En Banc. Brachtenbach, J. Dore, C.j., Utter, Dolliver, Andersen, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.
Alfonso Batista was convicted of first degree murder and first degree assault. Batista maintains that the trial court erred in imposing an exceptional sentence, consisting of consecutive sentences for the crimes. The trial court justified the consecutive sentences by relying upon RCW 9.94A.390(2)(f),*fn1 which allows for an exceptional sentence where a presumptive sentence would be clearly too lenient in light of the purposes of the Sentencing Reform Act of 1981 (SRA). In doing so, however, the trial
court misconstrued the nature and effect of RCW 9.94A.390(2)(f).
The trial court seemed to believe that consecutive sentencing was justified by relying on this factor despite the fact that the trial court stated that an exceptional sentence in the form of concurrent sentences was not justified. The trial court seemed to regard the "clearly too lenient" factor as a device for imposing consecutive sentences, rather than treating it as an aggravating factor like others set out in RCW 9.94A.390(2).
Because of this manner of applying RCW 9.94A.390(2)(f), the trial court's imposition of an exceptional sentence is affected by legal error aside from other issues raised by defendant at this stage of review. We note that the same error made by the trial court in this case is reflected in the trial court's findings and conclusions set out in State v. Vandervlugt, 56 Wash. App. 517, 521, 784 P.2d 546 (1990). We take this opportunity to resolve this confusion, particularly because it is necessary for full disposition of the case before us. See RAP 1.2(a); RAP 12.2. We explain the applicable legal standards and remand for resentencing in light of our analysis herein.
On November 3, 1987, about 4 p.m., a brown or dark maroon El Camino pulled into an alley in downtown Yakima and stopped. Batista was the driver of the car. The passenger, Carlos Garcia Hernandez, got out of the car with a semi-automatic rifle, in the nature of an AK 47 assault rifle, and fired a number of times into a group of men playing dice in the backyard of an apartment building. One man was shot and killed. Another man was shot in the leg; the bullet shattered his ankle. Bullets sprayed the area, one striking a ceiling fan and light in a nearby house and another striking a truck.
Hernandez got back into the El Camino and the car sped north in the alley and then onto a nearby street. Batista and Hernandez were apprehended shortly thereafter.
Following trial and return of the jury verdict of guilty on the murder and assault charges, the trial court entered the following findings of fact:
Both the victims herein, on the afternoon of November 3, 1987, were in the back/side yard of an apartment building in the City of Yakima, playing a dice game with several other persons. None of these individuals, including the victims, had had any prior dealings of any kind with either defendant, and had no reason to suspect that what would shortly happen would happen. Both victims herein were totally exposed, and unsuspecting of anything as they innocently played dice.
As testified to by witnesses herein at trial, defendant Batista as the driver and defendant Hernandez as the passenger had driven by the subject apartment building on several occasions prior to the shooting including driving northbound in the alley immediately behind the apartment in the same direction as when the shooting occurred on the afternoon of November 3. This activity took place on more than one occasion, during the hours of darkness as well as shortly before the shooting and was participated in by both defendants. It is obvious that from this activity the defendants were trying to learn when, where people would be in and around the residence, its yard, the layout of the building, yard, etc., as well as the ingress and escape routes.
The type of weapon used by defendants, an AK 47 Assault Rifle, while it can be purchased by members of the public, it is not a commonly found or used firearm. It, as well as its ammunition, obviously had to be obtained especially for its intended use on November 3.
The actual shooting as well as materials noted in Sections IV and V, above, clearly show that this was a very deliberate execution.
The trial court entered the following conclusions of law:
The defendants engaged in a very deliberate and sophisticated murder and assault far exceeding the normal planning for same and thereby exhibited the degree of sophistication contemplated by RCW 9.94A.390(2f) [ sic ].
Given the foregoing Findings of Fact the court also concludes that the victims herein were particularly vulnerable as that term is used in the sentencing reform act.
Considering the purposes of the sentencing reform act as expressed in RCW 9.94A.010(1) (4) the multiple offense policy of RCW 9.94A.400 results in sentences for ...