Opinion
No. 61141-1-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 06-1-09639-4, James D. Cayce, J., entered January 7, 2008.
Affirmed in part and remanded by unpublished per curiam opinion.
When a court merges two convictions but enters judgment on both, double jeopardy principles require vacation of the less serious conviction. In this case, the trial court merged two of Ramiro Rodriguez's ten convictions, but failed to vacate the judgment on the lesser of the two. The parties agree, and we concur, that remand for vacation of the lesser conviction is required. The other claims on appeal are either governed by prior decisions of this court or do not require reversal. We therefore affirm Rodriguez's remaining convictions for second degree assault, witness tampering, intimidating a witness, and violations of a no contact order.
Because the issues on appeal present questions of law, we will recite the facts only when necessary to explain our decision.
DECISION
Rodriguez contends his three convictions for witness tampering violate double jeopardy principles because the underlying conduct formed only one, not three, units of prosecution. According to Rodriguez, the unit of prosecution for witness tampering is "a course of conduct designed to keep a certain person from testifying or offering information in an official proceeding." We recently rejected an identical argument inState v. Hall. There, we concluded that the witness tampering statute unambiguously creates a unit of prosecution for "any one instance of attempting to induce a witness or a person to do any of the actions set forth in RCW 9A.72.120." Under Hall, Rodriguez's conduct formed three units of prosecution and, therefore, his convictions do not violate double jeopardy. Rodriguez offers no persuasive basis to depart from our decision in Hall and we adhere to it here.
Br. of Appellant at 10.
147 Wn. App. 485, 196 P.3d 151 (2008).
Id. at 487.
Rodriguez next contends his convictions for violation of a domestic violence no contact order must be reversed because the State failed to prove every element of the offense. Specifically, he argues that the statute under which he was charged only criminalizes violations "for which an arrest is required under RCW 10.31.100(2)(a) or (b)." Because the State did not plead or prove violations of that nature, he concludes it failed to carry its burden of proof. His conclusion, however, is based on a construction of former RCW 26.50.110 that we expressly rejected in State v. Bunker. Rodriguez asks us to reconsiderBunker in light of two recent decisions from Division II: State v. Madrid and State v. Hogan. We disagree with Madrid andHogan and adhere to our reasoning in Bunker.
Former RCW 26.50.110(1) (2000).
144 Wn. App. 407, 183 P.3d 1086 (2008), review granted, 165 Wn.2d 1003 (2008).
145 Wn. App. 106, 192 P.3d 909 (2008).
145 Wn. App. 210, 192 P.3d 915 (2008).
We also reject Rodriguez's claim that our holding inBunker violates the prohibition on ex post facto laws, i.e. laws that punish an act that was not punishable when committed. He correctly notes that our construction of former RCW 26.50.110 in Bunker rested in part on amendments enacted after the commission of his offenses. But we also expressly noted that even in the absence of the amendments, "traditional principles of statutory construction also demonstrate that the legislature always intended to criminalize violations of domestic violence no-contact orders." Thus, our construction of former RCW 26.50.110 in Bunker does not render it an ex post facto law.
State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994) (citing U.S. Const. art. I, § 10; Wash. Const. art. I, § 23).
Bunker, 144 Wn. App. at 418.
Rodriguez also contends the superior court abused its discretion in ruling that his prior convictions for malicious mischief and taking a motor vehicle without permission were not the same criminal conduct. To determine whether two crimes involve the same criminal conduct, courts must consider the extent to which the criminal intent, viewed objectively, changed from one crime to the next. Intent in this context is not the mens rea element of the particular crime; rather, it is the offender's objective criminal purpose in committing the crime. The court in this case misapplied these principles, basing its ruling solely on the mens rea elements of the prior offenses. Nevertheless, even assuming the offenses should have been treated as the same criminal conduct, any resulting error in Rodriguez's offender score was harmless.
State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994).
State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990).
Counting the offenses as one, instead of two points, would reduce Rodriguez's offender score from 10 to 9. Because the sentencing grid ends at 9, Rodriguez's standard range would remain the same. "Where the standard sentence range is the same regardless of a recalculation of the offender score, any calculation error is harmless." In addition, it is evident the trial court would have imposed the same sentence whether Rodriguez's score was 9 or 10. The trial court sentenced Rodriguez for nine current offenses. It expressly declined to even consider a DOSA sentence, noting that "Mr. Rodriguez has got 25 offenses" on his record and "has been committing crimes for a long time." A one point change in Rodriguez's offender score would have had no effect on the court's sentence.
RCW 9.94A.510.
State v. Fleming, 140 Wn. App. 132, 138, 170 P.3d 50 (2007), review denied, 163 Wn.2d 1047, 187 P.3d 750 (2008) ("A trial court may determine that nine convictions exist and then stop calculating, so long as the court is not considering the imposition of an exceptional sentence based on reasons related to the offender score. Where the standard sentence range is the same regardless of a recalculation of the offender score, any calculation error is harmless.") (citations omitted); State v. Argo, 81 Wn. App. 552, 569, 915 P.2d 1103 (1996).
The court imposed a sentence of 96 months, the middle of the standard range for the count with the highest standard range, and ordered all other sentences to be served concurrently.
Report of Proceedings (Jan. 4, 2008) at 45.
Last, Rodriguez argues, and the State concedes, that this court must remand for vacation of a merged conviction. We agree. The trial court entered judgment on Rodriguez's convictions for intimidating a witness and witness tampering, but concluded that they merged. Consequently, the court sentenced Rodriguez only on the intimidating a witness count. The court neglected, however, to vacate the merged conviction as required by State v. Womac. We therefore remand for vacation of the witness tampering conviction.
160 Wn.2d 643, 656, 160 P.3d 40 (2007) (remand for vacation of conviction that violates double jeopardy is required even when the defendant was not sentenced on the offense).
Affirmed in part and remanded in part.