Opinion
No. 58703-0-I.
February 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 97-1-05374-5, Julie A. Spector, J., entered December 16, 2005.
Affirmed by unpublished opinion per Ellington, J., concurred in by Agid and Lau, JJ.
In 1997, David Lujano was convicted of second degree felony murder with a predicate crime of assault. That conviction was vacated after the ruling in In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). On remand, Lujano pled guilty to second degree felony murder based on residential burglary. He now contends his conviction was a second prosecution for the same offense in violation of the double jeopardy clause. We reject this argument. Lujano's remaining claims have been waived. We affirm.
BACKGROUND
In 1997, the State charged David Lujano with the murder of Barolo Perez-Villaseñor. Initially the State charged first degree felony murder based on burglary. The State later amended the information to add alternative charges of second degree intentional murder and second degree felony murder based on assault. The State then dismissed the first degree felony murder charge in exchange for Lujano's agreement to a bench trial on stipulated facts. The court found Lujano guilty of second degree felony murder, but made no determination on the alternative charge of intentional murder.
In 2002, the Washington Supreme Court ruled that assault could not serve as a predicate for felony murder. Andress, 147 Wn.2d at 605; see also In re Pers. Restraint of Hinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004) (applying Andress retroactively). We vacated Lujano's conviction and remanded. The State again charged Lujano with second degree intentional murder, but soon replaced that charge with felony murder in the second degree based on residential burglary. The State amended the information a third time to reinstate the original charge of first degree felony murder with a predicate of first degree burglary.
Lujano moved to dismiss, contending the State violated the mandatory joinder rule by failing to charge all related offenses, including first degree felony murder, when it first tried Lujano in 1998. See CrR 4.3.1. The court denied the motion. Lujano sought discretionary review, but then withdrew the petition and entered an Alford plea to felony murder in the second degree based on residential burglary.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Lujano now appeals, arguing that double jeopardy, the mandatory joinder rule, and the speedy trial rule (CrR 3.3) barred the second prosecution.
DISCUSSION
Lujano devotes considerable discussion to the mandatory joinder rule. Because he pleaded guilty, however, he waived any claims based upon the court rules. We therefore consider only whether his conviction violates the double jeopardy clause. We hold that it does not.
A defendant who pleads guilty ordinarily waives his right to appeal all but collateral issues, such as the validity of the statute, sufficiency of the information, jurisdiction of the court, or circumstances under which the plea was made. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); State v. Majors, 94 Wn.2d 354, 356, 616 P.2d 1237 (1980).
Unlike other claims, a defendant does not necessarily waive double jeopardy claims by pleading guilty. Menna v. New York, 423 U.S. 61, 62-63, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975); In re Pers. Restraint of Shale, 160 Wn.2d 489, 497, 158 P.3d 588 (2007) (Madsen, J., concurring). But Lujano may challenge on these grounds only the crime for which he was actually convicted. See Menna, 423 U.S. at 62-63 ("Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.") (emphasis added). We thus do not address Lujano's arguments concerning charges he never actually faced, to wit, the abandoned charges of second degree intentional murder and first degree felony murder.
The double jeopardy clause ensures that "no person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause protects against a second prosecution for the same offense after conviction or acquittal, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).
The key question here is whether felony murder predicated upon assault is the same offense as felony murder predicated upon burglary. If so, the double jeopardy clause prohibited Lujano's second conviction. Offenses are the same for double jeopardy purposes if they are the same in law and in fact:
If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.
State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983).
Despite their origins in the same code section and the similarity of their names, felony murder predicated upon assault and felony murder predicated upon burglary are not the same in law and in fact, because the elements of felony murder include the elements of the predicate felony. State v. Gamboa, 38 Wn. App. 409, 412, 415, 685 P.2d 643 (1984).
See former RCW 9A.32.050(1)(b) (1975), amended by Laws of 2003, ch. 3, § 2. At the time of Lujano's offense, this section provided: "(1) A person is guilty of murder in the second degree when. . . . (b) He commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants."
To convict Lujano of either offense, the State had to prove Lujano caused Perez-Villaseñor's death in the course of committing another felony. For felony murder based on assault, the State also had to prove Lujano intentionally assaulted Perez-Villaseñor and thereby recklessly inflicted substantial bodily harm or assaulted him with a deadly weapon. RCW 9A.36.021. For felony murder based on residential burglary, the State had to prove Lujano unlawfully entered or remained in the victim's apartment with intent to commit a crime. RCW 9A.52.025. The elements of the predicate crimes of assault and burglary do not overlap; the two types of second degree felony murder are not the "same offense."
Further, as Lujano acknowledges, double jeopardy bars retrial only when the appellate court reverses the conviction for insufficient evidence, in which case the reversal is deemed an acquittal terminating jeopardy. State v. Wright, 131 Wn. App. 474, 478, 127 P.3d 742 (2006), rev. granted, 159 Wn.2d 1014 (2007). When a conviction is reversed for other reasons, jeopardy continues and the defendant "may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted." United States v. Ball, 163 U.S. 662, 672, 16 S. Ct. 1192, 41 L. Ed. 300 (1896).
Lujano argues that reversal under Andress is a reversal for evidentiary insufficiency. We rejected that argument in State v. Wright, 131 Wn. App. 474, 127 P.3d 742 (2006) and reject it again here.
"This argument lacks merit. . . . Nowhere in Andress did the Supreme Court adopt or imply a rationale of evidentiary insufficiency. Rather, the Court engaged in statutory construction and concluded that Andress had been convicted of a nonexistent crime. The problem of conviction for a nonexistent crime is not a failure of proof." Wright, 131 Wn. App. at 480 (citing Hinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004)).
Affirmed.