State v. Bianchi

Decision Date04 April 2022
Docket Number83338-3
PartiesSTATE OF WASHINGTON, Respondent, v. RONALD JAY BIANCHI, Appellant.
CourtCourt of Appeals of Washington

UNPUBLISHED OPINION

APPELWICK, J.

Bianchi argues the charges on which he was convicted were barred by the statute of limitations. He argues that he was denied his right to present a defense, that his counsel was ineffective and that the prosecutor engaged in misconduct at closing argument. Bianchi claims the charges of malicious explosion were defective, the related jury instructions were defective and the evidence was insufficient. He argues his multiple convictions of possession of stolen property violate double jeopardy. And, he argues that cumulative error requires reversal. Affirmed in part, reversed in part, and remanded to correct the sentence.

FACTS

On October 17, 1997, Ronald Bianchi, Michael Brock, and Aaron Ahern robbed Seafirst Bank in Vancouver, Washington. Before the bank robbery, Bianchi stole three cars: a Mustang, a LeBaron, and a Camaro. He parked these cars at different locations throughout the area. In preparation for the robbery, Bianchi and Ahern made pipe bombs. He and Ahern stole firearms ammunition, and a grenade.

Before the robbery, the men placed a bomb behind a Kmart store, to draw attention away from the bank. When the bomb exploded, a truck driver was behind the Kmart store completing a delivery at Kmart's loading dock, but he was not injured.

When the three men entered the bank, one of them held a gun to an employee's head. The men stole money from the bank. Bianchi drove the getaway car, the LeBaron. They drove the LeBaron to the Mustang, and got into that car. In the Mustang, they noticed police following them.

Sergeant Craig Hogman, from the Clark County Sheriff's Office, was on traffic patrol at the time, driving in an unmarked police car. He heard radio broadcasts about the explosion and the bank robbery. Sergeant Hogman was in the area of the bank and noticed a Mustang with three people in it, and he started to follow the car to see if they were the suspects. When the Mustang accelerated, Sergeant Hogman turned his lights and siren on. Someone in the Mustang hung out the passenger door window to fire at him with a high powered rifle. He stated the rear window of the Mustang disintegrated, and someone fired out of the back window of the car. He testified, "[M]y assumption was that they had shot out the rear window so that they would have a clear line of sight for shooting at me." Rounds of "constant" gunfire struck his patrol car.

At one point, the Mustang was stopped in the middle of the road, and the shooters in the Mustang "opened fire." Sergeant Hogman says he "took on the most rounds in [his] patrol car." Sergeant Hogman ducked under his dashboard, "trying to move around in attempt not to get hit." He felt "bits of material that [were] like little bits of shrapnel that [were] exploding inside the car." His "radar unit that [was] directly in front of [him] in the patrol car explode[d]." His "driver's window exploded," and the "entire car interior [wa]s exploding at that point." After the shooting stopped and the Mustang drove away, Sergeant Hogman continued to pursue the Mustang at a distance until he lost sight of it.

Officer Lawrence Zapata and Officer Adam Millard, from the Vancouver Police Department, heard from dispatch that Sergeant Hogman needed help. They located the suspects' car, and heard a gunshot coming from the direction of that vehicle. The officers followed the car, and Officer Zapata could see someone firing a rifle out the back of the car, and another person firing a shotgun out of the passenger side window. Officer Zapata testified that he heard both weapons firing, and counted "five or six" shots. Officer Zapata fired a single shot. After this, "rounds [were] still being shot at us," and he saw muzzle flashes.

Eventually, the Mustang hit a tree. Bianchi, Ahern, and Brock ran from the car into a nearby ravine. After the car crashed, Bianchi took off running, while Brock and Ahern fired at the officers. Officer Zapata trained his shotgun on Bianchi, but watched Bianchi run into the ravine out of his sight. Officer Zapata testified that he heard gunfire coming from the ravine, and saw one of Bianchi's accomplices with a shotgun. The officers returned fire, and at some point, the two suspects firing from the ravine were no longer moving. Bianchi fled the ravine and attempted to hide, but he was eventually apprehended by a police officer.

On October 23, 1997, the State charged Bianchi with first degree robbery, three counts of attempted first degree felony murder, and second degree malicious explosion. A second amended information added two additional counts of first degree robbery, two counts of second degree assault, attempt to elude, and three counts of first degree possession of stolen property. Bianchi pleaded guilty to all counts. In exchange for Bianchi's guilty plea, the State dropped charges against his girlfriend, who was charged with multiple felonies related to being an accomplice in all the crimes Bianchi pleaded guilty to in 1998. Bianchi was sentenced to 72 years in prison.

In 2008, the Washington Supreme Court held that attempted felony murder was no longer a crime. In re Personal Restraint of Richey, 162 Wn.2d 865, 870, 175 P.3d 585 (2008). Following that decision, Bianchi brought a personal restraint petition challenging the validity of his convictions for that offense. In re Pers. Restraint of Bianchi, No. 49296-2-II, slip op. at 1, 4 (Wash.Ct.App. Feb. 22, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049296-2-II%20 Unpublished%20Opinion.pdf. The Court of Appeals vacated his three counts for attempted first degree felony murder. Id. at 1, 4. On remand, the trial court granted Bianchi's motion to withdraw his guilty plea for the rest of his counts.

The State filed a fourth amended information on September 1, 2017, charging Bianchi with three counts of attempted first degree murder against the three officers. It also charged him with three counts of robbery in the first degree, two counts of assault in the second degree, attempting to elude a pursuing police vehicle, three counts of possession of stolen property, and malicious explosion in the second degree. A fifth amended information added three charges of attempted murder in the second degree.[1]

The case first went to trial in January 2019. The jury found Bianchi guilty of most charges, including attempted murder in the first degree of Sergeant Hogman. The court declared a mistrial on the charges related to attempted first and second degree murder of Officers Zapata and Millard.

The State retried Bianchi on the attempted murder charges, with trial beginning in September 2019. The jury found Bianchi guilty of both attempted first and second degree murder of Officers Zapata and Millard at the second trial. Bianchi was sentenced to 1, 131 months, or over 94 years, in prison.

Bianchi appeals.

DISCUSSION
I. New Charges
A. Collateral Estoppel

Bianchi argues that the 2017 charges for first degree and second degree attempted murder were barred by the statute of limitations. The State counters that Bianchi previously made this argument to the court, so collateral estoppel bars reviewing the issue again. Bianchi responds that collateral estoppel does not apply because the prior decision did not include any discussion of whether the statute of limitations had run for particular crimes.

"The doctrine of collateral estoppel applies in criminal cases and bars relitigation of issues actually adjudicated." State v. Collicott, 118 Wn.2d 649, 660, 827 P.2d 263 (1992). When applying collateral estoppel, the court must determine which issues were raised and resolved by the former judgment and if those issues are identical. Id. In response to Bianchi's prior personal restraint petition, we held, "[O]n remand, the State will be able to file any charges for which the statute of limitation has not run." Bianchi, No. 49296-2-II at 3. Bianchi did not determine whether any specific charges could be filed. It merely warned that a new filing was a possibility for charges not barred by the statute of limitations. Because the issue of whether the statute of limitations on the murder charges had run was not raised and resolved in the prior case, collateral estoppel does not apply.

B. Statute of Limitation
1. Tolling of the Statute

At the time of Bianchi's crime in 1997, the statute of limitations for attempted murder was three years. Former RCW 9A.04.080(1)(h) (1997). The fourth amended information charging Bianchi with attempted murder was filed in 2017, twenty years after Bianchi's crime. The State argues that the charges were properly filed, as the statute of limitations was tolled when the original information was filed, in 1997. Bianchi argues that the tolling provision does not apply and that the new attempted murder charges against him are barred by the statute of limitations.

Washington state law sets guidelines for time periods in which the State can bring criminal charges against a defendant after the commission of a crime. See RCW 9A.04.080. RCW 9A.04.080(4) provides a tolling provision to extend the statute of limitations:

if, before the end of a period of limitation prescribed in subsection (1) of this section, an indictment has been found or a complaint or an information has been filed, and the indictment, complaint, or information is set aside, then the period of limitation is extended by a period equal to the length of time from the finding or filing to the setting aside.

Statutes of limitation in criminal cases are measures of public policy. State v. Hodgson, 108 Wn.2d 662, 667, 740 P.2d 848 (1987). They can be...

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