No. 27963-1-IIThe Court of Appeals of Washington, Division Two.
Filed: June 24, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County Docket No: 01-1-00750-2 Judgment or order under review Date filed: 10/02/2001
Counsel for Appellant(s), Eleanor Marie Couto, Attorney at Law, 1402 Broadway St. Ste 102, Longview, WA 98632-3714.
Counsel for Respondent(s), Alyssa Zach, Cowlitz County Prosecutors Office, 312 S.W. 1st Ave Rm 110, Kelso, WA 98626-1799.
ARMSTRONG, J.
After William Adrian Lopez-Gomez pleaded guilty to unlawfully taking a motor vehicle and driving while under the influence of alcohol, the trial judge imposed an exceptional sentence of 18 months and one day. On appeal, Lopez-Gomez argues that (1) the State failed to prove some of the exceptional sentence factors; (2) the court erred in basing the exceptional sentence, in part, on future dangerousness; and (3) the remaining unchallenged factors are not sufficient to justify the sentence.
We find no reversible error and, thus, affirm.
FACTS
Lopez-Gomez was speeding and driving erratically when he drove into the rear of a pick-up truck. Lopez-Gomez left his vehicle and tried to run after the collision.
When the police contacted Lopez-Gomez, he was staggering and had a strong odor of intoxicants. After giving him field sobriety tests, the police arrested Lopez-Gomez for driving under the influence of alcohol. Breathalyzer tests showed Lopez-Gomez’s blood-alcohol content (BAC) at .24 and .25.
Lopez-Gomez had two prior arrests for DUI and was driving with a third degree suspended license. In addition, he had two outstanding misdemeanor warrants for driving while license suspended in Cowlitz County. Lopez-Gomez also had an extensive criminal history, was on probation, and had an outstanding felony warrant. Further, the vehicle Lopez-Gomez was driving did not belong to him; nor did he have permission to use it.
Lopez-Gomez pleaded guilty to: (1) unlawfully taking a motor vehicle, and (2) driving while under the influence of alcohol. The standard sentence range for the vehicle theft was four months to 12 months in jail.
The maximum sentence for the DUI was one year. At sentencing, Lopez-Gomez said that the day the police arrested him, he was, `really drunk and didn’t feel like walking home so [he] took a friend’s car.’ Report of Proceedings (RP) (Sept. 27, 2001) at 4. He also said he did not `remember taking the car’ and only remembered `waking up with the air bag in [his] face.’ RP (Sept. 27, 2001) at 4-5.
The trial court found that Lopez-Gomez (1) had a BAC of .24 and .25; (2) was involved in a collision with one vehicle and almost hit another; (3) had no insurance at the time of the accident; (4) was not financially responsible for the $6,300 in known costs resulting from the accident; (5) had three prior alcohol-related convictions; (6) was driving with a third degree license suspension; (7) had three prior third degree suspension convictions and a No Valid Operator’s License criminal conviction; and (8) showed no intent to follow the law and stop driving.
The trial court imposed a 12-month-and-one-day sentence for the motor vehicle theft and a six-month sentence for DUI, and it ordered Lopez-Gomez to serve the sentences consecutively (18 months and one day total). The court also ordered Lopez-Gomez to pay $6,300 in restitution ($7,549 total with fees). Finally, the court gave Lopez-Gomez a 30-day concurrent sentence for his probation violation.
The court concluded that (1) the standard four to 12-month range was too lenient; (2) the facts of the accident and the high blood alcohol levels `separated’ the case from what the legislature contemplated as punishment for wrongfully taking a motor vehicle; and (3) Lopez-Gomez’s uncounted misdemeanor offenses put him on notice before committing the current offense. The court also ruled that ‘[e]ither of the legal bases supporting the exceptional sentence imposed are sufficient, standing alone, to support both the imposition of the sentence and the length of the sentence.’ Clerk’s Papers (CP) at 27.
ANALYSIS
Under the Sentencing Reform Act (SRA), the trial court must impose a sentence within the standard range unless it finds substantial and compelling reasons to justify a departure. RCW 9.94A.120(2); State v. Grewe, 117 Wn.2d 211, 214, 813 P.2d 1238 (1991). The SRA contains a non-exhaustive list of aggravating and mitigating factors the trial court may consider when contemplating an exceptional sentence. RCW 9.94A.535
(2001); State v. Fowler, 145 Wn.2d 400, 404, 38 P.3d 335 (2002). In imposing an exceptional sentence, the sentencing court may not take into account the defendant’s scored criminal history and the seriousness of the offense because these factors are already considered in the presumptive sentencing range for the offense. Fowler, 145 Wn.2d at 405.
In reviewing an exceptional sentence, we ask three questions. Former RCW 9.94A.210(4) (2000), recodified as RCW 9.94A.585(4) (Laws of 2001, ch. 10, sec. 6); Fowler, 145 Wn.2d at 405. First, we must determine if the record supports the reasons the sentencing court gives for imposing an exceptional sentence. Fowler, 145 Wn.2d at 405. This is a factual inquiry, and we will uphold the trial court’s findings unless they are clearly erroneous. Fowler, 145 Wn.2d at 405.
Second, we must determine whether the reasons given justify the exceptional sentence as a matter of law. Fowler, 145 Wn.2d at 405-06. The sentencing court’s reasons must be substantial and compelling. Fowler, 145 Wn.2d at 405.
Finally, we must determine whether the sentence imposed is clearly excessive under the abuse of discretion standard. Fowler, 145 Wn.2d at 406; State v. Jeannotte, 133 Wn.2d 847, 855-56, 947 P.2d 1192 (1997). We will reverse the trial court’s decision only if it is manifestly unreasonable or was exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Lopez-Gomez challenges the trial court’s findings that he caused one accident and nearly caused another, that he had no insurance at the time, that he was not financially responsible for the damages, and that his license was suspended. In addition, he argues that the trial court’s finding that he showed no intent to follow the law is really a finding of future dangerousness, which is not a proper aggravating factor, citing State v. Barnes, 117 Wn.2d 701, 711-12, 818 P.2d 1088 (1991).
Lopez-Gomez did not object to the license suspended finding at sentencing. Thus, the State was not required to further prove his license suspension. State v. Handley, 115 Wn.2d 275, 280, 796 P.2d 1266 (1990) (sentencing statute allows the court to consider unchallenged evidence). But we agree with Lopez-Gomez that several of the remaining findings are questionable. For example, the State produced no evidence as to whether Lopez-Gomez had insurance. And the financial responsibility finding was based on his lack of insurance. Less questionable is the finding that Lopez-Gomez caused one accident and nearly caused another. The State produced statements from the driver of the rear-ended truck and the nearly struck car. Moreover, Lopez-Gomez testified at sentencing that he `was really drunk and didn’t feel like walking home so I took a friend’s car.’ RP (Sept. 27, 2001) at 4. He did not `remember taking the car,’ but only remembered `waking up with the air bag in my face.’ RP (Sept. 27, 2001) at 4-5. .
We need not, however, analyze Lopez-Gomez’s arguments in detail because he does not challenge the findings as to his high blood alcohol readings, his three prior alcohol-related convictions, and his three prior third degree suspension convictions. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994) (unchallenged findings are verities on appeal). And the sentencing court ruled that it would impose the same exceptional sentence on the basis of any one factor. Where we invalidate some but not all of the sentencing court’s reasons, we will affirm the exceptional sentence if we are confident the sentencing court would impose the same sentence on the basis of the valid factors. State v. Post, 118 Wn.2d 596, 616-617, 837 P.2d 599 (1992). Lopez-Gomez does argue that the remaining valid factors do not justify a departure from the standard sentence range. We disagree.
In considering an upward departure from state sentencing guidelines, the court may consider the defendant’s prior unscored misdemeanor history if it results in a presumptive sentence that is clearly too lenient. RCW 9.94A.535(2)(j) (2001). The court may also consider high blood alcohol levels as a factor in support of an exceptional sentence. State v. Perez, 69 Wn. App. 133, 138, 847 P.2d 532 (1993).
Here, the unchallenged findings establish that Lopez-Gomez had a BAC of .24 and .25, had three prior alcohol-related convictions, was driving with a suspended license, and had three prior convictions for driving with a suspended license. These factors are more than sufficient to support a sentence of 18 months and one day. See Perez, 69 Wn. App. at 138; State v. Oksoktaruk, 70 Wn. App. 768, 774-75, 856 P.2d 1099 (1993).
Affirmed.
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 HUNT, JJ., concur.