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State v. Davis

Court of Appeals of Washington, Division 1

May 29, 2018

STATE OF WASHINGTON, Respondent,
v.
TOMMIE LEE DAVIS, Appellant.

          Cox, J.

         Tommie Davis appeals his judgment and sentence following his conviction for unlawful possession of a firearm. He argues that five prior California burglary convictions were neither legally nor factually comparable to burglary in Washington and should not have been included in his offender score at sentencing. We agree.

         He also argues that the failure to personally provide him with discovery and his inability to obtain access to the jail library while awaiting trial deprived him of due process and the right to consult with counsel in a meaningful manner. He further claims that he was deprived of effective assistance of counsel in certain respects. He also argues that the trial court abused its discretion by denying motions for a continuance, substitution of counsel, and a new trial. We reject all of these arguments, except one.

         In his statement of additional grounds, Davis claims that the taking of his DNA unconstitutionally compelled him to incriminate himself. He also claims unconstitutional discovery violations. These arguments are unpersuasive and we reject them all.

         We affirm in part, reverse in part, and remand for resentencing.

         Davis got into a fight one night with Linda Wilson. As tensions rose, Davis drew a handgun. By Wilson's account, he fired the gun at her abdomen. He claimed that the gun fired accidentally when Wilson grabbed at it.

         Davis was arrested as he fled the scene. As he fled, he stashed the gun under a parked car, where police retrieved it. Forensic analysis found Davis's DNA on the gun and a ballistic match to the bullet removed from Wilson. But the analysis showed no evidence of Davis's fingerprints on the gun.

         The State charged Davis with one count of first-degree assault with a firearm allegation, and one count of first-degree unlawful possession of a firearm. Pretrial, police disclosed to Davis's counsel the lack of Davis's fingerprints on the gun. At trial, Davis testified that he owned the gun in question. Accordingly, he conceded that he was guilty of unlawfully possessing a firearm. The jury found him guilty of this crime but not guilty of first-degree assault.

         Davis then moved pro se for a new trial based on the State's alleged failure to provide adequate discovery. The trial court denied that motion, concluding that Davis lacked an independent right to discovery because he was represented by counsel through trial.

         The trial court duly sentenced Davis. In doing so, the court included in his offender score of eight five prior burglary convictions in California.

         This appeal followed.

         COMPARABILITY

         Davis argues that the five prior California burglary convictions are neither legally nor factually comparable to Washington burglary and should not have been included in his offender score. We agree.

         "The offender score is the sum of points accrued as a result of prior convictions."[1] Out-of-state convictions count towards that score if the trial court determines them to be comparable.[2] The State bears the burden to show that out-of-state convictions exist and are comparable.[3]

         The comparability analysis has two steps, one legal, and the other factual. At the legal step, the trial court "compare[s] the elements of the out-of-state conviction to the relevant Washington crime."[4] The conviction counts if its statutory definition "is identical to or narrower than the Washington statute and thus contains all the most serious elements of the Washington statute."[5] The foreign statute establishing the offense carries with it the construction placed upon it by the other jurisdiction's controlling court.[6]

         If the statutory definition of the relevant conviction is broader than its Washington equivalent, then the trial court proceeds to the factual step.[7] It determines whether the conduct underlying the out-of-state conviction would have violated the comparable Washington statute.[8] In making this determination, the trial court considers "only facts that were admitted, stipulated to, or proved beyond a reasonable doubt."[9]

         Thus, the court cannot consider "'[f]acts or allegations contained in the record, if not directly related to the elements of the charged crime, [which] may not have been sufficiently proven in the trial.'"[10] Accordingly, for example, the court cannot consider factual allegations in an indictment that were not tested and proven in trial.[11]

         This court reviews de novo the trial court's comparability analyses in calculating a defendant's offender score.[12]

          Legal Prong

         The first step in our analysis is to determine whether burglary in California is legally comparable to burglary in Washington. They are not legally comparable.

         RCW 9A.52.030(1) defines burglary in the second degree in Washington as follows:

A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling.

         Burglary in California is defined by Cal. Penal Code § 459, in relevant part, as follows:

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel... or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.

         A straightforward reading of the plain words of the two statutes shows that they are not legally comparable. First, the Washington burglary statute requires proof that the "entry" itself must be independently "unlawful."[13] In contrast, the plain words of the California statute only require an "ent[ry]." The words of the statute do not require that the entry itself be independently unlawful.

         Second, the Washington second degree burglary statute is confined to entry of "buildings, " as that term is used in Washington. In contrast, § 459 has a broader scope. For example, it includes "mine[s] or any underground portion thereof." This is beyond the scope of "buildings, " as used in Washington.

         The State concedes in its briefing that the scope of the California statute is broader than that of Washington. But it does so solely on the basis that the California statute does not confine its scope to "buildings, " as does Washington's burglary statute.[14]

         The State further argues that the California statute "[i]mposes [a] [c]ommon [l]aw [r]equirement [o]f [u]nlawful [e]ntry."[15] Because this is not supported by a close reading of relevant authorities, we disagree.

         We are guided in our analysis of whether "unlawful entry" is an element of § 459 by the decision of the United States Supreme Court in Descamps v. United States.[16] There, the Court considered whether Michael Descamps's prior California convictions for burglary and other crimes could be used to enhance his sentence under the Armed Career Criminal Act (ACCA). He argued that the burglary convictions could not count under federal law. As in this case, he had pleaded guilty to violating § 459.

         He also argued that the text of § 459 broadly states the elements of burglary in California by providing that "'a person who enters' certain locations 'with intent to commit grand or petit larceny or any felony is guilty of burglary.'"[17]

          Citing its earlier decision in Taylor v. United States, the Court started its analysis of whether a prior conviction for burglary could be used to enhance an ACCA sentence:

But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. The key, we emphasized, is elements, not facts. So, for example, we held that a defendant can receive an ACCA enhancement for burglary only if he was convicted of a crime having 'the basic elements' of generic burglary-i.e., 'unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.' And indeed, we indicated that the very statute at issue here, § 459, does not fit that bill because "California defines 'burglary' so broadly as to include shoplifting.'[18]

         Had the Supreme Court viewed § 459 to include "unlawful entry, " it would have said so. But it concluded that the scope of the statute exceeded the scope of what it called "generic burglary-i.e., unlawful or unprivileged entry" into a building with the requisite intent to commit a crime.

         Applying this principle to the statutes before us, the Washington burglary statute encompasses what the Supreme Court calls "generic burglary" because it requires unlawful entry as an independent element. The California burglary statute, on the other hand, does not require unlawful entry as an element. It is broader. For example, as the Descamps court observed, it includes shoplifting. The two statutes do not have comparable legal elements.

         The State principally relies on People v. Davis, [19] a California Supreme Court case, to support its argument that the crime of burglary in California includes the element of unlawful entry. That reliance is misplaced.

         There, Michael Wayne Davis was convicted of burglary and other crimes.[20] He had presented a forged check to the teller at a check-cashing business by placing a check at a chute in a walk-up window.[21] On appeal, he challenged the sufficiency of the evidence to convict him of burglary because his use of the chute at a check cashing walk-up window could not reasonably be termed an entry into a building for purposes of § 459.[22]

         The focus of the California Supreme Court's analysis was the word "entry, " which is not defined by statute. The court ultimately held that the placement of a forged check in the chute of a walk-up window of the check cashing facility did not constitute "entry" for purposes of the statute.[23]

         In reaching its conclusion, the court surveyed a number of California cases. It cited a prior case that had stated that "[t]he crime of burglary consists of an act-unlawful entry-accompanied by the 'intent to commit grand or petit larceny or any felony.'"[24] Other than quoting § 459, that case did not explain why this is so. And it made no mention of the State's argument in the case before us, that this statute incorporates the common law element of unlawful entry.

         In any event, we do not read this statement regarding unlawful entry in Davis as the holding in that case. The word "unlawful" does not appear to have been at issue there. So, we are unpersuaded by the State's argument here that the California statute incorporates the common law element of unlawful entry.

         Likewise, we are unpersuaded by the State's argument that the use of the word "unlawful" in the California charging documents in the record before us illustrates that § 459 incorporates this common law element. Why the charging documents before us include that language is unexplained in the record. We will not speculate why the documents include this usage.

         For these reasons, we hold that § 459 is not legally comparable to the Washington second degree burglary statute, RCW 9A.52.030(1). Unlawful entry is not an element of that statute. And the statute is legally broader than Washington's burglary statute because it includes entry into places beyond the scope of "building, " as that term is used in Washington's burglary statute.

         Factual Prong

         Davis next argues that the State fails to meet its burden to show that the factual prong of comparability analysis is satisfied. We agree.

         Again, we are guided in our analysis by the United States Supreme Court's decision in Descamps.[25] In State v. Olsen, our state supreme court concluded that the federal framework of analysis for analyzing foreign convictions under the ACCA, as discussed in Descamps. "is consistent with the fin re Personal Restraint of Lavery framework, which limits our consideration of facts that might have supported a prior conviction to only those facts that were clearly charged and then clearly proved beyond a reasonable doubt to a jury or admitted by the defendant."[26] Underlying the analysis of prior convictions in these two cases is the Constitutional protection that "judicial determinations will not usurp the role of the jury in violation of the Sixth Amendment, " as explained by Apprendi v. New Jersey and its progeny.[27]

         In Descamps. the Supreme Court stated:

[The dispute] involves a simple discrepancy between generic burglary and the crime established in § 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers simple shoplifting, as even the Government acknowledges. In Taylor's words, then, § 459 'define[s] burglary more broadly' than the generic offense. And because that is true-because California, to get a conviction, need not prove that Descamps broke and entered-a § 459 violation cannot serve as an ACCA predicate. Whether Descamps did break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant.[28]

         The question here is whether the State has met its burden to prove that the five prior convictions for burglary under § 459 are factually comparable to burglary in Washington, given that they are not legally comparable.

         In State v. Thomas, this court performed a factual comparability analysis to determine whether prior California burglary convictions under § 459 were comparable to Washington burglary.[29] There, the State conceded that § 459 is not legally comparable to Washington burglary.[30] But the State urged that the record in that case showed that the charging documents, judgments, and the clerk's notation of the jury verdict established that Thomas had admitted that he entered a Sears store "unlawfully."[31]

         In analyzing for factual comparability, this court stated:

The key inquiry is whether, under the Washington statute, the defendant could have been convicted if the same acts were committed in Washington. While the sentencing court can examine the indictment or information as evidence of the underlying conduct, the elements of the crime remain the focus of the analysis. The court in Lavery cautioned against reliance on allegations that are unrelated to the elements of the crime.[32]
Quoting Lavery, this court further stated that:
'[w]hile it may be necessary to look into the record of the foreign conviction to determine its comparability to a Washington offense, the elements of the charged crime must remain the cornerstone of the comparison. Facts or allegations contained in the record, if not directly related to the elements of the charged crime, may not have been sufficiently proven in the trial.[33]

         This court also noted that where "the elements of the foreign crime are broader, there may be no incentive for a defendant to prove that he is guilty of more narrow conduct."[34]

         With these principles in mind, we examine this record to see if the State met its burden of proof to show factual comparability.

         Davis' March 6, 1996 burglary in California is the first on which the State relies. It is evidenced by the Felony Complaint dated March 7, 1996, that alleges, in relevant part, in Count 1:

On or about March 6, 1996, in the County of Los Angeles, the crime of SECOND DEGREE COMMERCIAL BURGLARY, in violation of PENAL CODE SECTION 459, a Felony, was committed by TOMMIE LEE DAVIS, who did willfully and unlawfully enter a commercial building occupied by JOHN'S FOOD MARKET with the intent to commit larceny and any felony.[35]

         This record also reflects that Davis eventually pleaded guilty to Count 1 of this Felony Complaint.[36] His April 10, 1993 burglary is the second on which the State relies. It is evidenced by the Felony Complaint dated April 13, 1993, that alleges facts that largely parallel those quoted above, except for the date and place of the "unlawful" entry.[37] This record also contains a plea form, evidencing that Davis pleaded guilty "to the [§ 459 burglary] offense(s) charged in [the felony] complaint."[38]

         Davis's October 2, 1991 burglary is the third on which the State relies. It is evidenced by the Felony Complaint dated October 3, 1991 that alleges facts that largely parallel those quoted above, with the same exceptions as to date and place of the "unlawful" entry.[39] This record also contains a plea form, evidencing that Davis pleaded guilty "to the [§ 459 burglary] offense(s) charged in [the felony] complaint."[40]

         His August 30, 1989 burglary is the fourth on which the State relies. It is evidenced by the Felony Complaint dated September 1, 1989, that alleges facts that largely parallel those quoted above, except as to the date and place of the "unlawful" entry.[41] This record also contains a plea form showing that Davis pleaded guilty "to the [§ 459 burglary] offense(s) charged in [the felony] complaint."[42]

         The February 6, 1988 burglary is the final one on which the State relies. It is evidenced by the Felony Complaint dated February 9, 1996, that alleges facts that largely parallel the prior quotation, except as to the date and place of the "unlawful" entry.[43] This record also contains a plea form together with a transcript of a hearing in open court in which Davis pleaded guilty to the charge of "commercial burglary in violation of Penal Code Section 459, a felony."[44]

         These burglaries fall short of the proof required to show that they should be included in Davis's offender score. First, as Descamps. Lavery, and Thomas stress, the elements of the foreign crime remain the focus of any factual inquiry when performing a factual comparability analysis. Thus, facts untethered from the elements of the charged crime to which a defendant later pleads guilty are not within this focus. That is because permitting such facts to support use of a prior conviction runs the risk of violating the Sixth Amendment protections discussed in Apprendi and its progeny.

         Second, as we already discussed in this opinion, § 459 does not include an “unlawful entry" element, as does Washington's burglary statute. The California statute is much broader, as the Supreme Court expressly determined in Descamps. This court reached the same conclusion in Thomas.

         Third, the consequence of these principles is that it is irrelevant whether Davis pleaded guilty to "unlawful entry, " as alleged in the California felony complaints in this record. As Descamps stated, that is irrelevant for purposes of sentencing enhancement under the ACCA. We see no reason to reach a different conclusion under our state comparability analysis.

         The State makes two arguments in support of including these burglary convictions in the offender score. Neither is convincing and we reject them both.

         In its briefing on appeal, the State argues that § 459 incorporates the "unlawful entry" of common law burglary. If this were correct, then Davis's plea that followed would not run afoul of the principles this court stated in Thomas, quoting Lavery, But we already discussed and rejected in this opinion why "unlawful" entry is not an element of § 459. Thus, inquiry into facts in the felony complaints that are not tied to that statute's elements is improper.

         At oral argument, the State advanced another argument. As we understand it, the State took the position that even if "unlawful entry" is not an element of § 459, use of the prior convictions in his offender score is still permissible because he admitted "unlawful entry" by his plea. We disagree.

         In support of this argument, the State appears to selectively rely on language from Olsen and other supreme court cases that states when a prior conviction may be used for enhancement. Courts are limited to "consideration of facts that might have supported a prior conviction to only those facts that were clearly charged and then clearly proved beyond a reasonable doubt to a jury or admitted by the defendant."[45]

         We say "selectively" because this statement of principle does appear, on its face, to permit use of any facts "admitted by the defendant." But this statement omits qualifying language in Lavery that in performing this factual inquiry:

'the elements of the charged crime must remain the cornerstone of the comparison. Facts or allegations contained in the record, if not directly related to the elements of the charged crime, may not ...

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