                                                                            FILED
                                                                          April 9, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In the Matter of the Personal Restraint of:   )         No. 35618-3-III
                                              )
JOE ANTHONY MATA,                             )         UNPUBLISHED OPINION
                                              )
                     Petitioner.              )

       FEARING, J. — In this personal restraint petition, Joe Mata asks that we reverse

convictions for first degree robbery on the basis of collateral estoppel. He contends the

State of Washington was collaterally estopped from convicting him of the crimes because

of an acquittal on charges for unlawful possession of a firearm in an earlier prosecution.

We disagree and dismiss Mata’s petition.
No. 35618-3-III
In re Pers. Restraint of Mata


                                          FACTS

       The State of Washington, in two discrete venues, prosecuted Joe Mata for a string

of crimes occurring on July 28, 2009. Early that morning in Yakima County, someone

stole a 1993 Dodge Caravan, with license plate 864-ROW, belonging to Luz Garcia. At

midmorning, a man and a woman left a Union Gap restaurant without paying their food

bill. The restaurant manager reported the theft of food to the county sheriff’s office.

       At 10:40 a.m., on July 28, 2009, the driver of Luz Garcia’s maroon Dodge

Caravan, license plate 864-ROW, robbed Zachary Sisneros at gunpoint and snatched his

money, wallet, and cell phone. Sisneros was then delivering bottled water to a customer.

Sisneros reported the robbery to law enforcement and relayed his belief that the robber

held a .40 or .45 caliber semiautomatic pistol. Sisneros described his robber.

       At 6:30 p.m. on July 28, Shaun Kroeger and Jacob McDonald left a grocery store

in Union Gap’s sister city, Yakima. On the pair’s return to McDonald’s pickup truck, a

man confronted Kroeger and demanded that Kroger surrender “‘everything you got.’”

State v. Mata, 180 Wn. App. 108, 111, 321 P.3d 291 (2014). Kroeger handed the man his

wallet after the man flashed a gun and threatened to kill Kroeger if he refused. McDonald

saw the gun in the thief’s hand and Kroeger’s relinquishing of his wallet. The man

demanded McDonald’s money, but McDonald refused and walked away.


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       Shaun Kroeger and Jacob McDonald called police to report the incident as the

robber scurried. The pair reported that the man drove a red van, license plate 864-ROW.

Kroeger gave a description of a man similar to the description conveyed by Zachary

Sisneros.

       At 11:15 p.m., on July 28, 2009, Pierce County Sheriff Deputy Robert Glen

Carpenter researched, on a state database, license plates of traffic leaving State Route

512. He saw a maroon van, license plate 864-ROW, and checked the plate number on his

computer. Deputy Carpenter received an alert from the National Crime Information

Center informing him of the stolen status of the car and warning the deputy to treat the

driver as armed and dangerous. Deputy Carpenter overtook the Dodge Caravan driven by

Joe Mata and with Christina Barrientes as passenger. Deputy Carpenter and officers in

another patrol car activated their respective emergency lights. Mata accelerated and ran a

red light, while the law enforcement officers followed in a high speed chase.

       During the pursuit, Joe Mata crashed the Dodge Caravan and unsuccessfully

attempted to hide in a building. Law enforcement’s search of the van revealed a loaded

.45 caliber handgun, a wallet belonging to Shaun Kroger, a wallet belonging to Zachary

Sisneros, ignition parts, and a screwdriver. Joe Mata had earlier garnered at least one

felony conviction such that the law precluded his possession of a firearm.


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       Law enforcement concluded that Joe Mata had stolen Luz Garcia’s Dodge

Caravan, failed to pay the bill at the Union Gap restaurant, robbed Zachary Sisneros,

robbed Shaun Kroeger, and attempted to rob Jacob McDonald. The State of Washington

prosecuted, in both Pierce County and Yakima County, the July 28, 2009, alleged crimes

of Joe Mata. See Petitioner’s Reply Br. Appx. at 1-4, 15-17. The State tried the Pierce

County charges first.

       Charges filed in Pierce County included knowingly possessing a stolen motor

vehicle, attempting to elude a pursuing police officer, first degree unlawful possession of

a firearm, malicious mischief in the first degree, obstructing a law enforcement officer,

and second degree assault. The charge of unlawful possession of a firearm read:

              That JOE ANTHONY MATA, in the State of Washington, on or
       about the 28th day of July, 2009, did unlawfully, feloniously, and
       knowingly own, have in his possession, or under his control a firearm, he
       having been previously convicted in the State of Washington or elsewhere
       of a serious offense, as defined in RCW 9.41.010(12).

Petitioner’s Reply Br. Appx. at 2. The Pierce County Superior Court instructed the jury:

              To convict the defendant of the crime of unlawful possession of a
       firearm in the first degree, each of the following elements of the crime must
       be proved beyond a reasonable doubt:
              (1) That on or about the 28th day of July, 2009, the defendant
       knowingly had a firearm in his possession or control;
              (2) That the defendant had previously been convicted of a serious
       offense; and


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             (3) That the possession or control of the firearm occurred in the State
       of Washington.

Petitioner’s Reply Br. Appx. at 43.

       The Pierce County jury acquitted Joe Mata of the first degree unlawful possession

of a firearm charge. Petitioner’s Reply Br. Appx. at 18-20. The jury rendered a general

verdict, which read: “We, the jury, find the defendant Not Guilty of the crime of unlawful

possession of a firearm in the first degree as charged in Count III.” Our record includes

no trial transcript from the Pierce County trial. Our record does not describe the firearm

that the State alleged Mata possessed on July 28. Our record does not disclose what

evidence the State presented in support of the charge of unlawful possession of a firearm.

       The State of Washington, in the Yakima County prosecution, charged Joe Mata

with two counts of first degree robbery while armed with a deadly weapon, one count of

attempted first degree robbery, and one count of first degree unlawful possession of a

firearm. Petitioner’s Reply Br. Appx. at 18. The jury convicted Mata of the two counts

of robbery and the count of unlawful possession of a firearm.

       Joe Mata appealed his Yakima County convictions for robbery and first degree

unlawful possession of a firearm. This appeals court determined that, in both counties,

the unlawful firearm charges stemmed from the discovery of the .45-caliber handgun on

the floorboard of Mata’s car. State v. Mata, 180 Wn. App. at 120 (2014). This court

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deemed the crime of unlawful possession of a firearm to entail a course of conduct. We

employed the unit of prosecution analysis for double jeopardy. Since the State never

presented evidence of an intervening act that separated Joe Mata from the possession of

the handgun from the time he occupied Yakima County to the time that he entered Pierce

County, this court ruled that, under double jeopardy principles, the acquittal by a Pierce

County jury of Mata for unlawful possession barred the State’s prosecution of Mata in

Yakima County for unlawful possession. We remanded to the trial court to vacate the

unlawful possession of a firearm conviction, to recalculate the offender score, and to

resentence Mata. This court concluded: “We find no other reversible error, nor does Mr.

Mata raise any viable issue in his pro se statement of additional grounds.” State v. Mata,

180 Wn. App. at 110.

       On May 18, 2015, Joe Mata filed his first personal restraint petition, complaining

of an impermissibly suggestive photographic montage and ineffective assistance of trial

counsel. Personal Restraint Petition, In re Personal Restraint of Mata, No. 33412-1-III

(Wash. Ct. App. May 18, 2015). This court dismissed the first petition as frivolous.

Order Dismissing Personal Restraint Petition, In re Personal Restraint of Mata,

No. 33412-1-III, at 11 (Wash. Ct. App. Feb. 7, 2017).




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In re Pers. Restraint of Mata


                                       PROCEDURE

       On September 29, 2017, Joe Mata filed this CrR 7.8 motion for reversal of the first

degree robbery conviction. We deem the motion a second personal restraint petition. In

the pending petition, Mata argues a contention we refused to entertain in his second

appeal because the contention went beyond the remand to the superior court. Mata argues

that collateral estoppel precluded the State from prosecuting in Yakima County charges of

first degree robbery since the Pierce County jury acquitted him of charges of unlawful

possession of the firearm he purportedly used to frighten victims into surrendering money

and property in Yakima County.

                                    LEGAL ANALYSIS

                                       Mixed Petition

       The State of Washington requests dismissal of Joe Mata’s second personal

restraint petition because of a mixed petition. Mata replies that he only raises double

jeopardy in this second petition. Thus, according to Mata, the petition cannot be mixed.

       Generally, a personal restraint petition must be filed within one year of final

judgment. RCW 10.73.090(1). RCW 10.73.100 provides six exceptions to this time bar,

one of which is a challenge to a conviction based on double jeopardy. Even if the

petitioner relies on one of the statutory exceptions, if the petitioner relies on another


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ground not found in RCW 10.73.100, the court must dismiss the personal restraint

petition because of its mixed nature. In re Personal Restraint of Stoudmire, 141 Wn.2d

342, 348-49, 5 P.3d 1240 (2000). If a petition relies on one or more of the grounds listed

in RCW 10.73.100 and also on a ground not enumerated therein, it is subject to the one

year limit. In re Personal Restraint of Stoudmire, 141 Wn.2d at 348-49.

       We agree with Joe Mata. Although the State claimed in its initial response that

Mata filed a mixed petition, the State did not identify any issues raised by Mata other than

double jeopardy.

       A personal restraint petitioner must show actual and substantial prejudice to

receive relief. The petitioner establishes this prejudice if he shows the State violated his

right against double jeopardy. In re Personal Restraint of Moi, 184 Wn.2d 575, 579, 360

P.3d 811 (2015). Therefore, we proceed to the merits of Joe Mata’s claim of double

jeopardy.

                                     Blockburger Test

       In this second personal restraint petition, Joe Mata initially contended that the

Yakima County trial court erred when it failed to conduct a Blockburger analysis despite

his request. In Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L.




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Ed. 306 (1932), the United States Supreme Court established one of several tests for

determining whether double jeopardy bars multiple prosecutions for the same offense:

              The applicable rule is that, where the same act or transaction
       constitutes a violation of two distinct statutory provisions, the test to be
       applied to determine whether there are two offenses or only one, is whether
       each provision requires proof of a fact which the other does not.

Later cases label the test as the “same elements” test.

       The State responds that its Pierce County and Yakima County prosecutions did not

impose double jeopardy because the robbery and unlawful possession of a firearm survive

the “same elements” test from Blockburger. In a reply inconsistent with his initial

argument, Joe Mata asserts that the State’s discussion of Blockburger lacks relevance to

his petition, because the petition relies on collateral estoppel, not the Blockburger test.

       The Blockburger test is one of statutory construction used to determine legislative

intent when the statutes governing either offense do not expressly permit multiple

punishments for the conduct that violated the respective statutes. State v. Muhammad,

194 Wn.2d 577, 602 451 P.3d 1060 (2019). Distinct from the Blockburger test, yet also

serving to bar double jeopardy, is the doctrine of collateral estoppel. Under this doctrine,

the asserting party must show that “an issue of ultimate fact has once been determined by

a valid and final judgment” barring subsequent litigation of that issue between the same




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parties in a future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed.

2d 469 (1970).

       Although Joe Mata’s petition initially claimed that the trial court erred in not

conducting a Blockburger analysis, he failed to engage in the exercise of determining

whether each conviction required proof of a fact that the other conviction did not.

Moreover, from his first reply brief, he abandons the Blockburger test. Accordingly, we

decline to review this issue further.

                                        Collateral Estoppel

       Joe Mata argues that collateral estoppel barred prosecution of first degree robbery

charges in Yakima County following acquittal of unlawful possession of a firearm in

Pierce County because both prosecutions required proof that he possessed a firearm.

Since the Pierce County jury absolved him of firearm charges, the State could not convict

him in Yakima County for a crime, whose elements included possession of a firearm.

The State responds that, because this court has no record on which to determine the basis

on which the Pierce County jury acquitted Mata on possession charges and because Mata

bears the burden of establishing collateral estoppel, his petition fails.

       Collateral estoppel precludes an ultimate issue of fact from being litigated again

between the same parties in a later lawsuit once a trier of fact already determined the


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issue by a valid and final judgment. Ashe v. Swenson, 397 U.S. at 443 (1970); State v.

Tili, 148 Wn.2d 350, 360, 60 P.3d 1192 (2003). The party asserting collateral estoppel

bears the burden of proof. In re Personal Restraint of Moi, 184 Wn.2d at 579 (2015).

       Washington courts rely on the four-part civil law test for applying collateral

estoppel in the criminal context. State v. Tili, 148 Wn.2d at 361 (2003); State v. Vasquez,

148 Wn.2d 303, 308, 59 P.3d 648 (2002); State v. Williams, 132 Wn.2d 248, 254, 937

P.2d 1052 (1997). The elements of collateral estoppel are:

               (1) the issue decided in the prior adjudication must be identical with
       the one presented in the second; (2) the prior adjudication must have ended
       in a final judgment on the merits; (3) the party against whom the plea of
       collateral estoppel is asserted must have been a party or in privity with a
       party to the prior litigation; and (4) application of the doctrine must not
       work an injustice.

In re Personal Restraint of Moi, 184 Wn.2d at 580 (quoting State v. Williams, 132 Wn.2d

at 254). As the asserting party, Joe Mata bears the burden to establish all four elements.

State v. Williams, 132 Wn.2d at 254.

       Joe Mata requests that this court revert to a pre-Ashe test used by the Washington

Supreme Court in State v. Peele, 75 Wn.2d 28, 30-31, 448 P.2d 923 (1968). Specifically,

he asks that this court drop the fourth element that “application of the doctrine must not

work an injustice.” Omitting this element would follow a test used by the United States




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Court of Appeals for the Ninth Circuit. Durkin v. Shea & Gould, 92 F.3d 1510, 1516 (9th

Cir. 1996).

       We decline to apply the pre-Ashe test. The Washington Supreme Court, in In re

Personal Restraint of Moi, noted in a footnote that the Ninth Circuit dropped the fourth

element from the collateral estoppel test, but our Supreme Court did not adopt or apply

that test. In re Personal Restraint of Moi, 184 Wn.2d at 584 n.4 (2015). The Court of

Appeals must abide by Supreme Court decisions. State v. Gore, 101 Wn.2d 481, 486-

487, 681 P.2d 227 (1984). We also decline to drop the fourth element since we need not

address its fulfillment to resolve Joe Mata’s petition.

       The State concedes the presence of element two of the collateral estoppel test, that

the first prosecution in Pierce County ended in a final judgment on the merits. We

proceed to address only if Mata meets elements one.

       Joe Mata contends that the Pierce County jury and the Yakima County jury faced

the same ultimate issue, whether Mata knowingly possessed a firearm. Of course, this

court already agreed with Mata’s argument with regard to his charge in Yakima County

Superior Court for unlawful possession of a firearm. We must now determine if our

ruling should extend to the first degree robbery convictions.




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       Mata argues that, in the Yakima County trial, the State had to prove Mata used the

same handgun, on which the State based the Pierce County charge, to commit the

robberies on July 28, 2009. The State responds that the issues differ because, in the

Pierce County prosecution, the State had to prove that Mata had actual or constructive

possession of the firearm at the time of his arrest in Pierce County. During the Yakima

County prosecution, the State did not need to prove Mata possessed the gun at the time of

his Pierce County arrest. Also, in the Pierce County prosecution, the State needed to

prove that Mata possessed a real firearm, while, in the Yakima County prosecution, the

State needed to only prove that Mata armed himself with what appeared to be a firearm at

the time he seized others’ money and property during his robberies.

       To repeat, the first element of collateral estoppel demands that the issue decided in

the prior adjudication must be identical with the one presented in the second. In re

Personal Restraint of Moi, 184 Wn.2d at 580 (2015). When a verdict is based on a

general verdict, the court should, in order to determine unity of the issues:

              examine the record of [the] prior proceeding, taking into account the
       pleadings, evidence, charge, and other relevant matter, and conclude
       whether a rational jury could have grounded its verdict upon an issue other
       than that which the defendant seeks to foreclose from consideration.




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Ashe v. Swenson, 397 U.S. at 444 (1970). This wide reaching review of the prior trial

record is due to the fact that it is extremely hard to reliably glean a jury’s reasoning from

a general verdict in a criminal case. Ashe v. Swenson, 397 U.S. at 444.

       Ashe v. Swanson forbids a second trial only if, to secure a conviction, the

prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor

in the first trial. Currier v. Virginia, __ U.S. __, 138 S. Ct. 2144, 2150, 201 L. Ed. 2d 650

(2018). Mere speculation that a defendant prevailed on the disputed issue at the original

trial will not preclude a second trial. Currier v. Virginia, 138 S. Ct. at 2150.

       Joe Mata argues that the State held the burden, under RAP 16.9(a), to provide

records for this court in order to establish that the two ultimate issues under the first

prosecution and the second prosecution differed. Thus, according to Mata, the State’s

complaint about a lack of evidence in the record from which to compare the records in

both cases works against the State. We disagree since Mata, as the one asserting

collateral estoppel, possesses the burden of establishing the doctrine. In re Personal

Restraint of Moi, 184 Wn.2d at 579 (2015).

       The State emphasizes that Joe Mata could have, but failed to, supply the court with

any evidence from the Pierce County trial. In reply, Mata appended the Pierce County

Superior Court charging information, Mata’s stipulation to his prior convictions and lack


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of firearm rights, jury instructions, verdict form, and judgment and sentence. Petitioner’s

Reply Br. Appx. at 1-14, 27-61. We already had the verdict form. Mata failed to supply

this court the trial transcript from the Pierce County case and any other records to show

what evidence regarding firearm possession was admitted or excluded. With this limited

information, this court cannot engage in the searching analysis required by Ashe v.

Swanson and its progeny. We cannot determine on what basis the jury found that Joe

Mata did not possess a firearm in Pierce County.

       To the extent this court can analyze the collateral estoppel issue, the unlawful

possession acquittal from Pierce County did not resolve an ultimate issue required to be

decided in the Yakima County robbery charges. Despite involving the same gun, the

ultimate issues in the two cases were different.

       The ultimate issue in Yakima County was whether or not Joe Mata displayed the

gun, or what appeared to be a gun, during the course of robbing Zachary Sisneros and

Shaun Kroeger. In Pierce County, the ultimate issue was whether or not Mata knowingly

possessed that same gun at a different time, under completely different circumstances,

and in a completely different location.

       Instead of comparing the facts of the two trials, Joe Mata attempts to borrow this

court’s unit of prosecution analysis from his earlier first direct appeal, used to assess


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whether double jeopardy barred conviction based on unlawful possession of a firearm,

onto the collateral estoppel analysis at issue here. State v. Mata, 180 Wn. App. at 116-18

(2014). This argument confuses the issues. The unit of prosecution test employs a

distinct legal inquiry into whether the legislature defined two offenses or a single offense,

whereas the collateral estoppel doctrine demands a highly fact-specific inquiry into the

trial evidence and the jury verdict. State v. Mata, 180 Wn. App. at 116 (2014), with Ashe

v. Swanson, 397 U.S. at 444 (1970); see also 12 ROYCE A. FERGUSON, JR., WASHINGTON.

PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 2112 (3d ed. 2018). The accused

generally utilizes the unit of prosecution test when the State charges him with two

discrete counts of the same crime. The accused often employs the principle of collateral

estoppel when the State charges and tries separately different offenses, but when the State

presents the same evidence in each trial. 12 FERGUSON, supra, § 2112, at 480. The

analyses are independent of each other.

       Because Joe Mata fails to fulfill the first element of collateral estoppel, we do not

address whether he satisfies the other three elements. We also need not address the

State’s contention that collateral estoppel never bars the later introduction of evidence.




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                                      CONCLUSION

       We rule that collateral estoppel did not bar the State of Washington’s prosecution

for first degree robbery in Yakima County Superior Court despite the acquittal on a

charge of unlawful possession of a firearm in Pierce County Superior Court. We dismiss

Joe Mata’s personal restraint petition.

       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.



                                          Fearing, J.

WE CONCUR:




Siddoway, J.




Pennell, C.J.




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