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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 82334-5-I Respondent, DIVISION ONE v. PUBLISHED OPINION LEON CARIL, II,
Appellant.
BIRK, J. — Leon Caril, II, appeals his conviction and sentence for second
degree murder. He asserts he was in a state of compromised mental health when
he stabbed and killed a person. At trial, Caril, who suffers from paranoid
schizophrenia, called an expert psychologist who testified that Caril lacked the
capacity to form criminal intent at the time of the incident. The trial court allowed
this testimony, but prohibited Caril’s expert witness from testifying to hearsay
statements from another psychologist’s report that the expert relied on, because
the excluded statements concerned the collateral issues of Caril’s competency to
stand trial and potential future need for civil commitment. We conclude the trial
court did not abuse its discretion by excluding this evidence, and Caril’s Sixth
Amendment right to present a defense was not violated. The State concedes
several errors that require resentencing. We affirm Caril’s conviction, vacate his
sentence, and remand for resentencing. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82334-5-I/2
I
A
During the night of June 22-23, 2017, Russell Ross, Tammy Nguyen, and
Andrew Pimenthal spent part of the night with a group of friends in an evening out.
In the early morning hours, they obtained take-out meals and sat on the curb
outside the restaurant to eat as they conversed. From across the street, an
individual shouted, “[S]hut the fuck up,” and threw a two-liter soda bottle in their
direction, which landed by their feet. Ross shouted back that throwing the bottle
was a “good way to get your ass kicked.”
Ross observed the individual, later identified as Caril, start across the street
towards the group brandishing a knife. Ross told everyone to “run” and that the
approaching individual had a knife. Nguyen and Ross withdrew, but Pimenthal
was not able to do so in time. While running away, Ross saw Caril stab Pimenthal.
Nguyen saw Caril “punch” Pimenthal three times in the chest. Jaapir Hussen, who
observed these events from his car nearby, exited his vehicle and shouted at Caril
asking if he was “crazy” and “why” he stabbed Pimenthal. Caril asked Hussen if
he “want[ed] some too.” Pimenthal died from his injuries.
Ross summoned the police. Caril walked back across the street. Carson
Williams was informed by people in the area that Caril was the one who stabbed
Pimenthal, Williams started following Caril, and he saw Caril stuff something into
a suitcase. Carson dialed 911, informing Caril that he was doing so. Caril replied,
“[D]o you know who I am. I am the man who just stabbed someone.” Police
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responding to the 911 call located Caril. Officer Zachary Pendt asked Caril if he
had a knife, which Caril confirmed was in his bag. Caril complied with the
responding officers’ requests and was cooperative. The officers did not find any
medication among Caril’s belongings. The State charged Caril with murder in the
second degree, and later added murder in the first degree by amended
information.
B
In 2010, 2011, 2012, 2015, and 2016, Caril was diagnosed with paranoid
schizophrenia. Before the June 23, 2017 incident, Caril had a long-term housing
placement and he had long-term outpatient treatment through Sound Mental
Health. On June 16, 2017, Caril lost his housing after engaging in an altercation
with another resident. And he lost his outpatient treatment services on July 12,
2017 due to his arrest and incarceration related to Pimenthal’s murder.
On October 3, 2018, the superior court entered an order finding Caril
incompetent and committing him to Western State Hospital (WSH) for a restoration
period of 90 days. On October 30, 2018, Daniel Peredes-Ruiz, MD requested that
the State seek judicial authority for WSH to treat Caril with antipsychotic
medications involuntarily, since he had been unwilling to actively participate in
treatment. In a competency assessment completed by Brandi Lane, PsyD, which
was attached to the request letter, Dr. Lane concluded that Caril lacked the
capacity to assist in his defense with a reasonable degree of rational
understanding. Additionally, Caril was said to have ongoing delusional thinking,
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82334-5-I/4
disorganized thought process, grandiose thinking, and poor judgment. On
February 7, 2019, the superior court entered an order granting the State’s motion
for involuntary medication for maintenance of competency.
On January 10, 2019, Jenna Tomei, PhD, completed a competency
evaluation report of Caril. In her report, Dr. Tomei opined that Caril met diagnostic
criteria for unspecified schizophrenia spectrum and other psychotic disorder and
had the capacity to understand the nature of the proceedings against him and to
assist in his own defense. Dr. Tomei’s report stated that previously observed
symptoms appeared to be well managed with Caril’s then current medication
regimen. Before the court order allowing for Caril to be involuntarily medicated,
Caril had been described as “resistant,” “guarded,” “isolative,” “withdrawn,” and
“suspicious” while at WSH. Additionally, Dr. Tomei’s report noted that before being
involuntarily medicated, Caril had been involved in a physical altercation and had
yelled at others in competency restoration groups.
Dr. Tomei’s report contrasted these characteristics to those observed after
Caril was involuntarily medicated. The report described Caril as appearing to be
more reality-based compared to his prior evaluation with no overt delusional
thought processes. At the end of the report, Dr. Tomei stated, “If Mr. Caril were to
discontinue his prescribed medication, he would likely decompensate. In such an
event, he may or may not continue to present with the requisite capacities to
proceed.” Dr. Tomei concluded the report with an “RCW 71.05” (behavioral health
detention) recommendation noting Caril “exhibited aggression towards others
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during times of decompensation.” It stated a designated crisis responder (DCR)
would be required to assess Caril for commitment if there was a change in his
“custodial situation.”
On April 17, 2019, the superior court entered an order finding Caril
competent to proceed to trial.
C
After the State rested its case-in-chief, Caril called Paul Spizman, PsyD as
a defense expert. Dr. Spizman is a licensed forensic psychologist in Washington.
Dr. Spizman has experience working with individuals who suffer from
schizophrenia. While explaining general characteristics of schizophrenia, Dr.
Spizman described it as a manageable mental illness, as opposed to a curable
one, as some cases may go into “a type of remission.” Dr. Spizman posited two
hypothetical patients suffering from schizophrenia to illustrate the ebb and flow in
severity of symptoms: a patient who is homeless and engaging in substance abuse
would be under great stress and likely show more symptoms compared to one who
is medicated, living in a stable environment, and with less stress, who may
demonstrate relatively minimal symptoms. Dr. Spizman testified that medication
is the primary method for treating schizophrenia. Dr. Spizman testified that a
person suffering from schizophrenia who is taking medication is statistically more
likely to have a reduction in or not experience any symptoms. Dr. Spizman stated
that on many occasions, symptoms of paranoid schizophrenia are triggered from
environmental factors, such as a car driving by one’s house. He testified that “[f]or
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a person who suffers from paranoid schizophrenia, and is not taking their or may
not be taking their prescribed medications, . . . there [is] concern that they could
act aggressively.” When asked about what can trigger aggression from a person
suffering from paranoid schizophrenia, Dr. Spizman testified that the trigger could
be fairly benign stimuli, such as someone walking down the street talking on a
cellphone or a group of people having a general conversation.
Dr. Spizman diagnosed Caril with schizophrenia and testified that he suffers
from paranoid schizophrenia. He testified to his opinions specific to Caril and the
June 23, 2017 incident. Dr. Spizman explained he formed his opinions after
reviewing police reports and associated witness accounts of that incident, written
materials Caril sent his attorneys, two interviews with Caril, Caril’s mental health
records, and Dr. Tomei’s competency evaluation report. Dr. Spizman testified that
Caril’s delusions were the most prominent symptom on the morning of the incident.
He stated that at the time of the incident, Caril was interpreting information around
him as being directed toward him and believed Pimenthal and his friends were
making statements toward and about him. Dr. Spizman testified that Caril said he
did not know right from wrong at the time of the incident. And Caril had reported
to Dr. Spizman that Caril consumed approximately half a gallon of vodka from
11:00 p.m. to 1:00 a.m. Dr. Spizman opined that Caril’s mental illness impaired
his ability to form premeditated intent to kill Pimenthal.
Caril’s counsel questioned Dr. Spizman about Dr. Tomei’s report and
whether it mentioned “what would happen if Caril decompensated.” Dr. Spizman
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answered he did not recall. Defense counsel sought to point Dr. Spizman to the
disputed section of Dr. Tomei’s report when the State objected on hearsay
grounds.
In an offer of proof outside the presence of the jury, defense counsel
indicated he had planned to ask Dr. Spizman to relate statements from the
following paragraphs in Dr. Tomei’s report:
It should be noted that the current evaluation took place during a time when Mr. Caril was compliant with his psychiatric medication. If Mr. Caril were to discontinue his prescribed medication, he would likely decompensate. In such an event, he may or may not continue to present with the requisite capacities to proceed.
RCW 71.05 RECOMMENDATION Based upon the information referred to in this report, there is no evidence to indicate Mr. Caril presents an imminent risk of danger to himself or others. However, records indicate that Mr. Caril has exhibited aggression towards others during times of decompensation. Further, if he were to decompensate his symptoms of psychosis would likely interfere with his ability to carry out activities of daily living and provide for his basic needs of health and safety. Therefore, an evaluation by a DCR does appear necessary should Mr. Caril’s custodial situation change.
(Boldface omitted) (emphasis in original). Dr. Spizman testified that he relied on
these statements by Dr. Tomei in arriving at his opinions.
The trial court excluded the statements in Dr. Tomei’s report on the basis
that while relevant, their probative value was substantially outweighed by the
danger of unfair prejudice to both parties, and the risk that they could cause
confusion or mislead the jury. The trial court pointed to the difference between an
evaluation of competency to stand trial and dangerousness in a potential civil
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commitment proceeding versus an evaluation of capacity to form intent at the time
of the incident. The trial court denied Caril’s later motion for reconsideration.
On count I, Caril was acquitted of first degree murder, but the jury found him
guilty of the lesser included crime of second degree murder (intentional murder)
with a deadly weapon. Caril was found guilty of second degree murder (felony
murder) with a deadly weapon on count II. The trial court entered an order vacating
count II for sentencing only.
At sentencing, based on Caril’s four convictions for robbery in the second
degree from 1998 and a conviction for attempted robbery in the first degree in
2002, the trial court found this was his sixth “most serious offense” making Caril a
persistent offender. The trial court sentenced Caril to life in prison without the
possibility of parole. The judgment and sentence contained references to both
count I and count II. Caril appeals.
II
Caril contends that the trial court violated his right to present a defense
under the Sixth Amendment to the United States Constitution and article I, section
22 of the Washington State Constitution by prohibiting Dr. Spizman from testifying
to the excluded statements in Dr. Tomei’s report. Caril alleges that the excluded
testimony was highly probative and integral to his defense.
A defendant has a constitutional right to present a defense. U.S. CONST.
amends. VI, XIV; W ASH. CONST. art. I, § 22. This right is not absolute. It may, “‘in
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appropriate cases, bow to accommodate other legitimate interests in the criminal
trial process,’” including the exclusion of evidence considered irrelevant or
otherwise inadmissible. State v. Giles, 196 Wn. App. 745, 756-57, 385 P.3d 204
(2016) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L.
Ed. 2d 297 (1973)).
In analyzing whether a trial court’s evidentiary decision violated a
defendant’s Sixth Amendment right to present a defense, we first review the court’s
evidentiary ruling for an abuse of discretion. State v. Jennings, 199 Wn.2d 53, 58,
502 P.3d 1255 (2022); State v. Arndt, 194 Wn.2d 784, 797-98, 453 P.3d 696
(2019); State v. Markovich, 19 Wn. App. 2d 157, 167, 492 P.3d 206 (2021), review
denied, 198 Wn.2d 1036, 501 P.3d 141 (2022). If we conclude that the evidentiary
ruling was not an abuse of discretion, we then consider de novo whether the
exclusion of evidence violated the defendant’s constitutional right to present a
defense. Jennings, 199 Wn.2d at 59.
Evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
ER 403. We review a trial court’s ER 403 admissibility ruling for abuse of
discretion. State v. Rice, 48 Wash. App. 7, 11, 737 P.2d 726 (1987). A trial court
abuses its discretion if no reasonable person would take the view adopted by the
trial court. Jennings, 199 Wn.2d at 59.
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An expert witness is permitted to base an opinion on “facts or data” that are
not admissible in evidence if the facts or data are “of a type reasonably relied upon
by experts in the particular field in forming opinions or inferences upon the subject.”
ER 703. When a party seeks to introduce otherwise inadmissible facts or data
through an expert witness who has relied on them, the trial court has discretion to
determine the extent to which the expert may relate the inadmissible information
to the trier of fact. See ER 705. The trial court has discretion to exclude
inadmissible information on which an expert has relied to prevent an expert’s
opportunity to explain the basis for an opinion from becoming merely “a
mechanism for admitting otherwise inadmissible evidence” or “to avoid the rules
for admissibility of evidence.” State v. Anderson, 44 Wn. App. 644, 652, 723 P.2d
464 (1986); State v. Martinez, 78 Wn. App. 870, 879, 899 P.2d 1302 (1995).
The evidence rules contemplate that an opposing party may inquire into the
facts or data on which an expert has relied when cross-examining the expert. ER
705. At other times, as here, the party offering the expert may seek to ask the
expert on direct examination to relay inadmissible facts or data on which the expert
has relied in forming opinions. When inadmissible facts or data are offered under
ER 705, the trial court should “determine under ER 403 whether to allow disclosure
of inadmissible underlying facts based upon whether the probative value of this
information outweighs its prejudicial or possibly misleading effects.” Martinez, 78
Wn. App. at 879.
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An expert’s testimony disclosing inadmissible facts or data to explain the
expert’s opinion “is not proof of them” as substantive evidence. Grp. Health Coop.
of Puget Sound, Inc. v. Dep’t of Revenue, 106 Wn.2d 391, 399-400, 722 P.2d 787
(1986); State v. Wineberg, 74 Wn.2d 372, 381-82, 444 P.2d 787 (1968). An expert
testifying to otherwise inadmissible facts or data under ER 705 may do so “only for
the purpose of explaining the basis for [the expert’s] opinion.” In re Det. of
Marshall, 156 Wn.2d 150, 163, 125 P.3d 111 (2005). When the trial court allows
an expert to testify to otherwise inadmissible facts or data for nonsubstantive
purposes to show the basis of the expert’s opinion, the trial court should give an
appropriate limiting instruction. In re Det. of Coe, 175 Wn.2d 482, 513-14, 286
P.3d 29 (2012); Marshall, 156 Wn.2d at 163; In re Det. of Leck, 180 Wn. App. 492,
511, 513, 334 P.3d 1109 (2014) (limiting instruction that inadmissible information
was to be considered “‘only in deciding what credibility and weight’” to give expert’s
opinion and not as evidence that the information “‘is true or that the events
described actually occurred’”).
Here, the trial court found the evidence to be relevant, but excluded it
because its probative value was substantially outweighed by the danger of unfair
prejudice to both parties, it could mislead the jury and confuse the issues. Dr.
Tomei’s January 10, 2019 competency evaluation report included a description of
Caril’s then current mental status, an opinion on Caril’s competency to proceed to
trial, discussion of whether Caril’s competency was restorable and what steps
would be appropriate to achieve restoration, and discussion of whether Caril
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should be evaluated by a DCR under chapter 71.05 RCW. This report sought to
provide information to the trial court related to either the resolution of Caril’s
criminal case, his future competency and ability to participate in his defense, or
assessing civil commitment if his custodial situation changes. At no point in her
report did Dr. Tomei evaluate Caril to determine his competency or state of mind
on the date of the incident.
Had the statements from Dr. Tomei’s report been admitted, the State would
likely have cross-examined Dr. Spizman on the context of those statements in Dr.
Tomei’s report. Such testimony, as the trial court pointed out, would have been
likely to reveal Caril’s risk of dangerousness in connection with Dr. Tomei’s
recommendation for an evaluation by a DCR should Caril’s custodial situation
change. The jury, however, was charged with determining, relevant to this
discussion, Caril’s state of mind when he stabbed and killed Pimenthal. Hearing
about information and a recommendation focused on Caril’s competency to assist
with his defense and trial and potential changes to his “custodial situation” could
confuse the jury or divert the jury from the issues it was charged with deciding.
Moreover, given that Dr. Tomei did not testify at trial, it would be speculative
whether she would support the implied use of her opinions as data relevant to
Caril’s capacity to form intent at the time of the attack.
The trial court acted within its discretion in excluding the statements from
Dr. Tomei’s report under ER 403.
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Because we conclude that the trial court’s evidentiary ruling was not an
abuse of discretion, we next consider de novo whether the exclusion of evidence
violated the Sixth Amendment. Jennings, 199 Wn.2d at 59; Arndt, 194 Wn.2d at
797-98; Markovich, 19 Wn. App. 2d at 167.
Under Washington’s test for evaluating whether the exclusion of evidence
violates the Sixth Amendment, we first consider whether the excluded evidence
was at least minimally relevant. State v. Orn, 197 Wn.2d 343, 353, 482 P.2d 913
(2021); State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). This is because a
defendant has no constitutional right to present irrelevant evidence. State v.
Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010); Markovich, 19 Wn. App. 2d at
167. Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” ER 401. If the evidence is
relevant, then the State must demonstrate that the evidence was so prejudicial as
to disrupt the fairness of the fact-finding process at trial, such that the State’s
interest in excluding the prejudicial matter outweighs the defendant’s right to
produce relevant evidence. See Jennings, 199 Wn.2d at 63; Orn, 197 Wn.2d at
353; Hudlow, 99 Wn.2d at 15-16; Markovich, 19 Wn. App. 2d at 167-68.
There is no dispute that the excluded hearsay statements from Dr. Tomei’s
report were at least minimally relevant on the issue of the basis for Dr. Spizman’s
opinions. However, as alluded to above and discussed further below, because the
statements were admissible for only the limited purpose of showing the basis for
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Dr. Spizman’s opinions—the substance of which the jury heard in full—the balance
in this case tips strongly in favor of the State’s interest in excluding this evidence
due to its potential confusing effect and against the defendant’s interest in
marginally bolstering Dr. Spizman’s methodology.
For highly probative evidence, “it appears no state interest can be
compelling enough to preclude its introduction consistent with the Sixth
Amendment and Const. art. 1 § 22.” Hudlow, 99 Wn.2d at 16. The greater the
probative value of the excluded evidence, the more likely a court will find a
constitutional violation, such as in cases where a ruling excluded a defendant’s
“entire defense.” Jones, 168 Wn.2d at 721. In Jones, the court found a Sixth
Amendment violation where the defendant was barred from testifying that the
victim had engaged in a many-hour course of conduct involving significant drug
use during which the victim engaged consensually in the conduct on which the
charges against the defendant were based. Id. at 717-18, 721. Cf. Holmes v.
South Carolina, 547 U.S. 319, 323, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)
(exclusion of evidence that another person had committed the crime charged);
Crane v. Kentucky, 476 U.S. 683, 691, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)
(exclusion of evidence of the physical circumstances that yielded a confession
challenged as unreliable); Chambers, 410 U.S. at 292-93, 297-98 (exclusion of
testimony by three witnesses that another person had admitted committing the
crime charged, together with barring cross-examination of that person);
Washington v. Texas, 388 U.S. 14, 16, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)
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(exclusion of witness who, the defendant asserted, would testify that the defendant
had departed before a shooting). Similarly, the court found a constitutional
violation where the trial court allowed only a limited, misleading inquiry into a
witness’s cooperation with the investigating police department. Orn, 197 Wn.2d at
358-59. The court reasoned that “the right to present evidence of a witness’s bias
is essential to the fundamental constitutional right of a criminal defendant to
present a complete defense, which encompasses the right to confront and cross-
examine adverse witnesses.” Id. at 352.
The balance more often tips against a constitutional violation when a
defendant asserts a right to present a defense violation based on evidentiary
limitations imposed on a defense that is otherwise presented and developed. The
trial court in Arndt imposed limitations on testimony from a certified arson
investigator on how the State’s expert determined the cause and origin of a house
fire that resulted in a death. 194 Wn.2d at 790, 796. The Supreme Court
concluded that (1) Arndt’s proffered evidence was not excluded entirely and the
investigator was able to testify at length to asserted deficiencies in the
prosecution’s fire investigation, and (2) Arndt was able to advance her defense
theory without the excluded evidence. Id. at 813-14. Thus, Arndt’s Sixth
Amendment right to present a defense was not violated. Id. Cf. Jennings, 199
Wn.2d at 67 (excluding a toxicology report that showed the victim had
methamphetamine in his system did not violate defendant’s Sixth Amendment right
to present a defense where defendant was able to present evidence of his
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subjective fear and belief in the victim’s intoxication); Markovich, 19 Wn. App. 2d
at 163, 169 (excluding as speculative defense expert’s opinions about possible
effects of concussion on a substance-induced brain-functioning issue, where
expert was permitted to testify about effects of intoxication).
Here, similar to Arndt and unlike Jones, the trial court did not completely bar
Caril’s defense of lack of intent or capacity by excluding the hearsay statements in
Dr. Tomei’s report. Instead, the trial court prohibited Caril from introducing two
paragraphs taken from a report written in a different context, which would have
been allowable only for the purpose of explaining Dr. Spizman’s opinions—not for
substantive purposes. Allowing the statements presented a risk to the State in
having to cross-examine Dr. Spizman on the statements about decompensation
from Dr. Tomei’s report and lead the jury into the irrelevant issues of civil
commitment and future dangerousness. Eliciting such testimony would risk
misleading the jury or confusing the issues. Although the excluded evidence was
relevant, Caril’s need to present this testimony was minimal.
Moreover, because the evidence at issue was relevant for only a limited
purpose, and not as substantive evidence, its probative value was low in
comparison to the evidence at issue in cases finding a constitutional violation.
Caril fails to cite any case in which a court found a constitutional violation based
on the exclusion of substantively inadmissible evidence offered solely for the
limited purpose to provide additional context for an expert opinion. Courts are
permitted to “‘exclude evidence that is repetitive . . ., only marginally relevant or
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poses an undue risk of harassment, prejudice, [or] confusion of the issues.’”
Holmes, 547 U.S. at 326-27 (alterations in original) (internal quotation marks
omitted) (quoting Crane, 476 U.S. at 689-90). It is undisputed the hearsay
statements in Dr. Tomei’s report were not admissible as substantive evidence to
show that the matters Dr. Tomei stated were true. In other words, it is undisputed
the statements were not admissible to prove that it was true that when not taking
medication Caril was in danger of experiencing worsening symptoms and
exhibiting aggressive behavior towards others. When limited to the only proper
purpose the evidence could serve, it provided, at most, “datapoint[s]” that Dr.
Spizman considered in forming his opinions. To the extent the fact of Dr.
Spizman’s considering the report and its content could potentially enhance to some
degree the credibility of his opinions, the excluded statements were only marginally
relevant evidence that a court should balance against the State’s interest in
excluding the evidence.
We hold that the trial court did not violate Caril’s constitutional right to
present a defense by excluding the hearsay statements in Dr. Tomei’s report, and
we affirm Caril’s conviction for second degree murder.
III
The State concedes that certain errors require resentencing.
First, based on four prior second degree robbery convictions, the trial court
sentenced Caril as a persistent offender. See State v. Reynolds, 21 Wn. App. 2d
179, 187, 505 P.3d 1174 (2022) (explaining “persistent offender” designation);
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RCW 9.94A.030(37) (defining “persistent offender”). However, under RCW
9.94A.647(1), effective July 25, 2021, Caril’s four prior second degree robbery
convictions may not be used to sentence Caril as a persistent offender. RCW
9.94A.647(1), (3). A sentencing court is required to grant a motion for relief from
the original sentence if it finds that a current or past conviction for robbery in the
second degree was used as a basis for a finding that the offender was a persistent
offender. RCW 9.94A.647(1), (2). Therefore, the statute provides that Caril “must
have a resentencing hearing.” RCW 9.94A.647(1).
Second, Caril’s offender score at the time of sentencing included a 1998
conviction for violating the Uniform Controlled Substances Act (VUCSA), chapter
69.50 RCW. State v. Blake held Washington’s strict liability drug possession
statute, RCW 69.50.4013(1), “violates the due process clauses of the state and
federal constitutions and is void.” 197 Wn.2d 170, 195, 481 P.3d 521 (2021).
Because the court found the underlying statute unconstitutional, it vacated the
defendant’s conviction. Id. Caril is entitled to be resentenced under Blake.
Third, the State concedes no reference to Caril’s conviction for felony
murder in the second degree should have been made in his judgment and
sentence under double jeopardy principles. The United States and Washington
State constitutions protect persons from being twice put in jeopardy for the same
offense. See U.S. CONST. amend. V; W ASH. CONST. art. I, § 9. Both clauses protect
against “being (1) prosecuted a second time for the same offense after acquittal,
(2) prosecuted a second time for the same offense after conviction, and (3)
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82334-5-I/19
punished multiple times for the same offense.” State v. Linton, 156 Wn.2d 777,
783, 132 P.3d 127 (2006); Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53
L. Ed. 2d 187 (1977).
In State v. Turner, the Supreme Court held that “a court may violate double
jeopardy either by reducing to judgment both the greater and the lesser of two
convictions for the same offense or by conditionally vacating the lesser conviction
while directing, in some form or another, that the conviction nonetheless remains
valid.” 169 Wn.2d 448, 464, 238 P.3d 461 (2010) (emphasis omitted). Double
jeopardy prohibits courts from explicitly holding vacated lesser convictions for
reinstatement should the more serious conviction for the same criminal conduct be
overturned on appeal. Id. at 465. The judgment and sentence cannot have any
reference to the vacated conviction, and an order appended to the judgment and
sentence also cannot contain such a reference. Id. Turner concluded, “In the
future, the better practice will be for trial courts to refrain from any reference to the
possible reinstatement of a vacated lesser conviction.” Id. at 466.
Here, the trial court entered an order vacating Caril’s conviction for felony
murder for purposes of sentencing to avoid violating double jeopardy, but this was
insufficient under Turner. Caril’s conviction for felony murder in the second degree
and the associated deadly weapon enhancement should not be in the judgment
and sentence. Thus, resentencing consistent with Turner is appropriate.
Finally, Caril seeks correction of a scrivener’s error in the judgment and
sentence. The judgment and sentence originally incorrectly cited RCW
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82334-5-I/20
9A.32.030(1)(a) as the relevant statute for Caril’s conviction for second degree
intentional murder. The correct statute is RCW 9A.32.050(1)(a). This error was
corrected by the trial court in a subsequent order and is moot.
IV
We affirm Caril’s conviction, vacate his sentence, and remand for
resentencing.
WE CONCUR: