Opinion
No. 23736-2-III
Filed: March 29, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No. 97-1-00794-7. Judgment or order under review. Date filed: 05/22/1997. Judge signing: Hon. James Preston Hutton.
Counsel for Petitioner(s), Juan Jr. Zepeda (Appearing Pro Se), #765952, 2009 S. 64th Ave. Yakima, WA 98903.
Counsel for Respondent(s), Kevin Gregory Eilmes, Attorney at Law, Pros Atty Offc Rm 329, 128 N 2nd St Yakima, WA 98901-2639.
Juan Zepeda, Jr. seeks relief from personal restraint imposed for his 1997 Yakima County jury conviction of second degree felony murder involving the predicate felony of second degree assault. Mr. Zepeda claims his conviction must be vacated in light of our Supreme Court's holding in In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002), that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976).
The petitioner originally filed this petition in superior court. That court transferred the petition to the court of appeals pursuant to RAP 16.3 and Toliver v. Olsen, 109 Wn.2d 607, 609, 746 P.2d 809 (1987).
Following the Andress decision, the legislature amended the second degree felony murder statute, effective February 12, 2003, to expressly declare that assault is included among the predicate crimes under the second degree felony murder statute. Laws of 2003, ch. 3, sec. 2.
The decision in Andress applies retroactively to personal restraint petitioners convicted of the crime of second degree felony murder predicated on assault. In re Pers. Restraint of Hinton, 152 Wn.2d 853, 857-58, 100 P.3d 801 (2004). And, since a judgment and sentence for second degree felony murder predicated on assault is facially invalid under the holding in Andress, it is not subject to the one year time limit of RCW 10.73.090(1) for collateral attack. The Hinton court also held that the 2003 legislative amendment that included assault as a predicate crime for second degree felony murder was not retroactive because retroactive application would violate the ex post facto clauses of the state and federal constitutions. Hinton, 152 Wn.2d at 861. The court thus vacated the petitioners' convictions.
In its response to Mr. Zepeda's petition, the State agrees that the holdings in Andress and Hinton apply to his case and entitle him to relief.
Accordingly, we grant Mr. Zepeda's personal restraint petition to the extent that his second degree felony murder conviction and sentence is vacated and his case remanded to the Yakima County Superior Court for further lawful proceedings consistent with Andress and Hinton. Hinton, 152 Wn.2d at 861 (citing Andress, 147 Wn.2d at 617 n. 5).
The court has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.