State Of Washington, Respondent V. Maria Gonzales Esquivel, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
MARIA GONZALES ESQUIVEL,
Appellant.
No. 80397-2-I
DIVISION ONE
UNPUBLISHED OPINION
L EACH, 	J. 	— 	Maria 	Gonzales 	Esquivel 	previously 	appealed 	her
indeterminate life sentence for domestic violence rape in the second degree. We
remanded for a determinate sentence. 	On remand, the trial court sentenced
Esquivel to 372 months. 	She appeals and contends the State violated her right
to due process and engaged in presumptive prosecutorial vindictiveness when it
recommended a sentence double the length of its original recommendation. We
disagree and affirm.
BACKGROUND
On February 19, 2015, a jury convicted Maria Gonzales Esquivel of three
counts of domestic violence assault in the second degree, one count of domestic
violence assault in the first degree, and one count of domestic violence rape in
the second degree for a lengthy campaign of physical and mental abuse of

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members of the Chagoya family and her daughter.1 The judgment and sentence
included the standard range of 185 to 245 months for domestic violence rape in
the second degree. 	The trial court imposed life sentences for the first degree
assault and second degree rape charges. 	It also imposed a lifetime no-contact
order 	protecting the victims 	and a 	20-year 	no-contact order protecting her
daughter.
On appeal to this court, we affirmed Esquivel’s convictions. 	But, we
remanded the no-contact order protecting her daughter because the trial court
did not articulate a sufficient basis for imposing a no-contact order of that length.
We also accepted the State’s concession that the trial court erred in imposing a
life sentence for first degree assault, and we remanded to correct that error.
On November 13, 2017, the trial court corrected the no-contact order
protecting her daughter by shortening the order to 13 years or until her daughter
reached the age of 21 and could petition to lift the no-contact order. 	The trial
court corrected the sentencing error by imposing an exceptional sentence of
480 months for first degree assault. 	The trial court imposed an exceptional
sentence above the standard range of 209-277 months because it determined,
“The defendant’s acts were part of an ongoing pattern of psychological, physical
or sexual abuse manifested deliberate cruelty to the victim and had a destructive
and foreseeable impact on persons other than the victim.” 	Hoping to prevent
1 State of Washington v. Maria Gonzales Esquivel, No. 73411-3-I, slip op.
(Wash. Ct. App. Mar. 6, 2017) (unpublished),
http://www.courts.wa.gov/opinions/pdf/734113.pdf.

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future litigation, the State also asked the trial court resentence Esquivel on the
second degree rape conviction. The trial court denied this request.
On Esquivel’s second appeal to this court,2 we affirmed the 13-year no-
contact order protecting her daughter. 	We accepted the State’s sentencing
concession and remanded for entry of a determinate sentence for the domestic
violence second degree rape conviction.
On remand, the State explained it “previously recommended 185 months”
for the domestic violence second degree rape conviction. 	The State asked the
trial court to impose a determinate sentence of 372 months.
In this case, the defendant is 54 years old. She has a life
expectancy of 85 years, which results in 31 years remaining. To
effectuate the court’s intent of a LIFE sentence, the court could
impose 372 months on the Rape 2nd Degree-DV, if it chooses to
follow the life expectancy tables. However, the court is not required
to go by the actuary tables and has the ability to impose 99 years
based upon the aggravating circumstances found by the jury, if it so
chooses.
Esquivel argued 372 months was “excessive and leaves no room for any form of
rehabilitation whatsoever or use of risk assessment tools.”
On August 26, 2019, the trial court imposed a 372-month sentence for the
domestic violence second degree rape conviction. 	The trial court considered
Esquivel’s sentences for the first and second degree assault convictions and its
original intent to impose a life sentence for the rape conviction.
2 State of Washington v. Maria Gonzales Esquivel, No. 77723-8-I, slip op.
(Wash. Ct. App. Apr. 22, 2019) (unpublished),
http://www.courts.wa.gov/opinions/pdf/777238.pdf.

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[S]he’s already facing life in prison without parole, I’m sure. So, no
matter 	what 	I 	do 	here, 	I 	don’t 	think 	it’s 	going 	to 	make 	any
difference. 	But what I intended initially was that she serve life, so
it’s still an indeterminate life sentence. 	I agree with the State’s
analysis of the life expectancy, so the minimum term will be 372
months.
The trial court adopted the same reasoning as it followed for the first degree
assault sentence stating, “The defendant’s acts were part of an ongoing pattern
of psychological, physical or sexual abuse, manifested deliberate cruelty to the
victim, and had a destructive and foreseeable impact on persons other than the
victim.” 	And, it added “[t]he defendant acted in a position of trust, confidence, or
fiduciary responsibility to facilitate the commission of the current offense.”
Esquivel appeals.
ANALYSIS
Esquivel argues the State violated her right to due process and engaged
in presumptive prosecutorial vindictiveness on remand when it recommended
372 months instead of its original recommendation of 185 months for second
degree rape. We disagree.
The 	due 	process 	clause 	of 	the 	Fourteenth 	Amendment 	to 	the
U.S. Constitution 	prohibits 	trial 	courts 	and 	prosecutors 	from 	“vindictiveness
against a defendant for having successfully attacked his first conviction.”3 Under
North 	Carolina 	v. 	Pearce, 	a 	court 	presumes 	vindictiveness 	in 	certain
3 Bordenkircher v. Hayes, 434 U.S. 357, 362, 98 S. Ct. 663, 54 L. Ed. 2d
604 (1978) (quoting North Carolina v. Pearce, 395 U.S. 711, 725, 89 S. Ct. 2072,
2080, 23 L. Ed. 2d 656 (1969), (citing Blackledge v. Perry, 417 U.S. 21, 27, 94 S.
Ct. 2098, 2102, 40 L. Ed. 2d (1974)).

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circumstances where a new sentence is harsher than the original.4 	“The due
process clause is not offended by all possibilities of increased punishment upon
retrial 	after 	appeal 	but 	only 	those 	that 	pose 	a 	realistic 	likelihood 	of
vindictiveness.”5
In State v. Brown, our Supreme Court observed, “While it is possible that
the prosecution decided to recommend the original sentence as an exceptional
sentence out of spite, the presumption [of vindictiveness] does not apply simply
because there is an opportunity for vindictiveness. 	There must be a realistic
likelihood of vindictiveness.”6 	The Brown court determined during resentencing
the presumption of prosecutorial vindictiveness does not apply because the
“State merely recommends what it believes to be an appropriate sentence” and
the “trial court determines what sentence is appropriate.”7
Here, the State did not violate Equivel’s right to due process and the
presumption of prosecutorial vindictiveness does not apply. 	The trial court had
rejected the State’s recommendation at the earlier sentencing hearing. 	On
remand, the State only suggested how the trial court could lawfully impose the
same life sentence it previously imposed. The trial court observed its sentencing
4 North Carolina v. Pearce, 395 U.S. 711, 723, 89 S. Ct. 2072, 2080, 23 L.
Ed. 2d 656 (1969); Alabama v. Smith, 490 U.S. 794, 795, 798, 109 S. Ct. 2201,
104 L. Ed. 2d 865 (1989); United States v. Goodwin, 457 U.S. 368, 373, 102 S.
Ct. 2485, 73 L. Ed. 2d 74 (1982); Blackledge v. Perry, 417 U.S. 21, 26-28, 94 S.
Ct. 2098, 2102, 40 L. Ed. 2d (1974).
5 State v. Brown, 193 Wn.2d 280, 294, 440 P.3d 962 (2019) (citing
Blackledge, 417 U.S. at 28-29)).
6 Brown, 193 Wn.2d at 295.
7 Brown, 193 Wn.2d at 296.

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decision would have no practical consequence because Esquivel’s sentences for
the 	first 	and 	second 	degree 	domestic 	violence 	assault 	convictions 	were
essentially life sentences. Ultimately, it was the trial court’s decision, and not the
State’s decision, to impose 372 months for the second degree rape conviction. It
did so to achieve with a determinate sentence the same sentence for the same
crime that it intended with the earlier indeterminate sentence. Because the
presumption of prosecutorial vindictiveness does not apply in this context, we
affirm.
CONCLUSION
Esquivel has not shown presumptive prosecutorial vindictiveness. 	We
affirm.
WE CONCUR: