FILED
March 18,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 30466-3-111 Respondent, ) ) v. ) ) JOE ANTHONY MATA, ) OPINION PUBLISHED IN PART ) Appellant. )
SIDDOWAY, A.C.J.-Joe Mata appeals his convictions of robbery, attempted
robbery, and first degree unlawful possession ofa firearm. We conclude that this second
prosecution for unlawful possession of a .45 caliber handgun violates his right to be free
of double jeopardy and reverse his conviction on that count. We fmd no other reversible
error nor does Mr. Mata raise any viable issue in his pro se statement of additional
grounds. We reverse his conviction of unlawful possession of a firearm and remand for
resentencing.
FACTS AND PROCEDURAL BACKGROUND
On July 28, 2009, roughly six weeks after his release from custody on other
charges, Joe Mata embarked on a one-day, multi-county crime spree. He was charged No.30466-3-II1 State v. Mata
with crimes in Yakima and Pierce Counties. The Yakima County charges and
convictions are the subject matter of this appeal.
The crimes allegedly began with Mr. Mata's early morning theft, in Yakima, of a
1993 Dodge Caravan belonging to Luz Garcia, bearing the license plate 864-ROW. Mid
morning, the manager of a restaurant in Union Gap reported to the county sheriff that a
man and woman left his restaurant without paying. Responding officers were told that
the couple left in what a witness described as a Ford Aerostar van, license plate 664
ROD. At 10:40 a.m., a Yakima County sheriffs deputy responded to a robbery not far
from the restaurant, reported by Zachary Sisneros. Mr. Sisneros had been working,
delivering bottled water, when a maroon Dodge Caravan with the license plate 860-ROW
blocked his truck in the driveway of a residence on his route. The driver of the van
robbed him at gunpoint, taking his money, wallet, and his cell phone. Mr. Sisneros's
description of the robber was similar to the description of the man who had left the
restaurant without paying. Mr. Sisneros believed the gun was a .40 or .45 caliber
semiautomatic pistol.
At around 6:30 p.m., another armed robbery was reported by Shaun Kroeger and
Jacob McDonald. They had been shopping for groceries in Yakima and were returning to
Mr. McDonald's pickup truck when a man confronted Mr. Kroeger as he was getting into
the truck, demanding "everything you got." Report of Proceedings (RP) (Oct. 17, 2011)
at 541. The man flashed a gun and threatened to kill Mr. Kroeger if he did not hand over
No. 30466-3-111 State v. Mata
his wallet; Mr. Kroeger complied. As he did, Mr. McDonald, who had gotten out of the
truck to see what was going on, saw Mr. Kroger hand over his wallet and saw a gun in
the robber's hand, pointed to the ground. The robber demanded Mr. McDonald's money
as well, but Mr. McDonald refused and walked away. After the robber ran off, the two
men called the police and reported the incident, describing the robber's vehicle as a red
van with the license plate 864-ROW. Mr. Kroeger's description of the man who robbed
him was similar to Mr. Sisneros's description of the robber who confronted him earlier in
the day.
Later that night, at 11: 15 p.m., Deputy Robert Glen Carpenter of the Pierce
County Sheriffs Office was running routine license plate checks of traffic leaving State
Route 512. He ran a plate on a maroon van with license plate 864-ROW and received an
NCIC I hit stating the vehicle was stolen and the subjects should be considered armed and
dangerous.
Deputy Carpenter caught up with the van, which was being driven by Mr. Mata,
with Christina Barrientes a passenger. As Deputy Carpenter and officers in another
patrol car activated their lights, Mr. Mata ran a red light, sped away, and a high-speed
chase ensued. It ended when Mr. Mata crashed through a fence on a dead-end road, got
I National Crime Information Center.
No.30466-3-III State v. Mata
out of the van, and ran. Deputy Carpenter captured and arrested Mr. Mata with the help
of employees in a building in which Mr. Mata attempted to hide.
A later search of the van led to the discovery ofa loaded.45 caliber handgun,
found on the driver's side floorboard. Also found were two wallets, one belonging to Mr.
Kroeger; Mr. Sisneros's cell phone; and ignition parts along with a screwdriver.
A records check conducted on the .45 caliber handgun recovered revealed that it
had been purchased by Ms. Barrientes on June 5 in Yakima. She picked it up on June 16,
at a time when Mr. Mata was in jail for a community custody violation. During the
Yakima trial, the State played an audio recording of a telephone call made to Ms.
Barrientes by Mr. Mata on June 15, from the county jail, in which he spoke to Ms.
Barrientes about purchasing a gun.
Mr. Mata was charged with crimes in both Pierce and Yakima Counties and was
tried first in Pierce County. Mr. Mata was prohibited from owning or possessing a
firearm in light of his prior conviction of a serious offense, and one of the charges
prosecuted in Pierce County was first degree unlawful possession of the .45 caliber
handgun found in the Dodge Caravan. The Pierce County jury found him not guilty of
that crime.
In Yakima County, the State filed its first information against Mr. Mata on July
31, 2009, charging him with the following counts and enhancements:
Count 1: First degree robbery of Zack Sisneros, alleging that "in the commission of or immediate flight therefrom, you displayed what appeared to be a firearm or other deadly weapon." Clerk's Papers (CP) at 1. Firearm enhancement.
Count 2: First degree unlawful possession of a firearm.
By amended information filed August 8, 2011, the State added additional charges
and modified the manner in which it charged Mr. Mata with having displayed or used
weapons, as follows:
Count 1: First degree robbery of Zack Sisneros, alleging that "in the commission of or immediate flight therefrom, you were armed with a firearm and/or you displayed what appeared to be a firearm or other deadly weapon." CP at 26. Firearm enhancement.
Counts 2 First degree robbery ofShaun Kroeger (count 2) and lake and 3: McDonald (count 3), with allegations of firearm or deadly weapon display or use identical to the allegation in Count One. Firearm enhancement as to each.
Count 4: First degree unlawful possession of a firearm.
Plus rapid recidivism enhancement under RCW 9.94A.535(3)(t).
Plus exceptional sentence to adjust for "free crimes" under RCW 9.94A.535(2)(c).
By a second amended information filed on October 10,2011, the day of the
pretrial conference in Mr. Mata's Yakima County trial, the State further modified the
charges. The prosecutor explained that the State was amending count 3 to attempted first
degree robbery, since Mr. Mata demanded Mr. McDonald's wallet but never took
property from Mr. McDonald's person. The prosecutor also told the court that the third
amended information "cleans up some of the language" to exclude the reference to
displaying a deadly weapon. RP (Oct. 10,2011) at 3. The amendment did more; it also
(inadvertently, it appears) eliminated the alternative of Mr. Mata's having been "armed
with" a firearm, alleging, in connection with counts 1, 2, and 3, only that
in the commission of or immediate flight therefrom, you displayed what appeared to be a firearm.
CP at 32-33.
Trial began on October 12. On October 20, the State rested its case. It then asked
to amend the information a third time. It explained that the robbery counts should have
alleged that Mr. Mata was armed with a firearm "and/or" displayed what appeared to be a
firearm or other deadly weapon. RP (Oct. 20, 2011) at 813. Mr. Mata objected. The trial
court ultimately ruled that it would allow the amended information if it excluded the "or
other deadly weapon" language. Id. at 819.
The third amended information therefore modified the manner in which it charged
Mr. Mata with having displayed or used weapons by restoring the alternative of being
armed, alleging in each of counts 1, 2, and 3 that
in the commission of or immediate flight therefrom, you were armed with a firearm and/or you displayed what appeared to be a firearm.
CP at 93-94.
I
i I No.30466-3-II1 I State v. Mata
I During trial, Mr. Mata asked the trial court to dismiss the unlawful possession of a
I firearm count, arguing that he could not be convicted of unlawfully possessing the same
I firearm that the Pierce County jury had acquitted him of possessing on the date in
question. The trial court recognized it as a viable issue and one "wisely brought up by I , the defense," but concluded that there was a sufficient geographic and temporal gap
between possession of the .45 caliber handgun in Yakima and Pierce Counties and denied
the motion. RP (Oct. 20, 2011) at 806-07.
The jury found Mr. Mata guilty of the first degree robberies of Mr. Sisneros and
Mr. Kroeger and unlawful possession of a firearm. It answered "yes" to the special
verdict forms addressing the firearm and rapid recidivism aggravators.
The trial court imposed an exceptional sentence based on the jury's findings and
on its own finding that Mr. Mata committed multiple current offenses and his high
.offender score that resulted in some of the current offenses going unpunished. At the
State's request, which was based on RCW 9.94A.589(3), the court ordered that the
sentence for the Yakima County crimes run consecutive to Mr. Mata's Pierce County
sentence.
Mr. Mata appeals.
ANALYSIS
Mr. Mata makes four assignments of error2: (1) that his conviction of first degree
unlawful possession of a firearm violates his constitutional right of protection against
double jeopardy, (2) that the trial court violated CrR 2.1 (d) and his constitutional right to
notice of the charges against him in allowing the State to file the third amended
information after resting its case-in-chief, (3) that the trial court erred in ordering that the
sentences for his Yakima County convictions run consecutive with his Pierce County
conviction, and (4) that the "free crimes" aggravator may not be warranted depending on
the outcome of other issues on appeal. We address the assignments of error in tum.
Double Jeopardy
Mr. Mata first contends that his prosecution in Yakima County for unlawful
possession of the firearm discovered in the van in Pierce County violated his right to be
free of double jeopardy.
The Fifth Amendment and the Washington State Constitution provide that no
person shall be twice put in jeopardy for the same offense. U.S. CONST. amend. V;
WASH. CONST. art. I, § 9. Both constitutional guarantees include protection from being
prosecuted a second time for the same offense after acquittal. State v. Linton, 156 Wn.2d
777, 783, 132 PJd 127 (2006).
2 He abandoned a fifth assignment of error, challenging his offender score.
I No. 30466-3-111 State v. Mata
The determination of whether or not a defendant faces multiple convictions for the
same crime depends on the unit of prosecution. State v. Hall, 168 Wn.2d 726, 730, 230
P.3d 1048 (2010) (citing State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002)).
"The unit of prosecution for a crime may be an act or a course of conduct." State v.
Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005) (citing United States v. Universal c.I.T.
Credit Corp., 344 U.S. 218,225-26, 73 S. Ct. 227, 97 L. Ed. 260 (1952)). "The proper
question is to determine what act or course of conduct the legislature has defined as the
punishable act." State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007). The
statutory unit of prosecution is a question of law that we review de novo. State v. Ose,
156 Wn.2d 140, 144, 124 P.3d 635 (2005).
The approach to determine the unit of prosecution is well settled:
[T]he first step is to analyze the statute in question. Next, we review the statute's history. Finally, we perform a factual analysis as to the unit of prosecution because even where the legislature has expressed its view on the unit of prosecution, the facts in a particular case may reveal more than one "unit of prosecution" is present.
Varnell, 162 Wn.2d at 168 (citing State v. Bobic, 140 Wn.2d 250,263-66,996 P.2d 610
(2000)). If the statute is ambiguous as to the unit of prosecution, the rule of lenity applies
and the ambiguity must be "'resolved against turning a single transaction into multiple
offenses.'" Tvedt, 153 Wn.2d at 711 (internal quotation marks omitted) (quoting State v.
Adel, 136 Wn.2d 629,635,965 P.2d 1072 (1998)).
Mr. Mata was charged in both Pierce and Yakima Counties under RCW
9.41.040(1)(a), which defines the crime of first degree unlawful possession ofa handgun
as follows:
A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted ... in this state or elsewhere of any serious offense as defined in this chapter.
The charges in both counties were based on his possession on July 28, 2009 of the .45
caliber handgun found on the floorboard of the Dodge Caravan.
We first analyze the statute. Subsection (l)(a) makes it a crime for a person
convicted of a serious offense to own or have possession of "any" firearm, without tying
the commission of the crime to a particular duration of ownership or possession or to the
location of the firearm. Subsection (7) of the statute provides, "Each firearm unlawfully
possessed under this section shall be a separate offense." RCW 9.41.040(7). Each
firearm therefore constitutes a separate unit of prosecution. In re Pers. Restraint of
Shale, 160 Wn.2d 489, 500, 158 P.3d 588 (2007).
Neither the parties nor we have identified any legislative history that would
suggest that the unit of prosecution is anything other than the particular firearm.
The State's position that there might be separate "possessions" of the same firearm
that support separate charges under the statute implicates the third, factual step of the
analysis, in which we determine whether, despite the legislative focus, the facts reveal
that more than one "unit of prosecution" is present. The possibility of multiple
"possessions" of the same firearm finds support in State v. Kenyon, 150 Wn. App. 826,
208 P.3d 1291 (2009), in which Division Two of this court considered the character of
the crime of unlawful possession of a firearm in a different context: a defendant's
argument that a second prosecution for his unlawful possession of a firearm in 2004
should have been dismissed under CrR 4.3.1 because it was "related" within the meaning
of the rule to an earlier prosecution for possessing the same firearm in 2005.
In Kenyon, the material facts were summarized in findings by the trial court that
were treated as verities on appeal:
"In this particular case, although the same firearm, identified by its serial number, was possessed on one occasion and allegedly possessed in this case on another occasion, those two time periods are eight months apart. They have intervening time where Mr. Kenyon was incarcerated both in jail and in prison. Certainly this could not be said to be a single criminal incident or episode. "The allegation is that Mr. Kenyon possessed this firearm, divested himself of it by throwing it out the window, and then at a later time regained it and possessed it again. The Court finds that this is not a situation where the facts amount to a related offense, because it is not a single criminal incident or episode."
150 Wn. App. at 833.
Division Two concluded that the trial court erred in failing to dismiss the second
prosecution and in the process made two observations that are relevant to the issue
presented here, and with which we agree. First, it stated that "[t]he act upon which these
two charges rest--ownership, possession, or control of a single firearm-is a '''course of
conduct'" rather than a discrete act because that behavior takes place over a period of
time rather than at one distinct moment." Id. at 834. At the same time, it regarded the
two instances of possession as different offenses when it stated that they "were related
and, as such, should have been charged at the same time." Id. (emphasis added).
Implicitly, the court accepted the trial court's reasoning that the defendant's act of
throwing the firearm out the window and regaining possession of it many months later,
following a period of incarceration, resulted in a distinct, separately chargeable course of
conduct.
Other Washington decisions support the concept that a crime that is defined as a
course of conduct can, depending on the facts, be interrupted and committed anew. In
Hall, the Supreme Court found that a criminal defendant's hundreds of calls to a witness
in an effort to dissuade her from testifying constituted a single witness tampering offense,
concluding that the witness tampering statute criminalizes the "ongoing" attempt to
persuade a witness not to testify. 168 Wn.2d at 733. It stated in dicta that "[o]ur
determination might be different if Hall had changed his strategy ... or if he had been
stopped by the State briefly and found a way to resume his witness tampering campaign."
Id. at 737.
In State v. Chouap, 170 Wn. App. 114, 125,285 P.3d 138 (2012), Division Two,
citing this dicta in Hall, found the crime of attempting to elude a pursuing police vehicle
to be one that a defendant could "commit ... anew with each pursuit." In Chouap, the
No. 30466-3-III State v. Mata
defendant had attempted to elude law enforcement in two high speed chases: one in
Tacoma, involving Tacoma police, and another in Lakewood, involving Lakewood
police. The court found two pursuits and two offenses where "the first pursuit ended
when the Tacoma police officers stopped pursuing Chouap because of his dangerous
driving," and he had thereby "successfully eluded the pursuing police vehicle." Id.
We conclude, as did Division Two in Kenyon, that the crime of unlawful
possession of a firearm is a "course of conduct" rather than a discrete act. We agree that
an interruption in possession of a particular firearm may result in different "possessions"
just as the interruption of the defendant's effort to elude in Chouap resulted in different
"pursuits." We need not decide in this case what the duration or character of the
interruption would have to be in order to give rise to distinct, separately chargeable,
unlawful "possessions" of a firearm, however, because the State offered no evidence that
Mr. Mata's possession of the .45 caliber handgun on July 28 (at times actual; at others,
constructive) was ever interrupted.
"[W]hen a statute defines a crime as a course of conduct over a period oftime,
'then it is a continuous offense and any conviction or acquittal based on a portion of that
course of action will bar prosecution on the remainder.'" State v. McReynolds, 117 Wn.
App. 309, 339, 71 P.3d 663 (2003) (quoting Harrell v. Israel, 478 F. SUpp. 752, 754-55
(E.D. Wis. 1979». Mr. Mata's acquittal of unlawful possession of the .45 caliber
handgun based on a portion of his possession of the firearm on July 28 barred prosecution
of the remainder. The unlawful possession conviction must be reversed.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
opinions.
Mr. Mata next argues that allowing the State to amend the information for the
third time after the State rested violated his rights under the Sixth Amendment to the
United States Constitution, article I, section 22 of the Washington State Constitution, and
CrR 2.l(d).
CrR 2.1(d) allows the trial court to permit the State to amend an information "at
any time before verdict or finding if substantial rights of the defendant are not
prejudiced." We review a trial court's decision to allow amendment under the rule for
abuse of discretion. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P .2d 974 (1998).
If the criminal rule were our only concern, we would find no prejudice to Mr.
Mata's substantial rights and no abuse of discretion. All of the evidence presented at trial
was that Mr. Mata was armed with a handgun-and what is important here, that he
displayed that handgun during the course of both robberies. In In re Personal Restraint
o/Brockie, 178 Wn.2d 532, 309 P.3d 498 (2013) our Supreme Court (although
addressing a different issue) recognized that where a defendant is charged with first
No. 30466-3-II1 State v. Mata
degree robbery based on the means of "display[ing] what appears to be a firearm or other
deadly weapon,"3 then evidence that he was armed with and displayed his weapon does
not present a risk that the jury. will convict on the basis of an uncharged alternative means
of being "armed with a deadly weapon."4 As explained in Brockie:
Throughout the trial, the evidence consistently showed that the robber displayed what appeared to be a gun throughout the robberies. There is no indication that the trial included any discussion or claim that the robber was armed with a deadly weapon but did not display it. Thus, based on the facts in this particular case, any juror that found the robber was armed with a deadly weapon necessarily would have found that the robber displayed the weapon-the alternative means that was properly described in the charging information.
178 Wn.2d at 540. There was even less possibility of prejudice here, where Mr. Mata
had been charged since the second amendment of the information with firearm
enhancements on the robbery and attempted robbery counts. He was thereby on notice (if
not through the means charged in counts 1 and 2) that the State intended to offer proof
that he was armed.
Mr. Mata points out, however, that the "essential elements" rule applies in
addition to CrR 2.1(d). In State v. Pelkey, 109 Wn.2d 484, 487-88, 745 P.2d 854 (1987),
our Supreme Court, having considered the requirement of article I, section 22 of the
Washington Constitution that the accused be adequately informed of the State's charges,
3 The means provided by RCW 9A.56.200(1)(a)(ii).
4 The means provided by RCW 9A.56.200(1)(a)(i).
held that the State may not amend a charge after resting its case-in-chief. It found the
requirement of notice to be subject to only two narrow exceptions. "A criminal charge
may not be amended after the State has rested its case-in-chief unless the amendment is
to a lesser degree of the same charge or a lesser included offense. Anything else is a
violation of the defendant's article 1, section 22 right." Id. at 491. Later cases have
characterized Pelkey as announcing a "bright line" rule and held that where an
amendment by the State after resting does not meet one of its exceptions, the defendant is
not required to show prejudice. State v. Vangerpen, 125 Wn.2d 782, 789, 888 P.2d 1177
(1995); State v. Markle, 118 Wn.2d 424,437,823 P.2d 1101 (1992).
Here, the State's third amendment added an alternative means of committing the
robberies charged in counts 1 and 2: being "armed with a firearm" in the commission of
or immediate flight therefrom. Contrary to the State's contention on appeal, Mr. Mata
objected to the State's request for the third amendment. s The State also argues that
"nothing 'new'" was added to the third amended information, Br. of Resp't at 11-12, but
in Brockie, the Supreme Court pointed out that a person may be armed with but not
display a weapon, and "[t]he legislature clearly intended to treat the two alternative
means of committing robbery in the first degree as distinct." 178 Wn.2d at 538.
S Mr.Mata's lawyer stated, "Your honor, the state has rested. We went to trial on these charges. I don't think that the amendment should be permitted." RP (Oct. 20, 2011) at 814. Although there was confusion about what was being added by the third amendment, the objection was sufficient.
16 No. 30466-3-111 State v. Mata
Nonetheless, in an uncharged alternative means case such as this one, involving a
charging document that is sufficient but an amendment that should not have been
permitted, the State may show harmlessness. fd. at 539 n.2 (citing State v. Bray, 52 Wn.
App. 30, 34-36, 756 P.2d 1332 (1988)); State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d
1182 (1985) (constitutional error is presumed to be prejudicial and the State bears the
burden of proving that the error was harmless). We find a constitutional error harmless
only if convinced beyond a reasonable doubt that any reasonable jury would reach the
same result absent the error. Guloy, 104 Wn.2d at 425.
In cases where a jury is instructed on an uncharged offense, harmlessness is most
commonly shown by other instructions that define the crime in a manner that leaves only
the charged alternative before the jury. State v. Severns, 13 Wn.2d 542, 548, 125 P.2d
659 (1942). In this case, harmlessness is shown by the fact that all of the evidence and
argument was that Mr. Mata displayed a firearm when he robbed Mr. Sisneros and Mr.
Kroeger. The possibility of an undisplayed firearm was never suggested. And Mr.
Mata's defense was to deny any involvement in the robberies; he did not challenge the
testimony of the robbery victims and other witnesses that a handgun was displayed in
both robberies. Cf Brockie, 178 Wn.2d at 540. Given that the only evidence offered or
argued by the State was evidence of a displayed, not a concealed, firearm, the error in
permitting the late amendment was harmless.
II
Mr. Mata next argues that the trial court erroneously relied on RCW 9.94A.589(3)
to "[impose] a consecutive sentence on Mr. Mata's Yakima County convictions with the
Pierce County convictions." Br. of Appellant at 21. We conclude that the statute did not
apply but that the result was still the consecutive sentencing ordered by the court.
During the sentencing hearing, the lawyers argued about the State's proposed
language in section IV.A of the judgment and sentence, dealing with confinement, which
reads in part as follows:
4.A.2 Concurrent or Consecutive:
[8J Consecutive With Other Sentences: Unless otherwise specified here,
this sentence shall be consecutive with prior sentences.
CP at 756 (bold face omitted). Mr. Mata's lawyer argued that the court should exercise
its discretion by allowing its sentence to run concurrently with the Pierce County
sentences, contending that the Pierce County crimes "were part of the same crime spree,"
that Mr. Mata had "been in custody on this case and the other case during that time," and
that the Pierce County "sentence was prior because they ended up with his body first."
RP (Dec. 5,2011) at 91,92. The State argued that the trial court should exercise its
discretion to have the sentences run consecutively, pointing out that "in a case where the
court's imposing an exceptional sentence I can't imagine why you-the court would then
run concurrent a separate case." ld. at 93.
18 No. 30466-3-111 State v. Mata
We are puzzled by the positions taken by the parties on the application ofRCW
9.94A.S89(3) in light of the State's argument in the trial court, which is now Mr. Mata's
argument on appeal, that Mr. Mata was serving community custody at the time he
committed the Yakima County crimes in which case the statute does not apply. 6
RCW 9.94A.S89(3) provides:
Subject to subsections (1) and (2) of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence for conviction ofa felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.
(Emphasis added.)
On appeal, Mr. Mata argues that because he was subject to community custody at
the time he committed the Yakima crimes, he was '''[subject to] sentence for conviction
of a felony'" within the meaning of Washington statutes dealing with sentencing and
confinement, as decided in State v. Roberts, 76 Wn. App. 290,292-93, 884 P.2d 628
(1994). Appellant's Br. at 23. On that basis, he argues, RCW 9.94A.S89(3) did not
apply. From this, he argues that any consecutive sentence imposed would have to be
imposed as an exceptional sentence. But since the State did not ask for, nor did the court
6 This is confirmed by his judgment and sentence, which found commission of a current offense while on community placement, community custody, or community supervision, which added one point to his offender score. See CP at 764.
19 No.30466-3-III State v. Mata
order, exceptional consecutive sentencing, he argues that his Yakima County sentence
must run concurrent to his Pierce County sentence.
The State responds with settled law that where RCW 9.94A.589(3) applies, the
sentencing judge enjoys "discretion to impose either a concurrent or consecutive sentence
for a crime that the defendant committed before he started to serve a felony sentence for a
different crime,,' without finding aggravating factors that would support an exceptional
sentence. State v. King, 149 Wn. App. 96, 101,202 PJd 351 (2009). It does not address
Roberts and is now silent on whether Mr. Mata was subject to community custody at the
time he committed the Yakima crimes, thereby taking him outside the operation of RCW
9.94A.589(3).
Where RCW 9.94A.589(3) does not apply, the default provision applicable to
defendants in Mr. Mata's situation is RCW 9.94A.589(2)(a). It provides in relevant part
that "whenever a person while under sentence for conviction of a felony commits another
felony and is sentenced to another term of confinement, the latter term shall not begin
until expiration of all prior terms." The result is consecutive sentencing. See State v.
Mahone, 164 Wn. App. 146, 152,262 P.3d 165 (2011). While the trial court might have
lacked the discretion provided by RCW 9.94A.589(3) that was urged by the State, the
default result is the consecutive sentencing reflected in the judgment and sentence. Any
mistaken reasoning was harmless.
20 No. 30466-3-111 State v. Mata
III
Mr. Mata next raises a conditional challenge to the the trial court's application of
the free crimes doctrine as a basis for his exceptional sentence "depending upon the
decision made by the appellate court on the argument contained in his brief." Br. of
Appellant at 24. He does not argue that the trial court lacked a sufficient basis for
applying the doctrine given the convictions and the offender score on which it based its
sentencing decision but only argues that decisions on appeal might change the calculus.
A defendant's standard range sentence reaches its maximum at an offender score
of"9 or more." RCW 9.94A.510. The result for a defendant being sentenced for
multiple current offenses that result in an offender score greater than nine is that further
increases in the offender score do not increase the standard sentence range. State v.
France, 176 Wn. App. 463,470,308 P.3d 812 (20l3), review denied, 318 P.3d 280
(2014). However, a trial court may impose an exceptional sentence if "[t]he defendant
has committed multiple current offenses and the defendant's high offender score results
in some of the current offenses going unpunished." RCW 9.94A.535(2)(c). The
shorthand term "free crimes" is commonly used for the "current offenses going
unpunished" that might justify an exceptional sentence.
Mr. Mata had an offender score of 14 prior to committing the crimes prosecuted
here. In support of the exceptional sentence imposed by the court, it identified the free
crimes aggravator as one reason. Correcting Mr. Mata' s offender score for our reversal
of the unlawful possession of a fireann conviction will reduce his offender score but it
will still be high and well within "free crimes" aggravator territory. Reading the trial
court's findings in support of its exceptional sentence as a whole, we question whether its
position on an exceptional sentence will change, but that is a decision for the trial court to
make in resentencing Mr. Mata.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Mata states seven. 7
Whether Mr. Mata's Sixth Amendment right to confront witnesses against him was
violated when the recording ofhis police phone call was not properly authenticated. Mr.
Mata's first ground is that the audiotape of his June 15 call from jail to Ms. Barrientes
was not properly authenticated. He cites the seven-part test for authentication provided
by Washington case law. 8
7 On the last page of Mr. Mata's SAG, he complains of an inadequate record on appeal, mentioning "many motions" that he filed before pretrial and trial proceedings. We note that Mr. Mata appealed only the jury verdict, judgment, and sentence and has therefore brought up for appeal only those matters and any orders or rulings prejudicially affecting them. RAP 2.4(b)(l). 8 A proper foundation requires: "(1) It must be shown that the mechanical transcription device was capable of taking testimony. (2) It must be shown that the operator of the device was competent to operate it. (3) The authenticity and correctness of the recording must be established. (4) It must be shown that changes, additions, or deletions have not been made. (5) The manner of preservation of the record must be shown. (6) Speakers must be identified. (7) It must
The State called Lieutenant Gordon Costello to authenticate the recording of Mr.
Mata's call. The lieutenant testified as to the nature of the jailhouse recording system, its
methods of storage, the process for identifYing the inmate-caller through a pin number,.
the methods of recording, whether changes or deletions may be shown, and he identified
Mr. Mata as one of the speakers on the call. The trial court found sufficient·
circumstantial evidence identifYing Christina Barrientes as the woman speaking during
the call in the form of her partial identification of herself, her phone number, address,
voice identification, and the fact that she picked up a handgun on June 16 consistent with
the substance of the call.
Mr. Mata cannot raise objections to the evidence that were not raised in the trial
court. RAP 2.5(a). The trial court considered his objections to recordings of several calls
offered by the State and admitted only the recording of the June 15 call. We review a
trial court's ruling on the admissibility of evidence for abuse of discretion. State v.
Vreen, 143 Wn.2d 923,932,26 PJd 236 (2001). The court did not abuse its discretion in
finding that the State had laid a sufficient foundation for admitting the recording.
Whether substantial evidence supports the rapid recidivism exceptional sentence
and whether the jury was provided proper guidance for its instruction. Mr. Mata's
be shown that the testimony was freely and voluntarily made, without any kind of duress." State v. Robinson, 38 Wn. App. 871, 885,691 P.2d 213 (1984) (quoting State v. Williams, 49 Wn.2d 354,360,301 P.2d 769 (1956)).
23 No.30466-3-III State v. Mata
second ground challenges the instruction and evidence on the rapid recidivism
aggravator. The jury was instructed that if it found Mr. Mata guilty of any of the charged
crimes it must determine "whether the defendant committed the crime shortly after being
released from incarceration." CP at 518. It answered "yes." CP at 525. Mr. Mata
argues that the approximately six weeks at issue here was not "rapid," the jury was not
properly guided on what constitutes a "rapid" time frame, and there was no evidence on
which the jury could find that the dates on which he was released from custody and then
reoffended.
Because the aggravating factor codified in RCW 9.94A.535(3)(t) is that "[t]he
defendant committed the current offense shortly after being released from incarceration,"
"[t]his is the only fact that must be found by the jury." State v. Williams, 159 Wn. App.
298,312-13,244 P.3d 1018 (2011). The "technical term rule" requires courts to define
technical words and expressions but not words and expressions that are of ordinary
understanding and self-explanatory. State v. Allen, 101 Wn.2d 355,358,678 P.2d 798
(1984). The language used in the court's instruction or special verdict form on the rapid
recidivism aggravator is language of ordinary understanding and self-explanatory. We
also note that "[a] trial court is not required to impose an exceptional sentence merely
because a jury finds an aggravating circumstance proved. Rather, in such a circumstance,
the trial court may sentence the defendant to an exceptional sentence if it determines 'that
the facts found are substantial and compelling reasons justifying an exceptional
sentence.'" Williams, 159 Wn. App. at 314 (quoting RCW 9.94A.537(6».
Mr. Mata also makes a constitutional vagueness challenge to the instruction and
verdict fonn. Where- a statute does not impinge on First Amendment rights, we evaluate
a vagueness challenge "by examining the statute as applied under the particular facts of
the case." State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992). Statutes are
presumed to be constitutional. City a/Spokane v. Vaux, 83 Wn.2d 126, 129,516 P.2d
209 (1973). "When a statute does not define tenns alleged to be unconstitutionally
vague, we 'may look to existing law, ordinary usage, and the general purpose of the
statute to detennine whether the statute meets constitutional requirements of clarity.' "
Williams, 159 Wn. App. at 319 (internal quotation marks omitted) (quoting State v. Hunt,
75 Wn. App. 795, 801, 880 P.2d 96 (1994».
As applied to Mr. Mata, RCW 9.94A.535(3)(t) is not vague. The evidence
presented to the jury was that Mr. Mata was making arrangements to acquire the handgun
used to commit the robberies while injail. Committing a crime within six weeks of
release fits well within any common understanding of "shortly after."
Finally, the State presented evidence on the time frame involved in a bifurcated
proceeding on the rapid recidivism issue, conducted after the jury had returned its
verdicts of gUilty. Lieutenant Costello testified that Mr. Mata had been incarcerated in
June 2009 for "a guilty finding on a charge of offender accountability," that "[h]e was
released on 6-20-2009 at 1939 [hours]," and that the number of days between his June 20
release and July 28 was "38 days." RP (Oct. 24, 2011) at 1066-68. The jury had been
presented with substantial evidence during the trial that the date of the crimes charged
was July 28.
Whether Mr. Mata had adequate notice ofthe prohibition against firearm
possession. Mr. Mata's third ground relates to the unlawful possession conviction that
we reverse. It is moot.
The court erred in using a single definition of "firearm" for each charge; it
ignored the fact that the alleged weapon had never been tested or shown to be able to fire
a projectile; defense counsel was ineffective for not hiring experts on the issue of
identification and made mistakes during pretrial motions; and the prosecutor committed
misconduct in opening statements and during trial by violating the court's pretrial order
about "crime spree" evidence. Mr. Mata' s fourth, fifth, sixth, and seventh grounds are
all insufficiently supported under RAP 10.3(a)(6). They lack citation to relevant portions
of the record, identification of the claimed error, supporting legal authority, and reasoned
argument. We refuse to consider them.
We reverse Mr. Mata's conviction of first degree unlawful possession ofa firearm
and remand to the sentencing court for a recalculation of the offender score and
Sid~ta1r WE CONCUR:
Brown, J. Kulik, J.P.T.