Opinion
No. 35085-8-II.
September 5, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-00856-1, John F. Nichols, J., entered July 5, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Hunt, JJ.
Pablo Valdez appeals his conviction of attempted first degree robbery arguing insufficiency of the evidence. He further argues that the trial court erred in not merging his attempted first degree robbery conviction with his fourth degree assault conviction for sentencing purposes.
We affirm the conviction. But as the State correctly concedes that the merger doctrine applies, we vacate the sentence and remand for resentencing.
FACTS
Because Valdez argues insufficiency of the evidence, we set forth the facts adduced at trial in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
On April 27, 2006, Vancouver police sergeant Wayne Reynolds was off duty and at the Vancouver Mall. While walking to the mall entrance, Valdez's voice caught his attention. At this point, Reynolds saw Valdez standing in front of Dahlia Meza, who had her back to a wall.
Reynolds observed that Valdez was angry and Meza was scared. Reynolds testified that as he walked closer to the couple, he heard Valdez say, "Give it to me, I want it now. You better give it to me," and heard Meza reply, "I don't have it, I don't have it." 2 Report of Proceedings at 61. He saw Valdez put his hand on Meza's forehead and push her head against a wall.
Reynolds saw that it was a forceful blow because Meza's head bounced forward and came back up immediately, and she hunched down as though in pain. Reynolds heard Meza scream and then saw her run rapidly into the mall as Valdez quickly followed. Next, Reynolds said that he stepped in front of Valdez and identified himself as a police officer. Reynolds called police dispatch. Uniformed officers arrived and arrested Valdez.
The State charged Valdez with one count each of attempted first degree robbery (domestic violence), felony domestic violence court order violation, and fourth degree assault (domestic violence). A jury heard the matter.
At trial, Meza testified that Valdez called her earlier in the day and asked for $50. She agreed to give him the money, but at his brother's home. She stated that she never went to the brother's home. Instead, she stayed at her mother's house and then went to her job at the Vancouver Mall.
Meza saw Valdez at the mall entrance and he asked her for the money. She refused to give it to him, and they began to argue. She testified that he pushed her head against the wall but she denied that it hurt. She said that she feared him at the time of the incident but felt that she was not at risk in a public place with security guards.
Valdez testified that Meza had promised to take the money to his brother's house, but she did not show up. He said that he saw her at the mall and asked her for the money and she declined to give it to him. He said that he was angry at her for making him wait and not telling him that she was not going to give him the money. He admitted that he pushed her head and that a no contact order prohibited his contact with her. He denied trying to steal money from her.
The jury found Valdez guilty of all counts. At sentencing, the court imposed a standard range sentence of 30 months' incarceration on the attempted robbery conviction and 13 months' incarceration on the felony violation of a no contact order conviction. Defense counsel argued that the fourth degree assault should merge with the assault in the attempted robbery. The trial court declined to apply the merger doctrine and imposed a separate suspended 365-day sentence on the misdemeanor assault. Valdez appeals his conviction of attempted first degree assault and his sentence.
ANALYSIS Sufficiency of the Evidence
Valdez first contends that the State failed to present sufficient evidence to prove him guilty of attempted robbery in the first degree. In essence, he asserts that insufficient evidence shows his intent to steal property from Meza.
We review the sufficiency of evidence to determine whether, after viewing the evidence in the light most favorable to the State, any rational fact finder could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980), overruled on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
When a defendant challenges the sufficiency of evidence in a criminal case, we draw all reasonable evidentiary inferences in favor of the State and most strongly against the defendant. Salinas, 119 Wn.2d at 201. We defer to the fact finder on credibility determinations and do not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970 (2004). We also defer to the fact finder on issues of conflicting testimony and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-875.
The State charged Valdez with attempted first degree robbery (domestic violence) in violation of RCW 9A.56.200(1)(a)(iii). To prove that he committed the crime, the State had to show that he attempted to take personal property from Meza against her will either with the use or threatened use of force or violence. RCW 9A.56.190. To convict of first degree robbery, the State must prove these elements and a bodily injury constituting assault. RCW 9A.56.200(1)(a)(iii). To prove an attempted crime, the State must establish that the defendant, with the intent to commit a specific crime, takes a substantial step toward committing the crime. RCW 9A.28.020.
Valdez argues that he did not intend to steal property from Meza. Thus, he asserts, he did not commit attempted first degree robbery.
In reviewing the record, we note that Reynolds testified he heard Valdez angrily demand something from Meza and she cried and appeared upset when she told Valdez that she did not have it. As Reynolds called 911, he observed that the argument grew more heated and heard and saw Valdez make another demand and slam Meza's head against the wall. Reynolds described it as a forceful blow that bounced her head forward and she acted as though she were in pain.
Meza testified that Valdez demanded $50 from her and that she refused to give it to him. She also said that he pushed her head against the wall several times.
Valdez testified. Although he admitted that he and Meza had an argument and he pushed her, he denied that he tried to steal money from her.
Valdez argues that the evidence supports his version of the confrontation; the jury, faced with contrary evidence, disagreed. Substantial evidence supports the jury's convicting Valdez of attempted first degree robbery.
Valdez also raised an issue pro se asking us to review Meza's notarized statement first submitted on appeal. We do not consider matters not presented to the trial court, and we decline to further review this argument. RAP 2.5(a).
Sentencing
Valdez also contends that the trial court erred when it did not merge the conviction for fourth degree assault into the attempted robbery in the first degree.
Under the merger doctrine, when separate criminalized conduct raises another offense to a higher degree, the court presumes that the legislature intended to punish both offenses only once, namely, the more serious crime with the greater sentence. State v. Freeman, 153 Wn.2d 765, 772-773, 108 P.3d 753 (2005). A defendant may commit first degree robbery without committing an assault, but as the State correctly notes:
[T]this requires separate acts of force that must be established to prevent double jeopardy from precluding two convictions. State v. Smith, 9 Wn. App. 279, 282-283, 511 P.2d 1032 (1973). Only if there is proof of a second assault will both convictions stand. State v. Zumwalt, 119 Wn. App. 126, 132, 82 P.3d 672 (2003).
Resp't's Br. at 8-9.
The State agrees that in closing argument, the prosecutor said that Valdez's assault of Meza is one of the substantial steps in the attempted robbery in the first degree. Thus, the trial court should have merged the attempted robbery with the fourth degree assault for sentencing purposes. We agree and accept the State's concession.
In sum, we affirm the conviction, vacate the sentence and remand for resentencing.
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 pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, J., Hunt, J. We concur.