                                                                                                                    FILED
                                                                                                               COURT OF APPEALS
                                                                                                                   T
                                                                                                                  01V1S f0N ?I
                                                                                                            2014 AUG 19     J1 9 : 38
                                                                                                                          S¢ ! ,~   TON

    IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                                               ON4.. \(

                                                        DIVISION II ` '



STATE OF WASHINGTON,                                                                    No. 44911 -1 - II


                                          Respondent,


         v.




GENARO BRANDON VILLANUEVA,                                                     UNPUBLISHED OPINION


                                          Appellant.




         BJORGEN, A. C. J. —            A jury found Genaro Villanueva guilty of second degree burglary,

second       degree theft,      and   forgery. He appeals his sentence, arguing that the trial court erred by

including in his offender score ( 1) two New Mexico convictions that should have washed out,
and (   2)    a   Texas    conviction      that   was    not    comparable    to   a   Washington   offense.    The State


concedes that the trial court erred in concluding that the Texas conviction is legally comparable

to the Washington            offense,     and     we   accept   that   concession.     We hold also that the record is


insufficient for us to determine whether the Texas conviction is factually comparable to the

Washington            offense   and     whether    the New Mexico          convictions    washed    out.    Therefore, we


remand        to the trial      court   for resentencing.         Villanueva also filed a Statement of Additional


Grounds ( SAG) challenging his               convictions.       1 We reject Villanueva' s SAG claims and affirm his

                  2
convictions.




1 RAP 10. 10.

2 A commissioner of this court initially considered Villanueva' s appeal as a motion on the merits
under    RAP 18. 14       and    then transferred it to a panel of judges.
44911 -1 - II



                                                          FACTS


         On April 11, 2013, a jury found Villanueva guilty of second degree burglary, second

degree theft,    and   forgery. Villanueva' s prior convictions included a 2000 Texas conviction for

burglary of a habitation, a 1999 New Mexico conviction for taking a motor vehicle, a 1996 New

Mexico     conviction     for    attempted   larceny, a 2004 Washington conviction for first degree

burglary, and a 2004 Washington conviction for second degree theft.

         At sentencing, Villanueva         challenged      his   offender score.     The trial court found the 1999


New Mexico taking a motor vehicle conviction comparable to Washington' s second degree
                                                      3
taking   a motor vehicle without permission,              the 1996 New Mexico attempted larceny conviction
                                                                                4
comparable       to   Washington'    s   attempted    first degree theft,           and the 2000 Texas burglary
                                                                                5
conviction      comparable      to Washington' s     residential    burglary.       Villanueva argued that because


the New Mexico convictions were comparable to Washington class C felonies, they should wash

out pursuant     to RCW 9. 94A. 525( 2)(     c).    The trial court rejected this argument, concluding that

the five year period for determining when a conviction washes out does not begin until after a

defendant has         finished   serving his       community       custody time       and,   therefore,   Villanueva' s


convictions did not wash out because he did not finish serving community custody until 2009.

The trial court included the Texas conviction and both New Mexico convictions in Villanueva' s

offender score and sentenced Villanueva to a standard range sentence. Villanueva appeals.




3 RCW 9A.56. 075.

4 RCW 9A.56. 030, RCW 9A.28. 020.

5
    RCW 9A.52. 025.


                                                             2
44911 - 1 - II



                                                      ANALYSIS


                                                  A. Offender Score


          Villanueva      challenges   his   offender score on    two   grounds.    First, he alleges that the trial


court improperly counted his prior New Mexico convictions because they had washed out.

Second, he alleges that the trial court improperly counted the prior Texas conviction because it is

not   legally    comparable    to   residential   burglary. The State concedes that the trial court erred by

concluding the Texas conviction is legally comparable to residential burglary.

          The record is not sufficient for us to determine whether the New Mexico convictions


washed out or whether the Texas conviction is factually comparable to a Washington offense.

Therefore, we remand to the trial court to calculate Villanueva' s accurate offender score and


resentence Villanueva accordingly.

          Under RCW 9. 94A.525( 2)( c):


          class 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 -ime residential treatment) pursuant to a felony conviction, if any, or entry of
               t
          judgment and sentence, the offender had spent five consecutive years in the
          community without committing any crime that subsequently results in a
          conviction.



                                                                            from                      Therefore, the
This   statute    clearly begins the five -
                                          year       period upon release            confinement.




trial court erred in beginning this period when Villanueva was released from community custody.

          The record, however, indicates that Villanueva may have been confined for a period of

time   in 2009,    which would prevent        the   convictions   from washing     out.   6 Because the record is not



6
    During sentencing defense counsel stated:
         What I did, your Honor, is I called Shelton and they indicated he was released
          from Clallam Bay on November 27, 2006, however, there was. some DOC time,
          but I   can'   t — I mean violation time, but I can' t give your Honor the specifics on
          that.
                                                            3
44911 - 1 - II



sufficient to determine when Villanueva' s last date of release from confinement was, on remand


the trial court should determine the last date of actual confinement and count Villanueva' s New

Mexico     convictions,       if   appropriate.    See RCW 9. 94A.525( 22) ( Prior convictions that were not


included in criminal history or in the offender. score shall be included upon any resentencing to

ensure imposition of an accurate sentence).


          Villanueva also argues that the trial court erred by including his Texas conviction for

burglary of a habitation under V.T.C. A., Penal Code § 30. 02 because the conviction is not legally

comparable         to   residential   burglary.     The State concedes that the convictions are not legally

comparable. We accept the State' s concession.


           Out -of - tate convictions for offenses shall be classified according to the comparable
                   s

offense    definitions        and   sentences     provided   by   Washington law."   RCW 9. 94A. 525( 3).       To


determine legal comparability, we determine whether the elements of the foreign offense are

substantially       similar   to the Washington       offense' s elements.   State v. Thiefault, 160 Wn.2d 409,


415, 158 P. 3d 580 ( 2007).              The Texas burglary statute' s definition of habitation includes a

vehicle.     V.T. C. A., Penal Code § 30. 01( 1).            In contrast, the applicable Washington residential


burglary         statute   specifically     excludes     vehicles.      Former   RCW     9A. 52. 025( 1) (   1989).


Accordingly, the State correctly concedes that Villanueva' s prior Texas conviction for burglary

of a habitation is not legally comparable to Washington' s residential burglary statute.




Report of Proceedings ( RP) at 284. Defense counsel stated also:
          I did call the prison and my client was actually released in 2006, however, it
       sounds like there was some DOC time in 2009. I' m not exactly certain of that .. .
RP ( May 2, 2013) at 7.


                                                              4
44911 -1 - II



            If a foreign statute is not legally comparable to a Washington offense, the court must

determine       whether     the   offenses are       factually   comparable—      whether the conduct underlying the

foreign     offense would         have   violated     the   comparable   Washington      statute.    Thiefault, 160 Wn.2d


at   415.    The State also properly points out that the record is insufficient to determine whether

Villanueva' s prior Texas conviction is factually comparable to Washington' s residential

burglary. Therefore, remand for a resentencing hearing is appropriate.

            In sum, on remand for resentencing the trial court shall determine, consistently with this

opinion, which of Villanueva' s prior convictions are properly included in his offender score.

The court shall hold any evidentiary hearing needed to make that determination.

                                                              B. SAG


            Villanueva      raises   two issues in his SAG.            First, he states that one of the witnesses was


under the influence of heroin while he testified at trial. However, Villanueva fails to identify any

legal   error     resulting from this      assertion.       At best, Villanueva' s claim can be read as challenging

the credibility       of   the   witness' s   testimony.       Credibility determinations, however, are left to the

jurors      who   personally      observe     the    witnesses   and   will not   be   reviewed     by   our   court.   State v.


Carter, 113 Wn.2d 591, 604, 781 P. 2d 1308, 789 P. 2d 306 ( 1989).


            Second, Villanueva asserts that he received ineffective assistance of counsel because his

attorney refused to listen to his requests regarding objections and questions during cross -

examination. This claim rests on facts outside the record, and we do not address claims based on

facts    outside    the    record on     direct     appeal.   State v. McFarland, 127 Wn.2d 322, 338, 899 P. 2d

1251 ( 1995).


            Villanueva' s SAG claims lack merit and we affirm his convictions. We remand for




                                                                  5
44911 -1 - II



resentencing as directed in this opinion.

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

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

2. 06. 040, it is so ordered.




We concur:




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