Opinion
No. 35894-8-II.
April 8, 2008.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-01517-4, Dennis P. Maher, J. Pro Tem., entered February 2, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
A jury found Todd Albright guilty of first degree burglary and fourth degree assault for assaulting James "JD" Tryon twice on November 25, 2006, in Castle Rock, Washington. Cowlitz County Superior Court Judge Pro Tem Dennis Maher sentenced Albright to serve a standard range sentence of 26 months with 18 to 36 months community custody on the first degree burglary, count I, and 365 days plus 24 months community custody on the fourth degree assault charge, count II.
On appeal, Albright argues that the trial court erred by refusing to instruct the jury on the lesser included offense of fourth degree assault in count I and by imposing a 24-month community custody term on count II that exceeded the statutory maximum sentence of 365 days. The State concedes that the court exceeded its authority by imposing the statutory maximum term of confinement and community custody on Albright's fourth degree assault conviction and agrees that a remand for resentencing on count II is required. Because the record does not support the giving of a lesser included offense instruction on fourth degree assault in count I, we affirm Albright's first degree burglary conviction, accept the State's concession, and remand for resentencing on count II.
DISCUSSION
The facts are known to the parties and will be repeated here only when necessary to explain our decision. Albright claims that the trial court erred by refusing to instruct the jury that it could find him guilty of the lesser included offense of fourth degree assault on count I. Relying on Nathan Hayrynen's testimony, Albright claims that he had permission to lawfully enter Hayrynen's house and committed no burglary. We disagree.
Jury instructions are sufficient if they allow the parties to argue their theory of the case and, when read as a whole, properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999) (quoting State v. Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990)). Our standard of review depends on whether the trial court's refusal to give a jury instruction was based on a matter of fact or a matter of law. State v. Walker, 136 Wn.2d 767, 771, 966 P.2d 883 (1998). We review the adequacy of jury instructions based on an error of law de novo. State v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002). We review a trial court's refusal to give an instruction based on the facts of the case for an abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997).
"A lesser included offense instruction is proper only if each element of the lesser offense is necessarily included in the charged offense and `there is sufficient evidence to support an inference that the lesser crime was committed.'" State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995) (quoting State v. Speece, 115 Wn.2d 360, 362, 798 P.2d 294 (1990)). An inference that a defendant committed only the lesser offense is justified "[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater." State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997). We apply both a legal analysis and a factual analysis to a defendant's request for a lesser included offense instruction. And we apply the lesser included offense analysis to the offenses as charged and prosecuted, rather than to the offenses as they broadly appear in the statute. Berlin, 133 Wn.2d at 548. Fourth Degree Assault is a Lesser Included Offense of First Degree Burglary First, Albright argues that fourth degree assault is a lesser included offense of first degree burglary. He is correct. State v. Hummell, 68 Wn. App. 538, 541, 843 P.2d 1125 (1993). In Hummell, we stated:
First degree burglary is committed when a person enters or remains unlawfully in a dwelling, with intent to commit a crime, and commits an assault while in the dwelling. RCW 9A.52.020(1). A simple assault fulfills the assault element of first degree burglary. . . . Fourth degree assault is the equivalent of simple assault. RCW 9A.36.041.
Hummell, 68 Wn. App. at 541.
Albright has established that fourth degree assault is a lesser included offense of first degree burglary as charged in this case as a matter of law.
But to require the court to instruct the jury on fourth degree assault in count I, Albright must also demonstrate that the evidence justifies a finding that Albright committed only fourth degree assault and that the factual basis has been proved to justify giving the instruction. The evidence does not support a finding that only fourth degree assault occurred.
When determining if the evidence is sufficient to support a finding that only the lesser included offense occurred, the factual prong, we view the evidence in the light most favorable to the party that requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). "It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given." State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991).
Albright contends that he had permission to enter Hayrynen's house and that, therefore, no burglary occurred. But our review of the record does not support this claim.
Albright relies solely on the following excerpt from the report of proceedings as proof that Hayrynen gave him permission to enter his home without knocking:
[DEFENSE COUNSEL]: [Hayrynen], let me ask you this: Let's say [Albright] showed up that night, and he came into your house, and he stood at the back of the couch and he said, hey, you guys, you know, what happened earlier, I'm really sorry. Would you guys have called the cops and said, hey, you know, he came into my house without permission?
[HAyrynen]: If he didn't yell and punch us? Punch [Tryon]?
[DEFENSE COUNSEL]: Yeah, yeah.
[HAyrynen]: Yeah, that would've been fine.
[DEFENSE COUNSEL]: No problem there?
[HAyrynen]: No. Well, it's a little weird that he [would come] into my house without knocking, but I wouldn't have freaked out like I did.
Report of Proceedings (RP) (January 31, 2007) at 97.
Again, Albright relies on Hummell. But Hummell is inapposite. In Hummell, a jury convicted the defendant of first degree burglary, finding that he unlawfully entered a dwelling and assaulted the victim. 68 Wn. App. at 539-40. On appeal, the defendant argued that the trial court erred by refusing to give his proposed instruction that fourth degree assault was a lesser included offense of first degree burglary. Hummell, 68 Wn. App. at 540. We agreed because the evidence in that case supported an inference that Hummell committed only a fourth degree assault. Hummell, 68 Wn. App. at 541. We explained:
[The defendant] presented testimony that he went to [the victim's] house at [the victim's husband's] request. The jury could have found, under the trial court's instruction set forth above, that [the victim's husband], as "a person in possession" of the house, had the right to permit [the defendant] to enter the home, even if it meant breaking down the front door. . . . While [the victim] may have had the right to revoke [her husband's] permission, as a copossessor of the property, there is no evidence that she did so.
Hummell, 68 Wn. App. at 541-42.
In contrast, here, Hayrynen testified that he did not invite Albright to come over to his house. And he denied that there was "an understanding" that Albright could enter his house at any time. RP (January 31, 2007) at 96. Hayrynen testified that he did not "even really know" Albright, and that Albright had been to Hayrynen's house only "once before." RP (January 31, 2007) at 96.
For his part, Albright testified that he did not remember much of what happened that night. Moreover, on cross-examination, he admitted that if he had entered Hayrynen's house, it was without permission. And, most importantly, Albright agreed that he did not have "an open-door policy" with Hayrynen to "just come in and out of his house whenever [he] felt like it." RP (January 31, 2007) at 144-45.
After Albright assaulted Tryon at Albright's residence, everyone but Albright went to Hayrynen's house. According to Tryon, "You know, we were trying to leave; calm the situation down; talk about it the next morning; no big deal." RP (January 31, 2007) at 66. And Jason Jarrard testified, "[W]e thought we'd just leave [Albright] there to cool off and, you know, the situation was done and finished." RP (January 31, 2007) at 81.
Hayrynen had met Dustin Albright and Jason Jarrard at a local store earlier in the evening. During the altercation, Hayrynen was waiting in his car.
The friends were sitting on a couch playing video games at Hayrynen's house when Albright opened the door and walked into the house yelling, "I'm gonna fucking kill you guys." RP (January 31, 2007) at 94. Then, Albright hit Tryon in the head, knocking him to the floor.
The evidence established that Hayrynen did not give Albright permission to enter his home that night and that Albright and Hayrynen did not have an open door policy regarding one another's homes. Accordingly, the evidence was insufficient to support an inference that Albright committed only a fourth degree assault at Hayrynen's home. On this record, the trial court properly declined to instruct the jury on the lesser included offense of fourth degree assault on count I. Erroneous Sentence For the first time on appeal, Albright argues that his total sentence on the fourth degree assault conviction, including his community custody, is unlawful because it exceeded the 365-day statutory maximum for the offense. He asks us to remand for resentencing. The State concedes error. And we accept the State's concession.
In the context of sentencing, illegal or erroneous sentences may be challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).
With certain exceptions, a trial court may not impose a sentence for a term of confinement or community supervision, community placement, or community custody that exceeds the statutory maximum for the crime. RCW 9.94A.505(5). In State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005), when the combined total of a defendant's community custody term and standard range sentence exceeded the statutory maximum term, Division Three of this court vacated the sentence and remanded for resentencing. In a similar situation, Division One of this court recommended that when a trial court imposes community custody that could exceed the statutory maximum sentence for an offense, the trial court should set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum. State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004).
For purposes of its concession analysis, the State assumes that community custody is an available sentence for Albright's fourth degree assault conviction, which is a gross misdemeanor. RCW 9A.36.041(2). But there is no express statutory authority allowing sentencing courts to impose community custody on misdemeanor or gross misdemeanor convictions such as fourth degree assault. RCW 3.66.068 allows two-year continuing trial court jurisdiction over suspended or deferred sentences and RCW 9.94A.505(1) authorizes community custody for felonies but not misdemeanors or gross misdemeanors. And RCW 9A.36.031 defines third degree assault, a class C felony, to include assaults in resistance of court orders and RCW 9.94A.545 and .715 allow community custody for court order violations. Because the parties did not brief the propriety of imposing community custody here and it is not necessary to our analysis to resolve the issue, we note, but do not address it.
One exception to the general prohibition on community custody exceeding the crime's statutory maximum is relevant here. RCW 9.94A.545 specifies that a sentencing court may follow up sentences of a year or less confinement with community custody if the defendant was convicted of a particular class of crimes.
Except as provided in RCW 9.94A.650 and in subsection (2) of this section, on all sentences of confinement for one year or less, in which the offender is convicted of a sex offense, a violent offense, a crime against a person under RCW 9.94A.411, or felony violation of chapter 69.50 or 69.52 RCW or an attempt, conspiracy, or solicitation to commit such a crime, the court may impose up to one year of community custody, subject to conditions and sanctions as authorized in RCW 9.94A.715 and 9.94A.720.
RCW 9.94A.545(1); and see In re Postsentence Review of Smith, 139 Wn. App. 600, 161 P.3d 483 (2007) (applying RCW 9.94A.545). But fourth degree assault is not (1) a sex offense; (2) a violent offense, as defined by RCW 9.94A.030(50); (3) a crime against a person under RCW 9.94A.411; (4) a felony violation of chapter 69.50 or 69.52 RCW; or (5) an attempt, conspiracy, or solicitation to commit such a crime. Accordingly, this statute did not provide the sentencing court authority to sentence Albright to community custody beyond the statutory maximum for fourth degree assault.
Thus, because the State concedes that the trial court imposed a sentence exceeding Albright's statutory maximum of 365 days, we vacate Albright's total combined sentence for the fourth degree assault conviction and remand for imposition of a sentence within the 365-day maximum. RCW 9A.20.21(2), 9A.36.041(2).
We affirm Albright's first degree burglary (count I) and fourth degree assault (count II) convictions, but we vacate the court's sentence on count II and remand for resentencing.
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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J. PENOYAR, J., concur.