S-3839.1 _______________________________________________
SENATE BILL 6041
_______________________________________________
State of Washington 53rd Legislature 1994 Regular Session
By Senators Ludwig, A. Smith, Winsley, Oke, Nelson and McAuliffe
Read first time 01/10/94. Referred to Committee on Law & Justice.
AN ACT Relating to sentencing for crimes committed by gang members; 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 1994 c 1 s 3 (Initiative Measure No. 593), 1993 c 338 s 2, 1993 c 251 s 4, and 1993 c 164 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. Upon conviction for vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial obligations may also include payment to a public agency of the expense of an emergency response to the incident resulting in the conviction, subject to the provisions in RCW 38.52.430.
(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)))(9); (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.
(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 be available for supervision by the department 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 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) "Most serious
offense" means any of the following felonies or a felony attempt to commit
any of the following felonies, as now existing or hereafter amended:
(a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony;
(b) Assault in the second degree;
(c) Assault of a child in the second degree;
(d) Child molestation in the second degree;
(e) Controlled substance homicide;
(f) Extortion in the first degree;
(g) Incest when committed against a child under age fourteen;
(h) Indecent liberties;
(i) Kidnapping in the second degree;
(j) Leading organized crime;
(k) Manslaughter in the first degree;
(l) Manslaughter in the second degree;
(m) Promoting prostitution in the first degree;
(n) Rape in the third degree;
(o) Robbery in the second degree;
(p) Sexual exploitation;
(q) Vehicular assault;
(r) 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;
(s) Any other class B felony offense with a finding of sexual motivation, as "sexual motivation" is defined under this section;
(t) Any other felony with a deadly weapon verdict under RCW 9.94A.125;
(u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection.
(((22))) (23) "Nonviolent
offense" means an offense which is not a violent offense.
(((23))) (24)
"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.
(((24))) (25) "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.
(((25))) (26) "Persistent
offender" is an offender who:
(a) Has been convicted in this state of any felony considered a most serious offense; and
(b) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted.
(((26))) (27) "Postrelease
supervision" is that portion of an offender's community placement that is
not community custody.
(((27))) (28)
"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.
(((28))) (29) "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.
(((29))) (30) "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, assault of a child 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.
(((30))) (31) "Sentence
range" means the sentencing court's discretionary range in imposing a
nonappealable sentence.
(((31))) (32) "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.
(((32))) (33) "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.
(((33))) (34) "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.
(((34))) (35) "Transition
training" means written and verbal instructions and assistance provided by
the department to the offender during the two weeks prior to the offender's
successful completion of the work ethic camp program. The transition training
shall include instructions in the offender's requirements and obligations
during the offender's period of community custody.
(((35))) (36) "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.
(((36))) (37) "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, assault of a child 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.
(((37))) (38) "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 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 or the state are eligible to participate on
a work crew. Offenders sentenced for a sex offense as defined in subsection (((31)))
(32) of this section are not eligible for the work crew program.
(((38))) (39) "Work ethic
camp" means an alternative incarceration program designed to reduce
recidivism and lower the cost of corrections by requiring offenders to complete
a comprehensive array of real-world job and vocational experiences,
character-building work ethics training, life management skills development,
substance abuse rehabilitation, counseling, literacy training, and basic adult
education.
(((39))) (40) "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.
(((40))) (41) "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, assault of a child in the third
degree, 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, 1994.
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