State v. BerryState v. Berry
- Reporters:
- , ,
- Before:
- Ireland (en banc)
Norm Maleng, King County Prosecutor, Ann Summers, Deputy, William Berg, Deputy, Seattle, for respondent.
IRELAND, J.
We accepted review of this case from Division One of the Court of Appeals, which affirmed the defendant‘s conviction of four counts of first degree robbery. The sole issue before this court is whether two “stayed” California convictions were properly counted as a “strike” under the Persistent Offender Accountability Act (POAA), see
A. Berry‘s Prior California Convictions
In 1975, Berry was convicted in California of voluntary manslaughter (Count I) for shooting and killing Kathleen Williams, and of assault with intent to commit murder (Count II) and assault with a deadly weapon (Count III) for shooting Willie Earl Smith.1 During sentencing, the court and both counsel discussed California‘s prohibition against multiple punishments for the same act under
The trial court orally ruled that both assaults “arose out of one act” and ordered that the judgment and sentence on Count II be temporarily “stayed” until the sentence on Count III was served or the judgment became permanent, at which time the stay would also become permanent. See Clerk‘s Papers (CP) at 511-12.2 The trial court‘s written ruling, however, contradicted its oral ruling. The trial court‘s written judgment ordered that the sentences on both assault counts would be stayed until the sentence and conviction on the manslaughter count was served or became permanent.3 Berry appealed his convictions.
On appeal, the California Court of Appeal ordered that Berry‘s voluntary manslaughter conviction be lowered to involuntary manslaughter. The remainder of Berry‘s judgment and sentence, however, was otherwise affirmed.
On remand, the trial court modified Berry‘s manslaughter conviction as ordered. The trial court, however, went further and modified the original stay provisions to be consistent with its original oral ruling. The trial court removed the stay on Count III and ordered that the stay on Count II should remain in effect until both Counts I and III were served or became permanent.4 Berry filed a writ of habeas corpus challenging the modification of the original stay provision.
In 1978, a different California trial court granted Berry‘s writ and held that the amendments to the stay provisions “had no force and effect” because the original trial court had no jurisdiction to amend that part of the judgment. CP at 553. Consеquently, the original stay of both assault convictions remained in effect.
B. Berry‘s “Persistent Offender” Sentencing
In 1997, Berry was convicted in Washington of four counts of first degree robbery. Following these convictions, the trial court sentenced Berry. In determining Berry‘s criminal history under
II. ANALYSIS
The first issue we address is whether the State could collaterally attack the stay provisions. We hold that the full faith and credit clause requires that our courts recognize the stay provisions as valid and binding. The next issue, therefore, is how these stayed convictions should be treated under Washington‘s pеrsistent offender statute. We hold that the trial court properly considered them as a prior strike in sentencing Berry as a persistent offender.
A. Collateral Attack on Out-of-State Convictions
1. California‘s Stay Procedure
To promote the purposes of section 654, the California courts developed a procedure where the courts “stay” the execution of sentences for all but one cоnviction arising out of each act or indivisible course of conduct.6 The purpose of California‘s stay procedure is to avoid improper multiple punishments, while also avoiding leaving a defendant without any convictions if the trial court dismissed the stayed convictions at sentencing and if the nonstayed convictions were later reversed on appeal. Pearson, 228 Cal.Rptr. 509, 721 P.2d at 600-01. A stayed sentence becomes permanently stayed when the defendant‘s sentences on any nonstayed convictions have been served. Pearson, 228 Cal.Rptr. 509, 721 P.2d at 600.7
In California, permanently stayed convictions generally may not be used tо enhance future sentences or in any way used to disadvantage a defendant. Pearson, 228 Cal.Rptr. 509, 721 P.2d at 601. An exception exists where the Legislature explicitly declares that stayed convictions may be used to enhance future sentences. California‘s “Three Strikes” law explicitly provides such a declaration. See People v. Benson, 18 Cal.4th 24, 954 P.2d 557, 560-62, 74 Cal. Rptr.2d 294 (1998) (citing, inter alia,
2. Full Faith and Credit
The State argues that because Washington courts do not recognize clearly erroneous convictions, we should not recognize the stay provisions that were improperly imposed under Califоrnia law. The assault convictions
“Judgments, including criminal convictions of sister states, are generally accorded full faith and credit and their validity may not be collaterally attacked,” absent constitutional infirmity. State v. Rinier, 23 Wash. App. 102, 105, 595 P.2d 43 (1979). “The Full Faith and Credit Clause provides a means for ending litigation by putting to rest matters previously decided between adverse parties in any state or territory of the United States.” In re Estate of Tolson, 89 Wash. App. 21, 29, 947 P.2d 1242 (1997). A valid foreign judgment may be collaterally attacked only if the court lacked jurisdiction or constitutional violations were involved. Absent these grounds, “`a court of this state must give full faith and credit to the foreign judgment and regard the issues thereby adjudged to be precluded in a Washington proceeding.‘” In re Tolson, 89 Wash.App. at 30, 947 P.2d 1242 (quoting In re Estate of Wagner, 50 Wash.App. 162, 166, 748 P.2d 639 (1987)).
We find that the full faith and credit clause applies with full force here. There is no claim that the conviction is invalid in California, or that the California court did not have jurisdiction or committed constitutional error. Rathеr, the only claim is that the California court mistakenly applied California law.
We note that this case is distinguishable from Washington decisions that did not recognize out-of-state judgments. See State v. Carver, 113 Wash.2d 591, 602-03, 781 P.2d 1308, 789 P.2d 306 (1989) (full faith and credit clause not violated where custody statutes authorized Washington court to modify out-of-state custody decree). Here, there was no statutory authority to modify the California judgment. Thus, the basic tenet that foreign judgments control in Washington court proceedings applies. Consequently, we find that Berry‘s assault convictions, including the stay provisions, must be afforded full faith and credit.
The dissent contends that “[i]f we are to give full faith and credit to the California judgment of conviction we must likewise give full faith and credit to the legal limitations on the use or meaning intrinsic to that stayed conviction.” Dissent at 665. This statement, however, is clearly contrary to the repeated pronouncements of the United States Supreme Court.
While the full faith and credit clause applies in full force to judgments, its effect is lessened when the statutes or judicial decisions of another forum are at issue. Baker v. General Motors Corp., 522 U.S. 222, 232-33, 118 S.Ct. 657, 139 L.Ed.2d 580 (1997). “The Full Faith and Credit Clause does not compel `a state to substitute the statutes of other states for its own statutes dealing with a subject mаtter concerning which it is competent to legislate.‘” Id. (quoting Pacific Employers Ins. Co. v. Industrial Accident Comm‘n, 306 U.S. 493, 501, 59 S.Ct. 629, 83 L.Ed. 940 (1939)).8
In fact, it is under this doctrine that a California court, the forum to which the dissent would defer, recently held that even if an Arizona statute legally restored a convicted felon‘s right to possess a firearm, full faith and credit did not require California to follow Arizona‘s law. See People v. Shear, 71 Cal. App.4th 278, 288-89, 83 Cal.Rptr.2d 707 (1999) (affirming firearm possession conviction under California law). The California court chose to apply its own law in part because “[i]t is `the expression of [California‘s] domestic policy, in terms declared to be exclusive in its application to persons and events within the stаte.’ California‘s `significant contact’ with defendant, a California resident, creates a ` “state interest[ ], such that
Shear amply demonstrates that Washington law may be applied to a petitioner who is a Washington resident and who has committed his most recent offense within this state. All that full faith and credit requires is that Washington respect California‘s judgment of conviction, which we have done. The next issue, therefore, becomes whether Berry‘s stayed convictions count as strikes under the POAA.
B. “Stayed” California Convictions as “Strikes” under the Persistent Offender Acсountability Act
If a defendant is found to be a “persistent offender” in Washington under the POAA, the court must sentence the defendant to life in prison without the possibility of parole.
It is undisputed that Berry is being sentenced for a “most serious offense” — first degree robbery. It is also undisputed that Berry has been previously convictеd on at least two separate occasions in this state or elsewhere. Finally, it is undisputed that the assault convictions, absent the stay provisions, would be included in Berry‘s offender score under
To determine whether out-of-state convictions qualify as most serious offenses under Washington law, a “comparability” analysis is conducted. The goal is to match the out-of-state crime to the comparable Washington crime and “to treat a person cоnvicted outside the state as if he or she had been convicted in Washington.” State v. Cameron, 80 Wash.App. 374, 378, 909 P.2d 309 (1996) (citing case).10
The first step in the comparability analysis is to identify any comparable Washington offenses by comparing the elements of the out-of-state crime with the elements of the potentially comparable Washington crimes. E.g., Cameron, 80 Wash.App. at 378-79, 909 P.2d 309 (citing case). If comparable offenses are found, the court decides which is the most comparable offense and determines its classification under Washington law. See, e.g., Cameron, 80 Wash.App. at 378-79, 909 P.2d 309. After determining its classification under Washington law, the court treats the out-of-state conviction “as if it were a conviction for the comparable Washington offense.” Cameron, 80 Wash. App. at 378-79, 909 P.2d 309 (citing case).
Berry incorrectly characterizes the stayed assaults as dismissed or vacated under California law. There is no evidence that the assault convictions were ever dismissed or vacated. Furthermore, Berry‘s merger argument requires a postconviction comparability analysis. Washington‘s comparability analysis, however, focuses on the conviction and the elements of the offense and not on the sentencing or postjudgment remedies which do not result in either a dismissal or vacation.11
We have not previously included postconviction procedures under the comparability analysis and find that expanding the comparability analysis beyond an elemental analysis would unnecessarily complicate an already difficult process. Cf. Morley, 134 Wash.2d at 596, 952 P.2d 167 (“Nothing in the SRA [Sentencing Reform Act of 1981] states or implies that a sentencing cоurt must conduct the tedious task of comparing out-of-state criminal procedures to in-state procedures.“). Therefore, we find that the assault convictions remain valid “convictions” as that term is defined by the POAA. See
III. CONCLUSION
The goal of the POAA is to appropriately punish repeat violent offenders, including those with out-of-state convictions for violent offenses. This goal is served by including valid out-of-state convictions that have not been dismissed or vacated, that satisfy the standard comparability analysis, and that meet our most serious offense criteria. Consequently, we hold that the trial court properly considered Berry‘s stayed assault convictions as a strike under the POAA and affirm Berry‘s sentence for life without parole.
GUY, C.J., SMITH, JOHNSON, MADSEN, ALEXANDER, TALMADGE, JJ., and KENNEDY, J.P.T., concur.
SANDERS, J. (dissenting).
I disagree with the majority‘s conclusion that Lanyard Berry‘s two permanently stayed, 1975 California assault convictions are properly used as a strike for the purposes of Washington‘s “three strikes” law. Such permanently stayed convictions are effectively dismissed or vacated under California law. Our statute does not permit us to send Berry to the penitentiary for the rest of his life for a debt a separate sovereign has cancelled.
California‘s legislature has adopted a rule to prohibit the injustice of multiple punishments arising out of a single act or omission. See
As the majority correctly notes, California courts interpreting section 654 developed the stay procedure to protect defendants against multiple punishments by staying the sentences for all but one conviction arising out of each single act of criminal conduct. The underlying theory, as the majority points out, is that the defendant is not to be punished
Analyzing the effect of a section-654 stay, the California Supreme Court has noted “ample precedent” for the proposition that “section 654 prohibits the use of a conviction for any punitive purpose if the sentence on that conviction is stayed.” Pearson, 228 Cal. Rptr. 509, 721 P.2d at 601 (emphasis added). A prohibited punitive purpose includes a future sentence enhancement:
Any subsequent sentences imposed on defendant can be enhanced on the basis of the convictions for which he served a sentencе; but convictions for which service of sentence was stayed may not be so used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions.
Id., 228 Cal.Rptr. 509, 721 P.2d at 600-01. The California Supreme Court continued:
In keeping with our reason for using stays in multiple conviction situations, the defendant is penalized if he suffers enhancements based on stayed convictions. Thus to enhance a defendant‘s sentence because of a stayed conviction would constitute multiple punishment and is prohibited by section 654.4
4 To avoid any misconception by trial judges in future cases involving multiple convictions that have been stayed, we recommend that the stayed convictions be formally dismissed on completion of the defendant‘s sentence and parole on the conviction for which he is to be punished.
Id., 228 Cal.Rptr. 509, 721 P.2d at 602 (emphasis added). Thus under Pearson a defendant like Berry with permanently stayed convictions on his record could move in a California court to have his stayed convictions formally dismissed as a matter of right; however, the failure to do so at most results in a “misconception” that the stayed conviction may be used for any purpose. This rule unequivocally avoids the specter of future punishment based on the stayed convictions under California law. That is because under Pearson a stayed sentence has the practical effect of a formal dismissal of a conviction and can be used only for “subsequent penal or administrative action,” id., 228 Cal.Rptr. 509, 721 P.2d at 601, if the legislature clearly mandates it. If we are to give full faith and credit to the California judgment of conviction we must likewise give full faith and credit to the legal limitations on the use or meaning intrinsic to that stayed conviction.1
Not only is the exception which allows the use of a stayed conviction specifically limited to the California “three strikes” statute, but, even then, the Benson court did not say, as the majority seems to think, that the California Penal Code requires a stayed conviction be treated as a strike even under that statute. Rather such a conviction may, but need not, be treated as a strike under the California statute:
[O]ur [previous decisions] affirm[] that a trial court retains discretion in such cases to strike one or more prior felony convictions under section 1385 if the trial court properly concludes that the interests of justice support such action.8
.... [W]e believe that the [three strikes] statute properly must be interpreted to permit—but not necessarily require—a qualifying prior conviction to be treated as a strike even if the sentence on the conviction has been stayed pursuant to the provisions of section 654.
8 Because the proper exercise of a trial court‘s discretion under section 1385 necessarily relates to the circumstances of a particular defendant‘s current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected—for example when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.
Benson, 74 Cal.Rptr.2d 294, 954 P.2d at 564-65. The court‘s remand instructions ended with the caveat, “We express no opinion as to how the trial court should exercise its discretion under section 1385.” In other words, consistent with Benson, a California trial judge may strike a section-654 stayed conviction completely, or he may count it as a strike for the purposes of the “threе strikes” law pursuant to section 667, but he may not count it for anything besides the California “three strikes” law as a matter of law.
The Benson court bent over backward to assure its readership understood the rule was for the purposes of California‘s “three strikes” law only. In addition to referencing the language of the statute itself that “[n]one of the following dispositions shall affect the determination that a prior conviction is a
Washington‘s Persistent Offenders Accountability Act (POAA) mandates life in prison without parole for “persistent offenders,”
Yet it is not surprising we search the POAA in vain for mention of a stay procedure affecting convictions, as Washington law has no identical counterpart to California‘s section 654. Thus the question still nags us: when is a conviction really a conviction for use as a strike in our POAA? The answer is that a conviction by another sovereign, the practical effect of which is dismissal or vacation of the conviction, cannot be validly used as a conviction—and thus a strike—under the POAA.
We previously decided for the purposes of the POAA not even every prior Washington conviction qualifies as a POAA “conviction” and, thus, a strike. In State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999), for example, we held the sentence enhancement features of the Sentencing Reform Act of 1981 did not revive a washed-out conviction for the purposes of the POAA and thus a properly washed-out conviction could not be a “strike,” even though it was a valid conviction when rendered. The same rule applies to convictions reversed on appeal or vacated on other grounds.
A conviction whose procedural disposition is effectively a dismissal in the state of its origin (under Pearson) is analogous to a washed-out conviction. Like the washed-out sex conviction in Cruz, such a conviction does not fall within the class of prior offenses available as strikes under the POAA. In light of Cruz, the majority incorrectly argues, at page 664, that since Berry was undisputedly convicted in California of these offenses, assuming they are most serious offenses under
Presumably Berry could still apply in California for formal dismissal of these stayed convictions. If he does, I assume even under the majority‘s logic his enhanced sentence in this jurisdiction would have to be vacated.
For these reasons I dissent.