State v. Pineda-Pineda

• Decision Date: 01 March 2010
• Docket Number: No. 61722-2-I.,61722-2-I.
• Citation: 154 Wn. App. 653,226 P.3d 164
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Eli PINEDA-PINEDA, Appellant.

226 P.3d 164

154 Wn. App. 653

STATE of Washington, Respondent, v. Eli PINEDA-PINEDA, Appellant.

No. 61722-2-I.

Court of Appeals of Washington, Division 1.

March 1, 2010.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Appellant.

Trisha Dian Johnson, Skagit County Prosecuting Attorney, Mount Vernon, WA, for Respondent.

APPELWICK, J.

¶ 1 Eli Pineda-Pineda appeals his sentence enhancement for delivery of a controlled substance in a school zone, as authorized by RCW 69.50.435. Because he was convicted of the crime based on accomplice liability and was not physically present in the school zone when the delivery occurred, he argues the enhancement should be vacated. Without explicit statutory authorization for imposition of the enhancement on the basis of accomplice liability, the defendant's own acts must form the basis for the enhancement. We vacate the sentence enhancement.

¶ 2 He also argues his conviction for conspiracy to deliver a controlled substance must be vacated, because the information and the to-convict instruction omitted the "substantial step" element. Although both the charging document and jury instructions were defective, the error was harmless beyond a reasonable doubt. The charges for delivery provided the necessary notice, and his conviction for the underlying delivery necessarily proved the substantial step. We affirm his conviction for conspiracy to deliver a controlled substance.

FACTS

¶ 3 In the spring of 2007, Patricia Hanson was arrested for possession of cocaine after a traffic stop. She agreed to be an informant to avoid prosecution, contacting a narcotics detective who wanted to purchase cocaine from her supplier, Eli Pineda-Pineda. Hanson explained that in the past, Pineda-Pineda, his wife, and another woman would usually be present during the drug transactions.

¶ 4 On May 4, 2007, working with Detective Chris Fuller of the Skagit County Interlocal Drug Enforcement Unit, Hanson called Pineda-Pineda to buy cocaine. Pineda-Pineda told Hanson to meet him at the Valley Cafe. Pineda-Pineda drove by Hanson in a blue Cavalier and motioned to Hanson to follow him. After Hanson followed Pineda-Pineda onto Donnelly Road, they pulled over. Pineda-Pineda got out of his car and sold her the cocaine for cash provided by law enforcement, through Hanson's window. After Pineda-Pineda departed, Hanson gave the cocaine to Detective Fuller, who had been waiting nearby.

¶ 5 The second transaction, on May 9, 2007, occurred in a substantially similar manner as the May 4 transaction. Under the supervision of Detective Fuller, Hanson called Pineda-Pineda to schedule another cocaine purchase. Fuller was with Hanson when she placed the call. Hanson arranged to meet Pineda-Pineda at the Valley Cafe. The blue Cavalier appeared, this time with two women inside. The women motioned for Hanson to follow them, and the two vehicles traveled down Avon Allen Road, where they pulled onto the shoulder near Bennett Road. Detective Fuller observed Hanson get out of her car, into the Cavalier, and then back into her own car and depart. Pineda-Pineda was not in the vehicle. Hanson then met with Detective Fuller to give him the cocaine.

¶ 6 Sharon McCormick, the head dispatcher of the Mount Vernon School District, testified that more than one school bus stop is visible at the intersection of Avon Allen Road and Bennett Road, where the May 9 transaction occurred. She also testified that there are various bus stops at and around Donnelly Road, the location of the May 4 transaction. McCormick explained that members of the public could identify the location of the school bus stops by calling her, calling the bus garage, or visiting school websites.

¶ 7 Detective Fuller testified that two of the stops along Donnelly Road were within 400 feet of the May 4 location. He also testified that he observed a school bus driving along Avon Allen Road just before the May 9 transaction. There was a bus stop across the street, approximately 20-25 feet away from where the vehicles pulled over.

¶ 8 Hanson arranged another transaction with Pineda-Pineda on June 21, 2007, that was to occur in the same manner as the other plans. Detective Fuller expected the deal to take place near Highway 20 and La Conner-Whitney. However, once Pineda-Pineda left his house and began driving, Detective Fuller decided that a marked patrol unit would stop and arrest him, based on the probable cause of the prior buys.

¶ 9 After the arrest, Detective Fuller served a search warrant at Pineda-Pineda's residence. There, Detective Fuller came into contact with two females, who he later identified as the two women who had made the May 9 delivery to Hanson. Their names were Celene Campos-Jaimes and Anabel Camacho Pineda. The search of the home and the Cavalier revealed cocaine and large amounts of money.

¶ 10 The State charged Pineda-Pineda with seven drug-related crimes, including two counts for delivery of a controlled substance (cocaine), and conspiracy to deliver a controlled substance (cocaine). The two delivery charges were based on the events of May 4 and May 9. The conspiracy charge was based on the events spanning May 4 through June 21.

¶ 11 The jury returned guilty verdicts on all counts. It also returned special verdicts on both delivery convictions, finding that the defendant sold or delivered a controlled substance to a person within 1,000 feet of a school bus route stop designated by a school district. The court imposed a standard range sentence and added two school zone enhancements of 24 months each.

¶ 12 Pineda-Pineda timely appealed.

DISCUSSION

I. School Zone Sentence Enhancement

¶ 13 In State v. Silva-Baltazar, 125 Wash.2d 472, 480-84, 886 P.2d 138 (1994), the Supreme Court affirmed sentencing enhancements for accomplices who were physically present in a school zone when the crime occurred. While Silva-Baltazar leaves no doubt that an accomplice may receive a school zone sentencing enhancement when the accomplice is physically present in the school zone, it explicitly deferred the question of whether RCW 69.50.435 applies to accomplices not within the school zone:¹

We reiterate that this case involves defendants who were themselves within 1,000 feet of a school bus stop during the events of the crime, and confine ourselves to the facts here present. We do not decide whether RCW 69.50.435 applies to accomplices who are not within the drug free zone themselves when another participant in the crime engages in the specified drug activity within the drug free zone.

Id. at 480, 886 P.2d 138.

¶ 14 Pineda-Pineda presents a question of first impression: where there is no evidence either that Pineda-Pineda determined the precise location of the delivery or that he was physically present in the school zone when the delivery occurred,² he asks this court to consider whether he can be held strictly liable for a participant's decision to conduct the transaction in the school zone. As discussed above, the May 9 transaction formed the basis for Count II, delivery of a controlled substance, for which the jury found Pineda-Pineda guilty through accomplice liability.

¶ 15 Pineda-Pineda first makes a plain language argument, pointing out that the accomplice liability statute itself, RCW 9A.08.020, contains no language making one person accountable for sentence enhancements based on accomplice liability.³ Pineda-Pineda is correct that the accomplice liability statute cannot be the basis to impose a sentencing enhancement on an accomplice. State v. McKim, 98 Wash.2d 111, 115-16, 653 P.2d 1040 (1982) (analyzing RCW 9A.08.020 and concluding that it did not provide a triggering device for penalty enhancement, as the old accomplice liability statute, former RCW 9.01.030 (1909), did). RCW 9A.08.020 refers only to "the crime," with no mention of sentence enhancements or other circumstances surrounding the commission of the crime. Further, Pineda-Pineda argues, if RCW 9A.08.020 allowed for imposition of enhanced sentences upon accomplices based on the acts of other participants, the sentence enhancement statutes such as the firearm enhancements statute, RCW 9.94A.533, would be unnecessary.

¶ 16 Because the accomplice liability statute does not contain a triggering device for penalty enhancement, the authority to impose a sentencing enhancement on the basis of accomplice liability must come from the specific enhancement statute. For instance, the firearm enhancement statute, RCW 9.94A.533, contains language demonstrating the legislature's intent to extend accomplice liability into the sentencing realm. RCW 9.94A.533(3) reads, "The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010." See Bilal, 54 Wash.App. at 781-84, 776 P.2d 153 (upholding a firearm enhancement where the principal knew his accomplice was armed, and in so doing, discussing former RCW 9.94A.125 (1981) and concluding that the legislature intended to extend accomplice liability to the firearm enhancement statute).

¶ 17 In contrast to that statute, the school zone enhancement statute, RCW 69.50.435, provides that

(1) Any person who violates RCW 69.50.401 by ... delivering, or possessing with the intent to ... sell or deliver a controlled substance ...

...

(c) Within one thousand feet of a school bus route stop designated by the school district;

...

may be punished by a fine ... or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter.

The school zone enhancement statute does not authorize accomplice liability like the firearm enhancement statute.

¶ 18 Pineda-Pineda argues a defendant cannot be held strictly liable for the school zone enhancement without evidence that he was physically present in the school zone at the time of delivery. He argues no school zone sentence...