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Advanced Sheet Summaries for June 2013


Prepared by Mark W. Muenster
Covering cases decided June 1 through June 30, 2013


State v. Smith, decided June 6


  1. Can a search be upheld under the “community caretaking” exception after the police knock on the door pursuant to an illegal motel room registry search?
  2. Does double jeopardy bar convictions for both rape in the first degree and rape of a child in the second degree based on the same transaction.?

Police go to a motel and check the registry, and knock on Smith’s door. They see a woman inside who appeared to be beaten. She tells them her daughter had been raped by Smith. The police are also told that items relating to the beating and rape are in the dumpster in the alley.

Smith moved to suppress the evidence from the motel room under State v. Jorden, 160 Wn.2d 121, 156 p .3d 893 (2007). Trial court upheld the search under “inevitable discovery”, which was later invalidated in Washington in State v. Winterstein, 167 Wn.2d 620, 220 P.3d 1226 (2009). COA upholds the search under the theory of “attenuation” and “independent source” doctrines.

Supreme Court upholds the search, but as an exercise of the community caretaking exception, which Justice Stevens rechristens as the “save life” exception, a subset of the community caretaking exception to the warrant requirement.  Footnote 3 does not say it all, but most of the reason for the court’s decision:

“3 The “save life” exception to the warrant requirement in this context does not function much differently from the Court of Appeals’ independent source rule analysis. But for the sake of analytical clarity, we think it better to ground the justification for this search in a warrant exception, rather than in a nullification of the exclusionary rule. Because the “save life” exception to the warrant requirement does not require that an officer’s initial presence be legitimate, when the officers here crossed the motel door threshold to render emergency aid, their actions were not tainted by the illegality stemming from the Jorden search. The Court of Appeals was correct insofar as it described the observations of Quabner as “intervening circumstances” justifying the entry and a limited search of the motel room, Smith, 165 Wn. App. at 311, but tying such a justification to the independent source rule is problematic for the reasons Judge Armstrong identified in his dissent. Such an expansive view of the independent source rule could readily lead to mischief where, for example, a plain view observation of drugs following an illegal search becomes an independent source justifying an  exception to the exclusionary rule. Our decision today, however, acknowledges that an independent justification for the warrantless search exists under the “save life” exception, a very limited and specific exception that recognizes law enforcement must be able to respond to crimes against persons and prosecute those crimes.”

The double jeopardy  analysis disapproves of State v. Birgen, 33 Wn. App. 1, 2, 651 P.2d 240 (1982) which supported Smith’s argument that the legislature did not intend for there to be separate convictions for rape and rape of a child from the same act. The court says State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995), is closer to the mark, in which the court upheld separate convictions for incest and rape for the same act of intercourse.

There is no discussion of the “unit of prosecution” analysis of double jeopardy, probably because two separate statutes were involved, instead of multiple counts under one statute.

Three Justices sign the decision along with Stephens. Madson concurs in the result. Gonzales, J. Johnson, and Fairhurst concur in the result, but argue that witness statements are seldom if ever fruit of the poisonous tree.
Justice  Chambers dissents, one of two recently as he left office.

State v. CONTRERAS-REBOLLAR, No. 87650-9 decided June 13.

Issue: timeliness of supplemental PRP

COA decision remanding for resentencing. Trial court resentenced, and defendant appealed again, and filed a PRP. This was consolidated with the second direct appeal. He moved to supplement the PRP, and the supplement was filed more than a year after the original mandate remanding for resentencing. COA ruled the supplement was too late, and the original PRP was meritless.

Per curium decision reverses the part of COA decision which had held that the supplemental PRP was untimely, but affirms the decision that the original PRP was meritless, and remands to COA for consideration of supplemental petition. The supplemental PRP was timely, because the decision was not yet final, since after the original remand order, the trial court had acted again, and that decision was still on direct appeal.


State v. Jones, No 40902-5, decided June 4

The right to public trial is violated when the clerk draws four names to cull the alternates during a recess , rather than in open court:
“In light of our Supreme Court’s recent public trial cases that make virtually any courtroom closure structural error, we agree with Jones that the trial court violated his public trial rights.”
This opinion was authored by Justice Wiggins, who was apparently “moonlighting” in Division II.

State v. Clark, NO. 42496 7- I-I, decided June 4

Did jury instructions adequately define a “true threat” so as to protect against improper  conviction for intimidating a  witness?

Bystander to accident is on phone to police. Clark asks if she knows “that snitches  get snitches”?
Trial court declines to give  Clark’s proposed instruction on true threat. Relying on State v. Schaler, 169 Wn.2d 274, 282, 236 P.3d 858 (2010), the COA panel holds that it was not necessary to define a true threat:

“The element of inducing the witness not to report supplies the mens rea for the result that Schaler requires. Clark’s proposed instruction was unnecessary and therefore the trial court did not err or impinge on Clark’s First Amendment rights in refusing to give it to the jury.”

State v. RGP, No. 42614 – 5 – II, decided  June 11

Issue:   restitution under deferred disposition order
Can a court take account of ability to pay?

Juvenile pled to assault 3 on a deferred disposition. The hospital bill for the victim, who everyone thought was the aggressor, was over $60,000. The court took into consideration the juvenile’s ability to pay, and reduced the restitution order to about $7500. The state appealed, arguing that the statute no longer permitted a court to take into account the juvenile’s ability to pay when setting restitution.

COA holds that 1997 amendment  to the Juvenile Justice Act  (specifically, to  RCW 13.40.190,) removed the discretion to take ability to pay into account when setting restitution. The court notes that down the road, jurisdiction can be extended on the restitution issue while dismissing the underlying deferred disposition.
Lead previous decision which was controlling was State v. A.R.M, 147 Wn.2d 91, 96,
51 P.3d 790 (2002)

State v. Benitez, no. 42420 – 7 – II, decided June 11

Issues: can a juvenile sex offense conviction serve as predicate to raise indecent exposure to a felony?
Does the state constitution make waiver of jury trial impossible?
Does the law of the case doctrine apply to bench trials?

Prosecution for indecent exposure. Defendant had a juvenile court adjudication for a sex offense, and had recently been released from custody. State alleged “rapid recidivism” as a sentence enhancement, and elevated the crime to a felony based on the juvenile adjudication. State also added an enhancement for sexual motivation, pursuant to 9.94A.835 and 9.94A.533, which added 12 months to the sentence.

COA panel holds that a prior juvenile adjudication is a “ conviction” for the purposes of making indecent exposure a felony, based on the definition of conviction in RCW 9.94.030 (9). There really was no question about whether the prior was a sex offense.

The court holds it is possible to waive jury under the state constitution.

Benitez argued that the charging document injected the issue of whether the exposed himself “to another”, and that there was no evidence of that. COA holds that the law of the case doctrine applies to jury trials only, and so the state was not required to prove the element it had inadvertently added to the information.

Ironic sidelight: the sexual motivation enhancement cannot be added to sex crimes.  However, indecent exposure is not defined as a sex crime, so the enhancement could be applied, adding another year to the sentence

State v. Villanueva-Gonzalez, no. 69864-8-1, motion to publish granted June 17

Prosecution for second degree assault, 2 counts. Defendant is convicted of one count of assault in the second degree, and one count of fourth degree assault. One count is based on head butting the victim, the other on strangling her.  Jury instructed on Assault 4 as lesser, and finds the lesser on the strangulation count.

Panel holds that it is double jeopardy to convict for both , because fourth degree assault is a lesser included offense of assault in the second degree, and the assault statute does not punish each  offensive contact separately. Compare State v. Tili, 139 Wn.2d 107, 116-17, 985 P.2d 365 (1999) where multiple penetrations lead to multiple counts of rape.

Martin v. Dept. of Licensing, no 41718 9- I-I, decided June 19

State’s Appeal from Superior Court decision reversing DOL hearing decision, Cross appeal by Martin on one basis for Superior Court decision.


State’s appeal: were the implied consent warnings misleading for a commercial driver stopped for DUI driving his personal vehicle?

Driver, who was also a CDL holder, argued that the implied consent warnings improperly implied that his CDL would only be suspended  for 90 days, instead of being disqualified for a year if he blew over the legal limit.

This argument prevailed in the superior court. Court of Appeals reviews de novo, follows Lynch v. Department of Licensing, 163 Wn. App. 697, 262 P3d 65 (2011) and Division One’s decision in  Allen v. Department of Licensing, 169 Wn. App. 304, 279 P.3d 963 (2012) and reverses the Superior Court.

The decisions hinge on the fact that the warning uses the word “disqualification” when referring to the CDL, rather than “revocation” or “suspension,” and thus a person of normal intelligence would know there was a separate sanction.

Defense Cross appeal: Does mandatory continuance rule, of WAC 308-103-070 which requires continuance in hearings where driver has CDL, but not in ordinary PDL cases,  violate the due process clause and equal protection clauses  of the constitution?

The court says no, it protects the right of due process by requiring the cop to attend the hearing so he can be cross–examined.

The equal protection clause challenge fails because this is not a strict scrutiny situation, and there is a rational basis, grounded on public safety, to distinguish between CDL holders and other drivers.

Yakima v. Mendoza-Godoy,  No. 30666-6-III, motion to publish granted June 27.

Prosecution for being in physical control of car while intoxicated.
Discretionary review was granted after conviction and affirmance by the Superior Court.

Issue:   Is a defendant entitled to an instruction on the affirmative defense to physical control when there was no evidence the car was moved by anyone, including the defendant?

F:         Defendant was sitting in a friend’s car in a parking lot, drinking a beer, awaiting the friend’s return.

The statute defines a defense to a physical control charge in part as follows:
No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.

COA panel reads the defense literally, and since there was no evidence the defendant had moved the car, affirms the decision not to give the instruction.

State v. Olsen, 42135-6-II Decided June 27.

Prosecution for attempted murder, burglary in the first degree, and felony harassment. Defendant poured gasoline on the mother of his three children while she was in bed, and threatened to light it. Because Olsen claimed it was all a mistake, and he had poured gas on a dog in the house, and the dog had then jumped in the bed, he “opened the door” to previous instances of domestic violence.

Olsen also challenged the to convict instruction for harassment on the basis that it omitted the “true threat” requirement.

The definitional instruction saves the  day for the state, because it said the threat “must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in jest or idle talk.”

Olsen challenged the calculation of his sentence, arguing that a California conviction for “terroristic threats’ was not comparable to Washington felony harassment.
Because they are not legally comparable (California’s statute criminalizes threats to do great bodily injury or death), the court looks to the conduct. Since this was a no lo contender plea, the legal effect was to admit all the elements in the charging document. This made the crime factually comparable, and so it could be included in his offender score.

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