In re the Personal Restraint of Rangel

996 P.2d 620, 99 Wash. App. 596
CourtCourt of Appeals of Washington
DecidedFebruary 17, 2000
DocketNo. 18301-7-III
StatusPublished
Cited by7 cases

This text of 996 P.2d 620 (In re the Personal Restraint of Rangel) 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 Rangel, 996 P.2d 620, 99 Wash. App. 596 (Wash. Ct. App. 2000).

Opinion

Kurtz, C.J.

Julian Rangel seeks relief from personal [598]*598restraint imposed following his jury convictions on ten counts of first degree assault.1 He contends the court sentenced him incorrectly to consecutive terms. He also asserts that CrR 7.2(d) required the court to enter findings of fact and conclusions of law with respect to his sentences, and it did not do so. This court appointed counsel to address the propriety of the consecutive sentences. Counsel raises, as additional issues, whether the jury instructions subjected Mr. Rangel to double jeopardy, and whether the evidence was sufficient to sustain his convictions.2

1. Consecutive Sentences.

RCW 9.94A.400(l)(b) provides that the court shall sentence a defendant convicted of two or more serious violent offenses arising from “separate and distinct” criminal conduct to consecutive sentences. The definition of “serious violent offense” includes first-degree assault. RCW 9.94A.030(31).

At issue here is the meaning of the phrase “separate and distinct” criminal conduct. Mr. Rangel’s ten assault convictions involved six different victims. Four of the victims were members of a rival gang. Mr. Rangel fired his gun at them as his vehicle passed theirs in downtown Yakima. The victims’ car crashed, and three other young men stopped to help them. Mr. Rangel’s vehicle turned around, and he fired his weapon as he approached again.

The State charged Mr. Rangel with four counts of first degree assault, based upon the initial attack, and six counts of attempted first degree murder or, alternatively, first degree assault, based upon the second attack. (One of the four occupants of the fired-upon vehicle had fled the scene after the crash and before Mr. Rangel returned.) The court instructed the jury that first degree assault is a lesser [599]*599included offense of attempted first degree murder. The jury convicted Mr. Rangel of first degree assault as to all ten counts. At sentencing, the court determined pursuant to RCW 9.94A.400(l)(b) that the ten convictions were based upon separate and distinct criminal conduct and, therefore, ordered Mr. Rangel to serve the sentences for the ten convictions consecutively.

Clearly, seven of Mr. Rangel’s convictions are for separate and distinct criminal conduct because they involved different victims—the four persons in the vehicle in the first attack and the three young men who stopped to help and were present at the scene when Mr. Rangel returned and opened fire. See State v. Wilson, 125 Wn.2d 212, 220, 883 P.2d 320 (1994); State v. Godwin, 57 Wn. App. 760, 763-64, 790 P.2d 641, review denied, 115 Wn.2d 1006 (1990). The question is whether the assaults Mr. Rangel committed when he fired at the three persons remaining at the scene at the time of the second attack, are separate and distinct from the assaults he committed against those same persons in the first attack.

In State v. Tili, 139 Wn.2d 107, 985 P.2d 365 (1999), the Washington Supreme Court used the factors that define “same criminal conduct,” as set forth in RCW 9.94A.400(1)(a), to determine that the defendant’s conduct in committing three different rapes of the same victim, was not “separate and distinct.” Id. at 122. Specifically, the defendant’s “unchanging pattern of conduct, coupled with an extremely close time frame, strongly supports the conclusion that his criminal intent, objectively viewed, did not change from one penetration to the next.” Id. at 124.

However, in reaching its conclusion, Tili distinguished State v. Grantham, 84 Wn. App. 854, 932 P.2d 657 (1997). Tili observed that the evidence in Grantham supported a conclusion that the defendant’s criminal conduct ended with the first rape. “Grantham, upon completing the act of forced anal intercourse, had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act.” Tili, 139 Wn.2d [600]*600at 123 (quoting Grantham, 84 Wn. App. at 859.). Tili cited the facts of Grantham, as follows: “After raping his victim, Grantham stood over her and threatened her not to tell. He then began to argue with and physically assault his victim in order to force her to perform oral sex. Thus, Grantham was able to form a new criminal intent before his second criminal act because his ‘crimes were sequential, not simultaneous or continuous.’ ”

Here, Mr. Rangel, while a passenger riding in one vehicle, fired shots from his vehicle into another vehicle. The second vehicle crashed, and Mr. Rangel’s vehicle drove on, turned around, and approached again. Mr. Rangel then opened fire a second time. Like the defendant in Grantham, Mr. Rangel was able to form a new criminal intent before his second criminal act because his crimes were sequential, not simultaneous or continuous. Therefore, his conduct was separate and distinct, and the trial court properly sentenced him to consecutive sentences under RCW 9.94A.400(l)(b).

We therefore uphold the superior court’s imposition of consecutive sentences for Mr. Rangel’s offenses.

2. CrR 7.2

CrR 7.2 provides that the sentencing court shall supply the Sentencing Guidelines Commission with its written findings of fact and conclusions of law for every felony sentence that departs from the applicable standard range sentence. The court rule does not apply to Mr. Rangel’s case. The fact Mr. Rangel’s standard range sentences ran consecutively pursuant to RCW 9.94A.400(l)(b) does not convert them to exceptional sentences. Cf. State v. Linderman, 54 Wn. App. 137, 139, 772 P.2d 1025, review denied, 113 Wn.2d 1004 (1989) (Unless the offenses fall under the exceptions listed in subsection (l)(b) or subsection (3), consecutive sentences imposed for current offenses constitute exceptional sentences).

3. Double Jeopardy.

Mr. Rangel next contends the court’s instructions [601]*601violated the prohibition against double jeopardy by permitting the jury to convict him of two assaults with respect to each of the occupants of the car, without requiring it to base those convictions on separate facts. The State had charged him with separate assaults for the gunshots he fired at the vehicle’s occupants before

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