       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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                                                  No. 72432-1-1                           -'-•: 'L
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                     Respondent,                                                 CD       1 ' .-
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SAMUEL OSCAR GONZALEZ,                            UNPUBLISHED OPINION

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                     Appellant.                    FILED: November 24, 2014         no


       Becker, J. — The appellant was convicted in part on the testimony of his

accomplice. Because the accomplice testimony was substantially corroborated

by other evidence, defense counsel did not provide deficient representation by

failing to request the cautionary instruction for accomplice testimony.

       Appellant Samuel Gonzalez was convicted of five counts of kidnapping,

three counts of robbery in the first degree, three counts of rape in the first

degree, and one count of criminal impersonation. The convictions arose from his

involvement in two robberies and an attempted robbery of fast-food restaurants

in Pierce County on October 4, October 24, and November 1, 2009. In each

incident, the same method was used. Two men would scope out a fast-food

restaurant just before it closed. They would wait until the person they believed to

be the manager would leave the building and drive away. They would then

impersonate police officers and make a fraudulent traffic stop of the manager's
No. 72432-1-1/2



vehicle, using fake emergency lights resembling those installed in law

enforcement vehicles. The manager would then be kidnapped, driven back to

the fast-food restaurant, and forced to provide access to the restaurant's safe.

The robbers obtained cash from two restaurants using this scheme. At the third

restaurant, the robbers mistook an employee for the manager when she and her

fiance drove away from the parking lot on November 1, 2009. After making a

fraudulent traffic stop, they handcuffed the male and placed him in the trunk of

his car. Once they realized that the female employee could not unlock the

restaurant where they had seen her working, one of the robbers drove her into a

wooded area and raped her three times.

       During their investigation, law enforcement officers received information

from Jeffrey Lundberg. Lundberg implicated himself in the robberies and

identified Gonzalez as his accomplice. Lundberg made a plea bargain. At trial,

Lundberg testified against Gonzalez.

       Gonzalez received a sentence of 720 months to life.

       On appeal, Gonzalez claims he received ineffective assistance of counsel

and that the evidence was insufficient. He also alleges sentencing error.

      A defendant's right to effective assistance of counsel is guaranteed by the

Sixth Amendment to the United States Constitution as well as article I, section 22

of the Washington Constitution. State v. Hendrickson, 129 Wn.2d 61, 77, 917

P.2d 563 (1996), citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). To succeed on an ineffective assistance of

counsel claim, the defendant must first establish that trial counsel's performance
No. 72432-1-1/3



was deficient. In this assessment, the appellate court will presume the defendant

was properly represented. The defendant must next show that counsel's

deficient performance prejudiced him. Prejudice is shown when there is a

reasonable probability that, but for counsel's errors, the result of the trial would

have been different. Hendrickson. 129 Wn.2d at 77-78.

       Gonzalez claims he was denied access to effective counsel because his

attorney did not ask the court to give the standard cautionary instruction

concerning accomplice testimony:

       Testimony of an accomplice, given on behalf of the State, should be
       subjected to careful examination in the light of other evidence in the
       case, and should be acted upon with great caution. You should not
       find the defendant guilty upon such testimony alone unless, after
       carefully considering the testimony, you are satisfied beyond a
       reasonable doubt of its truth.

See 11 Washington practice: Washington Pattern Jury Instructions:

Criminal 6.05, at 184 (3d ed. 2008) (WPIC).

       WPIC 6.05 is mandatory only when the State's case-in-chief rests solely

upon uncorroborated accomplice testimony. WPIC 6.05, cmt. at 184, citing State

v. Willoughbv, 29 Wn. App. 828, 630 P.2d 1387. review denied, 96 Wn.2d 1018

(1981). "Whether failure to give this instruction constitutes reversible error when

the accomplice testimony is corroborated by independent evidence depends

upon the extent of corroboration." State v. Harris. 102 Wn.2d 148, 155, 685 P.2d

584 (1984), overruled on other grounds by State v. McKinsev. 116 Wn.2d 911,

914, 810 P2d 907 (1991). "When substantial corroborating evidence exists, the

instruction need not be given." WPIC 6.05, cmt. at 184, citing Harris. 102 Wn.2d

at 155.
No. 72432-1-1/4



      Gonzalez contends that at least with respect to the first two robberies,

Lundberg's testimony was not substantially corroborated. He argues that if the

jury had been cautioned to consider Lundberg's testimony carefully, there is a

reasonable probability that they would not have found it believable and the trial

would have had a different outcome.

      The record demonstrates that Lundberg's testimony was substantially

corroborated by other evidence. Lundberg testified that Gonzalez told him that

the information used to plan and commit the first robbery was obtained by

Gonzalez from a girl friend who formerly worked there. This was corroborated by

the manager who testified that Gonzalez' girl friend was a former employee and

that Gonzalez had been at the restaurant before the robbery. Lundberg also

testified that Gonzalez owned a set of lights which resembled the emergency

lights used by law enforcement in Pierce County. This, too, was corroborated by

the manager's testimony, which confirmed that she thought she saw police lights

behind her car as she drove home.

       As to the second robbery, Lundberg testified that he and Gonzalez were

waiting near the restaurant in Gonzalez's black sports utility vehicle. He testified

that when the manager and her son drove away, he and Gonzalez followed them

and pulled them over using fake emergency lights. His account of how this

encounter occurred was corroborated by the testimony of the manager and her

son. The police also obtained video footage of a vehicle resembling Gonzalez's

car at the place where the fake traffic stop occurred.
No. 72432-1-1/5



       Because Lundberg's testimony was substantially corroborated by other

witnesses and physical evidence, Gonzalez was not entitled to a cautionary

instruction based on WPIC 6.05. Therefore counsel's failure to request the

instruction cannot be considered deficient performance.

       Gonzalez also claims insufficiency of the evidence. He contends that the

evidence presented at trial was insufficient to secure a conviction on all counts

because Lundberg's testimony cannot be considered.

       Because this is a sufficiency challenge, we draw all reasonable inferences

from the evidence in favor of the State. State v. Salinas. 119 Wn.2d 192, 201,

829 P.2d 1068 (1992). The jury was entitled to consider Lundberg's testimony.

With his testimony, the evidence was sufficient to inculpate Gonzalez for all of the

crimes.

       Gonzalez also claims sentencing error. He contends the court should

have counted the three rape offenses as the same criminal conduct for the

purpose of calculating his offender score.

       Crimes constitute the same criminal conduct when they require the same

criminal intent, are committed at the same time and place, and involve the same

victim. State v. Graciano. 176 Wn.2d 531, 536, 295 P3d 219 (2013). Since

determinations of fact are critical when deciding whether crimes involve the same

time, place, and victim, "we have repeatedly observed that a court's

determination of same criminal conduct will not be disturbed unless the

sentencing court abuses its discretion or misapplies the law." Graciano. 176

Wn.2d at 536. Because a finding of same criminal conduct favors the defendant,
No. 72432-1-1/6



it is the defense who must establish the crimes constitute the same criminal

conduct. Graciano. 176 Wn.2d at 539.

       The first rape happened in the victim's car. The next two rapes, which

occurred outside the vehicle, included one act of oral-penile rape and one act of

penile-vaginal rape. Gonzalez repositioned the victim between each act. Under

these circumstances, the trial court acted within its discretion to find that the

three rapes were not the same criminal conduct. The evidence was sufficient to

show that each act of rape was accompanied by a new objective intent. See

State v. Grantham. 84 Wn. App. 854, 858-61, 932 P.2d 657 (1997).

       In a statement of additional grounds for review, Gonzalez calls attention to

the fact that one of the robbery victims testified that one of the robbers was

wearing a hat labelled "cops," whereas the court admitted into evidence a hat

labelled "police." Both items of evidence were relevant to the accusation that the

robbers were pretending to be police. The discrepancy goes to the weight of the

evidence, not its admissibility, and does not provide a basis for review.

       Affirmed.




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WE CONCUR:                                                              U
