parties cross appeal the trial court's split decision on
whether to impose firearm enhancements related to Rigoberto
Vazquez's three felony convictions. We agree with the
trial court that there was no constitutional impediment to
imposing the enhancements on Mr. Vazquez's two assault
convictions and, as a matter of statutory interpretation, the
enhancement does not apply to Mr. Vazquez's unranked riot
while armed conviction. We therefore affirm.
Vazquez was charged with three felonies: two counts of
first degree assault, and one count of riot while
armed. A firearm enhancement, RCW 9.94A.533(3),
was included on each of these counts.
charged with firearm enhancements, the jury was not
instructed on such. Instead, the jury was provided the
following deadly weapon instruction:
For purposes of a special verdict the State must prove beyond
a reasonable doubt that the defendant was armed with a deadly
weapon at the time of the commission of the crime in count
[one, two, or three].
A person is armed with a deadly weapon if, at the time of the
commission of the crime, the weapon is easily accessible and
readily available for offensive or defensive use. The State
must prove beyond a reasonable doubt that there was a
connection between the weapon and the defendant or an
accomplice. The State must also prove beyond a reasonable
doubt that there was a connection between the weapon and the
crime. In determining whether these connections existed, you
should consider, among other factors, the nature of the crime
and the circumstances surrounding the commission of the
crime, including the location of the weapon at the time of
If one participant to a crime is armed with a deadly weapon,
all accomplices to that participant are deemed to be so
armed, even if only one deadly weapon is involved.
A pistol, revolver, or any other firearm is a deadly weapon
whether loaded or unloaded.
Clerk's Papers (CP) at 313-15. None of the jury
instructions defined the meaning of a firearm under RCW
9.41.010(9). The jury was only instructed that a firearm is
considered a deadly weapon.
the instructions, the special verdict forms conformed to the
charging document and inquired as to whether Mr. Vazquez was
armed with a "firearm" at the time of his offense
conduct. CP at 332-34. The jury found he was. It returned
special firearm verdicts related to each of Mr. Vazquez's
three felony convictions.
sentencing, Mr. Vazquez raised two issues regarding his
firearm enhancements. First, Mr. Vazquez argued the firearm
enhancements could not be imposed on any of his three felony
convictions. Because the instructions referred to a deadly
weapon and the special verdict forms referred to a firearm,
Mr. Vazquez argued no firearm enhancement could be imposed.
The State did not concede error, but argued that if there was
error it was harmless. The trial court agreed with the State,
found that any error was harmless, and imposed the firearm
enhancements on the second degree assault charges. Mr.
Vazquez's second argument was specific to his riot while
armed conviction. Citing State v. Soto, 177 Wn.App.
706, 309 P.3d 596 (2013), Mr. Vazquez argued that because
riot while armed is an unranked felony, it cannot be assessed
an enhancement. The trial court agreed and struck the
associated firearm enhancement.
cross appeals to this court, the parties each raise the
sentencing arguments they lost in the trial court. The
arguments are legal in nature and involve de novo review.
Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003
(2014) (statutory interpretation); State v. Bainard,
148 Wn.App. 93, 101, 199 P.3d 460 (2009) (constitutional
law). Mr. Vazquez's appeal: the lack of a firearm
parties agree, the court's instructions failed to inform
the jurors of the elements required for a firearm enhancement
under RCW 9.94A.533(3). Instead, the jury was instructed on
the elements of a deadly weapon enhancement under RCW
9.94A.533(4). This was a significant error. Under RCW
9.94A.533(3)(b), a consecutive three-year sentence must be
imposed whenever a jury authorizes a firearm enhancement in
connection with a qualifying felony offense. In contrast, a
deadly weapon enhancement under RCW 9.94A.533(4)(b) carries
only a one-year consecutive term. Although a firearm is
considered a deadly weapon in some contexts, RCW 9.94A.825,
in order to impose a firearm enhancement the jury must be
given sufficient evidence to find the defendant was armed
with a firearm as defined in RCW 9.41.010(9). RCW