Opinion
No. 50992-6-I
September 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-04915-6. Judgment or order under review. Date filed: 08/05/2002. Judge signing: Hon. Michael J Fox.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Cla Wright — information only (Appearing Pro Se) #792414, 1313 North 13th St. Walla Walla, WA 99362.
Counsel for Respondent(s), Erin Hairopoulos Becker, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Pursuant to State v. Theobald and Anders v. California, the motion to withdraw must:
78 Wn.2d 184, 470 P.2d 188 (1970).
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
[1] be accompanied by a brief referring to anything in the record that might arguably support the appeal. [2] A copy of counsel's brief should be furnished the indigent and [3] time allowed him to raise any points that he chooses; [4] the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.
State v. Theobald, 78 Wn.2d at 185, quoting Anders v. California, 386 U.S. at 744.
This procedure has been followed.
A person commits the crime of robbery in the second degree if he or she unlawfully takes personal property from another against his will by the use or threatened use of immediate force, violence or fear of injury to that person. The force or fear must be used to obtain or retain possession of the property or to prevent or overcome resistance to the taking. RCW 9A.56.190.
Here, there was testimony that Wright took a taxicab belonging to Berube against his will by threatening to shoot him with a gun. Berubi testified that the threat was made while he was struggling with Wright for control of the taxicab. This evidence was sufficient to support the conviction.
A person commits first degree robbery as charged in this case if, while displaying what appears to be a firearm, he or she `unlawfully takes personal property from the person of another or in his presence against his will by the use of threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.' RCW 9A.56.200(1)(b), 9A.56.190. A person commits first degree unlawful possession of a firearm if he or she knowingly owns, possesses, or has control of any firearm after being convicted of any serious offense. RCW 9.41.040; State v. Anderson, 141 Wn.2d 357, 5 P.3d 12 47 (2000). The information in this case contained, and adequately informed Wright of, all the essential elements of these offenses.
Due process requires that a guilty plea be knowing, intelligent, and voluntary. In re Montoya, 109 Wn.2d 270, 744 P.2d 340 (1987). The defendant must be made aware of the acts and state of mind which constitute the crime. In re Montoya, 109 Wn.2d at 278. The defendant must also be made aware of the privilege against self-incrimination, the rights to a jury trial and confrontation, and the direct consequences of the plea. State v. Lujan, 38 Wn. App. 735, 688 P.2d 548 (1984); In re Hilyard, 39 Wn. App. 723, 695 P.2d 596 (1985). Under CrR 4.2(d), the trial court must determine that the plea was `made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea.' The court must also be satisfied that there is a factual basis for the plea.
Wright could argue that his plea did not comport with these requirements. That argument would fail. The written statement on plea of guilty and the plea colloquy meet all the requirements mentioned above and establish that the plea was voluntarily, knowingly, and intelligently made. The certificate of probable cause and the statement on plea of guilty provide an ample factual basis for the plea.
Wright could also argue that the sentencing court erred in failing to treat his convictions as the same criminal conduct. This argument would fail because crimes with different victims are not the same criminal conduct. RCW 9.94A.400(1)(b); State v. Webb, 112 Wn.App. 618, 623-24, 50 P.3d 654 (2002) (robberies with different victims were not the same criminal conduct). Here, a different person was robbed in each robbery count, and the victim of the firearm count was the public. State v. Simonson, 91 Wn.App. 874, 885, 960 P.2d 955 (1998).
RCW 9.94A.120(9)(c)(ii) authorizes courts to require offenders "not [to] have direct or indirect contact with the victim of the crime or a specified class of individuals." Such restrictions are not constitutionally overbroad so long as they are reasonably necessary to protect the public and do not prohibit a real and substantial amount of protected conduct. State v. Riles, 135 Wn.2d 326, 957 P.2d 655 (1998). The robbery victims in this case were a Subway employee and Subway customers. Subway was also a victim because Wright took money from its cash register. In these circumstances, the no-contact order prohibiting Wright from any contact with Subway shops was reasonable and was no overbroad.
In a post-judgment filing, Wright raised the issue of whether his first degree robbery sentence could be enhanced with a firearm enhancement. This issue is moot because the enhancement was dismissed as part of Wright's plea agreement. In any event, Washington courts have repeatedly rejected the argument that weapons enhancements cannot be imposed where use of a weapon was an element of the crime charged. State v. Harris, 102 Wash.2d 148, 160, 685 P.2d 584 (1984), overruled on other grounds in State v. Brown, 111 Wash.2d 124, 761 P.2d 588 (1988); State v. Caldwell, 47 Wash.App. 317, 319, 734 P.2d 542, review denied, 108 Wash.2d 1018 (1987); State v. Pentland, 43 Wash.App. 808, 811, 719 P.2d 605, review denied, 106 Wash.2d 1016 (1986).
Wright could argue that requiring him to provide a DNA sample constitutes an unlawful search under the state and federal constitutions. This court recently rejected the same argument in State v. Surge, No. 51954-9 (Filed July 12, 2004).
I independently reviewed the entire record and found no other potential good faith issues worthy of discussion.