STATE OF WASHINGTON, Respondent / Cross Appellant, v. RIGOBERTO IVAN VAZQUEZ, Appellant / Cross Respondent.
No. 33790-1-III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
AUGUST 22, 2017
PENNELL, J.
PUBLISHED OPINION
PENNELL,
BACKGROUND
Mr. Vazquez was charged with three felonies:1 two counts of first degree assault,
Although charged with firearm enhancements, the jury was not instructed on such. Instead, the jury was provided the following deadly weapon instruction:3
For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime in count [one, two, or three].
A person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the weapon and the defendant or an accomplice. The State must also prove beyond a reasonable doubt that there was a connection between the weapon and the crime. In determining whether these connections existed, you should consider, among other factors, the nature of the crime and the circumstances surrounding the commission of the crime, including the location of the weapon at the time of the crime.
If one participant to a crime is armed with a deadly weapon, all accomplices to that participant are deemed to be so armed, even if only one deadly weapon is involved.
A pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded.
Clerk‘s Papers (CP) at 313-15. None of the jury instructions defined the meaning of a firearm under
Unlike the instructions, the special verdict forms conformed to the charging document and inquired as to whether Mr. Vazquez was armed with a “firearm” at the time of his offense conduct. CP at 332-34. The jury found he was. It returned special firearm verdicts related to each of Mr. Vazquez‘s three felony convictions.
At sentencing, Mr. Vazquez raised two issues regarding his firearm enhancements. First, Mr. Vazquez argued the firearm enhancements could not be imposed on any of his three felony convictions. Because the instructions referred to a deadly weapon and the special verdict forms referred to a firearm, Mr. Vazquez argued no firearm enhancement could be imposed. The State did not concede error, but argued that if there was error it was harmless. The trial court agreed with the State, found that any error was harmless, and imposed the firearm enhancements on the second degree assault charges. Mr. Vazquez‘s second argument was specific to his riot while armed conviction. Citing State v. Soto, 177 Wn. App. 706, 309 P.3d 596 (2013), Mr. Vazquez argued that because riot while armed is an unranked felony, it cannot be assessed an enhancement. The trial court agreed and struck the associated firearm enhancement.
ANALYSIS
In cross appeals to this court, the parties each raise the sentencing arguments they lost in the trial court. The arguments are legal in nature and involve de novo review. Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003 (2014) (statutory interpretation); State v. Bainard, 148 Wn. App. 93, 101, 199 P.3d 460 (2009) (constitutional law).
Mr. Vazquez‘s appeal: the lack of a firearm enhancement instruction
As the parties agree, the court‘s instructions failed to inform the jurors of the elements required for a firearm enhancement under
Mr. Vazquez claims the court‘s erroneous instructions prohibited imposition of any firearm enhancements. We disagree. Although the failure to instruct on firearms, as opposed to deadly weapons, was significant, it is not the kind of error that automatically requires reversal. Mr. Vazquez‘s arguments to the contrary conflate instructional error with imposition of an unauthorized sentence. While an unauthorized sentence requires correction, Recuenco, 163 Wn.2d at 442, instructional error does not. Id. at 441. Instead, we apply a constitutional harmless error analysis. Under this approach, an error will not require reversal if it is harmless beyond a reasonable doubt. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002).
Application of the harmless error test to Mr. Vazquez‘s case reveals reversal is unwarranted. Uncontroverted evidence supported the jury‘s firearm finding. Not only did Mr. Vazquez admit discharging a gun, the State‘s video evidence depicted muzzle flashes coming from the weapon. This evidence left no doubt that the firearm involved in Mr. Vazquez‘s offense was not only one from which “a projectile or projectiles may be fired,” but that the device utilized “an explosive such as gunpowder” to do so.
Contrary to Mr. Vazquez‘s assertions, this case is distinguishable from State v. Recuenco. Recuenco did not involve instructional error. It involved a sentencing error, whereby the trial court imposed an enhancement that had neither been charged by the State nor authorized by the jury. 163 Wn.2d at 441. Because our prejudice analysis for instructional errors is different than that for sentencing errors, Recuenco is unhelpful to Mr. Vazquez‘s arguments on appeal.
The State‘s cross appeal: application of a firearm enhancement or deadly weapon verdict to Mr. Vazquez‘s riot while armed conviction
Challenge to State v. Soto
The State asks us to part company with our prior decision in State v. Soto, which held that a statutory firearm enhancement under
In Soto, the State urged us to interpret
The State now asks us to delve deeper into Soto‘s statutory analysis. It claims that even if Soto‘s reasoning is sound; the outcome is invalid because it fails to account for the legislative history of
The State‘s invitation to reopen Soto rests on questionable grounds. Apart
The State makes two arguments regarding legislative history. First, the State references the statement of purpose that was issued along with the initial enactment of the enhancement provisions of Initiative 159, the Hard Time for Armed Crime Act, LAWS OF 1995, chapter 129. The statement, provided, in pertinent part:
(2) By increasing the penalties for carrying and using deadly weapons by criminals and closing loopholes involving armed criminals, the people intend to:
(a) Stigmatize the carrying and use of any deadly weapons for all felonies with proper deadly weapon enhancements.
LAWS OF 1995, ch. 129, § 1(2) (emphasis added). According to the State, this statement makes clear Initiative 159 was intended to apply to “all felonies,” not just ranked felonies. Second, the State points out that the prefatory language relied on in Soto for limiting the scope of
As an initial matter, the statement of purpose accompanying Initiative 159 did not provide that increased penalties applied to “all felonies.” It stated that increased penalties applied to all felonies “with proper deadly weapon enhancements.” This limitation was important since our Supreme Court held, long before, that weapons enhancements are not constitutionally available for all felonies. State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). The qualified language contained in Initiative 159‘s statement of purpose reflects an awareness that firearm or deadly weapons enhancements would not, in fact, apply to each and every felony offense. Thus, the statement of purpose is not at odds with Soto.
With respect to the 2002 amendment, the change in language was not significant to any of our analysis in Soto. In 1995, when the firearm enhancement was first enacted, the governing statute read as follows:
(3) The following additional times shall be added to the presumptive sentence for felony crimes committed after the effective date of this section if the offender or an accomplice was armed with a firearm . . . and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any firearm enhancements based on the classification of the completed felony crime.
Former
Based on the foregoing, nothing in the legislative history indicates Soto‘s interpretation of
Viability of the firearm verdict for strike purposes
The State argues, based on
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In his statement of additional grounds, Mr. Vazquez asserts: (1) trial counsel was ineffective, (2) the jury selection process was unfair because most of the jurors were elderly and Caucasian, and the one Hispanic juror “profiled” him before trial, and (3) the police investigation was biased against him. Full consideration of these arguments requires knowledge of facts and evidence that are not part of the appellate record. The proper avenue for presenting such facts and evidence is through a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). This is an option Mr. Vazquez should consider if he wants full review of these arguments. As such, we decline to review them here.
CONCLUSION
We affirm the judgment and sentence imposed by the superior court. Mr. Vazquez‘s requests to (1) enlarge time to file his report as to continued indigency and (2) deny costs are granted.
Pennell, J.
WE CONCUR:
Lawrence-Berrey, A.C.J.
Korsmo, J.