Opinion
No. 62339-7-I.
September 14, 2009.
Appeal from the Superior Court, King County, No. 07-1-03345-5, Julie A. Spector, J., entered August 15, 2008.
Affirmed by unpublished opinion per Becker, J., concurred in by Lau and Leach, JJ.
Jabarie Phillips asks this court to remand his case for a new sentencing hearing, arguing that the trial court miscalculated his offender score by failing to treat two previous crimes as the same criminal conduct. We affirm.
Phillips was convicted of manslaughter in the first degree. At sentencing, he argued that his 1992 convictions for taking a motor vehicle without permission and attempting to elude a pursuing police officer involved the same criminal conduct and, therefore, his offender score should have been six, not seven. The trial court rejected Phillips' argument and counted the two crimes separately.
Phillips argues that the trial court erred. We will not disturb a trial court's decision about same criminal conduct unless the court clearly abused its discretion or misapplied the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990); State v. Lopez, 142 Wn. App. 341, 351, 174 P.3d 1216 (2007), review denied, 164 Wn.2d 1012 (2008).
Crimes constitute the "same criminal conduct" if they "require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). The absence of any of these elements precludes a finding of same criminal conduct. State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). We narrowly construe RCW 9.94A.589(1)(a) and disallow most assertions of same criminal conduct. State v. Wilson, 136 Wn. App. 596, 613, 150 P.3d 144 (2007).
In deciding whether crimes encompass the same criminal conduct, we focus on whether the defendant's intent, viewed objectively, changed from one crime to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987). Whether the defendant's intent changed may be determined in part by whether one crime furthered the other. Vike, 125 Wn.2d at 411.
Phillips contends that his intent was the same for taking a motor vehicle without permission and attempting to elude a pursuing police officer, but his self-serving statement is not determinative of his intent. See State v. Freeman, 118 Wn. App. 365, 378, 76 P.3d 732 (2003) (the trial court was not bound to accept defendant's self-serving assertion that he intended only robbery and shot the victim to further his intent to commit robbery). Viewed objectively, the intent for taking a motor vehicle without permission is to take or drive away another person's vehicle. See RCW 9A.56.070. For the crime of attempting to elude a police vehicle, the intent is to elude the police. See RCW 46.61.024. Although Phillips may have fled the pursuing police vehicle to avoid the consequences of taking the car, his subjective intent does not establish that the intent for the two crimes was the same.
Phillips also contends that his crimes happened at the same time and place. Relying upon the joinder language in the 1992 charging documents, he argues that the crimes necessarily occurred as part of "a continuous transaction or in a single, uninterrupted criminal episode over a short period of time," thus satisfying the test for "same time" as stated in State v. Young, 97 Wn. App. 235, 240, 984 P.2d 1050 (1999). The information filed when Phillips was charged in 1992 alleged that his crimes "were part of a common scheme or plan, and . . . were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the other."
Joinder language, however, is insufficient to show that crimes comprise the same criminal conduct. State v. Dunaway, 109 Wn.2d 207, 214 n. 4, 749 P.2d 160 (1988). The record also does not indicate when Phillips took the car in relation to being pursued by the police vehicle or where the two crimes occurred. Phillips has not shown that the crimes happened at the same time and place.
Finally, the two crimes did not involve the same victim. The victim of the crime of taking a motor vehicle without permission was the car's owner. State v. Webb, 112 Wn. App. 618, 624, 50 P.3d 654 (2002). The victim of the attempt to elude a police vehicle was the pursuing officer and the civilians endangered by Phillips' attempt to get away. Webb, 112 Wn. App. at 624; see RCW 46.61.024 (driver who willfully fails to stop and drives in a reckless manner while attempting to elude a pursuing police vehicle is guilty of attempting to elude).
Phillips' 1992 crimes did not satisfy any of the criteria to constitute the same criminal conduct. The trial court did not abuse its discretion or misapply the law when it counted the crimes separately in calculating Phillips' offender score.
Phillips makes other arguments in a statement of additional grounds for review under RAP 10.10. He first contends that the trial court should not have included any of his juvenile convictions in the calculation of his offender score for an adult conviction. But RCW 9.94A.525 requires juvenile convictions to be included when calculating the offender score. The trial court correctly assigned one-half point for each of Phillips' prior juvenile nonviolent felony convictions. See RCW 9.94A.525(8) (if present conviction is for a violent offense not covered in subsection (9), (10), (11), (12), or (13) of RCW 9.94A.525, prior juvenile nonviolent felony convictions count one-half point for each). The trial court correctly included Phillips' juvenile convictions in his offender score.
The second claim of error Phillips asserts in his statement of additional grounds for review is unclear:
I had for [sic] points on my record prior to this convictions, which they shouldn't be able to add two additional points, plus 1 point that gave me a score of 7 points. For one crime just because I have a prior adult conviction. I should be able to get a third off for good conduct time instead of a 1/5th. (Which in all will leave me with a score of 2 points.) I've been convicted on two separate crimes.
Phillips obviously disagrees with the trial court's calculation of his offender score, but he has not shown a sufficient basis to question the correctness of the calculation. He is not entitled to relief.
Affirmed.
WE CONCUR: