State v. PriceState v. Price
Mark Thompson, Deputy Pros. Atty., Thurston County Pros. Office, Olympia, for Respondent.
Claude Allen Price, Jr. appeals multiple convictions, claiming that: (1) firing a gun into a car cannot be a substantial step toward commission of murder; (2) four convictions for attempted murder of two victims should not be served consecutively; (3) the firearm enhancement should run concurrently; (4) the jury instructions were erroneous; and (5) he suffered ineffective assistance of counsel for counsel‘s failure to object to all counts being served consecutively. We affirm the convictions, but remand for resentencing with regard to the firearm enhancements on Counts VIII, IX, and XI.
Price stole Johnson‘s 1992 Silverado pickup. Johnson attempted to stop the theft and Price bumped Johnson with the truck, knocking him to the ground. Later that evening, Price, his friend Reade, and two women stopped at a tavern where Reade tried to steal a truck parked outside. The group next went to a shopping mall, where Reade walked around the parking lot looking for a car to steal. Still unsuccessful, the foursome next stopped at a gas station in the stolen truck, where Reade tried again to steal a vehicle. At 10:30 P.M., Aleta Nakano, driving by the gas station with her boyfriend, Larry Hooper, noticed Johnson‘s truck slow and come to a stop in the middle of the road. Nakano then saw Reade exit the passenger‘s side of the pickup and jump out into the parking lot of the gas station.
Next, Nakano observed Reade climb into an unattended idling Chevrolet pickup and begin to drive away from the gas station. The owner of the vehicle returned and Reade ran away (he did not return to the Silverado). Hoping to get the Silverado‘s license number, Nakano followed the truck and pulled off the road behind the truck when it stopped and parked in a gravel area on Deschutes Parkway. Price exited the driver‘s side holding a gun and he pointed it at the windshield of Nakano‘s vehicle.
Nakano and Hooper then ducked and drove off. Nakano heard a bang to the right side of her car. This bang was a single shot fired by Price that lodged in the passenger‘s headrest. The Silverado followed her. Nakano, driving as fast as she could to get away, drove down Deschutes Parkway, onto the freeway on-ramp, and onto northbound Interstate 5. The Silverado pursued Nakano and Hooper down the on-ramp, onto the interstate, and pulled up along side her vehicle. The pair ducked, and next heard two gunshots. The Silverado “shot off into the fast lane” and Nakano and Hooper quickly exited the interstate and drove to the Olympia Police Department. RP 102; 104-105. Later, the police found bullet holes in the passenger side window, the driver‘s door,
At approximately 11:00 P.M. that same evening, Officer Charlie Lindsay, in a marked patrol car, intercepted the Silverado after it ran a red light. From the license plate, Officer Lindsay knew the Silverado had been reported as stolen. He activated his emergency lights and siren and pursued the Silverado for a mile and a half from speeds ranging from 40 to 90 mph. The Silverado crashed, hitting a large rock wall. When Officer Lindsay pulled Price from the vehicle, Price was swinging his arms and kicking at Officer Lindsay. The gun seized from the truck driven by Price was registered to Sven White, Price‘s roommate. White had reported it stolen earlier that month.
Price rested at trial without presenting evidence. Price pleaded guilty to unlawful possession of a firearm before trial. The jury returned verdicts of guilty on: (1) the attempted first degree murder of Nakano (Count I) and Hooper (Count II) on Deschutes Parkway; (2) the attempted first degree murder of Nakano (Count III) and Hooper (Count IV) on Interstate 5; (3) theft of a firearm; (4) assault in the second degree; (5) attempted theft in the first degree; (6) attempting to elude a police vehicle; (7) assault in the third degree; (8) and possession of stolen property. The jury also found Price was armed with a firearm during the commission of the offenses.
The trial court sentenced Price to a standard range for each count plus firearm enhancements for Counts I-IV, XIII, IX, and XI. The sentences for four attempted murder charges (Counts I-IV) were imposed consecutively pursuant to
I. ATTEMPTED FIRST DEGREE MURDER
The State charged Price in Counts I-IV with attempted first degree murder. Counts I and III named Nakano (the driver) as the victim, and Counts II and IV named Hooper (the passenger) as the victim. Counts I and II stemmed from the shooting on Deschutes Parkway; Counts III and IV related to the second shooting on Interstate 5. Price argues that his actions did not constitute attempted murder toward each separate victim because firing one shot into the vehicle could not constitute a substantial step toward the commission of first degree murder for both Nakano and Hooper. By assignment of error in his brief, Price refers only to the first shooting on Deschutes Parkway, and contests only his convictions on Counts I and II. Price, however, at oral argument, conceded that he was not contesting his conviction on Count I. Regardless of the concession, we hold that there was substantial evidence for Price‘s conviction on Count I, the attempted murder of Nakano, the driver. Price also clarified at oral argument that his position regarding Count II is based upon the fact that he fired only one shot into the vehicle and he intended to kill only the driver, not the passenger.
A person commits the crime of first degree murder when, with premeditated intent to cause the death of another person, he causes the death of such person.
The State bears the burden of proving every element of the crime charged beyond a reasonable doubt. State v. Billups, 62 Wash.App. 122, 126, 813 P.2d 149 (1991) (citing State v. Aver, 109 Wash.2d 303, 310, 745 P.2d 479 (1987)). On review, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Billups, 62 Wash.App. at 126. Whether conduct constitutes a substantial step is a question of fact. Workman, 90 Wash.2d at 449; Billups, 62 Wash.App. at 126. We hold that a reasonable jury could have found that the act of firing a single bullet into a vehicle occupied by two people sufficiently corroborated that Price took a substantial step toward commission of first degree murder for both victims.
First, Price seems to be arguing that firing one shot cannot constitute a substantial step toward the commission of attempted first degree murder for more than one victim. This argument is without merit; Price did not need to fire two bullets (one for each victim) at Nakano‘s car to kill or injure both victims. Moreover, factual impossibility is not a defense to an attempted crime.
Second, neither does the fact that Price may have thought that the car was only occupied by the driver prevent him from possessing the requisite intent as to the passenger, Hooper. The State argues that the doctrine of transferred intent is applicable to this case. But the statutory definition of first degree murder does not require specific intent for a specific victim. What is required is the specific intent to cause someone‘s death. The statute provides that a defendant is guilty if he, with the intent to cause the death of any person, in fact caused the death of that person or of a third person.
Examining the substantiality of the evidence, Price does not dispute that he possessed the requisite intent to shoot and kill Nakano, or that he fired the single shot into her vehicle on Deschutes Parkway.3 Furthermore, a jury could reasonably infer specific intent to kill as a logical probability from the evidence indicating that the defendant fired a weapon at the victims. State v. Hoffman, 116 Wash.2d 51, 84-85, 804 P.2d 577 (1991). See also State v. Salamanca, 69 Wash.App. 817, 826, 851 P.2d 1242, review denied, 122 Wash.2d 1020, 863 P.2d 1353 (1993) (holding evidence sufficient to support
II. SAME CRIMINAL CONDUCT FOR CONSECUTIVE SENTENCES
Price objects to the imposition of consecutive sentences for Counts I and III involving Nakano, and Counts II and IV regarding Hooper. The trial court imposed consecutive sentences on these counts because it found that the two shooting incidents constituted “separate and distinct” criminal conduct. We agree.
Former
Courts look to the factors articulated in 9.94A.400(1)(a) defining “same criminal conduct” to determine whether crimes are “separate and distinct” under
Price relies upon the same arguments for both victims Nakano and Hooper, so we address both victims together. Clearly, the two sets of charges as to each victim meet the “same victim” requirement of
A. Time and Place
First, although the shootings did not occur concurrently, they did occur close in time. The Supreme Court has specifically rejected a requirement that the offenses occur simultaneously in order to be the same criminal conduct. State v. Porter, 133 Wash.2d 177, 183, 185-186, 942 P.2d 974 (1997). In Porter, the Supreme Court held that the “same time” and “same intent” elements of the same criminal conduct test were
Second, the trial court concluded that the two shootings took place at two sufficiently distinct, separate locations to make Price‘s criminal conduct separate and distinct. Here, the trial court was correct. Price first fired into Nakano‘s vehicle while stopped on the Deschutes Parkway, within the Tumwater city limits. (Counts I and II). The second shooting took place when both cars were traveling on the interstate, within the Olympia City limits. (Counts III and IV). Consequently, the two incidents took place at two different physical locations, and therefore did not constitute the “same criminal conduct.”
B. Intent
Having held that the shootings did not occur at the same time or place, we need not examine the intent requirement because all three requirements must be satisfied for a finding of same criminal conduct. Porter, 133 Wash.2d at 181. We choose, however, to examine the intent element, as it also changed between the two shooting incidents. See Lessley, 118 Wash.2d at 778-79.
The Supreme Court has held that in construing the “same criminal intent” prong, the standard is the extent to which the criminal intent, objectively viewed, changed from one crime to the next. Vike, 125 Wash.2d at 411 (citing State v. Dunaway, 109 Wash.2d 207, 215, 743 P.2d 1237 (1987)). First, we must objectively view each underlying statute and determine whether the required intents are the same or different for each count. Hernandez, 95 Wash.App. at 484. If they are the same, we next objectively view the facts usable at sentencing to determine whether a defendant‘s intent was the same or different with respect to each count. Hernandez, 95 Wash.App. at 484. When dealing with sequentially committed crimes, this inquiry can be resolved in part by determining whether one crime furthered the other. Vike, 125 Wash.2d at 411-12. Thus, even crimes with identical mental elements will not be considered the “same criminal conduct” if they were committed for different purposes. Haddock, 141 Wash.2d at 113.
The State urges this court to find that Price formed different criminal intents because, in the short time between the two sets of shootings, Price had the opportunity to understand that his first attempt to murder Nakano and Hooper was unsuccessful, and then to make the choice to pursue them and attempt to murder them a second time. Relying on State v. Grantham, 84 Wash.App. 854, 932 P.2d 657 (1997), the State specifically argues that because Price had time to pause and reflect after committing the first criminal act and to decide to either cease his criminal activity or to commit a further criminal act, he possessed separate intents as to both shooting incidents. In Grantham, the court held that the defendant‘s two different rapes of the same victim were separate and distinct because Grantham, upon completing the first act of intercourse, had time to either cease his criminal activity or commit a further act, and, thus, formed a new intent. Grantham, 84 Wash.App. at 859.
Our Supreme Court has recently distinguished Grantham and held that a defendant‘s conduct in committing three separate rapes of the same victim was the same criminal conduct for purposes of
Therefore, the question here is whether Price‘s actions were merely sequential, or part of a continuous, uninterrupted sequence of conduct. In Tili the court held the extremely close time frame rendered it unlikely that Tili formed an independent criminal intent between each separate penetration. Tili, 139 Wash.2d at 124. This case is distinguishable from Tili. Here, Price made the choice to return to the stolen Silverado, start the truck, and pursue the victims onto the interstate. This allowed time for Price to form new criminal intent. Like the defendant in Grantham, Price had time to decide either to cease his criminal conduct or to commit a further criminal act. And similarly, Division III has recently upheld the imposition of consecutive sentences for multiple assaults of the same victims because it reasoned that the defendant had time to form new criminal intent. In re Personal Restraint Petition of Rangel, 99 Wash.App. 596, 600, 996 P.2d 620 (2000). The defendant, riding as a passenger, fired at the victims’ vehicle, which crashed. Then, the defendant‘s vehicle turned around, approached again, and the defendant fired a second time. Rangel, 99 Wash.App. at 600. The Rangel court held that the defendant was able to form a new criminal intent, because his acts were sequential, not simultaneous or continuous. Rangel, 99 Wash.App. at 600. Here, Price‘s actions, although sequential, similarly afforded him sufficient time to form two different intents.
We hold that Price did form a new intent. It is true that he still held the intent to kill the driver, Nakano; but at the second incident he also held the intent to kill the passenger, Hooper. Price asserted at oral argument that he did not become aware of the passenger until after the first shooting. And as he drove toward the fleeing car he told his passenger that he wanted to kill the “witnesses“—plural. Report of Proceedings at 290-91. His new intent included killing any witnesses to his attempted murder of the driver on Deschutes Parkway. Each shooting was a complete criminal act itself. Furthermore, the method by which Price could commit the murders changed between the first and second incidents. In the first incident, Price attempted to shoot the driver, Nakano, while standing next to the vehicle. With the second incident, Price could have accomplished the murders by killing only the driver, scaring the driver, or by shooting a vital operating part of the car and causing an explosion or wreck. Thus, the scheme was substantially different from the first shooting incident.
We hold that the criminal conduct as to Counts I and III, and Counts II and IV was separate and distinct criminal conduct requiring that the sentences be served consecutively.
III. FIREARM ENHANCEMENTS
The trial court ordered that all firearm enhancements be served consecutively to each underlying offense and to each other, believing this to be required by the law under former
Notwithstanding any other provision of law, any and all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall not run concurrently with any other sentencing provision.6
First, the State agrees with Price that the trial court erred in ordering the firearm enhancements for Counts VIII, IX, and Count
Second, the State maintains that the trial court properly ordered that the firearm enhancements for Counts I-IV (the four counts of first degree attempted murder) be served consecutively. We agree.
In a case decided after sentencing in this case, the Supreme Court concluded that former “RCW 9.94A.310(3)(e) [was] ambiguous with regard to whether [firearm] enhancements are to always run consecutively to each other or whether
But the “serious violent offense” exception was not at issue before the Supreme Court in Charles, 135 Wash.2d at 245 n. 2. The State argues that nothing in Charles prohibits a trial court from imposing firearm enhancements consecutively to all base sentences and to other firearm enhancements when such sentences are imposed for “serious violent offenses.” RB at 29. We agree.
Serious violent offenses must be served consecutively.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to
ARMSTRONG, C.J., and HUNT, J., concur.