State v. Moreno

Decision Date01 May 2006
Docket NumberNo. 55351-8-I,55351-8-I
Citation132 P.3d 1137,132 Wn. App. 663
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Alejandro Lozano MORENO, Appellant.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, for Respondent.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, for Appellant.

COX, J.

¶ 1 The constitutional protection against double jeopardy is not offended if the legislature intends cumulative punishments for two or more offenses.1 At issue here is whether the legislature intended to punish separately both felony violation of a no-contact order and third degree assault, where the former crime is based, in part, on the latter. Because legislative intent clearly indicates that separate punishments for violations of these two criminal statutes were intended, we hold that there is no double jeopardy violation. There being no other error requiring reversal, we affirm the convictions that Alejandro Lozano Moreno challenges.

¶ 2 Moreno and Cheryl Munoz began dating several years ago. Shortly after their relationship began, Moreno became physically abusive. In June 2003, the municipal court issued a no-contact order for domestic violence prohibiting Moreno from having any contact with Munoz. Despite the no-contact order, Moreno continued to see Munoz.

¶ 3 In February 2004, Moreno and Munoz were wrestling over a piece of candy when Moreno became violent. Specifically, Munoz testified at trial that Moreno assaulted her. This incident occurred while the no-contact order was in effect.

¶ 4 In May 2004, the couple was drinking and got into another fight that turned physical. Munoz testified that she and Moreno were arguing and she grabbed him by the shirt to prevent him from leaving. Moreno pushed her down and hit her in the head several times. Once the police arrived they arrested Moreno. He continued to contact Munoz in violation of the no-contact order.

¶ 5 The charges against Moreno included two counts of felony violation of a no-contact order for the incidents that occurred, respectively, on February 25 and May 9, 2004. There was also a separate count of third degree assault based on the same February 25, 2004 incident underlying one of the counts of felony violation of a no-contact order. Additional charges included one count of interfering with domestic violence reporting and two counts of misdemeanor violations of a court order.

¶ 6 Moreno represented himself at trial. During the State's rebuttal closing argument the prosecutor commented on Moreno's exercise of his constitutional right to defend himself. Moreno did not object. The jury convicted him on all counts, as charged.

¶ 7 The trial court, sua sponte, ordered a hearing to determine whether Moreno was entitled to a new trial based on the prosecutor's comments during rebuttal closing about Moreno representing himself. The trial court found that the comments constituted misconduct but had not prejudiced Moreno. The trial court denied the new trial motion.

¶ 8 At sentencing, Moreno argued that imposing sentences for both third degree assault and felony violation of a no-contact order, which both arose from the same February 25, 2004 incident, violates double jeopardy. The court disagreed and sentenced Moreno on both convictions.

¶ 9 Moreno appeals.

DOUBLE JEOPARDY

¶ 10 Moreno argues that imposing punishment for both third degree assault and felony violation of a no-contact order based on third degree assault violates double jeopardy. We hold that the legislature authorized separate punishments for these two offenses. Thus, there is no double jeopardy violation.

¶ 11 The double jeopardy clauses of the Fifth Amendment and the Washington State Constitution, article I, section 9, "protect against multiple punishments for the same offense. . . ."2 If the legislature authorizes cumulative punishments for both offenses, double jeopardy is not offended.3

¶ 12 In order to determine whether the legislature intended separate punishments for two offenses, we first look at the express language of the pertinent statutes.4 If the language of the statutes is silent on this point, then we turn to statutory construction and apply the "same evidence" test.5 This rule of construction focuses on whether the offenses are the same in fact and law.6 But even if both elements of this test are satisfied, this is not dispositive of the legislature's intent where clear evidence of a contrary intent exists.7 We review de novo whether the legislature intends to punish two crimes separately.8

¶ 13 Here, Moreno was convicted of third degree assault9 and felony violation of a no-contact order10 arising from a single incident on February 25, 2004. Moreover, the felony violation of a court order conviction was based, in part, on the jury's determination that Moreno was also guilty of third degree assault in the same incident. These two statutes do not expressly state whether the legislature intended they should be punished separately. Therefore, we turn to statutory construction.

¶ 14 Under the "same evidence" test, the two offenses are the same in fact. Both offenses were based upon the single assault of Cheryl Munoz that occurred on February 25, 2004. We assume, without deciding, that these offenses are also the same in law.11 Thus, for purposes of our analysis, we assume that these offenses are the same for purposes of the "same evidence" test.

¶ 15 Application of this rule of construction does not end our inquiry. Although the result of the same evidence test may create a presumption that separate punishments are not intended, the test is not controlling where there is clear evidence of contrary legislative intent.12 Clear evidence of contrary legislative intent may be determined from "the statutes' historical development, legislative history, location in the criminal code, or the differing purposes for which they were enacted."13

Locations in the Criminal Code

¶ 16 We start with the fact that the two statutes before us are located in different portions of this state's statutory framework. Assault is codified within Title 9A of the Washington Criminal Code. On the other hand, felony violation of a court order is not within the criminal code. Rather, it is contained within Title 26, Domestic Relations, located under the chapter titled "Domestic Violence Protection."

¶ 17 The legislature was presumably aware that the former statute existed when it passed the latter. We can think of no plausible reason why the legislature chose to enact a statute for the latter crime and place it in a location outside the then existing criminal code if it did not intend that the two crimes should be treated separately.

¶ 18 Significantly, we note that RCW 26.50.210 expressly provides that: "Any proceeding under [the Domestic Violence Protection Act] is in addition to other civil or criminal remedies."14 This language further evidences legislative intent to treat separately punishment under RCW 26.50.110(4) from that under RCW 9A.36.031.

¶ 19 Thus, both the separation of the crimes in the statutes and the express wording indicating that proceedings under the Domestic Violence Protection Act are in addition to other criminal remedies supports our view that these two crimes are to be punished separately.

Varying Purposes for Enactment

¶ 20 We also note that there are other purposes served by the criminalization of certain violations of a court order under this statutory framework. These different purposes buttress our view that the legislature intended that the two crimes before us should be separately punished.

¶ 21 For example, in State v. Calle, the supreme court noted that the incest and rape statutes serve different purposes.15 The primary purpose of incest legislation is to secure family harmony, whereas the primary intent of the rape statute is to prohibit acts of unlawful sexual intercourse. The court found that the different purposes of these two statutes support the result that the legislature intended separate punishments for both crimes.16

¶ 22 Here, felony violation of a court order and third degree assault serve different purposes. The purpose of the assault statute is to prevent assaultive behavior.17 But there are other purposes beyond preventing assaultive behavior for the separate crime of felony violation of a no-contact order.

¶ 23 First, the legislature made express findings when enacting the felony violation of a court order statute that domestic violence "is a problem of immense proportions" that affects not only individuals but communities as well. Such violence is at the core of other major social problems.18 Thus, our supreme court recognized that important aspects of the act are to prevent domestic violence and to provide maximum protection to victims of abuse.19 The assault statute lacks comparable legislative findings and scope.

¶ 24 Second, violations of no-contact orders carry a greater seriousness level than either second or third degree assault. Any violation of a no-contact order has a seriousness level of 5. In contrast, third degree assault carries a seriousness level of 3, and second degree assault a seriousness level of 4.20

¶ 25 Third, the legislature recognized that violation of a no-contact order is a crime against the court and punishable as contempt of court.21

¶ 26 In sum, we conclude on the basis of the above evidence that the legislature clearly intended that the crimes of felony violation of a court order and third degree assault should be considered separate crimes and punished separately. There is no violation of Moreno's Fifth Amendment right against double jeopardy.

PROSECUTORIAL MISCONDUCT

¶ 27 Moreno also argues that the prosecutor's comments during rebuttal closing regarding the exercise of his constitutional right to defend himself denied him the right to a fair trial and entitles him to a new trial. We hold that the prosecutor's misconduct...

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    • United States
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    ...that the defendant only represented himself because he had a strong desire to have power and be in control. See State v. Moreno, 132 Wash.App. 663, 672, 132 P.3d 1137 (2006). Calvin has failed to articulate how his rights were violated by the prosecutor's comments.C. Commenting on Calvin's ......
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