IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, Respondent,

v. MIGUEL ANGEL VILLANUEVAGONZALEZ, Appellant. No. 69864-8-1 ORDER GRANTING MOTION TO PUBLISH AND AMEND OPINION



### Appellant, Miguel Angel Villanueva-Gonzalez hasmoved for publication of 

### the opinion filed in this caseon April 22, 2013. The panel hearing the casehas considered the motion and Respondent's answerand has determined thatthe motion should be granted. 

### Appellant hasalso moved toamend theopinion. The court hereby ORDERS thatthe motion topublish the opinion isgranted and thatthe slip opinion shall be modified as follows: 

### At page 2ofthe slip opinion, in the first full paragraph, delete "violated" and insert "did not violate." 

### At page 2ofthe slip opinion, in the first full paragraph, delete "charges" and insert "convictions." 

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• • C5 C/v x-IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69864-8-1 Respondent, ) DIVISION ONE

MIGUEL ANGEL VILLANUEVA- ] UNPUBLISHED GONZALEZ, aka KEVIN CORTEZHERRERA, FILED: Arjril 22. 2013 « 3». Appellant. 3^

ro ro Cox, J. —Where two offenses are the same in law and fact and there3s '£<* CO o -'-. no indication that the legislature intended to allow convictionsfor both offenses, if" 

### is aviolation ofdoublejeopardy toconvict a defendant ofboth offenses.1 Here, Miguel Angel Villanueva-Gonzalez was convicted of second and fourth degree assault, inviolation of double jeopardy. Consequently, we reverse his conviction for fourth degree assault and remand with instructions. Villanueva-Gonzalez and M.G. were in a romantic relationship. On the 

### night in question, Villanueva-Gonzalez returned home angry because M.G. had been outat a nightclub without him. He confronted M.G. and pulled her outof the room in which she was sitting. He head butted her, fracturing her nose intwo

1 State v. Kellev. 168 Wn.2d 72, 77, 226 P.3d 773 (2010) (citing Blockburoer v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).No. 69864-8-1/2 places. Villanueva-Gonzalez then grabbed M.G. bythe throat and held her against a piece of furniture. The State charged Villanueva-Gonzalez with two counts of second degree assault. Count Iwas based on Villanueva-Gonzalez's attempted strangulation of M.G. Villanueva-Gonzalez's injury to M.G.'s nose was the basis for count II. 

### After ajury trial, the court instructed thejury as to second degree assault and the lesser included fourth degree assault for both counts Iand II. The jury found Villanueva-Gonzalez guilty of second degree assault for count II. It also 

### found him guilty ofthe lesserincluded crime offourth degree assaultas tocount I. Villanueva-Gonzalez appeals. DOUBLE JEOPARDY Villanueva-Gonzalez argues thathis convictions for second andfourth 

### degree assault violated his right against double jeopardy. We agree. Article I, section 9 oftheWashington Constitution, the doublejeopardy 

### clause, guarantees that, "[n]o person shall... betwice put in jeopardy for the
same offense." It mirrors the protections offered bythe federal constitutional 

### protection against doublejeopardy.2 "Doublejeopardy principles protect a defendant from being convicted more than once under the samestatute ifthe 

### defendant commits only one unit ofthe crime."3 "Where a defendant's act 

### supports charges undertwo criminal statutes, acourtweighing adoublejeopardy 2See State v. Gocken. 127 Wn.2d 95, 107, 896 P.2d 1267 (1995) (holding 

### thatArticle I, section 9 oftheWashington Constitution should be given the same 

### interpretation as the United States Supreme Court gives to the Fifth Amendment). 3 State v. Westlinq. 145 Wn.2d 607, 610, 40 P.3d 669 (2002).No. 69864-8-1/3 challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense."4 "To determine if a defendant has been punished multiple times for the same offense, this court has traditionally applied the 'same evidence' test."5 This test "mirrors the federal 'same elements' 

### standard adopted in Blockburger v. United States."6 Under this test, two convictions constitute the "same offense" for the 

### purposes ofdoublejeopardy ifthey arethe samein law and in fact.7 Thus, if each conviction includes elements not included in the other, or requires proof of a fact that the other does not, the offenses are different and the convictions may stand8For the first time on appeal, Villanueva-Gonzalez argues that his convictions for assault in the second and fourth degree have subjected him to doublejeopardy. Even though this issue was not raised below, we considerit because it involves an alleged violation ofVillanueva-Gonzalez's constitutional 

### right against doublejeopardy.9

4State v. Nvsta. 168 Wn. App. 30, 44, 275 P.3d 1162 (2012). 5 State v. Adel. 136 Wn.2d 629, 632, 965 P.2d 1072 (1998) (quoting State v. Calle. 125 Wn.2d 769, 777, 888 P.2d 155 (1995)). 6Id (citing State v. Gocken. 127Wn.2d 95, 107, 896 P.2d 1267 (1995)). 7 Calle. 125Wn.2dat777. 8Adel. 136Wn.2dat633. 9 Id. at 631-32.No. 69864-8-1/4 Here, Villanueva-Gonzalez's convictions violated double jeopardy. As a lesser included offense of second degree assault, fourth degree assault is the 

### same in law as second degree assault.10 It requires proofthatthedefendant 

### assaulted another, anelement required by second degree assault.11 Villanueva-Gonzalez's convictions were also the same in fact. The State alleged thatVillanueva-Gonzalez committed two separate assaults, grabbing of M.G.'s throat and head butting her. Butthese events were actions taken against the same victim within the same short time span. Because assault is not defined in terms ofeach physical act against a victim, Villanueva-Gonzalez's actions 

### constituted onesingle assaultin fact. As the supreme court in Statev. Tili stated: 

### [T]he assault statute does not define thespecific unit ofprosecution in terms ofeach physical act against a victim. Rather, the 

### Legislature defined assaultonly as thatoccurring when an individual 'assaults' another. A more extensive definition of 'assault' is provided by the common law, which sets out many different acts as constituting 'assault; some of which do not even 

### require touching. Consequently, the Legislature clearly has not defined 'assault' as occurring upon any physical act.'

10 See State v. Freeman, 153 Wn.2d 765, 771 n.1, 108 P.3d 753 (2005) 

### (citing Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After Rodney King. 95 Colum. L. Rev. 1, 28-29 (1995) (noting that where a lesser 

### included offense can be presumed to be punished by the greater offense, conviction under both offenses would offend doublejeopardy); see alsoAmar & 

### Marcus, supra., at28-29 ("[T]he phrase 'same offence' encompasses more than 

### identical provisions. Ifstatute Xrequires an element orelements that statute Y does not, these statutes will still betreated as describing the 'same' offence so 

### long as Xcontains all ofY's elements—that is, so long as Yis a 'lesserincluded' offence."). 11 RCW9A.36.041; RCW 9A.36.021. 12 State v. Tili. 139 Wn.2d 107, 116-17, 985 P.2d 365 (1999).No. 69864-8-1/5 Here, the evidence to prove each charged crime was the assaultive acts committed against the victim. Because assault is not defined in terms of each 

### separate physical act, the assaults here were the same in fact.13 Thus, it was a violation of doublejeopardy to convict Villanueva-Gonzalez of two different offenses, which were the same in fact. The State argues that Villanueva-Gonzalez's rights against double jeopardy were not violated, but itapplies the "unit of prosecution" test. This is the wrong inquiry. As our supreme court recognized inState v. Adel. the "same evidence" test, not the "unitofprosecution" test, applies "to a situation where a 

### defendant has multiple convictions for violating several statutory provisions."14 The "unit ofprosecution" test is appropriate only where a defendant is "convicted 

### for violating one statute multiple times."15 Here, though Villanueva-Gonzalez was charged with two counts ofsecond degree assault, thejury convicted him ofone countoffourth degree assault and one count ofsecond degree assault. Thus, the appropriate test to determinewhetherthese convictions violated double 

### jeopardy is the "sameevidence" test, not the "unit ofprosecution" test. Consequently, the State's argument is not supported bycontrolling law. The State also argues that Villanueva-Gonzalez's actions ofgrabbing M.G.'s throat and head butting her constituted twoseparate assaults in fact. The

13 Id, 14 Adel. 136 Wn.2d at 633 (some emphasis added). 15 ]d; see United States v. McLaughlin. 164F.3d 1, 8 (D.C. Cir. 1998) 

### (noting thatin "unit ofprosecution" cases, the Blockburgertest is not used).No. 69864-8-1/6 

### Stateimproperly relies onTili to support this argument. In Jjli, the court upheld the defendant's convictions for three counts ofrape. In doing so, itrejected Tili's 

### argument that"ifhe can be charged and convicted for threecounts offirst-degree rape basedon three separatepenetrations, then a defendant could also be 

### charged and convicted for every punch thrown in afistfight without violating 

### doublejeopardy."16 As noted above, thesupreme court in Jjji discussed how 

### assault, unlike rape, is notdefined by every individual physical act.17 Thus, the State's citation toIE rather than buttressing its argument, demonstrates why Villanueva-Gonzalez's conviction violated double jeopardy. 

### Finally, theState submitted a StatementofAdditional Authorities, citing State v. Nvsta.18 There, thiscourt concluded that Nysta's convictions for second 

### degree rape and felony harassment violated the prohibition against double 

### jeopardy.19 That case is unhelpful. The charges here were for second and fourth degree assault, which fail to satisfy the same evidence testthat we discussed in this opinion. When a conviction violates double jeopardy principles, we must reverse 

### and remand a sentence thatcontains convictions for the same offense with

16Iili, 139Wn.2d at 116-17. 17 id, 18168Wn. App. 30, 275 P.3d 1162 (2012). 19 Id. at 47-48.No. 69864-8-1/7 

### instructions to vacate the lesserpunished crime.20 Here, the lesserpunished crime was the fourth degree assault offense. Thus, the trial court should vacate the fourth degree assault conviction We reverse and remand with instructions to vacate only the fourth degree assault conviction. The second degree assault conviction remains undisturbed. 

# Oot.'J.

WE CONCUR: 

## 21 TVV*

20 See, e.g.. State v. Schwab. 163 Wn.2d 664, 675, 185 P.3d 1151 (2008) 

### (noting with approval the holding ofthis court in a prior case where we "vacated the lesser conviction where convictions for both firstdegree manslaughter and second degree felony murderviolated doublejeopardy").