State v. Villanueva-Gonzalez

• Decision Date: 17 July 2014
• Docket Number: No. 89364–1.,89364–1.
• Citation: 180 Wash.2d 975,329 P.3d 78
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Miguel Angel VILLANUEVA–GONZALEZ, Respondent.

180 Wash.2d 975

329 P.3d 78

STATE of Washington, Petitioner,

v.Miguel Angel VILLANUEVA–GONZALEZ, Respondent.

No. 89364–1.

Supreme Court of Washington,

En Banc.

July 17, 2014.

Anne Mowry Cruser, Clark County Prosecuting Attorney, Vancouver, WA, for Petitioner.

Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Respondent.

OWENS, J.

¶ 1 Miguel Angel Villanueva–Gonzalez was convicted of second degree assault and fourth degree assault for attacking his girl friend. He contends that his actions constituted one assault, and therefore his two convictions violate double jeopardy. To analyze his claim, we look to how the legislature has defined “assault” and determine whether the legislature intended to punish assault as a course of conduct or upon each individual act. However, the legislature has not provided a definition of assault and the common law definition is ambiguous. Thus, we are guided by the many other jurisdictions that have treated assault as a course of conduct crime, and we are mindful of the “rule of lenity,” which requires us to adopt the interpretation most favorable to the defendant. See State v. Roberts, 117 Wash.2d 576, 586, 817 P.2d 855 (1991). We affirm the Court of Appeals and hold that Villanueva–Gonzalez's two assault convictions violate double jeopardy because the underlying acts occurred during the same course of conduct.

FACTS

¶ 2 After Villanueva–Gonzalez's longtime girl friend returned from a night out dancing without him, she went into their children's bedroom. Villanueva–Gonzalez entered the room and told her to get out. She did not leave the room, so he pulled her out. After pulling her out of the room, he hit her head with his forehead, breaking her nose in two places and causing her to bleed profusely. He then grabbed her by the neck and held her against some furniture. She was unable to get up while he was holding her, and she said it was hard to breathe because of the blood running down her face and because he was holding her by the neck. In response to a report of a domestic disturbance, the police arrived and arrested Villanueva–Gonzalez. His girl friend went to the hospital for a CAT (computerized axial tomography) scan and medical treatment.

¶ 3 The State charged Villanueva–Gonzalez with two counts of second degree assault.¹ Count one alleged that Villanueva–Gonzalez intentionally assaulted the victim “by strangulation,” contrary to former RCW 9A.36.021(1)(g) (2007). Clerk's Papers (CP) at 22. Count two alleged that Villanueva–Gonzalez intentionally assaulted the victim “and thereby did recklessly inflict substantial bodily harm,” contrary to RCW 9A.36.021(1)(a). Id. at 23. Both were charged as domestic violence offenses. The parties later agreed to include fourth degree assault as a lesser included charge on both counts one and two.

¶ 4 For count one (based on grabbing the victim's neck), the jury convicted Villanueva–Gonzalez of the lesser included charge of fourth degree assault. For count two (based on the head butt), the jury convicted Villanueva–Gonzalez of second degree assault. Villanueva–Gonzalez appealed, contending that the two convictions violated double jeopardy. The Court of Appeals agreed and reversed the fourth degree assault conviction. State v. Villanueva–Gonzalez, 175 Wash.App. 1, 8, 304 P.3d 906 (2013). The State petitioned for review, which we granted. State v. Villanueva–Gonzalez, 179 Wash.2d 1008, 316 P.3d 494 (2014).

ISSUE

¶ 5 Did Villanueva–Gonzalez's convictions for second degree assault and fourth degree assault violate double jeopardy?

ANALYSIS

¶ 6 Villanueva–Gonzalez claims that his two convictions violate the prohibitions on double jeopardy in the federal and state constitutions. SeeU.S. Const. amend. V; Wash. Const.. art. I, § 9. We review double jeopardy claims de novo. State v. Hughes, 166 Wash.2d 675, 681, 212 P.3d 558 (2009).

¶ 7 The principle of double jeopardy prevents a person from being “twice put in jeopardy for the same offense.” Wash. Const. art. I, § 9. The prohibition on double jeopardy generally means that a person cannot be prosecuted for the same offense after being acquitted, be prosecuted for the same offense after being convicted, or receive multiple punishments for the same offense. Dep't of Revenue v. Kurth Ranch, 511 U.S. 767, 769 n. 1, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). It is that last principle—that a person cannot receive multiple punishments for the same offense—that we grapple with today.

¶ 8 Notably, while this is a constitutional issue, it is ultimately “a question of statutory interpretation and legislative intent.” State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998). The legislature is tasked with defining criminal offenses, and the prohibition on double jeopardy imposes “[f]ew, if any, limitations” on that power. Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). Thus, this case requires us to determine whether Villanueva–Gonzalez was punished twice for the “same offense,” which turns on the question of whether the legislature intended to define assault in such a way that Villanueva–Gonzalez's actions constituted one offense or multiple offenses.

1. To Determine Whether Double Jeopardy Was Violated, We Must Look to the Act or Course of Conduct the Legislature Intended To Punish

¶ 9 We generally apply different double jeopardy analyses depending on whether the convictions at issue were under the same statutory provision or different statutory provisions. The “unit of prosecution” analysis applies when a defendant has multiple convictions under the same statutory provision, and it asks “what act or course of conduct has the Legislature defined as the punishable act.” Adel, 136 Wash.2d at 634, 965 P.2d 1072. The “ Blockburger ” ² analysis applies when a defendant has convictions under different statutes, and it asks whether the convictions were “the same in law and in fact.” Id. at 632–33, 965 P.2d 1072.

¶ 10 In this case, Villanueva–Gonzalez was convicted of violating RCW 9A.36.021(1)(a), which states, “A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree[,] ... [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm.” He was also convicted of violating RCW 9A.36.041(1), which states, “A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.”

¶ 11 Villanueva–Gonzalez argues that because he was convicted under two different assault provisions, the Blockburger analysis applies. The State argues that the unit of prosecution test applies because both convictions were under the assault statute. Neither is a perfect fit for this case, where one crime (fourth degree assault) is typically a lesser included charge to the other crime (second degree assault). While Villanueva–Gonzalez is technically correct that he was convicted under two different assault provisions, the Blockburger analysis is not helpful here. The Blockburger analysis is a tool for courts to determine whether two different crimes were based on the same evidence, and it asks whether each statutory provision requires proof of a fact that the other does not. Adel, 136 Wash.2d at 633, 965 P.2d 1072. Our prior cases applying the Blockburger analysis focus on whether two crimes are the same in law. Those cases and that analysis do not help us in this case, where the convictions are plainly the same in law and one did not require proof of a fact that the other did not. ³

¶ 12 Even under the Blockburger analysis, if two convictions are the same in law, we then analyze whether they are the same in fact. To resolve this issue, we must determine what act or course of conduct the legislature has defined as the punishable act. This is the exact question that the unit of prosecution test is designed to answer. Therefore, we find it appropriate to apply the unit of prosecution test in this case.

2. Because the Common Law Definition of Assault is Open to Multiple Reasonable Interpretations, We Look to Other Jurisdictions and Apply the Rule of Lenity To Determine That Assault Is a Course of Conduct Crime

¶ 13 In determining whether the legislature intended assault to be a course of conduct offense or a separate act offense, we first turn to the statutory language. See Adel, 136 Wash.2d at 634–35, 965 P.2d 1072. However, there is no statutory definition of assault and so we must turn to the common law definition of assault. Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 504, 125 P.2d 681 (1942). In this case, the jury was instructed on the common law definition of assault from the pattern jury instructions:

An assault is an intentional touching or striking of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive.

CP at 41 (emphasis added) (Instruction 10); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.50, at 547 (3d ed.2008) (WPIC). This court has cited the WPIC definition of assault as the common law definition of assault. See State v. Smith, 159 Wash.2d 778, 781–82, 154 P.3d 873 (2007).

¶ 14 In this definition, the key phrase describing the nature of the act is “an intentional touching or striking.” On its face, we do not find this language clear as to whether assault is a course of conduct offense or a separate act offense. The Eighth Circuit Court of Appeals came to a similar conclusion in United States v. Chipps, 410 F.3d 438 (8th Cir.2005). There, the court considered whether double jeopardy was violated when a defendant was convicted of two counts of simple assault for assaulting the victim with his feet and with a baseball...