                                                               FILED
                                                           DECEMBER 20, 2018
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )         No. 35450-4-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
NESTOR V. GONZALEZ,                           )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, C.J. — Nestor Gonzalez appeals his guilty pleas to robbery

in the first degree and two counts of kidnapping in the first degree. He argues that his

kidnapping conviction is unconstitutional because the kidnapping statute is vague on its

face and as applied. In his statement of additional grounds for review, Mr. Gonzalez

argues that his convictions for both robbery and kidnapping are unconstitutional because

the same facts cannot be used to convict him of two separate crimes. We reject his

contentions and affirm.
No. 35450-4-III
State v. Gonzalez


                                          FACTS

       Mr. Gonzalez pleaded guilty to robbery in the first degree, theft of a firearm, and

two counts of kidnapping in the first degree. From his January 2011 plea agreement, Mr.

Gonzalez admitted to the following facts:

       On June 12, 2010 in Kittitas County, Washington, while in the commission
       of a robbery, I was armed with a deadly weapon, to wit, a firearm. I also
       intentionally abducted 2 persons with the intent to facilitate the commission
       of the robbery. I stole a firearm during the robbery.

Clerk’s Paper at 31.

       Years after his judgment and sentence, Mr. Gonzalez filed a personal restraint

petition (PRP) that was dismissed. Order Dismissing Personal Restraint Petition, In re

Pers. Restraint of Gonzalez, No. 32644-6-III (Wash. Ct. App. Dec. 14, 2015). Our court

commissioner thereafter granted Mr. Gonzalez’s motion to extend the time to file his

notice of appeal. See State v. Gonzalez, No. 35450-4-III, Commissioner’s Ruling,

(Nov. 9, 2017). Mr. Gonzalez now appeals and challenges the validity of his kidnapping

conviction on grounds that the statute is unconstitutionally vague or that his convictions

for both kidnapping and robbery violate double jeopardy.

       Both parties accept the following as the pertinent facts:




                                             2
No. 35450-4-III
State v. Gonzalez


       The facts from the police incident report showed that Mr. Gonzalez pointed
       a pistol at the gun store owner and forced him and a customer to move to
       the back isle [sic]of the store. . . . Mr. Gonzalez ordered the men to lie face
       down on the floor and he tied their hands behind their backs.

Appellant’s Br. at 2.

                                        ANALYSIS

       VAGUENESS

       Mr. Gonzalez argues that the statute for kidnapping in the first degree is

unconstitutionally vague because it lacks ascertainable standards and fails to protect

against arbitrary enforcement.

       “A person is guilty of kidnapping in the first degree if he or she intentionally

abducts another person with intent [to do any one of five prohibited types of actions].”

RCW 9A.40.020(1).

       Mr. Gonzalez argues “abducts” is unconstitutionally vague. “‘Abduct’ means to

restrain a person by either (a) secreting or holding him [or her] in a place where

he [or she] is not likely to be found, or (b) using or threatening to use deadly force.”

Former RCW 9A.40.010(2) (1975).

       Mr. Gonzalez argues “restrain” is unconstitutionally vague. “‘Restrain’ means to

restrict a person’s movements without consent and without legal authority in a manner

which interferes substantially with his [or her] liberty.” Former RCW 9A.40.010(1).

                                              3
No. 35450-4-III
State v. Gonzalez


       “‘The constitutionality of a statute . . . is an issue of law, which we review de

novo.’” State v. Watson, 160 Wn.2d 1, 5, 154 P.3d 909 (2007) (alteration in original)

(quoting Kitsap County v. Mattress Outlet, 153 Wn.2d 506, 509, 104 P.3d 1280 (2005)).

A statute is presumed constitutional unless its unconstitutionality appears beyond a

reasonable doubt. State v. Aver, 109 Wn.2d 303, 306-07, 745 P.2d 479 (1987). The party

that challenges the constitutionality of the statute has the burden to prove it is

unconstitutional. City of Spokane v. Douglass, 115 Wn.2d 171, 177, 795 P.2d 693

(1990).

       The Fourteenth Amendment to the United States Constitution requires that citizens

are given fair warning and notice to prohibited conduct:

       Under the due process clause, an ordinance is unconstitutionally vague if a
       challenger demonstrates, beyond a reasonable doubt, either (1) that the
       ordinance does not define the criminal offense with sufficient definiteness
       that ordinary people can understand what conduct is proscribed, or (2) that
       the ordinance does not provide ascertainable standards of guilt to protect
       against arbitrary enforcement.

Douglass, 115 Wn.2d at 178. The test for a penal statute is common intelligence. Id. at

179. “[A]n ‘ordinance is unconstitutional when it forbids conduct in terms so vague that

persons of common intelligence must guess at its meaning and differ as to its

application.’” Id. (quoting Burien Bark Supply v. King County, 106 Wn.2d 868, 871, 725

P.2d 994 (1986)). When it comes to arbitrary enforcement, an “‘enactment is

                                               4
No. 35450-4-III
State v. Gonzalez


unconstitutional only if it invites an inordinate amount of police discretion.’” In re Det.

of Danforth, 173 Wn.2d 59, 74, 264 P.3d 783 (2011) (quoting Douglass, 115 Wn.2d at

181). Some subjective evaluation by an officer to determine whether the statute applies is

not a sufficient showing of arbitrary enforcement to establish vagueness. Id.

       “‘Vagueness challenges to enactments which do not involve First Amendment

rights are to be evaluated in light of the particular facts of each case.’” State v. Sigman,

118 Wn.2d 442, 445, 826 P.2d 144 (1992) (quoting Douglass, 115 Wn.2d at 182); see

also State v. Harrington, 181 Wn. App. 805, 826, 333 P.3d 410 (2014). “‘[W]hen a

challenged ordinance does not involve First Amendment interests, the ordinance is not

properly evaluated for facial vagueness. Rather, the ordinance must be judged as

applied.’” Sigman, 118 Wn.2d at 446 (quoting Douglass, 115 Wn.2d at 182).

       Here, Mr. Gonzalez pointed a gun at the store owner, moved the owner and a

customer to the back of the store, ordered them to lie face down, and tied their hands

behind their backs. Using deadly force to threaten the owner and the customer and

moving them to the back of the store where they would not likely be found clearly meets

the statutory standards of “abduct.” Former RCW 9A.40.010(2). Requiring the owner

and the customer to lie face down and tying their hands behind their backs clearly meets

the statutory standard of “restrain.” Former RCW 9A.40.010(1). As applied to Mr.


                                              5
No. 35450-4-III
State v. Gonzalez


Gonzalez, the challenged statute provides sufficient definiteness that ordinary people can

understand what conduct is proscribed. As applied to Mr. Gonzalez, the challenged

statute also provides ascertainable standards of guilt to protect against arbitrary

enforcement.

       Mr. Gonzalez complains that the statutory definitions too easily allow the State to

“stack” kidnapping on top of other crimes when kidnapping is incidental to other charged

crimes. “Stacking” is not the relevant constitutional test. Rather, the test is whether the

statute provides ascertainable standards of guilt to protect against arbitrary enforcement.

As applied to Mr. Gonzalez, the challenged statute is sufficiently definite to protect

against arbitrary enforcement.

       DOUBLE JEOPARDY

       Mr. Gonzalez asserts that his convictions for robbery and kidnapping were based

on the same conduct and thus violate his Fifth Amendment right against double jeopardy.1

Double jeopardy claims are reviewed de novo. State v. Kelley, 168 Wn.2d 72, 76, 226

P.3d 773 (2010). The double jeopardy clause of the Fifth Amendment to the United

States Constitution and article I, section 9 of the Washington Constitution provide the


       1
         If Mr. Gonzalez’s argument is that the robbery and kidnapping should have
merged into one offense, the Supreme Court has made clear the two crimes never merge.
State v. Berg, 181 Wn.2d 857, 866, 337 P.3d 310 (2014).

                                              6
No. 35450-4-III
State v. Gonzalez


same protection. Id. Each provision bars multiple punishments for the same offense,

inter alia. Id.

       When determining if there is a double jeopardy violation because of an assertion of

multiple punishments for the same offense, the Washington Supreme Court has adopted

the “same elements” test from Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.

180, 76 L. Ed. 306 (1932). See State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267

(1995); see also United States v. Dixon, 509 U.S. 688, 696-97, 113 S. Ct. 2849, 125 L.

Ed. 2d 556 (1993) (overruling the “same conduct test” in Grady v. Corbin, 495 U.S. 508,

110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990)).2

       The “same elements” test considers whether each offense contains a different

element than the other:

       “The applicable rule is that where the same act or transaction constitutes a
       violation of two distinct statutory provisions, the test to be applied to
       determine whether there are two offenses or only one, is whether each
       provision requires proof of a fact which the other does not.”

Gocken, 127 Wn.2d at 101 (quoting Blockburger, 284 U.S. at 304).




       2
        The Blockburger test was the standard test for almost 60 years until Grady.
Grady established a new two-part test that included the Blockburger test and a “same
conduct” test. The United States Supreme Court overruled the “same conduct” test and
returned to the traditional Blockburger test three years later in Dixon.

                                               7
No. 35450-4-III
State v. Gonzalez


       Here, Mr. Gonzalez’s convictions for robbery in the first degree and kidnapping in

the first degree each require a proof of fact the other does not. “Robbery” is defined as

“unlawfully tak[ing] personal property from the person of another or in his [or her]

presence against his [or her] will by the use or threatened use of immediate force,

violence, or fear of injury to that person or his [or her] property or the person or property

of anyone.” Former RCW 9A.56.190 (1975). “‘Kidnapping’ is defined as the intentional

abduction of another person.” Berg, 181 Wn.2d at 863 (citing RCW 9A.40.030). Simply

put, robbery requires proof that personal property was unlawfully taken from a victim that

kidnapping does not. Kidnapping requires proof of intentionally abducting another

person that robbery does not. Therefore, both robbery and kidnapping require proof of a

fact that the other does not require, and they constitute separate offenses. We reject Mr.

Gonzalez’s double jeopardy claim.

       APPELLATE COSTS

       Mr. Gonzalez asks this court to not award appellate costs in the event the State

substantially prevails. The State has substantially prevailed. In accordance with

RAP 14.2, we defer the question of appellate costs to our commissioner or

clerk/administrator.




                                              8
No. 35450-4-III
State v. Gonzalez


       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




Fearing, J.                               Pennell, J.




                                             9
