Opinion
No. 61045-7-I.
February 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-04414-7, Michael Hayden., J., entered December 10, 2007.
Affirmed in part and remanded by unpublished opinion per Leach, J., concurred in by Grosse and Lau, JJ.
Fisher challenges convictions of four counts of first degree promoting prostitution and one count of witness tampering. He argues that there was reason to doubt his competency to stand trial and, therefore, (1) he was denied a fair trial because the trial court did not order a competency hearing on its own motion, (2) the prosecutor committed misconduct by prosecuting him when there was reason to doubt his competency, and (3) he received ineffective assistance of counsel because his lawyer did not raise the issue of his competency. He also argues that the four convictions for first degree promoting prostitution violate double jeopardy because the facts support only a single unit of prosecution. In a statement of additional grounds, Fisher argues that he was denied bail on appeal and that his right to a speedy trial was violated. Finally, he challenges his sentence on the basis that the combined period of incarceration and community custody exceed the statutory maximum sentence. We affirm but remand for resentencing.
Background
Jason Fisher met S.S. through an Internet chat room in December 2005. After they communicated via Internet for about six weeks, S.S. took the bus from Lakewood to Shoreline to meet Fisher. They immediately began a sexual relationship, and S.S. started visiting Fisher nearly every weekend. Although S.S. was only 14 years old, she told Fisher she was 16 because Fisher was 18 and she wanted him to think she was closer to his age. However, Fisher learned her true age within a few months.
Initially, Fisher treated S.S. well and she quickly fell in love with him. On July 1, 2006, while Fisher and S.S. were in bed together, Fisher asked S.S. if she would prostitute herself as a favor to him. At first, S.S. was disgusted by Fisher's proposal and said no. When Fisher persisted, S.S. agreed to prostitute herself because she was in love with Fisher and did not want to lose him.
That same day, Fisher and his sister got S.S. some clothes and made her up to look like a prostitute. He took S.S. to "the track" on Aurora Avenue, told her to walk slowly and look at cars and to charge for sex. Fisher instructed her to give all of her earnings to him.
Fisher watched from a bus stop while S.S. walked the track at 105th and Aurora. He told her she was walking too fast and should slow down. Fisher took her to Aurora and 130th Street and left her. Two Hispanic males solicited S.S. Although she was scared, she agreed to have sex with both men for $100. The men drove her to a park somewhere in Shoreline, and after she had sex with each of them, they drove her back to 130th Street and dropped her off. Afterward, S.S. called Fisher. He met with her, took the money she had earned, and told her to keep working. She worked until 10:45 p.m. but did not get any more "tricks," or clients, that day.
Two days later, on July 3, 2006, S.S. performed two acts of prostitution to make more money for Fisher. After picking up the money from S.S.'s first two tricks, Fisher left her at Top Foods at 175th Street and told her to work the track from there to 192nd Street. Shortly thereafter, S.S. was arrested for prostitution by an undercover police officer. She was released from juvenile detention on July 5th and ran away from her mother's house the next day to be with Fisher. When she met Fisher, he said, "Let's go make some money," and sent her out to work the track. On July 7th, S.S. was again taken into custody.
In August, S.S. was sent to California to attend Children of the Night, a rehabilitation program for teenage prostitutes. She ran away from this program in September 2006 and worked briefly as a prostitute in Hollywood, California, sending some of her earnings to Fisher. Fisher implored her to return to Seattle, which she did. He picked her up from the Greyhound station and took her to his house, where S.S. learned for the first time that Fisher had a girlfriend, Estelle Olsen-Cole. That night, Fisher assaulted S.S. and made her sleep on the floor while he and Olsen-Cole had sex. Despite Fisher's mistreatment of her and the fact that she was jealous of Olsen-Cole, S.S. continued to work for Fisher, committing several acts of prostitution over the next few months and giving Fisher all of the money she earned because she loved him and felt that she could buy his love.
Between August 2006 and May 2007, S.S. went to Children of the Night four times. Each time she left the program and returned to Washington to work as a prostitute for Fisher. When she returned, Fisher became increasingly violent and threatening toward her. In mid-May, 2007, S.S. was working as a prostitute in California and sending money to Fisher via Western Union. She called Fisher and told him she wanted to come back to Seattle because she was tired of being homeless and alone. Fisher told her she could come back only if she sent him more money. On May 20, 2007, S.S. worked as a prostitute in order to send Fisher $100, and then she worked again to earn enough money for a bus ticket to Seattle. She boarded a Greyhound bus at approximately 6:00 p.m. that day and arrived in Seattle at 9:45 p.m. on May 21, 2007.
On May 22, 2007, Fisher assaulted S.S. and then took her out to work at Aurora and 130th Street. He threatened to kill her if she did not make him $100 by noon. Later that day, Seattle Police Officer Inouye saw S.S. loitering near the bus stop at 135th and Aurora. Suspecting that she was a prostitute, he confronted her. Initially, S.S. lied about her name and date of birth. When she stumbled over her birth date, Officer Inouye challenged her, and she identified herself. She also told Officer Inouye that she was afraid of a pimp that might find and kill her. She identified Fisher as her pimp and agreed to assist law enforcement in an attempt to arrest him.
Officers planned to use S.S. to summon Fisher to the Seals Motel on Aurora, where she would give Fisher money she supposedly earned as a prostitute and they would arrest him. But Fisher arrived before the police operation was set up, and the plan failed. Officers followed Fisher as he drove away. He successfully eluded them after a high-speed chase. Police made a few more attempts to apprehend Fisher with S.S.'s help, but they were unsuccessful. Fisher fled the state with his girlfriend, Estelle Olsen-Cole, and they were apprehended in California on May 29, 2007.
While in custody awaiting trial in this case, Fisher frequently called Olsen-Cole. Sometimes they would include S.S. in a three-way conference call. On June 23, 2007, Fisher called Olsen-Cole and instructed her to have S.S. write a letter recanting her allegations against him. Olsen-Cole complied and assisted S.S. in writing a letter stating that Fisher was not her pimp.
Originally, the State charged Fisher with three counts of promoting prostitution in the first degree and one count of attempting to elude a pursuing police vehicle. The information was amended to include a fourth count of promoting prostitution in the first degree and one count of witness tampering. Fisher pleaded guilty to the eluding charge and went to trial on the remaining charges.
At various times during the proceedings, Fisher engaged in inappropriate conduct toward witnesses and the court. In pretrial proceedings, Fisher ripped up court documents, cursed at the judge, and was ejected from the courtroom. He also asked police officers to come to the jail for the sole purpose of yelling and cursing at them. During witness testimony, Fisher laughed and smiled at witnesses, mouthed words to witnesses, and displayed inappropriate expressions. He also threatened some witnesses in the hallway outside the courtroom.
At trial, Fisher testified and admitted to profiting from S.S.'s prostitution but denied knowing she was a minor. He said that he met S.S. while she was prostituting at Aurora Village. He denied having a sexual relationship with her. According to Fisher, S.S. asked him to be her pimp and offered to pay him most of the proceeds in exchange for housing, transportation, food, and protection, an offer he "regretfully accepted."
The jury found Fisher guilty as charged. The trial court sentenced Fisher to 120 months, the maximum term within the standard range, plus a community custody range of 9-18 months.
Discussion
A. Competency
Fisher argues that he was not competent to stand trial because he suffers from severe mental illness and was experiencing a psychotic break. He claims that the trial court erred by not holding a competency hearing; that he received ineffective assistance of counsel because his attorney did not raise the issue of incompetency; and that the prosecutor committed misconduct by trying him while aware of evidence that he was incompetent to stand trial. We hold that the trial court did not abuse its discretion when it failed to hold a competency hearing sua sponte; that Fisher did not receive ineffective assistance; and that the prosecutor did not commit misconduct.
i) Alleged Violation of Right to Competency Hearing
The United States Constitution requires that an accused have "'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and to assist in his defense with 'a rational as well as factual understanding of the proceedings against him.'" In Washington, "[n]o incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues." We review a trial court's decision whether to conduct a competency hearing for abuse of discretion.
In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)).
RCW 10.77.050; State v. Marshall, 144 Wn.2d 266, 278, 27 P.3d 192 (2001).
City of Seattle v. Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985).
Where there is reason to doubt a defendant's competency, the trial court is required to appoint experts and order a formal competency hearing. RCW 10.77.060 provides, in part:
Whenever a defendant has pleaded not guilty by reason of insanity, or there is reason to doubt his or her competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate at least two qualified experts or professional persons, one of whom shall be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant.
"Incompetency" exists where a person "lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect."
The procedures of RCW 10.77.060 are mandatory where there is reason to doubt a defendant's competency. However, "'[a] reason to doubt' is not definitive, but vests a large measure of discretion in the trial judge." The trial court must make the threshold determination that there is a reason to doubt the defendant's competency before a determination of competency is required. In determining whether there is a reason to doubt competency, the court will consider the defendant's apparent understanding of the charge and consequences of conviction, his apparent understanding of the facts giving rise to the charge, and his ability to relate the facts to his attorney in order to help prepare the defense. In exercising its discretion in determining whether there is reason to doubt competency, "the court should give considerable weight to the attorney's opinion regarding a client's competency and ability to assist in the defense."
Gordon, 39 Wn. App. at 441.
Gordon, 39 Wn. App. at 441.
Gordon, 39 Wn. App. at 441.
Gordon, 39 Wn. App. at 442.
Gordon, 39 Wn. App. at 442.
In State v. Marshall, our Supreme Court held that the trial court abused its discretion in failing to order a statutory competency hearing. In that case, there was "ample evidence" that defendant's competency was in question, including undisputed evidence of brain dysfunction and atrophy, and expert testimony that the defendant was unable to waive his constitutional rights freely and voluntarily. By contrast, in In re Personal Restraint of Fleming, our Supreme Court held that there was no due process violation because competency was not raised as an issue before the trial court and the trial judge had no reason to doubt the defendant's competency.
144 Wn.2d 266, 27 P.3d 192 (2001).
Marshall, 144 Wn.2d at 279-80.
142 Wn.2d 853, 16 P.3d 610 (2001).
Fleming, 142 Wn.2d at 863-64.
Here, as in Fleming, competency was not raised before the trial court, and the court had no reason to doubt Fisher's competency. Fisher argues that the trial court should have questioned his competency because he displayed inappropriate behavior in the courtroom. In Fleming, the court noted that "[t]he factors a trial judge may consider in determining whether or not to order a formal inquiry into the competency of an accused include the 'defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel.'" In concluding that there was no reason for the trial court to doubt the defendant's competency, the Fleming court noted that the trial court neither observed "any irrational behavior in the courtroom, nor were there any psychiatric reports given to the trial court judge."
Fleming, 142 Wn.2d at 863 (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)).
Fleming, 142 Wn.2d at 863.
Fisher argues that his inappropriate behavior constituted "reason to doubt" his competency. However, the defendant's demeanor is only one factor of several that the trial judge may consider in deciding whether there is a reason to doubt a defendant's competency. Courts also look at the defendant's apparent understanding of the charges and consequences of conviction, his apparent understanding of the facts giving rise to the charge, and his ability to relate those facts to his attorney in order to help prepare the defense. Although there is evidence that Fisher was dealing with mental health problems, there is no indication that his mental health adversely affected his competency to stand trial. On the contrary, the record is replete with evidence that Fisher understood the proceedings against him. For example, Fisher understood that he was being charged with promoting prostitution in the first degree, as opposed to the second degree. He testified in his own behalf, claiming that he was the victim of S.S.'s manipulation and that he was not her pimp. He also testified that he did not know S.S. was a minor. When questioned about why he changed his defense from one denying his role as S.S.'s pimp to one based on not knowing she was a minor, he replied, "I don't want to do 10 years. What can I do?" He addressed the sentencing court, stating, "I'll admit Second Degree until the day is over, but, I mean, I've been convicted." The trial court also confronted Fisher about his behavior on at least one occasion during trial, asking him to exercise self-restraint. Fisher responded respectfully to the court's suggestion and modified his behavior following the exchange. In denying Fisher's request for a mitigated sentence, the trial court stated that mental health issues were not a factor in the charged crimes. The record is clear that the trial court did not doubt Fisher's competency to stand trial and that there was no reason for the court to doubt his competency. We find no error.
Gordon, 39 Wn. App. at 442.
ii) Prosecutorial Misconduct
Fisher argues that the prosecutor committed misconduct by trying him when she had reason to doubt his competency. Prosecutorial misconduct requires the defendant to show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. Prosecutorial misconduct is grounds for reversal only if there is a substantial likelihood that the misconduct affected the verdict. If the defendant did not properly object at trial, then the error is not reversible unless the misconduct was "'so flagrant and ill intentioned that no curative instruction could have obviated the prejudice.'" Just as the trial court had no reason to doubt Fisher's competency, Fisher has not shown that the prosecutor had any reason to doubt his competency. Fisher has demonstrated no improper conduct by the prosecutor.
State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)).
State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990) (quotingState v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988)).
iii) Ineffective Assistance
Fisher argues that he received ineffective assistance because his lawyer did not bring the issue of competency to the trial court's attention. Claims of ineffective assistance of counsel are mixed questions of law and fact, which we review de novo.
Fleming, 142 Wn.2d at 865.
When reviewing a claim of ineffective assistance, we begin with the strong presumption that counsel's representation was effective. To overcome this presumption, a defendant must show that his counsel's representation fell below an objective standard of reasonableness considering all the circumstances and that the deficient representation affected the outcome of his case. "When defense counsel knows or has reason to know of a defendant's incompetency, tactics cannot excuse failure to raise competency at any time 'so long as such incapacity continues.'"
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 334-35.
Fleming, 142 Wn.2d at 867 (quoting RCW 10.77.050).
In Fleming, the defendant challenged his guilty plea in a personal restraint petition, arguing that he received ineffective assistance because his lawyers knew his competency was in doubt but failed to bring it to the trial court's attention. There, a psychological report stated that the defendant was "unable to cooperate in a rational manner with counsel in presenting a defense and is not able to prepare and conduct his own defense in a rational manner without counsel and therefore is judged presently mentally incompetent to stand trial," but counsel never made this report available to the court. Our Supreme Court held that the failure to raise the issue of defendant's competency constituted deficient performance. There was a reasonable probability inFleming that the court would not have accepted defendant's guilty plea if counsel had informed the court about a psychological report indicating that Fleming was incompetent.
Fleming, 142 Wn.2d at 858, 860.
Fleming, 142 Wn.2d at 866.
Fleming, 142 Wn.2d at 866.
As in his due process argument, Fisher claims that counsel's knowledge of his mental health problems and inappropriate behavior was sufficient to give his attorney reason to doubt his competency. However, the record does not support finding a reason to doubt Fisher's competency. While the record does show that counsel knew that Fisher had mental health issues, there was no indication that these issues affected Fisher's understanding of the charge and consequences of conviction, his understanding of the facts giving rise to the charge, or his ability to relate those facts to his attorney in order to help prepare the defense. Although Fisher now argues that his counsel improperly left the decision whether to receive a psychiatric evaluation up to him, the record shows that the evaluation that counsel offered to Fisher was not a competency evaluation, but rather a general psychiatric evaluation. Fisher was not evaluated, in part because he was embarrassed about his mental health problems and did not want to present them as part of his defense, but also because his counsel was concerned that he would be diagnosed as antisocial and that the diagnosis would be detrimental to his defense.
See Gordon, 39 Wn. App. at 442.
The record does not show that counsel had reason to doubt Fisher's competency. We conclude that he did not receive ineffective assistance of counsel.
B. Double Jeopardy
Fisher argues that the evidence at trial established that he had a single, continuous pimp-prostitute relationship with S.S., which constituted a single course of conduct, and therefore his convictions for multiple acts of promoting prostitution violate double jeopardy. Whether Fisher's four convictions violate double jeopardy is a constitutional question we review de novo.
State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998); State v. Frodert, 84 Wn. App. 20, 25, 924 P.2d 933 (1996).
The Fifth Amendment and article I, section 9 of the Washington Constitution protect defendants from multiple punishments for a single offense. "When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime."
Adel, 136 Wn.2d at 632.
Adel, 136 Wn.2d at 634.
Former RCW 9A.88.070(1)(b) (1975) provides that "[a] person is guilty of promoting prostitution in the first degree if he knowingly . . . advances or profits from prostitution of a person less than eighteen years old." RCW 9A.88.060 defines "advances prostitution" and "profits from prostitution":
(1) A person "advances prostitution" if, acting other than as a prostitute or as a customer thereof, he causes or aids a person to commit or engage in prostitution, procures or solicits customers for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.
(2) A person "profits from prostitution" if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of prostitution activity.
"Although the statute regarding promoting prostitution in the first degree permits conviction for each distinct act, it also contemplates a continuing course of conduct: instituting, aiding, or facilitating a prostitution enterprise." Fisher argues that the evidence and the language of the charges here do not support multiple charges. We disagree.
State v. Gooden, 51 Wn. App. 615, 618, 754 P.2d 1000 (1988).
While the evidence in this case could have been used to show a single, continuing course of conduct, the State elected to charge Fisher with four distinct acts of promoting prostitution. Prosecutors have considerable latitude either to aggregate charges or to bring multiple charges. The evidence established several distinct instances in which Fisher profited from S.S.'s prostitution. The jury was instructed:
State v. Kinneman, 120 Wn. App. 327, 337, 84 P.3d 882 (2003) (citing State v. Lewis, 115 Wn.2d 294, 299, 797 P.2d 1141 (1990)).
The State alleges that the defendant committed acts of Promoting Prostitution on multiple occasions. A separate crime is charged in each count. To convict the defendant on any count of Promoting Prostitution, one particular act of promoting prostitution must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of promoting prostitution. You must, however, find a separate and distinct act for each count charged.
This instruction was adequate to ensure a unanimous verdict because the jury was instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt in support of each separate charge. There was sufficient evidence to support a guilty verdict on four distinct acts of promoting prostitution in the first degree, and we therefore affirm Fisher's four convictions.
See Gooden, 51 Wn. App. at 618 (citing State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984)).
C. Statement of Additional Grounds
Fisher submits a statement of additional grounds in which he argues that he was denied an appeal bond and the right to a speedy trial. Fisher cites RCW 10.73.040, which states in part that the trial court must fix and determine the amount of bail to be required of the appellant in all non-capital criminal cases. However, as we recognized in State v. Hunter, RCW 10.73.040 is inconsistent with the provisions of CrR 3.2, which gives the trial court discretion to order that a defendant be detained if he may pose a substantial danger to another or to the community. Our Supreme Court, in State v. Smith, held that the right to bail after verdict and pending appeal is governed solely by CrR 3.2 and that the trial court has the discretion to grant or revoke bail pending appeal. This is because, absent a constitutional mandate to the contrary, the fixing of bail and release from custody of a convicted criminal is the function of the judicial branch of government. Our state constitution provides protection to defendants pending trial but does not limit the court's ability to deny bail pending appeal. Smith also held that the legislature could not modify or abrogate court rules properly promulgated by the Supreme Court. Here, as inHunter, the record before this court does not contain statements made by the judge at the time bail was denied. Thus, we cannot find an abuse of discretion in the denial of bail pending appeal.
35 Wn. App. 708, 669 P.2d 489 (1983).
Hunter, 35 Wn. App. at 719.
84 Wn.2d 498, 527 P.2d 674 (1974).
Smith, 84 Wn. 2d at 501.
Smith, 84 Wn. 2d at 499.
Smith, 84 Wn.2d at 501-03.
Hunter, 25 Wn. App. at 719 (citing State v. Beckstrom, 17 Wn. App. 372, 376, 563 P.2d 217 (1977)).
Fisher also argues that his right to a speedy trial was violated because several court proceedings were continued due to reasons under the prosecutor's control. However, the court rules allow for a continuance of the trial date when required in the administration of justice as long as it does not prejudice the defendant. A trial court's grant or denial of a motion for continuance by either party will not be disturbed absent a showing of manifest abuse of discretion. Fisher's conclusory allegation does not show an abuse of discretion.
CrR 3.3(f)(2).
State v. Downing, 151 Wn.2d 265, 272-73, 87 P.3d 1169 (2004).
D. Sentence
Whether Fisher's sentence exceeds the statutory maximum is an issue of statutory interpretation we review de novo.
State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
The trial court sentenced Fisher to the statutory maximum confinement of 120 months for each conviction for first degree promoting prostitution, to be served concurrently, and 9 to 18 months community custody. The sentence, on its face, exceeds the statutory maximum term of 120 months. Courts must limit the total sentence imposed to the statutory maximum. We affirm Fisher's convictions but remand for a new sentence.
State v. Linerud, ___ Wn. App. ___, 197 P.3d 1224 (2008).
Conclusion
We affirm Fisher's convictions but remand for a new sentence, which shall not exceed the statutory maximum.
WE CONCUR: