*1 En 42334. Banc. December [No. 1972.] Respondent, Washington, v. Yolanda The State Appellant. Frazier, Annette Hester, Hester, E. Binns, Petrich, Mason & Monte *2 for appeal). counsel appellant (appointed L. D. Prosecuting Attorney, Joseph Ronald Hendry, Mladinov, Eugene Olson, G. Special Counsel, Chief Criminal for Deputy, respondent. J. Yоlanda Annette Frazier convicted of as was
Utter,
in the
A
re
degree.
sault
second
verdict was also
special
turned
she
a
at the
was armed with
finding
of
time
the offense and she
sentenced under
was
the provi
of
sions
RCW 9.41.025
term.
mandatory 5-year
claims the
erred in
failing
court
dismiss the
Appellant
on
case becаuse
evidence failed to
apprehension
the
show
the
of
victim or sufficiently strong
the
circumstantial
part
of a
act
also
evidence
willful
her.
she
by
urges
Appellant
was
inasmuch as RCW 9.41.025
sentenced
improperly
or
unconstitutional.1 We
no error
instructions
find
the
“Any
attempt
person
commit
1RCW
shall commit or
9.41.025.
who
any
categorized
any
gross
felony, or
misdemeanor
or
misdemeanor
inherently
with,
possession
dangerous,
armed
or in the
herein as
while
any
pro
firearm,
conviction,
the
of
in addition to
shall
by
possession of a
or
vided
statute for the crime committed without use
imprisoned
firearm,
provided:
be
as herein
felony
“(1)
Fоr
the first offense
offender
shall be
of
the
impose
years,
of
five
and the court shall
sentence
not
less than
which
suspended
deferred;
sentence shall not be
or
“(2)
offense,
if,
of
in the
of a first
For a second
or
case
conviction
any provision
previously
section,
of
of
the offender
shall
violation
this
or of
of
of the laws of the United States
have been convicted
violation
relating
possession
any
state,
territory
or
or
other
district
to the use
committing
attempting
crime,
firearm while
or
commit
felony
imprisoned
guilty of a
and shall
for not
less
offender shall be
be
suspended
years,
and one-half
shall
be
than sеven
which sentence
deferred;
or
subsequent
offense,
“(3)
shall
or
if the offender
For a third
or
previously
aggregate
or more times in
have been convicted two
any
state,
any
United States or
other
violation of the law
territory
relating
possession of a
or
use or
firearm while
district
committing
attempting
crime,
thе offender
shall
commit
regarding
charge,
action
assault
and affirm
court’s
appellant
find, however, the
that conviction. We
was not
process
application
provisions
of the
accorded due
resentencing.
9.41.025,and remand her for
RCW
introduced
the state
Evidence was
which showed the
Beverly
appellant
to kill
Ann
had threatened
Johnson and
following
threat,
that sometime
while the victim was
thought
heard a noise
to be a firecracker.
residence,
her
she
lodged
room
examination
showed
bullet
Later
days
appellant
later the
was
Four
arrested
the wall.
pistol
purse.
caliber
found in her
traffic viоlation and a .25
pistol
fired,
test
test bullet matched
was
from the wall
the victim’s home.
bullet removed
assignment
argu
first
of error is based on the
necessary
apprehension
the fact is a
un
before
ment
second-degree
statute,
written element
argument
rejected in
has been
State v. Stew
9.11.020.This
*3
(1968);
1
Brakes,
P.2d 815
State v.
art,
701,
73
440
(1970);
Wigley,
Apр.
and
v.
5
987,
State
Wn.
465
(1971).
App.
the
766
We find
465, 488 P.2d
Wn.
persuasive
State,
in McCullers v.
206 So. 2d
of
court
the
1968).
(Fla.
There
court noted:
the
may
upon
person
criminal assault
be made
a
A
even
knowledge
though
had no
of the fact at
he
the time.
.
be noted that herein lies the
.
. It should
distinction
crime
assault as a
and assault as a tort. If the
between
felony
imprisoned
guilty
and shall
for not
than
of
be
less
fifteen
suspended
deferred;
years,
sentence shall not be
or
which
gross
categorized
‘Inherently
“(4)
or
misdemeanors
as
Misdemeanors
any
Dangerous’
in
of
as the term is used
this statute means
the
any
attempt
following
commit
of the
in
crimes or an
same: Assault
interfering
public
provoking
assault,
degree,
officer,
an
the third
with
remaining
obstructing
disturbing
meeting,
warning,
riot,
after
fire-
injury
intimidating
public
petit
property,
officer,
men,
larceny,
soliciting
pur-
liberties,
shoplifting,
for
indecent
and
a minor
immoral
poses.
apprehension
by firing
any person
“(5)
or
If
shall resist
arrest
person
officer,
in addition to the
еnforcement
such
shall
law
resisting
felony
provided
arrest,
of
for
statute
by imprisonment
punished
years,
for
than ten
not less
which sentence
suspended or deferred.”
shall not be
attempt,
has
he
suf-
is unaware
intended victim
fered no
compensation for the
not
harm and is
entitled
against
However, a crimi-
.
.
.
him.
tort committed
dignity
аgainst
peace
of
an
nal
is
offense
assault
private rights.
an invasion of
as
state well
actuality
concepts
law
There
be two
criminal
can
Rizzo,
v.
F.2d
noted in United States
assault as
1969),
(7th
911, L. Ed. 2d
denied,
Cir.
cert.
396 U.S.
battery. may to commit a There be an assault, an and hence under circumstances where danger. Apprehension on intended is unaware of victim part the type is not an essential element that victim .
of assault. . . concept an is that assault is “committed second merely by putting apprehension another harm actually not intends inflict is thе actor or whether inflicting incapable concept thought harm.” that from the to have been assimilated into criminal law usually required apprehension It that law of torts. of harm be reasonable one.
(Footnotes omitted.)
Appellant’s assertion the circumstantial evi justify jury dence was insufficient submission to willfully the issue of whether the defendant assaulted regarding properly before us. No instruction victim is necessary quantity evidence the circumstantial the court. is not conviction Nondirection was submitted right has vio error unless constitutional been reversible Hong, Ogilvie 209, 211, 175 Wash. lated. *4 by right the fail find no constitutional violated
We
give
even
evidence instruction and
ure to
a circumstantial
proper
had
on
evidence
been
instruction
circumstantial
.if
error,
given,
requested
not have found
we would
jury.
question of
issue
The
submission
every
evidence excludes
reasonable
whether circumstantial
guilt
question
hypothesis
is a
other than
defendant’s
circumstan-
trier of fact and there is sufficient relevant
guilt
tial evidence on the issue of the defendant’s
to war-
submitting
jury.
Cerny,
rant
the case to the
State v.
(1971).
845, 849,
crime or is an added was discussed in State v. Boyer, (1971). App. 73, 4 Wn. There court legislative held the intent on this issue was unclear and a separate offense would be held to be created in the legislative adopt absence clear intent. We Boyer provides on this issue and hold that the act for an original additional where the or act cоmmitted at tempted felony. to be committed is a See also State v. App. Rose, 176, 7 Wn. 498P.2d 897 legislative history of RCW 9.41.025 does not 9.11.020, indicate was an effort to amend there RCW second-degree provides assault statute. Section 1 of act chapter a new section is added to 9.41. states Section chapter 2, 172, 1935, Laws of “Section as amended sec chapter 124, tion of 1961 and 9.41.020 are Laws RCW hereby repealed.” each Article section 37 of the Constitu Washington requires tion the statute to be State applies set forth full when it is revised or amended and only amendatory legislature acts of the and not to acts Phillips expressly implicitly repealing previous law. App. Conte, 3 Wn. There no mandate in violation of the constitutional this case. regarding question pro- is, however, There a serious 9.41.025(1) apply cedure used to the terms as to and whether it was consistent with due defendant
633 charge appel- that the process. The information failed subject under the added actions, was lant, her allege specific 9.41.025(1), acts failed to and further bring statute, to her of the committed, in the words were penalties. portion of added the statute’s under that aggravates an offense and causes factor aWhere greater subject punishment the defendant to be requires imposed, process due otherwise be than would present, must be that factor that the issue of whether allegations presented jury upon proper a verdict to the impose can the harsher the court thereon rendered before penalty. Nass, 368, 456 State v. 76 Wn.2d Law and Criminal Anderson, As in 4 Wharton’s nоted R. (1957), § Procedure at 610: jurisdictions
In have been enacted some statutes setting up than one offense more which, more without degree permit offense, the infliction than of a same one that the accused heavier sentence when it shown question committed the crime in under circumstances construing showing aggravation. these The decisions generally position in order statutes have taken the justify imposition higher sentence, it is of the upon necessary aggravation relied as that the matter charged calling for sentence be the indictment or such complaint. omitted.)
(Footnotes also Indictments and See 42 C.J.S. (1944); § 145 Jur. 2d Indiсtments and Am. Informations § Informations Prison in State ex rel. Alldis v. Board of (1960), Paroles, Terms & compel court held does not a different result. There the allege defendant armed with that failure was so hold in the information, and to judgment, preclude did the Board of Prison Terms and setting mandatory 5-year provided Paroles from sentenсe independent 9.95.040, for in RCW based their investi- distinguished gation. may Alldis reason. Dif- be another affecting may process present ferent considerations due parole deal when courts with actions of board where already defendant has been convicted and sentenced custody appropriate аgency distinguished state prior from imposition those matters which occurred judgment and execution of trial, and sentence.2 We note subsequently pre that RCW 9.95.040has been amended to making clude the Board of Prison Terms and from Paroles independent finding impo an of fact to serve as a basis for *6 mandatory of sition minimum Cоma, sentence. State v. 69 (1966). 177, 417P.2d 853 dealing In this case we are with a factual determination adversely appellant, irrevocably if which, determined exercising independent judgment forbids the court from its concerning appellant whether the is to receive a deferred suspended sentence. The result of an adverse determina compel penal tion is to incarceration in the institutions for periods certain fixed minimum of time. This determination prior imposition judgment is all made of final and process highest sentence. Procedural due standard appellant. Specht must, therefore, be afforded the v. Patter son, 605, 326, 386 U.S. 18 L. Ed. 2d 87 Ct. 1209 S. Specht
The standards enunciated in are a further reason why longer applies Alldis no to this case. separate in inclusion of this issue the information give appellant prior that, verdict will notice to trial jury causing
if
if
convicted, finds the facts
aggravation
pro-
possibility
correct,
are
she will have no
plea
bation. Her
to enter a
decision
to a lesser
charge
prosecutor
if the
in
and court
their discretion would
accept
only
practical consequences
so
it, one of the
that
receipt
follow from
of notice at a time while alternative
pant
courses of action on her
are
to her.
still available
phantom
This is
in
issue
this case. Neither the
appellant
judge
sentencing
nor
was aware until the time of
Goldberg
Kelly,
254,
287,
2See
v.
397 U.S.
25 L. Ed. 2d
Hale, J. in the concur in the re only special sult, but because the verdict3 referred to a deadly weapon prescribed by instead of a firearm as RCW 9.41.025.Once the is accused informed in the information charged by he is firearm, with an assault means pistol, special i.e., revolver, rifle, etc., and verdict is re that, offense, turned at the time he armed was with a requirements affecting all of firearm, of the constitution charge special met, and are there is no verdict process. required prosecution want of due is not plead prove priоr conclusions of law nor list and all as offenses, convictions described in 9.41.025.Prior my subject judgment, may sentencing, be shown at right deny in the accused refute or them. concepts
Further,
expressed
of criminal law
as
(7th
1969),
Rizzo,
United States v.