                                                                            FILED 

                                                                          JAN 7, 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. 31061-2-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JONATHON VILLEGAS,                            )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, C.J. -    Jonathon Villegas challenges the exceptional sentence imposed

by the trial court after his guilty plea to a charge of second degree assault while armed

with a deadly weapon. He argues that his guilty plea did not waive his right to a have a

jury determine the existence of the gang aggravating factor. We disagree and afflrm.

                                          FACTS

       Mr. Villegas shot Jaime Tovar. Mr. Villegas is a member of the Florencia 13

gang, a Surefio gang. Mr. Tovar is a member ofa rival gang, the Rollin 60's Crips.

Witnesses reported that Mr. Villegas shouted "Florencia" just before shooting Mr. Tovar.

       The State originally charged Mr. Villegas with drive-by shooting, assault in the

flrst degree with a flrearm enhancement, and the gang aggravator. However, after

negotiations the parties agreed that Mr. Villegas would plead guilty to second degree
No. 31061-2-III
State v. Villegas


assault while armed with a firearm and the gang aggravator codified at RCW

9.94A.535(3)(aa). In his written statement on the plea of guilty, Mr. Villegas

acknowledged that he was pleading guilty to the gang aggravator, acknowledged that the

State would seek an exceptional sentence, and acknowledged that the plea left him free to

still seek a standard range sentence.

       The plea also contained a factual admission that Mr. Villegas shot his victim in the

leg. However, it omitted any facts to support a finding that the crime was committed

with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or

other advantage to or for a criminal street gang. Recognizing this omission, the

prosecutor during the hearing on the plea of guilty orally supplemented the written

statement with facts to support the gang aggravator. Mr. Villegas then acceded to the

additional facts as recounted by the prosecutor.

       Mr. Villegas's counsel then remarked that she thought the facts were a bit different

from how the prosecutor recounted them, but did not specifY how they were different and

said that she would save the issue for sentencing. Despite the remarks by his counsel,

Mr. Villegas reaffirmed that he was accepting the facts as told by the prosecutor for

purposes of his statement on the plea of gUilty.

       The sentencing hearing occurred on a later date. There Mr. Villegas's counsel

tried to argue that her client did not plead guilty to the gang aggravator and, thus, there

was no authority for an exceptional sentence. After a lengthy discussion with the court,

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No. 31061-2-III
State v. Villegas


defense counsel agreed that Mr. Villegas entered a plea to the gang aggravating factor as

part of the entire plea deal offered by the State. The court thereafter sentenced Mr.

Villegas to an exceptional term of 84 months. Mr. Villegas then timely appealed to this

court.

                                          ANALYSIS

         Mr. Villegas raises three issues for this court to review. First, he renews his

argument that he did not plead guilty to the gang aggravator and did not plead guilty to

facts sufficient to support the aggravator. Second, he argues that even if he did plead

guilty to the aggravator that the jury trial waiver was not sufficiently specific to constitute

a knowing, voluntary, and intelligent wavier with regard to the gang aggravator. Third,

he argues that the exceptional sentence is void because the court failed to enter necessary

findings. We review each of these issues in turn.

         Plea Statement. With regard to the first issue, we summarily reject his argument.

Not only did counsel agree that Mr. Villegas's guilty plea had encompassed the

aggravating factor, we also conclude that his written statement on plea of guilty was

sufficiently specific to encompass a guilty plea on the gang aggravator. Paragraph 5(e)

contains Mr. Villegas's acknowledgement that he was waiving his right to be presumed

innocent and to have each element of the "charge" proved beyond a reasonable doubt.

Paragraph 4(b) in tum defines the "charge" as including the aggravator and lists the

elements of the aggravator. His argument is without merit.

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No. 31061-2-111
State v. Villegas


       Jury Waiver. With regard to the second issue, we conclude that Mr. Villegas's

blanket waiver of his right to a jury trial applied to all issues. Mr. Villegas cites no

authority, and we can find none, to support his position that his statement on plea of

guilty needed to have a separate section devoted to specifically waiving his rights with

regard to the charged aggravating circumstance. When charged, an aggravating factor is

similar to an element and cannot be ignored when pleading gUilty. The right to plead

guilty is a right to plead guilty as charged. State v. Bowerman, 115 Wn.2d 794, 799, 802

P.2d 116 (1990). Mr. Villegas had no ability to plead guilty to the assault count and

deadly weapon allegation without also pleading guilty to the charged aggravating factor.

Id. Ifhis plea had failed to address the aggravating factor or had failed to provide a

factual basis for it, the plea would have been invalid and the parties returned to their

initial position prior to the attempted plea resolution.

       The waiver ofjury trial made in conjunction with the guilty plea necessarily

included all aspects of the charge-the offense, the enhancement, and the aggravating

factor. They are treated as a whole rather than as separate components. There was no

need for the jury waiver to address each component of the charge.

       Exceptional Sentence. Finally, Mr. Villegas argues that this court must vacate his

exceptional sentence because the sentencing court failed to enter necessary findings.

Specifically, he argues that the court did not find that the exceptional sentence is

consistent with and in furtherance of the interests ofjustice and the purposes of the

                                               4

No. 31061-2-111
State v. Villegas


Sentencing Reform Act of 1981, chapter 9.94A RCW, as required by RCW 9.94A.535.

We disagree.

       The judgment and sentence expressly states that substantial and compelling

reasons exist to impose an exceptional sentence. In addition, while not using those magic

words, the court explained its reasoning when it chose to impose the exceptional

sentence:

               And I'm going to impose the sentence of 84 months as
       recommended by the prosecutor. I think it's fair. It is outside the standard
       range, but it is not outside the authority of the Court. It is right in the
       middle of what I think is an exceptional sentence, and that I think fits in this
       particular factual pattern.
               These drive-by shootings, Mr. Villegas, I want you to know just
       scare the community to death. Every crime that is charged in Washington
       has an allegation that indicates it's against the peace and the dignity of the
       community, and I don't know one crime that's worse than these drive-by
       shootings. It scares everyone, and it's extremely dangerous, and I think
       that this is a fair recommendation. I don't think it's a harsh one under the
       circumstances. Ijust think it's a good, firm, fair sentence. And so I'm
       going to accept that recommendation. And technically what it is a nine­
       month sentence, a 36 months enhancement, and 39 months exceptional
       sentence, and it's based upon the agreed aggravating factors that were
       addressed at sentencing--or at the change of plea, and, of course,
       reenforced here today by testimony.

Report of Proceedings (July 12,2012) at 36-37.

       On this record, we have no trouble concluding that the court found that substantial

and compelling reasons existed to impose an exceptional sentence.

       Mr. Villegas also argues that the exceptional sentence must be vacated because the

court did not find that the gang aggravator had been proved beyond a reasonable doubt.

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No. 31061-2-111
State v. Villegas


Facts supporting an aggravating factor under RCW 9.94A.535(3) have to be found

according to the procedures set forth in RCW 9.94A.537. RCW 9.94A.535(3). RCW

9.94A.537(3) allows the facts to be determined in anyone of three ways: proven to ajury

beyond a reasonable doubt, found by a judge beyond a reasonable doubt ifjury is waived,

or if the "defendant stipulates to the aggravating facts." Here, the defendant pleaded

guilty to the aggravating factor. We believe that is the equivalent of a stipulation to the

aggravating facts. Accordingly, the sentencing court was not required to enter its own

finding that the aggravating facts had been proved beyond a reasonable doubt.

       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.



                                                         Korsmo, C.J.

WE CONCUR:



       Brown, J.                                         Siddoway, .




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