                                                                              FILED 


                                                                        March 18,2014 


                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )        No. 30466-3-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JOE ANTHONY MATA,                             )        OPINION PUBLISHED IN PART
                                              )
                     Appellant.               )

       SIDDOWAY, A.C.J.-Joe Mata appeals his convictions of robbery, attempted

robbery, and first degree unlawful possession ofa firearm. We conclude that this second

prosecution for unlawful possession of a .45 caliber handgun violates his right to be free

of double jeopardy and reverse his conviction on that count. We fmd no other reversible

error nor does Mr. Mata raise any viable issue in his pro se statement of additional

grounds. We reverse his conviction of unlawful possession of a firearm and remand for

resentencing.

                    FACTS AND PROCEDURAL BACKGROUND

       On July 28, 2009, roughly six weeks after his release from custody on other

charges, Joe Mata embarked on a one-day, multi-county crime spree. He was charged
No.30466-3-II1
State v. Mata


with crimes in Yakima and Pierce Counties. The Yakima County charges and

convictions are the subject matter of this appeal.

       The crimes allegedly began with Mr. Mata's early morning theft, in Yakima, of a

1993 Dodge Caravan belonging to Luz Garcia, bearing the license plate 864-ROW. Mid­

morning, the manager of a restaurant in Union Gap reported to the county sheriff that a

man and woman left his restaurant without paying. Responding officers were told that

the couple left in what a witness described as a Ford Aerostar van, license plate 664­

ROD. At 10:40 a.m., a Yakima County sheriffs deputy responded to a robbery not far

from the restaurant, reported by Zachary Sisneros. Mr. Sisneros had been working,

delivering bottled water, when a maroon Dodge Caravan with the license plate 860-ROW

blocked his truck in the driveway of a residence on his route. The driver of the van

robbed him at gunpoint, taking his money, wallet, and his cell phone. Mr. Sisneros's

description of the robber was similar to the description of the man who had left the

restaurant without paying. Mr. Sisneros believed the gun was a .40 or .45 caliber

semiautomatic pistol.

       At around 6:30 p.m., another armed robbery was reported by Shaun Kroeger and

Jacob McDonald. They had been shopping for groceries in Yakima and were returning to

Mr. McDonald's pickup truck when a man confronted Mr. Kroeger as he was getting into

the truck, demanding "everything you got." Report of Proceedings (RP) (Oct. 17, 2011)

at 541. The man flashed a gun and threatened to kill Mr. Kroeger if he did not hand over

                                              2

No. 30466-3-111
State v. Mata


his wallet; Mr. Kroeger complied. As he did, Mr. McDonald, who had gotten out of the

truck to see what was going on, saw Mr. Kroger hand over his wallet and saw a gun in

the robber's hand, pointed to the ground. The robber demanded Mr. McDonald's money

as well, but Mr. McDonald refused and walked away. After the robber ran off, the two

men called the police and reported the incident, describing the robber's vehicle as a red

van with the license plate 864-ROW. Mr. Kroeger's description of the man who robbed

him was similar to Mr. Sisneros's description of the robber who confronted him earlier in

the day.

       Later that night, at 11: 15 p.m., Deputy Robert Glen Carpenter of the Pierce

County Sheriffs Office was running routine license plate checks of traffic leaving State

Route 512. He ran a plate on a maroon van with license plate 864-ROW and received an

NCIC I hit stating the vehicle was stolen and the subjects should be considered armed and

dangerous.

       Deputy Carpenter caught up with the van, which was being driven by Mr. Mata,

with Christina Barrientes a passenger. As Deputy Carpenter and officers in another

patrol car activated their lights, Mr. Mata ran a red light, sped away, and a high-speed

chase ensued. It ended when Mr. Mata crashed through a fence on a dead-end road, got




       I   National Crime Information Center.

                                                3

No.30466-3-III
State v. Mata


out of the van, and ran. Deputy Carpenter captured and arrested Mr. Mata with the help

of employees in a building in which Mr. Mata attempted to hide.

       A later search of the van led to the discovery ofa loaded.45 caliber handgun,

found on the driver's side floorboard. Also found were two wallets, one belonging to Mr.

Kroeger; Mr. Sisneros's cell phone; and ignition parts along with a screwdriver.

       A records check conducted on the .45 caliber handgun recovered revealed that it

had been purchased by Ms. Barrientes on June 5 in Yakima. She picked it up on June 16,

at a time when Mr. Mata was in jail for a community custody violation. During the

Yakima trial, the State played an audio recording of a telephone call made to Ms.

Barrientes by Mr. Mata on June 15, from the county jail, in which he spoke to Ms.

Barrientes about purchasing a gun.

       Mr. Mata was charged with crimes in both Pierce and Yakima Counties and was

tried first in Pierce County. Mr. Mata was prohibited from owning or possessing a

firearm in light of his prior conviction of a serious offense, and one of the charges

prosecuted in Pierce County was first degree unlawful possession of the .45 caliber

handgun found in the Dodge Caravan. The Pierce County jury found him not guilty of

that crime.

       In Yakima County, the State filed its first information against Mr. Mata on July

31, 2009, charging him with the following counts and enhancements:




                                             4

No. 30466-3-111
State v. Mata


      Count 1:         First degree robbery of Zack Sisneros, alleging that "in the
                       commission of or immediate flight therefrom, you displayed what
                       appeared to be a firearm or other deadly weapon." Clerk's Papers
                       (CP) at 1.
                       Firearm enhancement.

      Count 2:         First degree unlawful possession of a firearm.


      By amended information filed August 8, 2011, the State added additional charges

and modified the manner in which it charged Mr. Mata with having displayed or used

weapons, as follows:

      Count 1: 	       First degree robbery of Zack Sisneros, alleging that "in the
                       commission of or immediate flight therefrom, you were armed
                       with a firearm and/or you displayed what appeared to be a firearm
                       or other deadly weapon." CP at 26.
                       Firearm enhancement.

      Counts 2         First degree robbery ofShaun Kroeger (count 2) and lake
      and 3:           McDonald (count 3), with allegations of firearm or deadly weapon
                       display or use identical to the allegation in Count One.
                       Firearm enhancement as to each.

      Count 4:         First degree unlawful possession of a firearm.

      Plus rapid recidivism enhancement under RCW 9.94A.535(3)(t).

      Plus exceptional sentence to adjust for "free crimes" under RCW
      9.94A.535(2)(c).

      By a second amended information filed on October 10,2011, the day of the

pretrial conference in Mr. Mata's Yakima County trial, the State further modified the

charges. The prosecutor explained that the State was amending count 3 to attempted first

                                              5

No.30466-3-III
State v. Mata


degree robbery, since Mr. Mata demanded Mr. McDonald's wallet but never took

property from Mr. McDonald's person. The prosecutor also told the court that the third

amended information "cleans up some of the language" to exclude the reference to

displaying a deadly weapon. RP (Oct. 10,2011) at 3. The amendment did more; it also

(inadvertently, it appears) eliminated the alternative of Mr. Mata's having been "armed

with" a firearm, alleging, in connection with counts 1, 2, and 3, only that

       in the commission of or immediate flight therefrom, you displayed what
       appeared to be a firearm.

CP at 32-33.

       Trial began on October 12. On October 20, the State rested its case. It then asked

to amend the information a third time. It explained that the robbery counts should have

alleged that Mr. Mata was armed with a firearm "and/or" displayed what appeared to be a

firearm or other deadly weapon. RP (Oct. 20, 2011) at 813. Mr. Mata objected. The trial

court ultimately ruled that it would allow the amended information if it excluded the "or

other deadly weapon" language. Id. at 819.

       The third amended information therefore modified the manner in which it charged

Mr. Mata with having displayed or used weapons by restoring the alternative of being

armed, alleging in each of counts 1, 2, and 3 that

       in the commission of or immediate flight therefrom, you were armed with a
       firearm and/or you displayed what appeared to be a firearm.

CP at 93-94.

                                             6

I


i
I      No.30466-3-II1
I
     State v. Mata

I
 

I             During trial, Mr. Mata asked the trial court to dismiss the unlawful possession of a


I
     firearm count, arguing that he could not be convicted of unlawfully possessing the same

I

I
       firearm that the Pierce County jury had acquitted him of possessing on the date in

       question. The trial court recognized it as a viable issue and one "wisely brought up by
I
,
       the defense," but concluded that there was a sufficient geographic and temporal gap

       between possession of the .45 caliber handgun in Yakima and Pierce Counties and denied

       the motion. RP (Oct. 20, 2011) at 806-07.

              The jury found Mr. Mata guilty of the first degree robberies of Mr. Sisneros and

       Mr. Kroeger and unlawful possession of a firearm. It answered "yes" to the special

       verdict forms addressing the firearm and rapid recidivism aggravators.

              The trial court imposed an exceptional sentence based on the jury's findings and

       on its own finding that Mr. Mata committed multiple current offenses and his high

       .offender score that resulted in some of the current offenses going unpunished. At the

       State's request, which was based on RCW 9.94A.589(3), the court ordered that the

       sentence for the Yakima County crimes run consecutive to Mr. Mata's Pierce County

       sentence.

              Mr. Mata appeals.




                                                    7

No. 30466-3-111
State v. Mata


                                         ANALYSIS

       Mr. Mata makes four assignments of error2: (1) that his conviction of first degree

unlawful possession of a firearm violates his constitutional right of protection against

double jeopardy, (2) that the trial court violated CrR 2.1 (d) and his constitutional right to

notice of the charges against him in allowing the State to file the third amended

information after resting its case-in-chief, (3) that the trial court erred in ordering that the

sentences for his Yakima County convictions run consecutive with his Pierce County

conviction, and (4) that the "free crimes" aggravator may not be warranted depending on

the outcome of other issues on appeal. We address the assignments of error in tum.

                                         Double Jeopardy

       Mr. Mata first contends that his prosecution in Yakima County for unlawful

possession of the firearm discovered in the van in Pierce County violated his right to be

free of double jeopardy.

       The Fifth Amendment and the Washington State Constitution provide that no

person shall be twice put in jeopardy for the same offense. U.S. CONST. amend. V;

WASH. CONST. art. I, § 9. Both constitutional guarantees include protection from being

prosecuted a second time for the same offense after acquittal. State v. Linton, 156 Wn.2d

777, 783, 132 PJd 127 (2006).



       2   He abandoned a fifth assignment of error, challenging his offender score.

                                               8



                                                                                                   I
No. 30466-3-111
State v. Mata


       The determination of whether or not a defendant faces multiple convictions for the

same crime depends on the unit of prosecution. State v. Hall, 168 Wn.2d 726, 730, 230

P.3d 1048 (2010) (citing State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002)).

"The unit of prosecution for a crime may be an act or a course of conduct." State v.

Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005) (citing United States v. Universal c.I.T.

Credit Corp., 344 U.S. 218,225-26, 73 S. Ct. 227, 97 L. Ed. 260 (1952)). "The proper

question is to determine what act or course of conduct the legislature has defined as the

punishable act." State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007). The

statutory unit of prosecution is a question of law that we review de novo. State v. Ose,

156 Wn.2d 140, 144, 124 P.3d 635 (2005).

       The approach to determine the unit of prosecution is well settled:

       [T]he first step is to analyze the statute in question. Next, we review the
       statute's history. Finally, we perform a factual analysis as to the unit of
       prosecution because even where the legislature has expressed its view on
       the unit of prosecution, the facts in a particular case may reveal more than
       one "unit of prosecution" is present.

Varnell, 162 Wn.2d at 168 (citing State v. Bobic, 140 Wn.2d 250,263-66,996 P.2d 610

(2000)). If the statute is ambiguous as to the unit of prosecution, the rule of lenity applies

and the ambiguity must be "'resolved against turning a single transaction into multiple

offenses.'" Tvedt, 153 Wn.2d at 711 (internal quotation marks omitted) (quoting State v.

Adel, 136 Wn.2d 629,635,965 P.2d 1072 (1998)).



                                              9

No. 30466-3-111
State v. Mata


       Mr. Mata was charged in both Pierce and Yakima Counties under RCW

9.41.040(1)(a), which defines the crime of first degree unlawful possession ofa handgun

as follows:

       A person, whether an adult or juvenile, is guilty of the crime of unlawful
       possession of a firearm in the first degree, if the person owns, has in his or
       her possession, or has in his or her control any firearm after having
       previously been convicted ... in this state or elsewhere of any serious
       offense as defined in this chapter.

The charges in both counties were based on his possession on July 28, 2009 of the .45

caliber handgun found on the floorboard of the Dodge Caravan.

       We first analyze the statute. Subsection (l)(a) makes it a crime for a person

convicted of a serious offense to own or have possession of "any" firearm, without tying

the commission of the crime to a particular duration of ownership or possession or to the

location of the firearm. Subsection (7) of the statute provides, "Each firearm unlawfully

possessed under this section shall be a separate offense." RCW 9.41.040(7). Each

firearm therefore constitutes a separate unit of prosecution. In re Pers. Restraint of

Shale, 160 Wn.2d 489, 500, 158 P.3d 588 (2007).

       Neither the parties nor we have identified any legislative history that would

suggest that the unit of prosecution is anything other than the particular firearm.

       The State's position that there might be separate "possessions" of the same firearm

that support separate charges under the statute implicates the third, factual step of the

analysis, in which we determine whether, despite the legislative focus, the facts reveal

                                             10 

No.30466-3-III
State v. Mata


that more than one "unit of prosecution" is present. The possibility of multiple

"possessions" of the same firearm finds support in State v. Kenyon, 150 Wn. App. 826,

208 P.3d 1291 (2009), in which Division Two of this court considered the character of

the crime of unlawful possession of a firearm in a different context: a defendant's

argument that a second prosecution for his unlawful possession of a firearm in 2004

should have been dismissed under CrR 4.3.1 because it was "related" within the meaning

of the rule to an earlier prosecution for possessing the same firearm in 2005.

       In Kenyon, the material facts were summarized in findings by the trial court that

were treated as verities on appeal:

       "In this particular case, although the same firearm, identified by its serial
       number, was possessed on one occasion and allegedly possessed in this
       case on another occasion, those two time periods are eight months apart.
       They have intervening time where Mr. Kenyon was incarcerated both in jail
       and in prison. Certainly this could not be said to be a single criminal
       incident or episode.
               "The allegation is that Mr. Kenyon possessed this firearm, divested
       himself of it by throwing it out the window, and then at a later time
       regained it and possessed it again. The Court finds that this is not a
       situation where the facts amount to a related offense, because it is not a
       single criminal incident or episode."

150 Wn. App. at 833.

       Division Two concluded that the trial court erred in failing to dismiss the second

prosecution and in the process made two observations that are relevant to the issue

presented here, and with which we agree. First, it stated that "[t]he act upon which these

two charges rest--ownership, possession, or control of a single firearm-is a '''course of

                                            11 

No.30466-3-III
State v. Mata


conduct'" rather than a discrete act because that behavior takes place over a period of

time rather than at one distinct moment." Id. at 834. At the same time, it regarded the

two instances of possession as different offenses when it stated that they "were related

and, as such, should have been charged at the same time." Id. (emphasis added).

Implicitly, the court accepted the trial court's reasoning that the defendant's act of

throwing the firearm out the window and regaining possession of it many months later,

following a period of incarceration, resulted in a distinct, separately chargeable course of

conduct.

       Other Washington decisions support the concept that a crime that is defined as a

course of conduct can, depending on the facts, be interrupted and committed anew. In

Hall, the Supreme Court found that a criminal defendant's hundreds of calls to a witness

in an effort to dissuade her from testifying constituted a single witness tampering offense,

concluding that the witness tampering statute criminalizes the "ongoing" attempt to

persuade a witness not to testify. 168 Wn.2d at 733. It stated in dicta that "[o]ur

determination might be different if Hall had changed his strategy ... or if he had been

stopped by the State briefly and found a way to resume his witness tampering campaign."

Id. at 737.

       In State v. Chouap, 170 Wn. App. 114, 125,285 P.3d 138 (2012), Division Two,

citing this dicta in Hall, found the crime of attempting to elude a pursuing police vehicle

to be one that a defendant could "commit ... anew with each pursuit." In Chouap, the

                                             12 

No. 30466-3-III
State v. Mata


defendant had attempted to elude law enforcement in two high speed chases: one in

Tacoma, involving Tacoma police, and another in Lakewood, involving Lakewood

police. The court found two pursuits and two offenses where "the first pursuit ended

when the Tacoma police officers stopped pursuing Chouap because of his dangerous

driving," and he had thereby "successfully eluded the pursuing police vehicle." Id.

       We conclude, as did Division Two in Kenyon, that the crime of unlawful

possession of a firearm is a "course of conduct" rather than a discrete act. We agree that

an interruption in possession of a particular firearm may result in different "possessions"

just as the interruption of the defendant's effort to elude in Chouap resulted in different

"pursuits." We need not decide in this case what the duration or character of the

interruption would have to be in order to give rise to distinct, separately chargeable,

unlawful "possessions" of a firearm, however, because the State offered no evidence that

Mr. Mata's possession of the .45 caliber handgun on July 28 (at times actual; at others,

constructive) was ever interrupted.

       "[W]hen a statute defines a crime as a course of conduct over a period oftime,

'then it is a continuous offense and any conviction or acquittal based on a portion of that

course of action will bar prosecution on the remainder.'" State v. McReynolds, 117 Wn.

App. 309, 339, 71 P.3d 663 (2003) (quoting Harrell v. Israel, 478 F. SUpp. 752, 754-55

(E.D. Wis. 1979». Mr. Mata's acquittal of unlawful possession of the .45 caliber




                                             13 

No. 30466-3-111
State v. Mata


handgun based on a portion of his possession of the firearm on July 28 barred prosecution

of the remainder. The unlawful possession conviction must be reversed.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

opinions.

                                              I

       Mr. Mata next argues that allowing the State to amend the information for the

third time after the State rested violated his rights under the Sixth Amendment to the

United States Constitution, article I, section 22 of the Washington State Constitution, and

CrR 2.l(d).

       CrR 2.1(d) allows the trial court to permit the State to amend an information "at

any time before verdict or finding if substantial rights of the defendant are not

prejudiced." We review a trial court's decision to allow amendment under the rule for

abuse of discretion. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P .2d 974 (1998).

       If the criminal rule were our only concern, we would find no prejudice to Mr.

Mata's substantial rights and no abuse of discretion. All of the evidence presented at trial

was that Mr. Mata was armed with a handgun-and what is important here, that he

displayed that handgun during the course of both robberies. In In re Personal Restraint

o/Brockie, 178 Wn.2d 532, 309 P.3d 498 (2013) our Supreme Court (although

addressing a different issue) recognized that where a defendant is charged with first

                                             14 

No. 30466-3-II1
State v. Mata


degree robbery based on the means of "display[ing] what appears to be a firearm or other

deadly weapon,"3 then evidence that he was armed with and displayed his weapon does

not present a risk that the jury. will convict on the basis of an uncharged alternative means

of being "armed with a deadly weapon."4 As explained in Brockie:

       Throughout the trial, the evidence consistently showed that the robber
       displayed what appeared to be a gun throughout the robberies. There is no
       indication that the trial included any discussion or claim that the robber was
       armed with a deadly weapon but did not display it. Thus, based on the facts
       in this particular case, any juror that found the robber was armed with a
       deadly weapon necessarily would have found that the robber displayed the
       weapon-the alternative means that was properly described in the charging
       information.

178 Wn.2d at 540. There was even less possibility of prejudice here, where Mr. Mata

had been charged since the second amendment of the information with firearm

enhancements on the robbery and attempted robbery counts. He was thereby on notice (if

not through the means charged in counts 1 and 2) that the State intended to offer proof

that he was armed.

       Mr. Mata points out, however, that the "essential elements" rule applies in

addition to CrR 2.1(d). In State v. Pelkey, 109 Wn.2d 484, 487-88, 745 P.2d 854 (1987),

our Supreme Court, having considered the requirement of article I, section 22 of the

Washington Constitution that the accused be adequately informed of the State's charges,



       3 The means provided by RCW 9A.56.200(1)(a)(ii). 

       4 The means provided by RCW 9A.56.200(1)(a)(i). 


                                             15 

No.30466-3-III
State v. Mata


held that the State may not amend a charge after resting its case-in-chief. It found the

requirement of notice to be subject to only two narrow exceptions. "A criminal charge

may not be amended after the State has rested its case-in-chief unless the amendment is

to a lesser degree of the same charge or a lesser included offense. Anything else is a

violation of the defendant's article 1, section 22 right." Id. at 491. Later cases have

characterized Pelkey as announcing a "bright line" rule and held that where an

amendment by the State after resting does not meet one of its exceptions, the defendant is

not required to show prejudice. State v. Vangerpen, 125 Wn.2d 782, 789, 888 P.2d 1177

(1995); State v. Markle, 118 Wn.2d 424,437,823 P.2d 1101 (1992).

       Here, the State's third amendment added an alternative means of committing the

robberies charged in counts 1 and 2: being "armed with a firearm" in the commission of

or immediate flight therefrom. Contrary to the State's contention on appeal, Mr. Mata

objected to the State's request for the third amendment. s The State also argues that

"nothing 'new'" was added to the third amended information, Br. of Resp't at 11-12, but

in Brockie, the Supreme Court pointed out that a person may be armed with but not

display a weapon, and "[t]he legislature clearly intended to treat the two alternative

means of committing robbery in the first degree as distinct." 178 Wn.2d at 538.


       S Mr.Mata's lawyer stated, "Your honor, the state has rested. We went to trial on
these charges. I don't think that the amendment should be permitted." RP (Oct. 20,
2011) at 814. Although there was confusion about what was being added by the third
amendment, the objection was sufficient.

                                             16
No. 30466-3-111
State v. Mata


      Nonetheless, in an uncharged alternative means case such as this one, involving a

charging document that is sufficient but an amendment that should not have been

permitted, the State may show harmlessness. fd. at 539 n.2 (citing State v. Bray, 52 Wn.

App. 30, 34-36, 756 P.2d 1332 (1988)); State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d

1182 (1985) (constitutional error is presumed to be prejudicial and the State bears the

burden of proving that the error was harmless). We find a constitutional error harmless

only if convinced beyond a reasonable doubt that any reasonable jury would reach the

same result absent the error. Guloy, 104 Wn.2d at 425.

       In cases where a jury is instructed on an uncharged offense, harmlessness is most

commonly shown by other instructions that define the crime in a manner that leaves only

the charged alternative before the jury. State v. Severns, 13 Wn.2d 542, 548, 125 P.2d

659 (1942). In this case, harmlessness is shown by the fact that all of the evidence and

argument was that Mr. Mata displayed a firearm when he robbed Mr. Sisneros and Mr.

Kroeger. The possibility of an undisplayed firearm was never suggested. And Mr.

Mata's defense was to deny any involvement in the robberies; he did not challenge the

testimony of the robbery victims and other witnesses that a handgun was displayed in

both robberies. Cf Brockie, 178 Wn.2d at 540. Given that the only evidence offered or

argued by the State was evidence of a displayed, not a concealed, firearm, the error in

permitting the late amendment was harmless.




                                            17 

No.30466-3-III
State v. Mata


                                              II

       Mr. Mata next argues that the trial court erroneously relied on RCW 9.94A.589(3)

to "[impose] a consecutive sentence on Mr. Mata's Yakima County convictions with the

Pierce County convictions." Br. of Appellant at 21. We conclude that the statute did not

apply but that the result was still the consecutive sentencing ordered by the court.

       During the sentencing hearing, the lawyers argued about the State's proposed

language in section IV.A of the judgment and sentence, dealing with confinement, which

reads in part as follows:

       4.A.2 Concurrent or Consecutive: 

       [8J Consecutive With Other Sentences: Unless otherwise specified here, 

       this sentence shall be consecutive with prior sentences. 


CP at 756 (bold face omitted). Mr. Mata's lawyer argued that the court should exercise

its discretion by allowing its sentence to run concurrently with the Pierce County

sentences, contending that the Pierce County crimes "were part of the same crime spree,"

that Mr. Mata had "been in custody on this case and the other case during that time," and

that the Pierce County "sentence was prior because they ended up with his body first."

RP (Dec. 5,2011) at 91,92. The State argued that the trial court should exercise its

discretion to have the sentences run consecutively, pointing out that "in a case where the

court's imposing an exceptional sentence I can't imagine why you-the court would then

run concurrent a separate case." ld. at 93.




                                              18
No. 30466-3-111
State v. Mata


       We are puzzled by the positions taken by the parties on the application ofRCW

9.94A.S89(3) in light of the State's argument in the trial court, which is now Mr. Mata's

argument on appeal, that Mr. Mata was serving community custody at the time he

committed the Yakima County crimes in which case the statute does not apply. 6

      RCW 9.94A.S89(3) provides:

      Subject to subsections (1) and (2) of this section, whenever a person is
      sentenced for a felony that was committed while the person was not under
      sentence for conviction ofa felony, the sentence shall run concurrently with
      any felony sentence which has been imposed by any court in this or another
      state or by a federal court subsequent to the commission of the crime being
      sentenced unless the court pronouncing the current sentence expressly
      orders that they be served consecutively.

(Emphasis added.)

       On appeal, Mr. Mata argues that because he was subject to community custody at

the time he committed the Yakima crimes, he was '''[subject to] sentence for conviction

of a felony'" within the meaning of Washington statutes dealing with sentencing and

confinement, as decided in State v. Roberts, 76 Wn. App. 290,292-93, 884 P.2d 628

(1994). Appellant's Br. at 23. On that basis, he argues, RCW 9.94A.S89(3) did not

apply. From this, he argues that any consecutive sentence imposed would have to be

imposed as an exceptional sentence. But since the State did not ask for, nor did the court



       6 This is confirmed by his judgment and sentence, which found commission of a
current offense while on community placement, community custody, or community
supervision, which added one point to his offender score. See CP at 764.

                                            19
No.30466-3-III
State v. Mata


order, exceptional consecutive sentencing, he argues that his Yakima County sentence

must run concurrent to his Pierce County sentence.

       The State responds with settled law that where RCW 9.94A.589(3) applies, the

sentencing judge enjoys "discretion to impose either a concurrent or consecutive sentence

for a crime that the defendant committed before he started to serve a felony sentence for a

different crime,,' without finding aggravating factors that would support an exceptional

sentence. State v. King, 149 Wn. App. 96, 101,202 PJd 351 (2009). It does not address

Roberts and is now silent on whether Mr. Mata was subject to community custody at the

time he committed the Yakima crimes, thereby taking him outside the operation of RCW

9.94A.589(3).

       Where RCW 9.94A.589(3) does not apply, the default provision applicable to

defendants in Mr. Mata's situation is RCW 9.94A.589(2)(a). It provides in relevant part

that "whenever a person while under sentence for conviction of a felony commits another

felony and is sentenced to another term of confinement, the latter term shall not begin

until expiration of all prior terms." The result is consecutive sentencing. See State v.

Mahone, 164 Wn. App. 146, 152,262 P.3d 165 (2011). While the trial court might have

lacked the discretion provided by RCW 9.94A.589(3) that was urged by the State, the

default result is the consecutive sentencing reflected in the judgment and sentence. Any

mistaken reasoning was harmless.




                                             20
No. 30466-3-111
State v. Mata


                                              III

       Mr. Mata next raises a conditional challenge to the the trial court's application of

the free crimes doctrine as a basis for his exceptional sentence "depending upon the

decision made by the appellate court on the argument contained in his brief." Br. of

Appellant at 24. He does not argue that the trial court lacked a sufficient basis for

applying the doctrine given the convictions and the offender score on which it based its

sentencing decision but only argues that decisions on appeal might change the calculus.

       A defendant's standard range sentence reaches its maximum at an offender score

of"9 or more." RCW 9.94A.510. The result for a defendant being sentenced for

multiple current offenses that result in an offender score greater than nine is that further

increases in the offender score do not increase the standard sentence range. State v.

France, 176 Wn. App. 463,470,308 P.3d 812 (20l3), review denied, 318 P.3d 280

(2014). However, a trial court may impose an exceptional sentence if "[t]he defendant

has committed multiple current offenses and the defendant's high offender score results

in some of the current offenses going unpunished." RCW 9.94A.535(2)(c). The

shorthand term "free crimes" is commonly used for the "current offenses going

unpunished" that might justify an exceptional sentence.

       Mr. Mata had an offender score of 14 prior to committing the crimes prosecuted

here. In support of the exceptional sentence imposed by the court, it identified the free

crimes aggravator as one reason. Correcting Mr. Mata' s offender score for our reversal

                                             21 

No. 30466-3-111
State v. Mata


of the unlawful possession of a fireann conviction will reduce his offender score but it

will still be high and well within "free crimes" aggravator territory. Reading the trial

court's findings in support of its exceptional sentence as a whole, we question whether its

position on an exceptional sentence will change, but that is a decision for the trial court to

make in resentencing Mr. Mata.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Mata states seven. 7

       Whether Mr. Mata's Sixth Amendment right to confront witnesses against him was

violated when the recording ofhis police phone call was not properly authenticated. Mr.

Mata's first ground is that the audiotape of his June 15 call from jail to Ms. Barrientes

was not properly authenticated. He cites the seven-part test for authentication provided

by Washington case law. 8




       7 On the last page of Mr. Mata's SAG, he complains of an inadequate record on
appeal, mentioning "many motions" that he filed before pretrial and trial proceedings.
We note that Mr. Mata appealed only the jury verdict, judgment, and sentence and has
therefore brought up for appeal only those matters and any orders or rulings prejudicially
affecting them. RAP 2.4(b)(l).
       8 A proper foundation requires:
       "(1) It must be shown that the mechanical transcription device was capable
       of taking testimony. (2) It must be shown that the operator of the device
       was competent to operate it. (3) The authenticity and correctness of the
       recording must be established. (4) It must be shown that changes,
       additions, or deletions have not been made. (5) The manner of preservation
       of the record must be shown. (6) Speakers must be identified. (7) It must

                                             22 

No. 30466-3-111
State v. Mata


       The State called Lieutenant Gordon Costello to authenticate the recording of Mr.

Mata's call. The lieutenant testified as to the nature of the jailhouse recording system, its

methods of storage, the process for identifYing the inmate-caller through a pin number,.

the methods of recording, whether changes or deletions may be shown, and he identified

Mr. Mata as one of the speakers on the call. The trial court found sufficient·

circumstantial evidence identifYing Christina Barrientes as the woman speaking during

the call in the form of her partial identification of herself, her phone number, address,

voice identification, and the fact that she picked up a handgun on June 16 consistent with

the substance of the call.

       Mr. Mata cannot raise objections to the evidence that were not raised in the trial

court. RAP 2.5(a). The trial court considered his objections to recordings of several calls

offered by the State and admitted only the recording of the June 15 call. We review a

trial court's ruling on the admissibility of evidence for abuse of discretion. State v.

Vreen, 143 Wn.2d 923,932,26 PJd 236 (2001). The court did not abuse its discretion in

finding that the State had laid a sufficient foundation for admitting the recording.

       Whether substantial evidence supports the rapid recidivism exceptional sentence

and whether the jury was provided proper guidance for its instruction. Mr. Mata's


        be shown that the testimony was freely and voluntarily made, without any
        kind of duress."
State v. Robinson, 38 Wn. App. 871, 885,691 P.2d 213 (1984) (quoting State v. Williams,
49 Wn.2d 354,360,301 P.2d 769 (1956)).

                                             23
No.30466-3-III
State v. Mata


second ground challenges the instruction and evidence on the rapid recidivism

aggravator. The jury was instructed that if it found Mr. Mata guilty of any of the charged

crimes it must determine "whether the defendant committed the crime shortly after being

released from incarceration." CP at 518. It answered "yes." CP at 525. Mr. Mata

argues that the approximately six weeks at issue here was not "rapid," the jury was not

properly guided on what constitutes a "rapid" time frame, and there was no evidence on

which the jury could find that the dates on which he was released from custody and then

reoffended.

       Because the aggravating factor codified in RCW 9.94A.535(3)(t) is that "[t]he

defendant committed the current offense shortly after being released from incarceration,"

"[t]his is the only fact that must be found by the jury." State v. Williams, 159 Wn. App.

298,312-13,244 P.3d 1018 (2011). The "technical term rule" requires courts to define

technical words and expressions but not words and expressions that are of ordinary

understanding and self-explanatory. State v. Allen, 101 Wn.2d 355,358,678 P.2d 798

(1984). The language used in the court's instruction or special verdict form on the rapid

recidivism aggravator is language of ordinary understanding and self-explanatory. We

also note that "[a] trial court is not required to impose an exceptional sentence merely

because a jury finds an aggravating circumstance proved. Rather, in such a circumstance,

the trial court may sentence the defendant to an exceptional sentence if it determines 'that




                                            24 

No. 30466-3-II1
State v. Mata


the facts found are substantial and compelling reasons justifying an exceptional

sentence.'" Williams, 159 Wn. App. at 314 (quoting RCW 9.94A.537(6».

       Mr. Mata also makes a constitutional vagueness challenge to the instruction and

verdict fonn. Where- a statute does not impinge on First Amendment rights, we evaluate

a vagueness challenge "by examining the statute as applied under the particular facts of

the case." State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992). Statutes are

presumed to be constitutional. City a/Spokane v. Vaux, 83 Wn.2d 126, 129,516 P.2d

209 (1973). "When a statute does not define tenns alleged to be unconstitutionally

vague, we 'may look to existing law, ordinary usage, and the general purpose of the

statute to detennine whether the statute meets constitutional requirements of clarity.' "

Williams, 159 Wn. App. at 319 (internal quotation marks omitted) (quoting State v. Hunt,

75 Wn. App. 795, 801, 880 P.2d 96 (1994».

       As applied to Mr. Mata, RCW 9.94A.535(3)(t) is not vague. The evidence

presented to the jury was that Mr. Mata was making arrangements to acquire the handgun

used to commit the robberies while injail. Committing a crime within six weeks of

release fits well within any common understanding of "shortly after."

       Finally, the State presented evidence on the time frame involved in a bifurcated

proceeding on the rapid recidivism issue, conducted after the jury had returned its

verdicts of gUilty. Lieutenant Costello testified that Mr. Mata had been incarcerated in

June 2009 for "a guilty finding on a charge of offender accountability," that "[h]e was

                                             25 

No. 30466-3-III
State v. Mata


released on 6-20-2009 at 1939 [hours]," and that the number of days between his June 20

release and July 28 was "38 days." RP (Oct. 24, 2011) at 1066-68. The jury had been

presented with substantial evidence during the trial that the date of the crimes charged

was July 28.

       Whether Mr. Mata had adequate notice ofthe prohibition against firearm

possession. Mr. Mata's third ground relates to the unlawful possession conviction that

we reverse. It is moot.

       The court erred in using a single definition of "firearm" for each charge; it

ignored the fact that the alleged weapon had never been tested or shown to be able to fire

a projectile; defense counsel was ineffective for not hiring experts on the issue of

identification and made mistakes during pretrial motions; and the prosecutor committed

misconduct in opening statements and during trial by violating the court's pretrial order

about "crime spree" evidence. Mr. Mata' s fourth, fifth, sixth, and seventh grounds are

all insufficiently supported under RAP 10.3(a)(6). They lack citation to relevant portions

of the record, identification of the claimed error, supporting legal authority, and reasoned

argument. We refuse to consider them.

       We reverse Mr. Mata's conviction of first degree unlawful possession ofa firearm




                                             26 

No.30466-3-III
State v. Mata


and remand to the sentencing court for a recalculation of the offender score and

resentencing.




                                             Sid~ta1r
WE CONCUR:




Brown, J.                                    Kulik, J.P.T.




                                            27 

