State Of Washington, Respondent V. Hector Serano Salinas, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
HECTOR SERANO SALINAS,
Appellant.
No. 70125-8-1
DIVISION ONE 	,_,
UNPUBLISHED OPINION 	^
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FILED: 	July 21, 2014
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Leach, J. — Hector Serano Salinas appeals his amended judgment and
sentence 	for 	conviction 	for 	three 	counts 	of 	rape 	in 	the 	first 	degree. 	He
challenges 	the 	trial court's 	finding that 	two counts 	were 	the 	same 	criminal
conduct but that the third count was a separate offense. 	Because Salinas did not
ask the sentencing court to make a factual determination that all three rapes
occurred in one location and that no rapes occurred in a second location, he fails
to show that the trial court abused its discretion. We affirm.
Background
On June 30, 2008, around 2:00 a.m., D.P., who was homeless and living
on the streets, awoke near a park in Bellingham to find Salinas sitting close to
her. 	Salinas 	reached 	over and 	kissed 	her. 	When 	D.P. 	stood 	up, 	Salinas
grabbed her and hit her in the face. 	He had a knife in his hand. 	Salinas raped
D.P. and then dragged her into the park where the assault continued. 	Afterward,

No. 70125-8-1/2
D.P. flagged down a police car and told the officer that a man with a knife raped
her.
The State charged Salinas with three counts of rape in the first degree
and one count of kidnapping in the first degree. 	A jury convicted Salinas as
charged.
In his sentencing memorandum, Salinas argued that all of the counts
"involve 	the 	same 	victim, 	occurred 	at 	the 	same 	place, 	and 	were 	nearly
simultaneous in time. 	Further, because the victim testified the acts of forcible
sexual intercourse only occurred at the first as opposed to second crime scene,
the three acts of rape involved the same objective criminal intent." The court did
not address this argument.
Although 	it became apparent at sentencing that Salinas could 	not be
punished 	for the 	kidnapping 	conviction 	because 	it 	merged 	into 	his 	rape
convictions, there was general agreement that this issue was moot because of
the court's finding 	that Salinas was a 	persistent offender. 	Based 	upon this
persistent offender finding, 	the court sentenced 	Salinas to life 	imprisonment
without the possibility of release. 	The court calculated his offender score as 9.
On appeal, this court concluded that even though a same criminal conduct
finding would not affect the length of Salinas's sentence, 	"[tjrial courts should
make a finding on same criminal conduct at sentencing when requested to do so,
-2-

No. 70125-8-1/3
even if the potential impact on the sentence depends on a reversal."1 	This court
remanded for the trial court to determine if the three counts of rape involved the
same criminal conduct.2
On remand, Salinas contended,
As I understand the facts in this case, there was really no
question that the offense involved the same victim. 	The debatable
issue is whether same place and same time is in the strict and
literal sense literally the same, the same exact spot in terms of
place versus a more grand site which is the, the park area down
there below, below the street.
I would, 	I would take the position that given the fact that
we're dealing with a very small area here, 	I can't recall the exact
dimensions. 	I know that Bellingham police did take a, a measuring
device down there from the initial site and measured it down to
where they believed a second site was located, and I don't recall it
being a very long distance. I'm going to guess that it was something
under 200 feet away, but based, literally basically down the hill, and
at the bottom of the falls there where the creek comes out I think is
the second site of the second incident.
As 	far 	as time 	is 	concerned, 	I think we're talking 	about
moments, 	not, 	not 	hours, 	not, certainly not days or weeks, 	but
literally moments, and I think that under the Sentence Reform Act,
the 	Court certainly could well 	find 	that 	was 	is a, 	a 	series 	of
transactions that are all related to one another, and in that sense
are 	same 	place, 	same 	time, 	same 	victim 	and 	would certainly
possibly be found to be same course of conduct.
The trial court ruled,
Well, my recollection of the facts and what happened in this
case is that there was the incident up where [D.P.] was camping
near the street, and that after that incident, she was dragged down
through the park down below. 	They had to go around, they tried to
go, there was kind of a barrier Mr. Salinas attempted to cut with his
knife, was 	unable to do, 	and 	he 	had 	to drag 	her around some
1 State v. Serano Salinas, 169 Wn. App. 210, 225, 279 P.3d 917 (2012),
review denied, 176 Wn.2d 1002 (2013).
2 Serano Salinas, 169 Wn. App. at 225.

No. 70125-8-1/4
machinery, and he dragged her to a new place, then beginning a
new assault at that time.
So I think there was sufficient intervening time and the new
location that would require him to create the intent to commit a third
count in a different, at a different time and location, and they're
sufficiently distinct from the originals that the Court would find that
the first two counts, the two that occurred up near where [D.P.] was
camping would merge as a single course of conduct; that the third
incident that occurred over down in the park at another location
some minutes later could be read as a separate event, and not the
same course of conduct under the statute.
In an 	amended judgment and 	sentence, the 	court found that only two
counts were the same criminal conduct and scored the third count as a separate
offense. 	The court calculated his offender score as 8.
Salinas appeals.
Analysis
Salinas claims,
While it is apparent D.P. told police she had been raped in
two separate locations, 	D.P.'s 	trial testimony—far more detailed
than what she told officers—made it clear that what she labeled
"rape" at the second location was not actually a rape. 	Rather, all
three rapes occurred at the campsite in quick succession.
If, when calculating an offender score, 	"the court enters a finding that
some or all of the current offenses encompass the same criminal conduct[,] then
those 	current 	offenses 	shall 	be 	counted 	as 	one 	crime."3 	Multiple 	crimes
encompass the same criminal conduct if they involve the same criminal intent
and were committed against the same victim at the same time and place.4
3RCW9.94A.589(1)(a).
4 State v. Young, 97 Wn. App. 235, 240, 984 P.2d 1050 (1999).

No. 70125-8-1/5
Application 	of the same criminal conduct statute involves both factual
determinations and the exercise of the trial court's discretion.5 	Therefore, we
generally 	defer 	to 	the 	sentencing 	court's 	determination 	of 	"same 	criminal
conduct" and disturb it only for "'clear abuse of discretion or misapplication of the
law.'"6 	Because "a 'same criminal conduct' finding favors 	the defendant by
lowering the offender score below the presumed score," the defendant bears the
burden of establishing that crimes constitute the same criminal conduct.7
Here, Salinas advances the same argument that he made in his original
sentencing memorandum, where he claimed that all three of the rape counts
"only occurred at the first as opposed to second crime scene." 	But he did not
raise this contention on remand. 	Instead, Salinas acknowledged that he raped
D.P. in the second location but that the time and location of the third rape were
close enough to the rapes in the first location that they constituted the same
criminal conduct for sentencing purposes.
On remand, Salinas did not ask the court to find that no rape occurred in
the second location. 	He now asks us to rule that the court erred when it did not
find that all three rapes occurred at the first location. 	Because Salinas did not
5 State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000).
6 State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000) (quoting State
v. Elliott, 114Wn.2d6, 17, 785 P.2d 440 (1990)).
7 State v. Alana Graciano, 	176 Wn.2d 531, 539, 295 P.3d 219 (2013)
(citing State v. Lopez, 142 Wn. App. 341, 351, 174 P.3d 1216 (2007); In re Pers.
Restraint of Markel, 154 Wn.2d 262, 274, 111 P.3d 249 (2005)).

No. 70125-8-1/6
ask the sentencing court on remand to make this factual determination, we hold
that he waived the issue.8
Conclusion
Because Salinas failed to ask the trial court to decide that all three rapes
occurred at the same location, he waived his right to challenge the trial court's
calculation of his offender score on the basis that all three rapes constituted the
same criminal conduct. We affirm.
/
WE CONCUR:
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8 See Nitsch, 100 Wn. App. at 520 ("[Fjailure to identify a factual dispute
for the court's resolution and . . . failure to 	request an exercise of the court's
discretion" waives 	a 	challenge to 	an 	offender score.); 	see also 	In re 	Pers.
Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002) ("[Wjaiver may
be found where a defendant stipulates to incorrect facts.").