      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                        No. 70822-8-1


                      Respondent,                           DIVISION ONE


              v.



ORESTE LAZAR DUANES-                                        UNPUBLISHED
GONZALES,
                                                            FILED: November 10, 2014
                      Appellant.

       Cox, J. — Oreste Duanes-Gonzales appeals his conviction of kidnapping

in the first degree. He contends that insufficient evidence supports his conviction

because the restraint employed in the kidnapping was "merely incidental" to his

separate conviction of robbery in the first degree. As we recently held in State v.

Phuonq1 and State v. Grant,2 there is no due process right to be convicted of

kidnapping only where the restraint is "not incidental" to another crime. And

there is nothing in the controlling statutes to show a legislative intent supporting

this argument. Accordingly, we reject this argument and affirm his conviction.

However, we remand for correction of an apparent scrivener's error in the

judgment and sentence to reflect the sentencing court's treatment of his

convictions for robbery and kidnapping of the same victim as the same criminal

conduct.




       1 174 Wn. App. 494, 508, 299 P.3d 37 (2013), petition for review staved (Wash. Sup. Ct.
September3, 2014).
       2172 Wn. App. 496, 498, 301 P.3d 459 (2012), review denied. 177 Wn.2d 1021 (2013).
No. 70822-8-1/2


      The State charged Duanes-Gonzales with four counts of robbery and one

count of kidnapping in the first degree. The kidnapping charge and the first

degree robbery charge that are at issue in this appeal arose from an incident

involving Marques Alfonzo that occurred on September 28, 2012. The other

convictions are not before us.

      On that afternoon, Alfonzo was on his way to meet his wife for a

pregnancy-related appointment. As Alfonzo was pulling out of his driveway in his

car, he stopped to allow two male pedestrians to pass behind him. One of the

pedestrians approached his car and asked for directions to the neighborhood

school. The other person had his back turned toward Alfonzo. Alfonzo thought it

was "a little funny because you could pretty much see the school" from his

driveway, but provided directions nonetheless. As he did so, the other

pedestrian turned around and pointed a semiautomatic gun at him through

Alfonzo's open window.

       The man with the gun told Alfonzo to get into the passenger's seat.

Alfonzo tried to get out of the car to walk around to the passenger's side, but the

man with the gun told him "no" and directed him to move over the gearshift. The

man who initially asked for directions got into the driver's seat, while the man

holding the gun got into the backseat behind the driver's seat. Alfonzo

recognized the driver, Oreste Duanes-Gonzales, as someone he had known in

the past but had not seen in more than 10 years. Alfonzo told the men to "just

take the car," but neither responded.
No. 70822-8-1/3


       Duanes-Gonzales drove around Alfonzo's residential neighborhood while

the man in the backseat held the gun and pointed it at Alfonzo. As they drove,

Alfonzo pleaded with the men and told them "hundreds of time" that he and his

wife were expecting a baby. They did not respond to his pleas except to tell him

to "empty your pockets." When they were several blocks away from Alfonzo's

house, Duanes-Gonzales slowed down to let Alfonzo out of the car. Before

letting him out, the men demanded "everything [he] had." They took Alfonzo's

wallet, mobile phone, jewelry, and his shoes. The men directed Alfonzo to walk

straight for five minutes and then turn the corner and said his car would be

parked there. Alfonzo complied and found his car, with the doors open and the

engine running. Alfonzo drove back to his house and used a neighbor's

telephone to call the police.

     Alfonzo later identified Duanes-Gonzales in a photo montage. Duanes-

Gonzales's fingerprint was on the door of Alfonzo's car. In the search of a

residence associated with Duanes-Gonzales, police also discovered several

items reported missing by Alfonzo as well as a handgun.

       In his testimony at trial, Duanes-Gonzales admitted he had been in

Alfonzo's car and that he possessed several items belonging to Alfonzo.

Duanes-Gonzales explained that he had given Alfonzo $550 worth of marijuana

upon Alfonzo's promise to pay him later. Duanes-Gonzales claimed that Alfonzo

willingly provided his personal property as collateral because he did not have the

money to pay for the marijuana.
No. 70822-8-1/4



      The jury found Duanes-Gonzales guilty of all counts as charged. The

court imposed a standard range sentence.

       Duanes-Gonzales appeals.

                          SUFFICIENCY OF THE EVIDENCE


      The primary challenge of Duanes-Gonzales is that under the incidental

restraint doctrine there was insufficient evidence to prove kidnapping of Alfonzo

separate from robbery.

      As charged in this case, the State had to prove beyond a reasonable

doubt that Duanes-Gonzales committed kidnapping in the first degree by

showing that he or an accomplice abducted someone with intent to facilitate the

commission of a robbery.3 To "abduct" is to restrain a person by using or

threatening to use deadly force.4 And "to restrain" is to restrict movement in a

manner that interferes substantially with a person's liberty.5

       In reviewing a claim of insufficient evidence, we review the evidence in the

light most favorable to the State and determine whether any rational trier of fact

could have found beyond a reasonable doubt the elements of the charged

crime.6 We weigh all reasonable inferences from the evidence in the State's

favor and most strongly against the defendant.7

       Duanes-Gonzales does not challenge the sufficiency of the evidence

supporting any of the statutory elements of kidnapping. Instead, he relies on the




       3 RCW 9A.40.020.
       4RCW9A.40.010(1).
       5RCW9A.40.010(6).
       6 State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007).
       7 Id.
No. 70822-8-1/5


analysis of Division Two of this court in State v. Korum,8 and State v. Berg.9 He

contends that his kidnapping conviction violates due process because it involved

restraint that was merely incidental to the robbery committed at the same place

and time.


       We disagree. In two recent decisions, Division One has declined to follow

Korum and rejected Division Two's interpretation of the Washington Supreme

Court's opinion in State v. Green.10 Tracing the origins of the incidental restraint

language in Green and the decisional law in kidnapping-merger cases, we

reached the following conclusions:

       First, a defendant's conviction of a restraint-based offense is not
       subject to reversal on Fourteenth Amendment due process grounds
       based upon a claim that the restraint involved in the offense was
       "incidental" to another charged offense. And, second, because our
       state law does not encompass the kidnapping merger rule, the
       defendant may lawfully be punished for both offenses.1111

       Duanes-Gonzales acknowledges this precedent in a footnote, but points

out that the supreme court has accepted review in Berg to resolve the issue of

whether in a prosecution for first degree robbery and first degree kidnapping, the

evidence of kidnapping is constitutionally insufficient if it shows that restraint of

the victim was incidental to the commission of the robbery. We conclude that

regardless of whether the supreme court accepts or rejects the analysis in Berg




       8120 Wn. App. 686, 86 P.3d 166 (2004), rev'd on other grounds. 157 Wn.2d 614, 141
P.3d 13(2006).
       9177 Wn. App. 119, 310 P.3d 866 (2013). review granted. 179Wn.2d 1028(2014).
        10 94 Wn.2d 216, 616 P.2d 628 (1980).
         11 Phoung, 174 Wn. App. at 532: see also Grant, 172 Wn. App. at 505-06 (incidental
nature of a crime is relevant only to double jeopardy analysis and Green does not impose a non
statutory element upon kidnapping requiring proof that restraint is non-incidental to an
accompanying crime in order to satisfy due process).
No. 70822-8-1/6



that "Green requires application of the incidental restraint doctrine" in this

context, Duanes-Gonzales's challenge to his kidnapping conviction still fails.12

       The facts here are unlike those in cases where courts have characterized

the evidence of restraint as "incidental" to the commission of a robbery. For

instance, in Korum, the defendant and his accomplices restrained victims at their

residences to facilitate home invasion robberies.13 Likewise, in Berg, the

defendants restrained the robbery victim at gunpoint in his workshop where they

first encountered him while they took property from the workshop and from his

home at the same location.14

       Here, in contrast, the forcible restraint of Alfonzo began before and

continued through the robbery. Moreover, the restraint involved moving him

some distance from the driveway of his home where Duanes-Gonzales first

encountered him. Duanes-Gonzales kidnapped Alfonzo when he and his

accomplice forced him into the passenger's seat and then drove around while

holding him at gunpoint. While still restraining Alfonzo's movement during the

drive, they robbed him. While these events overlapped to some extent, they did

not completely take place at the same time. Finally, Duanes-Gonzales did not

merely restrain Alfonzo for the period of time necessary to rob him. Alfonzo

testified that Duanes-Gonzales drove him around the neighborhood while he tried

to reason and plead with the two men. Although the evidence did not establish

either the exact duration of the drive or the distance travelled, Alfonzo estimated

that the place where Duanes-Gonzales let him out of the car was a 20 to 25

       12 Berg. 177 Wn. App. at 131.
       13120Wn. App. at 690-92.
       14177 Wn. App. at 123-24, 136-38.
No. 70822-8-1/7


minute walk from his house. So, viewing the evidence in the light most favorable

to the State, it was sufficient to convict Duanes-Gonzales of kidnapping.

                              SCRIVENER'S ERROR

       Duanes-Gonzales next contends, and the State concedes, that the trial

court erred when it failed to indicate on the judgment and sentence that the

robbery and kidnapping counts involving Alfonzo encompassed the same

criminal conduct. The trial court did not make an explicit finding on same criminal

conduct at sentencing, but the record indicates that the court accepted the

State's pretrial position that the two counts involved the same criminal conduct.

And the court's calculation of Duanes-Gonzales's offender score of 7 reflects that

the court treated the two counts as one for purposes of the offender score

calculation. However, the court failed to check the box in section 2.1 (i) of the

judgment and sentence to indicate its finding that the two counts constitute the

same criminal conduct.

       We affirm the conviction of kidnapping. We remand to the trial court for

correction of the scrivener's error in the judgment and sentence.

                                                                      n

WE CONCUR:
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