                                                                                              FILP
                                              COURp OF APP ALS
                                              T
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                           -

                                                                                    2Q13 NAR 12 AM 8:41
                                         DIVISION II
                                                                                   STAT       F W%,
                                                                                                 GTON
STATE OF WASHINGTON,
                                                                No. 43348 6 II
                                                                          - -                    TY
                              Appellant,

         V.                                                  UNPUBLISHED OPINION


LINDA.ACOSTA,

                              Respondent.




         BJORGEN J. — Linda         Acosta appeals the imposition of an exceptional sentence,

arguing that her sentence was excessive and constitutes. cruel or unusual punishment.

Finding no error, we affirm her sentence.'
                                              FACTS


         Acosta worked as the general manager of Hokold Development, a business owned

by    Oscar   and   Olivann   Hokold.      Between 2003 and August 2010, Acosta stole

271. 24,
1,5 from
   6
   4                      the Hokolds   through fraudulent   use   of business checks. She was


charged with three counts of first degree theft.

         Count I,covering 2003 through 2006, charged Acosta with writing 78 checks for
a   total amount of $
                    11.
                    518, 03.
                       7                Count II, covering 2007 through August 31, 2009,
charged her with writing      41 checks             786, 40. Through Count III, for the
                                                    01.
                                           totaling $  7


1 A commissioner of this court initially considered this appeal as a motion on the merits
under RAP 18. 4 and then referred it to a panel ofjudges.
            1
2
    The record for the sentencing hearing reflects an incorrect total for all three counts.
3
    At.the end of the time period covered by Counts I and II,the theft statute changed the
base   amount for first   degree              1,       5,
                                   theft from $ 500 to $ 000.
No. 43348 6 II
          - -



period September 1, 2009 through August 2010, she was charged with writing 18 checks
for a total amount of 118, 28.
                      53.
                      $  8

       On March 7, 2012, after the beginning of trial, Acosta pleaded guilty to all three

counts. In her plea agreement, Acosta signed off on the factual basis for her plea, which
included "the elements of the charges and       aggravating   factors   as   alleged." Report of

Proceedings (RP)Mar. 7, 2012)at 4. The court advised Acosta that the State planned to
                (

seek an exceptional sentence "based upon the aggravating factors that you have agreed

to." (Mar. 7, 2012) at 5. The stipulated aggravating factors were that the crimes (1)
   RP

involved multiple victims and multiple incidents; 2)showed a substantially greater than
                                                  (

typical monetary loss; 3)
                       ( involved a high degree of sophistication; 4)
                                                                   ( involved an abuse

of position or trust; and ( )
                          5 took place over a long period of time.

       At sentencing, the State requested 120 months each for Counts I and II and 60

months for Count III, to run consecutively, for a total sentence of 300 months, or 25

years. Acosta requested a 5 to 7 year total sentence because, in part, the standard range
for each theft count   was   3 to 9   months,   to be served    concurrently. The statutory

maximum for first degree theft, a class B felony during all of the charging periods, is 10
years and or 20, 00. RCW 9A. 0.
          / $ 0          b),
                         021(
                            1)(
                            2 2).
                              56. 30(
                                0                                               .

       The superior court found "compelling and substantial reasons to justify an

exceptional sentence"based on the stipulated aggravating factors. RP (Mar. 7, 2012) at
23. The court rejected the State's recommendation of 300 months on the ground that it

does not " esult[] [parity] for you."RP (Mar. 7,2012) at 26. Looking "to others who
         r       in
have committed similar offenses,"the superior court imposed a total sentence of 192

months, broken down as consecutive sentences of 72 months each for Counts I and II and



                                             2
No. 43348 6 II
          - -



48 months for Count III. RP (Mar. 7, 2012) at 26 27; Clerk's Papers at 23 35. Acosta
                                                 -                        -

appeals.

                                             ANALYSIS


A.       Requirements for Imposing Exceptional Sentence

         RCW 9.
             510 sets out the standard sentencing ranges for various crimes. As
               94A.

noted,the standard range for each count of first degree theft is three to nine months.

         The trial court may impose a sentence outside the standard range if it finds that

              substantial and                          justifying        exceptional   sentence.   RCW
there   are                     compelling   reasons                an




535. Consecutive sentences may be imposed if the requirements for exceptional
9.94A.

sentences in RCW 9.
                 535 are met. RCW 9.
                  94A.            589.
                                   94A.

         According to RCW 9. a sentence above the standard range must rest on
                          535,
                           94A.

one or more of the aggravating factors which it lists. Among these is characterization of
the crime as a:


         major economic offense or series of offenses, so identified by a
         consideration of any of the following factors:
         i) current offense involved multiple victims or multiple incidents per
          The
         victim;
         ii) The current offense involved attempted or actual monetary loss
          substantially greater than typical for the offense;
          iii)The current offense involved a high degree of sophistication or
         planning or occurred. ver a lengthy period of time; or
                             o
         iv) The defendant used his or her .position of trust, confidence, or
          fiduciary responsibility to facilitate the commission of the current offense.

RCW 9.
    d)(
    535( 4A.
       i iv).
       3)( -
       9

          The defendant stipulated to each of these aggravating factors. In imposing the

exceptional sentence, the court below discussed each of these factors and stated why it

felt each was . resent.
              p




                                                   3
No. 43348 6 II
          - -



B.     Trial Court Did Not Abuse Its Discretion in Imposing Exceptional Sentence

       To reverse an exceptional sentence, an appellate court must find: 1)
                                                                         ( under the

clearly erroneous"standard, the reasons for departure from the standard range are not

supported by the record; 2) a matter of law,the stated reasons do not justify the
                         ( as

exceptional sentence; or ( )
                         3 under the "abuse of discretion"standard, the sentence

imposed is clearly excessive or too lenient. State v. Hutsell, 120 Wn. d 913, 916, 845
                                                                     2
P. d 1325 1993).Acosta stipulated to the presence of aggravating factors under RCW
 2        (

535,
9. removing any challenge under the first two of these grounds. Thus, she can
  94A.

only seek reversal under the " buse of discretion"prong.
                             a

       Turning to that standard, a "clearly excessive"sentence is one that is clearly

unreasonable, i. exercised on untenable grounds or for untenable reasons, or an
              "` e.,

action that   no   reasonable person would have taken. "' State   v. Ritchie, 126 Wn. d 388,
                                                                                    2

393, 894 P. d 1308 (1995)quoting State v. Oxborrow, 106 Wn-. 525, 531, 723 P. d.
          2               (                               2d                2

1123 (1986)).
           When a sentencing court does not base its sentence on improper reasons,
we will find a sentence excessive only if its length, in light of the record, shocks the
                                                                              "`

conscience. "' State    v. Vaughn, 83 Wn. App. 669, 681, 924 P. 4 27 (1996)internal
                                                              2             (

quotation marks omitted)quoting Ritchie, 126 Wn. d at 396),
                        (                      2          review denied, 131 Wn. d
                                                                               2
1018 (1997).

        Acosta points out that her sentence was more than twenty one times the upper end
                                                                 -                   -

ofthe three to nine month standard range sentence and argues that this is clearly

excessive in light of the punishment of other crimes. In support, she cites the decision in

State v. Delarosa-
                 Flores, 59 Wn. App. 514, 799 P. d 736 (1990),
                                               2             which vacated an

exceptional sentence that was six times the standard range, much less than the twenty one
                                                                                      -



                                                 4
No. 43348 6 II
          - -



times the standard range imposed on her. Delarosa-
                                                 Flores, however, involved an

exceptional sentence of 30 years for three counts of first degree rape. The court held that

of the five aggravating factors relied on, only two were shown and they did not support a

sentence of 30 years. Delarosa -
                               Flores, 59 Wn. App;At 5 18 520. Thus, Delarosa-
                                                       - -

Flores is relevant, but far from conclusive.

       Acosta also points out that with an offender score of 2,a standard range sentence

of 72 months would only be possible under RCW 9. for crimes such as first
                                              510
                                                94A.

degree child molestation, first degree kidnapping and leading organized crime, which are

far more serious than what she committed. Her argument is correct as far as it goes, but

is based on a comparison of the standard range of one conviction of these more serious

offenses with the cumulative sentence of three convictions for first degree theft with

aggravating circumstances. It is not arbitrary or irrational to punish multiple convictions
of a less serious crime with aggravating circumstances at a level similar to that of a single

instance of a more serious crime without aggravating features.

        A more productive comparison lies.with cases involving exceptional sentences for
crimes of theft. State v. Branch, 129 Wn. d 635, 919 P. d 1228 (1996), example,
                                        2             2              for

affirmed a sentence of 48 months for first degree theft in the amount of 398, 52.
                                                                         91.
                                                                         $  6

The court held that the trial court did not abuse its discretion in imposing a 48 month
                                                                                  -

sentence " ecause 48 months is not a clearly excessive sentence for a theft of nearly
         b

400, 00."
   0    Branch, 129 Wn. d at 650.
                      2

        In Oxborrow, 106 Wn. d at 528, our Supreme Court affirmed a 10 year sentence
                           2                                           -

for first degree theft for defrauding approximately 51 investors of over $ million, to be
                                                                         1

served consecutively to a 5 year sentence for willful violation of a cease and desist order.
                            -



                                               6
No: 43348 6 II
          - -



In examining whether the theft sentence was clearly excessive, the court noted that, at the

time, first degree theft could involve an amount as little as $ 500, such that the presence
                                                              1,

of a fraud involving over $ million was "the quintessential crime for which the
                          1

Legislature contemplated a maximum sentence."Oxborrow, 106 Wn. d at 533.
                                                             2

       Finally, in State v. Knutz, 161 Wn. App. 395, 399 253 P. d 437 (2011), superior
                                                              3             a

court imposed a five year sentence for the theft of 347, 00 from a single elderly victim
                                                    $ 0

over a three year period. The sentencing court noted that the total amount of theft was
             -

210 times the [then - ]
                    minimum"amount of 1, Knutz, 161 Wn. App. at 402. We
                                      $ 500.

affirmed the exceptional sentence in light of the " xtreme amounts of money that Knutz
                                                  e

took from her elderly victim over the years."Knutz, 161 Wn. App. at 411.

        Here, the total amount taken was over three times the amounts involved in Branch

approximately $ 00; 00)and Knutz ( pproximately $ 50, 00), Acosta's total
              4 0                a              3 0      and
sentence of 16 years is also three to four times the length of the sentences in Branch (
                                                                                       4

years) and Knutz ( years).Thus, Acosta's sentence does not appear unreasonable in
                 5

light of these sentences. Further, although the total amount of Acosta's theft exceeded

the amount in Oxborrow, unlike in Oxborrow, the sentencing court here did not impose

the maximum 10 year sentence for any of her theft counts.
               -

        In addition, looking at single counts in light of the 10 year maximum imposed for
                                                                 -

a loss of 1 million in Oxborrow, Acosta received 6 year sentences for losses of
          $                                        -

approximately $ 85, 00 ( ount I) $ 00, 00 ( ount II),
              7 0 C            and 5 0 C           essentially receiving
sentences between 50 percent and 78 percent of the 10 year statutory maximum for each
                                                      -

count for losses that were 50 to 70 percent of the losses in Oxborrow. Moreover, in light

of the minimum amount of loss necessary to convict for first degree theft, the fact that the



                                              7V
No. 43348 6 II
          - -



total amount of loss here was over 284 times the now -
                                                     minimum amount of 5, further
                                                                       $ 000

shows that the sentencing court did not abuse its discretion. See Oxborrow, 106 Wn. d at
                                                                                  2

533 (looking to minimum amount);
                               Knutz, 161 Wn. App. at 203 (noting that the total
amount of theft was 210 times the then -
                                       minimum amount of 1500).
                                                         $ ,

         In comparison to other exceptional sentences for theft imposed on defendants

with little or no criminal history, Acosta's total theft sentence does not shock the

conscience in light of the presence of multiple stipulated aggravating factors.

C.       Exceptional Sentence Not Cruel and Unusual Punishment

         Acosta argues that her sentence was disproportionate to the crime she committed

and constituted cruel and unusual punishment, which is prohibited by amendment 8 to the

United States Constitution and article 1, section 14 of the Washington Constitution.

         Article I,section 14 of the Washington Constitution prohibits cruel punishment

and provides more protection than its eighth amendment federal counterpart. State v.
Fain, 94 Wn. d 387, 392, 617 P. d 1980).It necessarily follows that if the
           2                  2 (

Washington Constitution is not violated, the sentence also does not violate the United
States Constitution. State v. Morin, 100 Wn. App. 25, 29, 995 P. d 113, review denied,
                                                               2

142 Wn. d 1010, 16 P. d 1264 (2000).
      2             3

         Article I,section 14 protects against sentences that are "grossly disproportionate"

to the crime committed. " punishment is grossly disproportionate only if the conduct
                        A
should   never   be   proscribed ... or if the punishment is clearly arbitrary and shocking to

the sense ofjustice."State v. Smith, 93 Wn.2d 329, 344 45,610 P. d 869, cent. denied,
                                                       -       2
449 U. .873, 101 S. Ct. 213, 66 L.Ed. 2d 93 (1980).When considering whether a
     S

sentence is cruel,we consider (1) nature of the crime, 2) legislative purpose
                                the                    ( the



                                                  rl
No. 43348 6 II
          - -



behind the criminal statute, 3)
                             ( sentences for similar crimes in other jurisdictions, and (4)

sentences for similar crimes in our jurisdiction. State v. Whitfield, 132 Wn. App. 878,

134 P. d 1203 (2006),
     3              review denied, 159 Wn. d 1012, 154 P. d 919 (2007).
                                         2              3

         1. Nature of the Crime


       Acosta pleaded guilty to three class B felonies. RCW 9A. 6.She not only
                                                            030(
                                                               2
                                                               5 ).

stipulated to the presence of multiple aggravating factors, RCW 9.
                                                                3)( the
                                                                 2),
                                                                 9A535(but

superior court also made independent findings to support the presence of these factors.
         The court found the crimes involved multiple victims, and even were the court to

count the Hokolds as one victim,the crime involved a multiple series of incidents in that
Acosta wrote t 80 fraudulent checks. The court determined all three crimes involved

substantial monetary loss. The court found that the offenses involved a high degree of

sophistication, noting that " costa started out at the ground level with the Hokold
                            A
business, she   was   able to work her way up ...   and became the person in charge, and in

that capacity had complete control over the finances of the business."RP (Mar.7,2012)
at 25. The court added that the offenses occurred over a lengthy period of time. The

court also found that Acosta used her position of fiduciary responsibility to facilitate the

commission of the offenses because she kept all of the financial materials and

documentation in her possession and no one else was able to participate in looking at the
books.


          In light of these findings, the nature of Acosta's crime is consistent with the

lengthy   sentence.
No. 43348 6 II
          - -



         2. Legislative Purpose

         The present legislative purpose behind the first degree theft statute is to deter theft

of amounts of 5000 or more. RCW 9A. 6.
              $ ,               a). score of 2,the
                                030(
                                   1)( offender
                                   5  With an

standard range sentence for Acosta is 3 to 9 months in custody, with a statutory

maximum of 10 years and up to a $ 0, 00 fine. RCW 9A. 0. (b);
                                2 0               021 1)( RCW
                                                    2

510.However, a sentencing court is authorized to impose an exceptional sentence,
9.94A.

RCW 9. to allow the court to " ailor the sentence"to the facts of the case. State
    537,
     94A.                    t

v. Davis, 146 Wn. App. 714, 719 20,192 P. d 29 (2008).This is exactly what the court
                                -       3

below did. Acosta's sentence is consistent with this legislative purpose.

         3. Sentences in Other Jurisdictions


         Acosta looks to Oregon and California to argue that her Washington sentence

exceeded those she would have received in these jurisdictions. With respect to Oregon,

Acosta notes that ORS 137. 17(sets a presumptive sentence of 19 months for
                      1)(a)
                         7

commission of first degree theft in cases in which the defendant has a previous
conviction for various listed crimes.


         But, as both the State and Acosta acknowledge, Oregon's sentencing scheme,

unlike ours, is indeterminate sentencing. This means that a sentencing court has "near

absolute discretion"to impose any sentence up to the maximum 10 year term for
                                                                -

aggravated first degree theft. Br. of Resp't at 11. With this, it is difficult to draw any

fruitful comparison with Oregon law since we do not know what an Oregon sentence


4
  We note that Acosta did not submit any authority from either state regarding what that
jurisdiction considered a cruel or unusual theft sentence.
5
    Aggravated first degree theft requires a theft in the amount of 10, 00 or more. ORS
                                                                    $ 0
164. 57. It carries a maximum sentence of 10 years. ORS 161. 05.
   0                                                       6

                                                9
No. 433486 II
         - -



would likely have been with similar aggravating elements. What can be said is that the

19 month presumptive sentence in Oregon for theft over $ 0, 00 is not grossly
   -                                                   1 0

disproportionate to the 3 to 9 month standard range for theft over $ 000 in Washington,
                               -                                   5

especially since both have a 10 year maximum.
                                -
       Acosta also asserts that her sentence would be lower in California. She relies on

the fact that grand theft ( theft of more than $ 50)has a maximum sentence of
                          a                    9

imprisonment of not more than one year. CPC 489, 487. The California Penal Code,
however, allows for sentencing enhancements. It also contains up to a five year
                                                                           -

sentencing enhancement for " hite collar"thefts above $ 00, 00. CPC 186. l(
                           w                          5 0           a)(1),
                                                                       1

2).
  Moreover,the fine in California for taking more than $ 00, 00 is "not to exceed five
                                                       5 0

hundred thousand dollars ($ 000)or double the value of the taking,whichever is
                         500,

greater."CPC 186j 1( ). is far greater than the maximum $ 0, 00 fine in
                   c This                               2 0
Washington.

       In light of the indeterminate sentencing of up to 10 years for aggravated first

degree theft in Oregon and the white collar sentencing enhancements and fine available

in California,we cannot say that Acosta's Washington sentence is grossly

disproportionate to the crime.

        4. Sentences in Washington

        As shown above, Acosta's exceptional sentence was not disproportionate to other

sentences in Washington.




                                            10
No. 43348 6 II
          - -



D.     Conclusion


       In sum, we conclude that the trial court did not abuse its discretion in imposing

the exceptional sentence and that the sentence is not grossly disproportionate to the

crime. Accordingly, we affirm.

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

the Washington Appellate Reports, but will be filed for public record in accordance with

RCW 2.6.it is so ordered.
    040,
      0



                                                                    l


                                                   Bjp geiO.
                                                      "K
We concur:




                                             11
