State v. DeSantiago

149 Wash. 2d 402

• Court: Washington Supreme Court
• Decided: May 15, 2003
• Docket: No. 71918-7
• Status: Published

Opinions

Owens, J.

—At issue in this case is whether the testimony of three key witnesses from the defendants’ first trial, which ended in a mistrial, could be read to the jury on retrial without violation of the sixth amendment to the United States Constitution or ER 804. The witnesses were unavailable at the time of retrial, the former testimony is sufficiently reliable, and the defendants had similar motive when they cross-examined the witnesses at the first trial. Therefore, we hold that admission of the former testimony was proper.

In addition, the jury found that the defendants were armed with both a firearm (a gun) and a deadly weapon (a knife). The second issue here is whether one sentence enhancement for the firearm and a second sentence enhancement for the deadly weapon may be imposed for a single underlying offense. We hold that where a jury determines that a defendant was armed with more than one weapon, RCW 9.94A.510 unambiguously requires the sentencing judge to apply the proper enhancement for each firearm or other deadly weapon carried. However, the total sentence remains presumptively limited by the statutory maximum for the underlying crime.

FACTS

At the first trial, Eduardo Sanchez (E. Sanchez) testified that when he and Reina Serrano (Serrano) returned home on the night of February 19, 1999, a car blocked them into their driveway and three men appeared on foot from behind their house. The men put a gun to E. Sanchez’s head and a knife to his ribs and forced him into their car. The kidnappers took him to a hotel in Kennewick, contacted his family, and demanded a ransom. After two nights they drove E. Sanchez back to Moses Lake, where his father, Jose Sanchez (J. Sanchez), delivered the ransom and E. Sanchez was released. E. Sanchez identified all five defendants: Enrique DeSantiago (E. DeSantiago), Victor Carrillo Diaz (Diaz), Pedro Mendoza Carranza (Carranza), and Elpidio Ramirez Reyes (Reyes) who had abducted him, and Armando Mayorga DeSantiago (A. DeSantiago) who had joined the group at the hotel.

Serrano testified about the abduction and the damage she found inside her home including cut phone lines, damage to the door, and open sodas in the kitchen. J. Sanchez testified that the kidnappers contacted him and Serrano after the abduction. At the direction of the police, J. Sanchez arranged an exchange of $11,000 for his son’s safe return. Just after E. Sanchez’s release, the defendants were arrested. Despite testimony from all three witnesses, the jury could not reach a verdict in the first trial.

Three days before the second trial, the court held an evidentiary hearing on the admissibility of the witnesses’ prior testimony. The Grant County prosecutor explained that after the court set a new trial date, he mailed subpoenas to the family. A few days later, an anonymous family member reported that the family had moved. Both a detective and a family friend revealed that the witnesses had been reluctant to testify at the first trial and moved because they were afraid of the defendants.

The prosecutor assigned a detective to try to locate the missing witnesses. The anonymous family member explained that Serrano and the Sanchezes had moved to Mexico but refused to say exactly where they were. Although they reportedly considered moving to Texas, the detective could not elicit contact information for relatives there. The local family member persistently refused to reveal the family’s location, despite four or five attempts to obtain further information.

The testimony of all three witnesses was admitted and read to the jury at the second trial. Several other witnesses also connected the defendants to the abduction. However, the defendants claimed that E. Sanchez willingly accompanied them to the hotel, no weapons were involved, and the two days were spent drinking beer in the hotel room. They also claimed that the payment from J. Sanchez was in fact a refund for a pickup truck, which Diaz had purchased from the Sanchezes but for which they had failed to produce a title. Any requests for money were demands for either the title or a refund.

On cross-examination, read from the first trial, Eduardo and Jose Sanchez denied knowing anything about the pickup. Yet, at the second trial, Diaz offered for the first time a Department of Licensing record indicating that shortly before the kidnapping, the Sanchezes were the owners of a 1990 blue Chevrolet pickup truck. Diaz’s attorney had acquired the pickup truck registration on the day before the evidentiary hearing for the second trial. However, the defense did not bring the registration to the court’s attention -until three days into trial, long after the evidentiary hearing and after the Sanchezes’ testimony had been read to the jury.

The jury found A. DeSantiago and E. DeSantiago guilty of kidnapping and the remaining defendants guilty of both kidnapping and burglary. The jury also returned a special verdict, finding that during the kidnapping, the defendants were armed with a firearm (the handgun) and a deadly weapon (the knife). At sentencing, the court imposed both a firearm enhancement and a deadly weapon enhancement on each kidnapping conviction. Thereafter, the Court of Appeals dismissed A. DeSantiago’s prior convictions. At his resentencing, his new lawyer argued that both enhancements could not be applied to a single underlying offense, though he conceded that the longer firearm enhancement must govern. That judge agreed and removed the shorter deadly weapon enhancement from his sentence.

All the defendants assign error to the admission of the former testimony. E. DeSantiago, Diaz, Carranza, and Reyes assign error to the imposition of both enhancements to one underlying offense. The State assigns error to the removal of A. DeSantiago’s deadly weapon enhancement. The Court of Appeals affirmed the convictions but held for the defendants on the sentencing issue. State v. DeSantiago, 108 Wn. App. 855, 881, 33 P.3d 394 (2001).

ISSUES

(1) Was the former testimony admissible under the confrontation clause of the Sixth Amendment and ER 804?

(2) Do both the firearm enhancement and the deadly weapon enhancement apply to a single offense committed with two weapons?

ANALYSIS

A. Former Testimony

The confrontation clause places two conditions on the admission of former testimony. The State must show that the declarant is “unavailable” at the time of trial and the statement must bear sufficient “ ‘indicia of reliability.’ ” Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) (quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)). Similarly, ER 804(a)(5) mandates that the proponent of the hearsay statement must show inability to procure the declarant’s attendance “by process or other reasonable means.” Finally, former testimony of an unavailable witness is admissible only if the party against whom it is offered “had an opportunity and similar motive to develop the testimony by ... cross ... examination” when the witness testified. ER 804(b)(1). The former testimony in this case is inadmissible if it fails to satisfy either the confrontation clause or ER 804. A trial court’s decision to admit evidence is reviewed for abuse of discretion. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).

1. Unavailability. In Roberts, a witness was deemed unavailable for trial where the prosecutor had repeatedly attempted to serve her at her last known address, she had left the state, her relatives had been unable to contact her, and her whereabouts were unknown. 448 U.S. at 75. The Roberts Court recognized that the “good-faith effort” required of the State did not include futile acts having “great improbability [of] locating the witness.” Id. at 75-76. Likewise, in Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972), the witness at issue was deemed unavailable because he had moved permanently to Sweden, making the state “powerless to compel his attendance.” Id. at 211-12.

Here, several attempts to find the witnesses at their last known address had failed. They were reported to be somewhere in Mexico, possibly planning to move to Texas. The State repeatedly contacted a family member who knew where the witnesses were but would not reveal their location. Any possible contacts in Texas also remained unknown. Because the witnesses were out of the country and could not be located, they were sufficiently unavailable to satisfy the confrontation clause.

ER 804(a)(5) requires a prosecutor to attempt to procure attendance “by process or other reasonable means.” A prosecutor offering an “out-of-court statement of a witness beyond the legal reach of a subpoena” must show that he or she “made an effort to secure the voluntary attendance of the witness [ ] at trial.” Rice v. Janovich, 109 Wn.2d 48, 57, 742 P.2d 1230 (1987). Here, the State did use reasonable means to locate the witnesses in order to secure voluntary attendance, but relatives refused to reveal their location in Mexico.

The defendants argue that the State should have done more to secure the witnesses’ presence. First, they claim the prosecutor should have complied with CR 45(c) service requirements, instead of mailing the subpoenas, relying on State v. Adamski, 111 Wn.2d 574, 761 P.2d 621 (1988). Yet Adamski does not apply here because the Adamski prosecutor knew where to locate the key witness but still failed to produce him. See id. at 576. Furthermore, the Adamski court tested prosecutorial due diligence needed to support a continuance beyond the speedy trial date, not witness unavailability needed to support a hearsay exception. Id. at 577.

The defendants also argue that the State should have utilized the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, chapter 10.55 RCW (Uniform Act). Although resort to the Uniform Act is sometimes required to satisfy the good faith efforts test, State v. Sweeney, 45 Wn. App. 81, 86, 723 P.2d 551 (1986), it is applicable only where a witness is in another state and the prosecutor knows the witness’s location. Dres v. Campoy, 784 F.2d 996, 999 (9th Cir. 1986). The defendants also assert that “good faith” efforts should include all-points bulletins, use of the national crime computer, and surveillance of locations where witnesses might visit, relying on State v. Rivera, 51 Wn. App. 556, 560, 754 P.2d 701 (1988). However, the Rivera court did not compel such efforts in every case, id. at 560-61, and here the suggested additional efforts were unlikely to produce the witnesses. See Roberts, 448 U.S. at 76. Given the State’s inability to locate the witnesses after good faith and reasonable efforts, we hold that the witnesses were sufficiently unavailable to satisfy both the confrontation clause and ER 804.

2. Confrontation Clause Indicia of Reliability. The Roberts court held that the reliability requirement is satisfied without more where the proffered hearsay statement “falls within a firmly rooted hearsay exception.” Roberts, 448 U.S. at 66. The United States Supreme Court has recognized an “established rule that prior trial testimony is admissible upon retrial if the- declarant becomes unavailable . . . .” Id. at 68 (citing Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895); Mancusi, 408 U.S. 204). Because all of the former testimony in this case occurred in a prior trial and the witnesses subsequently became unavailable, this rule is dispositive. Thus, we hold that, as a matter of law, there was no confrontation clause violation in this case.

3. ER 804(b)(1) Opportunity and Similar Motive. ER 804(b)(1) allows admission of former testimony only if the opposing party had “opportunity and similar motive to develop the testimony by . . . cross . . . examination.” Here, whether the defendants had similar motive depends upon consideration of new evidence offered at the second trial and a new burglary charge. The new evidence claim is easily dismissed because the defendants failed to raise this issue at the evidentiary hearing, thereby waiving the argument. ER 103(a); see also State v. Coria, 146 Wn.2d 631, 641, 48 P.3d 980 (2002) (untimely objection to evidence waived).

The new burglary charge creates a closer question.¹ The new charge arguably produced a new or stronger motive to cross-examine Serrano, which was lacking in the first trial. Statements that the phone wires had been cut, the door had been damaged, and open sodas had been left in the kitchen were read to the jury in the second trial but Serrano was never cross-examined on these points.

It is proper to look at federal law where, as here, a Washington evidence rule is identical to the federal one. State v. Burton, 101 Wn.2d 1, 6, 676 P.2d 975 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988); compare Fed. R. Evid. 804(b)(1) with ER 804(b)(1). Generally, a new indictment does not make former testimony inadmissible, so long as motive and incentive to cross-examine are substantially the same. 5 JackB. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 804.04[5], at 804-38 (2d ed. 1999); see also United States v. Licavoli, 725 F.2d 1040, 1048-49 (6th Cir. 1984) (holding the additional “enterprise” element in a federal Racketeer Influenced and Corrupt Organizations prosecution that relied on testimony from a state murder trial did not preclude a finding of similar motive to cross-examine). Still courts have been justifiably concerned where the defendant had little incentive to cross-examine on a particular point in the first trial. See, e.g., United States v. Lombard, 72 F.3d 170, 172, 188 (1st Cir. 1995) (worrying that the defendant had “little real incentive” in a state murder trial to attack prior testimony revealing the defendant owned the rifle because he was admittedly on a hunting trip at the time of the killing).* ² Nevertheless, “ ‘similar motive’ does not mean ‘identical motive.’ ” United States v. Salerno, 505 U.S. 317, 326, 112 S. Ct. 2503, 120 L. Ed. 2d 255 (1992) (Blackmun, J., concurring).

Here, the defendants charged with burglary did not have reason to focus on Serrano’s description of damage to the inside of the house when they faced only kidnapping charges. However, they did have some motive to discredit those statements because cut phone lines and damage to the door suggested criminal intentions, contrary to the defendants’ assertions that their interaction with E. Sanchez was friendly. Therefore, we recognize that, as a matter of law, the trial court’s admission of Serrano’s testimony under ER 804(b)(1) was within the range of its discretionary choices. The trial court did not abuse its discretion when it admitted the former testimony. See Neal, 144 Wn.2d at 609.

B. Sentence Enhancements

The standard range sentencing grid, RCW 9.94A.510(1), is enhanced by RCW 9.94A.510(3) if the defendant or an accomplice was armed with a firearm and by RCW 9.94A.510(4) if the defendant or accomplice was armed with a deadly weapon other than a firearm.³ Before 1995, only one deadly weapon enhancement existed. The Hard Time for Armed Crime Act of 1995 (Initiative 159) (Hard Time Act) removed “firearm” from the definition of “deadly weapon,” and created an additional, more severe firearm enhancement. Laws of 1995, ch. 129, § 2.

If an offender is sentenced for more than one offense, “the firearm [or deadly weapon] enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a firearm [or deadly weapon] enhancement.” RCW 9.94A.510(3), (4). In 1998, this court interpreted this to mean that while the statute required multiple sentence enhancements to run consecutive to base sentences, they could run concurrently to each other. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 254, 955 P.2d 798 (1998). The legislature then amended the statute, adding the following emphasized language to subsection (e):

Notwithstanding any other provision of law, all. . . enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, ....

RCW 9.94A.510(3)(e) (firearm), (4)(e) (other deadly weapon) (emphasis added); Laws of 1998, ch. 235, § 1. Thus, all firearm and deadly weapon enhancements are mandatory and, where multiple enhancements are imposed, they must be served consecutively to base sentences and to any other enhancements.

RCW 9.94A.510(3)(g) (firearm) and (4)(g) (deadly weapon) place limitations on the total resulting sentence:

If the standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a [firearm or deadly weapon] enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.

See also RCW 9.94A.599. Therefore, the total sentence, including enhancements, remains presumptively limited by the statutory maximum for the underlying offense unless the offender is a persistent offender. If the total sentence exceeds the maximum sentence provided in RCW 9A-.20.021(1), the underlying sentence, not the enhancement, must be reduced.

Finally, RCW 9.94A.602, the statute calling for a special verdict where a defendant or accomplice was armed with a “deadly weapon,” includes firearms in the definition of that term. When a fact finder determines that a defendant or accomplice was armed with a deadly weapon during a crime, the sentencing judge must then look to the enhancement statute to determine which enhancement(s) to apply. Wash. Sentencing Guidelines Comm’n, Adult Sentencing Guidelines Manual 2000, at 1-16. The special verdict statute does not differentiate between firearms and other deadly weapons, perhaps because it predates the Hard Time Act.

The issue is whether the standard range sentence for a single charge, here kidnapping, may be enhanced once by RCW 9.94A.510(3) because the defendant or an accomplice was armed with a firearm, and again by RCW 9.94A.510(4) because the same was also armed with a deadly weapon other than a firearm. The enhancement of a single charge with both a firearm enhancement and a deadly weapon enhancement is an issue of first impression for this court. Interpretation of a statute is a question of law subject to de novo review. Charles, 135 Wn.2d at 245.

In State v. Spandel, Division Two of the Court of Appeals affirmed imposition of one enhancement for each weapon carried during a single offense. 107 Wn. App. 352, 356-60, 27 P.3d 613, review denied, 145 Wn.2d 1013 (2001). Sentenced for robbery, the defendant received a firearm enhancement for the shotgun he carried and a deadly weapon enhancement for the knife his accomplice displayed. Id. at 354, 356. The Spandel court held that the enhancements must be served consecutively to the base sentence and to each other. Id. at 360. In doing so, the court accepted that the single charge of robbery could be enhanced twice, noting that multiple enhancements would combat the increased risk of injury that results from multiple weapons, as intended under Initiative 159. Id.

In contrast, Division Three of the Court of Appeals in this case interpreted RCW 9.94A.510⁴ to impose one enhancement for each crime committed when the offender “was ‘armed,’ ” applying the two enhancement provisions in the alternative. DeSantiago, 108 Wn. App. at 880 (emphasis added). Under this interpretation, a crime committed with any weapon will be subject to enhancement; the longer enhancement will apply when the crime is committed with a firearm—but each crime is subject to only one enhancement. See State v. Rai, 97 Wn. App. 307, 312, 983 P.2d 712 (1999) (requiring the sentencing court to impose the longer enhancement where the weapon was a firearm). Division Three reasoned that the language of RCW 9.94A.510(3) and (4) supports this interpretation because it requires the court to enhance the standard range if the offender or an accomplice was armed with “ ‘a’ firearm” or “ ‘a’ deadly weapon.” DeSantiago, 108 Wn. App. at 880 (emphasis added). “Nothing in [the plain language of! either subsection 3 or subsection 4 implies that additional time should be added based on the number of firearms or the number of deadly weapons [involved].” Id.

We disagree. The plain language of RCW 9.94A.510 not only anticipates the imposition of multiple enhancements under a single offense but clearly insists that all firearm and deadly weapon enhancements are “mandatory” and must be served consecutively:

Notwithstanding any other provision of law, all firearm [or deadly weapon] enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.

RCW 9.94A.510(3)(e), (4)(e) (emphasis added). This plain language mandates that one enhancement must be applied for each firearm or other deadly weapon that a jury finds was carried by the offender or an accomplice during a crime. The fact that the special verdict statute does not require the jury to distinguish between firearms and other deadly weapons is immaterial. For each weapon found by special verdict, the sentencing judge must determine whether the weapon in question is a “firearm” or “other deadly weapon” and apply the appropriate corresponding enhancement. See RCW 9.94A.510(3)(e), (4)(e).

Division Three noted that the legislature required enhancement when the defendant or an accomplice was armed with “ £a’ firearm” or “ £a’ deadly weapon.” DeSantiago, 108 Wn. App. at 880 (quoting RCW 9.94A.510(3), (4)). The court inferred from this language that the legislature did not intend enhancements to be added based on the number of firearms or deadly weapons present during the crime. See id. However, the legislature’s decision to preface “firearm” and “deadly weapon” with “a” rather than “any” in fact supports the opposite conclusion; specifically, the legislature intended imposition of one enhancement for each weapon found by special verdict.

A majority of courts considering the meaning of “a weapon” or “a firearm” have interpreted “a” to mean that the defendant may be punished for “each” weapon involved. See, e.g., United States v. Alverson, 666 F.2d 341, 347 (9th Cir. 1982); Grappin v. State, 450 So. 2d 480, 482 (Fla. 1984) (“[T]he phrase ‘to receive or possess a firearm’ has been held to express a legislative intent to allow separate prosecutions for each firearm.” “We find that the use of the article ‘a’ in reference to ‘a firearm’. . . clearly shows that the legislature intended to make each firearm a separate unit of prosecution.”); State v. Nichols, 865 S.W.2d 435, 437 (Mo. Ct. App. 1993) (“The plain and ordinary meaning of the word ‘a’ is the singular ‘one.’ Therefore, each knife which Defendant carried concealed upon or about his person is an allowable unit of prosecution.”). But see People v. Haggart, 142 Mich. App. 330, 370 N.W.2d 345, 354 (1985). Although these cases did not analyze the statutory scheme at issue here, we find these straightforward interpretations of the plain meaning of identical statutory language, specifically the meaning of “a firearm,” to be persuasive.

This court has also recognized a distinction between “a” and “any.” State v. Westling, 145 Wn.2d 607, 611-12, 40 P.3d 669 (2002). In Westling, this court looked to the “plain language” of RCW 9A.48.030(1) to determine its meaning. Id. The statute provides that “[a] person is guilty of arson in the second degree if he [or she] knowingly and maliciously causes a fire . . . which damages . . . any .. . automobile.” RCW 9A.48.030(1) (emphasis added). Because “ ‘[a]ny’ means ‘ever/ and ‘all,’ ” the Westling court concluded that, even though the fire in that case had damaged several automobiles, the legislature’s plain language reflected intent that a defendant be convicted only once when he set only one fire. Westling, 145 Wn.2d at 611-12. In contrast, the legislature in RCW 9.94A.510(3) and (4) required enhancement, not for “any” firearm or deadly weapon, but for “a” firearm and “a” deadly weapon.

The above analyses occurred under the framework of the “unit of prosecution doctrine,” an issue not raised by the defense in this case.⁵ Nevertheless, we are faced with the same essential question here as those courts faced under the unit of prosecution framework: does the plain language of the statute indicate that the legislative body intended separate punishment, in this case in the form of a sentence enhancement, to be imposed for each weapon carried during an offense? We are convinced that, here too, the legislature intended “a firearm” to mean “each firearm.” Therefore, we decline to follow Division Three’s reasoning in this case and, given the plain language of RCW 9.94A.510(3)(e) and (4)(e), we instead reach the opposite conclusion.

Nothing in the stated purpose of the Hard Time Act contradicts this interpretation. Division Three incorrectly reasoned that the stated purpose to “ ‘[distinguish between the gun predators and criminals carrying other deadly weapons’ ” indicates that the legislature intended imposition of the enhancements in the alternative. DeSantiago, 108 Wn. App. at 881 (quoting Laws of 1995, ch. 129, § l(2)(c)). However, such a conclusion is contrary to the plain meaning of the statute. Furthermore, imposition of an enhancement for each weapon carried during an offense cannot be said to contradict this purpose because a gun-toting criminal receives a much greater enhancement for each firearm than a knife-wielding criminal receives for each knife. Compare RCW 9.94A.510(3)(a) (adding five years for use of a gun in a class A felony) with RCW 9.94A.510(4)(a) (adding two years for use of a nonfirearm deadly weapon in a class A felony). Furthermore, the Spandel court correctly reasoned that imposition of multiple enhancements would combat the increased risk of injury that results from multiple weapons, complying with the other stated purposes of Initiative 159 to “[sjtigmatize the carrying and use of any deadly weapons for all felonies” and “[r] educe the number of armed offenders by making the carrying and use of the deadly weapon not worth the sentence received upon conviction.” Laws of 1995, ch. 129, § l(2)(a), (b).

Finally, imposition of an enhancement for each firearm and each deadly weapon carried during an offense would not absurdly extend sentences as amicus and the defendants contend. Subsection (g) of each enhancement statute provides a presumption that the total sentence, including enhancements, cannot exceed that statutory maximum. RCW 9.94A.510(3)(g), (4)(g). Thus, the suggested absurdity is dissolved by a plain reading of the statute.

Therefore, the plain language of RCW 9.94A.510 requires a sentencing judge to impose an enhancement for each firearm or other deadly weapon that a jury finds was carried during an offense.

CONCLUSION

We affirm the Court of Appeals, holding that admission of the former testimony was proper, and we affirm the convictions. However, we reverse the Court of Appeals on its interpretation of the sentence enhancement statute. Therefore, we affirm the sentences imposed by the trial court for Diaz, Reyes, E. DeSantiago, and Carranza. However, we remand A. DeSantiago’s case for resentencing in accordance with this holding.

Ireland, Bridge, and Chambers, JJ., and Smith, J. Pro Tem., concur.

1 The official comment to ER 804(b)(1) does state that the use of former testimony “has been limited to proceedings on the same charge,” citing State v. Lunsford, 163 Wash. 199, 300 P. 529 (1931). However, the facts in Lunsford do not support this proposition because no charges were added in Lunsford’s second trial. Id. at 200.

2 Ultimately, the Lombard court avoided the similar motive problem, finding any error to be harmless because the defendant himself had admitted to owning the rifle. Lombard, 72 F.3d at 188.

3 RCW 9.94A.510(3) and (4) are recodified at RCW 9.94A.533C3) and (4), effective July 1, 2004. The relevant language remains unchanged.

4 When Division Three considered this question, the enhancement statute was codified at RCW 9.94A.310(3), (4). The relevant language remains identical.

5 The unit of prosecution doctrine arises out of double jeopardy principles. It “protectts] a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime.” Westling, 145 Wn.2d at 610.