                                                               FILED 

                                                            JULY 31, 2014 

                                                     In the Office of the Clerk of Court 

                                                   W A State Court of Appeals, Division III 




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                        DIVISION THREE 


STATE OF WASHINGTON,                           )          No. 31281-0-111
                                               )
                      Appellant,               )
                                               )
              v.                               )          UNPUBLISHED OPINION
                                               )
JOSE JAVIER PERALTA MARTINEZ,                  )
                                               )
                      Respondent.              )

       KORSMO, J. -    The trial court imposed an exceptional sentence in this hit

and run-fatality case after finding that the victim was a willing participant in the

cnme. We disagree with that characterization and reverse.

                                       FACTS

       This tragic event was fueled, as so many of these cases are, by alcohol. The

victim, Nicholas Marez, and the defendant, Jose Javier Peralta Martinez, were

among a group of young men and women kicked out of a party after consuming

alcohol. The group of seven left the event in a five passenger car owned and,
No. 31281-0-III
State v. Peralta Martinez


initially, driven by Mr. Marez. It was shortly after 2:00 a.m. Mr. Peralta Martinez

left his father's car at the scene of the party.)

       Mr. Peralta Martinez "egged on" Mr. Marez and was allowed to drive the

vehicle. Sometime thereafter he wrecked the vehicle on a rural road three miles

east of Sunnyside. The accident occurred after Mr. Peralta Martinez overcorrected

when the car went onto the shoulder. All of the passengers were thrown from the

car. Mr. Marez died at the scene before help arrived.

       Mr. Peralta Martinez, who suffered injuries to one tooth and a finger, had

the only telephone among the group. He lent the phone briefly to one of the

passengers who attempted to call 911, but the call failed shortly after it was

answered. The call was made at 3:36 a.m. Mr. Peralta Martinez then took the

telephone back and walked away from the scene without rendering assistance to

Mr. Marez or any of the others. One of the other passengers walked to a residence

and 911 again was contacted. It was now about 4:00 a.m. Police eventually




       1 Mr. Peralta Martinez's father reported the car stolen; police recovered the
car from the party location and saw evidence that it had been operated using a
screwdriver. The police investigation of this report led to the evidence ultimately
connecting Mr. Peralta Martinez to the hit and run. He had been unknown to the
surviving passengers. Information concerning this part of the incident was
included in the affidavit of probable cause that we allowed the State to file after
argument in this case. We have not relied upon that information in reaching our
decision, but only recite from it here to fill in background information. The
findings in support of the exceptional sentence also relate that the trial judge
considered the document.

                                            2

No. 3l28l-0-II1
State v. Peralta Martinez


located the accident scene and discovered Mr. Marez's body. The other

passengers were transported to hospitals in Sunnyside and Prosser.

       An investigation led to the arrest of Mr. Peralta Martinez more than 48

hours after the accident. The Yakima County Prosecuting Attorney charged him

with one count of leaving the scene of a fatal accident and two counts of leaving

the scene of an injury accident. The former charge is a class B felony, while the

latter two counts were class C felonies.

       A plea agreement was reached that allowed Mr. Peralta Martinez to plead

guilty to the class B charge and the other two counts would be dismissed. The

standard range was 31 to 41 months with no period of community supervision.

The prosecutor agreed to recommend a standard range sentence of 33 months,

while the defense was free to seek a first offender waiver of the presumptive

sentence. The court accepted the agreement and the guilty plea. The matter was

set over two months for sentencing.

       The court heard testimony and argument at sentencing. The trial judge

concluded that the first offender waiver was not appropriate given the facts of the

case. The court did, however, declare an exceptional sentence and imposed a term

of 16 months confinement and 24 months of community supervision. The court

found four mitigating circumstances: (1) the sentence allowed Mr. Peralta

Martinez to make full restitution; (2) to a significant degree, the victim was an

initiator, willing participant, aggressor or provoker of the incident; (3) Mr. Peralta


                                           3

No. 31281-0-III
State v. Peralta Martinez


Martinez had no prior criminal history and had a driving record showing one

speeding infraction; and (4) community supervision was not provided for by

statute.

       Written findings were entered in support of the sentence. 2 The State then

timely appealed the exceptional sentence to this court.

                                    ANALYSIS

       The primary issue is whether Mr. Marez was a willing participant in the

crime. We review that issue, as with all exceptional sentences, under long-settled

statutory standards.

       An exceptional sentence may be imposed if the trial court finds "substantial

and compelling" reasons to go outside the standard range. RCW 9.94A.535. The

trial court must enter written findings of fact and conclusions of law if it does

impose an .exceptional sentence. ld. A nonexclusive list of mitigating factors is

recognized by statute. RCW 9.94A.535(1). However, an exceptional sentence

above the standard range must be based on a recognized statutory factor.

RCW 9.94A.535(2), (3).

       Either party may appeal an exceptional sentence. RCW 9.94A.585(2). An

exceptional sentence is reviewed to see if either (a) the reasons for the exceptional



       2 The trial court referred to the young people involved in the party as
"underage." Nothing in the record provided for this appeal refers to the age of any
of the participants other than Mr. Peralta Martinez, who was 21 at the time of the
incident.

                                          4

No. 31281-0-III
State v. Peralta Martinez


sentence are not supported by the record or do not justify an exceptional

sentence, or (b) the sentence imposed is clearly excessive or clearly too lenient.

RCW 9.94A.585(4). Thus, appellate courts review to see if the exceptional

sentence has a factual basis in the record, is a legally justified reason, and is not

too excessive or lenient. Stale v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005).

Differing standards of deference or nondeference apply to those three issues. Id.

       An exceptional sentence is appropriate when the facts of a case are atypical

and result in harm either more or less egregious than the norm. E.g., State v. Akin,

77 Wn. App. 575, 892 P .2d 774 (1995) (escape was less egregious than typical,

justifying mitigated sentence); State v. Harmon, 50 Wn. App. 755, 750 P.2d 664

(1988) (murder was more egregious than typical, justifying aggravated sentence).

Mere judicial disagreement with presumptive punishment is not a basis for setting

aside an exceptional sentence. Law, 154 Wn.2d at 95-96; State v. Pascal, 108

Wn.2d 125, 137-38, 736 P.2d 1065 (1987). The standard ranges reflect the

legislative balancing of the purposes of the Sentencing Reform Act of 1981

(SRA), chapter 9.94A RCW. Law, 154 Wn.2d at 95-96.

       With this background, we turn to the challenges presented in this appeal.

The State contends that the defendant's lack of criminal history cannot be a valid

basis for imposing an exceptional sentence and, for several reasons, that the victim

participation factor has no application to this case. The State does not expressly




                                           5

No. 31281-0-II1
State v. Peralta Martinez


address the other two bases for the exceptional sentence. 3 We address the criminal

history factor before turning to the arguments concerning victim participation.

       The SRA provides standard sentencing ranges based on the seriousness of

the offense and the defendant's felony history. RCW 9.94A.530(1). Accordingly,

the absence of prior convictions is a factor already considered by the legislature in

its computation of the standard range for an offense when it created the offender

score of "zero." For this reason, the absence of criminal history is not a basis for

an exceptional sentence. State v. Ha'mim, 132 Wn.2d 834,840-41,940 P.2d 633

(1997); State v. Freitag, 127 Wn.2d 141, 144, 896 P.2d 1254 (1995). The trial

court erred in basing an exceptional sentence in part on the defendant's absence of

criminal history.

       The parties primarily focused their arguments in this court on the victim

participation mitigation factor. That provision reads:




       3 We question whether the need to make restitution and the absence of
community supervision are valid mitigating factors. The legislature undoubtedly
understood that it is more difficult to make restitution when an offender is
imprisoned than when he or she is working in the community. The legislature also
determined that community supervision was not necessary for this offense. Thus,
on their face, these factors appear to reflect nothing other than disagreement with
the policies chosen by the legislature, something that cannot be a basis for an
exceptional sentence. Law, 154 Wn.2d at 95-96. Although a court can impose an
exceptional term of community supervision, the parties have not provided any
authority suggesting that a court can impose supervision where the legislature has
not authorized it. We, therefore, do not opine on that issue.

                                          6

No. 31281-0-III
State v. Peralta Martinez


       To a significant degree, the victim was an initiator, willing
       participant, aggressor, or provoker of the incident.

RCW 9.94A.535(1)(a).

       "The 'willing participant' factor is applicable where both the defendant and

the victim engaged in the conduct that caused the offense to occur." State v.

Hinds, 85 Wn. App. 474, 481, 936 P.2d 1135 (1997) (citing DAVID BOERNER,

SENTENCING IN WASHINGTON, § 9.12, at 9-21 (1985)). Hinds was a prosecution

for vehicular homicide based on reckless driving behavior. There the defendant,

18 years old, had driven the victim's car recklessly after drinking, resulting in the

death of the victim, who was 44 years old. ld. at 476. In addition to permitting

the defendant to drive her car, the victim also had supplied alcohol to the underage

driver. ld. This court concluded that the mitigating factor could apply to these

facts if there was a link between the victim's conduct and the defendant's

recklessness. ld. at 482. The court also restated the test as requiring a finding that

"both the victim and the defendant caused the offense to occur." ld. at 483. The

court analogized to proximate causation and determined that if the victim's

"conduct was a but-for and legal cause of Hinds's reckless driving, she

significantly participated in the offense." ld. at 483-84. The case was remanded

for the trial judge to clarify whether there was causal link between the victim's

behavior and the defendant's. ld. at 487.




                                            7

No. 31281-0-111
State v. Peralta Martinez


       Another case applying this mitigating factor was State v. McKee, 141 Wn.

App. 22, 167 P.3d 575 (2007). There, the defendant was convicted on separate

counts of raping two prostitutes who had willingly entered the defendant's truck to

perform acts of prostitution. Id. at 28-29. Instead, the defendant raped each

woman at gunpoint. Id. at 28. The trial court granted an exceptional sentence

below the standard range on the basis of the victims' willing participation in the

crimes. Id. at 29-30. This court reversed, concluding that although the victims

had agreed to consensual activity with the defendant, they had not agreed to rape

. at gunpoint and were not willing participants in the crimes. Id. at 34.

       The elements of felony hit and run-fatality are that the defendant: (1) drove

a vehicle in the State of Washington; (2) was involved in an accident; (3) death or

injury to a person occurred; and (4) the driver failed to stop immediately, remain

at the scene, and perform the statutory duties of providing aid and giving notice.

RCW 46.52.020; see State v. Komoto, 40 Wn. App. 200, 206, 697 P .2d 1025

(1985). The statute'" imposes upon the driver of a vehicle a positive, affirmative

course of action; it specifically designates several acts following the accident

which the operator must do to avoid the statutory penalty.'" State v. Vela, 100

Wn.2d 636, 639, 673 P.2d 185 (1983) (quoting State v. Martin, 73 Wn.2d 616,

625,440 P.2d 429 (1968)). It is the failure to provide assistance after the accident

that creates criminal liability. Id. at 640. Liability is not premised on the




                                           8

NO.31281·0·III
State v. Peralta Martinez


defendant's driving or any fault in causing the accident. State v. Perebeynos, 121

Wn. App. 189, 194-95,87 P.3d 1216 (2004).

       Washington courts have not previously considered the victim participation

mitigation factor in a felony hit and run case. The trial court here appeared to find

the victim's participation in the offense was "significant" due to his drinking with

the defendant and personally driving in a reckless manner prior to permitting the

defendant to drive. For several reasons, these facts do not establish a causal link

between the victim's participation and the crime.

       Initially, the court's reasoning is inconsistent with its determination that the

accident occurred because Mr. Peralta Martinez overcorrected after driving onto

the shoulder. There is nothing in this view of the accident as suggesting that it

resulted from any bad behavior by defendant, thus making any bad behavior by the

victim irrelevant.

       Second, there also is nothing to suggest that the accident occurred as a

result of Mr. Marez's earlier actions. The fact that Mr. Marez had driven

recklessly earlier in the evening does not appear causally connected to Mr. Peralta

Martinez's driving. Even if Mr. Marez had modeled reckless driving behavior,

Mr. Peralta Martinez has never contended that he, therefore, drove in a similar

manner.

       Third, any bad driving by either Mr. Marez or Mr. Peralta Martinez simply

was not related to the failure to provide aid. The focus of a hit and run charge is


                                          9

No. 31281-0-II1
State v. Peralta Martinez


on the driver's behavior after an accident. Mr. Marez, who was unresponsive and,

perhaps, already deceased, did not contribute in any manner to Mr. Peralta

Martinez's decision to flee without aiding the accident victims. We do not agree

with the State's argument that the victim participation mitigation factor can never

apply to a fatality hit and run charge because we can conceive of situations where,

prior to death, the victim might contribute to the defendant's decision to flee.

However, we do agree that the victim participation mitigating factor in a hit and

run charge must necessarily relate to the defendant's failure to satisfY the

postaccident duties. It is the failure to satisfY those duties that is the essence of the

crime of hit and run, and it is those duties that distinguish hit and run from other

criminal or noncriminal driving behavior. Unless the victim's participation relates

to the unique aspects of the crime, there simply was no participation in the offense

of hit and run. 4 That is the case here.

       The most that can be said is that Mr. Marez drank with Mr. Peralta

Martinez and then entrusted his car to him. 5 While that trust was shown to be



       4 Hinds is particularly constructive because the focus there was on the
connection between the victim's behavior and the defendant's recklessness, which
was the charging theory for the vehicular homicide count. The court's analysis did
not apply the mitigating factor merely because the victim had supplied alcohol and
entrusted her car to the defendant, but instead required the trial court to find a
causal connection between that behavior and the reckless driving that constituted
the crime. .85 Wn. App. at 487.
       5 According to Professor Boerner, this type of behavior would establish
victim participation in vehicular homicide. DA VlD BOERNER, SENTENCING IN
WASHINGTON, § 9.12, at 9-21 (1985).

                                           10 

No. 31281-0-111
State v. Peralta Martinez


fatally misplaced, it did not amount to Mr. Marez contributing to Mr. Peralta

Martinez's decision to flee from the accident without aiding the six injured people

he left behind. Mr. Marez's behavior did not cause Mr. Peralta Martinez's

behavior. Without a showing that both the defendant and the victim caused the

crime, there is no victim participation in the offense. McKee, 141 Wn.2d 22;

Hinds, 85 Wn. App. 474. That is the situation here. The trial court erred in

relying upon the victim participation mitigation factor.

       When an exceptional sentence is imposed in reliance on an invalid factor,

remand is required unless the trial court would have imposed the same sentence

absent the invalid factor. E.g., State v. Hooper, 100 Wn. App. 179, 188,997 P.2d

936 (2000). Remand for a new sentencing proceeding is required here.

       Reversed and remanded.

       A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR: 





Brown, A.C.J.




                                         11 

