The State of Washington, Respondent, v. Armin Agustin Cubias, Petitioner, 155 Wash. 2d 549

¶1 Alexander, C. J. —Ajury found Armin Cubias guilty of three counts of attempted murder in the first degree. Pursuant to RCW 9.94A.589(l)(b), the trial judge concluded that the offenses arose from “separate and distinct criminal conduct” and, consequently, imposed consecutive sentences on all counts. Cubias claims that the imposition of consecutive sentences was unconstitutional in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.

Ed. 2d 435 (2000), because it had the effect of increasing his sentence beyond the statutory maximum based on facts not found by the jury. We conclude that the principle set forth in Apprendi and Blakely does not apply to the imposition of consecutive sentences. We, therefore, uphold the sentences imposed by the trial court. I ¶2 On March 25, 2001, Armin Cubias and two fellow gang members happened upon three rival gang members: John Komotios, William Rosalez-Gomez, and Oscar Cruz.

Members of the two gangs engaged in an exchange of verbal insults and “hand signals.” Verbatim Report of Proceedings (RP) (Dec. 5, 2001) at 129. During this exchange, Cubias drew his gun and began shooting at Komotios, Rosalez-Gomez, and Cruz. Komotios ran away unharmed, while Cruz was seriously injured when he sustained gunshot wounds to his arm and face. Rosalez-Gomez was shot in the abdomen. f 3 Cubias was charged in King County Superior Court with the attempted first degree murders of Cruz (count I), Rosalez-Gomez (count II), and Komotios (count III).

In addition, the State alleged that Cubias was armed with a firearm during the commission of each of the charged offenses. A jury found Cubias guilty of all three charges and returned special verdicts that he was armed with a firearm during each attempted murder. At sentencing, the trial court concluded that, because there were separate victims, Cubias’ offenses arose from separate and distinct criminal conduct. It, therefore, sentenced him to serve 180 months in prison on each count together with a 60-month firearm enhancement on each count.

It ordered that the sentences run consecutively. ¶4 Cubias appealed his conviction to Division One of the Court of Appeals, which affirmed. State v. Cubias, noted at 119 Wn. App. 1018 (2003). He sought review here on issues unrelated to the one before us. However, while his petition was pending, the United States Supreme Court handed down its decision ixi Blakely. This prompted Cubias to file a supplemental petition in which he claimed that the sentencing court’s imposition of consecutive sentences was unlawful in light of Blakely. We granted review only on that issue.

II f5 Cubias contends that because the imposition of consecutive sentences had the effect of increasing his total sentence beyond the statutory maximum sentence for any one of the counts of attempted first degree murder, he was denied his constitutional right to have a jury determine all of the facts necessary to support consecutive sentenceing. We review constitutional challenges de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004) (citing City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004)), cert. denied, 544 U.S. 922 (2005).

III ¶6 Sentencing courts are required to impose consecutive sentences when a defendant is convicted of two or more “serious violent offenses” that arise from “separate and distinct criminal conduct.” RCW 9.94A.589(l)(b). Although separate and distinct criminal conduct is not statutorily defined, it is well established that when an offense does not constitute the “same criminal conduct,” the offense is necessarily separate and distinct. See State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).

We have determined that “[o]ffenses arise from separate and distinct [criminal] conduct when they involve separate victims.” In re Pers. Restraint of Orange, 152 Wn.2d 795, 821, 100 P.3d 291 (2004) (citing State v. Wilson, 125 Wn.2d 212, 220, 883 P.2d 320 (1994); State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994)); see also State v.

Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987). ¶7 Relying on decisions of the United States Supreme Court in Apprendi and Blakely, Cubias contends that a jury, rather than a judge, must determine whether his convictions arose from separate and distinct criminal conduct and that this determination must be based on proof convincing beyond a reasonable doubt.

In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. In Blakely, the Court clarified its decision in Apprendi and concluded that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” Blakely, 542 U.S. at 303.

It went on to say: ‘‘In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 303-04. Significantly, in both Blakely and Apprendi, the United States Supreme Court was directing its attention to the sentence on a single count of a multiple-count charge. ¶8 In our view, consecutive sentencing decisions do not trigger the concerns identified in Apprendi.

We say this because not only were consecutive sentences not at issue in that case, the court deemed them irrelevant for purposes of its holding. Apprendi, 530 U.S. at 474. The state of New Jersey had argued there that the sentencing court could have ordered that the defendant’s sentence on the count in question, count 18, run consecutively to two other counts, counts 3 and 22, and that if it had done so, it would have resulted in the imposition of an enhanced sentence equivalent to that which the defendant received based on the sentencing court’s finding that count 18 was motivated by racial bias.

The State posited that the defendant’s “actual sentence was thus within the range authorized by statute for the three offenses to which he pleaded guilty.” Id. (citation omitted). The Court rejected this argument, indicating: The constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count.

The finding is legally significant because it increased— indeed, it doubled — the maximum range within which the judge could exercise his discretion, converting what otherwise was a maximum 10-year sentence on that count into a minimum sentence. The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts. Id. (emphasis added).

Simply put, Apprendi does not have any application to consecutive sentences; to conclude otherwise would extend Apprendi'& holding beyond the narrow grounds upon which it rested. ¶9 We are also satisfied that the Blakely decision does not preclude a sentencing court from imposing consecutive sentences in a case such as we have here. While it is true that the imposition of consecutive sentences increases a defendant’s aggregate term of imprisonment, it is significant that in Blakely, like Apprendi, the Court was not concerned with consecutive sentences.

Indeed, the Court considered the sentence on an additional count irrelevant. Blakely, 542 U.S. at 299 n.2. It seems clear from Blakely that so long as the sentence for any single offense does not exceed the statutory maximum for that offense, as is the case here, Blakely is satisfied. Additionally, we note that consecutive sentences increase a defendant’s total sentence because he or she was convicted of multiple serious violent offenses, not because the sentence exceeded the statutory maximum for any single offense.

A defendant has no right to serve concurrent sentences for committing multiple serious violent offenses. See State v. Salamanca, 69 Wn. App. 817, 827-28, 851 P.2d 1242 (1993); see also David Boerner, Sentencing in Washington §§ 5.8(b), 6.20 (1985). Thus, we are convinced that consecutive sentences do not violate Blakely. ¶10 Our conclusion is consistent with a well reasoned decision by Division One of the Court of Appeals in State v. Kinney, 125 Wn. App. 778, 106 P.3d 274 (2005), a case in which that court addressed a question identical to the one before us now.

The facts there were that the defendant, Kinney, pleaded guilty to two counts of attempted first degree murder and one count of first degree murder. The trial court determined that the offenses constituted separate and distinct criminal conduct and, therefore, imposed consecutive standard range sentences. On appeal, the defendant argued, as Cubias does here, that the imposition of consecutive sentences violated Blakely and Apprendi.

The Court of Appeals rejected this contention reasoning that, as the United States Supreme Court in those cases was “concerned with facts used to enhance a sentence for an individual crime,” consecutive sentences are not prohibited because a sentencing court’s “determin[ation] that two crimes are separate offenses under RCW 9.94A.589(l)(

b) does not operate to elevate either crime to the equivalent of a greater offense merely because ... it results in two standard range sentences running consecutively.” Id. at 782, 783. f 11 Our holding is also in line with the position taken in most other jurisdictions that have faced this issue. See United States v. Hicks, 389 F.3d 514, 532 (5th Cir. 2004); United States v. Chorin, 322 F.3d 274, 278-79 (3d Cir. 2003); United States v. Buckland, 289 F.3d 558, 570-71 (9th Cir. 2002); United States v. White, 240 F.3d 127, 136 (2d Cir. 2001); Wright v. State, 46 P.3d 395, 398 (Alaska Ct. App. 2002) ; People v.

Sykes, 120 Cal. App. 4th 1331, 16 Cal. Rptr. 3d 317, 327 (2004); People v. Allen, 78 P.3d 751, 755 (Colo. Ct. App. 2001); People v. Wagener, 196 Ill. 2d 269, 284-85, 752 N.E.2d 430, 256 Ill. Dec. 550 (2001); Cowens v. State, 817 N.E.2d 255, 255 (Ind. Ct. App. 2004); State v. Jacobs, 644 N.W.2d 695, 698-99 (Iowa 2001); State v. Bramlett, 273 Kan. 67, 69-70, 41 P.3d 796 (2002); Commonwealth v. Lepper, 60 Mass. App. Ct. 36, 798 N.E.2d 1030, 1039-40 (2003); State v. Senske, 692 N.W.2d 743 (Minn. Ct. App. 2005); State v. Anderson, 374 N.J. Super. 419, 422, 864 A.2d 1174 (2005); State v.

Higgins, 149 N.H. 290, 303, 821 A.2d 964 (2003); State v. Robinson, 146 S.W.3d 469, 499 n.14 (Tenn. 2004). IV ¶12 In sum, we conclude that the trial court’s imposition of consecutive sentences under RCW 9.94A.589(l)(

b) does not increase the penalty for any single underlying offense beyond the statutory maximum provided for that offense and, therefore, does not run afoul of the decisions of the United States Supreme Court in Apprendi and Blakely. Accordingly, we affirm the trial court’s decision that the sentences imposed on Cubias for three counts of attempted first degree murder run consecutively. Bridge, Owens, Fairhurst, and J.M. Johnson, JJ., concur. Attempted murder in the first degree is a serious violent offense. RCW 9.94A.030(37)(a)(i), (ix). RCW 9.94A.589(l)(

a) defines “same criminal conduct” as “two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.” “Petitioner further agreed to an additional charge of second-degree assault involving domestic violence. The 14-month sentence on that count ran concurrently and is not relevant here” Blakely, 542 U.S. at 299 n.2 (emphasis added) (citation omitted). Even if the defendant had correctly asserted that the jury is required to make the factual determination necessary to support consecutive sentencing, the jury did so here.

In its verdict, the jury determined that Cubias was guilty of each count charged. Because each count alleged a separate victim, it is merely a legal conclusion from these factual determinations that the criminal conduct charged in each count was separate and distinct criminal conduct. See Orange, 152 Wn.2d at 821; Lessley, 118 Wn.2d at 778.