S-3439

AN ACT Relating to participation in criminal street gangs; amending RCW 9.94A.390; adding a new section to chapter 9.91 RCW; prescribing penalties; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 9.91 RCW to read as follows:

(1)(a) It is a gross misdemeanor for any person to participate actively in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and with the specific intent to promote, further, or assist in any criminal conduct by members of that gang.

(b) It is a gross misdemeanor for any person willfully to promote, further, assist, or profit from any criminal conduct by members of a criminal street gang.

(2) For the purposes of this section, the following definitions apply.

(a) "Participate actively" means the commission of an offense punishable as a misdemeanor or a felony, which is committed for the benefit of, at the direction of, or in association with, any criminal street gang.

(b) "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.

The following factors may be considered in determining the existence of a criminal street gang:

(i) Displaying gang colors;

(ii) Using gang hand signs;

(iii) Displaying common identifying signs or symbols;

(iv) The presence of tattoos;

(v) Wearing common gang clothing;

(vi) A companion, accomplice, or coconspirator is a gang member, or has been convicted of a violation of this section.

(c) "Pattern of criminal gang activity" means the commission, attempted commission, or solicitation of two or more felony or misdemeanor offenses under the following conditions: (i) At least one of the offenses occurred after the effective date of this act; (ii) the last of the offenses occurred within one year after a prior offense; and (iii) the offenses are committed on separate occasions, or by two or more persons.

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 section 1 of this act, 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.