IN RE PERSONAL RESTRAINT PETITION OF JESSE M. WHITE, Petitioner.
State v. Villanueva-Gonzalez, 180 Wn.2d 975, 329
P.3d 78 (2014), the Supreme Court held that assault is a
course of conduct crime. To determine if multiple assaultive
acts constitute a single course of conduct, the court must
consider the totality of the circumstances, including the
length of time over which the acts occurred, the location,
the defendant's intent, any interruptions between the
acts, and if the defendant had the opportunity to reconsider.
\± at 985.
to Villanueva-Gonzalez. Jesse M. White was convicted
by a jury of two counts of second degree assault and his
convictions were affirmed on appeal. But in light of
Villanueva-Gonzalez. we now hold that White's
assaultive acts were part of the same course of conduct.
White's two convictions thus violate double jeopardy. We
remand for the trial court to vacate one count of second
degree assault and the accompanying firearm enhancement.
and his girlfriend, Raina Stevens, lived together and had a
child, N.W. White's drug use and erratic behavior created
challenges for the family. When White went to Portland for a
few days, Stevens took advantage of his absence to move out
with N.W., who was then two years old.
White returned, Stevens brought N.W. to visit him. Stevens
and White discussed where N.W. would live. White's
position was that N.W. should live with him full time.
Stevens disagreed. Stevens told White that, if they could not
reach an agreement, she would go to court. White pulled out a
gun, pointed it at Stevens, and said "[N]o, that's
not the way it's going to work. I'm going to fucking
kill you." Verbatim Report of Proceedings (VRP)
(12/7/10) at 278.
pushed N.W. off her lap and stood up from the sofa. White
grabbed Stevens by the hair, threw her face down on the
floor, and began hitting her. White repeatedly struck Stevens
on the back of her head while telling her she was going to
die. When Stevens tried to get up, White placed his hands
around her neck "so [she] couldn't breathe."
]g\ at 284. Stevens saw the gun, which was on the floor, and
reached for it. Stevens got hold of the barrel of the gun at
the same time that White grabbed its handle. White tried to
point the gun at Stevens and she tried to deflect the barrel
away from herself.
was next to White and Stevens throughout this incident. The
child was screaming. According to White, N.W. was saying
"stop, stop, stop." VRP (12/9/10) at 574. As they
struggled over the gun, Stevens kept telling White that he
was going to hurt the child. White eventually said he would
let go of the gun if Stevens did. They both let go of the
got up, grabbed N.W., sat on the couch, and comforted the
child. White told Stevens the incident was all her fault and
slapped her. He also threatened to kill Stevens, N.W., and
himself if she called the police. A short time later, White
took N.W. from Stevens' arms, pushed Stevens outside, and
locked the door. Stevens called the police, who, after a
brief chase, arrested White and recovered the child.
was charged with one count of second degree assault with a
deadly weapon for pointing the gun at Stevens and one count
of second degree assault by strangulation, both with firearm
enhancements. A jury convicted him as charged.
direct appeal, White argued that the two second degree
assault convictions violated double jeopardy. State v.
White, 170 Wn.App. 1011, *6, 2012 WL 3568580 (2012). To
address this issue, we examined the unit of prosecution set
out in the second degree assault statute, former RCW
9A.36.021 (2007). Id. at *7. The statute lists
several alternative means by which a person may commit
assault, ]d We held that each alternative means constituted a
unit of prosecution. Id. Because White's
convictions were based on two different alternatives, we held
that his convictions did not violate double jeopardy.
Id. (citing State v. Smith, 124 Wn.App.
417, 432, 102 P.3d 158 (2004)).
timely filed a personal restraint petition (PRP), asserting
that he received ineffective assistance of counsel on appeal
because his attorney failed to present adequate argument on
the double jeopardy issue. White also argued that counsel was
deficient for failing to challenge the order of commitment,
which included a clerical error. We ordered the clerical
error corrected but otherwise dismissed the PRP.
Washington Supreme Court granted White's petition for
review and remanded the case to this court for
reconsideration in light of its ...