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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                 FILED

                                                             APR 19, 2012

                                                      In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  30508-2-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
RAYMOND HERNANDEZ, JR.,                         )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Korsmo, C.J.  --  Although four of Raymond Hernandez's five convictions for first 

degree child molestation were vacated in an earlier appeal, the trial court again imposed a 

lengthy exceptional sentence.  In this second appeal, Mr. Hernandez challenges the 

exceptional sentence.  We affirm.

                                 PROCEDURAL HISTORY

       A jury convicted Mr. Hernandez of five counts of first degree child molestation 

and also found the presence of two aggravating factors relating to each count: (1) the 

crimes were part of an ongoing pattern of sexual abuse of the same young victim that 

involved multiple incidents over a lengthy period of time, and (2) the defendant used a  

No. 30508-2-III
State v. Hernandez

"position of trust or confidence" to commit the offenses.  The offenses were committed 

against a young neighbor girl whose parents were friends of the defendant and his family.

The trial court imposed an exceptional sentence of 594 months by having three of the five 

convictions served consecutively to each other. 

       The court had given the jury five identical elements instructions that required the

jury to unanimously agree on the same act in order to convict the defendant.  On appeal, 

this court overturned four of the five convictions because the instructions had not 

required the jury to find that the acts supporting each charge were different.  Because 

double jeopardy principles would prohibit a retrial, this court remanded for resentencing 

on the remaining count.  See State v. Hernandez, noted at 158 Wn. App. 1023, 2010 WL 

4308572.  The exceptional sentence and the two aggravating factors had not been at issue 

in the first appeal.  

       On remand, the trial court again imposed an exceptional sentence of 500 months 

on the basis of the two aggravating factors.  The court's written findings state that there 

were substantial and compelling reasons to impose an exceptional sentence, and that 

either of the aggravating factors would alone justify the chosen term.  Clerk's Papers (CP) 

at 59.  Mr. Hernadez again appealed.

                                         ANALYSIS

       Mr. Hernadez argues that the exceptional sentence was not properly supported by 

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State v. Hernandez

the trial court's reasoning and was not available in light of the first appeal.  We disagree 

with both arguments.

       Review of an exceptional sentence is governed by well-settled statutory and case 

law standards.  An exceptional sentence may be imposed if the trial court finds there are 

"substantial and compelling" reasons to go outside the standard range.  RCW 9.94A.535.  

The trial court must enter written findings of fact and conclusions of law if it does impose 

an exceptional sentence.  Id.  A nonexclusive list of mitigating factors is recognized by 

statute.  RCW 9.94A.535(1).  However, an exceptional sentence above the standard range 

must be based on a recognized statutory factor.  RCW 9.94A.535(2), (3). 

       Either party may appeal an exceptional sentence.  RCW 9.94A.585(2).  The 

statutory scheme for review of an exceptional sentence has long been in place.  An 

exceptional sentence is reviewed to see if either (a) the reasons for the exceptional 

sentence are not supported by the record or do not justify an exceptional sentence, or (b) 

the sentence imposed is clearly excessive or clearly too lenient.  RCW 9.94A.585(4).  

Thus, appellate courts review to see if the exceptional sentence has a factual basis in the 

record, is a legally justified reason, and is not too excessive or lenient.  State v. Law, 154 

Wn.2d 85, 93, 110 P.3d 717 (2005).  Differing standards of deference or nondeference 

apply to those three issues.  Id.  An appellate court reviews de novo a trial court's 

determination that an aggravating factor justifies an exceptional sentence.  Id. at 94; 

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State v. Hernandez

RCW 9.94A.585(4).  

       Despite the fact that the trial court's written findings of fact and conclusions of 

law state that there are substantial and compelling reasons for imposing an exceptional 

sentence, Mr. Hernandez argues that the document merely states a legal conclusion

instead of making a factual finding that compelling reasons exist.  CP at 59.  While we 

agree that the document expressly states that legal conclusion, we disagree with the 

argument that the determination of "substantial and compelling reasons" is a factual 

finding.

       Except in a couple of narrow instances that are essentially matters of law, trial 

judges lack authority to make factual findings that permit an exceptional sentence.  See

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).  

Without considering the implications of Blakely to Mr. Hernandez's argument, we reject 

his characterization of the "substantial and compelling reasons" finding as factual in 

nature.  The legislature has already determined that this finding is a legal conclusion.

       RCW 9.94A.535 and .537 govern the process for imposing an exceptional 

sentence.  In both statutes, the trial court is permitted to impose an exceptional sentence if 

it determines there are "substantial and compelling reasons" to do so.  RCW 9.94A.535 

(emphasis added) (first paragraph), .537(6).  In each instance where it recognizes that 

authority, the legislation also provides that the existence of the aggravating factor is a 

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State v. Hernandez

factual question for jury determination.  RCW 9.94A.535, .537(6).  The statutes set up 

the basic dichotomy -- the fact finder determines if facts (the aggravating factors) exist, 

while the judge determines if those facts are significant reasons for imposing an 

exceptional sentence.  Merely because the statute uses a verb "find" that is related to the 

gerund "findings" commonly associated with factual determinations does not mean that 

the legislature mandated judicial fact-finding.  Instead, it is well recognized that the 

process of legal reasoning applied to factual determinations constitutes a legal 

conclusion.  E.g., State v. Anderson, 51 Wn. App. 775, 778, 755 P.2d 191 (1988).  A 

conclusion of law represents the legal consequences that follow those facts.  Lanzce G. 

Douglass, Inc. v. City of Spokane Valley, 154 Wn. App. 408, 418, 225 P.3d 448 (2010).

       The jury found the two aggravating factors existed.  The trial court reasoned that 

those findings constituted sufficient reasons to impose an exceptional sentence.  That was 

a legal determination.  Accordingly, we reject Mr. Hernandez's argument that the 

determination that compelling reasons existed for an exceptional sentence needed to be 

denominated as a factual finding rather than a legal conclusion.

       The remaining issue is whether the exceptional sentence was justified in light of 

the outcome of the first appeal.  Mr. Hernandez contends that the ongoing pattern of 

abuse aggravating factor is invalid in light of the vacation of the other four counts of child 

molestation.  He reasons that there can be no ongoing pattern if there is only one count.  

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No. 30508-2-III
State v. Hernandez

He also questions whether the abuse of trust aggravating factor was found for count one.  

The latter question is easily answered.  The jury by special verdict found that each 

aggravating factor applied to each count.  CP at 105, 110 (special verdict forms A, A1).  

The abuse of trust factor was not dependent upon multiple convictions.  The jury's 

determination that it applied to count one answers Mr. Hernandez's challenge.  There is 

no basis for rejecting the finding.

       Mr. Hernandez cites no authority for the proposition that a pattern of abuse finding 

requires multiple convictions to support it.  Nonetheless, we need not further consider his 

argument because the abuse of position of trust aggravating factor is unquestionably 

valid.  The trial court expressly stated that the exceptional sentence was justified by either 

aggravating factor alone.  CP at 59.  An exceptional sentence will be upheld even if some 

of the aggravating factors are invalidated if the reviewing court is convinced that the trial 

court would impose the same sentence on the basis of the valid factor.  State v. Gaines, 

122 Wn.2d 502, 512, 859 P.2d 36 (1993).  The trial court's declaration that either factor 

alone justified the exceptional sentence is clear proof that a remand would be 

unnecessary.  In light of this fact, the exceptional sentence is affirmed without further 

consideration of the challenge to the ongoing abuse aggravating factor.

       Affirmed.

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No. 30508-2-III
State v. Hernandez

       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.

                                                    _________________________________
                                                                  Korsmo, C.J.

WE CONCUR:

______________________________
       Sweeney, J.

______________________________
       Siddoway, J.

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