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'INTHE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Petitioner,
v. MIGUEL ANGEL VILLANUEVA-GONZALEZ, Respondent. ) ) ) No. 89364-1 ) ) EnBanc ) )

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OWENS, J. -- Miguel Angel Villanueva-Gonzalez was convicted ofsecond 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 lookto howthe 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 notprovided a definition ofassault and the common law definition is ambiguous. Thus, we are guided bythe many otherjurisdictions thathave treated assault as a course ofconduct crime, and we are mindful ofthe "rule oflenity," which requires us to adopt theState 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 ofAppeals and hold that VillanuevaGonzalez's two assault convictions violate doublejeopardybecause the underlying acts occurred during the same course ofconduct. FACTS After Villanueva-Gonzalez's longtime girl friend returned from a night out dancing withouthim, she went into their children's bedroom. Villanueva-Gonzalez entered the room and told herto get out. She did not leave the room, so he pulled her out. After pulling her out ofthe 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 ofthe bloodrunning down her face and because he was holding her by the neck. In response to a report ofa domestic disturbance, the police arrived and arrested Villanueva-Gonzalez. His girl friend wentto the hospital for a CAT (computerized axial tomography) scan and medical treatment. The State charged Villanueva-Gonzalez withtwo counts ofsecond degree assault. 1 Count one alleged that Villanueva-Gonzalez intentionally assaulted the

1Villanueva-Gonzalez was also charged with and convicted offirst 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. 2State 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 "andthereby 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), thejury convicted Villanueva-Gonzalez ofthe lesser included charge offourth degree assault. Forcount two (based on the head butt), thejury convicted Villanueva-Gonzalez ofsecond -------d€gre€-assault.--V-illanueva-Qonzalez-appealeci-,-eontending-thatthe-two-eonvictions

- violated doublejeopardy. The Court ofAppeals 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 doublejeopardy? ANALYSIS Villanueva-Gonzalez claims that his two convictions violate the prohibitions on doublejeopardy in the federal and state constitutions. See 

### U.S. CONST. amend. V;

3State v. Villanueva-Gonzalez No. 89364-1 WASH. CONST. art. I,§ 9. We review doublejeopardy claims de novo. State v. Hughes, 166 Wn.2d 675, 681,212 P.3d 558 (2009). Theprinciple ofdoublejeopardyprevents a person from being "twiceputin jeopardy for the same offense." WASH. CONST. art. I,§ 9. Theprohibition ondouble 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). Itis that last principle-that a person cannotreceive multiple punishments for the same offense-

____ thaLwegrapple-with-today.

------- - --- -- -- ------ Notably, while this is a constitutional issue, it is ultimately "aquestion 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 doublejeopardy imposes "[flew, ifany, limitations" onthat power. Sanabria v. UnitedStates, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d43 (1978). Thus, this case requires us to determine whether Villanueva-Gonzalez was punished twice for the "same offense," which turns on the question ofwhetherthe legislature intended to define assault in such a waythat Villanueva-Gonzalez's actions constituted one offense or multiple offenses.

4State v. Villanueva-Gonzalez No. 89364-1 

### 1. To Determine Whether Double Jeopardy Was Violated, We MustLookto the Actor Course of Conduct the LegislatureIntended To Punish We generally apply different doublejeopardy analyses depending onwhether the convictions at issue were under the same statutoryprovision or different statutory provisions. The "unit ofprosecution" 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 whetherthe convictions were "the same in law and in fact." 

### !d. at 632-33. Inthis case, Villanueva-Gonzalez was convicted ofviolating RCW 9A.36.02l(l)(a), which states, "Aperson is guilty ofassault 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 ofviolating RCW 9A.36.041(1), which states, "A person is guilty ofassault inthe fourth degree if, under circumstances not amounting to assault inthe first, second, orthird degree, or custodial assault, he or she assaults another."

2Blockburger v. UnitedStates, 284 U.S. 299,304, 52 S. Ct. 180,76 L. Ed. 306 (1932). 5State v. Villanueva-Gonzalez No. 89364-1 Villanueva-Gonzalez argues that because he was convicted under two different assault provisions, theBlockburger analysis applies. The State argues thatthe unit of prosecutiontest 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 correctthat he was convicted under two different assault provisions, theBlockburger analysis is nothelpful here. TheBlockburger analysis is a tool for courts to determine whether two different crimes were based on the same evidence, and it asks whether each statutory provisionrequires proofofa---faGt-that-the--oth€r-do€s-not-.--Ade/-,-l-J0-Wn.2d-at-033-.-Gur-pr-ier-eases-applying-theBlockburger 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 notrequire proofofa fact thatthe other did not.3 EvenundertheBlockburger analysis, iftwo 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 ofconductthe legislature has defined as the punishable

3 Fourth degree assault does not require proofofany elementthat second degree assault does not also require. Ifthere were enough evidence to convict aperson ofsecond degree assault, no additional proofwould be needed to instead convictthe person ofthe lesser included charge offourth degree assault. As the United States Supreme Courthas recognized, this is "invariablytrue ofa greater and lesser included offense." Brown v. Ohio, 432 U.S. 161, 167-68, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). 6State v. Villanueva-Gonzalez No. 89364-1
act. This is the exact question that the unit ofprosecutiontest is designed to answer. I Therefore, we find it appropriate to applythe unit ofprosecutiontest in this case. 2. Becalf,se the Common LawDefinition of Assault is Open to Multiple Reasonable Interpretations, We Lookto OtherJurisdictions andApply the Rule of Lenity To Determine ThatAssaultIs a Course of Conduct Crime Indetermining whether the legislature intended assault to be a course of conduct offense or a separate act offense, we first turnto the statutory language. See Adel, 136 Wn.2d at 634-35. However, there is no statutory definition ofassault and
so we must turnto the commonlaw definition ofassault. Peasley v. PugetSound Tug & Barge Co., 13 Wn.2d 485, 504, 125 P.2d 681 (1942). Inthis case, thejurywas

_____ instructed-on.the.commonlaw-definition o£assault-from-th€-patt€rn-juryinstl'UGtiens;-- An assault is an intentional touching or striking ofanother person, withunlawful force, that is harmful or offensive regardless ofwhether any physical injury is done to the person. A touching or striking is offensive ifthe touching or striking would offend an ordinaryperson who is notunduly 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 courthas cited the WPIC definition ofassault as the common law definition ofassault. See State v. Smith, 159 Wn.2d 778, 781-82, 154 P.3d 873 (2007). In this definition, the keyphrase describing the nature ofthe act is "an intentional touching or striking." On its face, we do not find this language clear as to

7State v. Villanueva-Gonzalez No. 89364-1 whether assault is a course ofconduct offense or a separate act offense. The Eighth Circuit Court ofAppeals came to a similar conclusion in UnitedStates v. Chipps, 410 F.3d 438 (8th Cir. 2005). There, the court considered whether doublejeopardywas violated when a defendant was convicted oftwo counts ofsimple assault for assaulting the victim withhis feet and with a baseball bat. 

### !d. at 447-49. Because the
common law was unclear, the court applied the rule oflenity and held that only one punishment could be imposed for an assaultive course ofconduct. 

### !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 ofconduct crime. For

_______ instance,the_Court_of_Appeals_for-the-DistrictoLColumbia-considel.'ed-a-case:v:ery similarto 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 thenthrowing the victim down a flight ofstairs. Smith v. UnitedStates, 135 U.S. App. D.C. 284, 285,418 F.2d 1120 (1969). The courtheld that the defendant could not be sentencedto cumulative sentences because "[t]he fact that a criminal episode ofassault involves several blows or wounds, and different methods ofadministration, does not convert it into a case ofmultiple crimes for purposes ofsentencing." 

### !d. The Missouri Court ofAppeals examinedthis issue in a case that involved a
man who cut his ex-girlfriend with a knife inside a vehicle multiple times. State v.

8State 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 concludedthat the incident could be considered only a single assault because it was a "quick, continuing attack," with no evidence ofseparation oftime sufficientto provide the defendant with "an opportunity to reconsider his actions." 

### !d. at 924. Inthe same way, the Tennessee Court ofAppeals concluded that a man could not be convicted oftwo 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 -----thetwo-assaultive-acts ''coalesced-into-an 'urunistakabl€-single-act,'though separated

- by a few seconds and feet." I

### d. at 13. The California Court ofAppeals 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 courtheld that the statute did not bar multiple sentence enhancements for greatbodily injury whenthe 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 thatthe two attacks constituted separate assaults because they had different purposes and because an intervening event had occurredbetweenthem. 

### !d. at 133.

9State v. Villanueva-Gonzalez No. 89364-1 In light ofthe ambiguity in the common law definition ofassault and the general consensus ofcourts across the country that it is at best ambiguous as to whether assault applies to individual actions or a course ofconduct, 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 inA**del~** where we held that because the statute was unclear as to the unit ofprosecution for simple drug possession, we had to apply the rule oflenity. 136 Wn.2d at 634-35. Interpreting assault as a course ofconduct 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'sActions Constituted One Course of Conduct, and Thus His Two Convictions ViolatedDouble Jeopardy There is no bright-line rule for when multiple assaultive acts constitute one
course ofconduct. While any analysis ofthis issue is highly dependent onthe facts, courts in otherjurisdictions generally take the following factors into account:

- The length oftime over which the assaultive acts tookplace,

- Whether the assaultive acts tookplace 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

- Whetherthere was an opportunity for the defendant to reconsider his or her actions.

10State v. Villanueva-Gonzalez No. 89364-1 We find these factors useful for determining whether multiple assaultive acts constitute one course ofconduct. However, no one factor is dispositive, and the ultimate determination should depend on the totality ofthe circumstances, not a mechanical balancing ofthe various factors. Applying those factors to this case, we find that Villanueva-Gonzalez's actions constituted one course ofconduct. First, the assaultive actions for whichhe was charged-headbutting the victim and then grabbing her neck and holding her against
some furniture-tookplace inthe 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-ofany-interruptions-m-inter-vening-events.

-- Similarly, there is no evidence that would suggest thathe had a different intention or motivationfor these actions or that he had an opportunity to reconsider his actions. Based on the evidence in the record beforeus, we conclude that VillanuevaGonzalez's actions constituted a single course ofconduct. Therefore, we affirm the Court ofAppeals and hold that his two assault convictions violated doublejeopardy. CONCLUSION To determine whether doublejeopardywas violated in this case, we evaluate whether the legislature intendedthat an assaultive episode be punished for each individual act or for the course ofconduct. Since the legislature did not define assault, we turn to the common law. Given the ambiguous nature ofthe common law

11State v. Villanueva-Gonzalez No. 89364-1 

### definition ofassault, we look to otherjurisdictions-whohave largely concluded that assault is a course ofconduct crime-and apply the rule oflenity, adopting the rule of interpretation most favorable to the defendant. Treating assault as a course ofconduct crime, we affirm the Court ofAppeals and hold that Villanueva-Gonzalez's convictions for assault violated doublejeopardybecause his actions tookplace during
a single course ofconduct.

12State v. Villanueva-Gonzalez No. 89364-1



### WE CONCUR:

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