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 has moved for publication of

the opinion filed in this case on April 22, 2013. The panel hearing the case has

considered the motion and Respondent's answerand has determined thatthe

motion should be granted.

Appellant has also moved to amend the opinion. The court hereby

ORDERS thatthe motion to publish the opinion is granted and thatthe slip

opinion shall be modified as follows:

At page 2of the slip opinion, in the first full paragraph, delete "violated" and insert

"did not violate."

At page 2 of the slip opinion, in the first full paragraph, delete "charges" and

insert "convictions."

Dated this \7^ day of uAor\f 2013.
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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MIGUEL ANGEL VILLANUEVA- ] UNPUBLISHED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.

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ro

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Cox, J. — Where two offenses are the same in law and fact and there3s '£<*

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no indication that the legislature intended to allow convictionsfor both offenses, if"

is a violation of double jeopardy to convict a defendant of both offenses.1 Here,

Miguel Angel Villanueva-Gonzalez was convicted of second and fourth degree

assault, in violation 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 a jury trial, the court instructed the jury as to second degree assault

and the lesser included fourth degree assault for both counts I and 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 to count I.

Villanueva-Gonzalez appeals.

DOUBLE JEOPARDY

Villanueva-Gonzalez argues that his convictions for second and fourth

degree assault violated his right against double jeopardy. We agree.

Article I, section 9 ofthe Washington Constitution, the double jeopardy

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 double jeopardy.2 "Double jeopardy principles protect a

defendant from being convicted more than once under the same statute if the

defendant commits only one unit of the crime."3 "Where a defendant's act

supports charges under two criminal statutes, a court weighing a double jeopardy

2See State v. Gocken. 127 Wn.2d 95, 107, 896 P.2d 1267 (1995) (holding

thatArticle I, section 9 ofthe Washington Constitution should be given the same

interpretation asthe United States Supreme Court gives to the Fifth

Amendment).

3State 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 of double jeopardy if they are the same in 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

stand8

For the first time on appeal, Villanueva-Gonzalez argues that his

convictions for assault in the second and fourth degree have subjected him to

double jeopardy. Even though this issue was not raised below, we considerit

because it involves an alleged violation of Villanueva-Gonzalez's constitutional

right against double jeopardy.9

4State v. Nvsta. 168 Wn. App. 30, 44, 275 P.3d 1162 (2012).

5State 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 proof thatthe defendant

assaulted another, an element required by second degree assault.11

Villanueva-Gonzalez's convictions were also the same in fact. The State

alleged that Villanueva-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 one single assault in fact. As the supreme court in State v. Tili stated:

[T]he assault statute does not define the specific unit ofprosecution

in terms of each physical act against a victim. Rather, the

Legislature defined assault only as that occurring 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 double jeopardy); see also Amar &

Marcus, supra., at 28-29 ("[T]he phrase 'same offence' encompasses more than

identical provisions. If statute Xrequires an element or elements that statute Y

does not, these statutes will still be treated as describing the 'same' offence so

long as Xcontains all of Y's elements—that is, so long as Yis a 'lesser included'

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 double jeopardy 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 oursupreme court recognized in State v. Adel. the "same

evidence" test, not the "unit of prosecution" test, applies "to a situation where a

defendant has multiple convictions for violating several statutory provisions."14

The "unit of prosecution" 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, the jury 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 of prosecution" test.

Consequently, the State's argument is not supported by controlling law.

The State also argues that Villanueva-Gonzalez's actions of grabbing

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. 164 F.3d 1, 8 (D.C. Cir. 1998)

(noting that in "unit of prosecution" cases, the Blockburger test is not used).
No. 69864-8-1/6

State improperly relies on Tili to support this argument. In Jjli, the court upheld

the defendant's convictions for three counts of rape. In doing so, it rejected Tili's

argument that "if he can be charged and convicted for three counts offirst-degree

rape based on three separate penetrations, then a defendant could also be

charged and convicted for every punch thrown in a fistfight without violating

double jeopardy."16 As noted above, thesupreme court in Jjji discussed how

assault, unlike rape, is not defined by every individual physical act.17 Thus, the

State's citation to IE rather than buttressing its argument, demonstrates why

Villanueva-Gonzalez's conviction violated double jeopardy.

Finally, theState submitted a Statement of Additional Authorities, citing

State v. Nvsta.18 There, this court 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 test that we discussed in

this opinion.

When a conviction violates double jeopardy principles, we must reverse

and remand a sentence that contains 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 lesser punished crime.20 Here, the lesser punished

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:

21TVV*

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

(noting with approval the holding of this court in a prior case where we "vacated

the lesser conviction where convictions for both first degree manslaughter and

second degree felony murderviolated double jeopardy").