                                                                   t'-MU uLi   C I   f li i   w-




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

STATE OF WASHINGTON,                             No. 73198-0-


                     Respondent,

       v.



A.D.B.,d.o.b. 10/14/98                           UNPUBLISHED OPINION


                     Appellant.                  FILED: September 21,2015


       Verellen, A.C.J. — A.B. appeals from a standard range disposition after he

pleaded guilty to three felony charges. He contends that the juvenile court erred when it

applied the Sentencing Reform Act of 1981 (SRA)1 same criminal conduct test in

determining that his prior adjudications for possession of a stolen laptop and possession

of a controlled substance did not arise out of the same course of conduct under the

Juvenile Justice Act of 1977 (JJA).2 A.B. also argues that the court failed to exercise its

discretion when it categorically refused to consider his request for a manifest injustice

disposition below the standard range.

       In State v. Contreras, our Supreme Court concluded that the test for the same

criminal conduct under the SRA governs the analysis of the same course of conduct

under the JJA.3 Two offenses encompass the same criminal conduct under the SRA



       1 Ch. 9.94A RCW.
       2Ch. 13.40 RCW.
       3124Wn.2d741,880P.2d 1000(1994).
No. 73198-0-1/2


only if they involve the same victim.4 Because A.B.'s prior adjudications did not involve

the same victim, his argument fails. Furthermore, because the court expressly

considered A.B.'s cognitive impairments and other mitigating factors in its determination

that a downward exceptional sentence was not warranted, we conclude that the

standard range disposition was neither a failure to exercise discretion nor an abuse of

discretion. Accordingly, we affirm.

                                          FACTS


       Around 8:00 p.m. on April 2, 2014, then 15-year-old A.B. and a group of

approximately nine other teenagers surrounded three foreign exchange students

leaving Northgate Mall.5 In view of security cameras, one member of the group

brandished a knife and robbed one of the students while A.B. violently shoved another

student who was attempting to stop the robbery. After the student being robbed

relinquished his iPhone, A.B. again confronted the student he shoved and repeatedly

attempted to punch him in the head. The students were able to escape, but were

followed by A.B. and the group to Northgate Transit Center, where one of the students

called 911. A.B. and the group eventually fled to escape from responding police

officers.


       Around 10:00 that same evening, A.B. and four of the group members walked

past a teenager who was using an iPad while waiting for a bus. One of the group




        4RCW9.94A.589(1)(a).
        5A.B. stipulated as part of his guilty pleas that the juvenile court could use the
certifications for determination of probable cause to find a factual basis for his pleas. The
facts are drawn from those certifications.
No. 73198-0-1/3


members stole the iPad and fled. The teenager chased him. Again in view of security

cameras, A.B. and two of the group members ran after the teenager and pushed him to

the ground. They repeatedly punched and kicked him, causing swelling, contusions,

and bleeding to the teenager's face, head, and hand. Afterwards, A.B. and the group

members boarded a bus, where a fellow passenger who had witnessed the iPad

robbery and heard the group bragging about it on the bus notified the driver. The police

arrived and A.B. and the group were taken into custody.

       The State charged A.B. with two counts of robbery in the second degree and one

count of attempted robbery in the first degree. A.B. pleaded guilty to the charges. At

his disposition hearing, A.B. asked the juvenile court to find that a prior felony

adjudication for possession of a controlled substance and a prior misdemeanor

adjudication for possession of stolen property in the third degree arose out of the same

course of conduct under the JJA. Such a finding would have resulted in a rounding

down of A.B.'s offender score from 2 to 1 and consequently, a reduction in his standard

range sentence.6

       The juvenile court found that the test for same course of conduct under the JJA,

was the same as the test for same criminal conduct under the SRA, ruling:

              Therefore, all the elements under 9.94A.589 must be met. And that
       does require that there be a finding that [they] occurred at the same time,
       with the same intent, with identical victims. The victims here are not the
       same. [Possession of a controlled substance] is a drug offense which
       violates the laws of the community at large, and was charged as such.
       The [possession of stolen property] is for possession of [a] laptop. The




       6 A.B.'s prior history included three other misdemeanors, each counting .25 points
towards his offender score.
No. 73198-0-1/4


       court will not reduce the number of points. The points remain at 2,
       standard range of 52 to 65 [weeks] in each of the counts.171

       Following the court's ruling, A.B. asked the juvenile court to instead impose a

downward disposition of 15 to 36 weeks because the standard range disposition would

effectuate a manifest injustice. Additionally, he asked that the court construct an

alternative disposition whereby A.B. would serve his time in treatment in the community

rather than in a Juvenile Rehabilitation Administration (JRA) facility.

       A.B. acknowledged that he was asking for the equivalent of an "Option B" or

"Option C" disposition,8 for both of which he was statutorily ineligible, but he argued

that the court had authority to construct such a disposition as a manifest injustice

downward sentence because his cognitive and mental health issues significantly

reduced his culpability for the offenses, a statutory mitigating factor.9 A.B. also argued

that "[t]he respondent's conduct neither caused nor threatened serious bodily injury or

the respondent did not contemplate that his or her conduct would cause or threaten

serious bodily injury," another statutory mitigating factor, applied because he "did not

cause an injury."10 Lastly, he argued that nonstatutory mitigating factors, including

substance abuse and a lack of any meaningful adult supervision in recent years,

justified a manifest injustice disposition below the standard range.




       7 Report of Proceedings (RP) (Jan. 9, 2015) at 31.
       8 RCW 13.40.0357.
       9 See RCW 13.40.150(3)(h)(iii) (addressing factors to be considered prior to entry of
dispositional order, including the mitigating factor that "[t]he respondent was suffering from
a mental or physical condition that significantly reduced his or her culpability for the
offense though failing to establish a defense").
       10 Clerk's Papers at 54.
No. 73198-0-1/5



      The juvenile court acknowledged that it had discretion to impose such a

disposition and found that "the record does clearly show cognitive mental health

challenges, as well as a history of substance abuse."11 But the court expressed

concern for community safety in light of the seriousness of A.B.'s crimes and

determined that he would "remain a risk to the community until he receive[d] some

modicum of services."12 It concluded that a standard range disposition of 52 to 65

weeks at a JRA facility would not effectuate a manifest injustice and would instead

appropriately rehabilitate A.B. and allow him to successfully transition back into the

community.

       A.B. appeals.

                                        ANALYSIS

       A.B. argues that the juvenile court erred when it applied the SRA same criminal
conduct test to determine that his prior offenses for the possession of a stolen laptop

and possession of a controlled substance involved different victims and therefore did
not arise out of the same course of conduct under the JJA. We find his argument

unpersuasive.

       The interpretation of a statutory provision is a question of lawthat this court

reviews de novo.13 The JJA provides that "when a juvenile 'is convicted of two or more

charges arising out of the same course of conduct, only the highest charge from among
these shall count as an offense'" for purposes of calculating the juvenile's criminal




       11 RP(Jan. 9, 2015) at 48.
       12 \± at 49.
       13 State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
No. 73198-0-1/6



history score.14 But the legislature did not define "same course of conduct" and the

phrase is not used elsewhere in the JJA or the SRA.15

       However, the SRA does contain a similar provision. RCW 9.94A.589(1)(a)

provides that "if 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) defines "same criminal conduct" as "two or more

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

and involve the same victim."

       In State v. Contreras, our Supreme Court analyzed the SRA's same criminal

conduct provision and the JJA's same course of conduct provision in the context of

construing the meaning of the phrase "single act" as used in a provision of the JJA that

limited juvenile sentences for multiple crimes to 150 percent of the most serious offense

when the offenses were committed "through a single act or omission."16 The court

reasoned that a single act should be consistent with the same course of conduct

provision of the JJA, which in turn should not be read more narrowly than the SRA's

definition of "same criminal conduct." The court expressly concluded that "[d]espite

differences in terminology, the tests for determining whether the phrases 'same course

of conduct' used in the [JJA] and 'same criminal conduct' used in the SRA are

essentially the same."17




       14 Contreras. 124 Wn.2d at 746 (quoting former RCW 13.40.020(8)(a) (1977)).
       15 Id

       16 Id, at 743-48.
       17 Id. at 748.
No. 73198-0-1/7


       A.B. contends that this portion of the Contreras analysis is merely dicta. "'A

statement is dicta when it is not necessary to the court's decision in a case' and as such

is not binding authority."18 Because that analysis was integral in arriving at the court's

ultimate holding, we conclude that it was not dicta.

        Next, relying on a concurring opinion in State v. Haddock, A.B. argues that his

prior offenses meet the SRA's definition "same criminal conduct" because "the public at

large was likewise 'victimized' by [his] illegal possession of someone else's property."19

Because the majority in Haddock expressly rejected that proposition, we find no merit in

his argument.20

       A determination of same criminal conduct will not be disturbed absent an abuse

of discretion or misapplication of the law.21 For purposes of a same criminal conduct

analysis, the victim of a possession of stolen property offense is the rightful owner of the

property,22 whereas the victim of an unlawful possession of a controlled substance

offense is the general public.23 Here, the victim of A.B's stolen property offense was the

laptop's rightful owner, while the general public was the victim of his controlled




      18 Gabelein v. Diking Dist. No. 1 of Island County, 182 Wn. App. 217, 239, 328
P.3d 1008 (2014) (quoting Protect the Peninsula's Future v. City of Port Angeles, 175
Wn. App. 201, 215, 304 P.3d 914 (2013)).
       19 Appellant's Br. at 12.
       20 Haddock, 141 Wn.2d at 111 ("While we recognize that all crimes victimize the
public in a general sense, we are satisfied that these crimes directly inflicted specific injury
on individuals.").
       21 State v. Graciano. 176 Wn.2d 531, 536, 295 P.3d 219 (2013).
      22 Haddock, 141 Wn.2d at 111 (victims of possession of stolen firearm counts were
the owners of the firearms).
       23 Id. at 110-11: see also State v. Porter, 133Wn.2d 177, 181, 942 P.2d 974
(1997); State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993).
No. 73198-0-1/8


substance offense. Because the victims were not the same, the court's determination

that A.B.'s prior offenses did not encompass the same course of conduct was not an

abuse of discretion or a misapplication of the law.

       Lastly, A.B. contends that the juvenile court failed to exercise its discretion

because it categorically refused to consider his request for a manifest injustice

disposition below the standard range. We disagree.

      A "juvenile court may enter a manifest injustice finding and impose a downward

exceptional disposition where the juvenile court finds by clear and convincing evidence

that a standard range disposition would be detrimental to the goal of rehabilitating the

juvenile offender, and such a disposition would not endanger the public."24 A juvenile

court's determination that a standard range disposition would effectuate a manifest

injustice is reviewed for an abuse of discretion.25

       Here, the juvenile court found that "the record does clearly show cognitive

mental health challenges, as well as a history of substance abuse."26 But expressly

recognizing its discretion in imposing a downward exceptional disposition, the court

determined:

       And I looked closely at the issues that [A.B.] faces, and they simply—
       they're horribly unfortunate, they're extremely challenging, but they're not
       exceptional. They are what this court deals with every day.

              And the question really is, where will he and the community most
       benefit? I do have concerns about community safety. These are
       extremely serious crimes. . . .




       24 State v.K.E., 97 Wn. App. 273, 282-83, 982 P.2d 1212 (1999).
       25 State v. Sledge, 133 Wn.2d 828, 844, 947 P.2d 1199 (1997).
       26RP(Jan. 9, 2015) at 48.


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No. 73198-0-1/9


               I have a different perspective on JRA then perhaps counsel does.
       And that is that there's always a risk of institutionalization. And I will not
       be naive enough to say that that cannot occur. But I've also seen youth
       turn around. [A.B.] is in need of services. And is he going to be
       sufficiently stabilized and supported in the community that those services
       are going to be pursued, and that he does not remain a risk to the
       community prior to his receiving services, and I don't think he does.

               I think that he does remain a risk to the community until he receives
       some modicum of services. JRA is set up so at the time that it believes
       that a youth has been sufficiently rehabilitated, that they will be
       transitioned to a group home, and will receive services in the community.
       And that's the judgment that they make after a youth has been there for a
       certain period of time and has shown receptiveness and responsiveness
       to services.[27]

       The record demonstrates that the court's observation that A.B.'s cognitive

impairment and substance abuse issues were common among juvenile defendants was

not a categorical refusal to consider his request for a manifest injustice disposition

downward. Rather, it was an appropriate component of its ultimate determination that a

downward exceptional sentence was not warranted. Having focused its analysis upon

where A.B. and the community would most benefit, the court addressed its concerns for

the public's safety given the seriousness of A.B.'s crimes and concluded that he would

remain a risk to society until he received effective treatment. Thus, the court made an

individualized determination that a standard range sentence at a juvenile facility would

best provide A.B. treatment and would allow him to successfully transition back into the

community.

      We note that our Supreme Court recently held that a defendant's youthfulness,

including the science supporting youthful impaired cognitive ability, can be a possible

mitigating factor justifying an exceptional adult sentence below the standard sentence


      27
           Id. at 49-50 (emphasis added).
No. 73198-0-1/10


range.28 The court here reviewed and expressly considered A.B.'s cognitive

impairments and other mitigating factors before focusing on the question of what was

best for A.B. and for the community. We conclude that the court properly exercised its

discretion in imposing a standard range disposition.

      We affirm.




WE CONCUR:




      28 State v. O'Dell, No. 90337-9, 2015 WL 4760476, at *9 (Wash. Aug. 13, 2015).


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