Opinion
No. 55046-2-I.
Filed: April 24, 2006.
Appeal from Superior Court of King County. Docket No: 03-1-09884-8. Judgment or order under review. Date filed: 09/03/2004. Judge signing: Hon. Charles W. Mertel.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Victor G. Medrano Doc # 874028 (Appearing Pro Se), Washington State Penitentiary, 1313 13th Ave, Walla Walla, WA 99362.
Elaine L. Winters, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Lee Davis Yates, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
UNPUBLISHED OPINION
Victor Garcia Medrano robbed and shot Antonio Gonzalez and unintentionally wounded a bystander, Rolando Acosta. A jury convicted Medrano of robbery in the first degree and two counts of assault in the first degree. The jury found Medrano was armed with a firearm on each count. The court ruled the convictions for the robbery and assault of Gonzalez involved the same criminal conduct, but the court ordered standard range sentences for the two separate first-degree assault convictions involving different victims to be served consecutively under RCW 9.94A.589(1).
Medrano challenges the sentencing court's decision to impose a consecutive sentence for the first-degree assault convictions. Even though the crimes involved separate victims, he argues that the assault convictions do not involve "separate and distinct criminal conduct." Medrano also contends a jury must decide beyond a reasonable doubt whether his first-degree assault convictions involved "separate and distinct criminal conduct." In addition, Medrano argues the firearm enhancements for his first-degree assault convictions violate double jeopardy and the court miscalculated his offender score for first-degree robbery. We conclude the sentencing court's decision to impose a consecutive sentence for the two separate first-degree assault convictions, was required by RCW 9.94A.589(1)(b), and is not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) or Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We also conclude the firearm enhancements do not violate double jeopardy but accept the State's concession that the trial court erred in calculating the first-degree robbery offender score, and remand for resentencing.
FACTS
On November 20, 2003, Medrano went into La Bodeguita, a small specialty food grocery store located in the Beacon Hill area, with the intent to commit robbery. La Bodeguita's owner, Antonio Gonzalez, was standing behind the cash register at the counter and there were two customers in the store. Shortly after Medrano entered, Gonzalez's wife arrived. Medrano immediately approached Gonzalez and pointed a .22 caliber semiautomatic pistol direct at Gonzalez's face. Medrano told Gonzalez to give him all the money quickly or he would kill him. Gonzalez took the money out of the cash register and handed it to Medrano. Medrano continued to point the gun at Gonzalez while he stuffed the money into his pocket. As Medrano turned to leave, he pointed his gun at Gonzalez's wife and then back at Gonzalez. Gonzalez came around the counter with his hands still up, facing Medrano but positioning himself in between Medrano and the two customers. Medrano fired at Gonzalez two times. Gonzalez was shot in the hand. One of the customers, Rolando Acosta, was shot in the cheek. A bullet from Medrano's gun also hit a bag of rice and went through a can of coconut milk. Gonzalez, who was armed with a .357 revolver, then fired at Medrano several times. Wounded, Medrano crawled out of the store and threw his gun away. The police arrived and arrested Medrano.
The State charged Medrano with first-degree robbery, assault in the first degree of Gonzalez, and assault in the first-degree of Acosta. The State alleged that Medrano was armed with a firearm for each count. The jury found Medrano guilty on all three counts, and by special verdict, found that Medrano was armed with a firearm for each count. At sentencing, the court imposed standard range sentences on all Medrano's convictions, plus an additional 60-month firearm enhancement for each conviction. The court decided the conviction for first-degree robbery of Gonzalez and the conviction for first-degree assault of Gonzalez involved "the same criminal conduct" and ordered those sentences to be served concurrently. But the court decided the two convictions for the first-degree assault of Gonzalez and the first-degree assault of Acosta did not involve the "same criminal conduct" and imposed a consecutive sentence under RCW 9.94A.589(1).
(Formerly RCW 9.94A.400 (2000)).
Medrano appeals his judgment and sentence.
ANALYSIS
Medrano contends the trial court erred in imposing a consecutive sentence for the two first-degree assault convictions. Medrano argues that he did not engage in "separate and distinct criminal conduct" as required by RCW 9.94A.589(1)(b) because when he intentionally shot at Gonzalez, the same bullet may have also hit Acosta.
Under RCW 9.94A.589(1)(b) the court must impose consecutive sentences where the defendant is convicted of two or more "serious violent offenses" involving "separate and distinct criminal conduct." Although there is no statutory definition of "separate and distinct criminal conduct," it is well established that in determining whether criminal conduct is separate and distinct, Washington courts rely on the definition of "same criminal conduct" in RCW 9.94A.589(1)(a). State v. Cubias, 155 Wn.2d 549, 552, 120 P.3d 929 (2005); State v. Tili, 139 Wn.2d 107, 122, 985 P.2d 365 (1999); State v. Brown, 100 Wn. App. 104, 113, 995 P.2d 1278 (2000), rev'd in part on other grounds by 147 Wn.2d 330, 58 P.3d 889 (2002). If two or more crimes fail to meet the statutory definition of "same criminal conduct," they are necessarily "separate and distinct." Cubias, 155 Wn.2d at 552. Two crimes constitute the "same criminal conduct" if they (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. RCW 9.94A.589(1)(a); State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000). The absence of any one of these elements prevents a finding of "same criminal conduct." State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994); State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). We review a trial court's determination of whether two crimes involve the "same criminal conduct" for abuse of discretion or misapplication of the law. Price, 103 Wn. App. at 855.
First-degree assault is a serious violent offense. RCW 9.94A.030(37)(a)(v).
RCW 9.94A.589(1)(b) provides:
Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.
In Brown, this court interpreted RCW 9.94A.589(1)(a) and (b), and addressed the interrelationship between the phrases "same criminal conduct" and "separate and distinct criminal conduct" and concluded that "crimes which fail to meet the statutory definition of `same criminal conduct' are necessarily `separate and distinct.'" Brown, 100 Wn. App. at 113-14. This interpretation of "separate and distinct criminal conduct" has been followed in subsequent cases, including the Washington Supreme Court's recent decision in Cubias. Cubias, 155 Wn.2d at 552; see also In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 853, 39 P.3d 308 (2001); Price, 103 Wn. App. at 855.
Rev'd in part on other grounds by 147 Wn.2d 330; 58 P.3d 889 (2002). Notably, review of Brown, was `limited to whether an erroneous accomplice liability instruction is subject to harmless error analysis, and if so, whether the instruction was harmless in these cases.' State v. Brown, 143 Wn.2d 1007, 21 P.3d 291 (2001).
It is well settled that when there are separate victims involved, that alone qualifies as separate and distinct criminal conduct. Cubias, 155 Wn.2d at 552-53, 556 n. 4 (recognizing that offenses involving separate victims arise from separate and distinct criminal conduct); In re Pers. Restraint of Orange, 152 Wn.2d 795, 821, 100 P.3d 291 (2004) (recognizing that "[o]ffenses arise from separate and distinct [criminal] conduct when they involve separate victims"); State v. Wilson, 125 Wn.2d 212, 220, 883 P.2d 320 (1994) (holding "[f]our assaults, involving four victims, involve four separate and distinct criminal acts"); State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987) (holding that "crimes involving multiple victims must be treated separately" and cannot constitute "same criminal conduct"); State v. Salamanca, 69 Wn. App. 817, 828, 851 P.2d 1242 (1993) (holding "[t]he assaults in this case arise from separate and distinct conduct because they involve separate and distinct victims"); State v. Godwin, 57 Wn. App. 760, 764, 740 P.2d 641 (1990) (holding that crimes involving different victims are separate and distinct, regardless of the factual relationship between the offenses).
Medrano argues that "separate and distinct criminal conduct" requires more than just separate victims, he argues it also requires distinct acts. Medrano attempts to distinguish Brown and the other cases by arguing that although he injured two victims, it is possible that only one bullet may have caused their injuries, and thus there was only "one act." Medrano's attempt fails. He fired two shots. Even if one bullet caused both injuries, there was more than one criminal act.
Here, Medrano was convicted by a jury on two separate and distinct first-degree assaults charges for two different victims who were injured when he intentionally fired at one of the victims. The mens rea for first-degree assault is intent to inflict great bodily harm. RCW 9A.36.011. Once that intent is established, the statute allows the intent to transfer to unintended victims. Wilson, 125 Wn.2d at 212. Medrano admitted he went into La Bodeguita with the intent to commit robbery. He admits he had a loaded gun and he intentionally shot at Gonzalez. There is also no dispute that Gonzalez and Acosta were both injured. Gonzalez was shot in the hand and Acosta in the cheek. The trial court did not abuse its discretion in concluding Medrano's criminal conduct was separate and distinct for purposes of imposing a consecutive sentence for the two first-degree assault convictions under RCW 9.94A.589(1)(b).
Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), Medrano next argues that a jury must decide beyond a reasonable doubt that his criminal conduct was "separate and distinct" for purposes of imposing a consecutive sentence. This same argument was considered and rejected by the Washington Supreme Court in Cubias and State v. Louis, 155 Wn.2d 563, 572, 120 P.3d 936 (2005), and by this court in State v. Kinney, 125 Wn. App. 778, 782, 106 P.3d 274 (2005). In Cubias, the court held that "the trial court's imposition of consecutive sentences under RCW 9.94A.589(1)(b) does not increase the penalty for any single underlying offense beyond the statutory maximum provided for that offense and, therefore, does not run afoul of the decisions of the United States Supreme Court in Apprendi and Blakely." Cubias, 155 Wn.2d at 556; accord Louis, 155 Wn.2d at 572 (recognizing that Apprendi and Blakely have "no application to consecutive sentencing decisions so long as each individual sentence remains within the statutory maximum for that particular offense"); Kinney, 125 Wn. App. at 782 (holding "[n]either Blakely nor Apprendi purport[s] to create a jury trial right to the determination as to whether to impose consecutive sentences"). The Cubias court further noted that even if the jury was required to make factual findings supporting consecutive sentences, where the jury finds the defendant guilty of more than one charge against separate victims, "it is merely a legal conclusion from these factual determinations that the criminal conduct charged in each count was separate and distinct criminal conduct." Cubias, 155 Wn.2d at 556 n. 4; Kinney, 125 Wn. App. at 782.
Medrano also contends that the firearm enhancement for the two first-degree assault convictions violate the state and federal double jeopardy clauses. He argues that he is being punished twice for using a firearm in violation of double jeopardy — once for first-degree assault with a "firearm" and again for being armed with a "firearm" while committing the same assault. We reject Medrano's double jeopardy challenge to the imposition of the firearm enhancement.
Double jeopardy prohibits multiple punishments for the same offense. U.S. Const. amend. V; Wash. Const. art. 1, sec. 9; State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). Whether double jeopardy is violated is a question of law reviewed de novo., aff'd, 153 Wn.2d 765, 108 P.3d 763 (2005).
The Legislature has the authority to define offenses and set punishments. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). When a defendant's conduct violates more than one statute, the critical question is whether the Legislature intended the result. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); Calle, 125 Wn.2d at 776. Our review here is limited to determining whether the Legislature intended to allow cumulative punishments for criminal conduct that violates both the first-degree assault statute and the firearm enhancement statute. See State v. Louis, 155 Wn.2d 563, 569, 120 P.3d 936 (2005). If the Legislature intended cumulative punishments under both statutes, then double jeopardy is not offended. State v. Freeman, 153 Wn.2d 765, 770-771, 108 P.3d 753 (2005). In determining Legislative intent, we first look to the language of the statutes to see if they expressly authorize multiple punishments. Louis, 155 Wn.2d at 569. If the plain language of the statutes does not express the Legislature's intent, we apply the rule of statutory construction commonly known as the `same evidence' test. Id. Under the `same evidence' test, double jeopardy is violated if a defendant is convicted of multiple offenses that are identical in both law and fact. Calle, 125 Wn.2d at 777.
Under RCW 9.94A.510(3), if an offender is armed with a firearm while committing a qualifying felony a firearm enhancement "shall be added to the standard sentence range." Former RCW 9.94A.510(3) (2003), recodified at RCW 9.94A.533(3) (2005). "[A]ll firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter." Former RCW 9.94A.510(3)(e) (2003), recodified at RCW 9.94A.533(3)(e) (2005).
Washington courts have repeatedly rejected double jeopardy challenges to deadly weapon enhancements where the use of a deadly weapon is an element of the underlying crime. See e.g., State v. Huested, 118 Wn. App. 92, 95-96, 74 P.3d 672 (2003 rev. denied, 151 Wn.2d 1014, 89 P.3d 712 (2004); State v. Caldwell, 47 Wn. App. 317, 319-20, 734 P.2d 542 (1987); State v. Pentland, 43 Wn. App. 808, 811, 719 P.2d 605 (1986). In Huested, this court reiterated the well recognized conclusion that:
the Legislature has clearly expressed its intent in RCW 9.94A.310 that a person who commits certain crimes while armed with a deadly weapon will receive an enhanced sentence, notwithstanding the fact that being armed with a deadly weapon was an element of the offense.
See former RCW 9.94A.310 (2000), recodified at RCW 9.94A.510 (2003), recodified at RCW 9.94A.533 (2005).
State v. Huested, 118 Wn. App. 92, 95-96, 74 P.3d 672 (2003) (quoting State v. Caldwell, 47 Wn. App. 317, 320, 734 P.2d 542 (1987)).
See former RCW 9.94A.310 (2000), recodified at RCW 9.94A.510 (2003), recodified at RCW 9.94A.533 (2005).
State v. Huested, 118 Wn. App. 92, 95-96, 74 P.3d 672 (2003) (quoting State v. Caldwell, 47 Wn. App. 317, 320, 734 P.2d 542 (1987)).
Medrano concedes that this caselaw is dispositive, but relying on language from Apprendi, Ring v. Arizona, and Sattazahn v. Pennsylvania, he argues we should re-examine the long-standing approach of deferring to legislative intent in determining whether double jeopardy is violated. We do not agree that these cases support re-examining or abandoning the well settled approach to defer to legislative intent and decline to do so.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
537 U.S. 101, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003).
Lastly, Medrano contends the trial court miscalculated his offender score for the robbery conviction. The State concedes error. We accept the concession and remand to the trial court to correct Medrano's offender score and sentence range. State v. McCorkle, 137 Wn.2d 490, 496, 973 P.2d 461 (1999) (recognizing "the sentencing court must first calculate the correct standard range before imposing sentence within that range"); State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994) ("It is axiomatic that a sentencing court acts without statutory authority when it imposes a sentence based on a miscalculated offender score.").
CONCLUSION
The sentencing court's decision to require the standard range sentences for two separate and distinct first-degree assault convictions involving different victims to be served consecutively under RCW 9.94A.589(1) is affirmed. Because the State concedes the court miscalculated Medrano's offender score and sentence range for the robbery conviction, we remand for sentencing.
SCHINDLER, ELLINGTON and BECKER, JJ.