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State v. Vazquez

Court of Appeals of Washington, Division 3

August 29, 2017

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

          PANEL: Judges Lawrence-Berrey, Korsmo and Pennell.

         ORDER AMENDING OPINION

         IT IS 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."

          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 ...


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