Opinion
No. 53477-7-I
Filed: November 15, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-00707-9. Judgment or order under review. Date filed: 12/08/2003. Judge signing: Hon. Richard F. McDermott.
Counsel for Appellant(s), Adol Rojas-Barrera(INFO-ONLY) (Appearing Pro Se), Crowley Co. Fac., Doc #865508, 6564 State Hwy. 96, Olney Springs, CO 81062.
Antonio Salazar, Attorney at Law, 810 3rd Ave Ste 308, Seattle, WA 98104-1622.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Around 2 a.m. on March 16, 2003, Adolfo Rojas-Barrera and an accomplice came upon a woman and two men sitting and talking in two cars outside a bar. Rojas-Barrera and his accomplice ordered the three people out of their cars at gunpoint and ordered them to get down on their hands and knees. Rojas-Barrera or his accomplice demanded car keys from the woman and one of the men. The woman said she did not have any keys. The man tossed his set of car keys to the ground. The two men then attacked and subdued Rojas-Barrera and his accomplice. The State filed an information with three counts of attempted robbery in the first degree. In the information, the State alleged that Rojas-Barrera and his accomplice attempted to take car keys from each of the three people. Rojas-Barrera was convicted on all three counts. He appeals the three convictions on the ground that they constitute multiple punishments for the same criminal act and thus violate constitutional prohibitions against double jeopardy. In a related argument, Rojas-Barrera alleges that since the evidence shows that he tried to take two cars in the course of a single encounter and that two people were asked for their keys, the State had sufficient evidence for only one or two convictions. He separately challenges his resentencing because it took place after he filed an appeal with this court. We conclude that multiple convictions can stand for actions taken during a single, continuous course of conduct. The three convictions therefore did not violate double jeopardy. We further conclude that the three convictions had sufficient evidentiary support. The convictions are affirmed, and permission is granted to enter the judgment on resentencing.
FACTS
Adolfo Rojas-Barrera was convicted of three counts of attempted robbery in the first degree. The jury returned a special verdict that Rojas-Barrera committed each crime while armed with a firearm.
On March 16, 2003, Rojas-Barrera and Jaime Magallenes approached two cars parked outside a bar. Richard Banyai was sitting in the driver's seat of his car, Michelle O'Dell was sitting in the front passenger seat of her car, and Richard Banyai's brother, Thomas Banyai, was sitting in the driver's seat of O'Dell's car. The two cars were parked next to each other, and the three people were talking through the open windows.
According to the State's evidence, Rojas-Barrera or his accomplice pointed a gun at Michelle O'Dell and Richard Banyai and told all three to get out of the cars. When Michelle O'Dell said, 'What?' the person said, 'Get the fuck out of the car.' All three got out of their cars and saw the second robber. Richard Banyai had the keys to his car, and Thomas Banyai had the keys to O'Dell's car. Rojas-Barrera or his accomplice pointed a gun at Thomas Banyai and ordered the three on their hands and knees. Rojas-Barrera or his accomplice asked Michelle O'Dell for the keys to the car, asked Richard Banyai for his keys, and kicked Richard Banyai in the head. Richard Banyai threw his keys on the ground. When Rojas-Barrera or Magallenes bent to down to pick up the keys, Richard Banyai attacked him. Thomas Banyai attacked the other man. The two Banyai brothers subdued the two robbers and held them until police arrived. Police found a Beretta .380 and a Lorcin .22 caliber pistol on the ground.
The King County prosecuting attorney filed an amended information accusing Rojas-Barrera of three counts of attempted robbery in the first degree by attempting to take car keys from Thomas Banyai, Richard Banyai, and Michelle O'Dell. Rojas-Barrera was convicted on all three counts, with a special verdict that he committed each crime while armed with a firearm. The trial court sentenced Rojas-Barrera on December 5, 2003. At that time, a split of authority existed regarding the calculation of a sentence for multiple convictions with sentence enhancements. In State v. Harvey, 109 Wn. App. 157, 166, 34 P.3d 850 (2001), Division Two held that when base sentences are served concurrently, the total sentence, including enhancements, cannot exceed the maximum statutory sentence for the highest level felony. In State v. Thomas, 113 Wn. App. 755, 761-62, 54 P.3d 719 (2002), aff'd, 150 Wn.2d 666, 80 P.3d 168 (2003), we held that statutory maximums apply to each offense separately and that the overall sentence, including enhancements, may exceed the statutory maximum for the highest level felony. The trial court followed the reasoning of Harvey and sentenced Rojas-Barrera to 120 months, the statutory maximum for one Class B felony. To do so, the trial court imposed 12 months on each count, to run concurrently, and three 36-month firearm enhancements. The 12-month sentence was below the low end of the standard range of each count. Rojas-Barrera filed a notice of appeal of the judgment and sentence. On December 11, 2003, the Washington Supreme Court issued its opinion in State v. Thomas, 150 Wn.2d 666, 80 P.3d 168 (2003). In that decision, the Supreme Court resolved the split in authority by affirming this court's interpretation of the sentencing law. Thomas, 150 Wn.2d at 66. The trial court granted the State's motion to resentence in compliance with Thomas and imposed sentences of 38.25 months on each count, to run concurrently, and three consecutive 36-month sentences for the firearm enhancements, for a total sentence of 146.25 months. Rojas-Barrera filed a second notice of appeal.
ANALYSIS
We begin by analyzing Rojas-Barrera's argument that the three convictions for attempted robbery violate his constitutional right against double jeopardy. The Fifth Amendment of the United States Constitution and article I, section 9 of the Washington Constitution protect criminal defendants from being punished multiple times for the same crime. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). When a defendant is charged multiple times for violating one statute, each charge must constitute a separate 'unit of prosecution' intended by the legislature as the punishable act under the statute. Adel, 136 Wn.2d at 634. If the legislature has failed to denote the unit of prosecution in a criminal statute, the ambiguity should be construed in favor of lenity. Adel, 136 Wn.2d at 634-35.
A person attempts to commit a crime 'if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.' RCW 9A.28.020(1). Furthermore, 'it is no defense to a prosecution of such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission.' RCW 9A.28.020(2). A person commits robbery when the person 'unlawfully takes personal property from the person of another . . . against his will by the use or threatened use of immediate force, violence, or fear of injury to that person[.]' RCW 9A.56.190. A person is guilty of robbery in the first degree if the person commits robbery while armed with a deadly weapon. RCW 9A.56.200(1)(a)(i).
The unit of prosecution for robbery under RCW 9A.56.190 is (1) forcible taking of property (2) from the owner or from a person with a possessory or representative interest, (3) against the person's will. State v. Tvedt, 116 Wn. App. 316, 321, 65 P.3d 682, review granted, 150 Wn.2d 1009 (2003). See State v. Rupe, 101 Wn.2d 664, 693, 683 P.2d 571 (1984); State v. Larkin, 70 Wn. App. 349, 354-55, 853 P.2d 451 (1993). To determine the proper number of units of prosecution, courts look at the number of forcible takings, not at the fact that forcible takings might have occurred during a single course of action. Tvedt, 116 Wn. App. at 322 (affirming two convictions of robbery when the defendant forcibly took keys from one employee and cash in the presence of another employee during a single incident at an Exxon station and two convictions when the defendant forcibly took a cell phone from one employee and cash in the presence of another employee during a single incident at a Texaco station). See Rupe, 101 Wn.2d at 668, 693 (affirming two convictions for robbery when money was taken from areas under the control of two different people during a single course of conduct at a bank); Larkin, 70 Wn. App. at 351, (affirming two convictions for robbery when the robber took one spouse's watch and another spouse's cash and gun collection during a single home invasion incident). The proper unit of prosecution for attempted robbery of the first degree is apparently an issue of first impression. However, the applicable statutes clearly indicate that the proper unit of prosecution for attempted robbery in the first degree is (1) an intent to commit robbery and (2) a substantial step toward (3) an act that would constitute first degree robbery. A court does not take into consideration the factual or legal impossibility of the taking or whether multiple attempts took place during a single course of action.
Rojas-Barrera argues that under the statutes for robbery and criminal attempt, the entire course of his conduct constitutes only a single criminal act of attempt. He argues in the alternative that the statutes for robbery and criminal attempt are ambiguous on what constitutes an attempt and that the rule of lenity should bar multiple convictions arising out of a single course of action.
At the heart of these two arguments is Rojas-Barrera's characterization of the events in question as a single 'attempt.' He acknowledges that if he had succeeded in taking property from the three victims, he would be liable for three counts of first degree robbery. However, he argues, he made only one attempt to commit robbery, albeit to commit multiple offenses.
However, we do not believe that the statutes for robbery and criminal attempt can be interpreted to support this characterization. Nothing in the statutes requires a court to treat a continuous course of action comprising multiple acts as a single attempt. The statutes allow for convictions on multiple charges of attempt, as long as the State establishes the necessary elements for each charge. Furthermore, the statutes do not contain any ambiguity that could reasonably be interpreted as requiring a continuous course of action to be treated as a single attempt.
In support of his argument, Rojas-Barrera cites case law dealing with the units of prosecution for other crimes. As he points out, the Supreme Court has held that former 18 U.S.C. section 254 (assault of a federal officer with a deadly weapon) could reasonably be read to require a separate assault for each unit of prosecution. Ladner v. United States, 358 U.S. 169, 173-77, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958). Therefore, a single blast of a shotgun could support only one conviction, even though two officers were hurt. Ladner, 358 U.S. at 177-78. In State v. Westling, 145 Wn.2d 607, 40 P.3d 669 (2002), the court held that the unit of prosecution for arson covered damage to multiple automobiles. Westling, 145 Wn.2d at 611-12. A single fire could therefore lead only to one conviction for arson, even though the fire damaged three cars. Westling, 145 Wn.2d at 611-12. Rojas-Barrera claims that the entirety of his conduct is analogous to a single shotgun blast or a single fire. By analogizing between the facts of these cases and other cases and his own conduct, Rojas-Barrera argues that the entirety of his conduct constitutes only a single criminal act of attempt.
However, the unit of prosecution analysis ultimately revolves around a question of statutory interpretation and legislative intent for the particular crime. Adel, 136 Wn. 2d at 634. The unit of prosecution for a crime is specific to the statute for the crime. See Westling, 145 Wn.2d at 610; Adel, 136 Wn.2d at 634. Analogies to other crimes have little application to our analysis. The acts at issue here were directed toward three persons, and thus, the statute permits three convictions.
We next examine Rojas-Barrera's argument that the State had sufficient evidence for only one or, at most, two convictions for attempted robbery, not three. In reviewing the sufficiency of the evidence, we determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105 (1995).
Rojas-Barrera bases this argument on the fact that the events in question took place during a short incident in a small area. Here, too, Rojas-Barrera characterizes the events in question as a single attempt. He argues in the alternative that since Thomas Banyai did not have a car and was not asked for any property, the State had sufficient evidence for only two convictions. The State responds by arguing that a rational trier of fact could find all the necessary elements for each of the three counts of attempted robbery. As the State points out, the amended information alleged that Rojas-Barrera sought to rob the three victims of their car keys, not their cars. On this basis, the State claims that a rational trier of fact could find the necessary elements on all three counts. In this, we agree with the State. A rational trier of fact could find all the necessary elements of attempted robbery in the first degree on all three counts. Rojas-Barrera and his accomplice ordered Michelle O'Dell, Richard Banyai, and Thomas Banyai out of their cars at gunpoint and down on their hands and knees. Rojas-Barrera and his accomplice demanded car keys from Michelle O'Dell, but she told them she did not have any. Rojas-Barrera and his accomplice demanded car keys from Richard Banyai. He threw his keys to the ground. But before Rojas-Barrera and his accomplice could take the keys, they were attacked and subdued by Richard Banyai and Thomas Banyai. From this evidence, a rational trier of fact could find that Rojas-Barrera and his accomplice wanted to take the two cars and intended to rob each of the three victims of any keys in their possession. A rational trier of fact could also find that Rojas-Barrera and his accomplice took a substantial step toward each robbery. The State therefore had sufficient evidence for the three counts.
Rojas-Barrera's final claim is that the trial court erred in resentencing him after he filed an appeal with this court. After review of a trial court's decision is accepted by an appellate court, the trial court has authority to act in a case only to the extent provided by the Rules of Appellate Procedure. RAP 7.2(a). If the trial court is asked to make a postappeal determination that would change a decision then being reviewed by the appellate court, the permission of the appellate court must be obtained prior to the formal entry of the trial court decision. A party should seek the required permission by motion. RAP 7.2(e). Since RAP 7.2 lists judgment and sentence as 'decisions' that can be appealed, the word 'decision' in RAP 7.2(e) is a term of art that encompasses a trial court's judgment and sentence. See State v. Moro, 117 Wn. App. 913, 924-25, 73 P.2d 1029 (2003). When a trial court imposes a sentence that is illegal, the court has the power and the duty to correct the sentence. In re Shriner, 95 Wn.2d 541, 544, 627 P.2d 99 (1981).
Rojas-Barrera argues that the trial court lacked authority to impose a new sentence on January 15, 2004, because appellate review had already been accepted and the State did not seek the permission of this court to enter the order changing the sentence. Rojas-Barrera is correct that this court accepted his appeal before the trial court entered an order for resentencing. Once review was accepted, the State was required by RAP 7.2 to seek the permission of this court for a postappeal determination that would change the decision. Since the sentence is considered part of the decision, the State was required to seek the permission of this court before asking the trial court to impose a new sentence. However, we need not examine this issue in detail. The trial court has the power and the duty to correct an illegal sentence. We therefore grant the State's request for permission to file the trial court's amended judgment and sentence correcting the defendant's illegal sentence.
'The appellate court 'accepts review' of a trial court decision upon the timely filing in the trial court of a notice of appeal from a decision which is reviewable as a matter of right.' RAP 6.1.
In conclusion, we hold that the proper unit of prosecution for attempted robbery in the first degree is (1) an intent to commit robbery and (2) a substantial step toward (3) an act that would constitute first degree robbery. We reject Rojas-Barrera's argument that constitutional protections against double jeopardy bar multiple convictions for attempted robbery for acts committed during a single course of conduct. We also find that the State produced sufficient evidence for the three convictions. We grant the State permission to file an amended judgment and sentence.
COLEMAN, J., SCHINDLER, J. and ELLINGTON, A.C.J.