                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        December 4, 2018



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II
    In the Matter of the Personal Restraint                          No. 49792-1-II
    Petition of:


    CHRISTIAN DELBOSQUE,                                        PUBLISHED OPINION

                          Petitioner.




          SUTTON, J. — In 1994, a jury found Cristian Delbosque guilty of aggravated first degree

murder committed when he was 17 years old. The superior court imposed a life sentence without

the possibility of parole. In 2016, under RCW 10.95.030 (the Miller-fix statute)1 and RCW

10.95.035, the superior court held an evidentiary hearing and entered an order imposing a

minimum term of 48 years with a maximum term of life imprisonment.

          Delbosque challenges his judgment and sentence, arguing that the superior court’s findings

of fact are unsupported by substantial evidence and that the superior court failed to adequately

consider the diminished culpability of youth as required by the Miller-fix statute when setting the



1
  In 2014, the Washington legislature responded to the United States Supreme Court’s ruling in
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), by enacting the
Miller-fix statute. See RCW 10.95.030(3)(a). The Miller-fix statute requires that a sentencing
court take into account the factors identified in Miller before sentencing a 16- to 18-year-old
offender to life without parole or early release. RCW 10.95.030(3)(a)(ii), (b). The legislature also
enacted a statute that requires that juveniles sentenced before 2014 to life without parole or early
release be resentenced under the Miller-fix statute. RCW 10.95.035(1).
No. 49792-1-II


minimum term. We hold that the superior court’s findings regarding Delbosque having an attitude

towards others reflective of the underlying crime, and of Delbosque’s permanent incorrigibility

and irretrievable depravity are not supported by substantial evidence. We further hold that the

superior court failed to comply with the Miller-fix statute when setting Delbosque’s minimum

term. Thus, Delbosque’s restraint is unlawful. Accordingly, we grant his Personal Restraint

Petition (PRP), reverse the judgment and sentence, and remand for resentencing.

                                             FACTS

       In 1994, Delbosque was convicted of aggravated first degree murder for the murder of a

young woman.      Delbosque was sentenced to a mandatory sentence of life without parole.

Delbosque was 17 years old when he committed the murder.

       In June 2016, the superior court conducted an evidentiary hearing to set a minimum term

of confinement under the Miller-fix statute and RCW 10.95.035(1). During this hearing, the

superior court heard extensive testimony from Delbosque’s friends and relatives regarding his

difficult and troubled childhood. The State presented testimony from the officer who investigated

the murder and victim impact testimony.

       The State also presented evidence from Robert Schreiber, the unit supervisor of the prison

where Delbosque was incarcerated. Schreiber testified that Delbosque was currently classified as

medium security and would qualify for minimum security except for the term of his sentence and

an immigration detainer. Schreiber testified that between 1995 and 2008, Delbosque had 10 prison

infractions, and that Delbosque’s last infraction was in 2010. The 2010 infraction asserted that

Delbosque used his leadership position in a gang to attempt to arrange an assault on another inmate.




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No. 49792-1-II


        Delbosque presented the testimony of two experts. Dr. Manuel Saint Martin evaluated

Delbosque for past and current mental health issues. Dr. Saint Martin diagnosed Delbosque with

borderline intellectual functioning and alcohol dependence at the time he committed the crime.

Dr. Saint Martin also testified that he believed the murder likely involved “some sort of psychotic

episode due to alcohol.” III Verbatim Report of Proceeding (VRP) at 423. In Dr. Saint Martin’s

opinion, Delbosque’s dependence on alcohol played a significant role in the murder.

        Dr. Sarah Heavin testified specifically regarding whether youth was a factor in Delbosque’s

case. Dr. Heavin testified that the major area in which youthfulness affects behavior is executive

functioning because of the youth’s underdeveloped frontal lobe. Generally, this results in juveniles

being more likely to engage in risk-taking behavior and more susceptible to peer pressure or peer

approval. Dr. Heavin opined that Delbosque was even more likely to exhibit these behaviors

because of his lower intellectual functioning and traumatic upbringing. Specifically, Dr. Heavin

testified that “youthfulness, combined with trauma, made him less likely to monitor his own

behavior responsibly, inhibit aggressive behavior.” III VRP at 513. In summary, Dr. Heavin

testified,

        Well, I’m not suggesting that Mr. Delbosque’s homicide be excused. I’m
        suggesting that the [c]ourt respectfully consider the effect that his early childhood
        had on his brain development. It’s my opinion that his relative risk taking was
        greater than a typically developing youth without those same risk factors, which
        placed him in the apartment drinking alcohol excessively with a gun. And once
        essentially this string of crimes that were committed that night started, he had more
        difficulty than the average teen behaving in a reasonable way.

III VRP at 537-38.

        After the hearing, the superior court entered the following findings of fact:




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No. 49792-1-II


       2. Childhood and Life Experiences. Mr. Delbosque endured a very difficult
       childhood up until the time of the murder, including a life with little nurturing,
       limited nutrition, and much chaos. Many risk factors are associated with the
       upbringing and development of Mr. Delbosque, including utero exposure to
       alcohol, his mother’s death at an early age, a life of impoverishment, and both
       sexual and physical abuse as a child.
       3. Degree of Responsibility. Mr. Delbosque is entirely responsible for the murder.
       No other person assisted him in the design or implementation of the murder.
       Alcohol dependence was not a predominate factor in the murder. Anger and a
       desire to conceal guilt were the predominate factors.
       4. Mr. [Delbosque]’s chances of becoming rehabilitated and the reflection of
       transient immaturity. Mr. Delbosque committed an extraordinarily brutal and
       vicious murder of a minor victim. Mr. Delbosque does not suffer from any
       diagnosable mental illness, but has been diagnosed with alcohol dependence. Mr.
       Delbosque continues to exhibit an ongoing attitude to others that is reflective of Mr.
       Delbosque’s underlying murder where he is choosing to advance his needs, even
       resorting to violence, over the well-being of others. This reflects an attitude that a
       third party’s well-being is insignificant and expendable in comparison to his needs.
       There is no identified program or treatment presented to deal with this negative
       attribute.

Clerk’s Papers (CP) at 30-31. Based on its findings, the superior court concluded,

       The brutal murder that Mr. Delbosque committed in October of 1993 was not
       symptomatic of transient immaturity, but has proven over time to be a reflection of
       irreparable corruption, permanent incorrigibility, and irretrievable depravity.

CP at 31.2 The superior court set a minimum term of 48 years with a maximum term of life

imprisonment.




2
 Delbosque argues that the superior court mislabeled this finding as a conclusion of law. Br. of
Appellant at 17. Findings of fact are determinations of whether the evidence shows that something
existed or occurred. Casterline v. Roberts, 168 Wn. App. 376, 382, 284 P.3d 743 (2012). We
agree. We treat findings of fact, labeled as conclusions of law, as findings of fact when challenged
on appeal. State v. Ross, 141 Wn.2d 304, 309-10, 4 P.3d 130 (2000). Because the superior court’s
conclusion of law relates to whether a fact existed, we treat it as a finding of fact.


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No. 49792-1-II


                                            ANALYSIS

                           I. PROPER REVIEW OF DELBOSQUE’S CLAIMS

         Delbosque filed a direct appeal of the superior court’s order imposing the new minimum

term. However, the proper method for Delbosque to seek review of the superior court’s order is a

PRP. State v. Bassett, 198 Wn. App. 714, 721, 394 P.3d 430 (2017), aff’d, ___ Wn. App. ___, 428

P.3d 343 (October 18, 2018). As a result, we requested supplemental briefing to allow Delbosque

to address whether the superior court’s order satisfied the requirements for relief from restraint

under RAP 16.4. Order Requesting Supplemental Briefing at 2 (April 17, 2018).

         In his supplemental brief, Delbosque argues that we should review his direct appeal of

the superior court’s order imposing the new minimum term of incarceration as a PRP.3 We

agree.

         RCW 10.95.035 provides for certain juvenile offenders sentenced to life without parole or

release before June 1, 2014, to be resentenced consistent with the Miller-fix statute. Bassett, 198

Wn. App. at 718, n.6. RCW 10.95.035(3) also provides that “[t]he court’s order setting a minimum

term is subject to review to the same extent as a minimum term decision by the parole board before

July 1, 1986.” Review of a minimum term decision by the parole board before July 1, 1986, was

obtained by filing a PRP. Bassett, 198 Wn. App. at 721.



3
   Delbosque also argues that RCW 10.95.035(3) is unconstitutional because it violates the
guaranteed right to appeal under article I, section 22 of the Washington Constitution. The State
declined to respond to Delbosque’s argument and instead argues that we should decline to address
it because it was raised for the first time in the supplemental briefing and was outside the scope of
this court’s order for supplemental briefing. Generally, this court will not consider an argument
raised for the first time in supplemental briefing. State v. Krajeski, 104 Wn. App. 377, 387, 16
P.3d 69 (2001). Accordingly, we do not consider Delbosque’s argument that RCW 10.95.035(3)
is unconstitutional.


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No. 49792-1-II


       “In order to facilitate review of a minimum term decision on the merits, we may disregard

a filing defect and treat a direct appeal as a PRP.” Bassett, 198 Wn. App. at 721-22. Although

Delbosque filed a direct appeal of the superior court’s order imposing the new minimum term of

incarceration, we disregard this procedural defect and review Delbosque’s appeal as a PRP.

                                  II. MINIMUM TERM SENTENCE

       Delbosque argues that the superior court’s findings of fact are unsupported by substantial

evidence and that the superior court failed to adequately consider the diminished culpability of

youth as required by the Miller-fix statute when setting the minimum term of his sentence. We

hold that (1) the superior court’s findings regarding Delbosque having an attitude towards others

reflective of the underlying crime, and of Delbosque’s permanent incorrigibility and irretrievable

depravity are not supported by substantial evidence, and (2) the superior court failed to comply

with the Miller-fix statute when setting the minimum term.

A. LEGAL PRINCIPLES

       “To obtain relief under a PRP where no prior opportunity for judicial review was available,

a petitioner must show that he is restrained under RAP 16.4(b) and that the restraint is unlawful

under RAP 16.4(c).” Bassett, 198 Wn. App. at 722. A petitioner is restrained under RAP 16.4(b)

when he is confined. Under RAP 16.4(c)(2), restraint is unlawful when “[t]he conviction was

obtained or the sentence or other order entered in a criminal proceeding or civil proceeding

instituted by the state or local government was imposed or entered in violation of the Constitution

of the United States or the Constitution or laws of the State of Washington.” Here, it is undisputed

that Delbosque is restrained.




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No. 49792-1-II


       We review challenged findings of fact for substantial evidence. State v. Homan, 181

Wn.2d 102, 105-06, 330 P.3d 182 (2014). “Substantial evidence” is ‘“evidence sufficient to

persuade a fair-minded, rational person of the truth of the finding.’” State v. Levy, 156 Wn.2d 709,

733, 132 P.3d 1076 (2006) (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).

We may look to the superior court’s oral ruling to interpret its written findings of fact. State v.

B.J.S., 140 Wn. App. 91, 99, 169 P.3d 34 (2007). Findings of fact that contain errors are subject

to harmless error analysis. State v. Banks, 149 Wn.2d 38, 43, 65 P.3d 1198 (2003).

       In 2012, the United States Supreme Court held in Miller v. Alabama that it was

unconstitutional to impose mandatory life without parole sentences for juvenile homicide

offenders. 567 U.S. at 489. The Supreme Court noted that juvenile offenders have diminished

culpability and are less deserving of the most severe punishments because they have a lack of

maturity and an underdeveloped sense of responsibility, are more vulnerable to outside pressures

and negative influences, and their traits are less likely to be evidence of irretrievable depravity.

Miller, 567 U.S. at 471. The Miller Court required that sentencing courts consider the “mitigating

qualities of youth,” including an offender’s youth and attendant characteristics, before imposing a

particular penalty. 567 U.S. at 476. These attendant circumstances include: chronological age,

immaturity, failure to appreciate risks and consequences, the circumstances of the homicide

offense, and the possibility of rehabilitation. Bassett, 198 Wn. App. at 725.

       Before Miller, Washington law imposed a mandatory sentence of life without the

possibility of release or parole for an offender convicted of aggravated first degree murder,

regardless of the offender’s age. Bassett, 198 Wn. App. at 726. In response to Miller, our

legislature enacted the Miller-fix statute, which provides:



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No. 49792-1-II


               (3)(a)(i) Any person convicted of the crime of aggravated first degree
       murder for an offense committed prior to the person’s sixteenth birthday shall be
       sentenced to a maximum term of life imprisonment and a minimum term of total
       confinement of twenty-five years.
               (ii) Any person convicted of the crime of aggravated first degree murder for
       an offense committed when the person is at least sixteen years old but less than
       eighteen years old shall be sentenced to a maximum term of life imprisonment and
       a minimum term of total confinement of no less than twenty-five years. A
       minimum term of life may be imposed, in which case the person will be ineligible
       for parole or early release.[4]
               (b) In setting a minimum term, the court must take into account mitigating
       factors that account for the diminished culpability of youth as provided in [Miller]
       including, but not limited to, the age of the individual, the youth’s childhood and
       life experience, the degree of responsibility the youth was capable of exercising,
       and the youth’s chances of becoming rehabilitated.

RCW 10.95.030.

       Our legislature also enacted RCW 10.95.035(1), which states:

       A person, who was sentenced prior to June 1, 2014 . . . to a term of life without the
       possibility of parole for an offense committed prior to their eighteenth birthday,
       shall be returned to the sentencing court or the sentencing court’s successor for
       sentencing consistent with [the Miller-fix statute].

B. FINDINGS OF FACT

       Delbosque argues that the following four findings of fact in the superior court’s order are

not supported by substantial evidence: (1) alcohol dependence was not a predominant factor in the

murder, (2) Delbosque does not suffer from a diagnosable mental illness, (3) Delbosque continues

to demonstrate an attitude towards others reflective of the underlying crime, and (4) the murder

reflected permanent incorrigibility and irretrievable depravity. The superior court’s findings




4
  Our Supreme Court recently held that this subsection of RCW 10.95.030 is unconstitutional
under the Washington Constitution because sentencing juvenile offenders to life without parole or
early release constitutes cruel punishment. State v. Basset, 428 P.3d 343 (2018).


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No. 49792-1-II


regarding alcohol dependence and mental illness are supported by substantial evidence, but the

remaining findings are not supported by substantial evidence.

       1. Alcohol Dependence

       The superior court found that “[a]lcohol dependence was not a predominate factor in the

murder.” CP at 12. Dr. Saint Martin testified that he believed that alcohol induced psychosis

explained much of the seemingly bizarre behavior during and after the murder. However, the

superior court, in its oral ruling, weighed that opinion against the evidence at the crime scene and

determined that the murder was not the result of alcohol induced psychosis. Therefore, to this

extent, the superior court’s finding is supported by substantial evidence.

       2. Mental Illness

       The superior court also found that Delbosque does not suffer from diagnosable mental

illness but that he has been diagnosed with alcohol dependence. This finding is supported by

substantial evidence. Dr. Saint Martin did testify that Delbosque had a diagnosis of alcohol

dependence and borderline intellectual functions. Dr. Saint Martin testified that Delbosque did

not suffer from any personality disorders such as schizophrenia, hallucinations, or sexual deviance.

Therefore, this finding, within the context it was made, is supported by substantial evidence.

       3. Pattern of Behavior

       The superior court also found that “Delbosque continues to exhibit an ongoing attitude to

others that is reflective of Mr. Delbosque’s underlying murder.” CP at 12. The superior court

noted in its oral ruling that, while in prison, Delbosque received an infraction in 2010 for his

alleged involvement in gang activity.




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No. 49792-1-II


       Although the superior court found that Delbosque had an ongoing attitude reflective of the

murder, the court’s only example of this attitude was Delbosque’s 2010 infraction for attempting

to arrange an assault, which occurred six years prior to the evidentiary hearing. Therefore, to

whatever extent Delbosque’s infraction history does exhibit a pattern related to the murder he

committed, that pattern is not continuing or current. Therefore, the superior court’s finding is not

supported by substantial evidence.

       4. Irreparable Corruption

       The superior court also found that Delbosque’s crime was a reflection of “irreparable

corruption, permanent incorrigibility, and irretrievable depravity.” CP at 12. In its oral ruling, the

superior court stated that Delbosque’s “predatory view ha[d] extended well into his adult life.” IV

VRP at 660. The court also noted that the murder “was not symptomatic of transient immaturity,

but has proven over time to be a reflection of irreparable corruption, permanent incorrigibility, and

irretrievable depravity.” IV VRP at 661.

       As discussed above, the superior court considered that Delbosque received an infraction in

2010. But his infraction does not support the notion that Delbosque continues to exhibit an attitude

reflective of the murder.     Likewise, Delbosque’s infraction is not evidence of irreparable

corruption proven over time. Delbosque had been in prison for approximately 15 years before the

2010 infraction, and the infraction took place 6 years before the evidentiary hearing. Accordingly,

the superior court’s finding is not supported by substantial evidence.

C. DIMINISHED CULPABILITY OF YOUTH

       Delbosque next argues that the superior court erred in setting the minimum term of his

sentence because the court failed to properly consider the sentencing criteria in the Miller-fix



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No. 49792-1-II


statute. We agree. While the superior court clearly understood what it was required to consider,

its findings demonstrate that it failed to meaningfully consider the evidence within the proper

context of the diminished culpability of youth as required by the Miller-fix statute. Accordingly,

the superior court failed to comply with the requirements of the Miller-fix statute in setting

Delbosque’s minimum term.

       Here, the superior court made specific findings regarding Delbosque’s age, childhood and

life experience, degree of responsibility, and chances of becoming rehabilitated. The superior

court did not, however, consider the designated factors “that account for the diminished culpability

of youth,” as required by the Miller-fix statute. RCW 10.95.030(3)(b).

       Miller held that children are constitutionally different from adults for purposes of

sentencing, explaining that because juveniles have diminished culpability and greater prospects

for reform, “‘they are less deserving of the most severe punishments.’” 567 U.S. at 471 (quoting

Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)). In making this

determination, the Court relied on three gaps between children and adults: children display a lack

of maturity and an underdeveloped sense of responsibility, they are more vulnerable to outside

pressures and negative influences, and their traits are less likely to be evidence of irretrievable

depravity. Miller, 567 U.S. at 471.

       Miller also determined that the distinctive attributes of youth diminish the penological

justifications for imposing the harshest sentences on juvenile offenders, even when they commit

terrible crimes. 567 U.S. at 472. Because the heart of the retribution rationale relates to an

offender’s blameworthiness, the case for retribution is not as strong with a minor as with an adult.

Miller, 567 U.S. at 472. Nor can deterrence do the work in this context, because the same



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No. 49792-1-II


characteristics that render juveniles less culpable than adults—their immaturity, recklessness, and

impetuosity—make them less likely to consider potential punishment. Miller, 567 U.S. at 472.

Similarly, deciding that a juvenile offender forever will be a danger to society would require

making a judgment that the juvenile is incorrigible, but incorrigibility is inconsistent with youth.

Miller, 567 U.S. at 472-73. For the same reason, rehabilitation cannot justify a sentence of life

without parole because it forswears altogether the rehabilitative ideal and reflects an irrevocable

judgment about a juvenile offender’s value and place in society, at odds with a child’s capacity for

change. Miller, 567 U.S. at 473.

       Both the Miller holding and Dr. Heavin’s testimony clearly establish that the diminished

culpability of youth relates to juveniles underdeveloped executive brain functioning, including

increased risk taking, failure to appreciate consequences and responsibility, and susceptibility to

outside influences. Dr. Heavin also testified that Delbosque’s childhood and life experiences and

degree of responsibility exacerbated the poor executive functioning characteristic of youth. In this

case, the superior court did not address how any of the factors it analyzed related to the poor

executive functioning or increased risk taking that Dr. Heavin identified as reflective of

Delbosque’s diminished culpability.

       The superior court also failed to address the greater prospects for reform from a crime

committed while Delbosque was a child. This failure is shown by our holdings above that

Delbosque’s infraction history does not exhibit a continuing or current pattern of behavior related

to the murder he committed. Nor are his infractions evidence of irreparable corruption proven

over time. The court’s rationale is also inconsistent with Miller’s recognition that incorrigibility

is inconsistent with youth. 567 U.S. at 472-73.



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No. 49792-1-II


       In setting Delbosque’s minimum term, the superior court failed to comply with the Miller-

fix statute by failing to specifically consider the “diminished culpability of youth.” Because the

superior court failed to comply with the Miller-fix statute, Delbosque shows that his restraint is

unlawful.

                                         CONCLUSION

       We hold that the superior court’s findings regarding an attitude towards others reflective

of the underlying crime, and of permanent incorrigibility and irretrievable depravity are not

supported by substantial evidence. We further hold that the superior court failed to comply with

the Miller-fix statute when setting the minimum term. Accordingly, Delbosque’s restraint is

unlawful because the superior court failed to comply with the Miller-fix statute in sentencing him.

Thus, we grant the PRP, reverse the judgment and sentence, and remand for resentencing.



                                                     SUTTON, J.
 We concur:



JOHANSON, P.J.




BJORGEN, J.




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