Superior Court County: King. Superior Court Cause No: 94-1-02971-8-SEA. Date filed in Superior Court: 11/3/94. Superior Court Judge Signing: Carmen Otero.
Written by: Agid, J., Concurred by: Kennedy, Acj, Ellington, J.
AGID, J. -- The State appeals Anzala Ha'mim's exceptional sentence downward on the ground that the trial court improperly relied on Ha'mim's lack of prior police contacts and her age at the time of the crime as mitigating factors. We agree that recent case law addressing the validity of these mitigating factors requires that we reverse Ha'mim's sentence.
On May 1, 1994, Anzala Ha'mim, her twin sister Awayla, and a male companion went to the Hair Skill Design Salon on Beacon Avenue South in Seattle. The store was closed but two employees, Joseph David Baril and Hon Nan Yan, were standing in the front of the shop. The group walked in and Awayla Ha'mim asked if she
could make a hair appointment. The male asked if he could use the bathroom. Baril told him he could not because another employee was using it. Anzala Ha'mim then pulled a .38 caliber revolver from her coat, pointed it at Hon Nan Yan and ordered her into the bathroom at the back of the shop. King Fai Yan, Hon Nan Yan's brother, was leaving the bathroom when Hon Nan Yan came inside followed by Anzala Ha'mim. Ha'mim pointed her gun at King Fai Yan and ordered him to the ground. With the gun pointed at his head, she took his wallet from his back pocket.
Meanwhile, the male was at the cash register demanding money from Baril. Baril, who is hearing impaired, did not respond and ordered the male out of the salon. Anzala Ha'mim came out of the bathroom and pointed the gun at Baril. At the same time, the male tried to grab him. King Fai Yan came out of the restroom and both he and Baril struggled with Anzala Ha'mim over the gun. During the struggle, a round was fired into the salon's plate glass window. Awayla Ha'mim and the male ran out of the salon. Anzala Ha'mim also tried to flee but Baril tripped her and held her at gunpoint until the police arrived.
The State charged Anzala Ha'mim with first degree robbery and attempted first degree robbery, alleging both were committed with a deadly weapon. Ha'mim pleaded guilty to first degree robbery with a deadly weapon enhancement. She had no prior offenses and faced a standard range sentence of 55 to 65 months. She was 18 when she committed her crime. She requested an exceptional sentence downward based on her youth and her lack of prior police contacts. The court agreed and sentenced her to 31 months. The State appeals.
The trial court concluded that Ha'mim's lack of prior police contacts was a valid mitigating factor justifying an exceptional sentence downward under this court's opinion in State v. Freitag, 74 Wash. App. 133, 873 P.2d 548
(1994), rev'd, 127 Wash. 2d 141, 896 P.2d 1254, modified, 905 P.2d 355 (1995). In that case, the defendant had an offender score of 0. The trial court gave her an exceptional sentence downward because, apart from having no criminal history that counted in her offender score, she had had no prior contacts with the police at all. In a split decision, this court held that, although a trial court may not consider a defendant's lack of criminal history which has already been factored into her offender score, it may properly consider her complete lack of police contacts to impose a sentence outside the standard range. 74 Wash. App. at 140-41. After Ha'mim was sentenced, the Supreme Court, in a per curiam opinion from which three justices dissented, reversed Freitag, stating it has consistently "held that lack of criminal history is an insufficient ground for sentencing below the standard range since the Legislature specifically considered criminal history when establishing standard sentencing ranges. 'Because criminal history is one of the components used to compute the presumptive range for an offense, it may not be used as a mitigating factor.'" Freitag, 127 Wash. 2d at 144 (quoting State v. Rogers, 112 Wash. 2d 180, 183, 770 P.2d 180 (1989)). Unlike this court, the Supreme Court did not address any distinction among prior police contacts, criminal history like misdemeanors, that are convictions but are not factored into a defendant's offender score and the ...