IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 48541-9-II

Respondent,

v.

JOSEPH JOHN BAZA, UNPUBLISHED OPINION

Appellant.

JOHANSON, J. — Joseph J. Baza appeals his sentences for second degree assault, felony 

harassment, and felony violation of a no-contact order (VNCO). Baza argues that the sentencing 

court erroneously found that his crimes did not constitute the same criminal conduct under former 

RCW 9.94A.589(1)(a) (2002) and improperly applied double jeopardy analysis. Because the 

sentencing court properly found that Baza’s crimes were not the same criminal conduct, we affirm 

Baza’s sentences.

FACTS

I. BACKGROUND FACTS1

In July 2015, a witness called 911 after overhearing a man inside a hotel room threaten to 

kill someone. Police reported to the hotel, spoke to the witness, and walked upstairs to the hotel 

room. They heard struggling and muffled screaming from the room and kicked in the door. Inside, 

 

1 These facts are taken from the police report. In his guilty plea, Baza agreed that the sentencing 

court could review the police report to establish a factual basis for his plea. 

Filed

Washington State

Court of Appeals

Division Two

February 14, 2017
No. 48541-9-II

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the police saw the victim lying on the floor, bleeding profusely from her mouth, with Baza standing 

over her. 

Police arrested Baza, against whom the victim had a no-contact order. The victim said that 

earlier in the evening, she and Baza had met at the victim’s hotel room, and the two had visited 

Baza’s house and two bars. Baza became violent when they returned to the hotel room. Baza 

repeatedly hit the victim’s face and kicked her stomach, side, and back. The victim stated that 

Baza was trying to kill her inside the hotel room. While Baza strangled the victim, he said, “‘You 

will die.’” Clerk’s Papers (CP) at 8. Police believed that the victim had lost consciousness around 

the time that they entered the room. 

II. GUILTY PLEA AND SENTENCING

Baza entered an Alford2plea for second degree assault, felony VNCO, and felony 

harassment.3 The State asserted that these crimes did not encompass the same criminal conduct, 

although it relied upon State v. Mandanas’s double jeopardy analysis. CP at 29-30 (citing 163 

Wn. App. 712, 262 P.3d 522 (2011)). 

At the November 2015 sentencing hearing, the State argued that each crime that Baza had 

committed required a distinct criminal intent. Baza argued that his crimes involved the same 

criminal intent, so that they were the same criminal conduct. The sentencing court said that 

Mandanas was “informative as to the issues” in Baza’s case and discussed the double jeopardy 

holding. Report of Proceedings (RP) at 19. But the sentencing court ruled, “And for the reasons 

 

2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

3 Each conviction was also subject to a domestic violence enhancement, which is not relevant to 

this appeal. 
No. 48541-9-II

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set forth by the prosecution, I’m not able to find that the individual counts represent same criminal 

conduct; therefore, they’re not going to be treated as the same criminal conduct.” RP at 21. The 

sentencing court also explained that it “underst[ood]” that Baza was arguing same criminal 

conduct, not merger. RP at 24. The sentencing court stated, “I guess what I’m saying is, having 

applied what’s indicated in Mandanas with the facts in Mandanas and comparing those facts to 

the facts in this case, I see that as being distinguishing.”4 RP at 24. The sentencing court declined 

to find that any of the offenses constituted the same criminal conduct. 

ANALYSIS

I. NOT THE SAME CRIMINAL CONDUCT

Baza claims that under an objective intent analysis, the same criminal intent underlies each 

crime and thus the sentencing court erred when it found that the crimes were not the same criminal 

conduct.5 In response, the State relies upon State v. Chenoweth’s6statutory intent analysis and

asserts that Baza’s crimes each involved distinct criminal intents. We agree with the State.

A. LEGAL PRINCIPLES

Absent an abuse of discretion or misapplication of the law, we do not disturb the sentencing 

court’s determination of same criminal conduct. Chenoweth, 185 Wn.2d at 220-21. Under this 

 

4

In particular, the sentencing court referenced the portion of Mandanas in which the appellate 

court noted that its original, preremand Mandanas opinion had addressed whether the offenses 

constituted the same criminal conduct. RP at 23 (citing Mandanas, 163 Wn. App. at 715)). 

5 Baza requests that in light of this alleged error, we remand for the sentencing court to assess 

“concurrent rather than consecutive” sentences. Br. of Appellant at 1. Baza overlooks that the 

sentencing court did order concurrent sentences. The appropriate remedy, if we found error, would 

be to remand for Baza’s sentences to be recalculated pursuant to a lower offender score. 

6

185 Wn.2d 218, 370 P.3d 6 (2016).
No. 48541-9-II

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standard, if the record supports only one conclusion regarding whether crimes constitute the same 

criminal conduct, the sentencing court abuses its discretion in arriving at a contrary result. State 

v. Graciano, 176 Wn.2d 531, 537-38, 295 P.3d 219 (2013). But if the record adequately supports 

either conclusion, the matter is within the sentencing court’s discretion. Graciano, 176 Wn.2d at 

538.

A “same criminal conduct” determination affects the standard range sentence by altering 

the offender score. See former RCW 9.94A.589(1)(a). If a person is convicted of multiple current 

offenses, generally the sentencing court calculates all other current and prior convictions as prior 

convictions for the purpose of the offender score. Former RCW 9.94A.589(1)(a). But if the 

sentencing court finds that some current offenses are the “same criminal conduct,” those current 

offenses are counted as one crime. Former RCW 9.94A.589(1)(a). “‘Same criminal conduct’” 

means “crimes that require the same criminal intent, are committed at the same time and place, 

and involve the same victim.” Former RCW 9.94A.589(1)(a). 

We first look to the underlying statutes to determine whether the intents of each statute, if 

any, are the same or different for each crime. Chenoweth, 185 Wn.2d at 223. If the intents differ, 

the current convictions are not the same criminal conduct. Chenoweth, 185 Wn.2d at 223; former 

RCW 9.94A.589(1)(a). 

The burden is on the defendant to show that crimes constitute the same criminal conduct. 

Graciano, 176 Wn.2d at 538. We construe former RCW 9.94A.589(1) narrowly to disallow most 

claims that multiple offenses constitute the same criminal act. Graciano, 176 Wn.2d at 540 

(quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997)).
No. 48541-9-II

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B. STATUTORY INTENT

Baza argues that we should disregard Chenoweth’s focus on statutory intent and apply the 

objective intent analysis used in earlier cases.7 Baza argues that Chenoweth involved uniquely 

distinct and heinous crimes (incest and child rape). But Chenoweth does not confine its holding 

to incest and child rape, and Baza’s alleged distinction is not a basis to disregard Supreme Court 

precedent.8 We agree with the State that Chenoweth’s analysis applies here. 

Under Chenoweth, the State argues that each crime involved a distinct statutory intent so 

that Baza did not have the same criminal intent and the crimes do not encompass the same criminal 

conduct. We agree. 

1. APPLICABLE LAW

Following Chenoweth, we first look to whether the statutory intent is the same or different 

for each count. 185 Wn.2d at 223. Under RCW 26.50.110(1)(a), it is a violation of a court order 

if “the respondent or person to be restrained knows of the order” and violates a provision. 

“A person is guilty of harassment if” “[w]ithout lawful authority, the person knowingly 

threatens” immediate or future bodily injury to another. RCW 9A.46.020(1)(a). 

“A person is guilty of assault in the second degree if he or she, under circumstances not 

amounting to assault in the first degree” “[a]ssaults another by strangulation or suffocation.” RCW 

 

7 The sentencing court here did not have the benefit of Chenoweth, which was decided four months 

after Baza’s sentencing hearing. 

8 Baza argues also that it would be “absurd” to apply Chenoweth’s analysis rather than the objective 

intent analysis because to do so would effectively mean that only defendants who have multiple 

counts of the same crime could successfully argue same criminal intent. Reply Br. of Appellant 

at 1. This argument is not a proper basis for this court to ignore the Supreme Court’s opinion in 

Chenoweth. Because this court must follow Chenoweth’s statutory intent analysis, we address 

Baza’s objective intent analysis argument no further. 
No. 48541-9-II

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9A.36.021(1)(g). Under this statute, a “person is guilty of the crime of assault in the second degree 

by strangulation where that person intentionally ‘[a]ssaults another by strangulation.’” State v. 

Reed, 168 Wn. App. 553, 574, 278 P.3d 203 (2012) (quoting RCW 9A.36.021(1)(g)). 

2. FELONY VNCO COMPARED TO FELONY HARASSMENT AND SECOND DEGREE ASSAULT

We first compare the statutory intents for felony VNCO and felony harassment. The felony 

VNCO statute requires that Baza “know[] of the order” and violate the order. RCW 

26.50.110(1)(a). In contrast, harassment requires that a person “knowingly threaten” another. 

RCW 9A.46.020(1)(a). Knowingly violating an order is distinct from knowingly threatening 

someone. Thus, committing a felony VNCO is not the same criminal conduct as committing a 

felony harassment. 

Next, we determine whether a felony VNCO involves the same statutory intent as a second 

degree assault. To knowingly violate an order is distinct from intentionally assaulting someone, 

so that committing a felony VNCO is not the same criminal conduct as committing a second degree 

assault. RCW 26.50.110(1)(a); Reed, 168 Wn. App. at 574 (quoting RCW 9A.36.021(1)(g)). 

We hold that Baza’s felony VNCO conviction involves a statutory intent distinct from the 

intents required for his felony harassment and second degree assault convictions. We affirm the 

sentencing court’s conclusion that the felony VNCO conviction was not the same criminal conduct 

and hold that the court properly counted the felony VNCO as a separate offense when it calculated 

Baza’s offender score. 

3. FELONY HARASSMENT AND SECOND DEGREE ASSAULT

We now turn to whether felony harassment and second degree assault involve distinct 

intents. Harassment required that Baza “knowingly threaten” his victim. RCW 9A.46.020(1)(a). 
No. 48541-9-II

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As pleaded to in this case, second degree assault requires that a person intentionally assault 

another. Reed, 168 Wn. App. at 574 (quoting RCW 9A.36.021(1)(g)); see 11 WASHINGTON 

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 35.19.01, at 511 (4th ed. 

2016). To knowingly threaten someone is a distinct intent from intentionally assaulting someone, 

so that these crimes do not involve the same criminal intent. 

Because we hold that felony harassment and second degree assault involve distinct criminal 

intents, we affirm the sentencing court’s finding that the felony harassment and second degree 

assault were not the same criminal conduct. Accordingly, we hold that the sentencing court 

properly counted these crimes separately when it calculated Baza’s offender score.

II. NOT IMPROPER DOUBLE JEOPARDY ANALYSIS

Next,Baza argues that even if we reject his argument that his crimes were the same criminal 

conduct, we should remand because the sentencing court “exclusively” applied a double jeopardy 

analysis, rather than a same criminal conduct analysis. Br. of Appellant at 11. We decline to 

remand.

Here, the record contradicts Baza’s assertion that the sentencing court exclusively 

considered double jeopardy analysis. Although the State relied upon double jeopardy analysis, 

including Mandanas, in its sentencing brief, the State argued that Baza’s crimes involved distinct 

criminal intents at the sentencing hearing. The sentencing court ruled, “And for the reasons set 

forth by the prosecution, I’m not able to find that the individual counts represent same criminal 

conduct; therefore, they’re not going to be treated as the same criminal conduct.” RP at 21. The 

sentencing court “underst[ood]” that Baza was arguing same criminal conduct, not merger. RP at 

24. After noting that the original Mandanas opinion analyzed same criminal conduct, the 
No. 48541-9-II

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sentencing court stated, “I guess what I’m saying is, having applied what’s indicated in Mandanas

with the facts in Mandanas and comparing those facts to the facts in this case, I see that as being 

distinguishing.” RP at 24 (emphasis added).

From these facts, it is clear that the sentencing court did not exclusively consider double 

jeopardy analysis. Thus, we decline to remand for a new sentencing hearing.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

JOHANSON, J.

We concur:

WORSWICK, P.J.

SUTTON, J.