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October 2019 Advance Sheet Summaries


Prepared by Mark W. Muenster

Cases decided October 1 through October 31, 2019


State v. Schwartz, No. 96643-5, decided October 10, 2019

Schwartz was prosecuted for failure to register. The issue on appeal was the calculation of his offender score. He contended that two older Class C felonies had washed out. The state contended that because he spent time in jail for sanctions relating to the non-payment of his LFO’s, he did not have the time “in the community” necessary for washout. The Court of Appeals disagreed and reversed the sentence.

The Supreme Court affirms the Court of Appeals, holding that jail time spent as a sanction for non-payment of LFO’s was not intended by the Legislature to defeat washout, utilizing the “rule of lenity” because the statute is ambiguous. In a footnote, the majority says that its opinion should not be read to say that other non-financial violations of conditions leading to a jail sanction would allow washout.

While agreeing with the idea that financial conditions should not haunt a person forever, the dissent argues that a willful failure to pay should not allow washout, and argues that the trial court orders sanctioning Schwartz were due to a willful failure to pay.

State v. Imokawa, NO. 9969217-1 decided October 10, 2019

Imokawa was prosecuted for vehicular homicide and vehicular assault. There was a superseding/intervening cause as part of the two collisions that led to the death and injury. Imokawa argued that due process of law required the WPIC instruction on proximate cause/superseding cause had to be altered to place the burden on the state to disprove a superseding cause where there was some evidence of one. This argument prevailed in the Court of Appeals.

The Supreme Court reversed the Court of Appeals, and holds that the to-convict instructions combined with the normal BOP, RD and POI instruction (WPCI 4.01) were somehow sufficient to apprise the jury of the state’s burden of proof on superseding cause, which is not an element of the crime.

State v. BOJ, No. 95542-5, decided October 3, 2019

Juvenile court prosecution. The trial court held that the defendant’s need for treatment justified manifest injustice disposition outside the standard range for her offense. The Court of Appeals agreed.

The Supreme Court reverses. The court extensively reviews the legislation regarding MI dispositions, and concludes that the client’s danger to herself if she did not get in patient treatment did not constitute a danger to society per se, which is the main statutory criterion for a manifest injustice disposition.

Justice Gonzales concurs, and takes issue with some of the probation counselor’s rhetoric about the juvenile defendant.

This case was moot because the client had been released and was no longer a juvenile.

State v. Villela, NO. 96183-2, decided October 17, 2019

The defendant was arrested for DUI. Pursuant to the mandatory impound law, aka “Hailey’s Law”, RCW 46.55.360, his car was impounded, and then searched incident to the impoundment. The police found drugs in the car during the impound search. The Superior Court granted a motion to suppress on the basis that the statute violated Art. I §7. The Supreme Court granted discretionary review, and affirms the suppression, holding that Art. I §7 prohibits a mandatory non-discretionary impound, absent one of the established probable cause bases, such as the use of the vehicle in the commission of a felony.


State v. Wilson, NO. 50800-1-II, decided October 8, 2019

Prosecution for animal cruelty. Wilson shot a dog with an arrow, wounding it. The dog, which was 70 pounds, had attacked Wilson’s much smaller dog and was shaking it when Wilson shot the arrow to defend his little dog.

The trial court denied a pretrial motion to dismiss based on RCW 16.08.020, which allows the killing of an animal that is biting or injuring a domestic animal, but the attack has to take place on the defendant’s property. This attack took place at an archery club where Wilson was a member. The COA panel affirms this part of the trial court decision, but reverses on a different ground.

The trial court also refused an instruction based on the statutory defense, giving instead a reasonable use of force instruction. The panel holds that since the statute does not have this “reasonable force” limitation, it was error to fail to give the defense instruction based on the statutory defense, which is broader than the “reasonable use of force” defense.

State v. Olson, No. 51531-8-II, decided October 8, 2019

Prosecution for unlawful possession of a firearm. The defendant offered to sell a gun at a gun shop, but rejected the price. The gun shop owner checked with the police to see if the gun was stolen, and they found out Olson had a disqualifying conviction. The gun was never recovered or offered in evidence.

Olson argued that the state had to prove the gun was operable, and challenged the sufficiency of the evidence and the trial court’s denial of an instruction which would have required operability to convict.

The panel repudiates an earlier decision which suggested that operability was required as an element , State v. Pierce, 155 Wn. App. 701, 230 P.3d 237 (2010), and follows instead its later decision in State v. Raleigh, 157 Wn. App. 728, 734, 238 P.3d 1211 (2010). In Raleigh, the court determined that the basis for Pierce was dicta in State v. Recuenco, and that operability need not be proved, a conclusion supported by the statutory definition which says that a firearm is “a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.”

Olson’s prosecutorial misconduct claim, in the unpublished part of the decision, is rejected because no objection was made to the closing argument, so it is subjected to the more stringent standard regarding prejudicial impact: “Olsen does not show that it was so prejudicial that it could not have been cured by a proper instruction.” The court characterizes this as “waiver” of the error, which muddies the waters slightly on this point.

State v. Alexander, No. 77513-8-I, decided October 7, 2019

Alexander is arrested in a field for trespassing. She has an outstanding DOC warrant. Her companion is let go by the arresting officer. There is a backpack very near her. The companion asks to take it and Alexander wanted to let him take it but the officer keeps it and searches it, finding a controlled substance.

The trial court denies the motion to suppress, ruling that this is a valid search incident to arrest. The Court of Appeals reverses.

The case turns on where the back pack was at or near the time of arrest. If it was in the immediate possession of the person, it can be searched. The court emphasizes that “actual and exclusive possession” are required under the “time of arrest” rule for searches incident to arrest. The court discusses other search incident to arrest cases, and distinguishes them.

The panel reviews search incident to arrest cases and find that under the “time of arrest” rule, Alexander did not have “actual and exclusive” control of the backpack at the time of her arrest. This is a good review of the law regarding the two types of searches incident to arrest, (the grab area rule and search of the person) which have different justifications. The state did not argue the grab area rule and the court rejects its argument that the search of the backpack was a valid search of Alexander’s person.

City of Vancouver v Kaufman, No. 51202-5-II, decided Oct. 15, 2019

After a traffic stop, Kaufman was arrested when there was a misdemeanor warrant discovered. She was not arrested for DUI, but at the jail, the arresting officer detected an odor of alcohol, and asked her to submit to a PBT as well as “field sobriety tests”. She refused. She was asked to submit to a statutory breath test and also refused.

The trial court admitted evidence of the refusal of the PBT and the FST’s as well as the refusal to submit to the implied consent breath test. The officer testified that refusal of the tests was a sign of intoxication, and the city relied heavily on that to argue that the defendant’s ability to drive was impaired.

The conviction was upheld by the Superior Court, which found that the opinion testimony by the officer was improper, but harmless beyond a reasonable doubt.

The Court of Appeals granted discretionary review of the RALJ decision and reverses. The court distinguishes the recent Supreme Court case of State v. Baird, regarding warrantless breath testing, on the basis that a PBT is not a “breath test” and can only be used for establishing probable cause. Here, since she was not arrested for DUI, the PBT cannot be justified as a search incident to arrest, the rationale used in Baird. Since Kaufman had a constitutional right to refuse this search, the City could not use her refusal as evidence of guilt. The panel declines to follow the Division III decision in State v. Sosa , which had allowed evidence of a refusal of a PBT. The panel goes on to find the error was not harmless, since the City relied heavily upon it to convince the jury to convict.

The panel also finds that the officer’s opinion testimony was improper, like the Superior Court, but also finds this was not harmless error, unlike the Superior Court.

A great win, but likely to be taken up by the City of Vancouver to resolve the split of authority with Division III and Sosa.

State v. Nguyen, No. 77604-5-I, decided Oct. 21, 2019

Prosecution for stalking and violations of no-contact orders. Appellant argued that the stalking was based only on speech, and thus violated the First Amendment, absent a showing that the speech was of an unprotected nature, such as “fighting words”. The court rejects this argument because stalking requires intent to harass, so conduct, not mere speech is the basis for liability.

The court also rejects an argument that the no contact order counts should have been severed from the stalking count. The court reviews the four factors regarding severance and finds them all in favor of a joint trial.

The court also rejects the argument that the state should have been required to accept a stipulation regarding the predicate for the no contact order violations. The court follows a recent Supreme Court decision that more or less limits Old Chief stipulations to firearm cases, State v. Taylor, 193 Wn. 2d 691, 444 P.3d 1194 (2019)

The court rejects an argument that the trial court should have excluded his residential burglary conviction. The court holds that this was more probative than prejudicial since it tended to support the victim’s testimony that this incident had actually happened, which was evidence of her reasonable fear on the stalking charge.

Finally, the court rejects an argument that the court should have redacted the warning portion of the no contact orders before allowing them as exhibits. These were allowed to show that there was a knowing violation of the orders.

State v Richards, No. 51700-1-II, decided Oct. 29, 2019

Prosecution for possession of heroin. Defendant is arrested for shoplifting. Her purse, which is with her, is searched incident to the theft arrest, and in a zippered container within the purse the police find some heroin residue and a syringe.

The panel distinguishes Riley v. California (search of cell phone incident to arrest) and State v. Van Ness (search of locked box within a back pack arrestee was carrying). The Van Ness court held there was no safety consideration or evidentiary justification for searching the box.

This case turns on the fact that the zippered compartment was not “locked”, and there were no significant privacy concerns in such an object. So the search is deemed a lawful search incident to arrest.

State v. SG, No. 78614-8-I, decided October 28, 2019

SG had a juvenile court “deferred disposition.” The court subsequently vacated it, but it had not been sealed. A week later, he filed a petition to have his firearm rights restored. He argued that he did not have a disqualifying event, on the theory that a deferred disposition was not a conviction. His secondary argument was that because the deferred disposition was vacated, it was not a conviction.

The panel rejects both arguments. A deferred disposition presupposes a plea of guilty, with the sentence being deferred. The court analogizes this to a deferred sentence, which is under most circumstances, a disqualifying event under RCW 9.41.040.

The vacation argument is also rejected, absent a showing that the vacation was based on a finding of innocence or rehabilitation, pursuant to RCW 9.41.040 (3). The court also could have noted that RCW 9.95.240, which discusses vacation under the probation statute, has a proviso:

PROVIDED, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.

The court notes that if the juvenile deferred disposition had been sealed, it would be a different story.

Detention of GD, No. 78757-1-I, decided Oct. 28, 2019

GD was involuntarily committed. The court entered boilerplate findings that she was a danger to herself to support the 14 day commitment order. After the filing of a notice of appeal, the trial court entered supplemental findings to support the order, without notice to appellate counsel.

RAP 7.2 requires a trial court to get appellate court approval for post appeal determinations that “will change a decision then being reviewed by the appellate court.”

Here, the supplemental findings would change the appellate court’s decision, and thus required its permission. RAP 7.2 trumps a King County local rule which permitted such findings to be made after a notice of appeal was filed. The motion to strike the additional findings was granted, and as the original ones were insufficient under LaBelle, the commitment order was reversed. The court also points out that as a due process matter, the supplemental findings could be ignored because they were entered without notice to appellate counsel.

The court never addresses whether the case was moot.

Detention of TC, No. 78222-3-I decided Oct. 28, 2019

TC was involuntarily committed for 14 days. He challenged the sufficiency of the evidence for the order, and whether he was entitled to a jury trial on the issues. Substantial evidence is the standard on review, and there was enough evidence. The court rejects the jury argument based on longstanding precedent.

The main issue in the case involves gun rights. A civil commitment order results in the loss of the right to own or possess firearms. If a person agrees to voluntarily take treatment, and no order is entered, there is no loss of firearm rights. That means the court has to advise the person before the hearing that the entry of an order will result in the loss of firearms rights, so that the person can make a choice about treatment. RCW 71.05.240(2) provides the statutory authority for the warning.

The court reaches this issue despite lack of preservation pursuant to RAP 2.5 (a), and holds that there was manifest constitutional error in failing to advise TC in advance of the loss of firearm rights. The remedy it chooses is vacation of the commitment order.

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