Oral Argument June 12, 2013.
Appeal from Yakima Superior Court. Docket No: 09-1-01475-8. Date filed: 12/05/2011. Judge signing: Honorable David a Elofson.
Dennis W. Morgan, for appellant.
James P. Hagarty, Prosecuting Attorney, and David B. Trefry, Deputy, for respondent.
AUTHOR: Laurel H. Siddoway, A.C.J. WE CONCUR: Stephen M. Brown, J., Teresa C. Kulik, J.P.T.
[180 Wn.App. 110] ¶ 1 Joe Mata appeals his convictions of robbery, attempted robbery, and first degree unlawful possession of a 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 find 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
¶ 2 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 with crimes in Yakima and Pierce Counties. The Yakima County [180 Wn.App. 111] charges and convictions are the subject matter of this appeal.
¶ 3 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 sheriff's 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, his 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.
¶ 4 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 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 [180 Wn.App. 112] description of the man who robbed him was similar to Mr. Sisneros's description of the robber who confronted him earlier in the day.
¶ 5 Later that night, at 11:15 p.m., Deputy Robert Glen Carpenter of the Pierce County Sheriff's 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  hit stating the vehicle was stolen and the subjects should be considered armed and dangerous.
¶ 6 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 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.
¶ 7 A later search of the van led to the discovery of a 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.
¶ 8 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.
¶ 9 Mr. Mata was charged with crimes in both Pierce and Yakima Counties and was tried first in Pierce County. Mr. [180 Wn.App. 113] 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.
¶ 10 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.
Count 2: First degree unlawful possession of a firearm.
¶ 11 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.
Counts 2 and 3: First degree robbery of Shaun Kroeger (count 2) and Jake 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.
[180 Wn.App. 114] 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).
¶ 12 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.
¶ 13 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.
¶ 14 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
[180 Wn.App. 115] in the commission of or immediate flight therefrom, you were armed with a firearm and/or you displayed ...