State of Washington v. Freddy Munoz Razo
37131-0
| Wash. Ct. App. | Jul 13, 2021Background
- Defendant Freddy Muñoz Razo was convicted by jury of first‑degree attempted murder (with a firearm enhancement) and first‑degree kidnapping for the June 2016 abduction and shooting of Amy McGee; convictions affirmed on appeal.
- At sentencing the State presented twelve prior California convictions and asked the court to count eight toward Muñoz Razo’s offender score; the trial court scored all eight, producing an offender score of 8 and a total sentence of 497.75 months.
- Muñoz Razo challenged inclusion of three California convictions: (1) a recidivist car‑theft conviction under Cal. Penal Code § 666.5, (2) receiving known stolen property (Cal. Penal Code § 496), and (3) forgery (Cal. Penal Code § 475(b)).
- The State conceded the § 666.5 conviction should not count; the parties disputed whether the receiving‑stolen‑property and forgery convictions were legally and/or factually comparable to Washington offenses and therefore countable under RCW 9.94A.525(3).
- The Court concluded the recidivist conviction was not a substantive offense and that the receiving and forgery convictions were broader than, and not shown to satisfy, comparable Washington statutes; it remanded for resentencing with an offender score of 5.
Issues
| Issue | Plaintiff's Argument (Muñoz Razo) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a CA § 666.5 recidivist conviction counts toward offender score | § 666.5 only enhances punishment for repeat vehicle‑theft and is not a substantive prior conviction | Counts as a prior crime for score | Court accepted concession: § 666.5 not a substantive offense; exclude and reduce score by one point |
| Whether CA receiving stolen property (§ 496) is comparable to WA identity theft (RCW 9.35.020) | § 496 is broader (possession of stolen property without intent/identification element); CA facts do not establish possession of a means of identification or intent to commit further crime | CA offense is comparable and the charged checks necessarily contained financial information | Not comparable legally; CA factual record did not establish required WA elements; exclude conviction from offender score |
| Whether CA receiving stolen property (§ 496) is comparable to WA trafficking in stolen property (RCW 9A.82.050) | CA statute lacks the WA requirement of intent to sell/transfer/otherwise dispose; factual record lacks such intent | Comparable | Not comparable; factual record does not show the intent element; exclude conviction |
| Whether CA forgery (§ 475(b)) is comparable to WA forgery (RCW 9A.60.020) | § 475(b) criminalizes possession of blank/unfinished instruments with intent to complete, which is broader than WA forgery; CA plea did not admit the WA elements (false making or knowing possession of a forged instrument) | Comparable | Not comparable; CA conviction admissions did not establish WA forgery elements; exclude conviction |
| Ineffective assistance of counsel at sentencing | Counsel failed to prepare, object, present mitigation, and challenge comparability | State did not address in detail; court noted many alleged facts fall outside record | Court declined to resolve IAC claim in appellate brief because resentencing is required; defendant may raise mitigation/arguments at resentencing |
Key Cases Cited
- State v. Thiefault, 160 Wn.2d 409 (2007) (sets two‑part test for comparing out‑of‑state convictions: legal (elements) then factual comparability)
- People v. Lee, 16 Cal. App. 5th 861 (2017) (Cal. appellate court: § 666.5 is an alternate punishment scheme, not a new substantive offense)
- People v. Young, 234 Cal. App. 3d 111 (1991) (California court: § 666.5 creates enhanced punishment for repeat offenders, not a new offense)
- State v. Ford, 137 Wn.2d 472 (1999) (State bears burden to prove comparability of out‑of‑state convictions)
- State v. Morley, 134 Wn.2d 588 (1998) (foreign offense must be compared to Washington statute in effect when foreign crime occurred)
- State v. Olsen, 180 Wn.2d 468 (2014) (offender score calculation reviewed de novo)
- State v. Wilson, 170 Wn.2d 682 (2010) (sentence based on incorrect offender score is a fundamental defect/miscarriage of justice)
- People v. Wallace, 33 Cal. 4th 738 (2004) (a nolo contendere plea has the same effect as a guilty plea for purposes of admitting elements)
- State v. Fedorov, 181 Wn. App. 187 (2014) (identity‑theft statute requires victim be an actual person rather than a legal entity)