In re the Personal Restraint of Benavidez

160 Wash. App. 165
CourtCourt of Appeals of Washington
DecidedFebruary 15, 2011
DocketNo. 28443-3-III
StatusPublished
Cited by6 cases

This text of 160 Wash. App. 165 (In re the Personal Restraint of Benavidez) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Personal Restraint of Benavidez, 160 Wash. App. 165 (Wash. Ct. App. 2011).

Opinion

¶1 Lucio Benavidez seeks relief from personal restraint, contending the amended information failed to notify him that he faced a firearm enhancement. Here, the amended information advised Mr. Benavidez that he was charged with a crime and armed with a firearm while committing the crime. And the information cited the deadly [168]*168weapon special verdict statute.1 Thus, Mr. Benavidez fails to show that he was not notified of the firearm enhancement. The judgment and sentence are facially valid. We dismiss the petition as untimely and frivolous.

Kulik, C.J.

[168]*168FACTS

¶2 In August and September 2004, Mr. Benavidez participated in the robbery of four convenience stores, three in Yakima County and one in Benton County. State v. Cruz Benavidez, noted at 140 Wn. App. 1017, 2007 WL 2372586, at *1,2007 Wash. App. LEXIS 2486, at *1. He pleaded guilty to three counts of second degree robbery in Yakima County and pleaded not guilty to first degree robbery while armed with a firearm in Benton County. 2007 WL 2372586, at *1, 2007 Wash. App. LEXIS 2486, at *1. By amended information, Mr. Benavidez was charged in Benton County with first degree robbery under RCW 9A.56.190 (the definitional statute for robbery) and RCW 9A.56.200(l)(a)(i) and (ii), which state that a person is guilty of first degree robbery if, in the commission of or flight from a robbery, he is armed with a deadly weapon or displays what appears to be a firearm or other deadly weapon. Consistent with the statute, the amended information stated, “[A]nd in the commission of or immediate flight therefrom, the accused was armed with a deadly weapon, or displayed what appeared to be a firearm.” Resp. to Personal Restraint Pet., App. A.

¶3 The amended information also contained a “NOTICE OF FIREARM ALLEGATION” as follows:

That the said LUCIO CRUZ BENAVIDEZ in the County of Benton, State of Washington, on or about the 30th day of September, 2004, in violation of RCW 9.94A.125 during the commission of the crime of Robbery in the First Degree, was armed with a firearm, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Washington.

[169]*169Resp. to Personal Restraint Pet., App. A. Former RCW 9.94A.125 (1983) was recodified as RCW 9.94A.602 by Laws of 2001, ch. 10, § 6 (and was subsequently recodified as RCW 9.94A.825 by Laws of 2009, ch. 28, § 41). In all of its codifications, whenever a defendant is alleged to have been armed with a deadly weapon at the time he committed the crime, the jury must decide this fact by special verdict:

In a criminal case wherein there has been a special allegation and evidence establishing that the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime.

Former RCW 9.94A.602 (alteration in original). Firearms are included in the list of deadly weapons. Former RCW 9.94A.602.

¶4 The jury convicted Mr. Benavidez as charged and found by special verdict that he used a firearm. The judgment and sentence indicated that the special verdict found use of a firearm under former RCW 9.94A.602. Based on this finding, the trial court imposed a sentence of 210 months, which includes a 60-month firearm enhancement.

¶5 In his direct appeal to this court, Mr. Benavidez unsuccessfully challenged his judgment and sentence on the basis of prosecutorial misconduct and admission of police opinion testimony. Benavidez, 2007 WL 2372586, at *1, 2007 Wash. App. LEXIS 2486, at *1. The case was mandated on March 25, 2008. He filed this personal restraint petition on September 11, 2009, over one year after the judgment and sentence was final.

ANALYSIS

¶6 We first consider whether the petition is barred as untimely. A petition filed more than one year after the [170]*170mandate of the judgment and sentence is barred as untimely unless the judgment and sentence is invalid on its face, the trial court lacked competent jurisdiction, or the petition falls under an enumerated exception. RCW 10.73.090(1), .100(1)-(6). Mr. Benavidez contends his petition is not untimely because his judgment and sentence is facially invalid.

¶7 A judgment and sentence is facially invalid if, without further elaboration, it shows an error. In re Pers. Restraint of Clark, 168 Wn.2d 581, 585, 230 P.3d 156 (2010). This facial invalidity must be “a more substantial defect than a technical misstatement that had no actual effect on the rights of the petitioner.” In re Pers. Restraint of McKiearnan, 165 Wn.2d 777, 783, 203 P.3d 375 (2009).

¶8 The judgment and sentence here, standing alone, does not show an error. The document shows that Mr. Benavidez was found guilty by a jury of first degree robbery and that the jury additionally found by special verdict that he used a firearm. The trial court imposed a firearm enhancement based on the special verdict. The judgment and sentence also, however, references the crime “as charged in the Amended Information.” Resp. to Personal Restraint Pet., App. B at 1. And the amended information cites former RCW 9.94A.125, the deadly weapon special allegation statute. Mr. Benavidez contends the citation to the former deadly weapon statute was insufficient to give him notice that he faced a firearm enhancement. Thus, to determine whether Mr. Benavidez’s petition is time barred, we must turn to the merits of his argument. See In re Pers. Restraint of Cruze, 169 Wn.2d 422, 427, 237 P.3d 274 (2010).

¶9 Generally, an indictment or information must be worded so that a person of common understanding will know what acts constitute the criminal offense. RCW 10.37.052.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Washington v. Charles Walter Weber
Court of Appeals of Washington, 2021
State of Washington v. Oda Roy Chartier
Court of Appeals of Washington, 2019
State of Washington v. William Murry Porter
Court of Appeals of Washington, 2017
State Of Washington v. Lorenzo Stewart
Court of Appeals of Washington, 2016
In Re The Detention Of: Jack Leck Ii
Court of Appeals of Washington, 2013
State of Washington v. Douglas James Conner
Court of Appeals of Washington, 2013

Cite This Page — Counsel Stack

Bluebook (online)
160 Wash. App. 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-benavidez-washctapp-2011.