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In re Personal Restraint Petition of White

Court of Appeals of Washington, Division 1

December 26, 2017

IN RE PERSONAL RESTRAINT PETITION OF JESSE M. WHITE, Petitioner.

          SPEARMAN, J.

         In 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.

         Prior 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.

         FACTS

         White 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.

         After 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.

         Stevens 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.

         N.W. 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 gun.

         Stevens 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.

         White 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.[1] A jury convicted him as charged.

         In his 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).[2] 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)).

         White 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.

         The Washington Supreme Court granted White's petition for review and remanded the case to this court for reconsideration in light of its ...


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