¶16 (concurring) — Cole Shale pleaded guilty to 12 crimes charged under seven separate cause numbers. Relevant here, Shale pleaded guilty to two counts of first degree possession of stolen property under cause 04-1-02713-7 and one count of first degree possession of stolen property under cause 04-1-02873-7. He also pleaded guilty to three counts of unlawful possession of payment instruments under cause 04-1-02816-8. Several months after his plea, Mr. Shale filed motions in superior court to modify or vacate his sentences, claiming double jeopardy precludes his convictions for three of these crimes.
Madsen, J.¶17 Although I concur in the result reached by the majority, I write separately because, contrary to the majori*497ty’s assertion, Mr. Shale did not move to withdraw his guilty pleas. Thus, the majority’s discussion of State v. Turley, 149 Wn.2d 395, 398, 69 P.3d 338 (2003), while accurate, does not address the double jeopardy challenges raised in Mr. Shale’s petition for review.3 Majority at 493-94.
Discussion
¶18 In this case Mr. Shale does not seek to withdraw any of his pleas of guilty. Rather, he claims that three of his convictions violate double jeopardy because they are based on the same conduct. It is well established that merely because a conviction may be the result of a plea agreement does not foreclose a challenge to that conviction on the grounds of double jeopardy. Blackledge v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974). In Menna v. New York, 423 U.S. 61, 62, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975), the United States Supreme Court held that “[w]here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” See also In re Pers. Restraint of Butler, 24 Wn. App. 175, 178, 599 P.2d 1311 (1979) (double jeopardy claim not waived by the entry of plea to first degree assault and first degree robbery arising out of the same facts). Thus, where a double jeopardy violation is evident on the face of a judgment and sentence, a guilty plea does not foreclose a defendant from attacking a conviction through a personal restraint petition. Menna, 423 U.S. at 62 & n.2 (a guilty plea does not waive a facial double jeopardy violation).
¶19 A corollary to this rule is that, if a defendant collaterally challenges a facially valid conviction and seeks to expand the record to show that the conviction violates double jeopardy, a guilty plea may, in some circumstances, *498be deemed a waiver of the double jeopardy claim. United States v. Broce, 488 U.S. 563, 575-76, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989). As the Supreme Court pointed out in Menna, “[w]e do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.” Menna, 423 U.S. at 62 n.2.
¶20 The first question then is whether the judgments and sentences show on their face that the challenged convictions for possession of stolen property and unlawful possession of payment instruments violate double jeopardy principles.4
¶21 As the majority correctly notes, the double jeopardy clauses of the Washington and United States Constitutions prohibit convicting a person more than once under the same criminal statute if he committed only one “unit” of the crime. State v. Tvedt, 153 Wn.2d 705, 710, ¶ 10, 107 P.3d 728 (2005). Shale argues that his convictions violate double jeopardy principles in two ways. First, he contends that the two counts of first degree possession of stolen property under cause 04-1-02713-7 and the one count of the same crime under cause 04-1-02873-7 constitute one “unit of prosecution” because he committed those crimes at the same time. Second, Shale claims that two of the three counts of unlawful possession of payment instruments under cause 04-1-02816-8 also constitute one “unit of prosecution” because they involved the same victim and were committed at the same time.
¶22 Turning first to the possession of stolen property charges, Shale correctly argues that simultaneous possession of various items of property stolen from multiple owners constitutes one unit of prosecution of the crime. State v. McReynolds, 117 Wn. App. 309, 335-40, 71 P.3d 663 (2003). Conversely, “[s]eparate, discrete possessions constitute separate units of prosecution.” Id. at 339. Here, the *499judgments and sentences show on their face three convictions for possession of stolen property committed on the same date. From this evidence Mr. Shale argues that he committed only one unit of prosecution.
¶23 The judgments and sentences here do suggest that Mr. Shale’s multiple convictions for possession of stolen property may violate double jeopardy. However, the unit of prosecution analysis articulated in McReynolds is not met merely by showing that the possession crimes were committed on the same date; more is required to show simultaneous possession.5
¶24 As to the three convictions for unlawful possession of payment instruments, whether they violate double jeopardy principles depends first on defining the “unit of prosecution” of that crime. The statute defining that crime, RCW 9A.56.320(2), provides a person is guilty of unlawful possession of payment instruments if he possesses two or more checks or payment instruments “[i]n the name of a person or entity, or with the routing number or account number of a person or entity, without the permission of the person or entity to possess such payment instrument, and with intent either to deprive the person of possession of such payment instrument or to commit theft, forgery, or identity theft.” RCW 9A.56.320(2)(a)(i). By describing the crime as the possession of two or more payment instruments of “a person” with intent to deprive “the person” of those instruments, the statute clearly makes each person whose payment instruments are unlawfully possessed a unit of prosecution. Cf. State v. Ose, 156 Wn.2d 140, 148, ¶19, 124 P.3d 635 (2005) (each stolen access device constitutes a unit of prosecution of second degree possession of stolen property based on possession of “a stolen access device,” RCW 9A.56.160(l)(c)). Thus, under the statute, each victim represents a single emit of prosecution.
¶25 Mr. Shale does not dispute that each victim constitutes a unit of prosecution. Rather, he contends that the *500three charges to which he pleaded guilty involved only two victims, not three. However, the number of victims is not evident from the face of the judgments and sentences and the amended charging documents do not reveal the names of the victims related to each count. As with the possession of stolen property convictions, it is necessary to go beyond the face of the judgment and sentence to determine whether double jeopardy is violated.
¶26 Turning to the record, the probable cause statements associated with the unlawful possession of stolen property charges show that all of the property was found in a search of Shale’s truck. Suppl. Resp. to Pers. Restraint Pet., Attach. D (Aff. of Probable Cause); Resp. to Pers. Restraint Pet., Attach. M (Aff. of Probable Cause). The record also shows, however, that the State originally charged two of the counts as possession of a stolen firearm in violation of RCW 9.41.040.6 Under RCW 9.41.040(7), each firearm constitutes separate units of prosecution (“[e]ach firearm unlawfully possessed under this section shall be a separate offense”). Pursuant to a plea bargain, the State amended the information to charge Shale with two counts of first degree possession of stolen property under RCW 9 A. 56-.150(1). The amended information specifies that firearms were among the items possessed. Suppl. Resp. to Pers. Restraint Pet., Attach. B (Am. Information).
¶27 With regard to the unlawful possession of payment instruments, the State originally charged three counts of unlawful possession of payment instruments because three different victims were involved. At the plea hearing the State informed the court that it was relying on the same victim for counts two and three as a matter of convenience, since one victim lived outside of Washington. Verbatim Report of Proceedings (Nov. 16, 2004) (VRP) at 5-6, 10.
¶28 On this record it is clear that the original charges do not violate double jeopardy. However, Mr. Shale *501makes a credible claim that the amended charges to which he pleaded guilty may violate double jeopardy. Accordingly, it is necessary to determine whether Mr. Shale waived his right to challenge these convictions, either explicitly or through his actions in negotiating this plea agreement.
¶29 As mentioned earlier, in some circumstances waiver may be found where a defendant collaterally challenges a facially valid conviction. See Broce, 488 U.S. at 575-76; Menna, 423 U.S. at 62 n.2. A waiver is an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). A defendant may waive a double jeopardy claim through some affirmative act which indicates waiver. Jeffers v. United States, 432 U.S. 137, 154, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977) (defendant waived double jeopardy by opposing government’s motion to join two separate criminal prosecutions). “[T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” United States v. Scott, 437 U.S. 82, 99, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978).
¶30 The State moved to amend the charges here pursuant to a plea agreement, which Mr. Shale helped to fashion in order to preserve his right to argue for a first offender waiver at sentencing. At the sentencing hearing Mr. Shale’s attorney, Thomas Krzyminski, told the court,
I would respectfully ask this court to consider first time offender. It is obviously an option. We have made sure, both Mr. [Robert] Sargent and I, that he was eligible on each one of these charges and that’s why some were amended to make sure that he was eligible.
VRP at 45. In addition, the prosecutor, Mr. Sargent, complimented defense counsel during the hearing, stating,
I have to say on the record that defense counsel, in the State’s opinion, has done a terrific job in that we have sat down and we have looked at these cases. We have hashed out these cases. *502Had it gone to trial and the State had — well, he could have faced substantially more time, in the State’s opinion.
VRP at 33-34.
¶31 A defendant’s participation in bringing about a double jeopardy violation can constitute a waiver of such violation. In Jeffers for example, the defendant was charged with committing a continuing criminal enterprise under 21 U.S.C. § 848 and conspiracy under 21 U.S.C. § 846. The government moved to consolidate the indictments for trial, which the petitioner and his codefendants opposed. The court denied the motion and the charges went forward in separate trials. Following convictions for both charges, the defendant argued that the convictions violated the prohibition against double jeopardy, contending that conspiracy was a lesser included offense of a continuing criminal enterprise under § 848. The Supreme Court rejected the defendant’s argument, holding that the defendant had waived his right to complain that his consecutive trials violated double jeopardy because it was he who insisted on successive trials for the conspiracy offense and the continuing-criminal-enterprise offense. Jeffers, 432 U.S. at 154.
¶32 As in Jeffers, Mr. Shale actively participated in the amendment of charges and in crafting the plea bargain in order to preserve his eligibility for a first offender waiver. This brought about the claimed double jeopardy violations. Accordingly, I would hold that Mr. Shale waived his right to complain that his convictions for possession of stolen property and unlawful possession of payment instruments violate the prohibition against double jeopardy and would affirm his convictions.
Alexander, C.J., and Bridge and Fairhurst, JJ., concur with Madsen, J.
See Supplemental Brief of Petitioner at 9 n.2, wherein Mr. Shale explicitly states that he does not seek withdrawal of his plea.
Wash. Const, art. I, § 9; U.S. Const, amend. V.
For example, if the stolen property was held in different geographical locations, the possessions would likely constitute separate crimes.
According to the record, one of the firearms was located during a search of a storage unit leased by Mr. Shale.