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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL BORJA, )
) Court of Appeals No. A-4891
Appellant, ) Trial Court No. 3AN-89-715 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1383 - December 16, 1994]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Joan M.
Woodward, Judge.
Appearances: Leslie A. Hiebert,
Assistant Public Advocate, and Brant G.
McGee, Public Advocate, Anchorage, for
Appellant. John J. Novak, Assistant District
Attorney, Edward E. McNally, District
Attorney, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Daniel Borja appeals the sentence he received for
fourth-degree misconduct involving a controlled substance
(possession of cocaine), AS 11.71.040(a)(3)(A). The issue is
whether Borja was a second-felony offender for presumptive
sentencing purposes.
Before he committed the present offense, Borja was
convicted in California of being an accessory to robbery (driving
the getaway car). See California Penal Code 32 (accessory
after the fact to a felony) and 211 (robbery). Under
California law, Borja's crime was a misdemeanor, punishable by a
term of imprisonment not exceeding one year. See California
Penal Code 33. However, the superior court ruled that Borja's
California offense had elements substantially similar to the
Alaska felony offense of hindering prosecution in the first
degree, AS 11.56.770. The superior court therefore ruled that
Borja's California offense should be considered a prior felony
for purposes of presumptive sentencing under AS 12.55.145(a)(2),
which reads:
For purposes of considering prior convic
tions in imposing sentence under [presumptive
sentencing,]
(2) a conviction in this or another
jurisdiction of an offense having
elements similar to those of a felony
defined as such under Alaska law at the
time the offense was committed is
considered a prior felony conviction[.]
Borja challenges this ruling on appeal. Borja does not challenge
the similarity of California's and Alaska's definitions of
robbery, but he does assert that California's offense of being an
accessory to a felony, California Penal Code 32, is not
sufficiently similar to Alaska's offense of first-degree
hindering prosecution, AS 11.56.770(a)-(b).
Borja first argues that, even if the elements of the
California offense were identical to the elements of the Alaska
felony, no offense classified as a misdemeanor in California (or
any other state) can qualify as a prior felony under AS
12.55.145(a)(2). This question was left undecided by this
court's decision in Wells v. State, 687 P.2d 346, 352 n.5 (Alaska
App. 1984).1
Borja's argument is inconsistent with the wording of
AS 12.55.145(a)(2). In the context of crimes committed in other
states, this statute requires proof that the defendant has been
convicted of an out-of-state "offense", but the statute does not
specify that this offense be classified as a felony in that other
state. Rather, the statute requires that this out-of-state
offense have "elements similar to those of [an Alaska] felony".
That is, the statute requires that Alaska's corresponding offense
be classified as a felony, but the defendant's crime in the other
state can be any "offense".
This court has previously held that, even if another
state classifies conduct as a felony, it is Alaska's view of that
conduct which governs the use of the defendant's prior conviction
in Alaska sentencing proceedings. For example, in Mancini v.
State, 841 P.2d 184 (Alaska App. 1992), this court held that what
constitutes a "prior felony" for purposes of aggravating factor
AS 12.55.155(c)(15) (a defendant having three or more prior
felonies) must be defined by AS 12.55.145(a)(2). That is, a
felony conviction in another state will not be a "prior felony"
if that same conduct would be a misdemeanor in Alaska.
Several cases from other jurisdictions have addressed
the converse situation - the situation where the defendant's
prior offense was a misdemeanor in the state where it was
committed, but the offense would have been a felony if committed
in the state where the defendant is now being sentenced. These
cases are collected in the Annotation, Determination of Character
of Former Crime as a Felony so as to Warrant Punishment of an
Accused as a Second Offender, 19 A.L.R.2d 227 (1951), 3, 4, &
17, and in the later cases supplementing this annotation. Most
of these cases turn upon the particular wording of their state
statutes. However, the courts generally rule that the
defendant's status is governed by how the prior offense would
have been classified under the laws of the state in which the
defendant is now being sentenced. The fact that the defendant's
crime was a misdemeanor in the other state is irrelevant if that
crime would have been a felony in the sentencing state. People
v. Stein, 191 P.2d 409, 412 (Cal. 1948); People v. Dabney,
59 Cal.Rptr. 243, 253 (Cal. App. 1967), cert. denied 390 U.S.
911; People v. Williams, 254 N.Y.S.2d 193, 194 (N.Y. App. 1964),
aff'd 209 N.E.2d 286 (1965); People v. Evans, 246 N.Y.S.2d 953,
954 (N.Y. App. 1964); People ex rel. Mu¤os v. Morhous, 52
N.Y.S.2d 366, 367 (N.Y. App. 1944); State v. Wait, 509 P.2d 372,
375-76 (Wash. App. 1973), cert. denied 415 U.S. 930. See also
Galmore v. State, 467 N.E.2d 1173, 1177 (Ind. 1984) (under
Indiana law defining a prior felony as any "conviction, in any
jurisdiction ... , with respect to which a convicted person might
have been imprisoned for more than one (1) year", the court held
that it was irrelevant whether the other state classified the
defendant's crime as a felony or a misdemeanor).
This rule comports with the wording of AS 12.55.
145(a)(2), and it appears to comport with the policy of that
statute as well. This court has held that the other state's
classification of the defendant's crime is irrelevant if Alaska
law would call that crime a misdemeanor. Conversely, even though
the other state may classify the defendant's offense as a
misdemeanor, we must nevertheless look to Alaska's classification
of the defendant's offense to determine how the defendant's prior
conviction will be treated in Alaska sentencing proceedings.
We hold that if the elements of a defendant's out-of-
state offense are similar to the elements of an Alaska felony, it
does not matter whether the other state classifies the
defendant's crime as a felony or a misdemeanor. Thus, if the
elements of Borja's California offense, being an accessory to a
felony, are sufficiently similar to Alaska's felony offense of
hindering prosecution in the first degree, then Borja's
California offense will be considered a "prior felony" for Alaska
sentencing purposes even though California classifies the crime
as a misdemeanor.
Borja next argues that the elements defining his
California offense are broader than the elements of first-degree
hindering prosecution, so that Borja might be guilty of being an
accessory to robbery under California law without necessarily
violating Alaska's hindering prosecution statute. Under
California Penal Code 32, a person is guilty of being an
accessory to a felony when
after a felony has been committed, [the
person] harbors, conceals or aids a principal
in such felony, with the intent that said
principal may avoid or escape from arrest,
trial, conviction or punishment, having
knowledge that said principal has committed
such felony or has been charged with such
felony or convicted thereof[.]
By comparison, under AS 11.56.770(a), a person commits the crime
of hindering prosecution in the first degree if the person
renders assistance to a person who has commit
ted a crime punishable as a felony with
intent to
(1) hinder the apprehension, prosecu
tion, conviction, or punishment of that
person; or
(2) assist that person in profiting
or benefiting from the commission of the
crime.
Subsection (b) of this statute declares that a person "renders
assistance" to a felon if the person
(1) harbors or conceals the other per
son;
(2) warns the other person of impending
discovery or apprehension;
(3) provides or aids in providing the
other person with money, transportation, a
dangerous instrument, a disguise, or other
means of avoiding discovery or apprehension;
(4) prevents or obstructs, by means of
force, threat, or deception, anyone from
performing an act which might aid in the
discovery or apprehension of the other
person;
(5) suppresses by an act of concealment,
alteration, or destruction physical evidence
which might aid in the discovery or apprehen
sion of the other person; or
(6) aids the other person in securing or
protecting the proceeds of the crime.
Borja suggests that a person who impeded traffic with the
intention of aiding a bank robber's escape would be guilty as an
accessory to the robbery under California law but would not be
guilty of hindering prosecution under Alaska law. However, it
appears that such conduct is plausibly covered by subsections
(b)(4) or (b)(6) of AS 11.56.770. Borja also suggests that a
person who provided a felon with food (and who acted with the
requisite intent of helping the felon escape arrest, trial,
conviction or punishment) would be guilty as an accessory to the
felony under California law but would not be guilty of hindering
prosecution under Alaska law. Again, it appears that such
conduct is plausibly covered by subsection (b)(3), since
providing an escaping felon with food or other necessities would
be analogous to providing the escaping felon with money. Thus,
neither of Borja's suggested scenarios demonstrates an obvious
inconsistency between the California offense and the Alaska
offense. Moreover, even if it were possible to identify conduct
that was clearly included within the California offense and
clearly excluded from the Alaska offense, this would not
necessarily be fatal to the superior court's ruling. AS
12.55.145(a)(2) does not require that the out-of-state offense be
identical to an Alaska felony - only that its elements be
"similar" to those of an Alaska felony. Implicit in this
statutory wording is the possibility that there will be some acts
covered by one statute that will not be covered by the other.
We therefore uphold the superior court's ruling that
California's misdemeanor offense of being an accessory after the
fact to a felony has "elements similar to" the Alaska felony of
hindering prosecution in the first degree. Because we conclude,
based solely on a comparison of the elements of the California
and the Alaska offenses, that the superior court's decision was
correct, we find it unnecessary to consider Borja's argument that
the superior court erred in looking to the specific facts of
Borja's California offense rather than limiting its consideration
to the statutory elements of that offense. See Walsh v. State,
677 P.2d 912, 915-16 (Alaska App. 1984).
The judgement of the superior court is AFFIRMED.
_______________________________
1 Wells dealt with the prior version of AS 12.55.145(a)(2),
which required that the elements of the out-of-state offense be
"substantially identical" to those of an Alaska felony. However,
for purposes of the issue presented in this appeal, the pertinent
statutory language ("a conviction in this or another jurisdiction
of an offense ... ") is the same in both versions of the statute.
