Filed: December 6, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-08414-8. Judgment or order under review. Date filed: 08/15/2003. Judge signing: Hon. Anthony P. Wartnik.
Counsel for Appellant(s), Manuel Abrego/Doc# 861448 (Appearing Pro Se), Cccf, 8b-106, 6564 State Hwy. 96, Olney Springs, CO 81062.
Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Manuel Abrego contends the four consecutive firearm enhancements he received upon his conviction of four counts of second degree assault for firing a gun at a car occupied by four individuals constitutes a double jeopardy violation. But the four enhancements resulting from using one gun to commit four assaults are not improper multiple punishments. We affirm.
Abrego was upset with his former girlfriend who was riding in a car with three other individuals. Abrego pulled up next to the car, pointed a pistol at her and her friends and fired at least four to six rounds. One bullet hit the car door and another struck the rear tire. Abrego later admitted that he fired the gun because he was upset with his former girlfriend.
Abrego was charged with four counts of first degree assault while armed with a handgun. The jury found Abrego guilty of four counts of second degree assault. The jury also found that Abrego was armed with a firearm at the time of the offenses. Abrego was sentenced to a total of 177 months of confinement including 33 months for the underlying offenses and 36 months for each of the four firearm enhancements.
Abrego contends that the double jeopardy prohibition upon multiple punishments is offended because the firearm enhancement statute does not reflect an intent to impose four consecutive firearm enhancements in a multiple offense situation involving one gun in a single incident involving four victims. But Washington courts have repeatedly rejected arguments that weapon enhancements violate double jeopardy.
If a defendant is armed with a firearm when committing a felony, a mandatory sentencing enhancement must be imposed consecutive to any other sentencing provision "including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter." RCW 9.94A.510(4)(e); see also RCW 9.94A.533(3).
Both the Fifth Amendment and article I, section 9 of the Washington Constitution protect against multiple punishments for the same offense. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). A firearm enhancement is not a separate sentence or a separate substantive crime but a statutorily imposed sentence increase for a particular crime based upon certain factors involved in the crime. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 253, 955 P.2d 798 (1998); see also State v. Caldwell, 47 Wn. App. 317, 320, 734 P.2d 542 (1987) (weapon enhancements do not violate double jeopardy because the legislature is simply extending the sentence for the underlying crime). Firearm enhancements do not create multiple punishments for the same offense. In State v. Claborn, 95 Wn.2d 629, 628 P.2d 467 (1981), the defendant received separate weapon enhancements for burglary and theft convictions arising from the same event but occurring in a different segment of time. Claborn argued that separate enhancements for the "single act" of being armed with the same deadly weapon during the burglary and theft violated double jeopardy. Noting that burglary and theft have separate elements and that the enhancement statutes did not themselves create criminal offenses, the Claborn court held that the enhancements did not create multiple punishments for the same offense. Id. at 636-38.
In State v. Huested, 118 Wn. App. 92, 94-96, 74 P.3d 672 (2003), review denied, 151 Wn.2d 1014 (2004), the court rejected a double jeopardy challenge to two deadly weapon enhancements imposed upon conviction for first degree rape and first degree burglary while armed with the same knife. Relying on Claborn, the court held that the sentencing enhancement is unambiguous: "[A]n enhancement must be imposed for each qualifying crime committed with a deadly weapon. No exceptions are contemplated. The enhancements imposed in this case did not violate the double jeopardy clause." Id. at 96.
Abrego argues that Claborn is not applicable and challenges the conclusion in Huested that the statute is not ambiguous. But the analysis in Huested is compelling and the factual distinctions in Claborn do not undercut the holding in Huested.
The intent behind RCW 9.94A.510(4)(e) to impose enhanced sentences on those convicted of committing armed crime, for each armed crime they commit is clear. Abrego committed four second degree assaults while armed with the same firearm. Abrego was not placed in double jeopardy by the four consecutive enhancements.
COLEMAN, J., AGID, J. and APPELWICK, J.