COURTFiLED OF 

## APPEALS 

# DIVISION II 201511AR 

### 10 

## Al 8: 41

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In re the Personal Restraint Petition of

HECTOR C. ORTIZ III, Petitioner. No. 46277 - 0 -II

UNPUBLISHED OPINION
JOHANSON, C.J. — Hector C. Ortiz III seeks relief from personal restraint imposed 

### following his 2011 convictions offirst degree robbery, second degree assault, and second degree 

### unlawful possession ofafirearm. He claims that his restraint is unlawful because ( 1) his robbery
and assault convictions violate double

### jeopardy protections and should have merged, (2) all three of his offenses constitute the same criminal conduct, and ( 3) trial counsel provided ineffective assistance because he failed to argue points (1) and (2). 1

1 Petitioner' s conviction was final on March 25, 2011. RCW 10.73. 090(3). Petitioner filed a CrR 7.8 motion in the superior court on March 7, 2012. The superior court transferred it to this court on 

### May 12, 2014. Therefore, this petition was timely filed under RCW 10.73. 090. The superior 

### court previously transferred another petition to this courtthat Ortiz had filed on January28, 2013. 

### This court dismissed thatpetition as an untimelymixed petition. See In re Pers. RestraintofOrtiz, No. 44462 -

3 -II (dismissed 

### May 29, 2013) ( 

### petition for review stayed pending resolution ofthe current petition).No. 46277 - 0 -II 

### We grantthe petition and remand to the sentencing courtto vacate the assault conviction and resentence petitioner using a corrected offender score. I. DOUBLE JEOPARDY 

### Petitioner argues and the State concedes that his robbery and assault convictions merged, 

### should not have counted separately in his offender score, and thatthe assault should not be listed on hisjudgment and sentence. We acceptthis concession and remand forthe sentencing courtto
vacate the assault conviction and recalculate petitioner' s offender score. See State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212 (2008) (

### first degree robbery and second degree assault ofthe same victim merge unless there is some independent purpose or effect ofthe assault).2 II. SAME CRIMINAL CONDUCT Petitioner argues that all three offenses constitute the same criminal conduct and therefore 

### the sentencing court should have calculated his sentence range with an offender score of "0" rather than " 3." 

### Offenses amountto the " same criminal conduct" ifthey "require the same criminal intent,

are committed at the same time and place, and involve the same victim." RCW 9.94A.589( 1)( a). 

### As we have already determined that the robbery and assault merged, we need not address the assault. Robbery and unlawful possession ofafirearm are notthe same criminal conduct because 

### they involve differentvictims. In this case, the robbery victim was the restaurant manager. And

2 In his reply brief, petitioner asserts that the firearm and robbery counts merge. 

### Butthey do not because one need not unlawfully possess a firearm to raise second degree robbery to first degree robbery. Kier, 164 Wn.2d at 804; State v. Moreno, 173 Wn. App. 479, 498 -99, 294 P.3d 812 unlawful possession of a firearm does not merge with first degree assault), review denied, 177 Wn.2d 1021 ( 2013). 2No. 46277 - 0 -II the victim of unlawful possession of a firearm is the general public. State v. Haddock, 141 Wn.2d 103, 110 -11, 3 P.3d 733 ( 2000). Petitioner' s claim fails. III. INEFFECTIVE ASSISTANCE OF COUNSEL 

### Because this court is granting reliefunder petitioner' s first claim and because his second claim lacks merit, we need not address whether petitioner was denied his right to effective assistance of counsel at sentencing. 

### We grant the petition and remand to the sentencing court to vacate the assault conviction and resentence petitioner using a corrected offender score. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

3