By Darren Smith, Weekend Contributor

In our criminal justice system, appellants tend to fall into three categories: Those who ultimately prevail in their arguments; those who are unable to convince justices of their case’s merits; and those who fall off a cliff and strike every sharp rock on their way to the bottom. Steven Canha apparently suffered the fate of the last category.

After extensive appeals, one of which was to the U.S. Supreme Court, Mr. Canha lost what could be his final personal restraint petition before Washington’s courts of appeals and now the state’s Supreme Court halted the years long contention for his release from prison.

Mr. Canha argues, in short, for a resentencing based on Washington’s determinate sentencing grid by reason of incompatibility of foreign laws to Washington’s and argues for removal of prior convictions to reduce his prison term. But being probably the most unfortunate man in recent memory, a unanimous Court determined applicability of prior violations based largely upon obsolete laws (effective at the time) and time/date dictated ultimately how long his imprisonment occurred.

Here are excerpts from the Washington Supreme Court’s opinion. Due to the complexity of the matter, it is presented as quoted nearly in full: The opinion follows:

We [The WA Supreme Court] must determine whether four criminal convictions from other states are sufficiently comparable to Washington crimes that they should be included in a defendant’s criminal history for sentencing purposes. He claims that the trial court incorrectly included four out-of-state convictions in his offender score—one from California and three from Oregon. The trial court failed to perform a comparability analysis of these out-of-state convictions to see if they were comparable to Washington crimes as required by ROW 9.94A.525(3). We engage in a comparability analysis, conclude that three of Canha’s four foreign convictions are comparable to Washington offenses, and remand the case to the superior court to resentence Canha accordingly.

A jury found Canha guilty of two counts of assault in the second degree and two counts of unlawful possession of a firearm in the first degree. At the sentencing hearing, the superior court calculated Canha’s offender score by using four out-of-state criminal convictions, one from California and three from Oregon. However, the court failed to perform a comparability analysis of these out-of-state convictions to see whether they were sufficiently comparable to any Washington offenses. The superior court sentenced Canha to serve 154 months.

Canha appealed his conviction to the Court of Appeals, which rejected Canha’s claims of failure to suppress evidence, ineffective assistance of counsel, double jeopardy violation, and speedy trial violation. State v. Canha, noted at 159 Wn. App. 1044 (2011); see U.S. Const, amends. V, VI. This court denied review. State v. Canha, 171 Wn.2d 1023, 257 P.3d 663 (2011). The United States Supreme Court also denied certiorari. Canha v. Washington, 565 U.S. 1067, 132 S. Ct. 776, 181 L. Ed. 2d 498 (2011).

After his direct appeal, Canha filed a timely personal restraint petition, which the Court of Appeals denied as frivolous. That same year, Canha filed a Superior Court Criminal Rule (CrR) 7.8 motion to modify his judgment and sentence. Canha argued for the first time that his offender score was miscalculated by counting the four out-of-state convictions.

Canha does not argue constitutional error, but claims that his offender score was miscalculated. “[A] sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice.”

We perform[ed] a comparability analysis only for Canha’s remaining out-of-state convictions—voluntary manslaughter under California law and felon in possession of a firearm under Oregon law. We conclude that these convictions are factually comparable to Washington offenses and were properly included in Canha’s offender score.

The Sentencing Reform Act of 1981 (SRA) “created a grid of sentencing ranges which vary by the defendant’s offender score and the seriousness level of the crime.” State V. Wiley, 124 Wn.2d 679, 682, 880 P.2d 983 (1994); RCW 9.94A.510. The statute calculates a defendant’s offender score based on criminal history. Wiley, 124 Wn.2d at 683; see also RCW 9.94A.525. If a defendant has out-of-state convictions, the SRA directs that those offenses be classified by determining comparable Washington offenses. Wiley, 124 Wn.2d at 683; see also RCW 9.94A.525(3). To compare offenses, we use a two-part test, in re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). First, the court analyzes legal comparability by comparing the elements of the out-of-state offense to the most comparable Washington offense. State v. Moriey, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). When the crimes’ elements are not the same, the offenses are not legally comparable, id. at 606. If the crimes are legally comparable, our analysis ends here and the crime is included in the
offender score.

Second, if the offenses are not legally comparable, the court analyzes factual comparability. Lavery, 154 Wn.2d at 255-57. Offenses are factually comparable when the defendant’s conduct would have violated a Washington statute. Morley, 134 Wn.2d at 606.

Thus, here begins in the Justice’s opinions opening the cracks, or rather crevices, Mr. Canha descended.

II. California Voluntary Manslaughter

Canha’s conviction for voluntary manslaughter in California is not legally comparable to Washington’s second degree murder statute, but it is factually comparable. Consequently, it was appropriately included in Canha’s offender score.

A. Legal Comparability

In 1991, Canha pleaded guilty to voluntary manslaughter in California. The California manslaughter statute provides that a person is guilty of manslaughter in three instances:

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary—upon a sudden quarrel or heat of passion.
(b) Involuntary—in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
(c) Vehicular. . . .

Cal. Penal Code § 192(a)-(c) (West 1988). The killing must be without malice, which is defined by statute:

(4) The words “malice” and “maliciously” import a wish to vex, annoy,
or injure another person, or an intent to do a wrongful act, established either
by proof or presumption of law.
Cal. Penal Code § 7(4) (West 1988).

In 1991, there were three possible comparable offenses in Washington: manslaughter in the first degree, manslaughter in the second degree, and murder in the second degree. However, none of these offenses is legally comparable to California’s manslaughter statute because none has the same alternative means as manslaughter.

Washington Manslaughter in the First Degree

The first possible comparable offense in Washington is first degree manslaughter. Washington manslaughter in the first degree requires a reckless killing or the unlawful killing of an unborn child:

(1) A person is guilty of manslaughter in the first degree when:
(a) He recklessly causes the death of another person; or
(b) He intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the mother of such child.

Former RCW 9A.32.060 (1975). Washington defined “reckless” as a conscious disregard of substantial risk:

RECKLESSNESS.

A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.
Former RCW 9A.08.010(1)(c) (1975).

Washington’s first degree manslaughter is not legally comparable to California’s manslaughter statute. The California statute does not require a reckless killing, nor does it criminalize the intentional killing of an unborn child. See Cal. Penal Code § 192 (West 1988). We must look elsewhere for a legally comparable Washington offense.

2. Washington Manslaughter in the Second Degree

Another possible comparable Washington offense is second degree manslaughter. Washington manslaughter in the second degree requires a killing as a result of criminal negligence:

(1) A person is guilty of manslaughter in the second degree when, with criminal negligence, he causes the death of another person.

(2) Manslaughter in the second degree is a Class C felony.

Former RCW 9A.32.070 (1975).

A person is criminally negligent when he or she fails to be aware of a substantial risk and to exercise the requisite care of a reasonable person: A person is criminally negligent or acts with criminal negligence when he fails to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from
the standard of care that a reasonable man would exercise in the same situation.

Former RCW 9A.08.010(1)(d) (1975).

Washington second degree manslaughter is not comparable to California voluntary manslaughter. California voluntary manslaughter is broader, criminalizing behavior like vehicular manslaughter, not only killings resulting from criminal negligence. See Cal. Penal Code § 192 (West 1988). Consequently, we must examine another statute to find legal comparability.

3. Washington Murder in the Second Degree

The final potentially comparable Washington offense is second degree murder. The Washington crime requires killing someone without premeditation or during the course of a felony:

(1) A person is guilty of murder in the second degree when:
(a) With intent to cause the death of another person but without
premeditation, he causes the death of such person or of a third person; or
(b) He commit or attempts to commit any felony… and, in the course
of and in furtherance of such crime or in immediate flight therefrom, he, or
another participant, causes the death of a person other than one of the
participants . . . .
Former RCW 9A.32.050 (1975).

Washington second degree murder is not legally comparable to California voluntary manslaughter. California does not criminalize felony murder in its manslaughter statute. See Cal. Penal Code § 192 (West 1988) (criminalizing killings committed during unlawful activity not amounting to a felony). Nor does the Washington statute encompass involuntary manslaughter since Washington’s statute requires an intent to kill. See former ROW 9A.32.050(1 )(a). Since none of these Washington statutes has the same alternative means as the California manslaughter statute—voluntary, involuntary, and vehicular—they are not legally comparable. Thus, we move to the factual comparability analysis.

B. Factual Comparability

California initially charged Canha with murder. Instead of proceeding to trial on the murder charge, Canha pleaded guilty to the lesser included offense of voluntary manslaughter. See People v. Barton, 12 Cal. 4th 186, 199, 906 P.2d 531, 47 Cal. Rptr. 2d 569 (1995) (holding that manslaughter is a lesser included offense of murder).’* Canha admitted that he committed voluntary manslaughter. Therefore, we must discern what the elements of California voluntary manslaughter are and whether Canha’s conduct of committing voluntary manslaughter would have violated a Washington statute.

When we compare statutes, we apply the law existing at the time of the conviction. See Lavery, 154 Wn.2d at 255 (stating that “the elements of the out of state crime must be compared to the elements of a Washington criminal statute in effect when the foreign crime was committed’ (emphasis added)); see also Moriey, 134 Wn.2d at 606 (same). Voluntary manslaughter required a killing to be done “without malice . . . upon a sudden quarrel or heat of passion.” Cal. Penal Code § 192(a) (West 1988). At the time of Canha’s conviction in 1991 and until 2000, California required a specific intent to kill for a voluntary manslaughter conviction. See, e.g., People v. Lee, 20 Cal. 4th 47, 59, 971 P.2d 1001, 82 Cal. Rptr. 2d 625 (1999) (discussing when “an intentional killing is reduced to voluntary manslaughter”); People v. Hawkins, 10 Cal. 4th 920, 958, 897 P.2d 574, 42
Cal. Rptr. 2d 636 (1995) (stating that “voluntary manslaughter presupposes an intent to kill”), abrogated by People v. Lasko, 23 Cal. 4th 101, 999 P.2d 666 (2000); People v. Brubaker, 53 Cal. 2d 37, 44, 346 P.2d 8 (1959) (“Voluntary manslaughter is a willful act, characterized by the presence of an intent to kill, engendered by sufficient provocation and by the absence of premeditation, deliberation and (by presumption of law) malice aforethought.” (emphasis omitted)), abrogated by Lasko, 23 Cal. 4th 101.® Thus, when Canha pleaded guilty to voluntary manslaughter in 1991, he pleaded guilty to an intentional killing done in the heat of passion.® See Olsen, 180 Wn.2d at 478-79 (“Moreover, ‘[a] guilty plea “admits every element of the crime charged.'”” (alteration in
original) (quoting People v. Wallace, 33 Cal. 4th 738, 749, 93 P.3d 1037, 16 Cal. Rptr. 3d 96 (2004)) (quoting People v. Thomas, 41 Cal. 3d 837, 844 n.6, 718 P.2d 94, 226 Cal. Rptr. 107 (1986))).

An intentional killing in California, when done in the heat of passion, may be reduced from murder to manslaughter. Lee, 20 Cal. 4th at 59 (concluding that “an intentional killing is reduced to voluntary manslaughter… when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation”). Similarly, in Washington, heat of passion negates premeditation, justifying a charge of second degree murder. State V. Frederick, 20 Wn. App. 175, 182, 579 P.2d 390 (1978). Thus, of the possible comparable Washington statutes discussed above, murder in the second degree is closest to California voluntary manslaughter. Washington second degree murder requires an “intent to cause the death of another person but without premeditation.” Former RCW 9A.32.050(1)(a).

Canha claims that his voluntary manslaughter offense cannot be comparable to second degree murder because voluntary manslaughter does not require the specific intent to kill someone, while second degree murder does. But, as discussed above, at the time of Canha’s conviction, voluntary manslaughter in California did require an intent to kill and Canha necessarily pleaded guilty to such an intent. See Hawkins, 10 Cal. 4th at 958 (“Defendant’s argument is based on the premise that malice aforethought and intent to kill describe identical mental states…. But that premise is fallacious. It has been long held that voluntary manslaughter presupposes an intent to kill, but that, in spite of that intent, certain statutorily defined mitigating circumstances negate the
element of malice aforethought.”). Therefore, both the California statute and the Washington statute required a specific intent to kill and also required that the killing be done in the heat of passion or without premeditation. As a result, Canha pleaded guilty to an intentional killing done in the heat of passion or without premeditation. See Oisen, 180 Wn.2d at 478 (relying on California law to conclude that ‘”[a] guilty plea admits every element of the crime charged'” (internal quotation marks omitted) (quoting Wallace, 33 Cal. 4th at 749)). Therefore, his voluntary manslaughter conviction is factually comparable to second degree murder; Canha’s conduct of committing voluntary manslaughter would have violated Washington’s second degree murder statute. Thus, the voluntary manslaughter conviction was properly included in Canha’s offender score.

III Oregon Felon in Possession of a Firearm

Canha’s conviction for felon in possession of a firearm in Oregon is factually comparable to Washington’s first degree unlawful possession of a firearm. Therefore, it was appropriately included in Canha’s offender score.

A. Legal Comparability

Oregon convicted Canha as a felon in possession of a firearm. A person could be convicted under the Oregon statute if he or she had possession of a firearm after previously being convicted of a felony:

Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person’s possession or under the person’s custody or control any firearm, commits
the crime of felon in possession of a firearm.

The comparable Washington statute at the time was first degree unlawful possession of a firearm. In contrast to the Oregon statute, an individual could be convicted in Washington only if he or she had been previously convicted of a serious offense:

A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted in this state or elsewhere of any serious offense as defined in this chapter.

Former RCW 9.41.040(1)(a) (1997)

A serious offense in Washington was defined by statute:

“Serious offense” means any of the following felonies or a felony attempt to commit any of the following felonies, as now existing or hereafter amended:

(a) Any crime of violence; [or]
(b) Any felony offense in effect at any time prior to June 6, 1996, that is comparable to a serious offense, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious offense.

Former RCW 9.41.010(12) (1997).

Oregon’s statute is broader than Washington’s statute. Oregon requires that a person be convicted of a felony, while Washington requires that a person be convicted of a serious offense. Compare former Or. Rev. Stat. § 166.270 (1999). former RCW 9.41.040(1 )(a). The definition of a “serious offense” does not encompass all felonies; therefore, it is possible for a person to have been convicted of a felony without committing a serious offense in Washington. Since the Oregon statute is broader, it is not legally comparable to the Washington statute. See Morley, 134 Wn.2d at 606. Because the Oregon statute is not legally comparable, we must determine whether Canha’s conviction was factually comparable to the Washington statute.

B. Factual Comparability

To be convicted under the Washington statute for first degree unlawful possession of a firearm, Canha must have (1) had a firearm in his possession or control and (2) been previously convicted of a serious offense. Former ROW 9.41.040(1 )(a) (2000). Since Canha’s conviction meets both these requirements, we conclude that the offense is factually comparable. Oregon charged and convicted Canha of “unlawfully and knowingly hav[ing] in [his] possession a firearm.” This satisfies the Washington statute’s first requirement that Canha have a firearm in his possession or control.

Canha pleaded guilty to voluntary manslaughter in California in 1991. Killing someone satisfies the definition of a “serious offense” since it is a ‘”[crime of violence.] Former RCW 9.41.010(12). Consequently, the Washington statute’s second requirement that Canha was previously convicted of a serious offense is met.

Because Canha had possession of a firearm and had previously been convicted of a serious offense, his conviction in Oregon for felon in possession of a firearm is factually comparable to a Washington felony offense. Thus, it was properly included in his offender score.

CONCLUSION

In conclusion, three of Canha’s four out-of-state convictions were properly included in Canha’s offender score. Canha’s conviction for California voluntary manslaughter is factually comparable to Washington’s second degree murder. Canha’s Oregon conviction for felon in possession of a firearm is factually comparable to Washington’s first degree unlawful possession of a firearm. Canha concedes that his Oregon conviction for first degree criminal mischief is comparable to Washington’s
second degree malicious mischief. But, the State concedes that Canha’s Oregon conviction for hindering prosecution is not comparable to a Washington offense. As a result, it was erroneously included in Canha’s offender score. Therefore, Canha is entitled to be resentenced. We remand to the trial court to resentence Canha accordingly and for other proceedings consistent with this opinion, if any.

~+~

It came to me as both surprising, and ultimately not surprisingly, that each of the Justices of the Court held their opinion unanimously. I consider the court well balanced and often there would be one dissenting opinion. But in this case the rather complex matrix, based upon rigidly structured sentencing grids was I suspect to the Justices locksteppedly followed. There was not much room from this perspective to interpret meanings differently and that is why I believe the decision was unanimous.

I believe it might have ended differently for Mr. Canha if time and place were different for his prior offenses. Many of the analog crimes used in determining his sentence have been modified since the time of his foreign convictions. I was rather surprised that California’s Involuntary Manslaughter statute was not easily ported to Washington’s Manslaughter in the First Degree statute. But in reading the Court’s opinion I can understand their thinking.

Nevertheless despite a rather interesting argument, there are times when rigid statutes tend to be interpreted strictly–and much bad luck for Mr. Canha, his case described hauntingly accurately by Homer Simpson

For Further Reading: 94175-1 In re Personal Restraint of Canha

By Darren Smith

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.