Opinion
No. 37850-7-II.
September 22, 2009.
Appeal from the Superior Court, Clark County, No. 07-1-02106-0, Barbara D. Johnson, J., entered June 4, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Bridgewater, J.
Ovidio Perez appeals his convictions for first degree assault and attempted first degree murder, both with deadly weapon enhancements, arguing that the trial court violated his due process right to be present at every critical stage of the proceeding. He also appeals his sentence, arguing that sentencing him on both his convictions constitutes double jeopardy. Pro se, he claims that his counsel provided ineffective assistance. We affirm the convictions but vacate the sentence and remand for resentencing.
FACTS
On the night of July 20, 2007, Luis Rangel drove Perez, Pedro Marquez, and Juan Alvarado-Velequez to Fourth Plain Boulevard in Vancouver. Rangel and Alvarado-Velequez, both members of the Soreno gang, were looking to kill a member of Norteno, a rival gang. At the time, Perez was not a member of the Soreno gang, but he testified that he wanted to become one.
The record indicates Rangel's street name is O.C.
In the record, Valequez also appears as Valesquez.
While they drove, one of the gang members told Perez, "You want to be with us, you gotta do something." I Report of Proceedings (RP) at 40. Perez understood this to mean that if he wanted to be in the gang he had to commit a crime that night. At trial, gang expert Marshall Henderson testified that committing a violent crime with other gang members is one way to become a gang member.
Both the Soreno and Norteno gangs claimed the Fourth Plain Albertsons store as part of their territory. Francisco Lopez, a member of the Norteno gang, was outside Albertsons when Rangel drove into the parking lot. Rangel, Alvarado-Velequez, Marquez, and Perez all got out of the car. Rangel was armed with a knife, and Perez was armed with a bat. Rangel approached Lopez and stabbed him in the heart, causing life-threatening injuries. After the stabbing, four of the men chased Lopez out of the parking lot.
Albertsons released to the police a copy of a surveillance video, which had captured the events in the parking lot. On November 8, police went to Perez's home, took him to the police station without arresting him, and interviewed him. During the interview, he admitted he was at Albertsons that night and chasing Lopez with a bat. After the interview, the police took Perez home, but they later returned and arrested him.
The State charged Perez with attempted first degree murder and first degree assault, each included deadly weapon enhancements. A jury heard the matter. During deliberations, the jury submitted two questions to the court. The first question is not relevant to this appeal. The second question read, "One juror stated in deliberations she had a prior boyfriend who was a gang member. She did not disclose this information during the jury selection or questioning." Clerk's Papers at 7. The defendant was not present when the trial court discussed the matter with the State and defense counsel. Counsel and the court discussed whether questions about gangs had arisen during voir dire. All agreed they had not. The trial court decided to take no further action to single out that particular juror and both counsel agreed.
The jury found Perez guilty of both charges and returned special verdict forms finding he was armed with a deadly weapon at the time of the crimes. The trial court sentenced him to 204 months separately on each count, but it ordered that the sentences be served concurrently. 5 RP 406. He appeals.
ANALYSIS Right to be Present
Perez first contends that the trial court violated CrR 3.4 and that the trial court deprived him of his due process right to be present at every stage of the trial by answering jury questions during deliberation when he was not present.
Perez's counsel did not object to the trial court's failure to include Perez when responding to the jury questions. At trial, the court and counsel engaged in the following colloquy:
THE COURT: All right. The second question was:
"One juror stated in deliberations she had a prior boyfriend who was a gang member. She did not disclose this information during the jury selection questionnaire — or questioning," I don't know what word that is. But in any event, the determination was that no further action should be taken to single out that juror or to pursue it further.
. . . .
. . . All right. That — I don't recall a question that would have directly addressed that, so in any event, it was our thought to simply have the jury continue their deliberations.
Any disagreement with that summary?
[Deputy Prosecutor]: None from the State.
[Defense Attorney]: I think that's fine at this point, Your Honor. I would — if it becomes apparent that there's some difficulty with the jury, I think we could address it later.
IV RP at 389-90.
The Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment give a criminal defendant the constitutional right to be present during all "critical stages" of a criminal proceeding. State v. Pruitt, 145 Wn. App. 784, 798, 187 P.3d 326 (2008). A critical stage is one where the defendant's presence has a reasonably substantial relationship to the fullness of his opportunity to defend against the charge. In re Pers. Restraint of Benn, 134 Wn.2d 869, 920, 952 P.2d 116 (1998) (citing United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L.Ed.2d 486 (1985)). Generally, in-chambers conferences between the court and counsel on legal matters are not critical stages except when the issues involve disputed facts. In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994). The in-chambers conference in the present case was not a "critical stage" because it only involved legal matters. Additionally, during jury selection, prospective jurors were not asked about any gang affiliation. Perez's argument that he should have been present during the discussion fails. The trial court did not err in failing to include the defendant.
Double Jeopardy
Perez further contends that the trial court deprived him of his right to be free from double jeopardy when it sentenced him on both attempted first degree murder and first degree assault. The State correctly concedes this error.
The Fifth Amendment and article I, section 9, of the Washington State Constitution prohibit the State from imposing multiple punishments for the same offense. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). We review de novo double jeopardy challenges on sentencing. State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007).
We must determine whether the legislature intended to impose multiple punishments for the same offense. In re Pers. Rest. of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). When the legislature does not expressly or impliedly articulate intent, we turn to the "same evidence" rule to determine whether the offenses are the same in law and in fact. Womac, 160 Wn.2d at 652. Offenses are the same in law if they have identical elements and they are the same in fact if the proof necessary to sustain one conviction is the same for the other. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995).
Where the same act violates criminal provisions, we determine whether there are two offenses or only one turns on whether each provision requires proof of a fact that the other does not. Calle, 125 Wn.2d at 777-78. The "same evidence" rule controls unless the legislature clearly indicates it did not intend to impose multiple punishments. Womac, 160 Wn.2d at 652.
In State v. Gohl, a jury convicted Gohl of both attempted first degree murder and first degree assault for the same criminal act. 109 Wn. App. 817, 822, 37 P.3d 293 (2001). The Gohl court held that sentencing on attempted first degree murder and first degree assault convictions constituted double jeopardy because they are the same in law and in fact. 109 Wn. App. at 822. Here, the trial court sentenced Perez separately on crimes that constituted the same criminal conduct. The State correctly concedes this error. The remedy is to vacate the sentence and remand to strike the lesser of the two convictions. Womac, 160 Wn.2d at 656.
Statement of Additional Grounds Ineffective Assistance of Counsel
RAP 10.10(a).
Perez argues pro se that his conviction should be reversed due to ineffective assistance of counsel. The federal and state constitutions guarantee effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22. To establish ineffective assistance of counsel, the defendant must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Legitimate trial tactics fall outside the bounds of an ineffective assistance of counsel claim. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
Perez claims that counsel was ineffective when he did not question the juror who "misrepresented her background during jury selection" and in not securing Perez's presence during any discussion about the jury's question. Statement of Additional Grounds, at 1. The issue of whether the defendant should have been present is addressed above and cannot form the basis of an ineffective assistance of counsel claim here. Moreover, the decision whether to "single the juror out" for further questions is a legitimate trial tactic. Perez's ineffective assistance of counsel claim fails.
The convictions are affirmed. The sentence is vacated and the matter remanded 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. and VAN DEREN, C.J., concur.