State v. Medrano, No. 55046-2-I (WA 4/24/2006)
| Decision Date | 24 April 2006 |
| Docket Number | No. 55046-2-I,55046-2-I |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. VICTOR GARCIA MEDRANO, Appellant. |
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.
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."1 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.
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).2
Medrano appeals his judgment and sentence.
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"3 involving "separate and distinct criminal conduct."4 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.
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 113-14.5 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.
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 (); In re Pers. Restraint of Orange, 152 Wn.2d 795, 821, 100 P.3d 291 (2004) (); State v. Wilson, 125 Wn.2d 212, 220, 883 P.2d 320 (1994) (); State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987) (); State v. Salamanca, 69 Wn. App. 817, 828, 851 P.2d 1242 (1993) (); State v. Godwin, 57 Wn. App. 760, 764, 740 P.2d 641 (1990) ().
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...
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