       FILE
        IN CLERKS O"ICI
llJIREME COURT. 8TA11C»'MIIIIGftlt
     ~n:      JUL 1 7 2014                                  This opinion was filed for record

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              'IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                            )
                                                )
                     Petitioner,                )                No. 89364-1
                                                )
         v.                                     )                  EnBanc
                                                )
MIGUEL ANGEL                                    )

                                               --~- ____Filed ____JU1i1__201~-- _
VILLANUEVA-GONZALEZ,

                     Respondent.                )
___________________________)

          OWENS, J. -- Miguel Angel Villanueva-Gonzalez was convicted of second

 degree assault and fourth degree assault for attacking his girl friend. He contends that

 his actions constituted one assault, and therefore his two convictions violate double

 jeopardy. To analyze his claim, we look to how the legislature has defined "assault"

 and determine whether the legislature intended to punish assault as a course of

 conduct or upon each individual act. However, the legislature has not provided a

 definition of assault and the common law definition is ambiguous. Thus, we are

 guided by the many other jurisdictions that have treated assault as a course of conduct

 crime, and we are mindful of the "rule of lenity," which requires us to adopt the
         State v. Villanueva-Gonzalez
         No. 89364-1


          interpretation most favorable to the defendant. See State v. Roberts, 117 Wn.2d 576,

          586, 817 P.2d 855 (1991). We affirm the Court of Appeals and hold that Villanueva-

          Gonzalez's two assault convictions violate double jeopardy because the underlying

          acts occurred during the same course of conduct.

                                                  FACTS

                After Villanueva-Gonzalez's longtime girl friend returned from a night out

          dancing without him, she went into their children's bedroom. Villanueva-Gonzalez

          entered the room and told her to get out. She did not leave the room, so he pulled her

          out. After pulling her out of the room, he hit her head with his forehead, breaking her

----nose-in-two-_places-andcausing-her-to -hleed-profusely-.----hle-then-grabbed-her-by-the--

          neck and held her against some furniture. She was unable to get up while he was

          holding her, and she said it was hard to breathe because of the blood running down

          her face and because he was holding her by the neck. In response to a report of a

          domestic disturbance, the police arrived and arrested Villanueva-Gonzalez. His girl

          friend went to the hospital for a CAT (computerized axial tomography) scan and

          medical treatment.

                The State charged Villanueva-Gonzalez with two counts of second degree

          assault. 1 Count one alleged that Villanueva-Gonzalez intentionally assaulted the


          1
           Villanueva-Gonzalez was also charged with and convicted of first degree criminal
          impersonation for giving a false name to the police when they arrived to investigate the
          domestic violence incident. That conviction is not at issue in this case.

                                                      2
            State v. Villanueva-Gonzalez
            No. 89364-1


            victim "by strangulation," contrary to former RCW 9A.36.021(1)(g) (2007). Clerk's

            Papers (CP) at 22. Count two alleged that Villanueva-Gonzalez intentionally

            assaulted the victim "and thereby did recklessly inflict substantial bodily harm,"

            contrary to RCW 9A.36.021(1)(a). !d. at 23. Both were charged as domestic violence

            offenses. The parties later agreed to include fourth degree assault as a lesser included

            charge on both counts one and two.

                   For count one (based on grabbing the victim's neck), the jury convicted

            Villanueva-Gonzalez of the lesser included charge of fourth degree assault. For count

            two (based on the head butt), the jury convicted Villanueva-Gonzalez of second

-------d€gre€-assault.--V-illanueva-Qonzalez-appealeci-,-eontending-thatthe-two-eonvictions -

            violated double jeopardy. The Court of Appeals agreed and reversed the fourth

            degree assault conviction. State v. Villanueva-Gonzalez, 175 Wn. App. 1, 8, 304 P.3d

            906 (2013). The State petitioned for review, which we granted. State v. Villanueva-

            Gonzalez, 179 Wn.2d 1008, 316 P.3d 494 (2014).

                                                      ISSUE

                   Did Villanueva-Gonzalez's convictions for second degree assault and fourth

            degree assault violate double jeopardy?

                                                  ANALYSIS

                    Villanueva-Gonzalez claims that his two convictions violate the prohibitions on

            double jeopardy in the federal and state constitutions. See U.S. CONST. amend. V;



                                                        3
           State v. Villanueva-Gonzalez
           No. 89364-1


           WASH. CONST. art. I,§ 9. We review double jeopardy claims de novo. State v.

           Hughes, 166 Wn.2d 675, 681,212 P.3d 558 (2009).

                  The principle of double jeopardy prevents a person from being "twice put in

           jeopardy for the same offense." WASH. CONST. art. I,§ 9. The prohibition on double

           jeopardy generally means that a person cannot be prosecuted for the same offense

           after being acquitted, be prosecuted for the same offense after being convicted, or

           receive multiple punishments for the same offense. Dep 't ofRevenue v. Kurth Ranch,

           511 U.S. 767, 769 n.l, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). It is that last

           principle-that a person cannot receive multiple punishments for the same offense-

_ _ _ _ thaLwegrapple-with-today. - ------ - --- -- - ------

                  Notably, while this is a constitutional issue, it is ultimately "a question of

           statutory interpretation and legislative intent." State v. Adel, 136 Wn.2d 629, 634, 965

           P.2d 1072 (1998). The legislature is tasked with defining criminal offenses, and the

           prohibition on double jeopardy imposes "[flew, if any, limitations" on that power.

           Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978).

           Thus, this case requires us to determine whether Villanueva-Gonzalez was punished

           twice for the "same offense," which turns on the question of whether the legislature

           intended to define assault in such a way that Villanueva-Gonzalez's actions

           constituted one offense or multiple offenses.




                                                        4
State v. Villanueva-Gonzalez
No. 89364-1


     1. To Determine Whether Double Jeopardy Was Violated, We Must Look to the
        Act or Course of Conduct the Legislature Intended To Punish

         We generally apply different double jeopardy analyses depending on whether

the convictions at issue were under the same statutory provision or different statutory

provisions. The "unit of prosecution" analysis applies when a defendant has multiple

convictions under the same statutory provision, and it asks "what act or course of

conduct has the Legislature defined as the punishable act." Adel, 136 Wn.2d at 634.

The "Blockburger" 2 analysis applies when a defendant has convictions under different

statutes, and it asks whether the convictions were "the same in law and in fact." !d. at

632-33.

         In this case, Villanueva-Gonzalez was convicted of violating RCW

9A.36.02l(l)(a), which states, "A person is guilty of assault in the second degree ifhe

or she, under circumstances not amounting to assault in the first degree[,] ...

[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily

harm." He was also convicted of violating RCW 9A.36.041(1), which states, "A

person is guilty of assault in the fourth degree if, under circumstances not amounting

to assault in the first, second, or third degree, or custodial assault, he or she assaults

another."




2
    Blockburger v. United States, 284 U.S. 299,304, 52 S. Ct. 180,76 L. Ed. 306 (1932).

                                              5
       State v. Villanueva-Gonzalez
       No. 89364-1


              Villanueva-Gonzalez argues that because he was convicted under two different

       assault provisions, the Blockburger analysis applies. The State argues that the unit of

       prosecution test applies because both convictions were under the assault statute.

       Neither is a perfect fit for this case, where one crime (fourth degree assault) is

       typically a lesser included charge to the other crime (second degree assault). While

       Villanueva-Gonzalez is technically correct that he was convicted under two different

       assault provisions, the Blockburger analysis is not helpful here. The Blockburger

       analysis is a tool for courts to determine whether two different crimes were based on

       the same evidence, and it asks whether each statutory provision requires proof of a

---faGt-that-the--oth€r-do€s-not-.--Ade/-,-l-J0-Wn.2d-at-033-.-Gur-pr-ier-eases-applying-the-

       B lockburger analysis focus on whether two crimes are the same in law. Those cases

       and that analysis do not help us in this case, where the convictions are plainly the

       same in law and one did not require proof of a fact that the other did not. 3

              Even under the Blockburger analysis, if two convictions are the same in law,

       we then analyze whether they are the same in fact. To resolve this issue, we must

       determine what act or course of conduct the legislature has defined as the punishable




       3 Fourth degree assault does not require proof of any element that second degree assault
       does not also require. If there were enough evidence to convict a person of second degree
       assault, no additional proof would be needed to instead convict the person of the lesser
       included charge of fourth degree assault. As the United States Supreme Court has
       recognized, this is "invariably true of a greater and lesser included offense." Brown v. Ohio,
       432 U.S. 161, 167-68, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).

                                                     6
           State v. Villanueva-Gonzalez
           No. 89364-1


           act. This is the exact question that the unit of prosecution test is designed to answer.
                                                                                 I
           Therefore, we find it appropriate to apply the unit of prosecution test in this case.

               2. Becalf,se the Common Law Definition ofAssault is Open to Multiple
                  Reasonable Interpretations, We Look to Other Jurisdictions and Apply the Rule
                  ofLenity To Determine That Assault Is a Course of Conduct Crime

                  In determining whether the legislature intended assault to be a course of

            conduct offense or a separate act offense, we first turn to the statutory language. See

           Adel, 136 Wn.2d at 634-35. However, there is no statutory definition of assault and

            so we must turn to the common law definition of assault. Peasley v. Puget Sound Tug

            & Barge Co., 13 Wn.2d 485, 504, 125 P.2d 681 (1942). In this case, the jury was

_____ instructed-on.the.commonlaw-definition o£assault-from-th€-patt€rn-juryinstl'UGtiens;--

                        An assault is an intentional touching or striking of another person,
                  with unlawful force, that is harmful or offensive regardless of whether
                  any physical injury is done to the person. A touching or striking is
                  offensive if the touching or striking would offend an ordinary person
                  who is not unduly sensitive.

            CP at 41 (emphasis added) (Instruction 10); 11 WASHINGTON PRACTICE:

            WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 35.50, at 547 (3d ed. 2008)

            (WPIC). This court has cited the WPIC definition of assault as the common law

            definition of assault. See State v. Smith, 159 Wn.2d 778, 781-82, 154 P.3d 873

            (2007).

                   In this definition, the key phrase describing the nature of the act is "an

            intentional touching or striking." On its face, we do not find this language clear as to



                                                         7
           State v. Villanueva-Gonzalez
           No. 89364-1


            whether assault is a course of conduct offense or a separate act offense. The Eighth

            Circuit Court of Appeals came to a similar conclusion in United States v. Chipps, 410

            F.3d 438 (8th Cir. 2005). There, the court considered whether double jeopardy was

            violated when a defendant was convicted of two counts of simple assault for

            assaulting the victim with his feet and with a baseball bat. !d. at 447-49. Because the

            common law was unclear, the court applied the rule of lenity and held that only one

            punishment could be imposed for an assaultive course of conduct. !d. at 448-49.

                  The Eighth Circuit is not alone in coming to that conclusion-courts across the

            country have largely concluded that assault is a course of conduct crime. For

_______ instance,the_Court_of_Appeals_for-the-DistrictoLColumbia-considel.'ed-a-case:v:ery

            similar to this one where the defendant was convicted on two different assault charges

            (assault with a dangerous weapon and assault with intent to kill) for hitting the victim

            with a curling iron and a hammer and then throwing the victim down a flight of stairs.

            Smith v. United States, 135 U.S. App. D.C. 284, 285,418 F.2d 1120 (1969). The

            court held that the defendant could not be sentenced to cumulative sentences because

            "[t]he fact that a criminal episode of assault involves several blows or wounds, and

            different methods of administration, does not convert it into a case of multiple crimes

            for purposes of sentencing." !d.

                   The Missouri Court of Appeals examined this issue in a case that involved a

            man who cut his ex-girlfriend with a knife inside a vehicle multiple times. State v.



                                                        8
            State v. Villanueva-Gonzalez
            No. 89364-1


            Garnett, 298 S.W.3d 919,921,923 (Mo. Ct. App. 2009). The court applied the

            Missouri statutory limitation on convictions for multiple offenses and concluded that

            the incident could be considered only a single assault because it was a "quick,

            continuing attack," with no evidence of separation of time sufficient to provide the

            defendant with "an opportunity to reconsider his actions." !d. at 924.

                   In the same way, the Tennessee Court of Appeals concluded that a man could

             not be convicted of two assaults when he attacked his ex-girlfriend with a knife in her

             house and then when she ran from the house, he chased her down and cut her again.

             State v. Pelayo, 881 S.W.2d 7, 11-13 (Tenn. Crim. App. 1994). The court held that

- - - - - t h e two-assaultive-acts ''coalesced-into-an 'urunistakabl€-single-act,' though separated -

             by a few seconds and feet." I d. at 13.

                   The California Court of Appeals applied similar reasoning in People v. Wooten,

             214 Cal. App. 4th 121, 128-29, 153 Cal. Rptr. 3d 684 (2013), where it analyzed the

             California statutory provision against multiple punishments for a single criminal act.

             In that case, the court held that the statute did not bar multiple sentence enhancements

             for great bodily injury when the defendant first violently assaulted the victim in an

             attempt to sexually assault her and then subsequently violently assaulted her in an

             attempt to kill her after she tried to run away. !d. at 132-33. The court held that the

             two attacks constituted separate assaults because they had different purposes and

             because an intervening event had occurred between them. !d. at 133.



                                                         9
           State v. Villanueva-Gonzalez
           No. 89364-1


                  In light of the ambiguity in the common law definition of assault and the

           general consensus of courts across the country that it is at best ambiguous as to

           whether assault applies to individual actions or a course of conduct, we must apply the

           rule oflenity, Roberts, 117 Wn.2d at 586, and use the interpretation most favorable to

           the defendant. Therefore, we hold that assault should be treated as a course of

           conduct crime until and unless the legislature indicates otherwise. We came to a

           similar conclusion in A del~ where we held that because the statute was unclear as to

           the unit of prosecution for simple drug possession, we had to apply the rule of lenity.

           136 Wn.2d at 634-35. Interpreting assault as a course of conduct crime also helps to

-----avoid-the-risk o£a-defendant-bein~con:victed-for-every-punch-tlrrown-in-a fistfight''

           that we identified in State v. Tili, 139 Wn.2d 107, 116,985 P.2d 365 (1999).

               3. Villanueva-Gonzalez's Actions Constituted One Course of Conduct, and Thus
                  His Two Convictions Violated Double Jeopardy

                  There is no bright-line rule for when multiple assaultive acts constitute one

           course of conduct. While any analysis of this issue is highly dependent on the facts,

           courts in other jurisdictions generally take the following factors into account:

                  - The length of time over which the assaultive acts took place,
                  - Whether the assaultive acts took place in the same location,
                  - The defendant's intent or motivation for the different assaultive acts,
                  - Whether the acts were uninterrupted or whether there were any intervening
                    acts or events, and
                  - Whether there was an opportunity for the defendant to reconsider his or her
                    actions.




                                                       10
            State v. Villanueva-Gonzalez
            No. 89364-1


            We find these factors useful for determining whether multiple assaultive acts

            constitute one course of conduct. However, no one factor is dispositive, and the

            ultimate determination should depend on the totality of the circumstances, not a

            mechanical balancing of the various factors.

                   Applying those factors to this case, we find that Villanueva-Gonzalez's actions

            constituted one course of conduct. First, the assaultive actions for which he was

            charged-head butting the victim and then grabbing her neck and holding her against

            some furniture-took place in the same location. Second, the record implies

            (although does not clearly state) that the actions took place over a short time period,

______ and_thereis_no_indication-in the record-of any-interruptions- m-inter-vening-events. --

            Similarly, there is no evidence that would suggest that he had a different intention or

            motivation for these actions or that he had an opportunity to reconsider his actions.

            Based on the evidence in the record before us, we conclude that Villanueva-

            Gonzalez's actions constituted a single course of conduct. Therefore, we affirm the

            Court of Appeals and hold that his two assault convictions violated double jeopardy.

                                                CONCLUSION

                   To determine whether double jeopardy was violated in this case, we evaluate

            whether the legislature intended that an assaultive episode be punished for each

            individual act or for the course of conduct. Since the legislature did not define

            assault, we turn to the common law. Given the ambiguous nature of the common law



                                                        11
State v. Villanueva-Gonzalez
No. 89364-1


definition of assault, we look to other jurisdictions-who have largely concluded that

assault is a course of conduct crime-and apply the rule of lenity, adopting the rule of

interpretation most favorable to the defendant. Treating assault as a course of conduct

crime, we affirm the Court of Appeals and hold that Villanueva-Gonzalez's

convictions for assault violated double jeopardy because his actions took place during

a single course of conduct.




                                           12
State v. Villanueva-Gonzalez
No. 89364-1




WE CONCUR:




                               13
