FILE 

IN CLERKS O"ICI 

llJIREME COURT. 8TA11C»'MIIIIGftlt 

~n: JUL 1 7 2014 

~~ This opinion was filed for record 

at '15 ·,ao an1 on .:TLLI'i 11 , 2.o l'-\ 

'IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, 

Petitioner, 

v. 

MIGUEL ANGEL 

VILLANUEVA-GONZALEZ, 

Respondent. 

) 

) 

) No. 89364-1 

) 

) EnBanc 

) 

) 

--~- ___ _Filed ____ JU1i1 __ 201~-- _ 

) 

___________________________) 

OWENS, J. -- Miguel Angel Villanueva-Gonzalez was convicted of second 

degree assault and fourth degree assault for attacking his girl friend. He contends that 

his actions constituted one assault, and therefore his two convictions violate double 

jeopardy. To analyze his claim, we look to how the legislature has defined "assault" 

and determine whether the legislature intended to punish assault as a course of 

conduct or upon each individual act. However, the legislature has not provided a 

definition of assault and the common law definition is ambiguous. Thus, we are 

guided by the many other jurisdictions that have treated assault as a course of conduct 

crime, and we are mindful of the "rule of lenity," which requires us to adopt the 
State v. Villanueva-Gonzalez 

No. 89364-1 

interpretation most favorable to the defendant. See State v. Roberts, 117 Wn.2d 576, 

586, 817 P.2d 855 (1991). We affirm the Court of Appeals and hold that VillanuevaGonzalez's two assault convictions violate double jeopardy because the underlying 

acts occurred during the same course of conduct. 

FACTS 

After Villanueva-Gonzalez's longtime girl friend returned from a night out 

dancing without him, she went into their children's bedroom. Villanueva-Gonzalez 

entered the room and told her to get out. She did not leave the room, so he pulled her 

out. After pulling her out of the room, he hit her head with his forehead, breaking her 

----nose-in-two-_places-andcausing-her-to -hleed-profusely-.----hle-then-grabbed-her-by-the--

neck and held her against some furniture. She was unable to get up while he was 

holding her, and she said it was hard to breathe because of the blood running down 

her face and because he was holding her by the neck. In response to a report of a 

domestic disturbance, the police arrived and arrested Villanueva-Gonzalez. His girl 

friend went to the hospital for a CAT (computerized axial tomography) scan and 

medical treatment. 

The State charged Villanueva-Gonzalez with two counts of second degree 

assault. 1 Count one alleged that Villanueva-Gonzalez intentionally assaulted the 

1 Villanueva-Gonzalez was also charged with and convicted of first degree criminal 

impersonation for giving a false name to the police when they arrived to investigate the 

domestic violence incident. That conviction is not at issue in this case. 

2 
State v. Villanueva-Gonzalez 

No. 89364-1 

victim "by strangulation," contrary to former RCW 9A.36.021(1)(g) (2007). Clerk's 

Papers (CP) at 22. Count two alleged that Villanueva-Gonzalez intentionally 

assaulted the victim "and thereby did recklessly inflict substantial bodily harm," 

contrary to RCW 9A.36.021(1)(a). !d. at 23. Both were charged as domestic violence 

offenses. The parties later agreed to include fourth degree assault as a lesser included 

charge on both counts one and two. 

For count one (based on grabbing the victim's neck), the jury convicted 

Villanueva-Gonzalez of the lesser included charge of fourth degree assault. For count 

two (based on the head butt), the jury convicted Villanueva-Gonzalez of second 

-------d€gre€-assault.--V-illanueva-Qonzalez-appealeci-,-eontending-thatthe-two-eonvictions -

violated double jeopardy. The Court of Appeals agreed and reversed the fourth 

degree assault conviction. State v. Villanueva-Gonzalez, 175 Wn. App. 1, 8, 304 P.3d 

906 (2013). The State petitioned for review, which we granted. State v. VillanuevaGonzalez, 179 Wn.2d 1008, 316 P.3d 494 (2014). 

ISSUE 

Did Villanueva-Gonzalez's convictions for second degree assault and fourth 

degree assault violate double jeopardy? 

ANALYSIS 

Villanueva-Gonzalez claims that his two convictions violate the prohibitions on 

double jeopardy in the federal and state constitutions. See U.S. CONST. amend. V; 

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State v. Villanueva-Gonzalez 

No. 89364-1 

WASH. CONST. art. I,§ 9. We review double jeopardy claims de novo. State v. 

Hughes, 166 Wn.2d 675, 681,212 P.3d 558 (2009). 

The principle of double jeopardy prevents a person from being "twice put in 

jeopardy for the same offense." WASH. CONST. art. I,§ 9. The prohibition on double 

jeopardy generally means that a person cannot be prosecuted for the same offense 

after being acquitted, be prosecuted for the same offense after being convicted, or 

receive multiple punishments for the same offense. Dep 't of Revenue v. Kurth Ranch, 

511 U.S. 767, 769 n.l, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). It is that last 

principle-that a person cannot receive multiple punishments for the same offense-

____ thaLwegrapple-with-today. ------- - --- -- -- ------

Notably, while this is a constitutional issue, it is ultimately "a question of 

statutory interpretation and legislative intent." State v. Adel, 136 Wn.2d 629, 634, 965 

P.2d 1072 (1998). The legislature is tasked with defining criminal offenses, and the 

prohibition on double jeopardy imposes "[flew, if any, limitations" on that power. 

Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978). 

Thus, this case requires us to determine whether Villanueva-Gonzalez was punished 

twice for the "same offense," which turns on the question of whether the legislature 

intended to define assault in such a way that Villanueva-Gonzalez's actions 

constituted one offense or multiple offenses. 

4 
State v. Villanueva-Gonzalez 

No. 89364-1 

1. To Determine Whether Double Jeopardy Was Violated, We Must Look to the 

Act or Course of Conduct the Legislature Intended To Punish 

We generally apply different double jeopardy analyses depending on whether 

the convictions at issue were under the same statutory provision or different statutory 

provisions. The "unit of prosecution" analysis applies when a defendant has multiple 

convictions under the same statutory provision, and it asks "what act or course of 

conduct has the Legislature defined as the punishable act." Adel, 136 Wn.2d at 634. 

The "Blockburger"2 analysis applies when a defendant has convictions under different 

statutes, and it asks whether the convictions were "the same in law and in fact." !d. at 

632-33. 

In this case, Villanueva-Gonzalez was convicted of violating RCW 

9A.36.02l(l)(a), which states, "A person is guilty of assault in the second degree ifhe 

or she, under circumstances not amounting to assault in the first degree[,] ... 

[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily 

harm." He was also convicted of violating RCW 9A.36.041(1), which states, "A 

person is guilty of assault in the fourth degree if, under circumstances not amounting 

to assault in the first, second, or third degree, or custodial assault, he or she assaults 

another." 

2 Blockburger v. United States, 284 U.S. 299,304, 52 S. Ct. 180,76 L. Ed. 306 (1932). 

5 
State v. Villanueva-Gonzalez 

No. 89364-1 

Villanueva-Gonzalez argues that because he was convicted under two different 

assault provisions, the Blockburger analysis applies. The State argues that the unit of 

prosecution test applies because both convictions were under the assault statute. 

Neither is a perfect fit for this case, where one crime (fourth degree assault) is 

typically a lesser included charge to the other crime (second degree assault). While 

Villanueva-Gonzalez is technically correct that he was convicted under two different 

assault provisions, the Blockburger analysis is not helpful here. The Blockburger 

analysis is a tool for courts to determine whether two different crimes were based on 

the same evidence, and it asks whether each statutory provision requires proof of a 

---faGt-that-the--oth€r-do€s-not-.--Ade/-,-l-J0-Wn.2d-at-033-.-Gur-pr-ier-eases-applying-theB lockburger analysis focus on whether two crimes are the same in law. Those cases 

and that analysis do not help us in this case, where the convictions are plainly the 

same in law and one did not require proof of a fact that the other did not. 3 

Even under the Blockburger analysis, if two convictions are the same in law, 

we then analyze whether they are the same in fact. To resolve this issue, we must 

determine what act or course of conduct the legislature has defined as the punishable 

3 Fourth degree assault does not require proof of any element that second degree assault 

does not also require. If there were enough evidence to convict a person of second degree 

assault, no additional proof would be needed to instead convict the person of the lesser 

included charge of fourth degree assault. As the United States Supreme Court has 

recognized, this is "invariably true of a greater and lesser included offense." Brown v. Ohio, 

432 U.S. 161, 167-68, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). 

6 
State v. Villanueva-Gonzalez 

No. 89364-1 

act. This is the exact question that the unit of prosecution test is designed to answer. 

I 

Therefore, we find it appropriate to apply the unit of prosecution test in this case. 

2. Becalf,se the Common Law Definition of Assault is Open to Multiple 

Reasonable Interpretations, We Look to Other Jurisdictions and Apply the Rule 

of Lenity To Determine That Assault Is a Course of Conduct Crime 

In determining whether the legislature intended assault to be a course of 

conduct offense or a separate act offense, we first turn to the statutory language. See 

Adel, 136 Wn.2d at 634-35. However, there is no statutory definition of assault and 

so we must turn to the common law definition of assault. Peasley v. Puget Sound Tug 

& Barge Co., 13 Wn.2d 485, 504, 125 P.2d 681 (1942). In this case, the jury was 

_____ instructed-on.the.commonlaw-definition o£assault-from-th€-patt€rn-juryinstl'UGtiens;--

An assault is an intentional touching or striking of another person, 

with unlawful force, that is harmful or offensive regardless of whether 

any physical injury is done to the person. A touching or striking is 

offensive if the touching or striking would offend an ordinary person 

who is not unduly sensitive. 

CP at 41 (emphasis added) (Instruction 1 0); 11 WASHINGTON PRACTICE: 

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 35.50, at 547 (3d ed. 2008) 

(WPIC). This court has cited the WPIC definition of assault as the common law 

definition of assault. See State v. Smith, 159 Wn.2d 778, 781-82, 154 P.3d 873 

(2007). 

In this definition, the key phrase describing the nature of the act is "an 

intentional touching or striking." On its face, we do not find this language clear as to 

7 
State v. Villanueva-Gonzalez 

No. 89364-1 

whether assault is a course of conduct offense or a separate act offense. The Eighth 

Circuit Court of Appeals came to a similar conclusion in United States v. Chipps, 410 

F.3d 438 (8th Cir. 2005). There, the court considered whether double jeopardy was 

violated when a defendant was convicted of two counts of simple assault for 

assaulting the victim with his feet and with a baseball bat. !d. at 447-49. Because the 

common law was unclear, the court applied the rule of lenity and held that only one 

punishment could be imposed for an assaultive course of conduct. !d. at 448-49. 

The Eighth Circuit is not alone in coming to that conclusion-courts across the 

country have largely concluded that assault is a course of conduct crime. For 

_______ instance,the_Court_of_Appeals_for-the-DistrictoLColumbia-considel.'ed-a-case:v:ery 

similar to this one where the defendant was convicted on two different assault charges 

(assault with a dangerous weapon and assault with intent to kill) for hitting the victim 

with a curling iron and a hammer and then throwing the victim down a flight of stairs. 

Smith v. United States, 135 U.S. App. D.C. 284, 285,418 F.2d 1120 (1969). The 

court held that the defendant could not be sentenced to cumulative sentences because 

"[t]he fact that a criminal episode of assault involves several blows or wounds, and 

different methods of administration, does not convert it into a case of multiple crimes 

for purposes of sentencing." !d. 

The Missouri Court of Appeals examined this issue in a case that involved a 

man who cut his ex-girlfriend with a knife inside a vehicle multiple times. State v. 

8 
State v. Villanueva-Gonzalez 

No. 89364-1 

Garnett, 298 S.W.3d 919,921,923 (Mo. Ct. App. 2009). The court applied the 

Missouri statutory limitation on convictions for multiple offenses and concluded that 

the incident could be considered only a single assault because it was a "quick, 

continuing attack," with no evidence of separation of time sufficient to provide the 

defendant with "an opportunity to reconsider his actions." !d. at 924. 

In the same way, the Tennessee Court of Appeals concluded that a man could 

not be convicted of two assaults when he attacked his ex-girlfriend with a knife in her 

house and then when she ran from the house, he chased her down and cut her again. 

State v. Pelayo, 881 S.W.2d 7, 11-13 (Tenn. Crim. App. 1994). The court held that 

-----the two-assaultive-acts ''coalesced-into-an 'urunistakabl€-single-act,' though separated -

by a few seconds and feet." I d. at 13. 

The California Court of Appeals applied similar reasoning in People v. Wooten, 

214 Cal. App. 4th 121, 128-29, 153 Cal. Rptr. 3d 684 (2013), where it analyzed the 

California statutory provision against multiple punishments for a single criminal act. 

In that case, the court held that the statute did not bar multiple sentence enhancements 

for great bodily injury when the defendant first violently assaulted the victim in an 

attempt to sexually assault her and then subsequently violently assaulted her in an 

attempt to kill her after she tried to run away. !d. at 132-33. The court held that the 

two attacks constituted separate assaults because they had different purposes and 

because an intervening event had occurred between them. !d. at 133. 

9 
State v. Villanueva-Gonzalez 

No. 89364-1 

In light of the ambiguity in the common law definition of assault and the 

general consensus of courts across the country that it is at best ambiguous as to 

whether assault applies to individual actions or a course of conduct, we must apply the 

rule oflenity, Roberts, 117 Wn.2d at 586, and use the interpretation most favorable to 

the defendant. Therefore, we hold that assault should be treated as a course of 

conduct crime until and unless the legislature indicates otherwise. We came to a 

similar conclusion in A del~ where we held that because the statute was unclear as to 

the unit of prosecution for simple drug possession, we had to apply the rule of lenity. 

136 Wn.2d at 634-35. Interpreting assault as a course of conduct crime also helps to 

-----avoid-the-risk o£a-defendant-bein~con:victed-for-every-punch-tlrrown-in-a fistfight'' 

that we identified in State v. Tili, 139 Wn.2d 107, 116,985 P.2d 365 (1999). 

3. Villanueva-Gonzalez's Actions Constituted One Course of Conduct, and Thus 

His Two Convictions Violated Double Jeopardy 

There is no bright-line rule for when multiple assaultive acts constitute one 

course of conduct. While any analysis of this issue is highly dependent on the facts, 

courts in other jurisdictions generally take the following factors into account: 

- The length of time over which the assaultive acts took place, 

- Whether the assaultive acts took place in the same location, 

- The defendant's intent or motivation for the different assaultive acts, 

- Whether the acts were uninterrupted or whether there were any intervening 

acts or events, and 

- Whether there was an opportunity for the defendant to reconsider his or her 

actions. 

10 
State v. Villanueva-Gonzalez 

No. 89364-1 

We find these factors useful for determining whether multiple assaultive acts 

constitute one course of conduct. However, no one factor is dispositive, and the 

ultimate determination should depend on the totality of the circumstances, not a 

mechanical balancing of the various factors. 

Applying those factors to this case, we find that Villanueva-Gonzalez's actions 

constituted one course of conduct. First, the assaultive actions for which he was 

charged-head butting the victim and then grabbing her neck and holding her against 

some furniture-took place in the same location. Second, the record implies 

(although does not clearly state) that the actions took place over a short time period, 

______ and_thereis_no_indication-in the record-of any-interruptions-m-inter-vening-events. --

Similarly, there is no evidence that would suggest that he had a different intention or 

motivation for these actions or that he had an opportunity to reconsider his actions. 

Based on the evidence in the record before us, we conclude that VillanuevaGonzalez's actions constituted a single course of conduct. Therefore, we affirm the 

Court of Appeals and hold that his two assault convictions violated double jeopardy. 

CONCLUSION 

To determine whether double jeopardy was violated in this case, we evaluate 

whether the legislature intended that an assaultive episode be punished for each 

individual act or for the course of conduct. Since the legislature did not define 

assault, we turn to the common law. Given the ambiguous nature of the common law 

11 
State v. Villanueva-Gonzalez 

No. 89364-1 

definition of assault, we look to other jurisdictions-who have largely concluded that 

assault is a course of conduct crime-and apply the rule of lenity, adopting the rule of 

interpretation most favorable to the defendant. Treating assault as a course of conduct 

crime, we affirm the Court of Appeals and hold that Villanueva-Gonzalez's 

convictions for assault violated double jeopardy because his actions took place during 

a single course of conduct. 

12 
State v. Villanueva-Gonzalez 

No. 89364-1 

WE CONCUR: 

13