### FILED APRIL 22, 2014 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III
INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) No. 31189-9-111 ) Respondent, ) ) 

### v. ) UNPUBLISHED OPINION ) TAYLORD.W. MAREAN, ) ) Appellant. ) LAWRENCE-BERREY, J.
- TaylorMarean appeals the standard range sentence imposed for his conviction for vehicularhomicide. He claims the trial court abused its discretion in denying his request for an exceptional sentence belowthe standard range because it incorrectly assumed it did nothave legal authority to impose such a sentence. Finding no error, we affirm. FACTS During the evening ofFebruary 13,2010,Brooke Reese and Jacoby Bryant, both teenagers, wentto aparty at a friend's house. TaylorMarean and Ryan Perizzo showed up atthe party around midnight. All four were drinking alcohol. Ms. Reese and Ms. Bryantleft theparty about 2:00 a.m. in Ms. Reese's car. Mr. Marean and Mr. PerizzoNo. 31 1 89-9-II1 State 

### v. Marean
followed them in a car driven by Mr. Marean. According to Ms. Reese, Mr. Marean would speedup and pass her, slow down to lether catch up, and then pass her again at a high rate ofspeed. At one point, he rolled down his window and said, "let'srace." Ex. 2 at 3. Mr. Marean took offat a high rate of speed, and Ms. Reese accelerated in an attempt to catch up with him. As she approached
an intersection for a left-hand tum, she lost control ofher car, and Mr. Marean's car struck her car alongthe driver's side, driving her car sideways across a curb and into a tree. Ms. Bryant was killed instantly as a result ofthe collision. The cause ofdeath was severance ofherbrain stem and blunt force trauma. Mr. Marean'sblood alcohol level at the time ofthe collision was 0.13 grams per milliliter. The State chargedMr. Marean with vehicular homicide.J Aftertwo years of unsuccessful plea negotiations, Mr. Marean entered a guilty plea as charged in exchange for the prosecutor's agreement to recommend a sentence within the standard range of31 to 41 months. At sentencing, Mr. Marean sought an exceptional sentence downward of24 months based on his allegation that Ms. Bryant was a "willingparticipant" in the offense under RCW 9.94A.535(l)(a). He asked the court to consider two supporting exhibits-a

1The State also charged Ms. Reese with vehicular homicide. 2No. 31 1 89-9-III State v. Marean toxicology report indicating that Ms. Bryant's blood alcohol level was 0.12 atthe time of her death and a supplemental police report. The court accepted highlightedportions of the supplemental police report, butrejected the toxicology report, finding it irrelevant to the sentencing issues. Based on the police report, defense counsel then argued: I'm not blamingthe victim but I want you to know what it sounded like then. Itsays in the report he [Mr. Marean] spoke to Reese and Bryant. And all we know from the report is he said, "Let'srace." And it sounds like-Iwasn'tthere, Judge, but it sounds like they agreed. Report ofProceedings (RP) at 83. The court denied Mr. Marean's request and imposed a mid-range standard range sentence of36 months, explaining, "Ido not believe we have the legal basis for a willing participant criteria that the Court can use to allow a downward." RP at 97. Mr. Marean appeals the sentence. ANALYSIS 

### Mr. Marean contends the trial court committedreversible error by categorically refusing to considerthe "willingparticipant" mitigating factor under RCW9.94A.535(1)(a). He also maintains the court erroneously eliminated evidence of Ms. Bryant's blood alcohol level and "then determined as a matter oflaw that the defense
was offlimits because the victim was apassenger." Br. ofAppellant at 18.

3No. 31189-9-111 State 

### v. Marean Initially, we note that a standard range sentence is generally not appealable. But a criminal defendant "may appeal a standard range sentence ifthe sentencing court failed to comply with procedural requirements ofthe SRA [Sentencing Reform Act of 1981, ch. 9.94A RCW] or constitutional requirements." State 

### v. Osman, 157 Wn.2d 474,481­ 82, 139 P.3d 334 (2006). "[W]here a defendant has requested an exceptional sentence below the standard range, review is limited to circumstances where the courthas refused to exercise its discretion at all or has relied on an impermissible basis for refusing to impose an exceptional sentence below the standard range." State 

### v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). "A court refuses to exercise its discretion ifit refuses categorically to impose an exceptional sentence below the standardrange under any circumstances; i.e., it takes the positionthat it will never impose a sentence below the standard range." Id. For example,
a court relies on an impermissible basis for declining to impose an exceptional sentence below the standardrange ifit takes the positionthat no drug dealer should get an exceptional sentence down or it refuses to consider the request because ofthe defendant's race, sex, or religion. Id. In State v. Cole, 117 Wn. App. 870, 73 P.3d 411 (2003), the defendant unsuccessfully requested a below range sentence and then challengedthe court's refusal
4No. 31189-9-111 State v. Marean
to impose an exceptional sentence on appeal. The court held that the defendant could not appeal from a standard range sentence where the trial court consideredthe defendant's request for the application ofa mitigating factor, heard argument on the issue, and then exercised its discretion by denying the request. Id. at 881. Similarly, in Garcia-Martinez, involving an equal protection challenge to a standard range sentence, the court held that a trial court that has considered the facts and concluded no basis exists for an exceptional sentence has exercised its discretion and the defendant may not appeal that ruling. Garcia-Martinez, 88 Wn. App. at 330. Under RCW 9.94A.535(1), a court may impose an exceptional sentence belowthe standard range ifthe court finds that mitigating circumstances are established by a preponderance ofthe evidence. Mitigating circumstances may be found if, "[t]o a significant degree, the victim was an initiator, willing participant, aggressor, orprovoker ofthe incident." RCW 9.94A.535(1)(a). The "willingparticipant" factor is applicable where both the defendant and the victim engaged in the conductthat caused the offense to
occur. State v. Hinds, 85 Wn. App. 474, 481,936 P.2d 1135 (1997). Mr. Marean claims that as a result ofthe court's categorical rejection ofthe "willingparticipant" mitigating factor, the court refused to consider a toxicology report revealing Ms. Bryant's blood a1cohollevel of0.12 atthe time ofthe collision. According


### 5No. 31189-9-111 State v. Marean

to Mr. Marean, this blood alcohol level explained why "[Ms. Bryant's] decision-making capacity mightbe impaired to the pointwhere, as the record suggests, all four persons involved were there willingly andwereparticipating in the race." Br. ofAppellant at 20. Mr. Marean further contends that it is fair to inferthatMs. Bryantwas awarethe drivers
were intoxicated, thatMs. Reese was notholding herhostage, and that she agreedtothe
race because she was directly across from Mr. Marean whenhe rolled down his window and invited Ms. Reese and Ms. Bryanttorace. Contraryto Mr. Marean's assertion, the record reveals thatthe courtwas aware of its discretionto impose a sentence belowthe standardrange and did not misunderstand the law. Nothing in the court's oral decision indicatesthat itrejected the exceptional sentence based on a beliefthat a passenger, bydefinition, could notbe a "willing participant" under RCW 9.94A.535(1)(a). A plain reading ofthe oral decision demonstrates thatthe court consideredthe proposedmitigating factor and found it legally and factually insufficientto warrant an exceptional sentence downward. During the guiltypleahearing, the courtheard evidence that (1) witnesses sawthe
cars speeding, (2) Ms. Reese admitted to drinking four shots ofvodkapriorto the collision, (3) all four teenagers were drinking, (4) Ms. Reese was speeding and lost control ofthe car, and (5) Ms. Reese accepted Mr. Marean's challengeto race. The court
6No. 31189-9-III State v. Marean disagreed that these facts supported an inference thatMs. Bryant accepted the challenge to race orthat she was "to a significant degree" a willingparticipant in the incident. As the court explained, "[t]he passenger in the vehicle, the young girl who is dead, that's who we'retalking about. She wasn't driving. She didn'tparticipate in anything other than being in the vehicle." RP at 97. "Without an adequate factual or legal basis to permit it to step outside the standard range, the court decided it could not impose a sentence otherthan one within the standard range. This is an appropriate exercise ofthe sentencing discretion." Garcia-Martinez, 88 Wn. App. at 331. We also reject Mr. Marean's argument thatthe court erred in refusing to consider thetoxicology report. Sentencing courts have wide discretion overthe sources and types ofinformation they considerin determining the length ofa sentence withinthe standard range. State v. Herzog, 112 Wn.2d 419,424,771 P.2d 739 (1989) (quoting Williams v. New York, 337 U.S. 241, 246, 69 S. Ct. 1079,93 L. Ed. 1337 (1949». Here, the court
was well within its discretion in concludingthat the toxicology report was ofmarginal relevanceto mitigation. The facts before the court indicatedMs. Bryant had been drinking. Buteven assuming Ms. Bryant'sjudgmentwas impaired to the extent indicated in the toxicology report, it does not necessarily follow that she agreed to the race or otherwise significantlyparticipated inthe events that led to her death. The court was well
7No. 31189-9-111 

### State v. 

### Marean
within its discretion to disregard the report. We affirm. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Lawrence-Berrey, 1. WE CONCUR:

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