No. 23992-6-III.The Court of Appeals of Washington, Division Three.
May 30, 2006.
Appeal from a judgment of the Superior Court for Franklin County, No. 04-1-50416-2, Craig J. Matheson, J., entered March 29, 2005.
Affirmed by unpublished opinion per Kato, J., concurred in by Sweeney, C.J., and Brown, J.
Counsel for Appellant(s), Brian Hultgrenn, Franklin Co Prosecutors Office, 1016 N 4th Ave, Pasco, WA 99301-3706.
Steven Mark Lowe, Attorney at Law, 1016 N 4th Ave, Pasco, WA 99301-3706.
Counsel for Respondent(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408
KATO, J.
Miguel Licon Ruelas pleaded guilty to one count of first degree burglary with a deadly weapon enhancement. The sentencing court imposed an exceptional sentence below the standard range based on RCW 9.94A.535(1)(a) and (e). Contending the court erred by imposing the exceptional sentence, the State appeals. We affirm. On February 8, 2005, Mr. Ruelas pleaded guilty to first degree burglary while armed with a deadly weapon. On March 15, 2005, he requested an exceptional sentence downward, maintaining that such a sentence was warranted because the victim, Jose Cisneros, had an affair with his wife. He was emotionally distraught and was further devastated to learn later that his five-year-old child witnessed the affair. The standard range sentence for Mr. Ruelas’ burglary conviction, including enhancements, was 39-44 months. Based on RCW 9.94A.535(1)(a) and (e), the court imposed an exceptional sentence of 34 months. This appeal follows.
RCW 9.94A.535 permits the court to impose a sentence outside the standard range if it finds there are substantial and compelling reasons to justify the exceptional sentence. Mitigating factors for the court to consider include whether the victim was the initiator, willing participant, or provoker of the incident and whether the defendant’s capacity to appreciate the wrongfulness of his conduct was significantly impaired. RCW 9.94A.535(1)(a) and (e).
In reviewing an exceptional sentence, we determine whether the court’s findings are supported by the record. State v. Hobbs, 60 Wn. App. 19, 22, 801 P.2d 1028 (1990), review denied, 116 Wn.2d 1022 (1991). As a factual determination, the court’s reasons will be upheld unless they are clearly erroneous. Id. The court’s reasons must be `substantial and compelling’ enough to justify deviation from the standard range. Id. at 22-23. The State contends the court erred by imposing an exceptional sentence downward because the findings do not support its conclusion that Mr. Cisneros was a provoker or willing participant of the crime or that Mr. Ruelas’ capacity to appreciate the wrongfulness of his conduct was impaired.
In order for the trial court to conclude the victim was a provoker or willing participant, it must find a causal connection between the victim’s conduct and the defendant’s offense. State v. Hinds, 85 Wn. App. 474, 482, 936 P.2d 1135
(1997). Similarly, in order for the court to conclude that deviation from the standard range is warranted due to a significant impairment of a defendant’s capacity to appreciate the wrongfulness of his conduct, it must find proof, based upon the evidence, that the defendant’s condition significantly impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. State v. Rogers, 112 Wn.2d 180, 185, 770 P.2d 180 (1989). This is because `impaired judgment and irrational thinking is inherent in most crimes.’ Id.
Here, the affair was remote in time from the incident. The event actually prompting him to go to Mr. Cisneros’ residence, however, was Mr. Ruelas’ five-year-old son revealing to him that day that he had witnessed the affair. Mr. Ruelas became extremely upset and emotional at this revelation. Mr. Ruelas and Mr. Cisneros were also close family friends. These findings were supported by the record and constituted sufficient proof that Mr. Ruelas was suffering from more than the `impaired judgment and irrational thinking’ encompassed in the commission of most crimes. The court did not err by imposing an exceptional sentence below the standard range based on RCW 9.94A.535(1)(a) and (e).
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and BROWN, J., concur.