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State v. Jensen3/14/2005
Kenneth Jensen appeals his conviction of second degree felony murder, arguing that the Supreme Court's holding in In re PRP of Andress requires us to reverse his conviction. We recognize that we must do so. But because the State may file new charges against Jensen if the trial court determines that the ends of justice so require, we will not remand the case for dismissal. Instead, we vacate Jensen's conviction and remand for further proceedings consistent with this opinion. We also deny Jensen's motion to take judicial notice of the State's pleading filed in Andress.
FACTS
Fifty-eight-year-old Kenneth Jensen and forty-year-old Martin Frank lived within several houses of each other. Although they met each other in 1994, their relationship grew contentious in 1999 when the post office required Jensen to put his mailbox near Frank's home. After that time, when Jensen approached Frank's house to retrieve his mail, Frank would swear at Jensen, call him names, or make obscene gestures. Many of Frank's insults and taunts were based on his disapproval of Jensen's homosexuality. Eventually, Frank began threatening Jensen and challenging him to fight. In one instance, Jensen was inside his car retrieving his mail when Frank appeared at the car window. Frank yelled and swore at Jensen, then suggested that they fight to settle their dispute. Jensen then displayed his gun and pointed it over Frank's head. Frank continued to yell at Jensen, but ultimately retreated. Jensen reported the incident to police. Later, Jensen moved his mailbox closer to his home. But, according to Jensen, Frank continued to harass him whenever he rode his bicycle past Frank's house.
This harassment went on for approximately two years. Then, on August 8, 2001, Jensen was riding his bike past Frank's house when Frank came outside and stood in Jensen's path. Jensen testified that he attempted to go around Frank, but that Frank was able to grab Jensen's handlebars with both hands. Frank allegedly told Jensen that he was 'going to end this here and now.' Jensen unsuccessfully attempted to get loose but Frank had control of the bike. At that point, Jensen reached into his bag for his firearm. While keeping his hand and gun in the bag, Jensen shot Frank once, killing him. Jensen immediately reported the incident to police.
The State charged Jensen with second degree felony murder predicated on second degree assault, and Jensen argued self-defense. At Jensen's first trial in December 2001, the jury was unable to reach a verdict and the court declared a mistrial. After a second jury trial in April 2002, a jury convicted Jensen as charged. The court sentenced Jensen to 195 months' imprisonment, which included a 60 month firearm enhancement. Jensen appeals.
DISCUSSION
I. In re PRP of Andress and Mandatory Joinder of Charges
First, Jensen argues that the Washington Supreme Court's decision in In re Personal Restraint Petition of Andress requires that we vacate his conviction and dismiss the charges against him. In Andress, the court held that assault cannot serve as the predicate felony for a second degree felony murder conviction. And in State v. Hanson, the court held that Andress applies to cases that were not yet final at the time Andress was decided. Jensen's case was on appeal when Andress was decided, and thus the Andress rule applies. Because Jensen's second degree felony murder conviction was based on assault, we must vacate the conviction and sentence.
But the question remains whether we must remand the case for dismissal or whether the State may file different charges. On remand, the State seeks to charge Jensen with intentional second deg
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