State v. Vasquez
| Decision Date | 09 March 2023 |
| Docket Number | 38336-9-III |
| Parties | STATE OF WASHINGTON, Respondent, v. SERGIO BARRAGAN VASQUEZ, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
SERGIO BARRAGAN VASQUEZ FORCED HIS FORMER GIRLFRIEND INTO A BEDROOM WHERE HE THREATENED TO KILL HER. BUT WHEN HE HEARD THEIR DAUGHTER COMING HOME, HE LEFT THE HOUSE. HE SOON RETURNED GRABBED A KNIFE, FOUND THE TWO HIDING IN A BATHROOM, AND THEN THREATENED TO KILL THEM AND THEN HIMSELF.
A jury convicted Mr. Barragan Vasquez of two counts of assault in the second degree and two counts of felony harassment. He argues his felony harassment convictions violate double jeopardy. He also argues his convictions for threatening to kill his former girlfriend and assaulting her with a deadly weapon were the same criminal conduct for scoring purposes the trial court erred in calculating his offender scores, and the court erred by imposing the community supervision fee and the domestic violence assessment.
We conclude the trial court did not violate double jeopardy by entering judgment and punishing Mr. Barragan Vasquez for both pairs of assault in the second degree and felony harassment convictions. We also conclude the trial court did not abuse its discretion by finding that his convictions arising out of his acts toward his former girlfriend were not the same criminal conduct. We further conclude that the trial court erred in calculating Mr. Barragan Vasquez's offender scores for counts 1, 3, 4, and 5. We remand for resentencing and direct the trial court to not impose the community custody supervision fee and to exercise its discretion whether to impose the domestic violence assessment.
Sergio Barragan Vasquez and Veronica Pineda-Nunez share a daughter B.B.P. Ms. Pineda-Nunez and B.B.P. lived with Mr. Barragan Vasquez's sister and other family for a few months. Toward the end of the sister's lease, everyone had moved out of the house except Ms. Pineda-Nunez and B.B.P.
One night in November 2019, Ms. Pineda-Nunez was at the house alone. B.B.P., then eight years old, was with Mr. Barragan Vasquez's sister. Mr. Barragan Vasquez entered the house and told his former girlfriend that he wanted to talk to her in the back bedroom. She was scared he would do something to her so she refused. He then grabbed her hand and forced her into the bedroom. Once there, he released her and told her he would kill her. Ms. Pineda-Nunez yelled at him, hoping someone would hear her.
At that moment, Mr. Barragan Vasquez's sister dropped off B.B.P. Mr. Barragan Vasquez went outside behind the house and Ms. Pineda-Nunez went into the bathroom. B.B.P. entered the house, her father came back inside, spoke to her, and then he went to the kitchen where he grabbed a knife. Ms. Pineda-Nunez saw her daughter and told her to come into the bathroom with her. Mr. Barragan Vasquez then entered the bathroom with the knife and told Ms. Pineda-Nunez and their daughter that all three of them were going to die. After about 20 minutes, he gave in to B.B.P.'s pleas for him to stop, and he left the house and drove away.
Ms. Pineda-Nunez and B.B.P. called 911 and described the car Mr. Barragan Vasquez was driving. An officer saw the car while responding to the scene and attempted to stop it. After a short high-speed chase, Mr. Barragan Vasquez crashed his car, fled on foot, and was arrested.
The State charged Mr. Barragan Vasquez with two counts of assault in the second degree and two counts of felony harassment (threat to kill) ("FH"), and added a deadly weapon and a domestic violence ("DV") enhancement to each of the four counts. The State also charged him with attempting to elude a police vehicle.
Prior to trial, Mr. Barragan Vasquez pleaded guilty to attempting to elude. A jury found him guilty of the other four counts and found the presence of all the charged aggravators.
At sentencing, Mr. Barragan Vasquez argued that the assault and harassment convictions with respect to each victim should be considered the same criminal conduct because "[t]here were no separate incidents," just "one occasion" in the bathroom. 2 Rep. of Proc. (RP) (July 9, 2021) at 598. The trial court found that the offenses were the same criminal conduct with respect to B.B.P. but not with respect to Ms. Pineda-Nunez. The court noted that the offenses in the back bedroom and the bathroom happened at two separate times.
There were extensive discussions about how to calculate Mr. Barragan Vasquez's offender score for each conviction. Ultimately, the trial court calculated his offender score as:
Count 1 (assault 2, DV, Pineda-Nunez): 6 Count 2 (assault 2, DV, B.B.P.): 5 Count 3 (attempting to elude): 4 Count 4 (FH, DV, Pineda-Nunez): 6 Count 5 (FH, DV, B.B.P.): 4
Based on these offender scores, the trial court sentenced Mr. Barragan Vasquez to the bottom-end standard range sentence of 69 months and imposed a $500 victim assessment, a $100 domestic violence victim assessment, a $100 deoxyribonucleic acid (DNA) collection fee, and required him to abide by any additional conditions imposed by the Department of Corrections (DOC) under RCW 9.94A.704 and RCW 9.94A.706. Former RCW 9.94A.703(2)(d) (2018) required an offender to pay the community custody supervision fee assessed by DOC.
Mr. Barragan Vasquez appeals.
Mr. Barragan Vasquez contends his two felony harassment convictions violate double jeopardy because those convictions are for the same offenses as his convictions for assault in the second degree. We disagree.
A double jeopardy claim can be raised for the first time on appeal. State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998). If separate convictions violate double jeopardy, the lesser conviction must be vacated. State v. Hughes, 166 Wn.2d 675, 686 n.13, 212 P.3d 558 (2009). Whether separate convictions violate double jeopardy is a question of law, which we review de novo. In re Pers. Restraint of Knight, 196 Wn.2d 330, 336, 473 P.3d 663 (2020).
The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 9 of the Washington Constitution prohibit multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). Id. at 776 (citation omitted) (citing Whalen v. United States, 445 U.S. 684, 688-89, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)). A reviewing court's task is thus limited to ensuring that the trial court did not exceed its legislated authority by imposing multiple punishments for the same offense. Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).
"In order to qualify as the 'same offense' for double jeopardy purposes, the two offenses must be the same both in law and in fact." State v. Arndt, 194 Wn.2d 784, 815, 453 P.3d 696 (2019) (citing Calle, 125 Wn.2d at 777). "Where 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." In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).
"When determining whether two convictions and sentences violate double jeopardy, our analysis begins with whether the legislature 'authorized cumulative punishments for both crimes,' either via 'express or implicit legislative intent.'" Knight, 196 Wn.2d at 336 (quoting State v. Freeman, 153 Wn.2d 765, 771-72, 108 P.3d 753 (2005)). Here, neither the statute for assault in the second degree nor felony harassment authorizes these crimes to be punished separately from any related crime. See RCW 9A.36.021; RCW 9A.46.020. Nor have the parties cited any legislative history for us to infer legislative intent for separate punishments.
If the legislature did not expressly or implicitly authorize cumulative punishments, we then analyze the conviction under the Blockburger[1] test: "'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). Here, RCW 9A.36.021(1)(c) requires an assault with a deadly weapon, whereas RCW 9A.46.020 does not. RCW 9A.46.020 requires a threat to kill, whereas RCW 9A.36.021(1)(c) does not.
But technical differences are not always sufficient to distinguish two crimes under the same evidence test. Hughes, 166 Wn.2d at 682-84. The real question is whether, under the circumstances of the case, each charged offense required proof of a fact that the other did not. Freeman, 153 Wn.2d at 772; State v. Hancock, 17 Wn.App. 2d 113, 120, 484 P.3d 514, review denied, 198 Wn.2d 1005, 493 P.3d 739 (2021). Here, the assault offense required proof of a different fact-the knife-and the harassment offense required proof of a different fact-words or conduct that threatened to kill. We conclude that the entry and punishment for the two different felonies is not prohibited by double jeopardy.
Mr Barragan Vasquez contends the trial court erred by failing to find his assault and harassment of Ms. Pineda-Nunez were the same criminal conduct. We disagree.
Whether two offenses constitute the same criminal conduct is a...
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