376 P.3d 1150
Wash. Ct. App.2016Background
- In Sept. 2013, Rodgers (driver) and Weatherwax (passenger) confronted Leroy Bercier at a Spokane convenience store (gang‑related dispute); they left and later shots were fired near the store; three people were charged as victims.
- Police later recovered two handguns (one tied ballistically to shelling found in a victim’s car) and evidence linking Weatherwax to a gun holster. Both defendants were tried jointly and convicted of three counts of first‑degree assault, conspiracy to commit assault, three counts of drive‑by shooting, and (Weatherwax) unlawful possession of a firearm. A gang aggravator was alleged for crimes against Bercier.
- Sentences included consecutive handling under RCW 9.94A.589, gang‑related community custody conditions, mandatory LFOs, and five‑year mandatory minimums for assault counts.
- On appeal the court: reversed the drive‑by shooting convictions for insufficient evidence; accepted the State’s concession that mandatory five‑year minimums were imposed in error and reversed them; addressed statutory interpretation of RCW 9.94A.589 as applied where an anticipatory offense is among the serious violent offenses; and found certain gang‑related community custody conditions unconstitutionally vague.
- The case was consolidated; the majority disagreed with Division One’s decision in State v. Breaux on RCW 9.94A.589, while one judge dissented as to that point.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of RCW 9.94A.589 when an anticipatory offense is among the serious violent offenses | State: trial court properly applied statute by using full offender score on the offense with the highest seriousness level under RCW 9.94A.515 (which excludes anticipatory offenses) | Weatherwax/Rodgers: statute ambiguous; rule of lenity favors treating the anticipatory offense as having the same seriousness level so the reduced (75%) grid applies to the full‑score offense, producing a lower total sentence (relying on Breaux) | Majority: statute unambiguous—use full offender score only for an offense that has a seriousness level under RCW 9.94A.515; disagree with Breaux. (One judge dissented, urging adherence to Breaux.) |
| Gang‑related community custody conditions (clothing/tattoos; association with "associates") | State: conditions are crime‑related and permissible given gang nexus to offenses | Defendants: conditions are unconstitutionally vague and overbroad; association ban sweeps in innocuous contacts and chills First Amendment activity | Court: upheld that gang‑related limits can be crime‑related but struck/required narrowing. Language like "indicative of gang lifestyle" is unconstitutionally vague; association prohibitions must identify gangs or limit "associates" to the statutory definition (RCW 9.94A.030(13)) or be otherwise specifically confined. |
| Sufficiency of evidence for drive‑by shooting (must be from or immediate area of vehicle used to transport shooter/firearm) | State: circumstantial evidence (car spotted nearby, short time interval, car tied to defendants) permits inference shots were from or in immediate area of vehicle | Defendants: no evidence shots were fired from or within the immediate area of Rodgers' car; witnesses saw shooters emerge from behind semitrucks and fire while on foot | Court: evidence insufficient—reversed convictions for drive‑by shooting because state did not prove shots were from or in the immediate area of a motor vehicle as required by RCW 9A.36.045. |
| Mandatory minimums, motor‑vehicle and other community custody conditions, LFOs | Defendants: five‑year mandatory minimums were erroneous; certain vehicle reporting and motor‑vehicle revocation findings not crime‑related after drive‑by reversal; marijuana condition should acknowledge lawful prescriptions; LFOs imposed without ability‑to‑pay inquiry and DNA fee unconstitutional as applied | State: some obligations are mandatory by statute; marijuana prohibition permissible; record insufficient to decide DNA fee substantive due process claim | Court: accepted State concession that five‑year mandatory minimums were imposed in error and reversed them; remanded for resentencing to remove vehicle‑related findings/conditions tied to reversed drive‑by convictions and to strike vehicle‑reporting condition where not crime‑related; marijuana prohibition permissible as written; LFOs were statutory and mandatory so ability‑to‑pay inquiry not required at imposition, and DNA fee substantive due process challenge requires a fuller record. |
Key Cases Cited
- State v. Breaux, 167 Wn. App. 166 (Wash. Ct. App.) (discussed for alternative construction of RCW 9.94A.589)
- State v. Rodgers, 146 Wn.2d 55 (Wash. 2002) (defines "immediate area" for drive‑by shooting statute)
- State v. Bahl, 164 Wn.2d 739 (Wash. 2008) (vagueness due process and First Amendment considerations for supervision conditions)
- State v. Wilson, 125 Wn.2d 212 (Wash. 1994) (intent and transferred intent principles for assault)
- United States v. Soltero, 510 F.3d 858 (9th Cir. 2007) (upholding gang‑paraphernalia condition that specifically identified a gang)
- United States v. Johnson, 626 F.3d 1085 (9th Cir. 2010) (striking broad association condition that included "persons associated with" gang members)
- State v. Villano, 166 Wn. App. 142 (Wash. Ct. App.) (probation condition banning "gang paraphernalia" was unconstitutionally vague)