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State v. Vazquez

Court of Appeals of Washington, Division 3

August 22, 2017

STATE OF WASHINGTON, Respondent / Cross Appellant,
v.
RIGOBERTO IVAN VAZQUEZ, Appellant / Cross Respondent.

          Pennell, J.

         The 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.

          BACKGROUND

         Mr. Vazquez was charged with three felonies:[1] two counts of first degree assault, and one count of riot while armed.[2] A firearm enhancement, RCW 9.94A.533(3), was included on each of these counts.

         Although charged with firearm enhancements, the jury was not instructed on such. Instead, the jury was provided the following deadly weapon instruction:[3]

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 the crime.
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.

         Unlike 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.

         At 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.

         ANALYSIS

         In 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 enhancement instruction

         As the 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 9.94A.53 ...


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