Personal Restraint Petition Of Benjamin A Reyes ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
February 25, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of No. 53689-7-II
the Personal Restraint of
BENJAMIN A. REYES,
Petitioner.
UNPUBLISHED OPINION
MAXA, C.J. – Benjamin Reyes seeks relief from personal restraint resulting from his 2004
conviction of two counts of first degree robbery.1 The conviction arose from an incident in which
Reyes entered a small convenience store, pointed a shotgun at the two store clerks, and demanded
money from the store’s only cash register. Reyes was convicted separately of robbing each clerk.
Reyes argues that under State v. Tvedt, 153 Wn.2d 705, 715-16, 107 P.3d 728 (2005), he
can be convicted of only one count of first degree robbery because there was only one taking of
property even though there were two employees present. In Tvedt, the court stated, “If there is one
taking of property, as the taking of the business’s receipts from a single business safe or a single
cash register, there can be a conviction for robbery on only one count, regardless of the number of
1
Because the State concedes that Reyes’s convictions for both count I and count II violate double
jeopardy, his petition is exempt from RCW 10.73.090’s time bar under RCW 10.73.100(3).
No. 53689-7-II
employees present who have authority over the property, because there has been only one taking.”
Id.The State concedes that Reyes is correct. We accept the State’s concession. Under Tvedt,
Reyes could be convicted of only a single count of first degree robbery, not two counts.
We grant Reyes’s petition and remand to the trial court to vacate count II from his judgment
and sentence. Because Reyes has served his sentence for these convictions and because count I
and count II were treated as parts of the same criminal conduct in a subsequent judgment and
sentence, no other action by the trial court is required.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
MAXA, C.J.
We concur:
WORSWICK, J.
MELNICK, J.
2