No. 48896-1-I.The Court of Appeals of Washington, Division One.
Filed: September 23, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 011035491, Hon. Ann Schindler, July 20, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason B. Saunders, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Donna L. Wise, Deputy Prosecuting Attorney, W 554 King Co Courthouse, 516 3rd Ave, Seattle, WA 98104.
FAYE C. KENNEDY, J.
After Richard Macias was found competent to stand trial following an evaluation by a psychologist from Western State Hospital, he was convicted by a jury of third degree assault for kicking a Seattle police officer while resisting arrest. Mr. Macias was sentenced to 90 days in jail, placed on community custody for two years, and required to obtain a mental health evaluation and to complete any recommended treatment. On appeal, Mr. Macias argues that he did not meet the required criteria of being “mentally ill” under RCW 9.94A.505(9) and RCW 71.24.025, and thus seeks to have the mental health evaluation and follow-up treatment requirement stricken from his judgment and sentence. But RCW 9.94A.505(8) permits the court, as part of any sentence, to impose and enforce crime-related prohibitions and affirmative conditions as provided in Chapter 9.94A. Under RCW 9.94A.545, the court may impose up to one year of community custody for persons sentenced to confinement for one year or less, subject to conditions as authorized in RCW 9.94A.715 and 9.94A.720.
RCW 9.94A.715(2)(a) authorizes the court to order an offender who has been placed on community custody to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the safety of the community.
The record reflects that Mr. Macias has been diagnosed with an Adjustment Disorder, Unspecified, with Antisocial Traits, that he has a long record of misdemeanor convictions, including two convictions for misdemeanor assault before he committed the felony assault that is the subject of the sentence in this case, and that his record of assaults is a factor that tends to increase his aggressive potential. It is apparent from the evidence at trial that Mr. Macias reacted with extreme anger and physical violence to the arresting officer’s attempt to take him into custody peacefully. We affirm the challenged condition because it is reasonably related to Mr. Macias’s personality disorder, the circumstances of the offense, and his risk of Mr. Macias reoffending.
But because we reject the State’s contention that the trial court imposed a first-offender waiver, the court was permitted to impose only 12 months of community custody, and not 24 months. Accordingly, we strike the second year of community custody and remand so that the judgment and sentence may be modified accordingly.
FACTS
On April 6, 2001, a Seattle police officer observed Richard Macias sitting in the driver’s seat of his car in a parking lot with his head facing downward. The officer approached the vehicle and saw that Mr. Macias seemed to be paying some bills, so he walked away without making contact and drove away from the parking lot. However, the officer did run a computer check on the license plate on the vehicle, from which he learned that Mr. Macias was the registered owner of the vehicle and that a misdemeanor warrant had been issued for his arrest.
The officer drove back to the parking lot, walked up to the vehicle, and asked Mr. Macias whether he was the registered owner. Mr. Macias at first replied, “Why do you want to know?” but then admitted that he was the registered owner of the car and that he was Richard Macias. He also got out of his car, although he had not been directed to do so, and stood facing the officer.
The officer told Mr. Macias that he had information allowing him to place him under arrest. Macias replied by shouting, “Then fucking arrest me.” The officer told Mr. Macias that he was under arrest and to turn around and put his hands behind his back. Mr. Macias did turn around, but he put his hands into his front pockets. The officer thought that Mr. Macias might be going for a weapon, so he grabbed Mr. Macias’s wrists to take his hands from his pockets, and he pushed Mr. Macias against the car. Mr. Macias became extremely agitated. He tried to turn and face the officer, and he back-kicked the officer in the legs several times while yelling, “[F]uck you, fucking cop. Quit harassing me.” Mr. Macias also managed to get his right arm free, momentarily.
The officer moved Mr. Macias down the length of the car, trying to keep his legs moving so that he could not kick any more. Mr. Macias still managed to kick the officer, so he took Mr. Macias to the ground and used his own body as a weight to keep him pinned down. Two civilian witnesses observed the struggle and asked the officer whether they could assist him.
The officer told them to stay back, but to call 911 and report that an officer needed help. One of these witnesses, a fireman, later testified that he had rarely heard such obscenities as Mr. Macias was shouting, and that the police officer was trying to deescalate the situation by speaking to Mr. Macias in a calm voice and telling him to relax. Once other officers arrived, and Mr. Macias was handcuffed on the ground, he continued to shout obscenities.
For reasons that are not included in the record on appeal, the trial court ordered a pre-trial competency evaluation to be performed on an outpatient basis by Western State Hospital. The evaluation report, which is included in the record on appeal, reveals that a few months earlier, Mr. Macias had been evaluated on an inpatient basis for competency to stand trial on charges involving unlawful conduct on a bus. The findings of the first evaluator were included in the report of the second evaluator. Both evaluators found that Mr. Macias was competent to stand trial and that, although Mr. Macias had no major mental illness or defect, he suffered from a personality disorder described as follows: Axis I: Adjustment Disorder, Unspecified (309.9); Axis II: Personality Disorder, Not Otherwise Specified, with Antisocial Features (301.9). The second evaluator did not believe that Mr. Macias had the sort of symptoms that would necessitate a referral to a County Designated Mental Health Professional for consideration for involuntary commitment, but did observe that Mr. Macias’s long history of misdemeanor convictions, including two convictions for misdemeanor assault, together with the fact that he was homeless and had limited financial and social support, increased his aggressive potential.
The evaluator described Mr. Macias as a very proud man with a low irritability threshold, who was marginally cooperative with the evaluation process, but who terminated the interview when he began to grow agitated so that he could maintain his composure. The evaluator also commented that Mr. Macias was acutely sensitive to any perception that people in power were abusing their power by being condescending or arrogant toward him.
A jury convicted Macias of one count of third-degree assault, which is a class C felony. RCW 9A.36.031(2). By the time of sentencing, Mr. Macias had been released from jail because the standard range for his offense was zero to 90 days and he had already spent 78 days in jail while awaiting trial. At sentencing, the state requested that Mr. Macias receive 90 days in jail, the top of the standard range, with credit for time served, and 24 months of community custody conditioned on imposition of a mental health examination and cooperation with any mental health treatment that might be recommended. Mr. Macias’s attorney objected to the mental health examination and treatment, arguing that there was no legitimate basis to require such an examination. Mr. Macias asked to be put back in jail until all of his requirements were completed, so that he would have no further obligations after his release.
The court accepted the State’s recommendation, and sentenced Mr. Macias to 90 days in jail with credit for time served. The court noted that, with good time, Mr. Macias had already fully served his standard range sentence. Referring to the information contained in the competency evaluation report and to Mr. Macias’s angry, irrational and aggressive behavior during the arrest and accompanying felony assault, the court placed Mr. Macias on community custody for 24 months, and required that he undergo a mental health examination and participate in such treatment as might be recommended as a result of the examination. The court waived any requirement for restitution and all non-mandatory costs. This appeal followed.
ANALYSIS
Mr. Macias argues that the trial court erred in requiring a mental health examination and participation in any recommended treatment, without having made a finding, under RCW 9.94A.505(9), that he was a “mentally ill” person. Under that section, [t]he court may order an offender whose sentence includes community placement or community supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense.
Insofar as here relevant, RCW 71.24.025 defines mentally ill persons as either “acutely mentally ill,” “chronically mentally ill,” or “seriously disturbed,” and further lists the criteria for each of these definitions.
We need not discuss the criteria because we agree with Mr. Macias that the trial court did not find him to be a mentally ill person as defined in RCW 71.24.025, and the record would not support such a finding, even if it had been made. Contrary to Mr. Macias’s argument, however, this does not end the inquiry.
RCW 9.94A.505(1) provides that when a person is convicted of a felony, the court shall impose punishment as provided in Chapter 9.94A. Section (2)(a) of the same statute provides that the court shall impose a sentence “as provided in the following sections and as applicable to the case[.]” Subsections (i) through (xii) of section (2)(a) list the various sections of the chapter that relate to standard range sentences, community placement, community custody, persistent offenders, sex offenders, first-time offender waivers, exceptional sentences, and the like. Specifically, subsection (iv) relates to community custody for offenders, such as Mr. Macias, whose term of confinement is one year or less — it refers the reader to RCW 9.94A.545. Thus, RCW 9.94A.505
serves as a sort of index to the statutes that the courts must apply in sentencing felony offenders of various kinds. While RCW 9.94A.505(9) does refer the court to RCW 71.24.025 with respect to that class of offenders whose sentences include community placement or community supervision and whom the court finds to be mentally ill persons as defined in RCW 71.24.025, RCW 9.94A.050(8) provides that “[a]s part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter.” (Emphasis added). For the permissible crime-related prohibitions and affirmative conditions that apply to sentences of one year or less, the reader must refer back to RCW 9.94A.545. See RCW 9.94A.505(2)(a)(iv) (which refers the court to RCW 9.94A.545 relating to community custody for offenders whose term of confinement is one year or less).
RCW 9.94A.545 permits courts to impose up to one year of community custody for persons sentenced to confinement for one year or less, subject to conditions as authorized in RCW 9.94A.715 and RCW 9.94A.720. RCW 9.94A.715(2)(a), in turn, permits the court to order the offender “to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the safety of the community[.]” Mr. Macias’s proposed reading of RCW 9.94A.050(9) would require us to “rewrite” RCW 9.94A.050(8), RCW 9.94A.545, and RCW 9.94A.715(2)(a) to read, instead, that the court may order participation in any rehabilitative program EXCEPT mental health evaluation and treatment — regardless of whether the condition is crime related — unless the court finds that the offender is a mentally ill person as defined in RCW 71.24.025. But RCW 9.94A.505 is prefaced with the provision that the court shall impose a sentence as provided in the following sections and “as applicable in the case[.]” RCW 9.94A.505(2)(a). A certain amount of common sense is required to determine which sections might be “applicable” to any given case. Although it is true, as Mr. Macias points out, that RCW 9.94A.030(7) provides that “community placement” includes periods during which the offender is subject to the conditions of “community custody,” it does not follow that RCW 9.94A.505(9) requires a threshold finding with respect to mental illness that must be made before the court can impose mental health evaluation and recommended treatment as a crime-related condition of community custody for persons who are not “mentally ill persons” but who nevertheless suffer from personality disorders combined with criminal histories that could increase their risk to reoffend — where a statute such as RCW 9.94A.545 specifically authorizes rehabilitative programs reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the safety of the community.
The imposition of crime-related prohibitions or conditions is left to the discretion of the sentencing judge and will only be overturned as an abuse of discretion if manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). Here, the sentencing judge had also served as the trial judge, and was familiar with Mr. Macias’s extreme and irrational behavior at the time of his arrest. The court had before it a pre-trial competency report, wherein psychologists at Western State Hospital diagnosed Mr. Macias as having a personality disorder that, in light of his criminal history, hypersensitivity to perceived arrogance of those in authority, low irritability threshold and lack of financial and social support, placed him at increased risk to reoffend. The crime-related condition here imposed was eminently reasonable, based on tenable grounds, and well-within the court’s statutory authority. However, RCW 9.94A.545 does not allow a court to impose community custody of more than 12 months on a defendant sentenced to less than one year of incarceration, unless the court applies the first-offender waiver. We reject the State’s argument that the court applied the first-offender waiver here. First, there was nothing remaining of the standard range sentence to waive — Mr. Macias was sentenced to the top of the standard range and had already served that sentence in full. See RCW 9.94A.650(2) (authorizing the court to waive the imposition of a sentence within the standard range, and to require that the offender refrain from committing new offenses). Although the court ordered Mr. Macias to undergo a mental health examination and to participate in any treatment recommendations that might result from the examination, the court did not specify that the period of community custody would end sooner than in two years of the period of recommended treatment were to be less than two years. See RCW 9.94A.650(3)(b) (authorizing up to one year of community custody unless treatment is ordered, “in which case the period of community custody may include up to the period of treatment, but shall not exceed two years.”).
Finally, neither the prosecutor nor the defense attorney nor the court mentioned the first-offender waiver, verbally or in writing, in the course of the sentencing hearing or in the judgment and sentence itself. There was simply no discussion of the duration of community custody, other than the prosecutor’s unexplained recommendation of two years and the court’s adoption of that recommendation. Thus, under RCW 9.94A.545, Mr. Macias should have received up to 12 months of community custody, not the 24 months that he did receive. While Macias did not object below to the term of community custody, such an improper sentence may be challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). Accordingly, we reduce Macias’ community custody term to 12 months, but we otherwise affirm the judgment and sentence. Affirmed in part, reversed in part, and remanded for modification of the judgment and sentence to reflect the decision of this court that only one year of community custody was authorized by the relevant statute.
WE CONCUR: BAKER, J., BECKER, J.