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



STATE OF WASHINGTON,                                   No. 69864-8-1

                     Respondent,                       ORDER GRANTING
                                                       MOTION TO PUBLISH
             v.                                        AND AMEND OPINION

MIGUEL ANGEL VILLANUEVA-
GONZALEZ,

                     Appellant.



      Appellant, Miguel Angel Villanueva-Gonzalez has moved for publication of
the opinion filed in this case on April 22, 2013. The panel hearing the case has
considered the motion and Respondent's answer and has determined that the

motion should be granted.

      Appellant has also moved to amend the opinion. The court hereby
       ORDERS that the motion to publish the opinion is granted and that the slip

opinion shall be modified as follows:
       At page 2 of the slip opinion, in the first full paragraph, delete "violated" and insert
       "did not violate."

       At page 2 of the slip opinion, in the first full paragraph, delete "charges" and
       insert "convictions."

       Dated this \7^ day of uAor\f                        2013.
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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 69864-8-1

                     Respondent,            )         DIVISION ONE




MIGUEL ANGEL VILLANUEVA-                    ]         UNPUBLISHED
GONZALEZ, aka KEVIN CORTEZ-
HERRERA,                                              FILED: Arjril 22. 2013 «
                                                                                     3».
                                                                               3^

                     Appellant.
                                                                               ro
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       Cox, J. — Where two offenses are the same in law and fact and there3s '£<*
                                                                                CO   o -'-.
no indication that the legislature intended to allow convictions for both offenses, if"

is a violation of double jeopardy to convict a defendant of both offenses.1 Here,
Miguel Angel Villanueva-Gonzalez was convicted of second and fourth degree
assault, in violation of double jeopardy. Consequently, we reverse his conviction

for fourth degree assault and remand with instructions.

       Villanueva-Gonzalez and M.G. were in a romantic relationship. On the

night in question, Villanueva-Gonzalez returned home angry because M.G. had
been out at a nightclub without him. He confronted M.G. and pulled her out of
the room in which she was sitting. He head butted her, fracturing her nose in two




       1 State v. Kellev. 168 Wn.2d 72, 77, 226 P.3d 773 (2010) (citing
Blockburoer v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932)).
No. 69864-8-1/2



places. Villanueva-Gonzalez then grabbed M.G. by the throat and held her

against a piece of furniture.

       The State charged Villanueva-Gonzalez with two counts of second degree
assault. Count I was based on Villanueva-Gonzalez's attempted strangulation of

M.G. Villanueva-Gonzalez's injury to M.G.'s nose was the basis for count II.

       After a jury trial, the court instructed the jury as to second degree assault
and the lesser included fourth degree assault for both counts I and II. The jury

found Villanueva-Gonzalez guilty of second degree assault for count II. It also
found him guilty ofthe lesser included crime offourth degree assault as to count I.
       Villanueva-Gonzalez appeals.

                                DOUBLE JEOPARDY

       Villanueva-Gonzalez argues that his convictions for second and fourth

degree assault violated his right against double jeopardy. We agree.
       Article I, section 9 ofthe Washington Constitution, the double jeopardy
clause, guarantees that, "[n]o person shall... be twice put in jeopardy for the
same offense." It mirrors the protections offered bythe federal constitutional
protection against double jeopardy.2 "Double jeopardy principles protect a
defendant from being convicted more than once under the same statute if the
defendant commits only one unit of the crime."3 "Where a defendant's act
supports charges under two criminal statutes, a court weighing a double jeopardy

        2 See State v. Gocken. 127 Wn.2d 95, 107, 896 P.2d 1267 (1995) (holding
thatArticle I, section 9 ofthe Washington Constitution should be given the same
 interpretation as the United States Supreme Court gives to the Fifth
 Amendment).

        3 State v. Westlinq. 145 Wn.2d 607, 610, 40 P.3d 669 (2002).
No. 69864-8-1/3



challenge must determine whether, in light of legislative intent, the charged

crimes constitute the same offense."4 "To determine if a defendant has been

punished multiple times for the same offense, this court has traditionally applied

the 'same evidence' test."5 This test "mirrors the federal 'same elements'

standard adopted in Blockburger v. United States."6
       Under this test, two convictions constitute the "same offense" for the

purposes of double jeopardy if they are the same in law and in fact.7 Thus, if
each conviction includes elements not included in the other, or requires proof of a

fact that the other does not, the offenses are different and the convictions may

stand8

       For the first time on appeal, Villanueva-Gonzalez argues that his

convictions for assault in the second and fourth degree have subjected him to

double jeopardy. Even though this issue was not raised below, we consider it
because it involves an alleged violation of Villanueva-Gonzalez's constitutional

right against double jeopardy.9




         4 State v. Nvsta. 168 Wn. App. 30, 44, 275 P.3d 1162 (2012).

       5 State v. Adel. 136 Wn.2d 629, 632, 965 P.2d 1072 (1998) (quoting State
v. Calle. 125 Wn.2d 769, 777, 888 P.2d 155 (1995)).

         6 Id (citing State v. Gocken. 127 Wn.2d 95, 107, 896 P.2d 1267 (1995)).
         7 Calle. 125Wn.2dat777.

         8 Adel. 136Wn.2dat633.

         9 Id. at 631-32.
No. 69864-8-1/4



      Here, Villanueva-Gonzalez's convictions violated double jeopardy. As a

lesser included offense of second degree assault, fourth degree assault is the

same in law as second degree assault.10 It requires proof that the defendant
assaulted another, an element required by second degree assault.11
      Villanueva-Gonzalez's convictions were also the same in fact. The State

alleged that Villanueva-Gonzalez committed two separate assaults, grabbing of
M.G.'s throat and head butting her. Butthese events were actions taken against

the same victim within the same short time span. Because assault is not defined

in terms ofeach physical act against a victim, Villanueva-Gonzalez's actions
constituted one single assault in fact. As the supreme court in State v. Tili stated:
       [T]he assault statute does not define the specific unit ofprosecution
       in terms of each physical act against a victim. Rather, the
       Legislature defined assault only as that occurring when an
       individual 'assaults' another. A more extensive definition of
       'assault' is provided by the common law, which sets out many
       different acts as constituting 'assault; some of which do not even
       require touching. Consequently, the Legislature clearly has not
       defined 'assault' as occurring upon any physical act.'




       10 See State v. Freeman, 153 Wn.2d 765, 771 n.1, 108 P.3d 753 (2005)
(citing Akhil Reed Amar &Jonathan L. Marcus, Double Jeopardy Law After
Rodney King. 95 Colum. L. Rev. 1, 28-29 (1995) (noting that where a lesser
included offense can be presumed to be punished by the greater offense,
conviction under both offenses would offend double jeopardy); see also Amar &
Marcus, supra., at 28-29 ("[T]he phrase 'same offence' encompasses more than
identical provisions. If statute Xrequires an element or elements that statute Y
does not, these statutes will still be treated as describing the 'same' offence so
long as Xcontains all of Y's elements—that is, so long as Yis a 'lesser included'
offence.").

       11 RCW9A.36.041; RCW 9A.36.021.

       12 State v. Tili. 139 Wn.2d 107, 116-17, 985 P.2d 365 (1999).
No. 69864-8-1/5



       Here, the evidence to prove each charged crime was the assaultive acts

committed against the victim. Because assault is not defined in terms of each

separate physical act, the assaults here were the same in fact.13 Thus, it was a
violation of double jeopardy to convict Villanueva-Gonzalez of two different

offenses, which were the same in fact.

       The State argues that Villanueva-Gonzalez's rights against double

jeopardy were not violated, but it applies the "unit of prosecution" test. This is the

wrong inquiry. As our supreme court recognized in State v. Adel. the "same

evidence" test, not the "unit of prosecution" test, applies "to a situation where a

defendant has multiple convictions for violating several statutory provisions."14
The "unit of prosecution" test is appropriate only where a defendant is "convicted

for violating one statute multiple times."15 Here, though Villanueva-Gonzalez was
charged with two counts ofsecond degree assault, the jury convicted him ofone
count of fourth degree assault and one count of second degree assault. Thus,
the appropriate test to determinewhether these convictions violated double

jeopardy is the "same evidence" test, not the "unit of prosecution" test.
Consequently, the State's argument is not supported by controlling law.

       The State also argues that Villanueva-Gonzalez's actions of grabbing

M.G.'s throat and head butting her constituted two separate assaults in fact. The



       13 Id,
       14 Adel. 136 Wn.2d at 633 (some emphasis added).

       15 ]d; see United States v. McLaughlin. 164 F.3d 1, 8 (D.C. Cir. 1998)
(noting that in "unit of prosecution" cases, the Blockburger test is not used).
No. 69864-8-1/6



State improperly relies on Tili to support this argument. In Jjli, the court upheld
the defendant's convictions for three counts of rape. In doing so, it rejected Tili's

argument that"if he can be charged and convicted for three counts offirst-degree
rape based on three separate penetrations, then a defendant could also be
charged and convicted for every punch thrown in a fistfight without violating
double jeopardy."16 As noted above, the supreme court in Jjji discussed how
assault, unlike rape, is not defined by every individual physical act.17 Thus, the
State's citation to IE rather than buttressing its argument, demonstrates why
Villanueva-Gonzalez's conviction violated double jeopardy.

       Finally, the State submitted a Statement of Additional Authorities, citing
State v. Nvsta.18 There, this court concluded that Nysta's convictions for second
degree rape and felony harassment violated the prohibition against double
jeopardy.19 That case is unhelpful. The charges here were for second and fourth
degree assault, which fail to satisfy the same evidence test that we discussed in
this opinion.

       When a conviction violates double jeopardy principles, we must reverse

and remand a sentence that contains convictions for the same offense with




        16Iili, 139Wn.2d at 116-17.

        17 id,
        18168 Wn. App. 30, 275 P.3d 1162 (2012).

        19 Id. at 47-48.
No. 69864-8-1/7



instructions to vacate the lesser punished crime.20 Here, the lesser punished
crime was the fourth degree assault offense. Thus, the trial court should vacate

the fourth degree assault conviction

      We reverse and remand with instructions to vacate only the fourth degree

assault conviction. The second degree assault conviction remains undisturbed.



                                                         Oot.'J.
WE CONCUR:




                                                      21TVV*




       20 See, e.g.. State v. Schwab. 163 Wn.2d 664, 675, 185 P.3d 1151 (2008)
(noting with approval the holding of this court in a prior case where we "vacated
the lesser conviction where convictions for both first degree manslaughter and
second degree felony murder violated double jeopardy").
