                                                                                            FILED
                                                                                    COURT OF APPEALS
       IN THE COURT OF APPEALS OF THE STATE OPIANNGTON
                                                                                   2014 NOV — Li AM 10: 04
                                                    DIVISION II
                                                                                   STATE OF WASHINGTON
 STATE OF WASHINGTON,                                                                 No. 44 :     1 - 1 - II
                                                                                    BY
                                                                                                  UTY
                                       Appellant,


           v.



 LAUREN LUCILLE WRIGHT,                                                      UNPUBLISHED OPINION


                                       Respondent.



           MELNICK, J. —       The State appeals the exceptional sentence below the standard range


imposed after a jury found Lauren Lucille Wright guilty of vehicular assault and third degree

assault.    The State argues that Wright' s age and lack of judgment did not justify an exceptional

sentence and that the trial court lacked authority to order Wright to serve all but three days of her

sentence on electronic       home monitoring. We agree with the State and therefore we reverse and


remand for the imposition of a standard range sentence.

                                                          FACTS


           On June 22, 2010, Wright' s car collided head on with a car driven by Karin Lundy. Lundy

suffered several      broken bones      and   her   passenger suffered minor         injuries.    Wright had turned 18


years old    nine   months   before the collision.        The State charged her by amended information with

vehicular assault and third degree assault.


           At her trial, a state trooper testified that the collision occurred on Sedgwick Road, a two

lane    road with a   45   mile per   hour   speed   limit.    Wright drove in a no- passing zone marked with a

solid   double   yellow    line. The drivers of a car and a semi -truck testified that Wright passed them


moments      before colliding    with   Lundy,      who   had just turned left      onto   Sedgwick Road. The truck


driver testified that Wright      was   driving 60 -65        miles per   hour   as she passed.
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          Wright talked to an investigating officer and admitted that she drove 60 -70 miles per hour

because    she was       late to   pick   up her     mother at     the   ferry.    Wright acknowledged she exceeded the


speed limit and said that she did not take a different road because cars on that road " go slow, and

it' s hard to    pass cars."       II Report    of   Proceedings ( RP)        at   131.    Wright admitted to the officer that


the accident might have been avoided if she had driven slower and honked her horn.

          Wright testified that           she   had been       driving     for 8 - 9    months   before the   accident.   While


unfamiliar with the location of the accident, she knew Sedgwick Road had a 45 mile per hour


speed limit. She explained to the jury that she sped because her mother,was waiting. She admitted

that she might have crossed a solid line to pass the vehicles in front of her and that her speeding

could have contributed to the collision. She testified that she completed the pass and then swerved


left to   avoid    the   accident.     The State' s accident reconstructionist testified that the cars collided


when Wright was travelling eastbound in the westbound lane and Lundy was attempting to turn

left into the westbound lane.

                                                                                    1
          The     jury    found Wright guilty             on      both   counts.          The State submitted a sentencing

memorandum supporting its position that Wright' s standard range was 6 -12 months and that her

offenses    did   not allow        home monitoring         as a    sentencing       option.   The defense conceded that the


court could not impose electronic home monitoring but argued for an exceptional sentence

downward on the bases that the victim initiated the incident, insurance existed to compensate her,

Wright had no criminal history, and she was only 18 at the time of the collision. The defense asked

the court not to impose jail time.




1                                                                                                                    See RCW
    The   jury    was     instructed solely          on   the "   reckless"        prong   of vehicular   assault.

46. 61. 522( 1)( a).



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         At the sentencing hearing, the trial court acknowledged that electronic home monitoring

and a first -offender waiver were unavailable due to the nature of Wright' s offenses. The trial court


added, however, that electronic home monitoring could be imposed as part of an exceptional

sentence.



          The trial court rejected Wright' s request for an exceptional sentence on the first three bases

listed above. But, the court then noted that while age alone could not support a mitigated sentence,


cases showed that "crimes that are typical of teenagers showing a lack ofjudgment might fit within

the statutory mitigating factor that states that the defendant' s capacity to appreciate his or her

conduct    is impaired." RP ( Apr. 5, 2013) at 40. The court concluded that Wright' s lack ofjudgment


because of her age and inexperience provided a substantial and compelling reason to impose a

mitigated exceptional sentence.



          The trial court referred to unpublished authority in concluding that it could order electronic

home monitoring as part of an exceptional sentence. The court imposed a sentence of six months,

with all   but three days     of   it to be   served on electronic   home monitoring.      It denied the State' s


motion     for   reconsideration.      The trial court entered findings of fact and conclusions of law in

support of the exceptional sentence. The pertinent findings provide:

                                                         IX.
                  Ms. Wright was intentionally driving well over the speed limit, passing
          vehicles, and passed in a no- passing zone on a hill, which resulted in a collision.

                                                          X.

                     It is unlikely that Ms. Wright is going to learn anything from spending time
          in jail.


                                                          XI.
                     Ms.   Wright' s    testimony    reflects   an   immature   approach    to   life,   not


          uncommon to young people who have yet to reach a point in their life where they
          appreciate that taking responsibility for their actions is always the right thing to do.




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                                                          XII.
                    Ms. Wright' s emotional state contributed to this offense. This left the Court
         believing that Ms. Wright' s apparent lack of insight into her own responsibility is
         unlikely to be repeated in the future.

                                                         XIII.
                    At the time of the incident, Ms. Wright was barely 18 years old, and it was
         very clear that Ms. Wright [was] a new driver.

Clerk' s Papers ( CP) at 74. The court then added these conclusions of law:

                                                          XII.
                    The Ha 'mim decision (State     v.   Ha 'mim, 132 Wn.2d 834 ( 1997)[)] states that

         crimes that are typical of teenagers showing a lack of judgment might fit within the
         statutory mitigating factor that states that the defendant' s capacity to appreciate his
         or   her   conduct   is impaired.   It is the Court' s conclusion that [ RCW] 9. 94A.535 and
         the relevant Washington state case law grants the Court the authority to consider a
         person' s age as to whether it significantly impaired Ms. Wright' s capacity to
         conform to the requirements of the law.
                 The Ha 'mim court indicates that a Court can consider this when this is the
         type of offense that is typical of a youthful offender, and the Court doesn' t believe
         there are many more offenses that are typical of youthful offenders in Superior
         Court felonies than this type of offense, which is typically committed by young
         persons in particular.
                     As a result, the Court finds there are facts in the record that support, by a
         preponderance of the evidence, that Ms. Wright' s lack of judgment due to her age
         and inexperience warrants a finding that there is a substantial and compelling
         reason to deviate below the standard range sentence.


                                                          XIII.
                     The Court finds, pursuant to some unpublished opinions that were helpful
         in guiding the Court in fashioning the sentence, that home monitoring can be
         ordered as an exceptional sentence when the statute prohibits it.

                                                          XIV.
                     As a result, the Court sentenced Ms. Wright to six months in custody, with
         three days to be served in custody at the jail, and the remainder to be served on
         home monitoring.

CP 76 -77.


         The State appeals Wright' s exceptional sentence. 2




2 We granted the State' s motion to stay the sentence pending the outcome of this appeal.

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                                                        ANALYSIS


I.        DEPARTURE FROM THE STANDARD RANGE


          A trial court generally must impose a sentence within the standard range established in the

Sentencing       Reform Act      of   1981 ( SRA). State v. Fowler, 145 Wn.2d 400, 404, 38 P. 3d 335 ( 2002);


RCW 9. 94A.505( 2)(       a)(   i).   A trial court may impose a sentence outside the standard range if it finds

that substantial and compelling reasons justify an exceptional sentence. State v. Statler, 160 Wn.

App.   622, 639, 248 P. 3d 165 ( 2011); RCW 9. 94A. 535.                In reviewing an exceptional sentence, we

may reverse if we find

           a) ...   that the reasons supplied by the sentencing court are not supported by the
          record which was before the judge or that those reasons do not justify a sentence
          outside the standard range for that offense[.]


RCW 9. 94A.585( 4).


          The SRA contains a list of aggravating and mitigating factors that the court may consider

in exercising its sentencing discretion. Fowler, 145 Wn.2d                   at   404; RCW 9. 94A. 535.       Although


this list is not exclusive, the reasons must relate to the crime and make it more, or less, egregious.

Fowler, 145 Wn.2d         at    404.    In other words, any reasons that are relied on for deviating from the

standard range       must "'     distinguish the defendant' s crime from others in the same category. "'

Fowler; 145 Wn.2d at 405 ( quoting State v. Gaines, 122 Wn.2d 502, 509, 859 P. 2d 36 ( 1993)).

          In imposing an exceptional sentence, a court may not take into account the defendant' s

criminal    history.    Fowler, 145 Wn.2d          at   405.   Nor may a court base an exceptional sentence on

factors   personal     in nature to      a particular   defendant,   including   the defendant'   s age.   State v. Law,


 154 .Wn.2d 85, 97 -98, 110 P. 3d 717 ( 2005);             State v. Ha' mim, 132 Wn.2d 834, 846 -47, 940 P. 2d

633 ( 1997).




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          In Ha 'mim, the defendant              was    18   when she committed             first degree robbery. 132 Wn.2d at


837. The trial court imposed an exceptional sentence downward based on her youth and lack of


prior   police contacts.          132 Wn.2d at 837. Because the nature of the defendant' s offense made her

ineligible for the first -time offender option, the Supreme Court concluded that her lack of criminal


history could not justify an exceptional sentence. Ha 'mim, 132 Wn.2d at 845.

          The court then considered whether the defendant' s youth should be considered as a


mitigating factor. Ha 'mim, 132 Wn.2d                        at   845.   The court concluded that age alone could not be


used to justify an exceptional sentence but that age was relevant to whether the defendant' s

capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the

requirements of the law was significantly impaired. Ha 'mim, 132 Wn.2d at 846 ( citing statutory

mitigating factor currently                codified    as    RCW 9. 94A.535( 1)(           e)).   The trial court made no such


finding in the Ha 'mim case, and the Supreme Court concluded that the defendant' s age alone was

insufficient to show that her capacity to appreciate the wrongfulness of her conduct or to conform

it to the   requirements          of the   law   was   in any way impaired. 132 Wn.2d at 846.


            The Ha 'mim decision             confirms        that the "      significant    impairment"    mitigating factor is a

 stringent       test."   State   v.   Rogers, 112 Wn.2d 180, 185, 770 P. 2d 180 ( 1989). As the Rogers court


explained, "[       I]mpaired judgment and irrational thinking is inherent in most crimes. The court must

find, based upon the evidence, that those factors led to significant impairment of defendant' s


capacity to       appreciate      the   wrongfulness of           his   conduct and   to    conform   to the    law."   112 Wn.2d at


185.     In Rogers, where the highly educated defendant, who had taught school and served as a

school principal, pleaded               guilty to first degree robbery, this           evidence     did   not   exist. 112 Wn.2d at

181 - 82.    The Supreme Court reversed his exceptional sentence downward after concluding that

even if the defendant' s judgment was impaired and his thinking irrational, no proof existed that




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this condition significantly impaired his capacity to appreciate the wrongfulness of his conduct or

to   conform     his   conduct      to the   requirements of        the law.   Rogers,   112 Wn.2d    at   185.   Similarly, the

fact that another defendant was " extremely emotionally distressed" at the time of his offense did

not alone prove the significant impairment required to support a mitigated exceptional sentence.


State v. Hobbs, 60 Wn. App. 19, 24, 801 P. 2d 1028 ( 1990).

         Here, the trial court concluded that Wright' s lack of judgment due to her age and


inexperience significantly impaired her capacity to conform to the requirements of the law. This

conclusion       is   similar   to the reasoning that the Supreme Court              rejected   in Ha 'mim.       The Ha 'mim


court rejected the argument that a defendant' s youth justifies an exceptional sentence because


young people tend to exercise poor judgment. 132 Wn.2d at 846. Ha' mim thus requires additional

evidence that the lack of judgment impaired the defendant' s capacity to appreciate the

wrongfulness of         her     conduct or     to   conform    it to the    requirements of   the   law. 132 Wn.2d at 846.


Here, Wright admitted that she had been speeding, and she told a trooper that the collision might

have been        avoided      had    she   been     driving   the   speed   limit. No evidence shows that she did not


understand that she passed others in a no- passing zone. Consequently, the record does not establish

that Wright' s lack ofjudgment significantly impaired her capacity to appreciate the wrongfulness

of her conduct or to conform it to the law.


          Wright argues on appeal that the trial court properly based its exceptional sentence on her

aberrant behavior. The court made no reference to aberrant behavior, finding instead that Wright' s

offenses    were       typical    of youthful        offenders.      Moreover, the Supreme Court has held that the


aberrational nature of a defendant' s crime is not a valid mitigating factor because it is simply

another way of saying that the defendant has little or no criminal history, which is taken into

consideration in establishing the standard range. Fowler, 145 Wn.2d at 407 -08.



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          We hold that the record does not show that the defendant' s ability to appreciate the

wrongfulness of her conduct was significantly impaired. We hold further that the defendant' s age

and lack of judgment alone do not warrant an exceptional sentence.


II.       ELECTRONIC HOME MONITORING


          Although our conclusion that an exceptional sentence was not warranted does not require


us to address the detention that the trial court imposed, we turn to this issue briefly. A trial court

may only impose a sentence authorized by statute. State v. Albright, 144 Wn. App. 566, 568, 183

P. 3d 1094 ( 2008) (         citing In re Postsentence Review ofLeach, 161 Wn.2d 180, 184, 163 P. 3d 782

 2007)).    The SRA does not allow a trial court to impose electronic home monitoring for a violent

offense or       for third degree       assault.    RCW 9. 94A. 734( 1)(    a), ( e);   RCW 9. 94A.030( 28). 3 Vehicular

assault    based     on recklessness         is    a violent offense.     RCW 9. 94A.030( 54)( a)( xiii).     Given this


statutory prohibition, electronic home monitoring may not be imposed as part of an exceptional

sentence.       State   v.   Fuller, 89 Wn.       App.   136, 139 -40, 947 P. 2d 1281 ( 1997); see also Ha' mim, 132


Wn.2d at 845 ( holding that it would violate intent of SRA to allow exceptional sentence based on

the fact that defendant is first -time offender where SRA specifically disallowed first -time offender

sentencing option for defendant' s offense).

           We reverse and remand for the imposition of a standard range sentence.




3
    We   cite    the sentencing        statutes as   currently   codified   for   ease of reference.   State v. Nava, 177
Wn.    App.      272, 288     n. 4,   311 P. 3d 83 ( 2013),   review    denied, 179 Wn.2d 1019 ( 2014).
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         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




                               C,(
         Johanson, C. J.              9'




                                                  9
