                                                                                                         FILED
                                                                                             COURT OF APPEALS
                                                                                                                   II
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON "
                                                                                           2015 APR 28          AM 8: 37
                                                 DIVISION II
                                                                                            STATE .      F`     SI•§INGTON
 STATE OF WASHINGTON,                                                         No. 45276- 6 -11
                                                                                                 k,

                                      Respondent,


          v.




 DENISE LASHON LARKINS,                                                 UNPUBLISHED OPINION


                                      Appellant.


         MELNICK, J. -        Denise Larkins appeals from her jury trial conviction for felony murder in

the second degree. Larkins argues that ( 1) the felony murder statute should not apply to an assault

that   causes   death, ( 2)    the felony murder statute violates constitutional guarantees of equal

protection and    fundamental fairness, (      3) the trial court erred by declining to give a self -defense

instruction, (4) the trial court improperly instructed the jury on reasonable doubt, and ( 5) the trial

court violated Larkins' s double jeopardy protections when it refused to vacate her conviction for

the lesser included offense of manslaughter. We reject all of Larkins' s claims and affirm the trial


court. However, we remand to the trial court to correct a scrivener' s error on Larkins' s judgment

and sentence.



                                                        FACTS


          On December 16, 2011, Larkins was a passenger in a large sport utility vehicle ( SUV)

driven by her friend Michelle Johnson. The two women picked up Johnson' s daughter and set out

toward the daughter' s        paternal grandmother' s    house.   On the way, Larkins and Johnson began to

argue.



          When Larkins and Johnson arrived at their destination, Johnson exited the SUV and

Larkins   moved    to the driver'   s seat.   Larkins   attempted   to drive away, but Johnson    held   on   to the
45276 -6 -II



vehicle because her belongings were still in the car. Larkins stopped, exited the vehicle, and began


arguing   with      Johnson        again.    Johnson      struck     Larkins in the head twice.       Johnson retrieved her


belongings from the car and began walking away.

         Larkins called 911 to report that she had been hit in the head and was bleeding. While still

on the phone, Larkins drove the SUV alongside Johnson and the two women continued to yell at

each other. Larkins told the 911 operator that she feared Johnson and believed that Johnson had

retrieved a gun       from the house.'            Larkins also told the 911 operator, and later detectives, that she


had   at one point seen            Johnson       digging    in her    purse.     The operator told Larkins not to follow


Johnson..


          Larkins continued following Johnson to a nearby intersection. As soon as Johnson entered

the intersection, Larkins " gunned" the engine, turned sharply, and ran over Johnson with the SUV.

IV Report      of   Proceedings ( RP)        at   431. Johnson died from blunt force trauma to the head. Larkins


saw Johnson lying in the road in her rear -view mirror, but believed that Johnson was attempting

to   use a "   ploy" to "    set   her up to      maybe come         back."    V RP   at   571.   Larkins immediately drove

away.


          The    police contacted           Larkins   soon afterward.          Larkins told the police that she felt unsafe


because    she      believed Johnson'        s   family    was " [   i] nvolved in   gangs and weapons."        IV RP at 498.


Larkins said she was afraid of the " assaultive and argumentative behavior" Johnson had exhibited

throughout their friendship. V RP at 594. Larkins also said she had post -traumatic stress disorder
 PTSD)     and      suffered       from anxiety       and   panic     attacks.    Larkins denied running over Johnson.

Larkins    said     that   she   drove away because          she     feared Johnson'   s " gangster ass   kid   with guns."   V




1 The record does not indicate whether a gun was found on Johnson' s person.


                                                                      2
45276 -6 -II



RP   at   597. Larkins appeared surprised when the police informed her that Johnson died from the


impact.


                                             PROCEDURAL HISTORY


           The State charged Larkins in two separate counts with intentional murder in the second

degree2 (
            count   I),   and felony murder in the second degree predicated on an assault in the first,

second, or third degree3 ( count II).


           Larkins' s jury trial commenced and she presented a defense of diminished capacity,

offering evidence that she suffered from complex PTSD, depression, anxiety disorders, and

substance abuse       disorders. As    a result of   her PTSD, Larkins     was " always on edge,"     prone to react



impulsively     and   emotionally,     and    had   an   impaired ability to   appraise   danger.    VI RP at 712.


Larkins     also " experienced psychotic symptoms            from time to time." VI RP      at   704. Larkins had a


low intelligence quotient ( IQ),       which could plausibly lead her to believe that hitting a person with

a car would not hurt him or her very much. An expert testified that Larkins was " in a total panic

with disorganized fragmented thinking" at the time she killed Johnson, which impaired her ability

to form a criminal intent. VI RP at 765.


           At the close of trial, Larkins offered a self -defense instruction. But the trial court refused


to give the instruction because no reasonable person would have acted as Larkins did.

           The jury returned a guilty verdict on count II, as well as the lesser included offense of

manslaughter      in the    second   degree   under count    I.   At sentencing, Larkins asked the trial court to

vacate the manslaughter conviction. The trial court stated that it " would be unjust" to vacate the

manslaughter conviction outright. VII RP at 976. Instead the trial court merged the manslaughter




2 RCW 9A.32. 050( 1)( a).

3 RCW 9A.32. 050( 1)( b).


                                                             3
45276 -6 -II



conviction with the felony murder conviction, entering judgment only on the felony murder

conviction. Because Larkins' s judgment and sentence was preprinted with both convictions, the


trial court struck out references to the manslaughter conviction. The trial court imposed a standard


range sentence of 220 months on the felony murder charge. Larkins appeals.

                                                        ANALYSIS


I.        FELONY MURDER STATUTE


          Larkins argues that under the rule of lenity, the felony murder statute should not be

interpreted to apply to an assault that causes the victim' s death. We recently addressed and rejected

an    identical   argument      in State    v.   McDaniel, No. 44972 -2, 2015 WL 686800,         at *   2 -3 ( Wash. Ct.


App.    Feb. 18, 2015).        In McDaniel, we held that the felony murder statute was not ambiguous, the

plain language of the statute clearly includes assault causing death as a predicate offense, and that

the   rule of     lenity does      not   apply.    2015 WL 686800,   at *   2 -3.   Division One of this court also


rejected an argument identical to Larkins' s in State v. Gordon, 153 Wn. App. 516, 527 -29, 223

P. 3d 519 ( 2009),      rev'   d   on other grounds,     172 Wn.2d 671, 260 P. 3d 884 ( 2011).          Following our

precedent in McDaniel and Gordon, we reject Larkins' s argument.


II.       EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS


          Larkins argues that her prosecution for felony murder predicated on assault violated the

equal protection clause of the state and federal constitutions, as well as the due process guaranty

of fundamental fairness, because the prosecutor had unfettered discretion to charge her with two

crimes for the same conduct. We disagree.


          To the extent Larkins argues that the murder statute violates equal protection because it

allows the prosecutor to arbitrarily charge felony murder rather than intentional murder when a

person assaults another that results in death, we rejected that exact argument in State v. Armstrong,



                                                              4
45276 -6 -II




143 Wn. App. 333, 339 -44, 178 P. 3d 1048 ( 2008). The State charged Larkins with both intentional


murder in the second degree and felony murder in the second degree. In Armstrong, the defendant

was charged with intentional murder in the second degree and felony murder in the second degree

predicated on     felony   of second   degree    assault.    143 Wn.        App.   at   336.   The Armstrong court held

that because the " intent to commit the assault ( which proximately causes death) and the intent to

cause a   death   are   different, requiring different       proof,"      the two statutes criminalizing conduct as


intentional murder in the second degree and felony murder in the second degree do not violate

equal protection.       143 Wn.   App.   at   341 -42 ( boldface      omitted) ( emphasis omitted).       In accordance


with Armstrong, 143 Wn. App. at 339 -44, we hold that the prosecutor' s choice to charge a

defendant with intentional murder in the second degree, felony murder in the second degree, or

both, does not violate equal protection.


          To the extent Larkins argues that where a person commits an assault which results in death,

the prosecution' s unfettered discretion to choose between a charge of felony murder in the second

degree or manslaughter violates equal protection. We disagree.

          A.       Equal Protection


          Both the state and federal constitutions mandate that similarly situated persons receive like
                                                                      4
treatment      under   the law.   WASH. CONST.      art.   I, § 12;       U. S. CONST.,    amend. XIV.5 Our Supreme

Court has consistently construed the federal equal protection and state privileges and immunities




4 " No law shall be passed granting to any citizen, class of citizens, or corporation other than
municipal, privileges or immunities which upon the same terms shall not equally belong to all
citizens, or corporations."




5 " No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of
the laws."



                                                             5
45276 -6 -II




clauses identically and considered claims arising under them to be one issue. State v. Smith, 117

Wn.2d 263, 281, 814 P. 2d 652 ( 1991).


         The right to equal protection of the laws may be violated when two statutes criminalize the

same acts, but penalize them differently. State v. Leech, 114 Wn.2d 700, 711, 790 P. 2d 160 ( 1990).

However, "      there is no equal protection violation when a statutory scheme proscribes crimes that

 require proof of        different     elements. '      Armstrong, 143 Wn. App. at 338 ( quoting Leech, 114

Wn.2d    at    711). "    When the crimes have different elements, the prosecutor's discretion is not


arbitrary, but is constrained by which elements can be proved under the circumstances."

                 143 Wn.        App.         338.     Accordingly,                                       the crimes that the
Armstrong,                              at                                  we   consider   whether "




                                                                                           different                Leech, 114
prosecuting attorney has the discretion to               charge require proof of                       elements."




Wn.2d at 711.


         The elements of felony murder predicated on assault are different from the elements of

manslaughter.        RCW 9A.32. 050( 1)( b); RCW 9A.32. 060( 1)(                    a);   RCW 9A.32. 070( 1).       The felony

murder in the second degree statute provides:


         A    person     is guilty   of murder      in the   second    degree    when:...     He or she commits or

         attempts to commit any felony, including assault, other than those enumerated in
         RCW 9A. 32. 030( 1)(c), and, in the course of and in furtherance of such crime or in

         immediate flight therefrom, he or she, or another participant, causes the death of a
         person other than one of the participants.


RCW 9A.32. 050( 1)( b).           As an element of the crime, the State must prove the defendant committed

the   predicate    felony. Here, the State alleged assault in the first, second, or third degree as the

predicate     felonies. The       elements of assault        in the first degree,     as charged   here include: " A person


is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:.. .

Assaults another with a firearm or any deadly weapon or by any force or means likely to produce

great   bodily harm       or   death." RCW 9A. 36. 011( 1)(           a).   The elements of assault in the second degree,




                                                                  6
45276 -6 -II



as charged     here include: "   A person is guilty of assault in the second degree if he or she, under

circumstances not      amounting to          assault   in the first degree:...      Assaults another with a deadly

weapon."       RCW 9A.36. 021( 1)(     c).    And, the elements of assault in the third degree, as charged here

include: "   A person is guilty of assault in the third degree if he or she, under circumstances not

amounting to      assault   in the first     or second    degree:...       With criminal negligence, causes bodily

harm to another person by means of a weapon or other instrument or thing likely to produce bodily

harm." RCW 9A.36. 031( 1)( d).


         A person is guilty of manslaughter in the first degree when that person " recklessly causes

the death    of another person."       RCW 9A. 32. 060( 1)(        a).   And, a person is guilty of manslaughter in

the second degree when " with criminal negligence" that person causes the death of another person.

RCW 9A.32. 070( 1).


          The mental state required to prove felony murder predicated on assault is different from

the   mental state required      to   prove manslaughter.          We do not compare mental state elements in


isolation; rather we examine mental states as they necessarily relate to the defendant' s acts. State

v.   Gamble, 154 Wn.2d 457, 467, 114 P. 3d 646 ( 2005). None of the requisite mental state elements


of the predicate assaults charged here requires the State to prove Larkins caused the death of

another person with a reckless or criminally negligent state of mind as is required for manslaughter

convictions.      See RCW 9A.32. 060( 1)(          a) ( manslaughter       in .the first degree); RCW 9A.32. 070( 1)


 manslaughter in the second degree).


          Our    criminal code   defines the "     recklessness"         and " criminal negligence" mental states as



follows:


          A person is reckless or acts recklessly when he or she knows of and disregards a
          substantial risk that a wrongful act may occur and his or her disregard of such
          substantial risk is a gross deviation from conduct that a reasonable person would
          exercise in the same situation.



                                                               7
45276 -6 -II




          A person is criminally negligent or acts with criminal negligence when he or she
          fails to be aware of a substantial risk that a wrongfid act may occur and his or her
          failure to be aware of such substantial risk constitutes a gross deviation from the
          standard of care that a reasonable person would exercise in the same situation.


RCW 9A. 08. 010( 1)(         c), (   d) (   emphasis added).     In the context of manslaughter, the " wrongful act"


caused by a defendant' s actions is homicide. State v. Henderson, No. 90154 -6, 2015 WL 847427,

at *   5 ( Wash. Feb. 26, 2015); Gamble, 154 Wn.2d                     at   467. To obtain a manslaughter conviction,


the State must prove that the defendant ( 1) knew of and disregarded a substantial risk that a death

may     occur   or (   2) failed to be           aware    of a   substantial    risk   that   a     death may   occur.   RCW


9A. 32. 060( 1)(    a);   RCW 9A. 32. 070( 1).            On the contrary, to obtain a felony murder conviction,

predicated on assault, as charged here, the State was required to prove that the defendant ( 1) acted

with    intent, i. e., the    objective        or purpose,     to inflict great bodily harm, RCW 9A.36. 011( 1)( a)

 assault   in the first degree), (           2) assaulted another with a deadly weapon, RCW 9A.36. 021( 1)( c)

 assault   in the   second     degree),       or ( 3) failed to be aware of a substantial risk that bodily harm may

occur,   RCW 9A. 32. 031( 1)( d) ( assault in the third degree).


           Significantly, the assault statutes do not contemplate a risk of death as required by the

manslaughter statutes.               In fact, a felony murder in the second degree charge does not require the

State to prove any mental state element as to the resulting death itself, whereas manslaughter does

require proof of a mental state element vis -a -vis the resulting death. See Gamble, 154 Wn.2d at

468 -69;     RCW          9A.32. 060( 1)(      a) (   recklessness);   RCW       9A. 32. 070( 1) (     criminal   negligence).




Because these crimes do not have the same elements, the authority of the prosecuting attorney to



6 " A person acts with intent or intentionally when he or she acts with the objective or purpose to
accomplish a result          which constitutes a crime." RCW                9A.08. 010( 1)(   a).




                                                                   8
45276 -6 -II




charge Larkins with felony murder in the second degree predicated on assault as charged here

rather   than manslaughter        does        not   violate   equal   protection.   See Leech, 114 Wn.2d at 712;


Armstrong, 143 Wn. App. at 342.

         B.          Fundamental Fairness


         Larkins also argues that a prosecutor' s decision to charge either manslaughter or felony

murder for an assault resulting in death violated the guaranty of fundamental fairness inherent in

the due process clause of the Fourteenth Amendment article 1, section 3 of the Washington


Constitution because the effect is to impose different punishments for the same criminal conduct.


But as discussed above, the two crimes require different states of mind, and thus different proof.

Contrary to Larkins' s assertions, it is not only the prosecutor' s discretion that determines whether

a defendant will be punished for manslaughter or for felony murder, but the strength of the

prosecution' s proof and the jury' s judgment. Regardless of which offense the prosecutor charges,

he or she must still prove the elements of the crime beyond a reasonable doubt to a fact finder.

The felony murder statute does not result in arbitrary punishment, and Larkins fails to show that

the felony murder statute violates due process.

III.     SELF -DEFENSE


         Larkins argues that the trial court violated her right to present a defense when it refused to

instruct the    jury           defense.
                       on self -                Because no evidence supported her theory of self -defense, we

disagree.


         A defendant is entitled to have the jury instructed on self defense
                                                                     -       if there is some evidence

to   support   the   theory. State   v.   Walden, 131 Wn.2d 469, 473, 932 P. 2d 1237 ( 1997).             Self -defense


has three     elements: (   1) the defendant subjectively feared that she was in imminent danger of great

                       the defendant'         belief was objectively     reasonable, and ( 3)   the defendant
bodily harm, ( 2)                         s                                                                     exercised
45276 -6 -II




no more force than reasonably necessary. State v. Werner, 170 Wn.2d 333, 337 -38, 241 P. 3d 410

2010).        Self -defense involves both subjective and objective elements. State v. Read, 147 Wn.2d

238, 242 -43, 53 P. 3d 26 ( 2002). The subjective element considers the defendant' s acts " in light


of all   the facts    and circumstances           the defendant knew         when    the   act occurred."   Read, 147 Wn.2d


at   243.    The objective elements consider " what a reasonable person would have done if placed in

the defendant' s       situation."       Read, 147 Wn.2d at 243.


            The standard of review depends on the reason the trial court refused to grant the self -


defense instruction. State              v.   Walker, 136 Wn.2d 767, 771, 966 P. 2d 883 ( 1998).                  If the trial court


declines the self -defense instruction based on a factual dispute, we review its decision for abuse of

discretion. Walker, 136 Wn.2d at 771 -72. But if the trial court declines the self -defense instruction

based       on a   ruling   of   law,   we review     its decision de      novo.    Walker, 136 Wn.2d       at   772. Here, the


trial court refused to give a self -defense instruction because it found no reasonable person in

Larkins'      s shoes would        have      acted as she    did.   This ruling involves an issue of law we review de

novo. Read, 147 Wn.2d at 243.


             A defendant may only use as much force in self -defense as " what a reasonably prudent

person would          find necessary          under   the   conditions as    they    appeared   to the defendant."        Walden,


131 Wn.2d at 474. Deadly force may be used only if the defendant reasonably believes that he or

she   is threatened         with   death     or great personal      injury. Walden, 131 Wn.2d at 474.

             If placed in the situation Larkins faced, no reasonably prudent person would have believed

himself       or   herself to be in imminent danger                 of   death   or great personal   injury. Nor would any

reasonably prudent person have believed it necessary to strike Johnson with the automobile to

defend       against   the    perceived        danger in these        circumstances.       Although Larkins believed that


Johnson possessed a gun and had been digging in her purse while walking, Johnson was not




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45276 -6 -II




brandishing       a gun or    threatening Larkins       with a gun.         In fact, Larkins never saw Johnson with a


gun. Rather, Johnson was walking away from Larkins at the time Larkins ran over her. Larkins

also   believed that Johnson'        s   family   would       hurt her.     But Johnson' s family members were not

present at     the   scene.   Any threat that Johnson' s family posed to Larkins was not imminent and

could not have justified Larkins killing Johnson. See Read, 147 Wn.2d at 242 -43.

          The     objective   test for        defense
                                         self -          is   not met   here. Therefore, we hold that the trial court


did not err by denying Larkins a self -defense instruction.

IV.       REASONABLE DOUBT INSTRUCTION


          Larkins argues that the trial court' s reasonable doubt instruction undercut the State' s


burden of proof by erroneously inviting the jury to search for the truth. We disagree.

           Jury instructions, taken in their entirety, must inform the. jury that the State bears the

burden    of proving     every   essential element of a criminal offense            beyond   a reasonable   doubt." State


v.   Pirtle, 127 Wn.2d 628, 656, 904 P. 2d 245 ( 1995). "                 It is reversible error to instruct the jury in a

manner     that   would relieve     the State     of   this burden."        Pirtle, 127 Wn.2d   at   656. " We review a


challenged jury instruction de novo, evaluating it in the context of the instructions as a whole."

Pirtle, 127 Wn.2d at 656.


          The instruction that Larkins            complains of        has   never   been held to be improper.     To the


contrary, our Supreme Court has directed the use of WPIC 4. 01 to instruct juries of the nature of

the government' s burden. State            v.   Bennett, 161 Wn.2d 303, 318, 165 P. 3d 1241 ( 2007). The trial


court did exactly that, reproducing WPIC 4. 01 verbatim:

          The defendant has entered a plea of not guilty. That plea puts in issue every element
          of each crime charged. The State is the plaintiff and has the burden of proving each
          element of each crime beyond a reasonable doubt. The defendant has no burden of
          proving that a reasonable doubt exists.




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45276 -6 -II



         A defendant is        presumed        innocent.        This presumption continues throughout the

         entire trial unless during your deliberations you find it has been overcome by the
         evidence beyond a reasonable doubt.


         A reasonable doubt is one for which a reason exists and may arise from the evidence
         or   lack   of evidence.     It is such a doubt as would exist in the mind of a reasonable
         person after fully, fairly, and carefully considering all of the evidence or lack of
         evidence. If, from such consideration, you have an abiding belief in the truth of the
         charge, you are satisfied beyond a reasonable doubt.

Clerk' s Papers ( CP) at 144; see also 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 4. 01, at 85 ( 3rd ed. 2008).


         Larkins argues that WPIC 4. 01 improperly suggests that the jury' s role is to search for the

truth. But WPIC 4. 01      does      not   tell the   jury to   find the truth —it tells   the jury to acquit the defendant

unless the government convinces the jury of the truth of the charge. WPIC 4. 01 does not misstate

the State' s burden, and therefore, we hold that the trial court did not err by giving the WPIC 4. 01

instruction.


V.       DOUBLE JEOPARDY


         Larkins argues that the trial court violated her double jeopardy protections when it merged

her manslaughter conviction with her felony murder conviction, rather than vacating the lesser

offense. We disagree.


         A    violation of     double   jeopardy        is   a question of   law   we review    de   novo.   State v. Fuller,


169 Wn.        App.   797, 832, 282 P. 3d 126 ( 2012).                   The double jeopardy clauses of the Fifth

Amendment to the United States Constitution and the Washington Constitution, article 1, section

9, protect defendants against multiple punishments for the same offense. State v. Calle, 125 Wn.2d

769, 772, 888 P. 2d 155 ( 1995).            A conviction alone may constitute punishment, even if it does not

carry   a sentence.    State   v.   Turner, 169 Wn.2d 448, 454 -55, 238 P. 3d 461 ( 2010). Therefore, a trial




                                                                   12
45276 -6 -II



court may not enter multiple convictions for a single offense, even if it imposes only one sentence.

Fuller, 169 Wn. App. at 832.

            Double jeopardy does not prohibit the State from prosecuting a defendant for alternative

means of         committing the          same crime.        Fuller, 169 Wn.          App.   at   832 -33.   But when the jury finds a

defendant guilty on the basis of more than one alternative means, the trial court may only sentence

the defendant            for   one conviction.          Fuller, 169 Wn.       App.    at   833.    Furthermore, the trial court may

not conditionally dismiss a guilty verdict on a lesser charge, such that the State could reinstate the

lesser     conviction          if the   greater conviction were             later   overturned.      Fuller, 169 Wn. App. at 833.

Also, the trial court cannot refer to the validity of the lesser charge in the judgment and sentence,

in any order attached thereto, or at sentencing. Turner, 169 Wn.2d at 464 -65.

            Here, the jury returned guilty verdicts on both manslaughter and felony murder. The trial

court entered a           judgment          on   the   felony   murder charge        only ( count II),      striking out references to

the   manslaughter conviction ( count                    I) from the "   current offense( s)"        and " sentencing data" sections

of   the   preprinted          judgment      and sentence.        CP   at   228 -29. However, the " confinement" section of


the judgment and sentence still contains a notation that count I merges with count II. CP at 232.


                Larkins argues that the trial court openly recognized the validity of the manslaughter

conviction by leaving this notation in the judgment and sentence and stating that it would not

 vacate ...             the    manslaughter conviction outright,                because ... [       t]he jury came back with that

verdict."         VII RP        at   976.    But the trial court' s notation and statement did not work to hold the


manslaughter conviction in abeyance, to be reinstated if the felony murder conviction failed. See

State      v.    Womac, 160 Wn.2d 643, 659, 160 P. 3d 40 ( 2007).                                The trial court did not make "      y

reference          to    the    possible      reinstatement       of   a    vacated     lesser     conviction"     or   opine that the


manslaughter conviction was valid. Turner, 169 Wn.2d at 466, 464.




                                                                         13
45276 -6 -II




         The trial court' s passing reference to the manslaughter verdict and the errant notation on

the judgment       and sentence     did   not operate   to     punish    Larkins twice. As a result, we hold that no


double   jeopardy       violation   occurred.       However, the notation on the confinement section of


Larkins' s judgment and sentence is a scrivener' s error that must be corrected. The trial court did

not enter judgment on the manslaughter conviction. The trial court struck count I from the " current

offense( s)"    and "   sentencing data"     sections of       the   preprinted      judgment    and sentence.       CP at 228-


29. Quite      literally, Larkins' s judgment       and sentence        does    not   include   a " count   I."   Therefore, the


notation in the confinement section that count I merged with count II is an errant reference to a


count that does not exist. Accordingly, we remand to the trial court to correct this scrivener' s error

by   striking the remaining     reference     to   count   I   on    Larkins'   s   judgment    and sentence.      We affirm in


all other respects.




         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.




We concur:




         Lee, J.




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