STATE v. HAAPALA (2007)

PART PUBLISHED OPINION

 ¶ 1 Gregory Bernhart Haapala appeals his convictions for possessing methamphetamine and intimidating a witness, arguing that police officers could not enter and search the common areas of the house and the room where Haapala was sleeping without his permission as a cohabitant of the residence.   He contends that without the evidence the officers saw in his room, they lacked probable cause for the search warrant they obtained after their initial entry into the house, and that, in any event, the warrant was overbroad.   Haapala also argues that the trial court should have inquired into a conflict of interest between him and his trial counsel and that his counsel should have withdrawn as his attorney.   He further contends that the trial court's “reasonable doubt” instruction misstated the State's burden of proof.   Finally, Haapala argues that the trial court erred in calculating his offender score when it included a 1992 conviction that should have washed out.   We agree with Haapala that the trial court miscalculated his offender score.   Otherwise, we find no reversible error.   We affirm Haapala's convictions but remand for the trial court to resentence him.

FACTS

¶ 2 Elizabeth “BJ” Cornett lived across the street from the house that Don Craig rented.   After noticing increased traffic on the street, Cornett listed 29 vehicles that stopped at Craig's residence over two days.   Cornett gave the list to the police.

¶ 3 In response, Detective Miller and Sergeant Stringer visited the house to talk with Craig to ask permission to search the residence for drug-related activity.   When Detective Miller and Sergeant Stringer arrived, Craig was in the driveway preparing to tow a car.   Craig gave the officers permission to search the house, explaining that he did not know everyone inside but that they were all guests and not necessarily living there.

 ¶ 4 Craig led the officers to a basement bedroom where a man and woman were sleeping.   When Detective Miller entered the bedroom, he saw a glass methamphetamine pipe on the dresser.   The man and woman said they knew nothing about the pipe and that it was not theirs.   But when Detective Miller turned his back to them, the woman jumped out of bed, grabbed the pipe, and tried to break it by throwing it into a garbage can.   At that point, the officers decided to apply for a search warrant for the residence and began clearing everybody out of the house.

¶ 5 Detective Miller and Craig went upstairs to wake up Greg Haapala and to tell him to leave the house.   Detective Miller entered the room and saw a marijuana smoking device.   The detective woke Haapala and told him to get dressed and leave the house.   When Haapala got up to go to the bathroom, Detective Miller followed him.   In the bathroom, he saw two methamphetamine pipes and a small plastic scale, which, according to Detective Miller, drug dealers commonly use to weigh drugs.

¶ 6 After clearing everyone out of the house, Detective Miller called a magistrate to request a warrant to search the residence.   Detective Miller outlined his training and experience and explained the factual basis for the warrant, specifically the high traffic volume, the methamphetamine pipe in the downstairs bedroom, the marijuana pipe in Haapala's bedroom, and the two methamphetamine pipes and the scale in the bathroom.   Detective Miller also stated that several people in the house had criminal histories involving drug activity.   Finding probable cause, the magistrate issued the search warrant.

¶ 7 While executing the search warrant, police discovered methamphetamine in Haapala's room and approximately 200 grams of marijuana in the attic above Haapala's room.   The State charged Haapala with unlawful possession of methamphetamine and felony possession of marijuana.

¶ 8 Before trial, Haapala threatened to harm Craig if he did not take the blame for the drugs.   Haapala told Craig to call Haapala's attorney and explain that due to the large  volume of people coming in and out of the house, the drugs could have belonged to anyone.   Craig made the phone call, but he did not tell Haapala's attorney that Haapala had threatened him.   After learning that Haapala had threatened Craig, the State filed an amended information, adding one count of intimidating a witness.

¶ 9 The jury convicted Haapala of unlawful possession of methamphetamine and intimidating a witness but acquitted him of unlawful possession of marijuana.

ANALYSIS

I. Consent to a Search

¶ 10 Haapala argues that as a cohabitant he had at least equal authority as Craig over the home's common areas and, therefore, the police could not enter and search without his consent.

 ¶ 11 Article I, section 7 of the Washington Constitution forbids warrantless searches unless the search falls within one of the narrowly drawn exceptions to the warrant requirement.  State v. Evans, 159 Wash.2d 402, 407, 150 P.3d 105 (2007) (citing State v. Chrisman, 100 Wash.2d 814, 817, 676 P.2d 419 (1984)).   The State bears the burden of establishing a warrantless search's validity.  Evans, 159 Wash.2d at 407, 150 P.3d 105 (citing State v. Hendrickson, 129 Wash.2d 61, 71-72, 917 P.2d 563 (1996)).   Consent to a search that police lawfully obtain from a person with authority to give such consent is one exception to the warrant requirement.  State v. Morse, 156 Wash.2d 1, 8, 123 P.3d 832 (2005).

1. Craig's Consent to Search the Residence

¶ 12 Haapala argues that Craig vacated the residence before the search and that he “ceded the property” to Haapala before the search.   Br. of Appellant at 20.   Thus, according to Haapala, Craig lacked authority to consent to a search of the residence.

 ¶ 13 Consent to search a premises is valid, under the common authority rule, where (1) the consenting party has  the legal authority to permit the search, and (2) it is reasonable for a court to find that the defendant has assumed the risk that a cohabitant might permit a search.   Morse, 156 Wash.2d at 10, 123 P.3d 832 (citing State v. Mathe, 102 Wash.2d 537, 543-44, 688 P.2d 859 (1984)).   A person with a sufficient amount of control may have common authority over the premises.   See Morse, 156 Wash.2d at 10, 123 P.3d 832 (citing State v. Leach, 113 Wash.2d 735, 739, 782 P.2d 1035 (1989)).   But if two cohabitants with equal authority over common areas are present, the police must obtain consent from each cohabitant.   Morse, 156 Wash.2d at 13, 123 P.3d 832.

 ¶ 14 The critical inquiry is whether the person with common authority has free access to the searched area and has the authority to invite others into that area.  Morse, 156 Wash.2d at 10-11, 123 P.3d 832.  “A person may have free access to some areas of the premises but not all areas.”  Morse, 156 Wash.2d at 11, 123 P.3d 832.   For example, a person may share control and access to the kitchen, the dining room, the living room, and the bathroom, but not other, private areas such as the person's bedroom.  Morse, 156 Wash.2d at 11, 123 P.3d 832.

 ¶ 15 According to Lynda Spindor, the landlord, Craig was the only signatory on the lease, but several additional tenants lived in the house to share the rent obligation.   Haapala moved into the upstairs bedroom on January 1 or 2, 2005, when Craig was moving out of that bedroom.   Haapala asked Spindor to extend the lease with him as the tenant, but she refused.   Due to complaints from neighbors, on January 15, 2005, Spindor served Craig with an eviction notice that gave Craig three days to vacate the premises.   Police searched the house on January 19, 2005.

¶ 16 The trial court found that although Craig was being evicted, he was the only person on the lease and he “still had furniture and other possessions in the house and his car was visible outside of the house.”   Clerk's Papers (CP) at 74.   From that finding, it concluded that “Craig, as the person who rented the home, ․ had the authority to consent to the [initial] search.”   CP at 77.   The record shows that Craig retained sufficient access and control over the  residence to consent to a search of the common areas, including the downstairs bedroom.   See Morse, 156 Wash.2d at 10-11, 123 P.3d 832.

¶ 17 When Detective Miller arrived, Craig was in the front yard preparing to tow a car.   Craig told Detective Miller that although “there was an eviction in ․ progress, ․ [Craig] was still in control of the house” and that everyone in the house was a guest.   Report of Proceedings (RP) at 81.   Craig was at the house four days earlier when Spindor served him with the eviction notice.   Although Craig began moving out on January 1 or 2, he still had furniture in the house and his car was in front of the house.   Given this free access and control over certain areas in the house, Craig had authority to consent to a search of those areas.   See Morse, 156 Wash.2d at 10-11, 123 P.3d 832 (the critical inquiry is whether the person with common authority has free access to the searched area and has authority to invite others into that area).

¶ 18 The dissent states that Craig did not have authority to consent to a search of the house because Craig-as a holdover tenant subject to an unlawful detainer action-was unlawfully in possession of the premises.   But the fact that Craig was an unlawful detainer ¹ does not automatically strip him of the ability to consent to a search of a house he possessed and used.   See United States v. Dubrofsky, 581 F.2d 208, 212 (9th Cir.1978) (authority justifying consent to search need only rest on mutual use of the property) (citing United States v. Gulma, 563 F.2d 386, 389 (9th Cir.1977)).   Spindor still needed to file an unlawful detainer action and obtain a court's order to force Craig to vacate the premises.  RCW 59.12.040-.080. And Spindor could not have taken possession of the house during the unlawful detainer action's pendency unless she received a writ of restitution from the court.   RCW 59.12.090.   Even  then, Craig could have filed a bond with the court to stay enforcement of the writ of restitution and to retain possession of the premises until the unlawful detainer action concluded.  RCW 59.12.100.   Thus, Craig, as a user and possessor of the house, would have had the authority to consent to a search of the common areas until the court ordered him to vacate the premises.

 ¶ 19 The question remains whether Haapala established that he was a cohabitant with equal rights to control over common areas.   If so, the police could enter and search the house common areas only with both Haapala's and Craig's permission.   See Morse, 156 Wash.2d at 13, 123 P.3d 832.   Courts have found cohabitants with equal rights to control where a boyfriend lives with his girlfriend in a house she leased, State v. Hoggatt, 108 Wash.App. 257, 269, 30 P.3d 488 (2001), where a husband and wife live on the premises, State v. Walker, 136 Wash.2d 678, 686, 965 P.2d 1079 (1998) (wife's consent not effective as waiver of present husband's right to be free from invasion of privacy), and where an employer held his girlfriend out to be a co-signatory of the lease and a co-owner of the searched premises, State v. Leach, 113 Wash.2d 735, 782 P.2d 1035 (1989).   Haapala does not fit within any of these categories.

¶ 20 Haapala is more akin to the defendant in State v. Thompson, 151 Wash.2d 793, 92 P.3d 228 (2004).   In Thompson, our Supreme Court held that the defendant was not a co-occupant with equal rights of control over a boathouse on his parents' property even though he lived on his parents' property and used the boathouse to store items.  Thompson, 151 Wash.2d at 806, 92 P.3d 228.   In that case, the defendant lived rent-free on his parents' property in a trailer that his parents owned.  Thompson, 151 Wash.2d at 806, 92 P.3d 228.   Although the defendant's parents allowed him to store items in their boathouse, they did not make boathouse available to the defendant for his exclusive use.  Thompson, 151 Wash.2d at 806, 92 P.3d 228.   And nothing in the record showed that the defendant was ever in exclusive control of the boathouse.  Thompson, 151 Wash.2d at 806-07, 92 P.3d 228.   Rather, the defendant's use of the  boathouse “was clearly dependent upon the permission of the owners.”  Thompson, 151 Wash.2d at 806, 92 P.3d 228.   Thus, our Supreme Court held that the defendant was not a co-occupant with equal access and control because, “while [the defendant] and his parents each had access to the boathouse, his right to access, as a nonoccupying nonowner, was subordinate to his parents['].”  Thompson, 151 Wash.2d at 806, 92 P.3d 228.

¶ 21 Unlike the defendant in Thompson, Haapala occupied the searched area.   Nonetheless, Haapala had no right to occupy and access the house.   Haapala moved to the home in early January.   He knew that Craig was being evicted and asked the landlord to lease the premises to him.   The landlord refused.   Thus, at the time of the search, Craig was the only named tenant on the lease and the only person who had the landlord's permission to reside at the premises.   Craig described Haapala and the others in the house as “guests,” not co-tenants.   Haapala presented no evidence to the contrary, and although he now argues that he was a sublessee, the record does not support the claim.   Craig did not testify that Haapala was paying him rent or that they had any agreement that Haapala was a sub-tenant.   We conclude that Haapala was not a cohabitant with equal rights of control over the common areas.

¶ 22 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

2. Consent to Enter Haapala's Bedroom

¶ 23 Haapala argues that the record shows that he had sole control over his bedroom because he moved into the upstairs bedroom on January 1 or 2, 2005, when Craig starting moving out and because police found him sleeping in the room.   Accordingly, Haapala maintains that Craig could not consent to a search of the upstairs bedroom.

¶ 24 A search warrant that contains illegally obtained information is still valid if it contains legally obtained facts sufficient to establish probable cause.  State v. Maxwell, 114 Wash.2d 761, 769, 791 P.2d 223 (1990) (citing State v. Coates, 107 Wash.2d 882, 888, 735 P.2d 64 (1987)).   Assuming, without deciding, that Craig did not have common authority to consent to a search of Haapala's bedroom and that Detective Miller's affidavit contained illegally obtained information, the warrant is still valid if it contained independent facts sufficient to establish probable cause.

¶ 25 To establish that a warrant is not wholly flawed by illegally obtained facts, the State must show that officers would have sought the warrant in the absence of the unlawfully obtained evidence.  State v. Spring, 128 Wash.App. 398, 405, 115 P.3d 1052 (2005), review denied, 156 Wash.2d 1032, 134 P.3d 232 (2006).   The trial court found that once the woman in the downstairs bedroom attempted to break the methamphetamine pipe, the officers decided to clear out the house and obtain a search warrant to search the house.   It also found that Detective Miller's sole purpose in entering Haapala's bedroom was to clear the house so the officers could execute a search warrant.   Those unchallenged findings are verities on appeal.  State v. Brockob, 159 Wash.2d 311, 343, 150 P.3d 59 (2006) (citing State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994)).   The question remains whether the information the officers gathered before they entered Haapala's bedroom was sufficient to show probable cause.

II. Validity of the Search Warrant

1. Probable Cause

¶ 26 In addition to his claim that the officers illegally obtained the information regarding items in his bedroom, Haapala argues that the affidavit consists of conclusory predictions and blanket inferences that do not establish probable cause.

¶ 27 We review an issuing magistrate's probable cause determination for an abuse of discretion, giving great deference to the magistrate's decision and resolving all doubts in favor of the warrant's validity.  State v. Maddox, 152 Wash.2d 499, 509, 98 P.3d 1199 (2004) (citing State v. Clark, 143 Wash.2d 731, 748, 24 P.3d 1006 (2001) and State v. Kalakosky, 121 Wash.2d 525, 531, 852 P.2d 1064 (1993)).   Probable cause exists where an affiant sets forth sufficient facts from which a reasonable person could find a probability that the defendant is involved in criminal activity and that the evidence of criminal activity can be found at the place to be searched.  Maddox, 152 Wash.2d at 509, 98 P.3d 1199 (citing State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999)).

¶ 28 An officer's generalized statements in an affidavit, standing alone, cannot establish probable cause.  Thein, 138 Wash.2d at 148, 977 P.2d 582.   Instead, the police must report facts from which a magistrate can conclude that police will likely find evidence of illegal activity at the place to be searched.  Thein, 138 Wash.2d at 147, 977 P.2d 582 (citing State v. Smith, 93 Wash.2d 329, 352, 610 P.2d 869 (1980)).

¶ 29 In Thein, the court held the affidavit inadequate because it consisted of generalized statements about the affiant's experience and drug traffickers' common practices, not specific facts about the suspected drug dealer or the place to be searched.  Thein, 138 Wash.2d at 138-39, 148, 977 P.2d 582.   But here, Detective Miller described his training and experience with respect to drug-related crimes, and he then reported the neighbor's listing of 29 vehicles that stopped at Haapala's residence over two-and-a-half days-a traffic volume consistent with the sale of illicit drugs.   Detective Miller described his visit to the house and Craig's consent to a search.2  He told the magistrate that he followed Craig into a bedroom downstairs, where he saw a glass methamphetamine pipe.   He reported the woman's attempt to destroy the pipe.   Finally, Detective Miller told the magistrate that several of the occupants had drug-related criminal histories.   Detective Miller stated that, at that point, he told the other officer that they needed to clear everyone out of the house and that he would apply for a search warrant.

¶ 30 Unlike the affidavit in Thein, Miller's oral affidavit, excluding the evidence he found in Haapala's room, provided a sufficient factual basis for the magistrate to conclude that police would likely find evidence of illegal activity at the residence.   See Thein, 138 Wash.2d at 138-39, 148, 977 P.2d 582.   The trial court did not abuse its discretion in ordering the search warrant.

¶ 31 Still, Haapala contends that Detective Miller's oral affidavit contained no facts to support the conclusion that “books,” “papers,” “documents,” or “records” found in the residence would have evidentiary value.   Reply Br. of Appellant at 2.

¶ 32 In addition to a nexus between the criminal activity and the place to be searched, probable cause requires a nexus between the criminal activity and the item to be seized.  Thein, 138 Wash.2d at 140, 977 P.2d 582 (quoting State v. Goble, 88 Wash.App. 503, 509, 945 P.2d 263 (1997)).

¶ 33 In his oral affidavit, Detective Miller told the magistrate that based on his training and experience, people who sell methamphetamine “more often than not maintain address and or telephone numbers in books or papers or in computers that reflect names, addresses and or telephone numbers for ․ drug customers.” CP at 61.   He explained that drug sellers “commonly secrete [sic] ․ the proceeds of drugs sales, and records of drug transactions in secure locations.”   CP at 61.

¶ 34 Haapala's argument is without merit.   Detective Miller testified to sufficient facts to lead the magistrate to believe that someone was selling drugs out of Craig's residence.   And based on his training and experience, Miller knew that drug sellers commonly maintained information related to that enterprise in books, papers, or in computers and often kept records of drug transactions in secure locations, such as their residence.   Probable cause existed for the magistrate to issue a warrant for any books, papers, records, or documents related to the distribution of controlled substances.

2. Overbroad Warrant

¶ 35 Haapala argues that the portion of the search warrant ordering the police to search “[a]ny books, papers, documents, [or] records” was overbroad.

¶ 36 A warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search.  State v. Maddox, 116 Wash.App. 796, 805, 67 P.3d 1135 (2003) (citing United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986)).   And probable cause requires a nexus between the criminal activity and the item to be seized.  Thein, 138 Wash.2d at 140, 977 P.2d 582 (quoting Goble, 88 Wash.App. at 509, 945 P.2d 263).   While the degree of particularity required depends on the nature of the materials sought and the facts of each case, we evaluate search warrants in a common sense, practical manner and not in a hypertechnical sense.  State v. Perrone, 119 Wash.2d 538, 549, 834 P.2d 611 (1992) (citing United States v. Turner, 770 F.2d 1508, 1510 (9th Cir.1985)).

¶ 37 The warrant language that Haapala complains of allowed the officers to search for:  “Any books, papers, documents, records, computer disks, invoices, receipts, records of real-estate transactions, records reflecting ownership of motor vehicles and boats, bank statements and related records.”   CP at 65.   Unlike the warrant language authorizing the search for books and records, nothing in Detective Miller's affidavit connects these items to the suspected criminal activity.   Thus, there is no nexus between the suspected criminal activity and “[a]ny books, papers, documents, [or] records” at Craig's residence.   Accordingly, that portion of the warrant is unconstitutionally overbroad.

¶ 38 But if valid parts of the warrant support the items seized, we can disregard the invalid parts rather than suppressing all the evidence.   See Perrone, 119 Wash.2d at 556, 834 P.2d 611 (quoting United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir.1983)).   The jury convicted Haapala of possessing methamphetamine.   And the warrant language relevant to that conviction authorizes a search for all “controlled substances” and

[d]rug paraphernalia, including, all equipment ․ products, and materials ․ intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise ingested into a human body a controlled substance, including, but not limited to, bags, materials for packaging, cutting, weighing, and injecting controlled substances, [and] any materials used in the manufacture[ ] of a controlled substance, such as glass wear, chemicals, and heating devices, and any items describes [sic] as paraphernalia under RCW 69.50.102.

CP at 65.

¶ 39 As we have discussed, the officers had probable cause to search for methamphetamine.   See Maddox, 116 Wash.App. at 807, 67 P.3d 1135 (severability applies only if the warrant includes one or more particularly described items for which probable cause exists).   And given that police were looking for evidence of drug activity, the above warrant language was significant when compared to the warrant as a whole.   See Perrone, 119 Wash.2d at 557, 834 P.2d 611 (severance unavailable when the warrant's valid portion is a relatively insignificant port of an otherwise invalid search) (quoting In re Grand Jury Subpoenas Dated December 10, 926 F.2d 847, 858 (9th Cir.1991)).   Finally, the officers did not discover the drug evidence during a general search, in flagrant disregard of the warrant's scope;  rather, they discovered the drug evidence while executing valid parts of the warrant.   See Maddox, 116 Wash.App. at 808, 67 P.3d 1135 (severability requires that the officers found the items while executing the warrant's valid part and that the officers did not conduct a general search in which they flagrantly disregarded the warrant's scope).   Thus, the overbroad language in the warrant does not require us to suppress the drug evidence obtained under the valid warrant language.

III. Defense Counsel's Conflict of Interest

¶ 40 Haapala argues that the trial court should have asked about defense counsel's potential conflict of interest and its failure to do so requires a new trial, citing State v. McDonald, 143 Wash.2d 506, 22 P.3d 791 (2001).

¶ 41 Before trial, Haapala told Craig to call his attorney and tell him that the drugs did not belong to Haapala.   Haapala threatened to hurt Craig if he did not make the call.   Craig then called Haapala's attorney and told him that because so many people came in and out of the house, the drugs could have been anybody's.   When the State learned about Haapala's threat, it amended the complaint to add a witness intimidation charge.

¶ 42 When a trial court knows or should know of a conflict of interest between the defendant and counsel, it must inquire into the nature and extent of the conflict.  McDonald, 143 Wash.2d at 513, 22 P.3d 791.   But here, no conflict of interest existed because when Craig called Haapala's attorney, he did not tell the attorney that Haapala had threatened him before the call.   Craig merely told Haapala's attorney that the drugs police found could have belonged to anyone.   Because of this, Haapala's attorney had no reason to alert the trial court to a possible conflict of interest.   Still, if Haapala or Craig denied that Craig made the call, Haapala's attorney could be a witness to that part of the crime.   Nothing in the record suggests that either Haapala or Craig denied that Craig made the call.   Thus, Haapala's attorney had no reason to believe that he was a potential witness and, again, no reason to raise the potential conflict of interest with the trial court.   Haapala's conflict of interest argument lacks merit.

IV. Ineffective Assistance of Counsel

¶ 43 Haapala also faults his trial counsel for mishandling the conflict of interest issue.   He argues, “[D]efense counsel['s] ․ behavior seems to have been influenced by the conflict.”   Br. of Appellant at 26.   Haapala maintains that because nobody testified that Haapala mentioned the alleged threat when Craig called Haapala's attorney, the “jury was ․ left to speculate that Craig did mention the threat and that [Haapala's attorney] was withholding the information.”   Br. of Appellant at 26.

¶ 44 To prevail in his ineffective assistance claim, Haapala must show both deficient performance and resulting prejudice. State v. McNeal, 145 Wash.2d 352, 362, 37 P.3d 280 (2002) (citing State v. Rosborough, 62 Wash.App. 341, 348, 814 P.2d 679 (1991)).   To establish deficient performance, a defendant must show that his attorney's performance fell below an objective standard of reasonableness.  McNeal, 145 Wash.2d at 362, 37 P.3d 280 (citing Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).   To establish prejudice, a defendant must demonstrate that, but for the deficient representation, the trial outcome would have differed.   McNeal, 145 Wash.2d at 362, 37 P.3d 280 (citing State v. Early, 70 Wash.App. 452, 460, 853 P.2d 964 (1993)).

¶ 45 Haapala's argument that defense counsel's behavior “seems to have been influenced by the conflict” fails.   As we have discussed, nothing in the record shows that Craig mentioned Haapala's threat to Haapala's attorney.   We cannot find either deficient representation or prejudice from Haapala's mere suggestion that his attorney may have withheld information.   Haapala's ineffective assistance argument fails.

V. “Reasonable Doubt” Instruction

¶ 46 Haapala argues that the “reasonable doubt” instruction did not properly instruct the jury on the State's burden of proof.

¶ 47 The reasonable doubt instruction, in relevant part, reads:

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence.   Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt.   There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.   If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty.   If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

CP at 84.

¶ 48 Haapala argues that the instruction required the jury to acquit only if it found “a real possibility” that he was not guilty and that the “real possibility” standard is tantamount to the “substantial doubt” standard that the United States Supreme Court rejected in Cage v. Louisiana, 498 U.S. 39, 40-41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).   Br. of Appellant at 28.   Haapala also argues that the error in using the “real possibility” language “was compounded by inclu[ding] ․ the following language:  ‘There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.’ ”   Br. of Appellant at 29.

¶ 49 Haapala did not object to this instruction below.   But because a trial court's failure to give a clear instruction on reasonable doubt is constitutional error, we may address the argument for the first time on appeal.  RAP 2.5(a);  see State v. McHenry, 88 Wash.2d 211, 214, 558 P.2d 188 (1977).

¶ 50 The reasonable doubt instruction in this case is, for all relevant purposes, identical to the reasonable doubt instruction that we approved in State v. Bennett, 131 Wash.App. 319, 326-28, 126 P.3d 836, review granted, 158 Wash.2d 1010, 145 P.3d 1214 (2006).   And, we have already considered and rejected the argument that the “real possibility” language caused the same prejudice as the “substantial possibility” language in Cage. Bennett, 131 Wash.App. at 328, 126 P.3d 836.

VI. Calculation of Haapala's Offender Score

¶ 51 Haapala argues that the trial court erred in calculating his offender score.   Specifically, he argues that because the trial court found that his criminal history consisted of one prior felony, and because that prior felony had washed out, the trial court should have used an offender score of one, rather than two, to sentence him.

¶ 52 At sentencing, the State claimed, and Haapala's attorney agreed, that Haapala had an offender score of two.   But where the trial court commits a legal error in sentencing, a defendant can challenge his offender score for the first time on appeal.   See In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 875-78, 50 P.3d 618 (2002) (because trial court's sentencing error, inclusion of his three “washed out” juvenile convictions, was a legal error, he could raise the argument for the first time on appeal).   The State alleged that Haapala had two prior convictions:  a 1992 conviction for manufacturing marijuana with intent to deliver, and a 2001 conviction for violating the Uniform Controlled Substances Act. But the State said that the 1992 conviction had washed,3 Haapala disputed the 2001 conviction, and the trial court did not find that Haapala had a 2001 felony conviction.   The judgment and sentence lists only the 1992 conviction.

¶ 53 The State concedes that the trial court dismissed the 2001 charge.   Since Haapala's 1992 conviction is not a Class A felony,4 and because more than 10 years passed between his 1992 conviction and the instant crime, former RCW 9.94A.525(2) (2005) applies to wash out his 1992 conviction from his offender score.   Thus, his correct offender score is one.

¶ 54 We affirm Haapala's convictions but remand for resentencing under the correct offender score.

¶ 23 I must respectfully dissent.   The search of the residence where Haapala was staying is based on Craig's authority to authorize the search.   While it appeared to the officers that Craig had the authority to authorize a search, Craig was not lawfully on the property.   Craig's landlord served him with an eviction  notice on January 15 that gave Craig three days to vacate the premises.   On January 19, the day of the search, Craig was holding over unlawfully and was subject to an unlawful detainer action.  RCW 59.16.010 ⁵ .

¶ 24 A police officer's good faith subjective belief that a consenting party has authority to authorize a search is insufficient to validate a warrantless search under article I, section 7 of the Washington Constitution.  State v. Morse, 156 Wash.2d 1, 12, 123 P.3d 832 (2005).   Thus, the fact that Craig was unlawfully in possession of the premises prevents any reliance on his consent to search, at least as to third parties, such as Haapala.   Since Craig himself was not lawfully on the premises, he certainly had no lawful authority to allow a search.   All evidence seized was the result of this initial unlawful entry and should be suppressed.   I would reverse and remand for dismissal.

FOOTNOTES

1.   A tenant is guilty of unlawful detainer when “he ․ commits or permits waste upon the demised premises, or when he ․ maintains on or about the premises any nuisance, and remains in possession after the service ․ upon him ․ of three days' notice to quit.”  RCW 59.12.030(5).   Spindor served Craig a notice to vacate on the grounds of waste and nuisance.

2.   Detective Miller read Craig his Ferrier warnings before searching the house.   See State v. Ferrier, 136 Wash.2d 103, 118-19, 960 P.2d 927 (1998).

3.   According to the transcript, the prosecutor said that the 1992 “quashed,” but, when read in context, it is likely that the prosecutor said “washed.”   RP at 275.

4.   Unlawful manufacture of marijuana is a Class C felony.  RCW 69.50.401(2)(c);  RCW 9A.20.021(1)(c).

5.   RCW 59.16.010 provides that:[A]ny person who shall, without the permission of the owner and without having any color of title thereto, enter upon the lands of another, and shall refuse to remove therefrom after three days' notice, shall be deemed guilty of unlawful detainer and may be removed from such lands.

ARMSTRONG, P.J.