Judges Lawrence-Berrey, Korsmo and Pennell.
ORDERED the sentence that begins on page seven, line four, of
our opinion filed August 22, 2017, is amended as follows:
"Instead, the sentencing range is set forth by RCW
9.94A.505(2)(b), which generally recommends a determinate
sentence of no more than one year of confinement."
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.
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 ...