       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Personal Restraint       No. 78242-8-I
 of
                                               DIVISION ONE

 DUNG HOANG LE,                                UNPUBLISHED OPINION


                                Petitioner.    FILED: January21, 2020


       CHUN, J.   —   In 1993, a jury convicted Dung Hoang Le of first degree felony

murder and, in the alternative, second degree intentional murder. In this

personal restraint petition (PRP), Le argues that the trial court’s inclusion of the

alternative conviction violates his right to be free of double jeopardy. He

contends we should vacate his exceptional sentence and remand for

resentencing. While the State concedes the double jeopardy violation, it asserts

that we should not disturb Le’s exceptional sentence. We accept the State’s

concession and remand to the trial court to vacate the second degree intentional

murder conviction and to strike any reference to it in Le’s Judgment and

Sentence and the trial court’s Findings of Fact and Conclusions of Law on

Imposition of Exceptional Sentence (FFCL). But because the record clearly

indicates that the trial court would have imposed the same sentence even without

the alternative conviction, we decline to remand for resentencing.
 No. 78242-8-1/2


                                    I. BACKGROUND

           In 1993, a jury convicted Le of the murder of Mayme Lui.1 On the first

count,2 the jury convicted Le of first degree felony murder predicated on the

commission of burglary and robbery and, in the alternative, the lesser included

crime of intentional murder in the second degree.

           At sentencing, Le’s standard range was 261-347 months. The court,

however, imposed an exceptional sentence of 840 months. In the Judgment and

Sentence, the “Current Offense(s)” section stated that the count I crimes were

“Murder 1st Degree and murder 2° (intentional).” The “Exceptional Sentence”

section provided that “[s]ubstantial and compelling reasons exist which justify a

sentence above/below the standard range for Count(s) I (murder 1°).” Finally,

the Judgment and Sentence provided that the court sentenced Le to 840 months

on count I and 17 months (which was within the standard range) on count 2, with

the sentences to run concurrently.

       The court entered written findings in support of the exceptional sentence.

The second finding stated, “The murder victim, Mayme Lui, was particularly

vulnerable and incapable of resistance to the defendant’s attack, and the

defendant knew or should have known that fact.” It further stated that “[t]he

attack on Mayme Lui manifested deliberate cruelty and gratuitous violence to the

victim.” The second conclusion of law provided, “Particular vulnerability of the


       1 We discussed the underlying facts of Le’s 1992 crime in the unpublished
opinion from his direct appeal. State v. Le, noted at 82 Wn. App. 1010, 1996 WL
312492 (Le I).
       2 This PRP does not raise any issues regarding count 2.




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 No. 78242-8-1/3


 victim is an aggravating factor for sentencing purposes under

 RCW 9.94A.390(2)(b). Deliberate cruelty to the victim is an aggravating factor

for sentencing purposes under RCW 9.94A.390(2)(a).’

                                    Il. ANALYSIS

    A. Double Jeopardy

       Le argues that including his alternative conviction for second degree

intentional murder in his Judgment and Sentence violates his right to be free of

double jeopardy. The double jeopardy provisions in both our federal and state

constitutions prevent the justice system from punishing a person twice for the

same offense. State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010) (citing

U.S. CONST. amend. V; WASH. CONST. art. I,    § 9). Washington case law is clear
that while the State may charge and try a defendant on alternative charges,

“a defendant convicted of alternative charges may be judged and sentenced on

one only.” State v. Truiillo, 112 Wn. App. 390, 411, 49 P.3d 935 (2002).

“[W}here the jury returns a verdict of guilty on each alternative charge, the court

should enter a judgment on the greater offense only and sentence the defendant

on that charge without reference to the verdict on the lesser offense.” Trujillo,

112 Wn. App. at4ll.

      The State concedes that entering judgment and sentencing Le for both

first degree felony murder and second degree intentional murder violated double

jeopardy. We accept the State’s concession and remand to the trial court to

vacate the second degree intentional murder conviction and strike any reference

to it in Le’s Judgment and Sentence and the FFCL.


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No. 78242-8-1/4


    B. Resentencing

       Le next argues that the double jeopardy violation requires resentencing

because the trial court based its exceptional sentence, at least in part, on the

intentional murder conviction. The State claims in response that the record

clearly shows that the trial court would have imposed the same sentence even

without the double jeopardy violation. We agree with the State.

       Generally, we must remand for resentencing when the trial court places

significant weight on an inappropriate factor when imposing an exceptional

sentence, or where some factors are inappropriate and the exceptional sentence

significantly deviates from the standard range. State v. Prvor, 115 Wn.2d 445,

456, 799 P.2d 244 (1990), overruled on other grounds by State v. Ritchie, 126

Wn.2d 388, 395, 894 P.2d 1308 (1995). But resentencing is not necessary if the

record clearly indicates that the sentencing court would have imposed the same

sentence anyway. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).

For instance, courts have declined to remand for resentencing where an

incorrectly calculated offender score did not affect the standard range. State v.

Kilgore, 141 Wn. App. 817, 824-25, 172 P.3d 373 (2007) (where appellate court

reversed two of seven convictions, trial court did not err by not resentencing on

the affirmed convictions). Courts also need not remand for resentencing of an

exceptional sentence “where the reviewing court overturns one or more

aggravating factors but is satisfied that the trial court would have imposed the

same sentence based upon a factor or factors that are upheld.” State v. Saltz,

137 Wn. App. 576, 585, 154 P.3d 282 (2007) (quoting State v. Hughes, 154


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 No. 78242-8-115


Wn.2d 118, 134, 110 P.3d 192 (2005), abrogated on other grounds by

Washington v. Recuenco, 548 U.S. 12, 126 S. Ct. 2546, 165 L. Ed. 2d 466

 (2006)) (though trial court improperly considered the “too lenient” factor, the

appellate court did not remand for resentencing because the record indicated

that the trial court found the rapid recidivism factor to be substantial and

compelling when imposing the exceptional sentence); see ~J~2 State v.

Wakefield, 130 Wn.2d 464, 478, 925 P.2d 183 (1996) (declining to remand for

resentencing because “even if the trial court initially considered the possibility for

early release when imposing the exceptional sentence, it would in all probability

impose the same sentence on remand given the circumstances of this case”).

       Here, while the trial court noted in both the Judgment and Sentence and

FFCL that the jury convicted Le of first degree felony murder and second degree

intentional murder, the record clearly indicates that the court would have imposed

the same sentence had it not included Le’s intentional murder conviction in the

Judgment and Sentence. In the FFCL, the court never discussed the intentional

murder conviction as a justification for the exceptional sentence.3 Instead, the

FFCL provides that the aggravating factors of particular vulnerability of the victim

and deliberate cruelty supported the exceptional sentence. See j~ I, 1996 WL

312492, at *2 (‘The trial court’s reasons for the imposition of the exceptional


        ~ Le claims that “the court focused on the intentional nature of the murder in
discussing the deliberate cruelty aggravator.” He claims this shows that the court’s
emphasis was on the intentional murder conviction. But the facts the court addressed in
imposing the exceptional sentence are the facts of the murder. And Le cites no authority
to support the proposition that, in sentencing for felony murder, the trial court was
prohibited from considering these circumstances beyond the elements of the particular
crime.

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 sentence were (1) the particular vulnerability of the victim and (2) deliberate

 cruelty to the victim.”). The majority of the factual findings focus on the facts that

 demonstrated the particular vulnerability of Lui, and the deliberate cruelty of Le’s

 crime. These factors alone may justify an exceptional sentence. Because

vacating Le’s alternative conviction does not change these underlying facts, the

court would have considered them as aggravating factors when imposing an

exceptional sentence even if Le’s intentional murder conviction had not been in

his Judgment and Sentence.4

        For these reasons, we decline to remand for resentencing.

        Granted in part, denied in part.



                                                                   :4
WE CONCUR:




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        lIP
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        ~ Moreover, removing the improper intentional murder conviction does not affect
the standard range that Le faced at sentencing. Additionally, in Le’s Judgment and
Sentence, the trial court sentenced Le to 840 months for felony murder but imposed a
standard range sentence for the intentional murder conviction.

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