AN ACT
Relating to participation in criminal street gangs; amending RCW 9.94A.390;
reenacting and amending RCW 9.94A.030; prescribing penalties; and providing an
effective date.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
Sec.
1. RCW
9.94A.030 and 1991 c 348 s 4, 1991 c 290 s 3, and 1991 c 181 s 1 are each
reenacted and amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Collect," or any derivative thereof, "collect and remit,"
or "collect and deliver," when used with reference to the department
of corrections, means that the department is responsible for monitoring and
enforcing the offender's sentence with regard to the legal financial
obligation, receiving payment thereof from the offender, and, consistent with
current law, delivering daily the entire payment to the superior court clerk
without depositing it in a departmental account.
(2)
"Commission" means the sentencing guidelines commission.
(3)
"Community corrections officer" means an employee of the department
who is responsible for carrying out specific duties in supervision of sentenced
offenders and monitoring of sentence conditions.
(4)
"Community custody" means that portion of an inmate's sentence of
confinement in lieu of earned early release time served in the community
subject to controls placed on the inmate's movement and activities by the
department of corrections.
(5)
"Community placement" means that period during which the offender is
subject to the conditions of community custody and/or postrelease supervision,
which begins either upon completion of the term of confinement (postrelease
supervision) or at such time as the offender is transferred to community
custody in lieu of earned early release. Community placement may consist of
entirely community custody, entirely postrelease supervision, or a combination
of the two.
(6)
"Community service" means compulsory service, without compensation,
performed for the benefit of the community by the offender.
(7)
"Community supervision" means a period of time during which a
convicted offender is subject to crime-related prohibitions and other sentence
conditions imposed by a court pursuant to this chapter or RCW 46.61.524. For
first-time offenders, the supervision may include crime-related prohibitions
and other conditions imposed pursuant to RCW 9.94A.120(5). For purposes of the
interstate compact for out-of-state supervision of parolees and probationers,
RCW 9.95.270, community supervision is the functional equivalent of probation
and should be considered the same as probation by other states.
(8)
"Confinement" means total or partial confinement as defined in this
section.
(9)
"Conviction" means an adjudication of guilt pursuant to Titles 10 or
13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of
a plea of guilty.
(10)
"Court-ordered legal financial obligation" means a sum of money that
is ordered by a superior court of the state of Washington for legal financial
obligations which may include restitution to the victim, statutorily imposed
crime victims' compensation fees as assessed pursuant to RCW 7.68.035, court
costs, county or interlocal drug funds, court-appointed attorneys' fees, and
costs of defense, fines, and any other financial obligation that is assessed to
the offender as a result of a felony conviction.
(11)
"Crime-related prohibition" means an order of a court prohibiting
conduct that directly relates to the circumstances of the crime for which the
offender has been convicted, and shall not be construed to mean orders
directing an offender affirmatively to participate in rehabilitative programs
or to otherwise perform affirmative conduct.
(12)(a)
"Criminal history" means the list of a defendant's prior convictions,
whether in this state, in federal court, or elsewhere. The history shall
include, where known, for each conviction (i) whether the defendant has been
placed on probation and the length and terms thereof; and (ii) whether the
defendant has been incarcerated and the length of incarceration.
(b)
"Criminal history" shall always include juvenile convictions for sex
offenses and shall also include a defendant's other prior convictions in
juvenile court if: (i) The conviction was for an offense which is a felony or
a serious traffic offense and is criminal history as defined in RCW
13.40.020(6)(a); (ii) the defendant was fifteen years of age or older at the
time the offense was committed; and (iii) with respect to prior juvenile class
B and C felonies or serious traffic offenses, the defendant was less than
twenty-three years of age at the time the offense for which he or she is being
sentenced was committed.
(13) "Criminal
street gang" means any ongoing organization, association, or group of
three or more persons, whether formal or informal, that has as one of its
primary activities the commission of a criminal act or acts, that has a common
name and whose members individually or collectively engage in or have engaged
in a pattern of criminal gang activity.
(14)
"Department" means the department of corrections.
(((14)))
(15) "Determinate sentence" means a sentence that states with
exactitude the number of actual years, months, or days of total confinement, of
partial confinement, of community supervision, the number of actual hours or
days of community service work, or dollars or terms of a legal financial
obligation. The fact that an offender through "earned early release"
can reduce the actual period of confinement shall not affect the classification
of the sentence as a determinate sentence.
(((15)))
(16) "Disposable earnings" means that part of the earnings of
an individual remaining after the deduction from those earnings of any amount
required by law to be withheld. For the purposes of this definition,
"earnings" means compensation paid or payable for personal services,
whether denominated as wages, salary, commission, bonuses, or otherwise, and,
notwithstanding any other provision of law making the payments exempt from
garnishment, attachment, or other process to satisfy a court-ordered legal
financial obligation, specifically includes periodic payments pursuant to
pension or retirement programs, or insurance policies of any type, but does not
include payments made under Title 50 RCW, except as provided in RCW 50.40.020
and 50.40.050, or Title 74 RCW.
(((16)))
(17) "Drug offense" means:
(a)
Any felony violation of chapter 69.50 RCW except possession of a controlled
substance (RCW 69.50.401(d)) or forged prescription for a controlled substance
(RCW 69.50.403);
(b)
Any offense defined as a felony under federal law that relates to the
possession, manufacture, distribution, or transportation of a controlled
substance; or
(c)
Any out-of-state conviction for an offense that under the laws of this state
would be a felony classified as a drug offense under (a) of this subsection.
(((17)))
(18) "Escape" means:
(a)
Escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW
9A.76.120), willful failure to return from furlough (RCW 72.66.060), willful
failure to return from work release (RCW 72.65.070), or willful failure to
comply with any limitations on the inmate's movements while in community
custody (RCW 72.09.310); or
(b)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as an escape under (a) of this
subsection.
(((18)))
(19) "Felony traffic offense" means:
(a)
Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding
a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW
46.52.020(4)); or
(b) Any
federal or out-of-state conviction for an offense that under the laws of this
state would be a felony classified as a felony traffic offense under (a) of
this subsection.
(((19)))
(20) "Fines" means the requirement that the offender pay a
specific sum of money over a specific period of time to the court.
(((20)))
(21)(a) "First-time offender" means any person who is
convicted of a felony (i) not classified as a violent offense or a sex offense
under this chapter, or (ii) that is not the manufacture, delivery, or
possession with intent to manufacture or deliver a controlled substance
classified in schedule I or II that is a narcotic drug or the selling for
profit (([of])) of any controlled substance or counterfeit
substance classified in schedule I, RCW 69.50.204, except leaves and flowering
tops of marihuana, and except as provided in (b) of this subsection, who
previously has never been convicted of a felony in this state, federal court,
or another state, and who has never participated in a program of deferred
prosecution for a felony offense.
(b)
For purposes of (a) of this subsection, a juvenile adjudication for an offense
committed before the age of fifteen years is not a previous felony conviction
except for adjudications of sex offenses.
(((21)))
(22) "Nonviolent offense" means an offense which is not a
violent offense.
(((22)))
(23) "Offender" means a person who has committed a felony
established by state law and is eighteen years of age or older or is less than
eighteen years of age but whose case has been transferred by the appropriate
juvenile court to a criminal court pursuant to RCW 13.40.110. Throughout this
chapter, the terms "offender" and "defendant" are used
interchangeably.
(((23)))
(24) "Partial confinement" means confinement for no more than
one year in a facility or institution operated or utilized under contract by
the state or any other unit of government, or, if home detention or work crew
has been ordered by the court, in an approved residence, for a substantial
portion of each day with the balance of the day spent in the community.
Partial confinement includes work release, home detention, work crew, and a
combination of work crew and home detention as defined in this section.
(((24)))
(25) "Pattern of criminal gang activity" means the commission,
attempted commission, or solicitation of two or more felony or misdemeanor
offenses under the following conditions: (a) At least one of the offenses
occurred after the effective date of this act; (b) the last of the offenses
occurred within one year after a prior offense; and (c) the offenses are
committed on separate occasions, or by two or more persons.
(26)
"Postrelease supervision" is that portion of an offender's community
placement that is not community custody.
(((25)))
(27) "Restitution" means the requirement that the offender pay
a specific sum of money over a specific period of time to the court as payment
of damages. The sum may include both public and private costs. The imposition
of a restitution order does not preclude civil redress.
(((26)))
(28) "Serious traffic offense" means:
(a)
Driving while under the influence of intoxicating liquor or any drug (RCW
46.61.502), actual physical control while under the influence of intoxicating
liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or
hit-and-run an attended vehicle (RCW 46.52.020(5)); or
(b)
Any federal, out-of-state, county, or municipal conviction for an offense that
under the laws of this state would be classified as a serious traffic offense
under (a) of this subsection.
(((27)))
(29) "Serious violent offense" is a subcategory of violent
offense and means:
(a)
Murder in the first degree, homicide by abuse, murder in the second degree, assault
in the first degree, kidnapping in the first degree, or rape in the first
degree, or an attempt, criminal solicitation, or criminal conspiracy to commit
one of these felonies; or
(b)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a serious violent offense under (a)
of this subsection.
(((28)))
(30) "Sentence range" means the sentencing court's
discretionary range in imposing a nonappealable sentence.
(((29)))
(31) "Sex offense" means:
(a) A
felony that is a violation of chapter 9A.44 RCW or RCW 9A.64.020 or 9.68A.090
or that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation,
or criminal conspiracy to commit such crimes;
(b) A
felony with a finding of sexual motivation under RCW 9.94A.127; or
(c)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a sex offense under (a) of this
subsection.
(((30)))
(32) "Sexual motivation" means that one of the purposes for
which the defendant committed the crime was for the purpose of his or her
sexual gratification.
(((31)))
(33) "Total confinement" means confinement inside the physical
boundaries of a facility or institution operated or utilized under contract by
the state or any other unit of government for twenty-four hours a day, or
pursuant to RCW 72.64.050 and 72.64.060.
(((32)))
(34) "Victim" means any person who has sustained emotional,
psychological, physical, or financial injury to person or property as a direct
result of the crime charged.
(((33)))
(35) "Violent offense" means:
(a)
Any of the following felonies, as now existing or hereafter amended: Any
felony defined under any law as a class A felony or an attempt to commit a
class A felony, criminal solicitation of or criminal conspiracy to commit a
class A felony, manslaughter in the first degree, manslaughter in the second
degree, indecent liberties if committed by forcible compulsion, kidnapping in
the second degree, arson in the second degree, assault in the second degree,
extortion in the first degree, robbery in the second degree, vehicular assault,
and vehicular homicide, when proximately caused by the driving of any vehicle
by any person while under the influence of intoxicating liquor or any drug as
defined by RCW 46.61.502, or by the operation of any vehicle in a reckless
manner;
(b)
Any conviction for a felony offense in effect at any time prior to July 1,
1976, that is comparable to a felony classified as a violent offense in (a) of
this subsection; and
(c)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a violent offense under (a) or (b)
of this subsection.
(((34)))
(36) "Work crew" means a program of partial confinement
consisting of civic improvement tasks for the benefit of the community of not
less than thirty-five hours per week that complies with RCW 9.94A.135. The
civic improvement tasks shall be performed on public property or on private
property owned or operated by nonprofit entities, except that, for emergency
purposes only, work crews may perform snow removal on any private property.
The civic improvement tasks shall have minimal negative impact on existing
private industries or the labor force in the county where the service or labor
is performed. The civic improvement tasks shall not affect employment
opportunities for people with developmental disabilities contracted through
sheltered workshops as defined in RCW 82.04.385. Only those offenders
sentenced to a facility operated or utilized under contract by a county are
eligible to participate on a work crew. Offenders sentenced for a sex offense
as defined in subsection (((29))) (31) of this section are not
eligible for the work crew program.
(((35)))
(37) "Work release" means a program of partial confinement
available to offenders who are employed or engaged as a student in a regular
course of study at school. Participation in work release shall be conditioned
upon the offender attending work or school at regularly defined hours and
abiding by the rules of the work release facility.
(((36)))
(38) "Home detention" means a program of partial confinement
available to offenders wherein the offender is confined in a private residence
subject to electronic surveillance. Home detention may not be imposed for
offenders convicted of a violent offense, any sex offense, any drug offense,
reckless burning in the first or second degree as defined in RCW 9A.48.040 or
9A.48.050, assault in the third degree as defined in RCW 9A.36.031, unlawful
imprisonment as defined in RCW 9A.40.040, or harassment as defined in RCW
9A.46.020. Home detention may be imposed for offenders convicted of possession
of a controlled substance (RCW 69.50.401(d)) or forged prescription for a
controlled substance (RCW 69.50.403) if the offender fulfills the participation
conditions set forth in this subsection and is monitored for drug use by
treatment alternatives to street crime (TASC) or a comparable court or
agency-referred program.
(a)
Home detention may be imposed for offenders convicted of burglary in the second
degree as defined in RCW 9A.52.030 or residential burglary conditioned upon the
offender: (i) Successfully completing twenty-one days in a work release
program, (ii) having no convictions for burglary in the second degree or
residential burglary during the preceding two years and not more than two prior
convictions for burglary or residential burglary, (iii) having no convictions
for a violent felony offense during the preceding two years and not more than
two prior convictions for a violent felony offense, (iv) having no prior
charges of escape, and (v) fulfilling the other conditions of the home
detention program.
(b)
Participation in a home detention program shall be conditioned upon: (i) The
offender obtaining or maintaining current employment or attending a regular
course of school study at regularly defined hours, or the offender performing
parental duties to offspring or minors normally in the custody of the offender,
(ii) abiding by the rules of the home detention program, and (iii) compliance
with court-ordered legal financial obligations. The home detention program may
also be made available to offenders whose charges and convictions do not
otherwise disqualify them if medical or health-related conditions, concerns or
treatment would be better addressed under the home detention program, or where
the health and welfare of the offender, other inmates, or staff would be
jeopardized by the offender's incarceration. Participation in the home
detention program for medical or health-related reasons is conditioned on the
offender abiding by the rules of the home detention program and complying with
court-ordered restitution.
Sec.
2. RCW
9.94A.390 and 1990 c 3 s 603 are each amended to read as follows:
If the
sentencing court finds that an exceptional sentence outside the standard range
should be imposed in accordance with RCW 9.94A.120(2), the sentence is subject
to review only as provided for in RCW 9.94A.210(4).
The
following are illustrative factors which the court may consider in the exercise
of its discretion to impose an exceptional sentence. The following are
illustrative only and are not intended to be exclusive reasons for exceptional
sentences.
(1)
Mitigating Circumstances
(a) To
a significant degree, the victim was an initiator, willing participant,
aggressor, or provoker of the incident.
(b)
Before detection, the defendant compensated, or made a good faith effort to
compensate, the victim of the criminal conduct for any damage or injury sustained.
(c)
The defendant committed the crime under duress, coercion, threat, or compulsion
insufficient to constitute a complete defense but which significantly affected
his or her conduct.
(d)
The defendant, with no apparent predisposition to do so, was induced by others
to participate in the crime.
(e)
The defendant's capacity to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of the law, was significantly impaired
(voluntary use of drugs or alcohol is excluded).
(f)
The offense was principally accomplished by another person and the defendant
manifested extreme caution or sincere concern for the safety or well-being of
the victim.
(g)
The operation of the multiple offense policy of RCW 9.94A.400 results in a
presumptive sentence that is clearly excessive in light of the purpose of this
chapter, as expressed in RCW 9.94A.010.
(h)
The defendant or the defendant's children suffered a continuing pattern of
physical or sexual abuse by the victim of the offense and the offense is a
response to that abuse.
(2)
Aggravating Circumstances
(a)
The defendant's conduct during the commission of the current offense manifested
deliberate cruelty to the victim.
(b)
The defendant knew or should have known that the victim of the current offense
was particularly vulnerable or incapable of resistance due to extreme youth,
advanced age, disability, or ill health.
(c)
The current offense was a major economic offense or series of offenses, so
identified by a consideration of any of the following factors:
(i)
The current offense involved multiple victims or multiple incidents per victim;
(ii)
The current offense involved attempted or actual monetary loss substantially
greater than typical for the offense;
(iii)
The current offense involved a high degree of sophistication or planning or
occurred over a lengthy period of time;
(iv)
The defendant used his or her position of trust, confidence, or fiduciary
responsibility to facilitate the commission of the current offense.
(d)
The current offense was a major violation of the Uniform Controlled Substances
Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled
substances, which was more onerous than the typical offense of its statutory
definition: The presence of ANY of the following may identify a current
offense as a major VUCSA:
(i)
The current offense involved at least three separate transactions in which
controlled substances were sold, transferred, or possessed with intent to do
so; or
(ii)
The current offense involved an attempted or actual sale or transfer of
controlled substances in quantities substantially larger than for personal use;
or
(iii)
The current offense involved the manufacture of controlled substances for use
by other parties; or
(iv)
The circumstances of the current offense reveal the offender to have occupied a
high position in the drug distribution hierarchy; or
(v)
The current offense involved a high degree of sophistication or planning or
occurred over a lengthy period of time or involved a broad geographic area of
disbursement; or
(vi)
The offender used his or her position or status to facilitate the commission of
the current offense, including positions of trust, confidence or fiduciary
responsibility (e.g., pharmacist, physician, or other medical professional)((;
or)).
(e)
The current offense included a finding of sexual motivation pursuant to RCW
9.94A.127((;)).
(f)
The offense was part of an ongoing pattern of sexual abuse of the same victim
under the age of eighteen years manifested by multiple incidents over a
prolonged period of time((; or)).
(g)
The operation of the multiple offense policy of RCW 9.94A.400 results in a
presumptive sentence that is clearly too lenient in light of the purpose of
this chapter, as expressed in RCW 9.94A.010.
(h)
The offense was committed for the benefit of, at the direction of, or in
association with any criminal street gang as defined in RCW 9.94A.030, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members.
NEW
SECTION. Sec. 3. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
NEW
SECTION. Sec. 4. This
act shall take effect July 1, 1992.
