STATE v. GARZA, 28488-0-II (Wash.App. 1-17-2003)

No. 28488-0-IIThe Court of Appeals of Washington, Division Two.
Filed: January 17, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Thurston County Docket No: 01-1-01773-3 Judgment or order under review Date filed: 02/26/2002

Counsel for Appellant(s), Thomas Edward Doyle (Appearing Pro Se), Attorney at Law, P.O. Box 510, Hansville, WA 98340-0510.

John Garza (Appearing Pro Se), #633229 — Wash State Reformatory, Pob 777, Monroe, WA 98272.

Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.

HOUGHTON, J.

Johnny Garza appeals his Thurston County conviction of residential burglary, contending that there was insufficient evidence to support the conviction; the trial court improperly instructed the jury on the permissive inference of intent; and the court erred in counting two juvenile convictions in calculating his offender score. A commissioner of this court initially considered the matter pursuant to Garza’s motion for accelerated review, RAP 18.15, and the State’s motion on the merits, RAP 18.14, and subsequently referred it to a panel of judges. We affirm the conviction but remand for resentencing.

The charge was based on an incident that occurred at the residence of Linda Healy. The State presented evidence that at about 4:30 A.M., Healy was awakened by banging and the sound of glass breaking. She called 911 and as she talked to the operator, she saw someone looking in her patio door. However, it was too dark to see the person distinctly. After she completed the 911 call, Healy discovered that her kitchen window was broken, and there was glass scattered across her kitchen table. Decorative bars on the inside of the window had been bent outward. These bars were so located that they could not be reached unless someone reached inside the window frame.

Olympia Police Officers Amy King and Bryan Houser arrived a few minutes later. Almost immediately, they discovered Garza hiding in the bushes, within the perimeter of a two-foot-high dog fence adjacent to Healy’s apartment. Garza had cuts on his hand and little particles of glass clinging to his shirt. He denied any involvement in the break in, asserting that he had been out for a walk and had stopped by Healy’s apartment to “go to the bathroom.” The jury, unconvinced, convicted him as charged. Garza contends that the evidence was insufficient to support that verdict. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State’s evidence and requires that all reasonable inferences therefrom be drawn in favor of the State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable, and criminal intent may be inferred from conduct where “plainly indicated as a matter of logical probability.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

In order to convict Garza, the State had to prove that with the intent to commit a crime therein, he entered or remained unlawfully in Healy’s apartment. RCW 9A.52.025. Entry can include the insertion of any part of the defendant’s body into the dwelling, or the entry of “any instrument or weapon held in [the defendant’s] hand.” RCW 9A.52.010(2).

The evidence recited above, viewed in the light most favorable to the State, is clearly sufficient to establish Garza’s illegal entry. Contrary to Garza’s contention, the jury could properly infer an intent to commit a crime in Healy’s apartment from the evidence of that illegal entry. The “noncriminal reasons for unlawfully entering a dwelling are few.” State v. Brunson, 128 Wn.2d 98, 106, 111, 905 P.2d 346 (1995) (quoting State v. Bishop, 90 Wn.2d 185, 189, 580 P.2d 259 (1978)). Based on this law, Garza’s next two contentions, that the court improperly instructed the jury on the permissive inference[1] and that his trial attorney improperly failed to object to that instruction, are meritless.

Finally, Garza contends that the trial court erred in calculating his offender score because it included two juvenile felonies committed before he was 15. Garza, who was born in 1961, committed the two juvenile felonies in 1974 and 1975, before the 1997 amendment[2] to the Sentencing Reform Act of 1981 that eliminated the juvenile conviction washout provision. That amendment is not retroactive, and the “timing statute” enacted in 2000[3] did not revive Garza’s juvenile convictions for the purposes of calculating his offender score. State v. Smith, 144 Wn.2d 665, 674-75, 30 P.3d 1245, 39 P.3d 294 (2001); State v. Dean, 113 Wn. App. 691, 699, 54 P.3d 243 (2002). The trial court erred in including the 1974 and 1975 convictions.

Accordingly, we vacate Garza’s sentence and remand for resentencing in accordance with this opinion. In all other respects, we affirm the judgment.

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 pursuant to RCW 2.06.040, it is so ordered.

MORGAN and BRIDGEWATER, JJ., concur.

BRIDGEWATER and MORGAN, JJ., concur.