                                                                                               COURTFiLED
                                                                                                       OF
                                                                                                             APPEALS
                                                                                                    DIVISION II
                                                                                             201511A R 10 Al 8: 41




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

    In re the Personal Restraint Petition of                                 No. 46277 -0 -II


           HECTOR C. ORTIZ III,


                                      Petitioner.


                                                                       UNPUBLISHED OPINION




          JOHANSON, C. J. —           Hector C. Ortiz III seeks relief from personal restraint imposed


following his 2011 convictions of first degree robbery, second degree assault, and second degree

unlawful possession of a firearm. He claims that his restraint is unlawful because ( 1) his robbery

and assault convictions violate        double jeopardy      protections and should   have   merged, ( 2)   all three


of his offenses constitute the same criminal conduct, and ( 3) trial counsel provided ineffective

assistance because he failed to argue points ( 1) and ( 2). 1



1
    Petitioner'   s conviction was   final   on   March 25, 2011. RCW 10.73. 090( 3).   Petitioner filed a CrR
7. 8 motion in the superior court on March 7, 2012. The superior court transferred it to this court
on
   May 12, 2014. Therefore, this petition was timely filed under RCW 10. 73. 090. The superior
court previously transferred another petition to this court that Ortiz had filed on January 28, 2013.
This court dismissed that petition as an untimely mixed petition. See In re Pers. Restraint ofOrtiz,
No. 44462 -3 -II ( dismissed May 29, 2013) ( petition for review stayed pending resolution of the
current petition).
No. 46277 -0 -II



          We grant the petition and remand to the sentencing court to vacate the assault conviction

and resentence petitioner using a corrected offender score.


                                               I. DOUBLE JEOPARDY


          Petitioner argues and the State concedes that his robbery and assault convictions merged,

should not have counted separately in his offender score, and that the assault should not be listed

on his judgment and sentence. We accept this concession and remand for the sentencing court to

vacate   the   assault conviction    and   recalculate petitioner' s offender score.      See State v. Kier, 164


Wn.2d 798, 804, 194 P. 3d 212 ( 2008) (         first degree robbery and second degree assault of the same

victim merge unless there is some independent purpose or effect of the assault).2

                                           II. SAME CRIMINAL CONDUCT


          Petitioner argues that all three offenses constitute the same criminal conduct and therefore


the sentencing court should have calculated his sentence range with an offender score of "0" rather

than " 3."


          Offenses amount to the " same criminal conduct" if they " require the same criminal intent,

are committed at     the   same   time   and place, and   involve the   same victim."    RCW 9. 94A.589( 1)( a).


As we have already determined that the robbery and assault merged, we need not address the

assault. Robbery and unlawful possession of a firearm are not the same criminal conduct because

they involve different victims. In this case, the robbery victim was the restaurant manager. And




2
    In his reply brief, petitioner   asserts   that the firearm   and   robberyBut they do not
                                                                                  counts merge.

because one need not unlawfully possess a firearm to raise second degree robbery to first degree
robbery. Kier, 164 Wn.2d at 804; State v. Moreno, 173 Wn. App. 479, 498 -99, 294 P. 3d 812
    unlawful possession of a      firearm does    not merge with    first degree    assault),   review denied, 177
Wn.2d 1021 ( 2013).

                                                           2
No. 46277 -0 -II



the victim of unlawful possession of a firearm is the general public. State v. Haddock, 141 Wn.2d


103, 110 -11, 3 P. 3d 733 ( 2000). Petitioner' s claim fails.


                             III. INEFFECTIVE ASSISTANCE OF COUNSEL


        Because this court is granting relief under petitioner' s first claim and because his second

claim lacks merit, we need not address whether petitioner was denied his right to effective


assistance of counsel at sentencing.


        We grant the petition and remand to the sentencing court to vacate the assault conviction

and resentence petitioner using a corrected offender score.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




 We concur:




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