State of Washington v. Jose Jesus Franco Guzman ( 2024 )

FILED
FEBRUARY 6, 2024
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 39042-0-III
Respondent, )
)
v. )
) UNPUBLISHED OPINION
JOSE JESUS FRANCO GUZMAN, )
ALIAS: Jose Jesus Guzman Franco )
)
Appellant. )
FEARING, C.J. — The State charged Jose Jesus Franco Guzman with vehicular
homicide, but the jury acquitted him of the charge and convicted him of the lesser
included offense of driving while under the influence of intoxicants. On appeal, Franco
Guzman contends the superior court erred when allowing the State to amend the
information to include a charge of Driving Under the Influence (DUI) after the statute of
limitations for the crime expired. Because the superior court did not amend the
information to include the lesser included offense, we reject Franco Guzman’s appeal.
FACTS
The prosecution of Jose Jesus Franco Guzman arises out of a tragic and fatal
automobile collision. On January 7, 2020, Franco Guzman drove southbound on
Highway 97 in Klickitat County. His car collided with a vehicle driven northbound by
Travis Atchley. Atchley died from the injuries he sustained in the collision.
No. 39042-0-III
State v. Franco Guzman
During trial, State Patrol Officer Jennifer Ortiz testified that the location of debris
proved the accident occurred in the northbound lane. According to Trooper Ortiz, Franco
Guzman crossed the center line and caused the accident. Jose Jesus Franco Guzman’s
engineering expert Paul Moore testified that the location of gouge marks is more reliable
and that the gouge marks found in the southbound lane indicated the accident could have
occurred in Franco Guzman’s lane instead.
After the collision, first responders transported Jose Jesus Franco Guzman to the
hospital. Law enforcement procured a warrant to draw and test his blood. Franco
Guzman’s blood alcohol content was 0.12 two hours after the collision.
PROCEDURE
The State of Washington charged Jose Jesus Franco Guzman with vehicular
homicide. The January 8, 2020 information read:
That the said Jose Jesus Guzman Franco in the County of Klickitat,
State of Washington, on or about January 7, 2020, did drive a motor vehicle
while under the influence of intoxicating liquor or any drug, as defined by
RCW 46.61.402, which was the proximate cause of injury to Travis
Atchley, a human being whose death occurred within three years as a
proximate result of that injury; contrary to RCW 46.61.520(1)(a), and
against the peace and dignity of the State of Washington.
Clerk’s Papers at 1. Despite the information referencing driving while intoxicated, the
information did not expressly charge Franco Guzman with the crime of DUI.
On January 19, 2022, the opening day of trial, Franco Guzman informed the
superior court that the information listed his last names in reverse order. The State
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State v. Franco Guzman
proposed amending the information to reflect the correct ordering of Franco Guzman’s
name. The superior court granted leave to amend the information to do so. The body of
the amended information read identically to the first information. The only change in the
amended information was in the caption of the case as to the last names of Franco
Guzman.
In addition to delivering jury instructions for the crime of vehicular homicide, the
superior court informed the jury that, should the jury not reach a verdict of guilt for
vehicular homicide, it could consider the lesser included offense of driving while under
the influence of intoxicants. The jury acquitted Jose Jesus Franco Guzman of vehicular
homicide, but found him guilty of DUI.
LAW AND ANALYSIS
On appeal, Jose Jesus Franco Guzman seeks reversal of his conviction for DUI on
the basis of the statute of limitations. Franco Guzman posits that the State, when
amending the information on January 19, 2022, added DUI as a second charge.
According to Franco Guzman, on January 8, 2022, the two-year anniversary of the
Highway 97 collision, the limitation period expired.
Jose Jesus Franco Guzman’s contention conflicts with the procedural facts. On
January 19, 2022, the State did not amend the information to add a charge of DUI. The
amended information only reversed the order of Franco Guzman’s two surnames.
Instead, the superior court instructed the jury that DUI was a lesser included offense of
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vehicular homicide. Franco Guzman does not argue against DUI being a lesser included
offense.
DUI is a gross misdemeanor. RCW 46.61.502(5). Under RCW 9A.04.080(1)(k),
“no gross misdemeanor, except as provided under (e) of this subsection, may be
prosecuted more than two years after its commission.” RCW 9A.04.080(1)(k).
Vehicular homicide is a class A felony. RCW 46.61.520(2). Under
RCW 9A.080(1)(a)(iv), the State may prosecute for vehicular homicide at any time after
the crime.
DUI is a lesser included offense of vehicular homicide because it is necessarily
included in the crime of vehicular homicide. The vehicular homicide statute declares:
(1) When the death of any person ensues within three years as a
proximate result of injury proximately caused by the driving of any vehicle
by any person, the driver is guilty of vehicular homicide if the driver was
operating a motor vehicle:
(a) While under the influence of intoxicating liquor or any drug, as
defined by RCW 46.61.502.
RCW 46.61.520. The driving while under the influence statute reads:
(1) A person is guilty of driving while under the influence of
intoxicating liquor, cannabis, or any drug if the person drives a vehicle
within this state:
(a) And the person has, within two hours after driving, an alcohol
concentration of 0.08 or higher as shown by analysis of the person's breath
or blood made under RCW 46.61.506.
RCW 46.61.502.
In turn, RCW 10.61.006, governing lesser included offenses, provides:
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In all other cases the defendant may be found guilty of an offense the
commission of which is necessarily included within that with which he or
she is charged in the indictment or information.
State v. N.S., 98 Wn. App. 910, 912, 991 P.2d 133 (2000), bars a conviction for a
lesser included offense on a prosecution for a greater crime commenced after the statute
has run on the lesser included offense. Nevertheless, the State, in Jose Jesus Franco
Guzman’s prosecution, filed the information within two years of Franco Guzman having
driven while intoxicated. In fact, the prompt prosecutor filed the information the
following day and the information notified Franco Guzman that the State also concluded
he committed the crime of DUI. Franco Guzman does not argue that the statute of
limitations bars a conviction for a lesser included offense if the information for the
greater crime is filed within the limitation period of the lesser crime.
In his appellant’s brief, Jose Jesus Franco Guzman assigns error to the superior
court’s imposition of restitution on a DUI when the jury verdict purportedly supported no
causal connection between the DUI and the losses claimed. In the body of his brief,
Franco Guzman wrote that he would later supplement the brief to include argument in
support of this assignment. Nevertheless, Franco Guzman never supplemented the brief.
Therefore, we do not address this assignment of error.
CONCLUSION
We affirm Jose Jesus Franco Guzman’s conviction for driving while under the
influence of intoxicants.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Fearing, C.J.
WE CONCUR:
______________________________
Cooney, J.
______________________________
Pennell, J.
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