FILED
COURT OF AN'EALS DIV I
STATE OF WASHINGTON
2017 JUL 31 f1 9:t3
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) DIVISION ONE
Respondent, )
) No. 76744-5-1
v. )
) UNPUBLISHED OPINION
FRANCISCO GUZMAN RODRIGUEZ, )
)
Appellant. ) FILED: July 31, 2017
)
DWYER, J. — Francisco Guzman Rodriguez appeals from the judgment
entered on a jury's verdicts finding him guilty of one count of assault in the first
degree and one count of attempted murder in the second degree. On appeal,
Guzman Rodriguez contends that, by entering judgment on the jury's verdicts,
the trial court deprived him of his right against double jeopardy. This is so, he
asserts, because the crimes for which he was convicted constituted the same
offense.
We conclude that, because the State proved each crime with different
evidence, the two crimes were not the same in fact for double jeopardy purposes.
Accordingly, we affirm.
Guzman Rodriguez and Leonila Mejia Albino had been in a romantic
relationship and were in the process of separation. They continued to live
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together but Mejia Albino had informed Guzman Rodriguez that she intended to
find another place to live with her children.
On the day in question, in the very early morning, Mejia Albino awoke to
find Guzman Rodriguez on her bed kneeling over her with a scarf in his hands.
Guzman Rodriguez told her that she was not going to leave and that he had to
kill her. He wrapped the scarf once around her neck.
Guzman Rodriguez then pulled the loose ends of the scarf tight against
her neck. Pain began to build in Mejia Albino's head. She pushed him off of the
bed and they fell to the floor.
When they stood up, Guzman Rodriguez placed his hands around Mejia
Albino's neck and squeezed with his fingers. Mejia Albino tried to push him
away,feeling that she could not breathe. She lost consciousness for a time.
Upon regaining her awareness, Mejia Albino found herself holding onto a
table. She fled into a bathroom and locked the door behind her.
The State, upon amended information, charged Guzman Rodriguez with
one count of attempted murder in the first degree, pursuant to RCW
9A.28.020(1), 9A.32.030(1)(a), and one count of assault in the first degree,
pursuant to RCW 9A.36.011(1)(a).
At trial, after the testimony had concluded, the trial court instructed the jury
as to the crimes of assault in the first degree, attempted murder in the first
degree, and attempted murder in the second degree. The jury returned verdicts
finding Guzman Rodriguez guilty of assault in the first degree and attempted
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murder in the second degree. The trial court entered judgment on the verdicts
and imposed sentence.
Guzman Rodriguez now appeals.
11
Guzman Rodriguez argues that entering judgment on the convictions for
attempted murder in the second degree and assault in the first degree violated
his right against double jeopardy. He is incorrect.
A
"Article 1, section 9 of the Washington Constitution, the double jeopardy
clause, guarantees that, '[n]o person shall... be twice put in jeopardy for the
same offense.' It mirrors the protections offered by the federal constitutional
protection against double jeopardy." State v. Villanueva-Gonzalez, 175 Wn. App.
1,4-5, 304 P.3d 906(2013)(alterations in original)(citing State v. Gocken, 127
Wn.2d 95, 107, 896 P.2d 1267(1995)), aff'd, 180 Wn.2d 975, 329 P.3d 78
(2014). "The double jeopardy clauses of the Fifth Amendment and Const. art. 1,
§ 9 protect a defendant against multiple punishments for the same offense."
State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995).
[T]he question whether punishments imposed by a court, following
conviction upon criminal charges, are unconstitutionally multiple
cannot be resolved without determining what punishments the
legislative branch has authorized. Whalenl• v. United States, 445
U.S. 684,]688,[100 S. Ct. 1432,63 L. Ed. 2d 715 (1980)]. Our
review here is limited to assuring that the court did not exceed its
legislative authority by imposing multiple punishments for the same
offense.
Calle, 125 Wn.2d at 776.
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No. 76744-5-1/4
For the first time on appeal, Guzman Rodriguez contends that he is
exposed to multiple punishments as a result of having the convictions of
attempted murder in the second degree (of Mejia Albino) and assault in the first
degree (of Mejia Albino) reduced to judgment with sentences for each imposed
upon him.
Although the State may bring multiple charges arising from the same
criminal conduct,"[w]here a defendant's act supports charges under two criminal
statutes, a court weighing a double jeopardy challenge must determine whether,
in light of legislative intent, the charged crimes constitute the same offense."
State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753(2005)(quoting In re Pers.
Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004)). "If the
legislature authorized cumulative punishments for both crimes, then double
jeopardy is not offended." Freeman, 153 Wn.2d at 771.
Our Supreme Court has adopted a four-part inquiry to determine if the
legislature intended multiple punishments in a particular situation. Freeman, 153
Wn.2d at 771-73. First, we consider any express or implicit legislative intent
based upon the criminal statutes involved. Freeman, 153 Wn.2d at 771-72.1
If this intent is unclear, we may turn to the "same evidence" test set forth in
Blockburcier v. United States, 284 U.S. 299, 304, 52S. Ct. 180,76 L. Ed. 306
(1932), to assess whether the two offenses are the same in both fact and law.
Freeman, 153 Wn.2d at 771-72. "If each crime contains an element that the
I See, e.g., RCW 9A.52.050 (legislature explicitly provided that burglary shall be
punished separately from any related crime); Calle, 125 Wn.2d at 777-78 (legislature implicitly
intended rape and incest to be treated as separate offenses).
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No. 76744-5-1/5
other does not, we presume that the crimes are not the same offense for double
jeopardy purposes." State v. Esparza, 135 Wn. App. 54, 60, 143 P.3d 612
(2006)(quoting Freeman, 153 Wn.2d at 772).
"IV applicable, the merger doctrine is another aid in determining
legislative intent, even when two crimes have formally different elements. Under
the merger doctrine, when the degree of one offense is raised by conduct
separately criminalized by the legislature, we presume the legislature intended to
punish both offenses as one crime through a greater sentence for the greater
crime." Esparza, 135 Wn. App. at 60(quoting Freeman, 153 Wn.2d at 772-73).
Lastly, even if two convictions appear to merge on an abstract level under this
test, they may be punished separately if an independent purpose or effect for
each exists.2 State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212(2008).
"Where one of the two crimes is an attempt crime, the test requires further
refinement." In re Pers. Restraint of Borrero, 161 Wn.2d 532, 537, 167 P.3d
1106 (2007). This is because, our Supreme Court has explained, one of the
elements of an attempt crime is that the defendant "does any act which is a
substantial step toward the commission of that crime." Borrero, 161 Wn.2d at
537(quoting former ROW 9A.28.020(1)(1975)). The "substantial step" element
is merely a placeholder until the facts of the particular case give it independent '
2 As instructed by United States Supreme Court in United States v. Dixon, 509 U.S. 688,
113 S. Ct. 2849, 125 L. Ed. 2d 556(1993), it is not a proper double jeopardy analysis to engage
in the "same conduct" test that was announced in Grady v. Corbin, 495 U.S. 508, 521, 110 S. Ct.
2084, 109 L. Ed. 2d 548(1990), overruled by Dixon, 509 U.S. 688, overruling recognized by State
v. Gocken, 127 Wn.2d 95, 101, 896 P.2d 1267(1995). Thus, the "same conduct" test applies to
neither a Fifth Amendment nor an article I, § 9 double jeopardy analysis. Gocken, 127 Wn.2d at
107.
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No. 76744-5-1/6
meaning. Borrero, 161 Wn.2d at 537. "Only by examining the actual facts
constituting the 'substantial step' can the determination be made that the
defendant's double jeopardy rights have been violated." Borrero, 161 Wn.2d at
537.
However, the court explained, even where the same facts supporting the
defendant's conviction for the separate offense could also constitute the
substantial step of the attempt crime, double jeopardy is not violated when there
are additional facts in the record that would also constitute the substantial step.
Borrero, 161 Wn.2d at 538. The reviewing court should not presume "that the
trier of fact relied on only the facts tending to prove both crimes." Borrero, 161
Wn.2d at 538. Instead, unless the facts providing the basis for the separate
conviction are also necessary to prove the attempt crime, double jeopardy
principles are not offended. Borrero, 161 Wn.2d at 538-39.
B
The criminal statutes at issue herein are attempted murder in the second
degree and assault in the first degree. The criminal attempt statute reads, in
relevant part,"A person is guilty of an attempt to commit a crime if, with intent to
commit a specific crime, he or she does any act which is a substantial step
toward the commission of that crime." RCW 9A.28.020(1). The criminal statute
for murder in the second degree reads, in relevant part,"A person is guilty of
murder in the second degree when:(a) With intent to cause the death of another
person but without premeditation, he or she causes the death of such person or
of a third person." RCW 9A.32.050(1).
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No. 76744-5-1/7
The statute setting forth the crime of assault in the first degree reads, in
pertinent part, "A person is guilty of assault in the first degree if he or she, with
intent to inflict great bodily harm: (a) Assaults another with a firearm or any
deadly weapon or by any force or means likely to produce great bodily harm or
death." RCW 9A.36.011(1).
1
We now turn to the first step of the double jeopardy analysis. "Again, if the
statutes explicitly authorize separate punishments, then separate convictions do
not offend double jeopardy." Freeman, 153 Wn.2d at 773. "Evidence of
legislative intent may be clear on the face of the statute, found in the legislative
history, the structure of the statutes, the fact the two statutes are directed at
eliminating different evils, or any other source of legislative intent." Freeman,
153 Wn.2d at 773(citing Ball v. United States, 470 U.S. 856, 864, 105 S. Ct.
1668, 84 L. Ed. 2d 740(1985); Calle, 125 Wn.2d at 777-78).
The criminal attempt statute and the assault in the first degree statute do
not explicitly approve of the imposition of multiple punishments. However, we
note that the two offenses serve different purposes and that the legislature
placed these criminal statutes in different chapters of the criminal code. Criminal
attempt is set forth in chapter 9A.28 RCW,Anticipatory Offenses, whereas
assault in the first degree is set forth in chapter 9A.36 RCW,Assault—Physical
Harm. In addition, the criminal statute underlying the attempt crime herein, RCW
9A.32.050(1), is set forth in chapter 9A.32 RCW,concerning acts of homicide.
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No. 76744-5-1/8
The primary intent of chapter 9A.28 RCW is to punish those actions taken
in anticipation of committing a crime, such as criminal solicitation, RCW
9A.28.030, criminal conspiracy, RCW 9A.28.040, and, pertinent here, criminal
attempt, RCW 9A.28.020. The legislature's intent, when read in light of the
murder crime attempted herein, would be to punish those actions taken in
anticipation of committing an unlawful homicide. By contrast, the primary intent
of chapter 9A.36 RCW is directed at punishing assaultive conduct that may result
in physical harm, including assault, RCW 9A.36.011-.041, drive-by shooting,
RCW 9A.36.045, and reckless endangerment, RCW 9A.36.050.
That the legislature penalized an act constituting a substantial step toward
causing the death of another and an act of assault against another suggests that
the legislature intended that the crimes be treated differently. Furthermore, it is
conceivable that the legislature envisioned punishing both conduct that strongly
corroborates a criminal purpose to commit murder, while stopping short of an
assaultive act, and conduct amounting to commission of a physically assaultive
act. Thus, the explicit and implicit legislative intent tends to suggest that the
legislature envisioned that the two offenses be treated separately.
2
We next consider the Blockburcter "same evidence" test. Freeman, 153
Wn.2d at 772. "If each crime contains an element that the other does not, we
presume that the crimes are not the same offense for double jeopardy purposes."
Freeman, 153 Wn.2d at 772.
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No. 76744-5-1/9
i
As a preliminary matter, there are several indications that the
aforementioned crimes are not the same offense for double jeopardy purposes.
First, the statutory elements are not the same. Each criminal statute requires
proof of a distinct mental state—attempted murder in the second degree requires
that an actor intend to cause the death of another whereas assault in the first
degree requires an intent to inflict great bodily harm. Indeed, proof of intent to
inflict great bodily harm is not sufficient to prove intent to cause the death of
another. Conceivably, a person could act with the intent to cause great bodily
harm to another without also intending to kill such person.
In addition to setting forth distinct statutory elements, the criminal statutes
require proof of distinct conduct. Assault in the first degree requires that an
assaultive act be proved. However, unlike attempted murder in the second
degree, the assault crime is not necessarily proved by an act constituting a
substantial step taken toward causing the death of another. Indeed, it is
conceivable that a person could engage in conduct strongly corroborative of a
murderous purpose (such as approaching an unsuspecting victim with the means
to commit murder in hand), and yet stop short of committing an assaultive act
"likely to produce great bodily harm or death." RCW 9A.36.011(1)(a); see
Esparza., 135 Wn. App. at 63. In this way, proof of the crime of assault in the first
degree is not required in order to prove attempted murder in the second degree.
See Esparza, 135 Wn. App. at 64. Thus, we presume that the crimes are not the
same offense for double jeopardy purposes.
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No. 76744-5-1/10
II
We note, however, that when applying the Blockburger test, we do not
consider the elements of the crimes at issue solely on an abstract level. Rather,
"where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does
not." Orange, 152 Wn.2d at 817(quoting Blockburger, 284 U.S. at 304 (citing
Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489
(1911))).
To convict Guzman Rodriguez of attempted murder in the second degree,
the State was required to prove that Guzman Rodriguez, with the intent to cause
the death of Mejia Albino, took a substantial step toward causing the death of
Mejia Albino. RCW 9A.28.020(1); ROW 9A.32.050(1). A "substantial step" for
purposes of the criminal attempt statute is defined as conduct that is strongly
corroborative of the actor's criminal purpose. Esparza, 135 Wn. App. at 63.
Conduct strongly corroborative of an actor's criminal purpose includes, "lying in
wait, searching for or following the contemplated victim of the crime," and
"possession, collection or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its commission,
where such possession, collection or fabrication serves no lawful purpose of the
actor under the circumstances." State v. Workman, 90 Wn.2d 443,451-52 n.2,
584 P.2d 382(1978)(quoting Model Penal Code § 5.01(2)(Proposed Official
Draft, 1962)).
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No. 76744-5-1/11
To convict Guzman Rodriguez of assault in the first degree, the State had
to prove that Guzman Rodriguez, with intent to inflict great bodily harm,
assaulted Mejia Albino "with a firearm or any deadly weapon or by any force or
means likely to produce great bodily harm or death." RCW 9A.36.011(1)(a).
As mentioned, we do not presume "that the trier of fact relied on only the
facts tending to prove both crimes." Borrero, 161 Wn.2d at 538. Instead, unless
the facts that provide the basis for the separate conviction are also necessary to
prove the attempt crime, double jeopardy principles are not offended. Borrero,
161 Wn.2d at 538-39.
As demonstrated by the evidence adduced at trial, the instructions given
to the jury, and the State's closing argument, the facts required to prove Guzman
Rodriguez's assault in the first degree conviction were not necessary to prove his
attempted murder in the second degree conviction. As mentioned, it was
adduced at trial that Guzman Rodriguez, with a scarf in his hand, had
approached Mejia Albino while she was sleeping, expressed his intent to kill her
once she had awakened, and then wrapped the scarf around her neck. These
facts would be sufficient to prove the requisite act constituting the substantial
step for attempted murder in the second degree. See, e.g., State v. Davis, 174
Wn. App. 623, 632-34, 300 P.3d 465(2013)(proof of retrieving the murder
weapon and moving toward victim was sufficient to establish an act constituting a
substantial step toward causing the death of another).
By contrast, this same conduct is not necessary to prove the assault in the
first degree conviction and, moreover, the assault conviction is supported by
No. 76744-5-1/12
distinct facts adduced at trial. Indeed, the State had proffered evidence that
Guzman Rodriguez had intentionally tightened the scarf around Mejia Albino's
neck and, shortly thereafter, wrapped his hands around her neck to choke her.
Proof of either of these physically harmful acts would suffice to establish an
assault likely to inflict great bodily injury or death to Mejia Albino.
In this way, the evidence presented at trial providing the basis for Guzman
Rodriguez's assault in the first degree conviction was not necessary to prove the
attempted murder crime. This suggests that the jury relied on distinct evidence
to convict Guzman Rodriguez of both crimes.3
The jury instructions and the jury's special verdict form further suggest that
the jury convicted Guzman Rodriguez of the two crimes based on different
evidence. "A jury is presumed to follow the court's instructions." State v. Foster,
135 Wn.2d 441, 472, 957 P.2d 712(1998). The jury instructions regarding the
crime of assault in the first degree defined assault as a harmful or offensive
touching and indicated that it must be proved that the assault "was committed
with a deadly weapon or by a force or means likely to produce great bodily harm
or death." In addition, the jury returned a special verdict form which found that
Guzman Rodriguez had committed assault "by a force or means likely to produce
great bodily harm or death." In this way, the jury determined that Guzman
3 Guzman Rodriguez relies upon Orange, 152 Wn.2d 795, and State v. Valentine, 108
Wn. App. 24, 29 P.3d 42(2001), for the proposition that the crimes for which he was convicted
are the same offense for double jeopardy purposes. His reliance is unavailing. In Orange and
Valentine, unlike here, the proof supporting the assault in the first degree conviction and the
attempted murder conviction was the same.
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No. 76744-5-1/13
Rodriguez had engaged in a harmful or offensive touching by a force or means
likely to produce great bodily harm or death.
By comparison, to convict Guzman Rodriguez of attempted murder in the
second degree, the jury was instructed to determine whether it was proved that
"on or about the 4th day of June, 2015, the defendant did an act that was a
substantial step toward the commission of murder in the second degree."
(Emphasis added.) This was not an instruction to convict upon finding that
Guzman Rodriguez had committed harmful or offensive touching by a force or
means likely to produce great bodily harm or death. Rather, it directed the jury to
convict if it found that Guzman Rodriguez committed an act that was a
substantial step toward the commission of murder in the second degree. Taken
together, the jury instructions further suggest that the jury convicted Guzman
Rodriguez based on distinct evidence.
In addition, the State made clear in closing argument that it had introduced
evidence of Guzman Rodriguez's conduct that took place before he engaged in
the assaultive conduct that could satisfy the substantial step element of the
attempt crime:
So what did he do that was an actual substantial step,
conduct towards committing the crime of Murder in the First
Degree?[41 And here there are several substantial steps that he
took.
The defendant left the living room, where he was, and
entered the bedroom with a scarf. The defendant crawled up into
that bed with Leonila, where she was sleeping, her little girl beside
her, and woke her up.
4 The State had charged Guzman Rodriguez with attempted murder in the first degree.
At trial, after the testimony had concluded, the court instructed the jury on both attempted murder
in the first degree and attempted murder in the second degree.
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No. 76744-5-1/14
The defendant wrapped that scarf around his hands and
then wrapped it around her neck and squeezed. He struggled with
her. She fought with him. He kept that pressure on. She got away
from him, and he grabbed her again and again squeezed his hands
- - her neck with his hands. All of those are substantial steps
toward committing the crime of Murder in the First Degree.
With regard to the assault in the first degree charge, the State argued in
closing that Guzman Rodriguez committed assaultive conduct as evidenced "[b]y
the injuries, by the defensive wounds that Leonila exhibits on her body,
specifically those wounds that she inflicted on herself when she's desperately
trying to get that scarf off her neck." In its rebuttal to defense counsel's argument
in closing that a lesser assault crime was committed, the State emphasized that,
"[w]hat happened here was so much more serious. What happened here was
the placing of a ligature on somebody's neck for a prolonged period of time,
throughout a struggle, and then putting hands on the person's neck for a
prolonged period of time."
In this way, the State's closing argument highlighted that the jury could
convict Guzman Rodriguez of the two charged crimes and, in so doing, rely upon
different evidence. Davis, 174 Wn. App. at 633. As to the attempt charge, the
State indicated that it had introduced evidence of, not only assaultive acts by
Guzman Rodriguez, but also of his criminal conduct occurring prior to the
assaultive acts. The State suggested that, as to each of Guzman Rodriguez's
acts that it had mentioned, the jury could rely upon any of them—including the
nonassaultive acts—to determine that Guzman Rodriguez took a substantial step
toward committing murder. By comparison, the State's closing argument for the
assault charge highlighted only the evidence of Guzman Rodriguez's assaultive
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No. 76744-5-1/15
conduct (strangulation by scarf and by hands). Thus, the State's closing
argument informed the jury that it could convict Guzman Rodriguez of each
charged crime using different evidence.5 This was consistent with Borrero. 161
Wn.2d at 538-39.
The evidence adduced at trial, the jury instructions, and the State's closing
argument demonstrate that the jury convicted Guzman Rodriguez of attempted
murder in the second degree and assault in the first degree using different
evidence. Thus, the two crimes were not the same offense in fact for double
jeopardy purposes. Accordingly, the trial court did not violate the double
jeopardy clauses of the state and federal constitutions by entering judgment on
the jury's verdicts convicting Guzman Rodriguez of assault in the first degree and
attempted murder in the second degree.6
III
Guzman Rodriguez requests that no costs associated with his appeal be
assessed against him, as he was found indigent by the trial court.
5 The legislature did not intend that the merger doctrine apply to these circumstances.
[T]he merger doctrine is a rule of statutory construction which only applies where
the Legislature has clearly indicated that in order to prove a particular degree of
crime (e.g., first degree rape)the State must prove not only that a defendant
committed that crime (e.g., rape) but that the crime was accompanied by an act
which is defined as a crime elsewhere in the criminal statutes (e.g., assault or
kidnapping).
State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853(1983). Here, the crime of attempted
murder is not elevated to a higher degree by proof that Guzman Rodriguez committed assault in
the first degree. Thus, the merger doctrine does not apply.
6 Guzman Rodriguez relies upon the State's concession at sentencing that the acts
underlying each crime for which he was convicted were the "same criminal conduct" for
sentencing purposes. Guzman Rodriguez's reliance is unavailing. This concession at sentencing
does not bear on the question of whether—for a double jeopardy claim based upon multiple
convictions—the trial court violated Guzman Rodriguez's double jeopardy right by entering
judgment on the jury's verdicts.
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Should the State seek an award of costs, the matter will be resolved
pursuant to RAP 14.2.
Affirmed.
We concur:
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