128 Wash. App. 132 | Wash. Ct. App. | 2005
I
¶2 Steven Spencer had lived with Sheila Quinn, but by July 31, 2002, he was prohibited by court order pursuant to RCW 10.99.050 from having contact with her or coming within 1,000 feet of her residence or workplace. Despite the no-contact order, Spencer went to Quinn’s apartment and entered. Quinn’s son, Aaron Skinner, and Quinn both asked Spencer to leave. He did not leave voluntarily, but was eventually pushed out by Skinner and a friend.
¶3 Spencer was arrested and charged with one count of residential burglary — domestic violence in violation of RCW 9A.52.025, and one count of misdemeanor violation of a no-contact order — domestic violence in violation of RCW 26.50.110(1).
¶5 During sentencing, the judge checked a box on the judgment and sentence indicating that the offenses were crimes of domestic violence. As a result of that finding, the judge issued a no-contact order under RCW 10.99.050. Finally, the judge imposed a standard range sentence on Spencer for the residential burglary — domestic violence conviction.
II
¶6 Spencer argues that the State failed to prove an essential element of residential burglary. Spencer was charged with residential burglary — domestic violence under RCW 9A.52.025(1), which provides:
A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.[1 ]
¶7 Spencer argues that he did not have the intent to commit a crime upon entering the apartment. He concedes that he violated the no-contact order by entering within 1,000 feet of Quinn’s residence. But he argues that he committed a single crime by entering the prohibited zone; not separate crimes for entering the zone, entering the apartment, and remaining in the apartment. The crime that the State asserts that he intended to commit upon entering the apartment is violation of a no-contact order.
¶8 To determine whether a defendant’s acts are a continuing course of criminal conduct, “the facts must be evaluated in a commonsense manner.”
¶[9 Spencer argues that similar to the defendant’s failure to transfer the title of a car in State v. Green,
¶10 Despite the absence of express language in the statute, the nature of a violation of a no-contact order leads to a reasonable conclusion that the legislature intended that the offense be a continuing crime. The core purpose of the law is to protect an individual from domestic abuse. Although a zone of safety is created around an individual, it is the person that is being protected, not the zone. Once a defendant enters the prohibited zone, the crime begins but is not complete — it continues. As long as the defendant
¶11 Further proof that a violation of a no-contact order is a continuing crime lies in the fact that a defendant may violate the no-contact order in a number of ways.
f 12 In addition to the holding in Stinton, the punishment scheme devised by the legislature leads us to conclude that it intended a violation of a no-contact order to be a continuing crime. The no-contact order that Spencer was charged with violating was issued under RCW 10.99.050. The purpose of that statute is to assure victims of domestic
¶13 We must interpret and construe statutes “so that all the language used is given effect, with no portion rendered meaningless or superfluous.”
f 14 Spencer argues that the legislature did not intend a defendant who violates a no-contact order in a dwelling to automatically face a felony punishment, therefore we should not allow a violation of a no-contact order to serve as the “intent to commit” a crime element of burglary. Spencer claims that the legislature expressed its intent clearly when it provided that an assaultive violation of a no-contact order should be elevated to a class C felony. Spencer claims that the legislature could have included another provision stat
¶15 Spencer misinterprets the legislature’s actions. First, the legislature did not merely add a provision making all assaultive violations of a no-contact order a felony. Instead, the legislature relied on already existing statutes to ensure that any assault in violation a no-contact order was punished as a felony. It elevated any assault that violated a no-contact order and did not amount to assault in the first or second degree from a misdemeanor to a class C felony.
f 16 Likewise, the legislature did not have to add language related to a violation of a no-contact order that occurred in a dwelling. The burglary statutes already guaranteed that any violation of a no-contact order within a dwelling could be punished as a felony under the burglary statutes.
¶17 We acknowledge that our holding allows prosecuting attorneys to charge defendants aggressively. But the potential for a defendant to face tough charges is consistent with the legislature’s intent when it created the burglary antimerger statute. RCW 9A.52.050 provides that “[e]very person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime
¶18 Next, Spencer argues that because “enters unlawfully” and “remains unlawfully” are alternate means of committing burglary that are repugnant to each other, he was denied his right to a unanimous jury verdict. It is well-established law in Washington that “[j]ury verdicts in criminal cases must be unanimous as to the defendant’s guilt of the crime charged.”
¶19 If sufficient evidence supports each alternate means, “a particularized expression of unanimity as to the means by which the defendant committed the crime is unnecessary.”
¶20 Spencer argues that he could not have “remained unlawfully” under State v. Klimes
¶21 But in State v. Allen,
¶22 But as we explained in Allen, “neither Collins nor Thomson suggests that unlawful remaining, for purposes of burglary, occurs only when the initial entry is lawful.”
¶23 Because Spencer relies on too narrow a definition of “remained unlawfully,” his argument that substantial evidence could not support both means of “enters unlawfully” and “remains unlawfully” fails. Instead, we conclude that substantial evidence does support both means. Therefore, a particularized expression of unanimity as to the means by which Spencer committed the crime was unnecessary. He was not denied his right to a unanimous jury verdict.
¶24 Next, in supplemental briefing, Spencer argues that under Blakely v. Washington,
¶ 25 In State v. Felix
¶26 Spencer raises one issue not discussed in Felix. He claims that the judge’s finding increases punishment by reducing earned early-release time. But Spencer would not have qualified for the greater earned early-release time even without the finding of domestic violence. Under RCW 9.94A.728(1)(b)(ii)(B), a defendant is qualified to earn up to 50 percent aggregate earned release time if he was “not confined pursuant to a sentence for: (I) A sex offense; (II) A violent offense; (III) A crime against persons as defined in RCW 9.94A.411; (IV) A felony that is domestic violence as defined in RCW 10.99.020; (V) A violation of RCW 9A-.52.025 (residential burglary); . . . .”
¶27 Moreover, even if Spencer had been qualified for the higher rate of early-release time, Apprendi and Blakely do not address early-release time, because it is not
¶28 Affirmed.
Ellington, A.C.J., and Appelwick, J., concur.
RCW 9A.52.025(1).
State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984).
State v. Green, 150 Wn.2d 740, 742-43, 82 P.3d 239 (2004).
150 Wn.2d 740, 82 P.3d 239 (2004).
Green, 150 Wn.2d at 744.
State v. Stinton, 121 Wn. App. 569, 575, 89 P.3d 717 (2004).
121 Wn. App. 569, 89 P.3d 717 (2004).
Stinton, 121 Wn. App. at 575.
Stinton, 121 Wn. App. at 575.
Stinton, 121 Wn. App. at 575.
Stinton, 121 Wn. App. at 576.
State v. Ward, 148 Wn.2d 803,813,64 P.3d 640 (2003) (citing RCW 10.99.010).
Ward, 148 Wn.2d at 813.
RCW 26.50.110(4).
City of Seattle v. State, 136 Wn.2d 693, 698, 965 P.2d 619 (1998).
RCW 26.50.110(4).
RCW 9A.36.011, .021.
RCW 9A.52.020, .025, .030.
RCW 9A.52.050.
State v. Klimes, 117 Wn. App. 758, 770, 73 P.3d 416 (2003) (citing State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994)).
Klimes, 117 Wn. App. at 770.
Klimes, 117 Wn. App. at 770.
Klimes, 117 Wn. App. at 770 (citing Ortega-Martinez, 124 Wn.2d at 707-08).
Klimes, 117 Wn. App. at 770 (citing State v. Whitney, 108 Wn.2d 506, 508, 739 P.2d 1150 (1987)).
117 Wn. App. 758, 73 P.3d 416 (2003).
127 Wn. App. 125, 110 P.3d 849 (2005).
Allen, 127 Wn. App. at 132.
Allen, 127 Wn. App. at 132 (citing State v. Arndt, 87 Wn.2d 374, 383, 553 P.2d 1328 (1976)).
110 Wn.2d 253, 751 P.2d 837 (1988).
71 Wn. App. 634, 861 P.2d 492 (1993).
Klimes, 117 Wn. App. at 765-67.
Allen, 127 Wn. App. at 133.
Allen, 127 Wn. App. at 133.
Allen, 127 Wn. App. at 133.
Allen, 127 Wn. App. at 133.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Blakely, 542 U.S. at 301 (quoting Apprendi, 530 U.S. at 490).
Blakely, 542 U.S. at 304.
Blakely, 542 U.S. at 304.
125 Wn. App. 575, 105 P.3d 427 (2005).
Felix, 125 Wn. App. at 576-77.
RCW 9.94A.728(1)(b)(ii)(B).
RCW 9.94A.411(2)(a).
Blakely, 542 U.S. at 304-05; Harris v. Untied States, 536 U.S. 545, 565, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002); People v. Garcia, 121 Cal. App. 4th 271, 16 Cal. Rptr. 3d 833, 837 (2004).