Cox, J.
¶ 1 Tommie Davis appeals his judgment and sentence following his conviction for unlawful possession of a firearm. He argues that five prior California burglary convictions were neither legally nor factually comparable to burglary in Washington and should not have been included in his offender score at sentencing. We agree.
¶ 2 He also argues that the failure to personally provide him with discovery and his inability to obtain access to the jail library while awaiting trial deprived him of due process and the right to consult with counsel in a meaningful manner. He further claims that he was deprived of effective assistance of counsel in certain respects. He also argues that the trial court abused its discretion by denying motions for a continuance, substitution of counsel, and a new trial. We reject all of these arguments, except one.
¶ 3 In his statement of additional grounds, Davis claims that the taking of his DNA unconstitutionally compelled him to incriminate himself. He also claims unconstitutional discovery violations. These arguments are unpersuasive and we reject them all.
¶ 4 We affirm in part, reverse in part, and remand for resentencing.
¶ 6 Davis was arrested as he fled the scene. As he fled, he stashed the gun under a parked car, where police retrieved it. Forensic analysis found Davis's DNA on the gun and a ballistic match to the bullet removed from Wilson. But the analysis showed no evidence of Davis's fingerprints on the gun.
¶ 7 The State charged Davis with one count of first-degree assault with a firearm allegation, and one count of first-degree unlawful possession of a firearm. Pretrial, police disclosed to Davis's counsel the lack of Davis's fingerprints on the gun. At trial, Davis testified that he owned the gun in question. Accordingly, he conceded that he was guilty of unlawfully possessing a firearm. The jury found him guilty of this crime but not guilty of first-degree assault.
¶ 8 Davis then moved pro se for a new trial based on the State's alleged failure to provide adequate discovery. The trial court denied that motion, concluding that Davis lacked an independent right to discovery because he was represented by counsel through trial.
¶ 9 The trial court duly sentenced Davis. In doing so, the court included in his offender score of eight five prior burglary convictions in California.
¶ 10 This appeal followed.
¶ 11 Davis argues that the five prior California burglary convictions are neither legally nor factually comparable to Washington burglary and should not have been included in his offender score. We agree.
¶ 12 "The offender score is the sum of points accrued as a result of prior convictions."
¶ 13 The comparability analysis has two steps, one legal, and the other factual. At the legal step, the trial court "compare[s] the elements of the out-of-state conviction to the relevant Washington crime."
¶ 14 If the statutory definition of the relevant conviction is broader than its Washington equivalent, then the trial court proceeds to the factual step.
¶ 15 Thus, the court cannot consider "`[f]acts or allegations contained in the record, if not directly related to the elements of the charged crime, [which] may not have been sufficiently proven in the trial.'"
¶ 16 This court reviews de novo the trial court's comparability analyses in calculating a defendant's offender score.
¶ 17 The first step in our analysis is to determine whether burglary in California is legally comparable to burglary in Washington. They are not legally comparable.
¶ 18 RCW 9A.52.030(1) defines burglary in the second degree in Washington as follows:
¶ 19 Burglary in California is defined by Cal. Penal Code § 459, in relevant part, as follows:
¶ 20 A straightforward reading of the plain words of the two statutes shows that they are not legally comparable. First, the Washington burglary statute requires proof that the "entry" itself must be independently "unlawful."
¶ 21 Second, the Washington second degree burglary statute is confined to entry of "buildings," as that term is used in Washington. In contrast, § 459 has a broader scope. For example, it includes "mine[s] or any underground portion thereof." This is beyond the scope of "buildings," as used in Washington.
¶ 22 The State concedes in its briefing that the scope of the California statute is broader than that of Washington. But it does so solely on the basis that the California statute does not confine its scope to "buildings," as does Washington's burglary statute.
¶ 23 The State further argues that the California statute "[i]mposes [a] [c]ommon [l]aw [r]equirement [o]f [u]nlawful [e]ntry."
¶ 24 We are guided in our analysis of whether "unlawful entry" is an element of § 459 by the decision of the United States Supreme Court in
¶ 25 He also argued that the text of § 459 broadly states the elements of burglary in California by providing that "`a person who enters' certain locations `with intent to commit grand or petit larceny or any felony is guilty of burglary.'"
¶ 26 Citing its earlier decision in
¶ 27 Had the Supreme Court viewed § 459 to include "unlawful entry," it would have said so. But it concluded that the scope of the statute exceeded the scope of what it called "generic burglary — i.e.,
¶ 28 Applying this principle to the statutes before us, the Washington burglary statute encompasses what the Supreme Court calls "generic burglary" because it requires unlawful entry as an independent element. The California burglary statute, on the other hand, does not require unlawful entry as an element. It is broader. For example, as the
¶ 29 The State principally relies on
¶ 30 There, Michael Wayne Davis was convicted of burglary and other crimes.
¶ 31 The focus of the California Supreme Court's analysis was the word "entry," which is not defined by statute. The court ultimately held that the placement of a forged check in the chute of a walk-up window of the check cashing facility did not constitute "entry" for purposes of the statute.
¶ 32 In reaching its conclusion, the court surveyed a number of California cases. It cited a prior case that had stated that "[t]he crime of burglary consists of an act-unlawful entry-accompanied by the `intent to commit grand or petit larceny or any felony.'"
¶ 33 In any event, we do not read this statement regarding unlawful entry in
¶ 34 Likewise, we are unpersuaded by the State's argument that the use of the word "unlawful" in the California charging documents in the record before us illustrates that § 459 incorporates this common law element. Why the charging documents before us include that language is unexplained in the record. We will not speculate why the documents include this usage.
¶ 35 For these reasons, we hold that § 459 is not legally comparable to the Washington second degree burglary statute, RCW 9A.52.030(1). Unlawful entry is not an element of that statute. And the statute is legally broader than Washington's burglary
¶ 36 Davis next argues that the State fails to meet its burden to show that the factual prong of comparability analysis is satisfied. We agree.
¶ 37 Again, we are guided in our analysis by the United States Supreme Court's decision in
¶ 38 In
¶ 39 The question here is whether the State has met its burden to prove that the five prior convictions for burglary under § 459 are factually comparable to burglary in Washington, given that they are not legally comparable.
¶ 40 In
¶ 41 In analyzing for factual comparability, this court stated:
¶ 42 Quoting
¶ 43 This court also noted that where
¶ 44 With these principles in mind, we examine this record to see if the State met its burden of proof to show factual comparability.
¶ 45 Davis' March 6, 1996 burglary in California is the first on which the State relies. It is evidenced by the Felony Complaint dated March 7, 1996, that alleges, in relevant part, in Count 1:
¶ 46 This record also reflects that Davis eventually pleaded guilty to Count 1 of this Felony Complaint.
¶ 47 His April 10, 1993 burglary is the second on which the State relies. It is evidenced by the Felony Complaint dated April 13, 1993, that alleges facts that largely parallel those quoted above, except for the date and place of the
¶ 48 Davis's October 2, 1991 burglary is the third on which the State relies. It is evidenced by the Felony Complaint dated October 3, 1991 that alleges facts that largely parallel those quoted above, with the same exceptions as to date and place of the
¶ 49 His August 30, 1989 burglary is the fourth on which the State relies. It is evidenced by the Felony Complaint dated September 1, 1989, that alleges facts that largely parallel those quoted above, except as to the date and place of the
¶ 50 The February 6, 1988 burglary is the final one on which the State relies. It is evidenced by the Felony Complaint dated February 9, 1996, that alleges facts that largely parallel the prior quotation, except as to the date and place of the
¶ 51 These burglaries fall short of the proof required to show that they should
¶ 52 Second, as we already discussed in this opinion, § 459 does not include an "
¶ 53 Third, the consequence of these principles is that it is irrelevant whether Davis pleaded guilty to "
¶ 54 The State makes two arguments in support of including these burglary convictions in the offender score. Neither is convincing and we reject them both.
¶ 55 In its briefing on appeal, the State argues that § 459 incorporates the "unlawful entry" of common law burglary. If this were correct, then Davis's plea that followed would not run afoul of the principles this court stated in
¶ 56 At oral argument, the State advanced another argument. As we understand it, the State took the position that even if "unlawful entry" is not an element of § 459, use of the prior convictions in his offender score is still permissible because he admitted "unlawful entry" by his plea. We disagree.
¶ 57 In support of this argument, the State appears to selectively rely on language from
¶ 58 We say "selectively" because this statement of principle does appear, on its face, to permit use of any facts "admitted by the defendant." But this statement omits qualifying language in
¶ 59 Thus, as we stated in
¶ 60 Only when one applies these limitations in considering the factual prong of the comparability analysis does one reach a constitutionally permissible result. As
¶ 61 Moreover, as
¶ 62 For these reasons, we reject this argument as well.
¶ 63 Davis argues that he received ineffective assistance of counsel in several respects. We agree with one claim, but reject the other.
¶ 64 The Sixth Amendment to the federal constitution guarantees a criminal defendant's right not only to counsel, but to counsel whose assistance is effective.
¶ 65 The defendant demonstrates the ineffectiveness of his counsel by meeting a two-part burden. He must first show that counsel's performance was unreasonably ineffective and, second, that such ineffectiveness prejudiced the results of his case.
¶ 66 The supreme court has held that failure to object to an improper comparability analysis is ineffective assistance of counsel.
¶ 67 Here, the State failed to prove that the California burglary convictions were either legally or factually comparable. Based on this deficient showing, the failure to object constituted ineffective assistance of counsel. The result altered Davis's offender score and thus prejudiced him in sentencing.
¶ 68 Davis next claims his attorney was ineffective for failing to timely provide him with redacted copies of discovery. We disagree with this claim.
¶ 69 CrR 4.7(h)(3) allows defense counsel "to provide a copy of the [discovery] materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court." Davis provides no authority for the proposition that failure to provide discovery falls below an objective standard of reasonableness or prejudiced the result at trial.
¶ 70 Davis further argues that defense counsel's conduct in this regard impaired his right "`to aid his attorney.'"
¶ 71 Davis argues that two barriers unconstitutionally deprived him of the assistance of counsel. These claimed barriers were a lack of reasonable access to the jail law library
¶ 72 The federal and state constitutions guarantee the defendant's right to counsel.
¶ 73 The State has an obligation to allow pro se defendants "reasonable access to legal materials, paper, writing material, and the like."
¶ 74 Importantly, the federal constitution only protects Davis's right to counsel from state interference
¶ 75 Here, Davis was represented by counsel. He reported to the court that jail inmates represented by counsel were allowed only one hour a week at the jail's Westlaw workstations, which was not guaranteed due to the prioritization of access for pro se defendants. The State's duty to ensure reasonable access to legal resources for pro se defendants does not extend to defendants represented by counsel. And if standby counsel is an adequate substitute for law library access, than active representation is even more so.
¶ 76 Davis argues that the trial court abused its discretion in denying him a continuance. We disagree.
¶ 77 The decision whether to grant a continuance lies in the trial court's sound discretion.
¶ 78 The trial court has the discretion whether to consider a pro se continuance motion when the defendant is represented by counsel.
¶ 79 This court reviews for abuse of discretion the denial of a continuance.
¶ 81 The trial court did not abuse its discretion here for several reasons. First, no clear motion for continuance was made. Second, even if Davis's expression of frustration over his capacity to review discovery constituted such a motion, the trial court had the discretion whether to consider this pro se motion. Third, regarding the merits of such a putative motion, the trial court could determine, within its discretion, whether the trial had reached such a point that a continuance would be improper.
¶ 82 Davis argues that the trial court abused its discretion by denying his new trial motion based on the State's failure to provide him timely notice of the firearm fingerprint report. He contends that disclosure to him personally was required and that the State unconstitutionally suppressed the report. He makes the same argument in his Statement of Additional Grounds. We disagree.
¶ 83 Under CrR 7.5(a), a trial court may grant a new trial on motion based on certain enumerated circumstances. These include prosecutor misconduct, procedural irregularity that prevented a fair trial, or a legal error objected to at trial.
¶ 84 This court reviews for abuse of discretion the trial court's denial of a new trial.
¶ 85 CrR 4.7(a)(1)(iv) requires the State disclose "to the defendant" any expert reports or statements, including scientific tests. Davis interprets this language to require direct disclosure to the defendant rather than to defense counsel. He contrasts this language to that of CrR 4.7(a)(3) requiring disclosure of other material exculpatory information "to defendant's counsel." Additionally, the defendant must show that noncompliance with the discovery rules caused him prejudice.
¶ 86 This court interprets court rules in the same manner as statutes.
¶ 87 Applying these canons, CrR 4.7(a)(1)(iv) is most naturally read to require disclosure to the counsel of a represented defendant, or to the defendant himself if proceeding pro se. The language used accounts for these two scenarios. The alternative reading that Davis proposes would create an anomaly requiring the prosecutor to directly communicate with a represented defendant. Davis presents no authority requiring such an absurd and unlikely reading of CrR 4.7(a)(1)(iv).
¶ 89 Davis also argues that the State unconstitutionally suppressed evidence. This argument is not persuasive.
¶ 90 Constitutional due process, as interpreted in
¶ 91 Here, the parties do not dispute that evidence showing a lack of Davis's fingerprints on the gun would be exculpatory and material. But Davis cannot make out the second and third necessary elements.
¶ 92 The State did not suppress the fingerprint report. Davis acknowledges that the State disclosed this evidence to defense counsel on February 26, 2016. In its pretrial answer to Davis's discovery demand, filed March 9, 2016, the State explained that "[t]he firearm was examined for latent prints, but none were found." In that document, the State cited to an exhibit that was not transmitted on appeal. Thus, the report's finding that no fingerprints were found was not suppressed. There was no
¶ 93 Davis also cannot show prejudice. From opening statements onward, Davis conceded that he was guilty of unlawful possession of a firearm. Davis also testified and identified the pistol in evidence as his own, and admitted to firing it in the air. Thus, the jury was aware that Davis possessed a firearm. In light of this concession, prejudice would not have resulted from suppression of evidence showing a lack of fingerprints on that firearm.
¶ 94 Davis argues that the trial court abused its discretion by denying his motion to substitute counsel. We disagree.
¶ 95 To warrant substitution of counsel, the defendant must show "good cause, `such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication.'"
¶ 96 "A disagreement over defense theories and trial strategy does not by itself constitute an irreconcilable conflict."
¶ 97 "A court learning of a conflict between defendant and counsel has an `obligation to inquire thoroughly into the factual basis of the defendant's dissatisfaction'" sufficient to reach an informed decision.
¶ 99 This court reviews for abuse of discretion the trial court's decision not to appoint new counsel.
¶ 100 Here, Davis argues that his relationship with his counsel had sufficiently broken down because of counsel's delays in providing him copies of discovery, lack of adequate consultation, and failure to file certain motions he requested.
¶ 101 He alleged below that counsel had failed to timely provide him discovery and had failed to ask his version of events. Regarding discovery, defense counsel explained that he had believed there was nothing in certain requested call transcripts "that would involve any worthwhile evidence that could be presented in this case."
¶ 102 Additionally, defense counsel put Davis on the stand and elicited his version of events.
¶ 103 The trial court concluded that it did not "see the issue rising to the level of having any type of issue."
¶ 104 After trial, Davis moved pro se for relief from judgment based in part on his counsel's alleged misconduct. In this motion, he alleged that he had requested that his counsel file two motions but counsel refused. Defense counsel's decision was not improper. He, not Davis, had the proper authority to determine trial strategy, including which motions to file.
¶ 105 Davis further argues that reversal of his convictions is required under the cumulative error doctrine. We disagree.
¶ 106 Under the cumulative error doctrine, a conviction must be reversed where the cumulative effect of multiple preserved and unpreserved errors below deprived the defendant of a fair trial.
¶ 107 As discussed above, there were no errors at trial in reaching conviction. The only errors concern the sentencing phase of this case. Thus, the cumulative error doctrine does not require reversal of the underlying conviction.
¶ 108 Citing RCW 43.43.754, Davis claims that the State unconstitutionally obtained pretrial DNA evidence from his cheek swab that was used at trial. He further claims his counsel failed to object to the taking of this evidence. And he finally claims that he was not personally provided with discovery and the charging document at issue in this case. These claims are without merit and we reject them.
¶ 109 His challenge to RCW 43.43.754 is misplaced. It provides in relevant part that "[a] biological sample must be collected for purposes of DNA identification analysis from... [e]very adult or juvenile individual
¶ 110 In any event, his constitutional claim is based on article 1 section 9 of the Washington Constitution. It provides that "[n]o person shall be compelled in any criminal case to give evidence against himself." But this "protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature."
¶ 111 Davis claim that his counsel failed to object to the taking of the swab is unsupported by the record. His counsel did object, but that objection was unsuccessful.
¶ 112 Finally, Davis fails to show any other constitutional violation in this case. Our search of this record reveals none.
¶ 113 We affirm the conviction, vacate the sentence, and remand for resentencing.
WE CONCUR:
Spearman, J.
Leach, J.