FILED 

### COURT OF APPEALS IN THE COURT OF APPEALS OF THE STATE OPIANNGTON 

### 2014 

### NOV —Li 

### AM 10: 04 STATE OF WASHINGTON, DIVISION II
Appellant,

v. LAUREN LUCILLE WRIGHT, Respondent. 

### STATE OF WASHINGTON No. 44 : 1 - 1 - II BY UTY

UNPUBLISHED OPINION

MELNICK, J. — The State appeals the exceptional sentence below the standard range 

### imposed after ajury found Lauren Lucille Wright guilty of vehicular assault and third degree
assault. 

### The State argues that Wright's age and lack ofjudgment did notjustify an exceptional 

### sentence and that the trial court lacked authority to order Wright to serve all but three days ofher
sentence on electronic home monitoring. We agree with the State and therefore we reverse and remand for the imposition of a standard range sentence. FACTS 

### On June 22, 2010, Wright's car collided head onwith acar driven by Karin Lundy. Lundy
suffered several broken bones and her passenger suffered minor injuries. Wright had turned 18
years old nine months before the collision. 

### The State charged her by amended information with vehicular assault and third degree assault. At her trial, a state trooper testified that the collision occurred on Sedgwick Road, a two lane road with a 45 mile per hour speed limit. 

### Wright drove in a no-passing zone marked with a
solid double yellow line. The drivers of a car and a semi - truck testified that Wright passed them
moments before colliding with Lundy, who had just turned left onto Sedgwick Road. The truck driver testified that Wright was 

### driving 60 - 65 miles per hour as she passed.44821 -1 - II 

### Wrighttalked to an investigating officer and admitted that she drove 60 - 70 miles per hour because she was late to pick up her mother at the 

### ferry. Wright acknowledged she exceeded the speed limit and said that she did not take a different road because cars on that road " go slow, and it' s hard to pass cars." II Report of Proceedings ( RP) at 131. Wright admitted to the officer that the accident might have been avoided ifshe had driven slower and honked her horn.

Wright testified that she had been 

### driving for 8 -9 months before the accident. While unfamiliar with the location of the accident, she knew Sedgwick Road had a 45 mile per hour 

### speed limit. She explainedtothejurythat she sped because hermother,was waiting. Sheadmitted that she might have crossed a solid line to pass the vehicles in front ofher and that her speeding could have contributed to the collision. She testified that she completed the pass and then swerved left to avoid the accident. The State' s accident reconstructionist testified that the cars collided 

### when Wright was travelling eastbound in the westbound lane and Lundy was attempting to turn left into the westbound lane.

The 

### jury found Wright guilty on both counts. 1 The State submitted a sentencing 

### memorandum supporting its position that Wright's standard range was 6 -12 months and that her
offenses did not allow home monitoring as a sentencing option. The defense conceded that the 

### court could not impose electronic home monitoring but argued for an exceptional sentence downward on the bases that the victim initiated the incident, insurance existed to compensate her, 

### Wrighthad no criminal history,and shewas only 18 atthetime ofthe collision. The defense asked the court not to imposejail time.

1 The 

### jury was instructed solely on the " reckless" prong of vehicular assault. See RCW 46.61. 522( 1)( a). 244821 -1 - II



### At the sentencing hearing, the trial court acknowledged that electronic home monitoring and afirst -

offender waiverwere unavailable due to the nature ofWright' s offenses. The trial court 

### added, however, that electronic home monitoring could be imposed as part of an exceptional
sentence. The trial court rejected Wright' s request for an exceptional sentence on the firstthree bases listed above. But,the courtthen noted thatwhile age alone could not support a mitigated sentence, 

### cases showedthat "crimes that aretypical ofteenagers showing a lackofjudgment mightfitwithin 

### the statutory mitigating factor that states that the defendant' s capacity to appreciate his or her
conduct is impaired." RP (Apr. 5, 2013) at 40. The court concluded that Wright' s lack ofjudgment 

### because of her age and inexperience provided a substantial and compelling reason to impose a mitigated exceptional sentence. 

### The trial court referredto unpublished authority in concluding that itcould orderelectronic 

### home monitoring as part ofan exceptional sentence. The court imposed a sentence ofsix months,
with all but three days of it to be served on electronic home monitoring. It denied the State' s
motion for reconsideration. The trial court entered findings of fact and conclusions of law in support ofthe exceptional sentence. The pertinent findings provide: IX. 

### Ms. Wright was intentionally driving well over the speed limit, passing vehicles, and passed in a no-passing zone on a hill,which resulted in a collision. X. 

### It is unlikely thatMs. Wright is goingto learn anything from spendingtime injail. XI.

Ms. Wright' s testimony reflects an immature approach to life, not 

### uncommon to young people who have yet to reach a point in their life where they appreciate thattaking responsibilityfortheiractions is always the rightthing to do.

344821 -1 - II
XII. Ms. Wright' s emotional state contributed to this offense. This leftthe Court 

### believing that Ms. Wright's apparent lack ofinsight into her own responsibility is unlikelyto be repeated in the future. XIII. 

### At the time ofthe incident, Ms. Wright was barely 18 years old, and it was 

### very clearthat Ms. Wright [was] anew driver. Clerk's Papers (CP) at 74. The court then added these conclusions of law: XII. The Ha 'mim decision (State v. Ha 'mim, 132 Wn.2d 834 ( 1997)[)] states that 

### crimes that are typical ofteenagers showing a lackofjudgment might fitwithin the 

### statutory mitigating factorthat statesthatthe defendant's capacityto appreciate his or her conduct is impaired. It is the Court' s conclusion that [RCW] 9.94A.535 and the relevant Washington state case law grants the Court the authority to consider a 

### person' s age as to whether it significantly impaired Ms. Wright's capacity to conform to the requirements ofthe law. The Ha 'mim court indicates that a Court can consider this when this is the type ofoffense that is typical of a youthful offender, and the Court doesn't believe 

### there are many more offenses that are typical of youthful offenders in Superior Court felonies than this type of offense, which is typically committed by young persons in particular. 

### As a result, the Court finds there are facts in the record that support, by a preponderance ofthe evidence, that Ms. Wright' s lack ofjudgment due to her age 

### and inexperience warrants a finding that there is a substantial and compelling reason to deviate below the standard range sentence. XIII. The Court finds, pursuant to some unpublished opinions that were helpful 

### in guiding the Court in fashioning the sentence, that home monitoring can be ordered as an exceptional sentence when the statute prohibits it. XIV. 

### As a result, the Court sentenced Ms. Wright to six months in custody, with 

### three days to be served in custody at the jail, and the remainder to be served on home monitoring. CP 76 - 77. 

### The State appeals Wright' s exceptional sentence.2


### 2 We grantedthe State's motion to staythe sentence pending the outcome ofthis appeal. 444821 -1 - II ANALYSIS

I. DEPARTURE FROM THE STANDARD RANGE 

### A trial court generally must impose asentence within the standard range established in the Sentencing Reform Act of 1981 ( SRA). State v. Fowler, 145 Wn.2d 400, 404, 38 P. 3d 335 (2002); RCW 9. 94A.505( 2)( a)( i). 

### Atrial courtmay impose asentence outsidethe standard range ifitfinds 

### that substantial and compelling reasonsjustify an exceptional sentence. State v. Statler, 160 Wn. App. 622, 639, 248 P. 3d 165 ( 2011); RCW 9. 94A.535. In reviewing an exceptional sentence, we 

### may reverse ifwe find

a) ... 

### that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do notjustify a sentence outside the standard range for that offense[.] RCW 9. 94A.585(4). 

### The SRA contains a list ofaggravating and mitigating factors that the court may consider in exercising its sentencing discretion. Fowler, 145 Wn.2d at 404; RCW 9. 94A.535. Although this list is not exclusive, the reasons must relate to the crime and make it more, or less, egregious. Fowler, 145 Wn.2d at 404. 

### In otherwords, any reasons that are relied on for deviating from the
standard range must "' distinguish the defendant' s crime from others in the same category. "' 

### Fowler; 145 Wn.2d at 405 (quoting State v. Gaines, 122 Wn.2d 502, 509, 859 P.2d 36 ( 1993)). 

### In imposing an exceptional sentence, a court may not take into account the defendant's
criminal 

### history. Fowler, 145 Wn.2d at 405. 

### Nor may a court base an exceptional sentence on factors personal in nature to a particular defendant, including the defendant' s age. State v. Law, 154 .Wn.2d 85, 97 -98, 110 P.3d 717 (2005); State v. Ha' mim, 132 Wn.2d 834, 846 - 47, 940 P.2d 633 ( 1997).

544821 -1 - II
In Ha 'mim, the defendant was 18 when she committed first degree robbery. 132 Wn.2d at 837. The trial court imposed an exceptional sentence downward based on her youth and lack of prior police contacts. 132 Wn.2d at 837. Because the nature ofthe defendant' s offense made her ineligible for the first - time offender option,the Supreme Court concluded that her lack of criminal 

### history could notjustify an exceptional sentence. Ha 'mim, 132 Wn.2d at 845. The court then considered whether the defendant' s youth should be considered as a mitigating factor. Ha 'mim, 132 Wn.2d at 845. The court concluded that age alone could not be 

### used to justify an exceptional sentence but that age was relevant to whether the defendant' s 

### capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements ofthe law was significantly impaired. Ha 'mim, 132 Wn.2d at 846 (citing statutory mitigating factor currently codified as RCW 9. 94A.535( 1)( e)). The trial court made no such 

### finding in the Ha 'mim case, and the Supreme Court concluded thatthe defendant' s age alone was insufficientto showthat her capacityto appreciate the wrongfulness ofher conduct or to conform it to the requirements of the law was in any way impaired. 132 Wn.2d at 846.

The Ha 'mim decision confirms that the " significant impairment" 

### mitigating factor is a stringent test." State v. Rogers, 112 Wn.2d 180, 185, 770 P. 2d 180 ( 1989). As the Rogers court explained, "[ 

### I]mpairedjudgment and irrational thinking is inherent in most crimes. The court must find, based upon the evidence, that those factors led to significant impairment of defendant' s capacity to appreciate the wrongfulness of his conduct and to conform to the law." 112 Wn.2d at 185. 

### In Rogers, where the highly educated defendant, who had taught school and served as a
school principal, pleaded guilty to first degree robbery, this evidence did not exist. 112 Wn.2d at 181 -82. The Supreme Court reversed his exceptional sentence downward after concluding that 

### even ifthe defendant' sjudgment was impaired and his thinking irrational, no proof existed that

644821 -1 - II



### this condition significantly impaired his capacityto appreciate the wrongfulness ofhis conduct or to conform his conduct to the requirements of the law. Rogers, 112 Wn.2d at 185. 

### Similarly,the 

### fact that another defendant was " extremely emotionally distressed" at the time ofhis offense did not alone prove the significant impairment required to support a mitigated exceptional sentence. 

### State v. Hobbs, 60 Wn.App. 19, 24, 801 P.2d 1028 ( 1990). Here, the trial court concluded that Wright' s lack of judgment due to her age and 

### inexperience significantly impaired her capacity to conform to the requirements ofthe law. This
conclusion is similar to the reasoning that the Supreme Court rejected in Ha 'mim. The Ha 'mim court rejected the argument that a defendant' s youth justifies an exceptional sentence because 

### young peopletendto exercise poorjudgment. 132 Wn.2d at 846. Ha'mim thus requires additional evidence that the lack of judgment impaired the defendant's capacity to appreciate the wrongfulness of her conduct or to conform it to the requirements of the law. 132 Wn.2d at 846. 

### Here, Wright admitted that she had been speeding, and she told atrooper that the collision might have been avoided had she been 

### driving the speed limit. No evidence shows that she did not 

### understandthatshepassed others inano-passing zone. Consequently,the record does not establish that Wright' s lack ofjudgment significantly impaired her capacityto appreciate the wrongfulness of her conduct or to conform it to the law. 

### Wright argues on appeal thatthe trial court properly based its exceptional sentence on her aberrant behavior. The court made no reference to aberrant behavior,finding instead thatWright' s offenses were typical of youthful offenders. Moreover, the Supreme Court has held that the 

### aberrational nature of a defendant' s crime is not a valid mitigating factor because it is simply 

### another way of saying that the defendant has little or no criminal history, which is taken into consideration in establishing the standard range. Fowler, 145 Wn.2d at 407 - 08.

744821 -1 - II We hold that the record does not show that the defendant' s ability to appreciate the 

### wrongfulness ofher conduct was significantly impaired. We hold furtherthat the defendant's age and lack ofjudgment alone do not warrant an exceptional sentence. II. ELECTRONIC HOME MONITORING Although our conclusion that an exceptional sentence was not warranted does not require 

### us to address the detention that the trial court imposed, we turn to this issue briefly. A trial court 

### may only impose a sentence authorized by statute. State v.Albright, 144 Wn.App. 566, 568, 183 P. 3d 1094 (2008) (

### citing In re Postsentence Review ofLeach, 161 Wn.2d 180, 184, 163 P.3d 782 2007)). 

### The SRA does not allow atrial courtto impose electronic home monitoring for aviolent
offense or for third degree assault. RCW 9. 94A.734( 1)( a), ( e); 

### RCW 9.94A.030(28). 3 Vehicular
assault based on recklessness is a violent offense. RCW 9. 94A.030( 54)( a)( xiii). Given this 

### statutory prohibition, electronic home monitoring may not be imposed as part ofan exceptional
sentence. State v. Fuller, 89 Wn.

### App. 136, 139 - 40, 947 P.2d 1281 ( 1997); see also Ha' mim, 132 

### Wn.2d at 845 (holding that itwould violate intent ofSRAto allow exceptional sentence basedon the factthat defendant is first - time offenderwhere SRA specifically disallowed first - time offender 

### sentencing option for defendant' s offense). We reverse and remand forthe imposition ofa standard range sentence.

3 We cite the sentencing statutes as currently codified for ease of reference. State v. Nava, 177 Wn.App. 272, 288 n.4, 311 P. 3d 83 ( 2013), review denied, 179 Wn.2d 1019 (2014).44821 -1 - II



### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur: 

# C , (



# 9' Johanson, C.J.

9