STATE v. BORBOA (2004)

PUBLISHED IN PART

The main question in this appeal is whether a sentence imposed under RCW 9.94A.712 is subject to the Sixth Amendment right to jury trial as interpreted in Apprendi v. New Jersey¹ and Blakely v. Washington.²  Answering yes, we affirm in part and reverse in part.

RCW 9.94A.712 applies when a non-persistent offender is sentenced for specified crimes that include first degree rape and first degree kidnapping with sexual motivation, but not second degree assault of a child.³  When RCW 9.94A.712(3) applies, it requires the trial court to impose both a “maximum term” and a “minimum term.”   The maximum term shall consist “of the statutory maximum sentence for the offense.”   The minimum term shall be “within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.” ⁴  Under RCW 9.94A. 535, a sentence outside the standard range must be based on “substantial and compelling reasons” that were not considered when the standard range was set,⁵ including but not limited to a finding of sexual motivation under RCW 9.94A.835.⁶

When the trial court's standard or exceptional minimum term expires, the Indeterminate Sentence Review Board “shall order the offender released, under such affirmative and other conditions as the board determinates appropriate, unless the board determines ․ that the offender will commit sex offenses if released[,]” in which case the Board “shall establish a new minimum term, not to exceed an additional two years.” ⁷  If the offender violates the Board's conditions while on release, the Board “may transfer the offender to a more restrictive confinement status to serve up to the remaining portion of the sentence.” ⁸

As this summary shows, RCW 9.94A.712 has three essential features. First, it requires the sentencing court to set a minimum term that may be standard or exceptional.   Second, it permits the Indeterminate Sentence Review Board to set a second minimum term which, if imposed, takes effect at the end of the court's minimum term.   Third, it requires the sentencing court to set a maximum term that equals the statutory maximum sentence.   The defendant must serve each minimum term that is imposed, but he need not serve the maximum term unless the minimum terms happen to equal it.   Instead of being a sentence that the defendant must actually serve, the maximum term is merely a limitation on the combined total of the court's and the Board's minimum terms.   Indeed, it is a limitation that simply reiterates in the context of RCW 9.94A.712 what is already in the statutes elsewhere:  that in general neither the court nor the Board shall maintain jurisdiction over the defendant for more than life if the crime is a Class A felony, for more than ten years if the crime is a Class B felony, or for more than five years if the crime is a Class C felony.⁹

Against this backdrop, a jury convicted Escolastico C. Borboa of first degree kidnapping (Count I), second degree assault of a child (Count II), and first degree rape of a child (Count III).   The jury also returned a special finding that he had committed the kidnapping (Count I) with sexual motivation.

The trial court sentenced under RCW 9.94A.712 on all three counts. It found that Borboa had acted with deliberate cruelty;  that the victim had been particularly vulnerable due to her extreme youth;  and that Borboa's standard ranges were 77-102 months on Count I, 51-68 months on Count II, and 138-184 months on Count III.¹⁰ On each of the three counts, the court imposed an exceptional minimum term of 600 months and a maximum term of life.¹¹  The minimum on each count was based on the judge's findings of deliberate cruelty and particular vulnerability, and the minimum on Count I was additionally based on the jury's finding of sexual motivation.

On appeal, Borboa asserts that the trial court violated his Sixth Amendment right to jury trial as interpreted in Apprendi and Blakely.   The State responds that the Sixth Amendment right to jury trial as interpreted in Apprendi and Blakely could not have been violated because it does not apply to sentences imposed under RCW 9.94A.712. The State further responds that even if the Sixth Amendment does apply, it was waived here.   We examine whether the Sixth Amendment applies before addressing whether it was waived.

Applicability

The Sixth Amendment guarantees the right to jury trial.   Applicable to the States through the Fourteenth Amendment's Due Process Clause,¹² it provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed․”

Apprendi construed this right to jury trial.   The defendant pleaded guilty to second degree possession of a firearm for an unlawful purpose.   That crime carried “a penalty range of 5 to 10 years,” ¹³ which could be increased to “between 10 and 20 years” if the sentencing judge found that the defendant's motivation was racial.¹⁴  The sentencing judge made such a finding and sentenced the defendant to 12 years.   The question on appeal was whether such a finding could be made by the judge, or whether it had to be made by a jury.   Answering that it had to be made by a jury, the United States Supreme Court reversed.   It held that a legislature cannot constitutionally “remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” ¹⁵  “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ¹⁶

Blakely also construed the Sixth Amendment's right to jury trial.   The defendant pleaded guilty to kidnapping with a firearm.   His standard range was 49-53 months, and his statutory maximum term was 10 years.   The trial judge imposed an exceptional sentence of 90 months based on his own finding that the defendant had acted with deliberate cruelty.¹⁷  Apprendi had already held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ¹⁸  The new question was whether “the prescribed statutory maximum” for Apprendi purposes was the top of the standard range (53 months) ¹⁹ or the statutory maximum term (120 months).²⁰  Reversing, the United States Supreme Court held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict”-“[i]n other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” ²¹  Since 53 months was the most the trial judge could have imposed based only on the findings of the jury, he had erred by imposing 90 months.

Together, Apprendi and Blakely clarify how the Sixth Amendment's right to jury trial is satisfied.   Before Apprendi and Blakely, the right was satisfied so long as the jury found all the elements of the crime as defined by the legislature.²²  After Apprendi and Blakely, the right is satisfied only if the jury finds all the facts needed to support the sentence that the defendant actually must serve, whether or not those facts are elements of the crime.

In clarifying the Sixth Amendment's right to jury trial, Apprendi and Blakely do not affect the trial judge's ability to impose either a standard range minimum term or a maximum term under RCW 9.94A.712;  so long as the jury finds each element of the crime, which it does by returning a general verdict of guilty, it finds each fact needed to support both a standard range minimum term and a maximum term.   In clarifying the Sixth Amendment's right to jury trial, however, Apprendi and Blakely significantly change the trial judge's ability to impose an exceptional minimum term under RCW 9.94A.712. RCW 9.94A.712 provides that an exceptional minimum term must meet the requirements of RCW 9.94A.535. RCW 9.94A.535 provides that the facts needed to support an exceptional term are not just the elements of the crime, but must include one or more aggravating facts that are not elements of the crime.²³  Necessarily then, the jury does not find each fact needed to support an exceptional minimum term simply because it returns a general verdict of guilty-and without jury findings, an exceptional minimum term violates the Sixth Amendment's right to jury trial.

The State argues that if the trial court can impose a maximum term, it necessarily can impose a shorter minimum term, regardless of whether that minimum is standard or exceptional.  Apprendi and Blakely, however, require that the jury find each fact needed to support the sentence that the defendant actually must serve.   Under RCW 9.94A.712, that sentence is the court's standard or exceptional minimum term;  it is not the court's maximum term, for that merely limits the combined total of the court's and the Board's minimum terms.   Here then, Apprendi and Blakely required that the jury find each fact needed to support the court's exceptional minimum term, even though the trial court also imposed a maximum term that limited the combined total of the court's and the Board's minimum terms.

According to the State, the Sixth Amendment's right to jury trial does not affect an exceptional minimum term imposed under RCW 9.94A.712 because it “applies only to maximum sentences.” ²⁴  According to Blakely itself, however, the relevant sentence is the longest one supported by the jury's findings of fact.   It does not matter whether the sentence is labeled “minimum,” “maximum,” or something else.   Indeed, when the Blakely Court faced this argument, it simply relabeled the longest sentence supported by the jury's findings (53 months) as “the statutory maximum for Apprendi purposes” ²⁵ -despite the Washington Legislature's having provided for a statutory maximum of 120 months.

The State relies on McMillan v. Pennsylvania²⁶ and Harris v. United States,²⁷ but its reliance is misplaced.   In McMillan, a state statute required that a defendant convicted of a felony be sentenced to a maximum of 7, 10, or 20 years, depending on the offense.²⁸  Another state statute required that the defendant be sentenced to a minimum of five years if the sentencing judge found by a preponderance that the defendant had “visibly possessed a firearm” during the commission of his crime.²⁹  McMillan and three others claimed that the judge could not constitutionally impose the minimum mandated by § 9712 unless the judge made the required finding beyond a reasonable doubt.   Disagreeing, the United States Supreme Court stated:

Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty;  it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.[³⁰ ]

In Harris, the defendant was convicted under a federal statute that required the sentencing judge to impose a stated minimum term if the judge found that the defendant had “brandished” a gun during the commission of his crime.³¹  The sentencing judge made the finding and imposed the required minimum.   A majority of five Justices (Kennedy, Rehnquist, O'Connor, Scalia, and Breyer) framed the “principal question” as “whether McMillan stands after Apprendi.” ³²  The Justices reasoned, however, in groups of four, four, and one.   The first group of four (Kennedy, O'Connor, Rehnquist, and Scalia) opined:

McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases.  Apprendi said that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime-and thus the domain of the jury-by those who framed the Bill of Rights.   The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury's verdict has authorized the judge to impose the minimum with or without the finding.[ ³³ ]

Thus, the first group of four concluded:

In light of the foregoing, it is not surprising that the decisions for the Court in both Apprendi and Jones[34] insisted that they were consistent with McMillan-and that a distinction could be drawn between facts increasing the defendant's minimum sentence and facts extending the sentence beyond the statutory maximum.   That distinction may continue to stand.   The factual finding in Apprendi extended the power of the judge, allowing him or her to impose a punishment exceeding what was authorized by the jury.   The finding in McMillan restrained the judge's power, limiting his or her choices within the authorized range.   It is quite consistent to maintain that the former type of fact must be submitted to the jury while the latter need not be.[35]

Dissenting, the second group of four (Ginsburg, Stevens, Souter, and Thomas) would have “overrule[d] McMillan ” ³⁶ because it “conflicts with ․ Apprendi.” ³⁷  The remaining Justice (Breyer) could not “easily distinguish Apprendi ” or “agree with” the first plurality's attempt to do that.³⁸  Nonetheless, he could “not yet accept its [Apprendi's ] rule,” ³⁹ so he concurred with the first group of four.

Assuming that McMillan and Harris are still good law, they state or imply one point already made and add another point not yet made.   They state or imply that the Sixth Amendment right to jury trial is satisfied only if the jury finds each fact needed to permit the sentence in issue.   They add that so long as the jury finds each fact needed to permit the sentence in issue, the Sixth Amendment does not bar the judge alone from finding additional facts that merely make mandatory what the jury has already permitted.   This latter point lacks significance where, as with Counts II and III in this case, the duration of the trial court's sentence exceeds what the jury's verdict otherwise would have permitted.

 Turning to this case, we hold that the sentence on Count I was not erroneous.   The jury found each element of first degree kidnapping when it found by general verdict that Borboa was guilty.   The jury found an aggravating fact that was not an element of first degree kidnapping when it found by special verdict that Borboa had committed the crime with sexual motivation.⁴⁰  No other facts were needed to support the maximum term or an exceptional minimum term, the jury's findings vested the trial court with discretion to impose such terms, and Borboa's Sixth Amendment right to jury trial was satisfied.

 In contrast, the sentence on Count II was erroneous both statutorily and constitutionally.   It was erroneous statutorily because RCW 9.94A.712 does not permit minimum and maximum terms when sentencing for second degree assault of a child.⁴¹  It was erroneous constitutionally because, although the jury found each element of second degree assault of a child, the jury did not find the additional aggravating fact needed to support an exceptional minimum sentence.

 The sentence on Count III was erroneous constitutionally.   Although the jury found each element of first degree rape merely by convicting Borboa, it did not find the additional aggravating fact needed to support an exceptional minimum sentence.   Unless Borboa waived his Sixth Amendment right to jury trial, the sentences on Counts II and III must be reversed.

Waiver

 The State asserts that even if the Sixth Amendment's right to jury trial might otherwise have affected Borboa's sentences, Borboa waived that right.   It bases its assertion on Borboa's appellate counsel having said, in a brief filed before Blakely came down, that “[t]he trial court orally cited one valid aggravating factor in imposing sentence-the extreme youth of the victim.” ⁴²

Blakely recognizes that a defendant can waive his Sixth Amendment right to have a jury find the facts needed to support his sentence.   It explains:

[N]othing prevents a defendant from waiving his Apprendi rights.   When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.43

 Although a defendant can waive his Sixth Amendment right to jury trial, he or she must do so knowingly, voluntarily, and intelligently.⁴⁴  Borboa was tried by a jury and sentenced before Blakely was decided.   He did not know of or agree to forgo his right to have a jury find the facts needed to support a sentence above the standard range.   Thus, he did not knowingly, voluntarily, or intelligently waive his Sixth Amendment right to have a jury find such facts.⁴⁵

The sentence on Count I is affirmed, but the sentences on Counts II and III are reversed.   The case is remanded for resentencing on Counts II and III.

The panel hereby orders that only the foregoing portion of this opinion, and the dissent which follows, be printed in the Washington Appellate Reports.   The panel also orders that the remainder of this opinion be filed for public record pursuant to RCW 2.06.040.

Having analyzed Borboa's sentences, we return now to his convictions.   After reviewing the facts, we address his claims that the trial court improperly admitted evidence of out-of-court statements, improperly excluded evidence of other suspects, failed to prevent the prosecutor from arguing inappropriately, improperly instructed on an alternative means of kidnap that was not supported by the evidence, improperly defined sexual intercourse, and improperly entered judgment based on insufficient evidence.   He also claims that defense counsel rendered ineffective assistance and that the trial court improperly calculated his offender score.

S.R. and M.V. have three children, S.I., W., and S.M.W. was born on November 26, 1999.   At the times material here, W. referred to her genital area as her “poosha.”

On August 16, 2002, S.R., M.V., and the three children drove to Bagley Park in Vancouver, where they parked and spent the day.   W. was wearing a navy blue sweatshirt, pink pants, and panties decorated with butterflies.

At about 8 p.m. that evening, Borboa was sitting in his parked car near Bagley Park. He was questioned but not detained by an officer.

At about 9 p.m., S.R., M.V., and the three children began returning to their van.   Although it was dusk, S.I. and W. ran on ahead.   When the parents arrived at the van, they could not find W. After searching without success, they called the police.   At about 10:00 p.m., W. appeared at a home about three miles away.   She had no clothes and a cut near her mouth.

That same night, W. was examined by Dr. McDonald, an emergency room physician.   She had swelling on the right side of her face, a cut along the right corner of her mouth, an abrasion on her back, and petechiae 46 around her eyes.   She had been struck on the right side of her face, possibly by a fist.

W. also was seen that night by Dr. Stirling, a pediatrician.   Using a colposcope, he observed an abrasion on W.'s genitalia that led him to believe she had been sexually assaulted.   He later stated:

In order for something to have caused a scrape, a fresh scrape in that area of the vagina, something would have had to have been passed between the labia into the genitals.   In the context of the bruises and other signs of assault that we saw, I think I can state with reasonable medical certainty that those are findings characteristic of a sexual assault.[47]

He further stated:  “In this case, there was some penetration past the labia.   We have a wound.   We know there was some penetration.” 48

At the hospital that same night, Abigail Eden, a Spanish interpreter, observed W.'s interaction with her parents.   W. seemed scared, shocked, and terrified.   While clinging to her father, she told him that a man had covered her eyes, hit her on the face, and taken her to a car.   She told her mother that an “old man” had taken her from their van, covered her mouth and hair, put her in a car, hit her in the stomach, removed her clothes, and touched her “poosha.”

While W. was at the hospital, the police searched the area where W. had been found.   They discovered Borboa's vehicle nearby, parked in the gravel parking lot of a utility substation.   The hood was warm and the driver's window was down.   W.'s pants and panties were on the floor, visible from the outside.   W.'s navy blue sweatshirt was on a path leading to the vehicle.

The State charged Borboa with first degree kidnapping with sexual motivation (Count I), second degree assault of a child (Count II), and first degree rape of a child (Count III).   Borboa moved to dismiss at the end of the State's case, but the trial court denied the motion.   Borboa did not testify or present any evidence.   The jury found Borboa guilty of first degree kidnapping, first degree rape of a child, and second degree assault of a child.   It also found that the kidnapping had been committed with sexual motivation.   At sentencing, the trial court declined to hold that each conviction involved the same criminal conduct, and thus scored each current offense.

I.

Borboa claims that the trial court improperly admitted evidence of out-of-court statements.   The parties agreed before trial that W. was incompetent to testify as a witness.   The State nonetheless moved to admit the statements W. had made to her parents at the hospital.   The trial court granted the motion, based on State v. C.J.49 and RCW 9A.44.120.

Borboa now contends that the trial court erred by admitting the statements W. made to her parents at the hospital, without first finding that she was capable of receiving just impressions of the events that her statements described.   In C.J., however, the Washington Supreme Court seems to have held that a trial court may admit a child's hearsay statement without determining whether the child was competent at the time of that statement.   C.J. requires that we reject this argument.50

II.

Borboa claims that the trial court improperly excluded evidence of other suspects.   During trial, Borboa “elicited testimony from various officers that other potential suspects may have been in the area of Bagley Park at the time [W.] disappeared.” 51  He showed, for example, that a convicted sex offender named Ferguson “generally matched the description of an individual seen near the basketball court by a witness shortly before [W.'s] disappearance.   Other adult males in or near the park were also identified as potential suspects.” 52

The State did not object to this evidence when it was elicited, but it later moved, out of the presence of the jury, “to exclude more questions of that nature.” 53  Defense counsel responded that he “[was] willing to go along with it, although it seems kinda silly since it's already come in anyway.” 54  The court then granted the motion, which involved “an improper area to go into” absent “some additional showing ․ outside the presence of the jury.” 55  No such showing was ever made or attempted, and the record does not show that Borboa had evidence that he was prevented from presenting.

A.

Based on these facts, Borboa claims that the trial court “violated [his] constitutional right to present a defense.” 56  We disagree for at least three reasons.   First, the record does not show that he was barred from presenting any useful evidence.   He never showed that he had any third-party-suspect evidence other than that which he was allowed to introduce, and he never showed on the record that he wanted to argue in any way that he could not.57  Second, even if the trial court barred him from doing something he wanted to do, its order was not erroneous.   His right to admit and argue third-party evidence depended on State v. Downs58 and its progeny, with which he never did comply.   Third, he invited any error when he indicated that he “[was] willing to go along.” 59

B.

Borboa further claims that defense counsel's handling of evidence of other suspects constituted ineffective assistance.   To sustain his claim, he must show (1) deficient performance and (2) resulting prejudice.60  Performance is not deficient if tactical and not prejudicial unless it probably affected the outcome.61

We reject this claim for two reasons.   First, the record does not show deficient performance, for it shows that counsel's performance was probably tactical.   If counsel had resisted the State's motion, the State might have moved for, and the trial court might properly have stricken, under Downs and its progeny, the third-party-suspect evidence already admitted without objection.

Second, the record does not show resulting prejudice, for it shows that counsel's performance did not affect the outcome of the case.   Borboa was entitled to admit and argue his evidence only if he satisfied Downs and its progeny.   He did not do that (nor, as far as this record shows, could he have done that).   He did not lose any right he should have had, whether or not counsel's performance was deficient.

III.

Borboa argues that the prosecutor's closing argument was improper in two respects.   First, he claims that the prosecutor improperly commented on his right to remain silent by “repeatedly referr[ing] to the lack of defense evidence.” 62  Second, he claims that the prosecutor “asked the jury to consider the emotional reaction of witnesses to this ‘horrible’ crime.”  63  Third, he claims that the prosecutor asked “how each juror would feel if the injury [ ] were a ‘disfigurement of your face.’ ” 64  He did not object at trial.

We reject the first claim.   It is not improper for a prosecutor to comment on the absence of contravening evidence,65 and that is all the prosecutor did here.

We also reject the second claim.   A prosecutor's “reference to the heinous nature of a crime” is not always improper.66  The reference here was obvious, passing, and so insignificant that it did not even draw an objection.

We reject the third claim.   Although the prosecutor may not make a “golden rule” argument by asking the jurors to place themselves in the position of the alleged victim,67 the record does not show that the prosecutor did that here.   The passage on which Borboa relies lacks clarity,68 and it seems more likely that the prosecutor was misspeaking rather than making a “golden rule” argument.   And, even if we were to assume that the prosecutor improperly made a “golden rule” argument, it was so brief, unclear, and inconsequential that it was harmless beyond any doubt.

IV.

Borboa claims that the trial court improperly instructed on an alternative means of kidnap that was not supported by the evidence.   The trial court instructed the jury that before it could convict, it had to find that Borboa abducted another person “with intent to facilitate the commission of assault of a child in the second degree or rape of a child in the first degree or attempted rape of a child in the first degree or child molestation in the first degree or attempted child molestation in the first degree or flight thereafter or to inflict bodily injury on the person[,] or to inflict extreme mental distress on that person or [ ] a third person.” 69  Borboa did not object.

Borboa now urges that a conviction will not be affirmed “if the evidence is insufficient to present a jury question as to whether the defendant committed the crime by any one of the means submitted to the jury;” 70  that the jury could not reasonably have inferred that he abducted W. with intent to inflict extreme emotional distress on her or her family;  and thus that the evidence is insufficient to support that alternative means of committing the charged kidnap.   The evidence shows, however, that Borboa abducted W. and took her to a place that she did not know, where he left her outdoors after dark, naked, injured, and subject to both mental and physical suffering.   Based on this evidence, a jury could reasonably have inferred that his intent was to commit a sexual felony, inflict bodily injury, and/or inflict extreme emotional distress.   Hence, we reject this argument.71

V.

Borboa claims that the trial court improperly defined sexual intercourse when it instructed the jury.   In Instructions 22 and 23, the trial court stated:

Sexual intercourse means that the sexual organ of the male entered and penetrated the sexual organ of the female and occurs upon any penetration, however slight or any penetration of the vagina or anus however slight, by an object, including a finger, when committed on one person by another ․ For the purposes of sexual intercourse, vagina means all of the components of the female sexual organ and specifically, the labia minora is part of the definition of vagina.[72]

Borboa did not object.

Noting that State v. Montgomery,73 and State v. Delgado, 74 “appear to support the broader definition used by the trial court,” 75 Borboa now asserts that Instruction 23 “misstate[d] the meaning of sexual intercourse” as defined in RCW 9A.44.010(1)(b).76  He reasons that sexual intercourse requires penetration of the vagina or anus, and that the labia minora are not part of either.   According to Stedman's Medical Dictionary, however, the vagina includes the vulva, which in turn includes the opening of the vagina.77

Borboa also argues that because of the word “specifically,” Instruction 23 “could be read by a reasonable juror to require a finding that penetration ․ occurred,” 78 and thus that it “improperly directed” a verdict on an essential element of rape.79  In our view, however, Instruction 23 did not have that effect.80

VI.

Borboa argues that the evidence is insufficient to support his convictions.   Evidence is sufficient if a rational trier of fact taking it in the light most favorable the State could find each element of the crime charged beyond a reasonable doubt.81

Borboa claims tFNdence does not show penetration.   However, Dr. StirlFNn abrasion on W.'s labia minora, which in his opinion indicated penetration.

Borboa claims that the evidence is insufficient to show that he kidnapped W. The evidence shows that W., age 2, disappeared from Bagley Park. An hour or two later, she was found three miles away, naked and hurt.   Borboa was seen nearby shortly before her disappearance.   His car, with her clothes in it or nearby, was found near where she was found.   He had her blood on his shirt.   Cumulated and taken in the light most favorable to the State, this evidence is sufficient to show kidnap.

Finally, Borboa claims that the evidence was insufficient to show substantial bodily harm within the meaning of RCW 9A.04.110(4)(b).82  Dr. McDonald testified that W. had swelling on the right side of her face, a cut in or around her mouth, and petechiae around her eyes.   He thought she had been struck forcefully on the right side of her face, possibly by a fist.   W.'s mother testified that W.'s injuries had not completely healed, even by the time of trial.   Taken in the light most favorable to the State, this evidence was sufficient to show substantial bodily harm.

VII.

Borboa contends that the defense counsel was ineffective for a number of reasons.   We have dealt with most, and the remainder lack merit.

VIII.

Borboa claims that the trial court erroneously calculated his offender score when it declined to rule that each of his three offenses encompassed the same criminal conduct.   Current offenses shall be counted as one crime if the court enters findings that they “require the same criminal intent, are committed at the same time and place, and involve the same victim.” 83  The record here is either ambiguous or favorable to the State, for it does not show that the kidnap, rape, and assault were committed at the same time and place.   At a minimum then, the trial court had discretion not to find that Borboa's offenses occurred at the same time and place.

The convictions are affirmed, as is the sentence on Count I. The sentences on Counts II and III are reversed and remanded for resentencing in accordance herewith.

I agree with the majority on all points except their holding that Blakely⁸⁴ (1) applies to the unique sentencing scheme for sexual offenders under RCW 9.94A.712;  and (2) requires remand for sentencing on count III, first degree rape of a child.⁸⁵

First degree rape of a child is a class A felony, the statutory maximum for which is life in prison.  RCW 9A.44.073(2);  RCW 9A.20.021(1)(a).  RCW 9.94A.712(3) requires the sentencing court to impose a mandatory life sentence for a sex offender such as Borboa.⁸⁶

I. Discretionary Minimum Term

The statute gives the sentencing court discretion in setting the minimum term, as follows:

Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to ․ a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.

RCW 9.94A.712(3).   The sentencing court determines the applicable minimum term with reference to the sentencing grid in RCW 9.94A.510.

Here, the trial court set Borboa's minimum term above the standard range reflected in the sentencing grid based on the deliberate cruelty of Borboa's act in raping a toddler in a remote place with reduced chance for recontact with her family.   The majority compellingly reasons that (1) in the unique situation of a sexual offender sentenced under RCW 9.94A.712, this elevated, or “exceptional,” mandatory minimum more frequently determines the offender's release from confinement than does the mandatory life term;  and (2) therefore, this minimum equates to the exceptional mandatory maximum reversed in Blakely, which requires a jury, not the court, to find the fact underlying an elevated maximum sentence term.   Nonetheless, I disagree that Blakely and the majority's cited other Supreme Court cases expressly or impliedly require this result.

Moreover, the Blakely Court appears to have rejected the notion that the majority poses here-that its holding applies to setting a minimum term based on aggravating factors.   As the Court noted in Blakely:

The State defends the sentence by drawing an analogy to those we upheld in McMillan v. Pennsylvania[87] and Williams v. New York, [337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)].[88] Neither case is on point.  McMillan involved a sentencing scheme that imposed a statutory minimum if a judge found a particular fact.[89]  We specifically noted that the statute “does not authorize a sentence in excess of that otherwise allowed for [the underlying] offense.”

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2538, 159 L.Ed.2d 403 (2004).

II. Mandatory Maximum Term of Life in Prison

Reiterating my colleagues' quote from Blakely,

[T]he “statutory maximum” for Apprendi90 purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict ․ [i]n other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Blakely, 542 U.S. at ----, 124 S.Ct. at 2537 (emphasis omitted), quoted at page 6 of the majority opinion here.   Under the statutory sentencing scheme at issue here, the relevant “statutory maximum” the trial court not only “may impose,” but must impose, “without any additional findings,” for a person convicted of first degree rape is life in prison.   Unlike the statutory scheme at issue in Blakely, a life sentence for a sex offender under RCW 9.94A.712 does not depend on any additional findings by anyone.   Rather, the maximum life sentence flows directly from the convicted rapist's meeting RCW 9.94A.712 criteria.   Because there is no additional fact for the jury or judge to find, Blakely does not apply.

Blakely, McMillan, and Apprendi hold only that a jury must determine the existence of aggravating facts that increase the statutory maximum, not a minimum sentence, which is at issue here.   I appreciate the majority's reasoning that under the relatively unique statutory sentencing of RCW 9.94A.712, the minimum term will typically have greater effect on the length of time a class A sexual felon spends in prison than will his mandatory life sentence.⁹¹  Nonetheless, in my view Blakely does not extend this far.   The Blakely Court held only:  “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Blakely, 542 U.S. at ----, 124 S.Ct. at 2536, quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (emphasis added).   Here, as noted earlier, we address the setting of a minimum term under RCW 9.94A.712, not a “prescribed statutory maximum” that Blakely addresses.

In my view, the injustice Blakely and Apprendi seek to remedy relates expressly to increased maximum, not minimum, sentences predicated on additional facts beyond the convicted offense:

Those who would reject Apprendi[92] are resigned to one of two alternatives.   The first is that the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors-no matter how much they may increase the punishment-may be found by the judge.   This would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it-or of making an illegal lane change while fleeing the death scene.   Not even Apprendi's critics would advocate this absurd result ․ The jury could not function as circuitbreaker in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.

Blakely, 542 U.S. at ----, 124 S.Ct. at 2539 (citation omitted).   But such is not the case here.

Unlike the potentially abusive situation the Supreme Court describes above, the trial court's imposition of an increased minimum sentence for Borboa, already mandatorily sentenced to a maximum term of life imprisonment, does not subject him to a sentence for a harsher crime than that for which the jury convicted him in Count III, first degree rape of a child.   There is no fact other than the underlying conviction itself that triggers the maximum statutory life sentence;  nor is there any factor for the jury or judge to find that could increase his mandatory life sentence.

III. Conclusion

Although I find the majority's analysis to be a plausible extension of Blakely, I do not believe that Blakely compels this result.   Nor do I believe it prudent to extend Blakely to the unique sentencing scheme for class A sexual offenses for which our Legislature has mandated a life sentence under RCW 9.94A.712. Washington's sentencing scheme for this type of serious sexual offense resurrects the parole board, now called the Indeterminate Sentencing Review Board.   The only way a defendant can avoid an actual life sentence for this class of offenses is by having the Board find him unlikely to reoffend if released from prison into the community under supervision.  RCW 9.95.420.   Even then, if he reoffends or fails to follow the conditions of his release, the Board can return him to prison to reinstate his life sentence or to continue serving it in two-year increments.  RCW 9.95.440.

In my view, we should confine Blakely to its holding, especially when read together with Apprendi and McMillan.   We should not extrapolate to apply Blakely to minimum sentences that may be increased based on aggravating factors.   I would hold that Blakely has no effect on such minimum terms under RCW 9.94A.712, where life in prison is the fixed statutory maximum.   I would affirm the sentence on Count III.

FOOTNOTES

1.   530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

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

3.   RCW 9.94A.712(1) provides:(1) An offender who is not a persistent offender shall be sentenced under this section if the offender:(a) Is convicted of:(i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion;(ii) Any of the following offenses with a finding of sexual motivation:  Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree;  or(iii) An attempt to commit any crime listed in this subsection (1)(a);  committed on or after September 1, 2001;  or(b) Has a prior conviction for an offense listed in RCW 9.94A.030(32)(b), and is convicted of any sex offense which was committed after September 1, 2001.

4.   RCW 9.94A.712(3) provides:(3) Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.

5.   RCW 9.94A.535;  State v. Gore, 143 Wash.2d 288, 315-16, 21 P.3d 262 (2001);  see Blakely, 542 U.S. at ---- - ----, 124 S.Ct. at 2537-38.

6.   RCW 9.94A.535(2)(f).

7.   RCW 9.95.420(3)(a).

8.   RCW 9.95.435(1).

9.   See RCW 9A.20.010-.020.

10.   See RCW 9.94A.510.

11.   See RCW 9.94A.712(3);  RCW 9.94A.535.

12.   Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

13.   Apprendi, 530 U.S. at 470, 120 S.Ct. 2348.

14.   Apprendi, 530 U.S. at 468-69, 120 S.Ct. 2348.

15.   Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (quoting Jones v. U.S., 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (opinion of Stevens, J.)).

16.   Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

17.   See RCW 9.94A.120 (now recodified as RCW 9.94A.505).

18.   Blakely, 542 U.S. at ----, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348).

19.   See RCW 9.94A.120;  RCW 9.94A.310-.320  (now recodified as RCW 9.94A.505-.525).

20.   See RCW 9A.20.020;  RCW 9A.40.030.

21.   Blakely, 542 U.S. at ----, 124 S.Ct. at 2537 (emphasis omitted).

22.   E.g., United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (Fifth and Sixth Amendments “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt”).   See also Apprendi, 530 U.S. at 477, 120 S.Ct. 2348 (due process and the right to a speedy and public trial by an impartial jury “indisputably entitle a criminal defendant to a jury determination that [he] is guilty of every element of the crime with which he is charged”) (quotation omitted).

23.   E.g., State v. Gore, 143 Wash.2d at 315-16, 21 P.3d 262;  State v. Nordby, 106 Wash.2d 514, 519, 723 P.2d 1117 (1986).

24.   Supplemental Br. of Resp't at 2 (emphasis omitted).

25.   Blakely, 542 U.S. at ----, 124 S.Ct. at 2537 (“ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict”) (emphasis omitted).

26.   477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

27.   536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002).

28.   See 18 Pa. Cons.Stat. § 1103 (1982).

29.   42 Pa. Cons.Stat. § 9712(a) (1982).

30.   McMillan, 477 U.S. at 87-88, 106 S.Ct. 2411.

31.   See 18 U.S.C. § 924(c)(1)(A)(ii).

32.   Harris, 536 U.S. at 550, 122 S.Ct. 2406.

33.   Harris, 536 U.S. at 557, 122 S.Ct. 2406.

34.   Jones, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311.

35.   Harris, 536 U.S. at 566-67, 122 S.Ct. 2406 (citations omitted).

36.   Harris, 536 U.S. at 573, 122 S.Ct. 2406.

37.   Harris, 536 U.S. at 572, 122 S.Ct. 2406.

38.   Harris, 536 U.S. at 569, 122 S.Ct. 2406.

39.   Harris, 536 U.S. at 569-70, 122 S.Ct. 2406.

40.   RCW 9.94A.535(2)(f);  RCW 9.94A.835(2).

41.   RCW 9.94A.712(1).

42.   Br. of Appellant at 45.

43.   Blakely, 542 U.S. at ----, 124 S.Ct. at 2541.

44.   State v. Forza, 70 Wash.2d 69, 71, 422 P.2d 475 (1966);  State v. Bugai, 30 Wash.App. 156, 157, 632 P.2d 917, review denied, 96 Wash.2d 1023 (1981);  State v. Whitley, 682 N.W.2d 691, 696 (Minn.Ct.App.2004) (defendant did not knowingly, voluntarily, and intelligently waive right to jury under Blakely );  see also CrR 4.2(d);  CrR 4.2(g)(5)(a);  CrR 6.1(a).

45.   See State v. Cody, 272 Kan. 564, 35 P.3d 800, 802 (2001);  Whitley, 682 N.W.2d at 696.

46.   According to Dr. McDonald, “petechiae” are small blood spots around the eyes.   They can be caused by a number of things, from significant trauma to increased forceful pressure on the torso.

47.   5-B Report of Proceedings (RP) at 522.

48.   5-B RP at 532.

49.   148 Wash.2d 672, 63 P.3d 765 (2003).

50.   C.J. disapproved State v. Karpenski, 94 Wash.App. 80, 99-101, 971 P.2d 553 (1999).

51.   Br. of Appellant at 10.

52.   Br. of Appellant at 11.

53.   5-A RP at 359.

54.   5-A RP at 360.

55.   5-A RP at 362.

56.   Br. of Appellant at 20 (emphasis deleted).

57.   See ER 103(a)(2) (requiring offer of proof).

58.   State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932).

59.   5-A RP at 360;  See, e.g., State v. Henderson, 114 Wash.2d 867, 870, 792 P.2d 514 (1990).

60.   State v. McFarland, 127 Wash.2d 322, 334-35, 2, 334-35, 899 P.2d 1251 (1995).

61.   McFarland, 127 Wash.2d at 336-37, 899 P.2d 1251.

62.   Br. of Appellant at 12.

63.   Br. of Appellant at 13.

64.   Br. of Appellant at 13.

65.   State v. Pavelich, 150 Wash. 411, 420, 273 P. 20, 273 P. 182 (1928) ( “within reasonable bounds, in arguing the case to the jury the prosecutor has the right to comment upon all the evidence or lack of it, provided he does not go too far, and invade the constitutional rights of the accused, where the accused chooses not to testify, by directly referring thereto”).

66.   State v. Claflin, 38 Wash.App. 847, 849-50, 690 P.2d 1186 (1984), review denied, 103 Wash.2d 1014 (1985);  State v. Fleetwood, 75 Wash.2d 80, 84, 448 P.2d 502 (1968);  State v. Buttry, 199 Wash. 228, 251, 90 P.2d 1026 (1939).

67.   Adkins v. Aluminum Co. of America, 110 Wash.2d 128, 139, 750 P.2d 1257 (1988).

68.   See 8 RP at 1054.

69.   Clerk's Papers (CP) at 44.

70.   State v. Ortega-Martinez, 124 Wash.2d 702, 708, 881 P.2d 231 (1994) (emphasis omitted).

71.   The discussion in this section disposes of Borboa's argument that his trial counsel rendered ineffective assistance by not objecting to this instruction.

72.   CP at 58-59 (emphasis added).

73.   95 Wash.App. 192, 974 P.2d 904, review denied, 139 Wash.2d 1006, 989 P.2d 1139 (1999).

74.   109 Wash.App. 61, 33 P.3d 753, reversed in part, 148 Wash.2d 723, 63 P.3d 792 (2003).

75.   Br. of Appellant at 33.

76.   Br. of Appellant at 32.

77.   Stedman's Medical Dictionary, at 1901, 1954 (26th ed.1995);  see also Delgado, 109 Wash.App. at 66, 33 P.3d 753 (“the labia minora are part of the statutory definition of vagina”) (citation omitted);  Montgomery, 95 Wash.App. at 200, 974 P.2d 904 (“vagina means all of the components of the female sexual organ and not just the passage leading from the opening of the vulva to the cervix of the uterus”) (citation omitted);  State v. Bishop, 63 Wash.App. 15, 19, 816 P.2d 738, review denied, 118 Wash.2d 1015, 827 P.2d 1011 (1992) (“the State must prove that the defendant penetrated, at a minimum, the lips of the victim's sexual organs”) (citing State v. Snyder, 199 Wash. 298, 300, 91 P.2d 570 (1939)).

78.   Br. of Appellant at 31.

79.   Br. of Appellant at 30 (emphasis deleted).

80.   The discussion in this section disposes of Borboa's argument that defense counsel rendered ineffective assistance by not objecting to this instruction.

81.   State v. Bencivenga, 137 Wash.2d 703, 706, 974 P.2d 832 (1999).

82.   RCW 9A.04.110(4)(b) provides that “substantial bodily harm” is “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.”

83.   RCW 9.94A.589(1)(a).

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

85.   I disagree with the majority that Blakely applies to class A sexual felonies under RCW 9.94A.712. Nonetheless, I concur in the majority's affirmance of the trial court's exceptional minimum sentence on Count I, first degree kidnapping, based on the jury's finding of the statutory aggravating factor, sexual motivation.   Therefore, I respectfully dissent as to Count III, first degree rape of a child, only.

86.   “Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense.”  RCW 9.94A.712(3).

87.   477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

88.   337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

89.   McMillan, 477 U.S. at 81, 106 S.Ct. 2411, 91 L.Ed.2d 67.

90.   Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

91.   The minimum term that the trial court sets at the time of sentencing affects only the potential earliest time that the defendant can be released.   Although for any prisoner, this first-opportunity for release may have more meaning than the life sentence imposed, nonetheless, neither the trial court nor the jury have any control over the mandatory life sentence once the defendant is convicted of the class A sexual felony under RCW 9.9A.712.

92.   Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

MORGAN, A.C.J.