In the Matter of the Personal Restraint of Brent Allen Davis, Petitioner, 142 Wash. 2d 165

Madsen, J. — Petitioner Brent Allen Davis pleaded guilty to two counts of possession of marijuana with intent to manufacture or deliver. RCW 69.50.401(a)(l)(iii). His convictions were based on two marijuana grow operations housed in separate single family dwellings. Davis brings this personal restraint petition alleging his two grow operations were one statutory “unit of prosecution,” and thus his two convictions violate the double jeopardy clauses of the state and federal constitutions under this Court’s decision in State v. Adel, 136 Wn.2d 629, 965 P.2d 1072 (1998).

In a published split decision, the Court of Appeals, Division One, denied Davis’ petition. In re Personal Restraint of Davis, 95 Wn. App. 917, 977 P.2d 630 (1999). We affirm. FACTS The facts, which Davis agrees to, are set forth in the Certification for Probable Cause. State v. Davis, No. 31813-6-1, slip op. at 2 (Wash. Ct. App. July 18, 1994).

This certification provides in part: On January 31, 1992, the King County Police served three narcotic search warrants upon the premises located at 4607 264th NE (“264th address”), 22122 NE 13th PI. (“13th address”) and 3806 230th Ct. (“230th address”), King County, Washington. The warrants directed the police to seize any controlled substances, dominion and control papers, and paraphernalia items present in the residences.

The police first served the warrant upon the 264th address and located in the garage of the home a marijuana grow operation, including approximately 90 suspected marijuana plants, halide lights, ballasts, timers, and fans, which are items used to grow and cultivate marijuana. The police found an Ohaus scale and numerous papers indicating that defendant Telford lived in the subject residence. They also found two receipts in the house, both in the name of “Brad Alan,” listing the 13th address and the 230th address. [Count I] The police next executed the warrant upon the 13th address.

In the back of the house, the police located another grow operation, with approximately 80 suspected marijuana plants and grow paraphernalia items. They found paperwork in the house with Telford’s name and in the name of a “Brian Miller.” A boat was parked in the garage of the house which was owned by defendant Davis .... [T]he police met with . . . the owner of the 13th address who told the police that Davis rented the home under the name of “Brian Miller” together with his girlfriend defendant Denaxas.

He also turned over the rental agreement which showed “Brian Miller” and Denaxas as the lessees of the house. [Count II] The police then served the warrant upon the 230th address. Parked in front of this address was a jeep [sic] Cherokee belonging to Davis .... In the basement police found a grow farm which apparently at one time was significantly larger. The police confiscated approximately 200 “starter” plants and several pounds of suspected dried marijuana found in the living room. They also located approximately $4600 in cash, an Ohaus scale, and numerous papers in the name of Brent Davis.

The police interviewed the owner of the home . . . who stated that Davis had rented the house under the name of “Brad Alan”.... [Count III] On February 4, Telford was arrested by the police and signed a written confession as to the entire operation. He told the police that he had been hired by Davis to tend the grow operation at the 264th address which Telford stated was where he lived. Telford stated that Davis provided the materials for the grow and agreed to pay Telford $20,000 as “commission” for the first “harvest.” Davis also agreed to pay Telford’s rent on the house and the utilities.

Telford further stated that Davis had set up grows at both the 13th and 230th addresses!.] The circumstances indicate that Davis is using the three homes for grow operations and is making a significant amount of money from this “business.” State v. Davis, slip op. at 2-3 (quoting Certification for Probable Cause). On May 19, 1992, the King County Prosecutor (State) charged Davis with three counts of possession with intent to manufacture or deliver marijuana in violation of the Uniform Controlled Substances Act. RCW 69.50-.dORaXlXiii). The State dismissed the first count and Davis pleaded guilty to the latter two.

At his sentencing hearing in King County Superior Court, Davis argued his two convictions should be treated as one crime for purposes of computing his offender score because they “encompass the same criminal conduct. . . See RCW 9.94A.400(l)(a). The trial judge rejected this contention, stating: Looking at the facts of this case, I find two different marijuana grow operations. I find that the defendant is guilty of two different crimes. ... I do not find the same criminal conduct.

I find that there were significant factual differences between the associates involved in the different charges, between the names used, between the nature of the grows .... I think he spread his risk by having various operations going and this enterprise was a business, calculated risk/reward assessment.... If they had all been in the same house it would have been one crime .... Verbatim Report of Proceedings (Nov. 4, 1992) at 8-9. Davis was assigned an offender score of three for each count and sentenced to concurrent terms of 12 months.

He brought a direct appeal, contending the trial court erred in finding his two marijuana grow operations were not part of the same course of criminal conduct for purposes of computing his offender score. On July 18, 1994, the Court of Appeals affirmed his sentence in an unpublished decision. On October 15, 1998, this Court issued its opinion in State v. Adel, 136 Wn.2d 629. Davis filed his personal restraint petition on December 10, 1998.

Relying on Adel, Davis argues his two separately located marijuana grow operations constituted only one statutory “unit of prosecution,” and, hence, his two convictions violated his double jeopardy rights under the state and federal constitutions. The Court of Appeals denied Davis’ petition, holding that under a unit of prosecution analysis a “separate and distinct intent to manufacture drugs” is required, and this intent is established by Davis’ two grow operations. In re Personal Restraint of Davis, 95 Wn. App. at 924 (emphasis omitted).

Judge Becker dissented, reasoning that the two grow operations evidence only one “intention to grow marijuana for commercial purposes.” Id. at 926 (Becker, J., dissenting). Davis sought discretionary review. The University of Washington Appellate Advocacy Clinic represents Davis. The Washington State Attorney General (Attorney General) appears as amicus curiae.

ANALYSIS “To obtain relief in this personal restraint petition, the defendant must show he was actually and substantially prejudiced either by a violation of his constitutional rights or by a fundamental error of law.” In re Personal Restraint of Benn, 134 Wn.2d 868, 884-85, 952 P.2d 116 (1998) (citing In re Personal Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994); In re Personal Restraint of St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492 (1992); In re Personal Restraint of Hews, 99 Wn.2d 80, 87, 660 P.2d 263 (1983); In re Personal Restraint of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990)).

Davis contends his two marijuana grow operations, each at a different location, constitute only one “unit of prosecution” under RCW 69.50.401(a)(l)(iii). Thus, Davis argues that his multiple convictions punished him twice for the same statutory “unit of prosecution” in violation of the double jeopardy clauses of the state and federal constitutions. The State argues that each of Davis’ grow operations served as the basis for a separate statutory offense.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb .. . .” Washington’s analogous constitutional provision, found in

article I,

section 9, proclaims: “No person shall be . . . twice put in jeopardy for the same offense.” Const, art. I, § 9. The federal and state provisions afford the same protections and are “identical in thought, substance, and purpose.” State v. Schoel, 54 Wn.2d 388, 391, 341 P.2d 481 (1959); see also Adel, 136 Wn.2d at 632. “Double jeopardy is implicated whether or not [a defendant’s] sentences are served concurrently or consecutively.” Adel, 136 Wn.2d at 632 (citing Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668, 84 L.

Ed. 2d 740 (1985)). “To determine if a defendant has been punished multiple times for the same offense, this court has traditionally applied the ‘ “same evidence” ’ test. .., [which] mirrors the federal ‘same elements’ standard adopted in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). ” Adel, 136 Wn.2d at 632.

But that test applies only when a defendant is convicted of violating “several statutory provisions.” Id. at 633 (emphasis omitted). “If a defendant is convicted of violating a single statute multiple times, the proper inquiry... is ‘what “unit of prosecution” has the Legislature intended as the punishable act under the specific criminal statute.’ ” State v. Tili, 139 Wn.2d 107, 113, 985 P.2d 365 (1999) (quoting Adel, 136 Wn.2d at 634). Although unit of prosecution cases are of constitutional dimension, they are resolved by questions of statutory

interpretation and legislative intent. Adel, 136 Wn.2d at 634. Subject only to the constraints of the Eighth Amendment, the Legislature may define and punish criminal conduct. Id. Nevertheless, “[i]f the Legislature has failed to denote the unit of prosecution in a criminal statute, the United States Supreme Court has declared the ambiguity should be construed in favor of lenity.” Id. at 634-35 (citing Bell v. United States, 349 U.S. 81, 84, 75 S. Ct. 620, 99 L. Ed. 905 (1955)).

However, “[t]his in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read.” Bell, 349 U.S. at 83. “ ‘The first step in the unit of prosecution inquiry is to analyze the criminal statute.’ ” Tili, 139 Wn.2d at 113 (quoting Adel, 136 Wn.2d at 635). Davis was convicted under RCW 69.50.401(a)(l)(iii), which provides: (

a) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

(1) Any person who violates this subsection with respect to: (iii) any other controlled substance classified in

Schedule I... is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both .... RCW 69.50.401(a)(l)(iii) (emphasis added). The term “manufacture” is statutorily defined to include “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance,” RCW 69.50.101(p), and “production” “includes the manufacturing, planting, cultivating, growing, or harvesting of a controlled substance.” RCW 69.50.101(y).

Davis argues RCW 69.50.401(a)(l)(iii) fails to denote any “unit of prosecution” and, thus, is ambiguous on its face. He urges that the rule of lenity applies and that he should have been charged with one count of possession with intent to manufacture. In Adel, we held that two separately located “stashes” of marijuana—one found in the defendant’s convenience store (less than 0.2 grams) and the other found in the defendant’s car parked in front of the store (0.1 grams)—constituted one statutory unit of prosecution under Washington’s simple possession statute. Adel, 136 Wn.2d at 631, 636.

The statute at issue, RCW 69.50.401(e), provides that “any person found guilty of possession of forty grams or less of marijuana shall be guilty of a misdemeanor.” RCW 69.50.401(e). Because this statute “fails to indicate whether the Legislature intended to punish a person multiple times for simple possession based upon the drug being stashed in multiple places,” the rule of lenity favored a conclusion that Adel had committed “only one count of simple possession.” Adel, 136 Wn.2d at 635.

In ascertaining “legislative intent regarding the unit of prosecution for a simple possession crime,” we referred to the “40 gram cutoff between a misdemeanor and a felony.” Id. at 636. In doing so, we noted that “the Legislature focused solely on the quantity of the drug, and did not reference the spatial or temporal aspects of possession.” Id. We held that “[t]he possession statute does not authorize multiple convictions based upon a drug being stashed in multiple places within a defendant’s actual or constructive possession.” Id.

Since “ [a]ll of the drugs found. . . were within Adel’s dominion and control,” he could be convicted of only one crime. Id. According to Davis, RCW 69.50.401(a)(l)(iii) should be interpreted in the same manner as the statute at issue in Adel. However, RCW 69.50.401(a)(l)(iii) makes no reference to quantity. The Court of Appeals reasoned that this indicates “the Legislature must not have intended to define the unit of prosecution in possession with intent to manufacture cases based on the quantity of drugs possessed.” In re Personal Restraint of Davis, 95 Wn. App. at 922.

The court focused on the intent prong of RCW 69.50-.401(a)(l)(iii), holding that the “‘unit of prosecution’ in possession with intent to manufacture cases is a separate and distinct intent to manufacture drugs.” Id. at 924 (emphasis omitted). Under the court’s holding, “if a defendant’s alleged drug manufacturing operations ‘are sufficiently differentiated by time, location, or intended purpose,’ the defendant may be convicted multiple times for possession with intent to manufacture without violating double jeopardy.” Id. at 925 (emphasis added) (quoting Rashad v. Burt, 108 F.3d 677, 681 (6th Cir. 1977)).

We agree. RCW 69.50.401(a)(l)(iii) punishes both possession of narcotics with intent to deliver and possession with intent to manufacture; however, most of the decisional authority in this area comes from “intent to deliver” cases. This Court’s discussion of two such cases, State v. McFadden, 63 Wn. App. 441, 820 P.2d 53 (1991) send State v. Lopez, 79 Wn. App. 755, 904 P.2d 1179 (1995), in Adel is instructive.

In McFadden, the defendant was charged with two counts of possession of cocaine with intent to deliver based on 83.9 grams of cocaine found in his van and another 5.5 grams brought into an apartment by McFadden during a buy bust operation. One unit of prosecution was satisfied by McFadden’s possession of drugs in the apartment. He intended to sell the 5.5 grams to the occupants of the apartment.... The drugs found in McFadden’s van clearly formed a second unit of prosecution. McFadden possessed the drugs in the van with an obvious intent to deliver them to unknown buyers in the future.

The two crimes charged in McFadden were not premised on the fact that the drug was found in two different locations. The two crimes were premised on the showing that McFadden had two separate and distinct intents to deliver drugs in his possession—one intent to sell in the present to the occupants of the apartment and one intent to sell drugs in the future. Adel, 136 Wn.2d at 638 (some emphasis added). The facts of Lopez stand in contrast to those of McFadden. In Lopez, the defendant “was arrested in a car during a controlled drug buy with an informant.

The cocaine he had just purchased was found on the floorboard of the car, and additional cocaine, unrelated to the present deal, was found on Lopez’s person.” Adel at 638-39. The cocaine found on Lopez’s person was packaged in “14 bindles and appeared to be intended for distribution.” Id. at 639. “Lopez was charged with two counts of possession with intent to deliver, one count based on the cocaine he had just purchased, and the other count based on the separate cocaine found on his person.” Id.

The facts of Lopez supported only one criminal conviction: Lopez may have had two distinct quantities of cocaine under his dominion and control, and evidence showed the two quantities came from separate sources, but none of that evidence was relevant to the unit of prosecution for possession with intent to deliver. The evidence failed to establish more than one intent to deliver the drugs in the future—there were not two distinct intents to deliver, as there were in McFadden. Id.

The “results of Lopez and McFadden compliment [sic] each other , when the proper unit of prosecution analysis is applied to both cases.” Id. Implicit in Adel’s discussion of Lopez and McFadden is the recognition that conduct demonstrating an intent to deliver forms the unit of prosecution under RCW 69.50.401(a)(l)(iii). We conclude that a “separate and distinct” intent to manufacture drugs supports separate units of prosecution under the statute. Our holding in Adel is not to the contrary.

In Adel we focused on the quantity of drugs within the defendant’s dominion and control, rather than on the defendant’s intent. That is because simple possession, unlike possession with intent to manufacture or deliver, is a strict liability offense. State v. Hernandez, 95 Wn. App. 480, 484, 976 P.2d 165 (1999) (citing State v. Vike, 125 Wn.2d 407, 412, 885 P.2d 824 (1994)); but see State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994) (defendant may still assert the defense of “unwitting possession”). Thus, the intent to possess marijuana is itself irrelevant.

Davis argues, though, that RCW 69.50.401(a)(l)(iii) does not indicate what constitutes a “separate and distinct” intent to manufacture drugs and is therefore ambiguous. We disagree. The question of whether a defendant’s conduct evidenced an intent to manufacture drugs is factual. “[E]ven where the Legislature has expressed its view on the unit of prosecution, the facts in a particular case may reveal more than one ‘unit of prosecution’ is present.” State v. Bobic, 140 Wn.2d 250, 266, 996 P.2d 610 (2000); cf. Rashad v.

Burt, 108 F.3d 677, 681 (6th Cir. 1977) (“separate convictions for possession of the same controlled substance [with intent to deliver] will not violate the Double Jeopardy Clause if the possessions are sufficiently differentiated by time, location, or intended purpose” (emphasis added)). Here, each of Davis’ grow operations was located a significant distance from the other. One operation was in Redmond, the other in Issaquah. Each of Davis’ grow operations contained all the equipment necessary to produce marijuana.

By setting up two wholly self-contained grow operations, a “separate and distinct” intent to manufacture marijuana at each location is evident. Indeed, as noted by the trial court, by having separate grow operations Davis was able to spread his risks. In the event that only one grow operation had been uncovered, the other would have continued to thrive. Amicus curiae Attorney General argues, however, in favor of a much broader construction of RCW 69.50-.401(a)(l)(iii) than that offered by the State.

Under the Attorney General’s argument, each individual “harvesting” of marijuana may serve as the basis for a separate unit of prosecution in possession with intent to manufacture cases. This argument is based on the statutory

definitions found in RCW 69.50.101. “Manufacture” is defined to include “the production ... of a controlled substance ....” RCW 69.50.101(p). “ ‘Production’ includes the manufacturing, planting, cultivating, growing, or harvesting of a controlled substance.” RCW 69.50.101(y). We do not accept the argument because, if a defendant can be prosecuted for each harvest, then under the same logic he could be charged with each step in the manufacturing process.

A separate charge could be based on the “planting” of a marijuana seed, the “cultivating” of the crop, the “growing” of the crop, and the “harvesting” of the crop. We construe the statute to mean that drug manufacturing will invariably include “planting,” “cultivating,” “growing,” and “harvesting” marijuana as a continuing course of conduct. See State v. Ammons, 136 Wn.2d 453, 457, 963 P.2d 812 (1998) (“[t]his court will not construe statutes in a way that leads to unlikely, absurd, or strained results”).

CONCLUSION We hold that each of Davis’ separately located and self-contained marijuana grow operations properly served as the basis for a separate unit of prosecution under RCW 69.50.401(a)(l)(iii). Accordingly, Davis’ petition is denied. Guy, C.J., Smith, Alexander, Talmadge, and Bridge, JJ., and Hunt, J. Pro Tem., concur. Davis was charged under RCW 69.50.401(a)(l)(ii). In 1996, the Legislature inserted a new subsection (a)(l)(ii) and redesignated the former subsection (a)(l)(ii) as (a)(l)(iii). Laws of 1996, ch. 205, § 2. All references in this opinion will be to the new subsection, RCW 69.50.401(aXlXiii).

Davis is no longer incarcerated or under state supervision. The State filed a motion with this Court to dismiss Davis’ personal restraint petition on this ground. The motion was denied. As this Court has noted, a “ ‘separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored.’ ” State v. Calle, 125 Wn.2d 769, 773, 888 P.2d 155 (1995) (quoting Ball v. United States, 470 U.S. 856, 864-65, 105 S. Ct. 1668, 84 L.

Ed. 2d 740 (1985) (emphasis omitted)). “ ‘For example, the presence of two convictions on the record may. .. result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction ... certainly carries the societal stigma accompanying any criminal conviction.’ ” Id.