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State v. Valencia

Court of Appeals of Washington, Division 2

January 17, 2018

STATE OF WASHINGTON, Respondent,
v.
ADRIAN REYNA VALENCIA, Appellant.

          MAXA, A.C.J.

         Adrian Valencia appeals his conviction for failure to register as a sex offender and his sentence. At sentencing following his conviction, the trial court included in Valencia's offender score two prior convictions for failure to register: one for failing to register in December 2014 when he moved from Oregon to Washington and one for failing to report weekly in March 2015 when he had no fixed residence. These convictions were entered on the same day as each other and resulted in concurrent sentences. The trial court ruled that the two convictions did not constitute the same criminal conduct.

         We hold that the trial court did not err in determining that Valencia's two prior offenses were not the same criminal conduct when calculating his offender score. In the unpublished portion of this opinion, we reject Valencia's other claims relating to his conviction. Accordingly, we affirm Valencia's conviction for failing to register as a sex offender and his sentence.

         FACTS

         2015 Sex Offender Registration Convictions

         In 2010, Valencia was convicted of attempt to commit sex abuse in Oregon. As a result, he was required to register as a sex offender in Washington.

         In December 2014, the State charged Valencia with a violation of sex offender registration requirements. The State alleged that between December 2 and 4, 2014, Valencia failed to register with the sheriffs office within three days after moving to Thurston County from Oregon, as required under Washington law.

         In February 2015, Valencia registered as transient in Thurston County. The State subsequently charged Valencia with a violation of sex offender registration requirements. The State alleged that between March 18 and 31, 2015 Valencia failed to report on a weekly basis, as required under Washington law.

         In November 2015, Valencia pleaded guilty to two counts of violating sex offender registration requirements regarding the December 2014 and March 2015 violations. The sentencing court imposed concurrent sentences. The court did not address whether the two offenses encompassed the same criminal conduct and included both convictions in Valencia's offender score.

         2016 Conviction and Sentencing

         In 2016, Valencia again was charged with and convicted of failure to register as a sex offender. Following a sentencing hearing, the trial court found that Valencia's 2014 and 2015 failure to register offenses did not encompass the same criminal conduct. The trial court calculated Valencia's offender score as 8, counting the two convictions separately.

         Valencia appeals his conviction and sentence.

         ANALYSIS

         Valencia argues that the trial court erred in ruling that the offenses underlying his two 2015 convictions for failure to register as a sex offender did not encompass the same criminal conduct as defined in RCW 9.94A.589(1)(a). Therefore, he claims that both convictions should not have been included in his offender score. We disagree.

         A. Legal Principles - Same Criminal Conduct

         1. Sentencing of Multiple Current Offenses

         For purposes of calculating a defendant's offender score, multiple current offenses that encompass the same criminal conduct are counted as one offense. RCW 9.94A.589(1)(a). Under RCW 9.94A.589(1)(a), two or more offenses constitute the "same criminal conduct" when they "require the same criminal intent, are committed at the same time and place, and involve the same victim." If any of these elements is not present, the offenses are not the same criminal conduct. State v. Aldana Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 (2013). And the definition of "same criminal conduct" generally is applied narrowly to disallow most same criminal conduct claims. Id.

         The defendant bears the burden of establishing that two or more offenses encompass the same criminal conduct. Id. at 539. "[E]ach of a defendant's convictions counts toward his offender score unless he convinces the court that they involved the same criminal intent, time, place, and victim." Id. at 540.

         2. Calculation of Offender Score for Subsequent Conviction

         When a trial court in a subsequent case calculates a defendant's offender score, it must address whether any prior offenses constitute the same criminal conduct. Under RCW 9.94A.525(5)(a)(i), this process involves two parts. First, if a previous sentencing court had found that the prior offenses encompassed the same criminal conduct under RCW 9.94A.589(1)(a), that prior determination is binding. RCW 9.94A.525(5)(a)(i); State v. Johnson, 180 Wn.App. 92, 102-03, 320 P.3d 197 (2014). Second, for any other prior adult offenses for which sentences were served concurrently, the current sentencing court must determine "whether those offenses shall be counted as one offense or as separate offenses using the 'same criminal conduct' analysis found in RCW 9.94A.589(1)(a)." RCW 9.94A.525(5)(a)(i).

         We review a sentencing court's determination of whether two offenses encompass the same criminal conduct for an "abuse of discretion or misapplication of law." Aldana Graciano, 176 Wn.2d at 537. In this context, a sentencing court abuses its discretion if the record supports only the opposite conclusion. Id. at 537-38. "But where the record adequately supports either conclusion, the matter lies in the court's discretion." Id. at 538. In addition, a sentencing court abuses its discretion by applying the wrong legal standard. Johnson, 180 Wn.App. at 100.

         B. Failure to Register as a Sex Offender

         Valencia argues that his two prior offenses that were sentenced concurrently - failing to register within three days when he moved to Washington in December 2014 and failing to report weekly in transient status in March 2015 - constituted the same criminal conduct. The question here is whether under RCW 9.94A.589(1)(a) these offenses involved the (1) same criminal intent, (2) same time and place, and (3) same victim. Aldana Graciano, 176 Wn.2d at 540. The primary issue here is whether Valencia's two offenses occurred at the same time.

         1. Offenses at Different Times

         Multiple offenses will be treated as occurring at the same time if they are "part of a continuous, uninterrupted sequence of conduct over a very short period of time." State v. Porter,133 Wn.2d 177, 183, 942 P.2d 974 (1997). On the other hand, multiple offenses do not occur at the same time if the defendant fails to show that they were ...


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