                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      February 14, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    STATE OF WASHINGTON,                                           No. 48541-9-II

                               Respondent,

         v.

    JOSEPH JOHN BAZA,                                        UNPUBLISHED OPINION

                               Appellant.

        JOHANSON, J. — Joseph J. Baza appeals his sentences for second degree assault, felony

harassment, and felony violation of a no-contact order (VNCO). Baza argues that the sentencing

court erroneously found that his crimes did not constitute the same criminal conduct under former

RCW 9.94A.589(1)(a) (2002) and improperly applied double jeopardy analysis. Because the

sentencing court properly found that Baza’s crimes were not the same criminal conduct, we affirm

Baza’s sentences.

                                             FACTS

                                    I. BACKGROUND FACTS1

        In July 2015, a witness called 911 after overhearing a man inside a hotel room threaten to

kill someone. Police reported to the hotel, spoke to the witness, and walked upstairs to the hotel

room. They heard struggling and muffled screaming from the room and kicked in the door. Inside,


1
 These facts are taken from the police report. In his guilty plea, Baza agreed that the sentencing
court could review the police report to establish a factual basis for his plea.
No. 48541-9-II


the police saw the victim lying on the floor, bleeding profusely from her mouth, with Baza standing

over her.

         Police arrested Baza, against whom the victim had a no-contact order. The victim said that

earlier in the evening, she and Baza had met at the victim’s hotel room, and the two had visited

Baza’s house and two bars. Baza became violent when they returned to the hotel room. Baza

repeatedly hit the victim’s face and kicked her stomach, side, and back. The victim stated that

Baza was trying to kill her inside the hotel room. While Baza strangled the victim, he said, “‘You

will die.’” Clerk’s Papers (CP) at 8. Police believed that the victim had lost consciousness around

the time that they entered the room.

                                 II. GUILTY PLEA AND SENTENCING

         Baza entered an Alford2 plea for second degree assault, felony VNCO, and felony

harassment.3 The State asserted that these crimes did not encompass the same criminal conduct,

although it relied upon State v. Mandanas’s double jeopardy analysis. CP at 29-30 (citing 163

Wn. App. 712, 262 P.3d 522 (2011)).

         At the November 2015 sentencing hearing, the State argued that each crime that Baza had

committed required a distinct criminal intent. Baza argued that his crimes involved the same

criminal intent, so that they were the same criminal conduct. The sentencing court said that

Mandanas was “informative as to the issues” in Baza’s case and discussed the double jeopardy

holding. Report of Proceedings (RP) at 19. But the sentencing court ruled, “And for the reasons



2
    North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
3
  Each conviction was also subject to a domestic violence enhancement, which is not relevant to
this appeal.

                                                  2
No. 48541-9-II


set forth by the prosecution, I’m not able to find that the individual counts represent same criminal

conduct; therefore, they’re not going to be treated as the same criminal conduct.” RP at 21. The

sentencing court also explained that it “underst[ood]” that Baza was arguing same criminal

conduct, not merger. RP at 24. The sentencing court stated, “I guess what I’m saying is, having

applied what’s indicated in Mandanas with the facts in Mandanas and comparing those facts to

the facts in this case, I see that as being distinguishing.”4 RP at 24. The sentencing court declined

to find that any of the offenses constituted the same criminal conduct.

                                            ANALYSIS

                               I. NOT THE SAME CRIMINAL CONDUCT

         Baza claims that under an objective intent analysis, the same criminal intent underlies each

crime and thus the sentencing court erred when it found that the crimes were not the same criminal

conduct.5 In response, the State relies upon State v. Chenoweth’s6 statutory intent analysis and

asserts that Baza’s crimes each involved distinct criminal intents. We agree with the State.

                                        A. LEGAL PRINCIPLES

         Absent an abuse of discretion or misapplication of the law, we do not disturb the sentencing

court’s determination of same criminal conduct. Chenoweth, 185 Wn.2d at 220-21. Under this



4
  In particular, the sentencing court referenced the portion of Mandanas in which the appellate
court noted that its original, preremand Mandanas opinion had addressed whether the offenses
constituted the same criminal conduct. RP at 23 (citing Mandanas, 163 Wn. App. at 715)).
5
  Baza requests that in light of this alleged error, we remand for the sentencing court to assess
“concurrent rather than consecutive” sentences. Br. of Appellant at 1. Baza overlooks that the
sentencing court did order concurrent sentences. The appropriate remedy, if we found error, would
be to remand for Baza’s sentences to be recalculated pursuant to a lower offender score.
6
    185 Wn.2d 218, 370 P.3d 6 (2016).

                                                  3
No. 48541-9-II


standard, if the record supports only one conclusion regarding whether crimes constitute the same

criminal conduct, the sentencing court abuses its discretion in arriving at a contrary result. State

v. Graciano, 176 Wn.2d 531, 537-38, 295 P.3d 219 (2013). But if the record adequately supports

either conclusion, the matter is within the sentencing court’s discretion. Graciano, 176 Wn.2d at

538.

       A “same criminal conduct” determination affects the standard range sentence by altering

the offender score. See former RCW 9.94A.589(1)(a). If a person is convicted of multiple current

offenses, generally the sentencing court calculates all other current and prior convictions as prior

convictions for the purpose of the offender score. Former RCW 9.94A.589(1)(a). But if the

sentencing court finds that some current offenses are the “same criminal conduct,” those current

offenses are counted as one crime. Former RCW 9.94A.589(1)(a). “‘Same criminal conduct’”

means “crimes that require the same criminal intent, are committed at the same time and place,

and involve the same victim.” Former RCW 9.94A.589(1)(a).

       We first look to the underlying statutes to determine whether the intents of each statute, if

any, are the same or different for each crime. Chenoweth, 185 Wn.2d at 223. If the intents differ,

the current convictions are not the same criminal conduct. Chenoweth, 185 Wn.2d at 223; former

RCW 9.94A.589(1)(a).

       The burden is on the defendant to show that crimes constitute the same criminal conduct.

Graciano, 176 Wn.2d at 538. We construe former RCW 9.94A.589(1) narrowly to disallow most

claims that multiple offenses constitute the same criminal act. Graciano, 176 Wn.2d at 540

(quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997)).




                                                 4
No. 48541-9-II


                                      B. STATUTORY INTENT

       Baza argues that we should disregard Chenoweth’s focus on statutory intent and apply the

objective intent analysis used in earlier cases.7 Baza argues that Chenoweth involved uniquely

distinct and heinous crimes (incest and child rape). But Chenoweth does not confine its holding

to incest and child rape, and Baza’s alleged distinction is not a basis to disregard Supreme Court

precedent.8 We agree with the State that Chenoweth’s analysis applies here.

       Under Chenoweth, the State argues that each crime involved a distinct statutory intent so

that Baza did not have the same criminal intent and the crimes do not encompass the same criminal

conduct. We agree.

1.     APPLICABLE LAW

       Following Chenoweth, we first look to whether the statutory intent is the same or different

for each count. 185 Wn.2d at 223. Under RCW 26.50.110(1)(a), it is a violation of a court order

if “the respondent or person to be restrained knows of the order” and violates a provision.

       “A person is guilty of harassment if” “[w]ithout lawful authority, the person knowingly

threatens” immediate or future bodily injury to another. RCW 9A.46.020(1)(a).

       “A person is guilty of assault in the second degree if he or she, under circumstances not

amounting to assault in the first degree” “[a]ssaults another by strangulation or suffocation.” RCW



7
 The sentencing court here did not have the benefit of Chenoweth, which was decided four months
after Baza’s sentencing hearing.
8
  Baza argues also that it would be “absurd” to apply Chenoweth’s analysis rather than the objective
intent analysis because to do so would effectively mean that only defendants who have multiple
counts of the same crime could successfully argue same criminal intent. Reply Br. of Appellant
at 1. This argument is not a proper basis for this court to ignore the Supreme Court’s opinion in
Chenoweth. Because this court must follow Chenoweth’s statutory intent analysis, we address
Baza’s objective intent analysis argument no further.
                                                  5
No. 48541-9-II


9A.36.021(1)(g). Under this statute, a “person is guilty of the crime of assault in the second degree

by strangulation where that person intentionally ‘[a]ssaults another by strangulation.’” State v.

Reed, 168 Wn. App. 553, 574, 278 P.3d 203 (2012) (quoting RCW 9A.36.021(1)(g)).

2.     FELONY VNCO COMPARED TO FELONY HARASSMENT AND SECOND DEGREE ASSAULT

       We first compare the statutory intents for felony VNCO and felony harassment. The felony

VNCO statute requires that Baza “know[] of the order” and violate the order.                   RCW

26.50.110(1)(a). In contrast, harassment requires that a person “knowingly threaten” another.

RCW 9A.46.020(1)(a). Knowingly violating an order is distinct from knowingly threatening

someone. Thus, committing a felony VNCO is not the same criminal conduct as committing a

felony harassment.

       Next, we determine whether a felony VNCO involves the same statutory intent as a second

degree assault. To knowingly violate an order is distinct from intentionally assaulting someone,

so that committing a felony VNCO is not the same criminal conduct as committing a second degree

assault. RCW 26.50.110(1)(a); Reed, 168 Wn. App. at 574 (quoting RCW 9A.36.021(1)(g)).

       We hold that Baza’s felony VNCO conviction involves a statutory intent distinct from the

intents required for his felony harassment and second degree assault convictions. We affirm the

sentencing court’s conclusion that the felony VNCO conviction was not the same criminal conduct

and hold that the court properly counted the felony VNCO as a separate offense when it calculated

Baza’s offender score.

3.     FELONY HARASSMENT AND SECOND DEGREE ASSAULT

       We now turn to whether felony harassment and second degree assault involve distinct

intents. Harassment required that Baza “knowingly threaten” his victim. RCW 9A.46.020(1)(a).


                                                 6
No. 48541-9-II


As pleaded to in this case, second degree assault requires that a person intentionally assault

another. Reed, 168 Wn. App. at 574 (quoting RCW 9A.36.021(1)(g)); see 11 WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 35.19.01, at 511 (4th ed.

2016). To knowingly threaten someone is a distinct intent from intentionally assaulting someone,

so that these crimes do not involve the same criminal intent.

       Because we hold that felony harassment and second degree assault involve distinct criminal

intents, we affirm the sentencing court’s finding that the felony harassment and second degree

assault were not the same criminal conduct. Accordingly, we hold that the sentencing court

properly counted these crimes separately when it calculated Baza’s offender score.

                        II. NOT IMPROPER DOUBLE JEOPARDY ANALYSIS

       Next, Baza argues that even if we reject his argument that his crimes were the same criminal

conduct, we should remand because the sentencing court “exclusively” applied a double jeopardy

analysis, rather than a same criminal conduct analysis. Br. of Appellant at 11. We decline to

remand.

       Here, the record contradicts Baza’s assertion that the sentencing court exclusively

considered double jeopardy analysis. Although the State relied upon double jeopardy analysis,

including Mandanas, in its sentencing brief, the State argued that Baza’s crimes involved distinct

criminal intents at the sentencing hearing. The sentencing court ruled, “And for the reasons set

forth by the prosecution, I’m not able to find that the individual counts represent same criminal

conduct; therefore, they’re not going to be treated as the same criminal conduct.” RP at 21. The

sentencing court “underst[ood]” that Baza was arguing same criminal conduct, not merger. RP at

24. After noting that the original Mandanas opinion analyzed same criminal conduct, the


                                                7
No. 48541-9-II


sentencing court stated, “I guess what I’m saying is, having applied what’s indicated in Mandanas

with the facts in Mandanas and comparing those facts to the facts in this case, I see that as being

distinguishing.” RP at 24 (emphasis added).

        From these facts, it is clear that the sentencing court did not exclusively consider double

jeopardy analysis. Thus, we decline to remand for a new sentencing hearing.

        We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     JOHANSON, J.
 We concur:



 WORSWICK, P.J.




 SUTTON, J.




                                                 8
