State Of Washington, V Joseph John Baza ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
February 14, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48541-9-II
Respondent,
v.
JOSEPH JOHN BAZA, UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Joseph J. Baza appeals his sentences for second degree assault, felony
harassment, and felony violation of a no-contact order (VNCO). Baza argues that the sentencing
court erroneously found that his crimes did not constitute the same criminal conduct under former
RCW 9.94A.589(1)(a) (2002) and improperly applied double jeopardy analysis. Because the
sentencing court properly found that Baza’s crimes were not the same criminal conduct, we affirm
Baza’s sentences.
FACTS
I. BACKGROUND FACTS1
In July 2015, a witness called 911 after overhearing a man inside a hotel room threaten to
kill someone. Police reported to the hotel, spoke to the witness, and walked upstairs to the hotel
room. They heard struggling and muffled screaming from the room and kicked in the door. Inside,
1
These facts are taken from the police report. In his guilty plea, Baza agreed that the sentencing
court could review the police report to establish a factual basis for his plea.
No. 48541-9-II
the police saw the victim lying on the floor, bleeding profusely from her mouth, with Baza standing
over her.
Police arrested Baza, against whom the victim had a no-contact order. The victim said that
earlier in the evening, she and Baza had met at the victim’s hotel room, and the two had visited
Baza’s house and two bars. Baza became violent when they returned to the hotel room. Baza
repeatedly hit the victim’s face and kicked her stomach, side, and back. The victim stated that
Baza was trying to kill her inside the hotel room. While Baza strangled the victim, he said, “‘You
will die.’” Clerk’s Papers (CP) at 8. Police believed that the victim had lost consciousness around
the time that they entered the room.
II. GUILTY PLEA AND SENTENCING
Baza entered an Alford2 plea for second degree assault, felony VNCO, and felony
harassment.3 The State asserted that these crimes did not encompass the same criminal conduct,
although it relied upon State v. Mandanas’s double jeopardy analysis. CP at 29-30 (citing 163
Wn. App. 712, 262 P.3d 522 (2011)).
At the November 2015 sentencing hearing, the State argued that each crime that Baza had
committed required a distinct criminal intent. Baza argued that his crimes involved the same
criminal intent, so that they were the same criminal conduct. The sentencing court said that
Mandanas was “informative as to the issues” in Baza’s case and discussed the double jeopardy
holding. Report of Proceedings (RP) at 19. But the sentencing court ruled, “And for the reasons
2
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
3
Each conviction was also subject to a domestic violence enhancement, which is not relevant to
this appeal.
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No. 48541-9-II
set forth by the prosecution, I’m not able to find that the individual counts represent same criminal
conduct; therefore, they’re not going to be treated as the same criminal conduct.” RP at 21. The
sentencing court also explained that it “underst[ood]” that Baza was arguing same criminal
conduct, not merger. RP at 24. The sentencing court stated, “I guess what I’m saying is, having
applied what’s indicated in Mandanas with the facts in Mandanas and comparing those facts to
the facts in this case, I see that as being distinguishing.”4 RP at 24. The sentencing court declined
to find that any of the offenses constituted the same criminal conduct.
ANALYSIS
I. NOT THE SAME CRIMINAL CONDUCT
Baza claims that under an objective intent analysis, the same criminal intent underlies each
crime and thus the sentencing court erred when it found that the crimes were not the same criminal
conduct.5 In response, the State relies upon State v. Chenoweth’s6 statutory intent analysis and
asserts that Baza’s crimes each involved distinct criminal intents. We agree with the State.
A. LEGAL PRINCIPLES
Absent an abuse of discretion or misapplication of the law, we do not disturb the sentencing
court’s determination of same criminal conduct. Chenoweth, 185 Wn.2d at 220-21. Under this
4
In particular, the sentencing court referenced the portion of Mandanas in which the appellate
court noted that its original, preremand Mandanas opinion had addressed whether the offenses
constituted the same criminal conduct. RP at 23 (citing Mandanas, 163 Wn. App. at 715)).
5
Baza requests that in light of this alleged error, we remand for the sentencing court to assess
“concurrent rather than consecutive” sentences. Br. of Appellant at 1. Baza overlooks that the
sentencing court did order concurrent sentences. The appropriate remedy, if we found error, would
be to remand for Baza’s sentences to be recalculated pursuant to a lower offender score.
6
185 Wn.2d 218, 370 P.3d 6 (2016).
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No. 48541-9-II
standard, if the record supports only one conclusion regarding whether crimes constitute the same
criminal conduct, the sentencing court abuses its discretion in arriving at a contrary result. State
v. Graciano, 176 Wn.2d 531, 537-38, 295 P.3d 219 (2013). But if the record adequately supports
either conclusion, the matter is within the sentencing court’s discretion. Graciano, 176 Wn.2d at
538.
A “same criminal conduct” determination affects the standard range sentence by altering
the offender score. See former RCW 9.94A.589(1)(a). If a person is convicted of multiple current
offenses, generally the sentencing court calculates all other current and prior convictions as prior
convictions for the purpose of the offender score. Former RCW 9.94A.589(1)(a). But if the
sentencing court finds that some current offenses are the “same criminal conduct,” those current
offenses are counted as one crime. Former RCW 9.94A.589(1)(a). “‘Same criminal conduct’”
means “crimes that require the same criminal intent, are committed at the same time and place,
and involve the same victim.” Former RCW 9.94A.589(1)(a).
We first look to the underlying statutes to determine whether the intents of each statute, if
any, are the same or different for each crime. Chenoweth, 185 Wn.2d at 223. If the intents differ,
the current convictions are not the same criminal conduct. Chenoweth, 185 Wn.2d at 223; former
RCW 9.94A.589(1)(a).
The burden is on the defendant to show that crimes constitute the same criminal conduct.
Graciano, 176 Wn.2d at 538. We construe former RCW 9.94A.589(1) narrowly to disallow most
claims that multiple offenses constitute the same criminal act. Graciano, 176 Wn.2d at 540(quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997)).
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No. 48541-9-II
B. STATUTORY INTENT
Baza argues that we should disregard Chenoweth’s focus on statutory intent and apply the
objective intent analysis used in earlier cases.7 Baza argues that Chenoweth involved uniquely
distinct and heinous crimes (incest and child rape). But Chenoweth does not confine its holding
to incest and child rape, and Baza’s alleged distinction is not a basis to disregard Supreme Court
precedent.8 We agree with the State that Chenoweth’s analysis applies here.
Under Chenoweth, the State argues that each crime involved a distinct statutory intent so
that Baza did not have the same criminal intent and the crimes do not encompass the same criminal
conduct. We agree.
1. APPLICABLE LAW
Following Chenoweth, we first look to whether the statutory intent is the same or different
for each count. 185 Wn.2d at 223. Under RCW 26.50.110(1)(a), it is a violation of a court order
if “the respondent or person to be restrained knows of the order” and violates a provision.
“A person is guilty of harassment if” “[w]ithout lawful authority, the person knowingly
threatens” immediate or future bodily injury to another. RCW 9A.46.020(1)(a).
“A person is guilty of assault in the second degree if he or she, under circumstances not
amounting to assault in the first degree” “[a]ssaults another by strangulation or suffocation.” RCW
7
The sentencing court here did not have the benefit of Chenoweth, which was decided four months
after Baza’s sentencing hearing.
8
Baza argues also that it would be “absurd” to apply Chenoweth’s analysis rather than the objective
intent analysis because to do so would effectively mean that only defendants who have multiple
counts of the same crime could successfully argue same criminal intent. Reply Br. of Appellant
at 1. This argument is not a proper basis for this court to ignore the Supreme Court’s opinion in
Chenoweth. Because this court must follow Chenoweth’s statutory intent analysis, we address
Baza’s objective intent analysis argument no further.
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No. 48541-9-II
9A.36.021(1)(g). Under this statute, a “person is guilty of the crime of assault in the second degree
by strangulation where that person intentionally ‘[a]ssaults another by strangulation.’” State v.
Reed, 168 Wn. App. 553, 574, 278 P.3d 203 (2012) (quoting RCW 9A.36.021(1)(g)).
2. FELONY VNCO COMPARED TO FELONY HARASSMENT AND SECOND DEGREE ASSAULT
We first compare the statutory intents for felony VNCO and felony harassment. The felony
VNCO statute requires that Baza “know[] of the order” and violate the order. RCW
26.50.110(1)(a). In contrast, harassment requires that a person “knowingly threaten” another.
RCW 9A.46.020(1)(a). Knowingly violating an order is distinct from knowingly threatening
someone. Thus, committing a felony VNCO is not the same criminal conduct as committing a
felony harassment.
Next, we determine whether a felony VNCO involves the same statutory intent as a second
degree assault. To knowingly violate an order is distinct from intentionally assaulting someone,
so that committing a felony VNCO is not the same criminal conduct as committing a second degree
assault. RCW 26.50.110(1)(a); Reed, 168 Wn. App. at 574 (quoting RCW 9A.36.021(1)(g)).
We hold that Baza’s felony VNCO conviction involves a statutory intent distinct from the
intents required for his felony harassment and second degree assault convictions. We affirm the
sentencing court’s conclusion that the felony VNCO conviction was not the same criminal conduct
and hold that the court properly counted the felony VNCO as a separate offense when it calculated
Baza’s offender score.
3. FELONY HARASSMENT AND SECOND DEGREE ASSAULT
We now turn to whether felony harassment and second degree assault involve distinct
intents. Harassment required that Baza “knowingly threaten” his victim. RCW 9A.46.020(1)(a).
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No. 48541-9-II
As pleaded to in this case, second degree assault requires that a person intentionally assault
another. Reed, 168 Wn. App. at 574 (quoting RCW 9A.36.021(1)(g)); see 11 WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 35.19.01, at 511 (4th ed.
2016). To knowingly threaten someone is a distinct intent from intentionally assaulting someone,
so that these crimes do not involve the same criminal intent.
Because we hold that felony harassment and second degree assault involve distinct criminal
intents, we affirm the sentencing court’s finding that the felony harassment and second degree
assault were not the same criminal conduct. Accordingly, we hold that the sentencing court
properly counted these crimes separately when it calculated Baza’s offender score.
II. NOT IMPROPER DOUBLE JEOPARDY ANALYSIS
Next, Baza argues that even if we reject his argument that his crimes were the same criminal
conduct, we should remand because the sentencing court “exclusively” applied a double jeopardy
analysis, rather than a same criminal conduct analysis. Br. of Appellant at 11. We decline to
remand.
Here, the record contradicts Baza’s assertion that the sentencing court exclusively
considered double jeopardy analysis. Although the State relied upon double jeopardy analysis,
including Mandanas, in its sentencing brief, the State argued that Baza’s crimes involved distinct
criminal intents at the sentencing hearing. The sentencing court ruled, “And for the reasons set
forth by the prosecution, I’m not able to find that the individual counts represent same criminal
conduct; therefore, they’re not going to be treated as the same criminal conduct.” RP at 21. The
sentencing court “underst[ood]” that Baza was arguing same criminal conduct, not merger. RP at
24. After noting that the original Mandanas opinion analyzed same criminal conduct, the
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No. 48541-9-II
sentencing court stated, “I guess what I’m saying is, having applied what’s indicated in Mandanas
with the facts in Mandanas and comparing those facts to the facts in this case, I see that as being
distinguishing.” RP at 24 (emphasis added).
From these facts, it is clear that the sentencing court did not exclusively consider double
jeopardy analysis. Thus, we decline to remand for a new sentencing hearing.
We affirm.
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.
JOHANSON, J.
We concur:
WORSWICK, P.J.
SUTTON, J.
8