sentencing. RP 86-87.
Before imposing its sentence, the trial court explained:
I will state for the record that I’ve considered all of the evidence that’s been
presented before and during today’s hearing. I’ve looked at the Miller factors. I
am going to impose an exceptional sentence downward. It’s based on youth as a
mitigating factor. It’s based on the application of the Miller factors. It’s based on
the multi-offense policy of the Sentencing Reform Act. And just to be thorough, I
reviewed RCW 9.94A.535, and I looked at each one of the mitigating factors to see
if any of the others might apply.
RP at 87.
The court considered Solis-Diaz’s youth and his complete lack of criminal history prior to
the crime. It considered his childhood, the issues his mother had, his father not being a factor in
his life, and why he turned to gangs. The court also considered his difficulties in school as a special
education student and his frequent absenteeism and truancy.
Lastly, the court considered the testimony by two experts, Dr. McLaughlin and Dr. Roesch,
regarding youth, its hallmarks, how the nature of family circumstances and peer pressure affect a
juvenile, the ability to rehabilitate juveniles in general, and the changes in Solis-Diaz since he had
committed the crime 11 years earlier. Specifically, Dr. Roesch explained in his report that Solis-
Diaz in 2018 presented as “substantially different” with evidence of significant maturation, was
“stable, self-confident, and relaxed,” and did not show the same tendencies for “impulsive and
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No. 52599-2-II
self-destructive behaviors that were noted in 2014.” CP at 60. Dr. Roesch testified that Solis-Diaz
was “showing less anti-social features, more empathy, more contrition, more respect for the rights
of others, and also thinking more about the long-term consequences of decisions that he made then
back 10 or 11 years ago, and the decisions he’s making now in terms of planning for his future.”
RP at 50. Finally, Solis-Diaz spoke to the trial court directly, apologized to his victims and
explained how much he has grown and changed.
The court found that Solis-Diaz committed the charged offenses, and as to counts I-VII,
that he had used a firearm, he was a juvenile at the time, a juvenile’s brain is different than a fully
developed brain, and this development is a factor recognized and considered by the parties and the
court. The court then concluded that under Miller, an exceptional downward sentence was
appropriate and sentenced Solis-Diaz to 360 months, or 30 years, as follows: Count I, a sentence
of zero days; Counts II-VI, a sentence of 60 months per count to run consecutively; Counts I-VI,
a sentence of 60 months on each count for the firearm enhancements to run concurrently; Count
V, a sentence of 27 months, to run concurrently; Count VIII, a sentence of 29 months to run
concurrently. The court credited Solis-Diaz for 4,093 days for time served, including 2,382 days
from his 2014 judgment and sentence, plus 1,711 days until entry of the 2018 judgment and
sentence.
The trial court’s exceptional downward sentence reflects a careful balance between
acknowledging Solis-Diaz’s youthfulness, the clearly excessive sentence that would result from
the multiple offense policy under RCW 9.94A.589, and the six victims. Because the trial court
properly considered all mitigating factors before imposing an exceptional downward sentence of
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No. 52599-2-II
360 months, we hold that the trial court did not abuse its discretion and we affirm Solis-Diaz’s
sentence.
CONCLUSION
We hold that the trial court did not abuse its discretion by imposing an exceptional
downward sentence of 360 months. We affirm.
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.
SUTTON, J.
We concur:
LEE, C.J.
WORSWICK, J.
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