               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                        )    NO. 68138-9-1
                                                            )
                              Respondent,                   )    DIVISION ONE
                                                            )
                              v.                            )
                                                            )
SASSAN MEHRABIAN,                                           )    UNPUBLISHED OPINION
                                                            )
                               Appellant.                   )    FILED: March 25, 2013
_____________________________________________________________)



          LAu, J.- A jury convicted Sassan Mehrabian of five counts of first degree theft,

one count of attempted first degree theft, and one count of witness tampering. He

appeals the judgment and sentence, claiming that (1) the trial court erred in finding that

he unequivocally waived his right to counsel, (2) count l's "to convict" instruction

improperly permitted the jury to convict him of acts committed beyond the statute of

limitations, (3) insufficient evidence supports his theft convictions, and (4) two first

degree theft convictions constitute the same criminal conduct. The State cross appeals

the trial court's failure to include Mehrabian's 1992 first degree theft conviction in his

offender score. Viewing the record as a whole, Mehrabian unequivocally waived his

right to counsel. His remaining arguments lack merit. We affirm the jury convictions,

but because the trial court improperly excluded Mehrabian's prior theft conviction from

his offender score, we remand for resentencing consistent with this opinion.
68138-9-1/2


                          FACTS AND PROCEDURAL HISTORY

       The City of Woodinville hired Sassan Mehrabian as its information technology

(IT) manager in 2000. Mehrabian's supervisors, Deborah Knight and Jim Katica, were

unaware that he ran a side business dealing in computer equipment. As IT manager,

Mehrabian was solely responsible to buy and inventory new computer equipment. The

City's extensive written purchasing policies required Mehrabian to provide three

competitive bids and obtain approval from his supervisors before purchasing computer

equipment. City policy prohibited employees from engaging in business with the City-

either themselves or through their companies-without first disclosing the arrangement.

       Despite this prohibition, Mehrabian bought computer equipment on eBay, using

third party vendor GeekDeal to invoice himself at the City for similar equipment at a

substantial markup. The City paid GeekDeal, which would then pass the money on to

Mehrabian. On several occasions, Mehrabian either invented price quotes to support

his purchases or forged invoices from GeekDeal. He also delivered to the City

equipment inferior to what his supervisors approved, equipment not under warranty, or

no equipment at all. The City discovered Mehrabian's scheme after he left City

employment in 2008. The City contacted police when it inventoried its equipment and

discovered discrepancies between the equipment it thought it had and the equipment it

actually had.

       The State charged Mehrabian by third amended information with five counts of

first degree theft (counts I, IV, V, VII, and VIII), one count of attempted first degree theft




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(count VI), and one count of witness tampering (count 111). 1 The jury convicted

Mehrabian as charged on all counts.

                                        ANALYSIS

       Waiver of Right to Counsel

       Mehrabian contends he was denied his state and federal constitutional right to

counsel. The State responds that Mehrabian repeatedly demanded to represent himself

and the request was unequivocal in light of the entire record.

                Relevant Facts

       Mehrabian expressed his dissatisfaction with counsel on December 17, 2010,

during a hearing before Judge Palmer Robinson. At that time, Mehrabian was

represented by public defender Paul Vernon. Mehrabian told the court that he wanted a

new lawyer or to hire private counsel because he and counsel did not agree on trial

strategy and because counsel failed to obtain documents necessary to his defense. He

also objected to his counsel's repeated requests for continuances. He stated that he

lacked "confidence in ... the public defenders' office trying [to] represent [him]." Judge

Robinson denied Mehrabian's request to dismiss Vernon as counsel but made no ruling

on whether Mehrabian could hire private counsel.

       On February 25, 2011, Mehrabian appeared before Judge Ronald Kessler with

retained counsel Jon Zulauf. Mehrabian requested that Zulauf be allowed to substitute

for appointed counsel Vernon. Vernon joined in Mehrabian's request, stating that his

relationship with Mehrabian was "problematic" and would only get worse at trial. Judge

Kessler granted the motion and continued the trial date to enable Zulauf to prepare but


       1
           Mehrabian does not challenge his witness tampering conviction on appeal.

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also warned Mehrabian that "[t]here will be no other[] [substitutions of counsel]." The

case proceeded to trial before Judge Richard Eadie in May 2011. Shortly after trial

began, the court granted the defense's motion for mistrial due to a death in Zulaufs

family. At another hearing before Judge Eadie on June 28, 2011, Zulauf indicated that

Mehrabian wished to discharge counsel and proceed pro se. Judge Eadie conducted

an extensive colloquy regarding Mehrabian's request. During the colloquy, Mehrabian

answered "yes" when the court asked if he wanted to represent himself at trial. Judge

Eadie warned Mehrabian that he had no constitutional right to standby counsel. When

asked why he wanted to proceed pro se, Mehrabian explained that he knew the case

better than anyone else did. He stated:

      All the intricacies involved with this case is known to me and me only because
      I've studied those 900-something pages, page-by-page, and I know them by
      heart because I've had close to two years to study them. And as the Court is
      aware, I had every intention for Mr. Zulauf to represent me, but those few days I
      noticed that Mr. Zulauf is missing out on many of those little details that I
      wholeheartedly believe that are crucial during the question and answer
      procedures. And it was rather nerve-wracking for me to sit here and see Mr.
      Zulauf not asking those appropriate questions .... And honestly, with my
      financial resources completely depleted because of this case for three and a half
      years, you know, shattering my life, not being able to work a full-time job, you
      know, at any place ... so that's the only option that I'm left with.

      Judge Eadie asked Mehrabian whether he knew he could have counsel

appointed at public expense. Mehrabian responded that had no faith in, and did not

want, a public defender. Specifically, he stated:

      I started with that, unfortunately I didn't see the ... the ethical and dedication on
      my attorney's behalf for putting a battle for my side of the story. He was far more
      interested in entering into some sort of plea bargain than anything else. And, you
      know, through my investigation I found out that's what the Public Defender does.
      They just do, you know, primarily do plea bargains. So I lost my faith in Mr.
      Vernon.



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He continued, "The Public Defenders don't put up a fight, you know, that Defendants

expect from their attorneys."

       Judge Eadie advised Mehrabian that he would be better off with a lawyer and

strongly urged him not to represent himself. Judge Eadie then asked, "Now in light of

the penalties that you might suffer if you were found guilty and in light of all of the

difficulties of representing yourself, is it still your desire to represent yourself and give up

your right to be represented by a lawyer?" Mehrabian responded, "Yes, Your Honor, at

this time." The court found that Mehrabian "knowingly and voluntarily waived his right to

Counsel" and granted his request to proceed prose. Mehrabian signed a waiver of

counsel.

       A short time later, Judge Eadie again asked Mehrabian whether he truly wanted

to represent himself. At that point, Mehrabian was less sure:

       I want to be really honest. Up to today I was determined to be ... to go that pro
       se. But after listening to you I'm not quite sure to be honest with you. And it's a
       difficult case as, you know, you understand that I'm at a crossroads in my life that
       I cannot make, you know, definite decisions at this time.

The State then expressed concern that Mehrabian's request to represent himself was

equivocal. After further colloquy and discussion with Zulauf, Mehrabian asked to

proceed pro se with Zulauf as standby counsel. The court repeatedly asked Mehrabian

what he wanted to do and he consistently said he wanted to proceed pro se with Zulauf

as standby counsel. See Clerk's Papers (CP) at 239 ("RE [Richard Eadie]: Okay. Mr.

Mehrabian? If Mr. Zulauf does stay on as standby Counsel, do you want to represent

yourself at this time? SM [Sassan Mehrabian]: Yes, Your Honor."); CP at 240 (''RE:

Well my understand[ing] is, Mr. Mehrabian, that you want to represent yourself and

you're firm in that, but ... And are you firm in wanting to represent yourself? SM: Yes,

                                            -5-
68138-9-1/6


Your Honor. Yes. RE: As opposed to going back to the Office of Public Defense? SM:

Yes, Your Honor. Absolutely."); CP at 240 (''RE: And ... do you still want to represent

yourself? SM: Yes, Your Honor, I do .... RE: And your option is you want to represent

yourself at this time, is that correct? SM: Yes. Yes please.").

       The court granted Mehrabian's request and appointed Zulauf as retained standby

counsel. Judge Eadie handwrote on Mehrabian's waiver form, "Jon Zulauf is appointed

standby counsel." At that point, the court found Mehrabian's "waiver of counsel to be

knowingly, intelligently and voluntarily made."

      Two weeks later, on July 13, the parties appeared before Judge Ronald Kessler

for a scheduling hearing. Zulauf indicated that Mehrabian was not happy with his

representation and he was not being paid for his services as standby counsel.

Mehrabian told the court he preferred to have Zulauf as standby counsel, but if Zulauf

could not be paid at public expense, "that's fine, as long as I can have somebody at

standby with me." Judge Kessler advised Mehrabian that he did not have a right to

standby counsel. Judge Kessler allowed Zulauf to withdraw as standby counsel

because he was not being paid.

      Judge Kessler then told Mehrabian that because he did not have a right to

standby counsel, the court was not going to order such appointment at public expense.

The judge said, "I'm telling you this right now because this may have some impact on

whether or not you choose to continue representing yourself." Mehrabian responded

that he lacked financial resources to retain an attorney and thought his best option was

to ask the Office of Public Defense about his options. Judge Kessler granted

Mehrabian a week-long continuance to reconsider whether he wanted to continue pro

se and directed him to discuss with the Office of Public Defense whether it would
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68138-9-1/7


appoint him standby counsel without a court order. Judge Kessler also told Mehrabian

to find out if he was eligible for a public defender in the event he decided not to continue

self representation.

       A week later, on July 20, Mehrabian told the court he had chosen not to meet

with the Office of Public Defense. "[S]ince I've been there before, I decided not to test

the tested waters ... between now and trial they defect and come up with some

standby counsel, fine. Otherwise, I'm going to go prose." Judge Kessler clarified, "You

will continue prose." Mehrabian answered, "[O]n my own. Yes, Your Honor." Judge

Kessler told Mehrabian he could retain standby counsel on his own if he wanted to.

       Two weeks later, the parties appeared at a discovery hearing before Judge Beth

Andrus. Judge Andrus asked Mehrabian if he was sure he wanted to proceed pro se.

He responded:

       At this point in time, I can't afford and I think Mister Zulauf did me a huge
       disservice by urn basically requesting a mistrial based on false pretenses ....

              . . . . I cannot afford a different uh, you know, a stand-by and I have to- I
       am trying every avenue that I possibly can to find somebody to go pro bono, but
       I'm not sure if I can find at this point in time.

The prosecutor explained Mehrabian's waiver of counsel history to the court. When the

court asked whether Mehrabian was permitted to change his mind about proceeding pro

se, Mehrabian stated, "[T]o add to the [prosecutor's] comments is that urn I was not

interested to have a public defender to be representing me as an attorney and that's

what I expressed to the Court and urn Judge Kessler."

       During pretrial proceedings, the trial judge inquired whether all parties were

"satisfied that [Mehrabian] was properly permitted to represent himself." Report of

Proceedings (RP) (Sept. 1, 2011) at 4. The State indicated its satisfaction, and

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Mehrabian voiced no concerns. Later, during pretrial, Mehrabian stated that he was

"baffled by this whole process" and the court responded, "Well, you know, it's because

you went pro se and it's because you don't have a lawyer and you don't know the rules

of evidence. And I'm not surprised that you're baffled." RP (Sept. 1, 2011) at 69.

Mehrabian did not refute the court's statement. Several times Mehrabian told the court

why he had dismissed his attorney and chosen to proceed pro se.

       At the beginning of trial, the court told Mehrabian:

       I can't help you. I'm not going to cut you slack because you're not an attorney.
       don't want you to whine about the fact you're not an attorney. You made a
       choice, you're stuck with it, you're held to the standard of an attorney.

RP (Sept. 7, 2011) at 169. Mehrabian responded, "Yeah." RP (Sept. 7, 2011) at 169.

       In closing argument, Mehrabian again referred to his choice to represent himself:

       I've always believed that the truth shall set you free and that's why I'm here.
       That's why I represented myself. I've gone through two attorneys- three
       attorneys and finally decided the best thing to do is just to come out and say it
       the way it is and see what happens.

RP (Sept. 15, 2011) at 966.

              Analysis

       Mehrabian contends he was denied his state and federal constitutional right to

counsel. He argues he "never made an unequivocal request to proceed prose."

Appellant's Br. at 13. The State responds that Mehrabian repeatedly demanded to

represent himself and the request was unequivocal in light of the entire record.

       A defendant has a constitutional right to proceed without counsel as long as his

constitutional right to counsel is knowingly, voluntarily, and intelligently waived. Faretta

v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); City of

Bellevue v. Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984). The preferred method

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for determining the validity of a waiver of the right to counsel is "a court's colloquy with

the accused on the record detailing at a minimum the seriousness of the charge, the

possible maximum penalty involved, and the existence of technical, procedural rules

governing the presentation of the accused's defense." State v. Silva, 108 Wn. App. 536,

539, 31 P.3d 729 (2001 ).

       To protect defendants from making capricious waivers of counsel, and to protect
       trial courts from manipulative vacillations by defendants regarding representation,
       we require a defendant's request to proceed in propria persona, or prose, to be
       unequivocal. Once an unequivocal waiver of counsel has been made, the
       defendant may not later demand the assistance of counsel as a matter of right
       since reappointment is wholly within the discretion of the trial court.

State v. DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991). A defendant's waiver of

counsel "must be unequivocal in the context of the record as a whole." State v. Modica,

136 Wn. App. 434,441, 149 P.3d 446 (2006) (emphasis added), affd, 164 Wn.2d 1001,

175 P.3d 1093 (2007).

       We review a trial court's decision on a request to proceed pro se for an abuse of

discretion. State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995). The prose

defendant has no absolute right to standby counsel. DeWeese, 117 Wn.2d at 379.

       The record as a whole amply demonstrates that the trial court properly accepted

Mehrabian's valid waiver of his constitutional right to counsel in this case. Mehrabian

tried to dismiss his appointed counsel and, when the court refused, he hired Zulauf.

When that relationship proved unsatisfactory, he chose to represent himself, initially

with Zulauf assisting as standby counsel. When the court granted Zulauf's request to

withdraw, it allowed Mehrabian to retain different standby counsel, ask the Office of

Public Defense about appointment of standby counsel, or change his mind regarding

self representation and have new counsel appointed at public expense. While

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Mehrabian preferred to have private standby counsel, he could not afford it, and he

repeatedly refused the services of the public defender. In the context of the entire

record, Mehrabian made an unequivocal request to proceed prose.

       In arguing that his request to proceed pro se was equivocal, Mehrabian

characterizes his waiver of the right to counsel as a "conditional waiver" dependent on

the appointment of standby counsel. Appellant's Br. at 4. He correctly notes that he

told Judge Eadie he wished to proceed pro se with Zulauf as standby counsel-a

request that Judge Eadie granted. But Mehrabian's claim that Judge Kessler "was

unaware that the waiver was conditional" when he allowed Zulauf to withdraw as

standby counsel is unsupported by the record. Appellant's Br. at 4. Judge Kessler had

a copy of the waiver of counsel Judge Eadie signed, which indicated that Zulauf was

standby counsel. As noted above, Judge Kessler (1) advised Mehrabian he had no

right to standby counsel and told him that might influence whether he wanted to

continue pro se, (2) directed Mehrabian to consult with the Office of Public Defense

regarding appointment of standby counsel and eligibility for a public defender, and

(3) gave Mehrabian a week to consider his options. After the week-long continuance,

Mehrabian told the court he did not want a public defender and wanted to continue pro

se. He reaffirmed his position to Judge Andrus two weeks later.

      Citing United States v. Kienenberger, 13 F.3d 1354 (9th Cir. 1994), State v.

Woods, 143 Wn.2d 561, 23 P.3d 1046 (2001 ), and State v. Stenson, 132 Wn.2d 668,

940 P.2d 1239 (1997), Mehrabian argues that "a request to proceed prose

accompanied by an indication that the request [is] occasioned by the defendant's

dissatisfaction with counsel [is] equivocal." Appellant's Reply Br. at 3-4. Those cases

are distinguishable. In Kienenberger, the defendant was dissatisfied with his court-
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appointed counsel and "continued to insist that he wanted to represent himself, but that

he wanted 'advisory' counsel to assist him on procedural matters." Kienenberger, 13

F.3d at 1356. The court held that while the defendant repeatedly "requested that he be

'counsel of record,' his requests were always accompanied by his insistence that the

court appoint 'advisory' or 'standby' counsel to assist him on procedural matters."

Kienenberger, 13 F.3d at 1356. Thus, the defendant's requests were equivocal.

Kienenberger, 13 F.3d at 1356. In contrast, Mehrabian did not demand standby

counsel every time he affirmed he was proceeding pro se. He stated he would like to

have standby counsel but was informed he had no right to such counsel, and he

ultimately decided not to pursue his options in the Office of Public Defense.

       In Woods, the defendant objected to the trial court's grant of his counsel's motion

for a continuance. Woods, 143 Wn.2d at 586. On appeal, he argued he was denied his

right to proceed prose based on the following exchange with the trial court:

             [DEFENSE COUNSEL]: .... I think the only effective date we can ask for
      right now is the 5th of May of '97.
             THE DEFENDANT: Your Honor, you know, I will be- I will be prepared
      to proceed with-with this matter here without counsel come October 21st.
             THE COURT: All right. You understand you have the right to do that.
             THE DEFENDANT: Yes.
             THE COURT: Counsel, have you discussed this with your client?
             [DEFENSE COUNSEL]: No. We have not discussed that point at all. It's
      a surprise to me.
             THE DEFENDANT: I've- I've already consented to one continuance,
      Your Honor. And they-they have done nothing but grossly misuse that time
      there. And I feel if- if they was [sic] granted a second continuance, it- it
      would be treated in the same manner, Your Honor.
             THE COURT: All right. Thank you.

Woods, 143 Wn.2d at 587 (alterations in original) (quoting VRP at 13-14). Our

Supreme Court held that the defendant's statement "merely revealed the defendant's

displeasure with his counsel's request to continue the trial." Woods, 143 Wn.2d at 587.

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This expression of frustration did not constitute an unequivocal request to proceed pro

se. Woods, 143 Wn.2d at 587. Similarly, in Stenson, the defendant-21 days into jury

selection on a death penalty charge-moved to appoint new counsel or, in the

alternative, to proceed pro se, arguing that his counsel failed to vigorously represent

him. Stenson, 132 Wn.2d at 730-31, 735-36. The trial court denied his motion, and he

again asked to represent himself, stating, '"I do not want to do this but the court and the

counsel that I currently have force me to do this."' Stenson, 132 Wn.2d at 739. The

court denied his request: '"At this point in time I find that the motion is not timely made

and I also find based upon your indications that you really do not want to proceed

without counsel."' Stenson, 132 Wn.2d at 740 (emphasis omitted). Viewing the record

as a whole, the court found:

       [A]Imost all of the conversation between the trial judge and the Defendant
       concerned his wish for different counsel. He repeatedly discussed which new
       counsel should be assigned. He explained he had contacted a number of
       attorneys and had asked for permission to talk with his newly-selected counsel.
       He told the trial court he did not want to represent himself but that the court and
       his counsel had forced him to do that. More importantly, the Defendant did not
       refute the trial court's final conclusion that he "really [did] not want to proceed
       without counsel." After the trial judge denied the request for substitution of new
       counsel and the request to proceed pro se, the Defendant, pursuant to a request
       from the trial court to put his request in writing, filed a written request which
       sought appointment of new lead counsel, retention of the existing second
       counsel, appointment of Mr. Leatherman as counsel for the penalty phase, and a
       continuance. In that request, the Defendant did not mention proceeding pro se.
       While the Defendant's request was conditional, it was also equivocal based on
       the record as a whole. The trial court's refusal to allow the Defendant to proceed
       prose was not an abuse of its discretion.

Stenson, 132 Wn.2d at 742 (citation omitted).

       In contrast to the above cases, the record here, when viewed as a whole, shows

that Mehrabian unequivocally waived his right to counsel. He explained repeatedly to

the court that he was dissatisfied with counsel and thought he was in the best position

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to understand the evidence and defend the case. The court engaged Mehrabian in

colloquies to determine whether he understood the nature and consequences of

proceeding pro se. Mehrabian signed a written waiver informing him that the court was

not required to appoint him standby counsel. Mehrabian had several opportunities well

in advance of the trial date, as well as in court on the day of trial, to ask that counsel be

reappointed or to seek appointment of standby counsel. Mehrabian never requested

that counsel be appointed in any capacity. That Mehrabian chose to proceed pro se

partly because he was dissatisfied with counsel does not constitute an equivocal

request. See Modica, 136 Wn. App. at 442 ("[W]hen a defendant makes a clear and

knowing request to proceed pro se, such a request is not rendered equivocal by the fact

that the defendant is motivated by something other than a singular desire to conduct his

or her own defense."); DeWeese, 117 Wn.2d at 378 ("Mr. DeWeese's remarks that he

had no choice but to represent himself rather than remain with appointed counsel, and

his claims on the record that he was forced to represent himself at trial, do not amount

to equivocation or taint the validity of his Faretta waiver. These disingenuous

complaints in Mr. DeWeese's case mischaracterize the fact that Mr. DeWeese did have

a choice, and he chose to reject the assistance of an experienced defense attorney who

had been appointed."). The trial court did not abuse its discretion in allowing Mehrabian

to represent himself.

       Jury Instructions/Statute of Limitations

       Mehrabian argues that we should reverse his first degree theft conviction as

charged in count I because the "to convict" instruction permitted the jury to convict him

"based solely upon acts committed beyond the statutory limitation period." Appellant's

Br. at 16 (capitalization omitted).
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       "A criminal statute of limitations presents a jurisdictional bar to prosecution. It is

not merely a limitation upon the remedy, but a 'limitation upon the power of the

sovereign to act against the accused."' State v. N.S., 98 Wn. App. 910, 914-15, 991

P.2d 133 (2000) (footnote omitted) (quoting State v. Glover, 25 Wn. App. 58, 61,604

P.2d 1015 (1979)). "Because the criminal statute of limitations creates an absolute bar

to prosecution, whether the State was barred by the statute of limitations from

prosecuting a crime is an issue that may be raised for the first time on appeal." State v.

Dash, 163 Wn. App. 63, 67, 259 P.3d 319 (2011 ). 2 If the to-convict instruction permits

the jury to convict the defendant based solely on acts committed beyond the statutory

limitation period, reversal is required. Dash, 163 Wn. App. at 65.

       Here, the statute of limitations for first degree theft was three years at the time in

question. See former RCW 9A.04.080(h) (2009). 3 The State charged Mehrabian with

first degree theft (count I) by information filed on March 6, 2009. In the information, the

State alleged that Mehrabian, "on or about March 7, 2006," wrongfully obtained control

over the City's property (cash) by color and aid of deception. The information was later

amended to allege that Mehrabian committed the crime "on or about April17, 2006."

The court instructed the jury:

             To convict the defendant of the crime of theft in the first degree, as
       charged in count I, each of the following four elements of the crime must be
       proved beyond a reasonable doubt:
             (1) That on or about April17. 2006, the defendant, by color or aid of
       deception, obtained control over property of another;

       2
          Mehrabian did not object to the jury instructions and raised no statute of
limitations argument below. But as discussed in Dash, his argument is reviewable for
the first time on appeal.
       3
         The statute of limitations for felony theft committed by deception was extended
to six years effective July 26, 2009. RCW 9A.04.080(d)(iv).

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       and
              (2) That the property exceeded $1500 in value;
              (3) That the defendant intended to deprive the other person of the
       property; and
              (4) That this act occurred in the State of Washington.

Instruction 16 (emphasis added).

       Here, both the information and the jury instructions recite a crime date of April 17,

2006. This crime date is within the three-year statute of limitations. The evidence

established that prior to March 6, 2006, Mehrabian told GeekDeal to invoice the City for

two items of computer equipment, he purchased the equipment through PayPal, and he

was paid by GeekDeal. GeekDeal also invoiced the City prior to March 6, 2006. But

the City did not issue a purchase order until March 7, 2006, and did not pay for the

items (and thus part with its cash) until April17, 2006. The jury found beyond a

reasonable doubt that Mehrabian committed the crime on or about April 17, 2006.

       Mehrabian relies on a line of cases regarding "continuing criminal impulse." See

Dash, 163 Wn. App. at 68; State v. Reid, 74 Wn. App. 281, 290, 872 P.2d 1135 (1994);

State v. Carrier, 36 Wn. App. 755, 757-58, 677 P.2d 768 (1984); State v. Vining, 2 Wn.

App. 802, 808-09, 472 P.2d 564 (1970). This line of cases holds that when successive

takings are the result of a single and continuing criminal impulse and are committed

pursuant to a single criminal plan, the takings may constitute a single theft. Dash, 163

Wn. App. at 68; Reid, 74 Wn. App. at 290; Carrier, 36 Wn. App. at 757; Vining, 2 Wn.

App. at 808-09. In such a case, the crime is "continuing" and is not completed until the

criminal impulse is terminated. Dash, 163 Wn. App. at 68; Reid, 74 Wn. App. at 290.

When a continuing criminal impulse exists, the statute of limitations does not begin to

run until the crime is completed. Dash, 163 Wn. App. at 68; Reid, 74 Wn. App. at 290-

91. "Whether a criminal impulse continues into the statute of limitations period is a
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68138-9-1/16


question offactforthejury." Statev. Mermis, 105Wn. App. 738,746,20 P.3d 1044

(2001 ).

       Mehrabian claims that under the cases noted above, "there are facts to establish

that, as to Mehrabian, the entire crime of theft by deception was completed" prior to the

statutory period. Appellant's Br. at 17. He argues that a jury could find that his "criminal

impulse" was complete when GeekDeal invoiced the City prior to March 6, 2006-rather

than when the City paid its bill on April17, 2006-and that "this Court cannot determine

whether the jury convicted Mehrabian based upon a continuing criminal impulse that

extended into the statutory limitation period." Appellant's Br. at 17. Unlike the above

cases, the State did not rely on the continuing criminal impulse doctrine. The State

never alleged or argued that Mehrabian committed the offense constituting count I over

a period of time that spanned the statutory limitation period. Instead, the State charged

Mehrabian with committing the offense on a single date, April17, 2006. The jury was

instructed, consistent with the information, that it had to find beyond a reasonable doubt

that Mehrabian committed the theft charged in count I on or about April17, 2006. The

to-convict instruction did not permit the jury to convict Mehrabian based solely on acts

committed beyond the statute of limitations.

       The State argues it charged Mehrabian with committing the crime on April17,

2006, because the crime itself was not complete until the City parted with its money on

that date. In his reply, Mehrabian argues that the State cites no case supporting its

position and that the facts "establish that, as to Mehrabian, the entire crime of theft by

deception was completed" prior to March 6, 2006. Appellant's Reply Br. at 4. By

definition, theft by deception occurs when a person uses "color or aid of deception to

obtain control over the property or services of another or the value thereof, with intent to
                                          -16-
68138-9-1/17


deprive him or her of such property or services." RCW 9A.56.020(1)(b) (emphasis

added). A completed theft requires proof that the defendant actually obtained property

belonging to another. State v. Barton, 28 Wn. App. 690, 695, 626 P.2d 509 (1981); see

also State v. Goodlow, 27 Wn. App. 769, 773, 620 P.2d 1015 (1980) (distinguishing

second degree theft from forgery for double jeopardy purposes; "theft conviction

requires proof that the defendant actually gained control of the property") (emphasis

added). Before April 17, 2006, Mehrabian had not actually obtained the City's property

because the City did not part with its money until that date. Prior to April17, Mehrabian

had only committed attempted first degree theft by deception. The jury instructions

properly directed the jury that April17, 2006, was the date Mehrabian allegedly

committed the crime charged in count I. Mehrabian's challenge to this instruction fails.

       Sufficiency of the Evidence

       Mehrabian argues that insufficient evidence supports his first degree theft

convictions because the State failed to prove that the City relied on any deception when

it purchased computer equipment from him. The State counters that sufficient evidence

supports all of the convictions.

       Evidence is sufficient to support a conviction if, viewed in the light most favorable

to the State, it permits any rational trier of fact to find the essential elements of the crime

beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P .2d 1068

(1992). 4 "A claim of insufficiency admits the truth of the State's evidence and all


       4
        In determining whether sufficient evidence exists, the reviewing court
determines not "whether i! believes the evidence at trial established guilt beyond a
reasonable doubt," but whether "'any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."' State v. Green, 94 Wn.2d 216,
221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S.
307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
                                         -17-
68138-9-1/18


inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201.

Circumstantial and direct evidence are equally reliable. State v. Moles, 130 Wn. App.

461, 465, 123 P .3d 132 (2005). We defer to the trier of fact on issues of conflicting

testimony, witness credibility, and persuasiveness of the evidence. State v. Fiser, 99

Wn. App. 714, 719, 995 P.2d 107 (2000).

       To convict Mehrabian of first degree theft, the State must prove beyond a

reasonable doubt that he committed theft of more than $5,000 in property or services. 5

RCW 9A.56.030(1)(a). Because it charged Mehrabian with theft by color and aid of

deception, the State was required to prove beyond a reasonable doubt that "[b]y color or

aid of deception, [Mehrabian] obtain[ed] control over the property or services of another

or the value thereof, with intent to deprive him or her of such property or services."

RCW 9A.56.020(1)(b). '"By color or aid of deception' means that the deception

operated to bring about the obtaining of the property or services; it is not necessary that

deception be the sole means of obtaining the property or services." RCW 9A.56.010(4).

"Deception" occurs when, among other things, the defendant knowingly "[c]reates or

confirms another's false impression which the actor knows to be false[ ] or ... [f]ails to

correct another's impression which the actor previously has created or confirmed."

RCW 9A.56.01 0(5)(a), (b).

       "Deception" includes a broad range of conduct, including "not only

representations about past or existing facts, but also representations about future facts,

inducement achieved by means other than conduct or words, and inducement achieved

by creating a false impression even though particular statements or acts might not be

       5
        For count 1only, the State had to prove Mehrabian committed theft of more than
$1,500 in property or services. The law was subsequently modified to increase the first
degree theft threshold from $1,500 to $5,000. See LAws OF 2009, ch. 431, § 7.
                                         -18-
68138-9-1/19


false." State v. Casey, 81 Wn. App. 524, 528, 915 P.2d 587 (1996) (footnote omitted).

The State must also prove that it relied on the defendant's deception, which "is

established where the deception in some measure operated as inducement." Casey, 81

Wn. App. at 529. "The plain language of the [theft by color or aid of deception] statute

does not require an express misrepresentation. The statute focuses on the false

impression created rather than the falsity of any particular statement." State v.

Wellington, 34 Wn. App. 607, 610, 663 P.2d 496 (1983).

       Acquiring property by "aid of deception" requires that the victim relied on the

deception. Casey, 81 Wn. App. at 529. If the victim would have parted with the

property even if the true facts were known, there is no theft. State v. Renhard, 71

Wn.2d 670, 672-74, 430 P.2d 557 (1967). On the other hand, it is unnecessary that the

deception be the sole reason that induced the victim to give up the property. Casey, 81

Wn. App. at 529. It is sufficient that the false representations were believed and relied

on by the victim and in some measure operated to induce the victim to part with the

property. State v. Zorich, 72 Wn.2d 31, 34, 431 P.2d 584 (1967).

      At trial, the State presented evidence that Mehrabian was the sole owner of a

corporation created in 1999 and known as Information Technology Solutions & Services

Inc. (ITSSI). In early 2000, the City of Woodinville hired Mehrabian as an IT manager.

During his City employment, Mehrabian was supervised first by city manager assistant

Deborah Knight, and then by finance director Jim Katica.

       As IT manager, Mehrabian was in charge of purchasing, maintaining, and

inventorying all of the City's computer equipment. Katica testified that City employees

were required to follow written policies and procedures when purchasing computer

equipment. For purchases between $500 and $7,500, the procedures required
                                    -19-
68138-9-1/20


Mehrabian to obtain three quotes for the item and to accept the lowest bid. He would

then obtain Katica's and another supervisor's approval to make the purchase. Between

2006 and 2008, Mehrabian was solely responsible for purchasing and inventorying

computer equipment for the City's IT department.

       Katica testified that he never knew Mehrabian had his own business, ITSSI, while

employed by the City. Katica stated that the City's guidelines would permit such a

business-if disclosed-at the department director's discretion. But Katica testified that

the City would not permit an employee to use his personal business to sell items to the

City and, in fact, he thought it was illegal for a person to be a City employee and also do

business with the City. Katica never gave Mehrabian permission to buy nonwarranty

items, purchase items on-line and bill them to the City through GeekDeal, or mark up

the price of purchased equipment.

       Knight similarly testified that she was not aware Mehrabian was the director of

ITSSI and stated that had she known, she probably would not have approved any

contracts between the City and ITSSI. Knight also testified that she would probably not

have approved an invoice if "Mehrabian had decided to purchase a

computer ... himself and then bill it through a vendor that was not ITSSI at a markup."

RP (Sept. 12, 2011) at 407. Knight and Katica both testified that they expected

Mehrabian's computer purchases to be under warranty. As a rule, the City purchased

no computer equipment through eBay because there was no guarantee that the

equipment would be new or under warranty.

       Because City policy prevented Mehrabian from buying computer equipment

himself or through ITSSI and selling it directly to the City at a markup, he began

purchasing equipment through eBay and selling it to the City through third-party vendor
                                     -20-
68138-9-1/21


GeekDeal. Ron Moisant owned GeekDeal. Moisant testified that between 2005 and

2008, GeekDeal sold computer-related products. Moisant met Mehrabian when

Mehrabian was a City employee in charge of buying the City's computer equipment.

According to Moisant, Mehrabian told him he owned a

        value added reseller company, ITSSI; and that since he owned that company,
        the reason he needed somebody else to help make his purchases was because
        as an employee of the City he couldn't sell directly to the City. So, his company
        couldn't buy the product, so he needed another company that could actually sell
        it to the City since his company wasn't able to do that.

RP (Sept. 13, 2011) at 571.

        Moisant testified that most of his transactions with Mehrabian "were, you know,

I've bought this particular item and the City needs an invoice for it." RP (Sept. 13, 2011)

at 572. Moisant further explained the financial arrangement Mehrabian proposed:

        [T]he arrangement that was explained to me that [Mehrabian] had with the City
        was that since he was buying it- his company was buying it, his company would
        -would have a profit margin built in. And so he would charge the City X amount
        and then the margin examine what he actually paid and what the City paid was
        the agreed, you know, commission or whatever you want to call it that he had
        with the City. And that's how he was paid for the -for the purchases that his
        company would make.

RP (Sept. 13, 2011) at 573. Moisant testified that typically Mehrabian would call or

e-mail him, tell him what he had purchased, and request that Moisant invoice the City

for that amount. Moisant assumed most of Mehrabian's purchases came through eBay.

        Moisant also testified regarding how he profited from Mehrabian's proposal:

        I would bill [Mehrabian] for whatever amount he told me; then I would add on to
        that whatever the sales tax is that I was going to have to pay and a credit card
        fee .... And then a hundred bucks on top of that for my time.

RP (Sept. 13, 2011) at 574-75.

        Moisant elaborated on the procedure Mehrabian used to sell equipment to the

City:
                                          -21-
68138-9-1/22


       Typically ... [Mehrabian] would email me and say, Here is what I've bought for
       the City. Most of the time it seemed as though he already had it in his
       possession, and he would say, Here's the item, here's the amount, can you
       please create an invoice. I would generate a[n] invoice to the City, and then
       I'd ... usually just give that to [Mehrabian].
               [Mehrabian] would then submit ... he'd just give me a credit card number,
       and then I would run it through on that credit card number. It was a City credit
       card usually. I think it was actually Jim Katica's City credit card that it would get
       run through on.
               And then once the credit card would run ... [Mehrabian] would come over
       and pick up a check. And I would pay him whatever the- the difference was.
       So, again, taking out what- what I'd pay in sales tax, the credit card processing
       fee that I'd have to pay and then the hundred bucks that I'd add on for me.

RP (Sept. 13, 2011) at 575-76.

       Moisant testified that occasionally he personally ordered computer equipment to

be sold to the City, and Mehrabian would come by and pick it up. However, Moisant

testified that he never saw 60 to 70 percent of what Mehrabian bought. According to

Moisant, "I was just creating the invoice that [Mehrabian] requested me to create for the

City." RP (Sept. 13, 2011) at 580. But when shown copies of the invoices, Moisant

testified he had not created some of them and was not aware of their existence at the

time they were created and that they appeared to be forged by Mehrabian. Moisant

also testified that the items Mehrabian purchased and had him create invoices for had

no warranties. 6

       Regarding count I, the evidence showed that on February 16, 2006, Mehrabian

e-mailed Moisant and told him to invoice the City $2,900 for a "Quantum DLTS

160/320GB SCSI Tape Backup Unit." Ex. 115. He also told Moisant to charge the

City's credit card for the item that day and that he would give Moisant a purchase order

the following day. On February 21, Mehrabian purchased the item on the internet for

       6
         Moisant later told Katica about his arrangement with Mehrabian. Moisant asked
Katica if that was his understanding of the situation, and Katica "said, No, it's not." RP
(Sept. 14, 2011) at 637.
                                          -22-
68138-9-1/23


$920 using his ITSSI PayPal account. Mehrabian had the item shipped to a mailbox he

maintained at Mail Plus in Bellevue. On February 28, GeekDeal invoiced the City for

the item.

       On March 3, 2006, Mehrabian again e-mailed Moisant and told him to charge the

City's credit card $2,200 for an HP Compaq mobile workstation. The same day,

GeekDeal invoiced the City for the item. GeekDeal then wrote a check to Mehrabian for

$4,667.55: $2,900 for the tape backup unit, plus $2,200 for the workstation, less $200

($1 00 per transaction for Moisant's fee) and a little more to cover the credit card fees.

On March 6, Mehrabian purchased an HP Compaq computer on-line for $1,710, using

his ITSSI PayPal account and again had the item shipped to his own mailbox.

Mehrabian gave GeekDeal a purchase order for the computer on March 7. The

purchase order was based on three price quotes Mehrabian provided to the City for the

equipment, which claimed that GeekDeal's price quote was the lowest. But Moisant

testified that GeekDeal never saw the equipment and merely invoiced for a price

Mehrabian provided. Thus, Mehrabian invented the price quote from GeekDeal.

       Finally, the City paid a credit card bill on April17, 2006, containing the charges

for the Quantum tape backup unit and the HP Compaq computer.

       Counts IV, V, VII, and VIII (all first degree theft) involve similar conduct but with

some differences. For count IV, the City thought it was purchasing an HP DL 580 dual

core server and a Cisco PIX 525 firewall. No evidence indicated that Mehrabian ever

purchased either item. Although the City received and paid GeekDeal invoices for both

items, GeekDeal never invoiced the City and did not know the invoices existed until

later-Mehrabian forged these invoices. When the City inventoried its equipment after

Mehrabian's departure, only a much older firewall-that Mehrabian told Katica was
                                       -23-
68138-9-1/24


new-was located. That firewall was out of warranty. And instead of an HP DL 580

dual core server, only a DL 380 server was found. That server was also out of

warranty.

      For count V, the City thought it was purchasing an Aironet controller and another

HP DL 580 server. No evidence showed that Mehrabian ever purchased either item.

When the City inventoried its IT equipment, it located a used Aironet controller. The

City failed to locate an HP DL 580 server, but found a lower quality model HP DL 380.

As with count I, Mehrabian provided price quotes to the City showing that GeekDeal had

the lowest price. Mehrabian invented the price quote.

      For count VI, the City thought it was purchasing two HP DL 580 dual core

servers, but no evidence showed Mehrabian purchased those items. The City's

inventory found lower quality items. Mehrabian forged the GeekDeal invoice to the City

for the items. When Moisant confronted Mehrabian about the forged invoice, Mehrabian

told him that he was in a big hurry and could not wait for GeekDeal to prepare the

invoice, so he created an invoice on his own.

      For count VII, the City thought it was purchasing two Aironet wireless access

points and paid $6,866.49. GeekDeal passed $5,959.88 of that price to Mehrabian.

The City located only one of the access points.

      Finally, for count VIII, the City thought it was purchasing a 24-port Cisco switch, a

48-port Cisco switch, and a Cisco Firewall Failover PIX 525. No evidence indicated that

Mehrabian ever purchased these items. The City's inventory located a 24-port switch

but was unable to locate a 48-port switch. The City found a Cisco PIX 525, but it was "a

used item at the end of its life cycle" rather than a new item. RP (Sept. 13, 2011) at

508. Mehrabian gave the City three price quotes for the Cisco PIX 525, showing
                                       -24-
68138-9-1/25


GeekDeal as the low bidder. But Mehrabian told GeekDeal what amount to quote the

City and later told GeekDeal to lower that amount by $100.

       Shortly after Mehrabian left City employment in 2008, the City inventoried its

computer equipment and discovered the discrepancies described above, including

equipment that was older than the City thought and missing equipment. Gene Powers,

a senior programmer for the City, helped conduct the inventory and noticed that many of

the items for which discrepancies existed were purchased from GeekDeal. The City

contacted the King County Sheriff's Department.

       King County Sheriff's Detective Edward Ka investigated the case and interviewed

Mehrabian. When Detective Ka told Mehrabian he thought it was inappropriate to be

making a profit off the City, Mehrabian responded, "Well, you know, maybe it's unethical

but it's not criminal." RP (Sept. 8, 2011) at 242.

       Viewing the evidence in a light most favorable to the State, the evidence shows

that Mehrabian billed the City on GeekDeal invoices for products he purchased

elsewhere at a lower price. Katica indicated such a scheme constituted improper and

unethical employee conduct. Mehrabian made questionable representations that the

items came from GeekDeal and were legitimately purchased under warranty. The

evidence also indicated that several of the items, when inventoried after Mehrabian's

departure, were dissimilar and of lower quality than what Mehrabian claimed to have

ordered. Mehrabian directed how much and who should be billed for items that were

sold at a considerable markup. Mehrabian also fabricated or forged three of the

invoices, again representing that GeekDeal was sending them.

       The evidence sufficiently shows the City relied on Mehrabian's deceptive

conduct. For each count of first degree theft, the evidence indicates that Mehrabian
                                         -25-
68138-9-1/26


sold property to the City in violation of the City's policies. Neither Knight nor Katica

knew they were approving business deals with Mehrabian, and both said they probably

would not have approved the deals had they known the true facts. Neither Knight nor

Katica knew Mehrabian was enriching himself through these transactions, and both

supervisors testified he did not have permission to do so.

       By requiring a competitive bidding process, the City thought it was receiving the

best price for the equipment it intended to purchase. It also assumed the products had

warranties. Instead, it received equipment at a substantial markup over what

Mehrabian paid for it, and the City's inventory revealed that several items were older

and lower quality models, some items were missing, and some items were past their

warranties. 7 The bids Mehrabian provided were invented-Mehrabian told GeekDeal

the amounts to invoice the City, rather than GeekDeal quoting the City a price. In

counts IV and VI, GeekDeal did not invoice the City. Instead, Mehrabian forged

invoices and presented them to the City.

       Mehrabian induced the City to pay out money by color or aid of deception: He

purchased property himself, invoiced the City through GeekDeal at a substantial

markup, invented price quotes, forged invoices, delivered an inferior product or failed

altogether to deliver the purchased property, and enriched himself through the

transactions. He created the impression that he was legitimately engaging in business

with another company for the purchase and delivery of computer products. That false


       7
        Mehrabian argues, "At best, the State's evidence was that items purchased off
Ebay 'probably' had no warranty." Appellant's Br. at 19. He is incorrect. As discussed
above, the City's inventory revealed that several items were older than expected and
were out of warranty. And Moisant testified that GeekDeal did not warranty the items
Mehrabian purchased and invoiced to the City.

                                           -26-
68138-9-1/27


impression caused the City to engage in business it would not otherwise have

undertaken. 8 Overwhelming evidence supports the jury's verdicts.

      Same Criminal Conduct

      Mehrabian contends that counts IV and V constituted the same criminal conduct

for sentencing purposes. The State counters that although the thefts charged in counts

IV and V were completed on the same day, Mehrabian's acts leading to the offenses

occurred at different times and his intent to commit the two crimes was not continuous.

               Relevant Facts

      Counts IV and V in the State's third amended information charged Mehrabian

with first degree theft committed "on or about March 19, 2007." Both counts alleged that

Mehrabian "did obtain control over such property belonging to the City of Woodinville,

by color and aid of deception, [and] the value of such property did exceed $5,000."

      The evidence presented at trial indicated that with respect to count V,

Mehrabian's acts occurred in January 2007. Mehrabian e-mailed Moisant and told him

to have GeekDeal invoice the City for an Aironet controller and an HP DL 580 server on

January 11, 2007. GeekDeal invoiced the City on January 23, 2007 after receiving

purchase orders from Mehrabian. The City paid its credit card bill for the equipment on

March 19, 2007.

      In contrast, count IV was supported by acts occurring several weeks later.

Mehrabian provided GeekDeal with purchase orders for computer equipment dated


      8
         Mehrabian claims that he followed the proper procurement procedures for items
Woodinville needed and that "Woodinville would have purchased the products
regardless of who was the lowest bidder." Appellant's Br. at 19. His claim about proper
procurement is unsupported by the record, which indicates he fabricated quotes and
forged invoices. And based on this record, it is pure speculation to assume that
Woodinville would have purchased the items regardless of any deception by Mehrabian.
                                         -27-
68138-9-1/28


March 1, 2007. He also forged invoices from GeekDeal to the City dated March 5,

2007. The City again paid its bill with a separate check for the equipment on March 19,

2007.

        At sentencing, Mehrabian argued counts IV and V constituted the same criminal

conduct because the City paid the invoices on the same day. The court rejected

Mehrabian's same criminal conduct argument:

        [l]n this case I think we have a series of sequential acts, two different intents on
        two different dates. And I don't think the fact that they were paid on the same
        date changes the dates of [Mehrabian's] intent. So I will find it is not the same
        criminal conduct.

RP (Dec. 20, 2011) at 1021.

               Analysis

        RCW 9.94A.589(1 )(a) treats all "current and prior convictions as if they were prior

convictions for the purpose of the offender score." That section, however, recognizes

an exception: "[l]f the court enters a finding that some or all of the current offenses

encompass the same criminal conduct then those current offenses shall be counted as

one crime." RCW 9.94A.589(1)(a). "'Same criminal conduct' ... means two or more

crimes that require the same criminal intent, are committed at the same time and place,

and involve the same victim." RCW 9.94A.589(1)(a). If any one of these elements is

lacking, a finding of same criminal conduct is inappropriate. State v. Haddock, 141

Wn.2d 103, 110, 3 P.3d 733 (2000). In deciding whether crimes involve the same

intent, we focus on whether the defendant's intent, objectively viewed, changed from

one crime to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987).

This is determined, in part, by whether one crime furthered the other. State v. Vike, 125

Wn.2d 407,411,885 P.2d 824 (1994).

                                            -28-
68138-9-1129


       We narrowly construe the same criminal conduct analysis. State v. Porter, 133

Wn.2d 177, 181, 942 P.2d 974 (1997); State v. Saunders, 120 Wn. App. 800, 824, 86

P.3d 232 (2004). And we review the trial court's determination on the issue of same

criminal conduct for an abuse of discretion or misapplication of the law. Haddock, 141

Wn.2d at 110; State v. Tili, 139 Wn.2d 107, 122-23, 985 P.2d 365 (1999). A trial court

abuses its discretion when its decision is manifestly unreasonable or based on

untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615

(1995).

       Here, the trial court properly concluded that counts IV and V did not involve the

same criminal conduct. The acts alleged in counts IV and V occurred at separate times

(January versus March 2007). Despite the common check date, the City paid for

separate fraudulent acts and Mehrabian's intent changed from one crime to the next.

To determine whether a defendant's intent changed, we analyze whether crimes are

sequential or continuous. State v. Grantham, 84 Wn. App. 854, 859, 932 P.2d 657

(1997). When a defendant "ha[s] the time and opportunity to pause, reflect, and either

cease his criminal activity or proceed to commit a further criminal act," the crimes are

sequential and not the same criminal conduct. Grantham, 84 Wn. App. at 859.

Mehrabian completed the acts supporting count V in January. Several weeks later, he

committed the acts supporting count IV. Intent was not continuous, and the City's

payment of both bills on March 19, 2007, was merely coincidental. The trial court

properly found his acts were sequential and did not constitute the same criminal

conduct.




                                          -29-
68138-9-1/30


       Cross Appeal

       The State cross appeals the trial court's offender score calculation, arguing that

the trial court erred in finding that Mehrabian had spent 10 crime-free years in the

community since his last date of release from confinement and, thus, excluding his 1992

theft conviction from his offender score. Mehrabian responds that his 1992 case

"washed out" and was not revived by a subsequent arrest on the "washed" case.

Appellant's Reply Br. at 1-2.

               Relevant Facts

       At sentencing, the State argued that Mehrabian's offender score was 7. One of

the seven points resulted from the State's inclusion of a prior first degree theft

conviction in Mehrabian's offender score. The details of that theft conviction are as

follows: Mehrabian was convicted of first degree theft in 1992. He was sentenced on

January 15, 1993, to 60 days in custody with credit for 1 day served. Fifteen days were

converted to community service with the remainder of the term served in electronic

home detention. The court also imposed 12 months of community custody. The court

required Mehrabian to report for his confinement period on February 12, 1993.

       On May 30, 2003, the court held a sentence modification hearing under the same

case number as the 1992 theft conviction. Mehrabian was in custody for that hearing

due to a bench warrant that had been issued on January 30, 2003. The court found that

Mehrabian willfully failed to pay legal financial obligations, ordered him to serve 8 days

in custody with credit for 8 days served, and released him from jail.

       At sentencing for the crimes at issue here, Mehrabian argued that his prior theft

conviction "washed out" because, under RCW 9.94A.525(2)(b), he had spent 10 crime-


                                           -30-
68138-9-1/31


free years in the community after imposition of the sentence for that conviction. The

trial court agreed and did not include that offense in Mehrabian's offender score.

               Analysis

       We review the trial court's offender score calculation de novo. State v. Mutch,

171 Wn.2d 646, 653, 254 P.3d 803 (2011 ). Resolution of the offender score question in

this case turns exclusively on a question of statutory interpretation, which is also a

question of law reviewed de novo. State v. Gray, 174 Wn.2d 920, 926, 280 P.3d 1110

(2012). "In interpreting a statute, our fundamental objective is to ascertain and carry out

the legislature's intent." Gray, 174 Wn.2d at 926. Statutory interpretation begins with

the statute's plain meaning. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516,

526, 243 P.3d 1283 (2010). We discern plain meaning "from the ordinary meaning of

the language at issue, the context of the statute in which that provision is found, related

provisions, and the statutory scheme as a whole." State v. Engel, 166 Wn.2d 572, 578,

210 P.3d 1007 (2009). If a statute's meaning is plain on its face, we give effect to that

plain meaning. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Only if

statutory language is ambiguous do we resort to aids of construction, including

legislative history. Armendariz, 160 Wn.2d at 110-11. A provision is ambiguous if it is

subject to more than one reasonable interpretation. Engel, 166 Wn.2d at 579.

       First degree theft-the prior conviction at issue here-is a class 8 felony. RCW

9A.56.030(2). Under RCW 9.94A.525(2), certain prior convictions will not be counted in

an offender score if sufficient time has elapsed between the last date of release from

confinement and a subsequent conviction. This case concerns the proper interpretation

of RCW 9.94A.525(2)(b), which governs when class 8 felony convictions may be

included in a person's offender score. The statute provides in relevant part:
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       Class B prior felony convictions ... shall not be included in the offender score, if
       since the last date of release from confinement (including full-time residential
       treatment) pursuant to a felony conviction, if any, or entry of judgment and
       sentence, the offender had spent ten consecutive years in the community without
       committing any crime that subsequently results in a conviction.

RCW 9.94A.525(2)(b) (emphasis added).

       On appeal the parties dispute the meaning of "the last date of release from

confinement ... pursuant to a felony conviction." RCW 9.94A.525(2)(b). The State

contends that although Mehrabian was released from custody for the original crime in

the spring 1993, 9 his most recent release from custody "pursuant to" that felony

conviction was May 30, 2003, when Mehrabian was in custody for his failure to comply

with financial obligations stemming from the original conviction. Mehrabian responds,

"There is no support in the case law or statute for the notion that a conviction that has

'washed' can be revived by a subsequent arrest on the 'washed' case." Appellant's

Reply Br. at 2.

       We have interpreted "release from confinement ... pursuant to a felony

conviction," as used in RCW 9.94A.360(2), as encompassing release from confinement

pursuant to community supervision violations on the subject felonies. State v. Blair, 57

Wn. App. 512,789 P.2d 104 (1990). The version of the statute we interpreted in Blair

contained language identical to the language at issue in Mehrabian's case:

       Class C prior felony convictions shall not be included in the offender score if,
       since the last date of release from confinement (including full-time residential
       treatment) pursuant to a felony conviction, if any, or entry of judgment and
       sentence, the offender had spent five consecutive years in the community
       without being convicted of any felonies.

       9
        The record does not reveal when Mehrabian was released from custody
pursuant to the original first degree theft sentence. According to the judgment and
sentence for that conviction, Mehrabian was required to report for his term of
confinement on February 12, 1993. Given his 60-day sentence, he was released on or
before April 12, 1993.
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Former RCW 9.94A.360(2) (1989) (emphasis added). In Blair, the offender had a prior

1981 class C felony conviction. Blair, 57 Wn. App. at 513-14. He received three years'

probation and violated it twice, the latest violation occurring in 1987 for which he served

90 days in jail. Blair, 57 Wn. App. at 514. He subsequently committed the felonies that

were the subject of his appeal. Blair, 57 Wn. App. at 513. The trial court determined

that both prior convictions "washed out" under RCW 9.94A.360(2). Blair, 57 Wn. App.

at 514. On appeal, we stated the legal issue as follows: "[D]oes incarceration pursuant

to a probation violation interrupt the 5-year wash-out period for a class C felony?" Blair,

57 Wn. App. at 514.

       We held in Blair that incarceration for a probation violation constitutes

confinement pursuant to a felony conviction within the meaning of the statutory washout

provision. Blair, 57 Wn. App. at 515-17. We relied on State v. Perencevic, 54 Wn. App.

585, 589, 774 P.2d 558 (1989), which interpreted the escape statute and "held that

confinement for a community supervision violation was confinement 'pursuant to a

conviction of a felony."' Blair, 57 Wn. App. at 515 (quoting Perencevic, 54 Wn. App. at

589). 10 Thus, "[t]he trial court erred in ruling that confinement as a penalty for a

probation violation would not as a matter of law interrupt the wash-out period for the

underlying conviction." Blair, 57 Wn. App. at 517.

       We see no reason to depart from our reasoning in Blair when interpreting the

statute at issue here, whose relevant language is identical to the language at issue in




       10
         See also In re Pers. Restraint of Higgins, 120 Wn. App. 159, 163-64, 83 P.3d
1054 (2004) (applying the rule that incarceration for a probation violation is confinement
pursuant to the underlying felony).
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         11
Blair.             Blair analyzed the statute's plain language as follows:

                      Indeed, the very language of the statute necessarily leads to the same
              conclusion. Confinement results from (1) the original conviction, which formerly
              could include terms of probation; and (2) the subsequent violation of probation
              conditions. In interpreting "pursuant to a felony conviction" under RCW
              9.94A.360(2), there is no reason to disassociate the probation confinement from
              its underlying cause, the felony conviction. Each instance of the defendant's
              confinement must be considered. Disregarding confinement due to probation
              violations would render superfluous "last date of release from confinement" under
              the statute. It is a well-settled rule of statutory construction to give meaning to all
              words used.
                      Moreover, '"Pursuant to' means 'in the course of carrying out: in
              conformance to or agreement with: according to."' Therefore, "confinement
              pursuant to a felony conviction" includes confinement due to a probation violation
              since this confinement results "in the course of carrying out" and "according to" a
              felony conviction.

Blair, 57 Wn. App. at 515-16 (emphasis added) (footnotes omitted) (quoting Hanson v.

Tacoma, 105 Wn.2d 864, 871, 719 P.2d 104 (1986) and Knowles v. Holly, 82 Wn.2d

694, 702, 513 P.2d 18 (1973)). Mehrabian was last released from confinement

pursuant to the 1992 conviction in May 2003, when he served jail time for failing to pay

financial obligations stemming from the 1992 conviction. Thus, his conviction did not

"wash" and should have been included in his offender score. To hold otherwise fails to

give effect to the word "last" in RCW 9.94A.525(2)(b)'s "last date of release from

confinement" language, as the trial court here noted. See RP (Dec. 20, 2011) at 1021-

              11
          RCW 9.94A.360, which we interpreted in Blair, was recodified as RCW
9.94A.525 by Laws 2001, chapter 10, section 6. The recodified language for class C
felony convictions is substantially similar to the prior version, and the relevant language
(underlined) is identical:
       [C) lass C prior felony convictions other than sex offenses shall not be included in
       the offender score if, since the last date of release from confinement (including
       full-time residential treatment) pursuant to a felony conviction, if any, or entry of
       judgment and sentence, the offender had spent five consecutive years in the
       community without committing any crime that subsequently results in a
       conviction.
RCW 9.94A.525(2)(c). And this underlined text is identical to the relevant statutory
language in RCW 9.94A.525(2)(b), the subsection at issue in Mehrabian's case.

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22 (interpreting the statute in Mehrabian's favor but noting "I am troubled because I

think that doesn't give meaning to the word last."). The trial court improperly excluded

Mehrabian's prior first degree theft conviction from his offender score calculation. 12

                                      CONCLUSION

       Because Mehrabian unequivocally waived his right to counsel and his remaining

claims lack merit, we affirm his convictions but remand for resentencing consistent with

this opinion.



WE CONCUR:

 ~~e;                                                                       (/
       12
           Mehrabian argues that the legislature could not have intended for convictions
that have "washed" to be revived by a subsequent arrest on the "washed" case.
Appellant's Reply Br. at 2. We addressed a similar argument in Blair:
                It was obvious upon adoption of the [Sentencing Reform Act] that the
        wash-out provisions would apply to a large number of prior crimes involving
        terms of probation. If treating confinement for violation of such terms as
        interrupting the wash-out period was not desired, the Legislature could have
        codified this intent. We see nothing unfair to the defendant nor any conflict with
        the purposes of the SRA by giving the statutory language its natural
        interpretation.
Blair, 57 Wn. App. at 516-17. And as our Supreme Court explained in State v. Ervin,
169 Wn.2d 815, 825, 239 P.3d 354 (2010),
                Any lingering doubts about the correctness of [a party's] interpretation are
        allayed by the legislature's acquiescence in it. We presume the legislature is
        "familiar with judicial interpretations of statutes and, absent an indication it
        intended to overrule a particular interpretation, amendments are presumed to be
        consistent with previous judicial decisions."
(quoting State v. Babic, 140 Wn.2d 250, 264, 996 P.2d 610 (2000)). Blair interpreted
language identical to the language in RCW 9.94A.525(2)(b). Since the language we
interpreted in Blair was recodified as RCW 9.94A.525 in 2001, the legislature has
amended RCW 9.94A.525 nine times, but has in no way altered the language
interpreted in Blair. See LAws OF 2011, ch. 166, § 3; LAws OF 2010, ch. 274, § 403;
LAWS OF 2008, ch. 231, § 3; LAWS OF 2007, ch. 199, § 8; LAWSOF2007, ch. 116, § 1;
LAws oF 2006, ch. 128, § 6; LAws oF 2006, ch. 73, § 7; LAws OF 2002, ch. 290, § 3;
LAws OF 2002, ch. 107, § 3. This legislative acquiescence in Blair's interpretation of the
term strongly favors the State's interpretation of the statute.
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