1522-S2 AMS LAW S2648.2

2SHB 1522 - S COMM AMD

By Committee on Law & Justice

    Strike everything after the enacting clause and insert the following:

    "NEW SECTION. Sec. 1.  A new section is added to chapter 9.94A RCW to read as follows:

    A minimum additional term of two years shall be added to the presumptive sentence for any felony offense committed for the benefit of, at the direction of, or in association with any ongoing group consisting of three or more persons, whether formal or informal, having a common name or common identifying sign or symbol, who act in concert for criminal purposes, and who are commonly recognized as a street gang.  This determination shall be made by the court at sentencing.  Notwithstanding any other provision of law, an enhancement under this section is mandatory, and shall not run concurrently with any other sentencing provisions.

NEW SECTION. Sec. 2.  A new section is added to chapter 13.40 RCW to read as follows:

    (1) If a juvenile is adjudicated of a felony offense that is committed for the benefit of, at the direction of, or in association with any ongoing group consisting of three or more persons, whether formal or informal, having a common name or common identifying sign or symbol, who act in concert for criminal purposes, and who are commonly recognized as a street gang, the court must add a minimum of one hundred five days to the entire standard range disposition of confinement.

    (2) Option B of schedule D-2, RCW 13.40.0357, is not available for middle offenders who receive a disposition under this section.  When a disposition under this section would effectuate a manifest injustice, the court may impose another disposition.  When a judge finds a manifest injustice and imposes a disposition of confinement exceeding thirty days, the judge must commit the juvenile to the maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range.  When a judge finds a manifest injustice and imposes a disposition of confinement less than thirty days, the disposition may be comprised of confinement, community supervision, or both.

    (3) Any term of confinement ordered under this section must run consecutively to any term of confinement imposed in the same disposition for other offenses.

    Sec. 3.  RCW 13.40.160 and 1995 c 395 s 7 are each amended to read as follows:

    (1) When the respondent is found to be a serious offender, the court shall commit the offender to the department for the standard range of disposition for the offense, as indicated in option A of schedule D-3, RCW 13.40.0357 except as provided in subsections (5) ((and)), (6), and (7) of this section.

    If the court concludes, and enters reasons for its conclusion, that disposition within the standard range would effectuate a manifest injustice the court shall impose a disposition outside the standard range, as indicated in option B of schedule D-3, RCW 13.40.0357.  The court's finding of manifest injustice shall be supported by clear and convincing evidence.

    A disposition outside the standard range shall be determinate and shall be comprised of confinement or community supervision, or a combination thereof.  When a judge finds a manifest injustice and imposes a sentence of confinement exceeding thirty days, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range.  A disposition outside the standard range is appealable under RCW 13.40.230 by the state or the respondent.  A disposition within the standard range is not appealable under RCW 13.40.230.

    (2) Where the respondent is found to be a minor or first offender, the court shall order that the respondent serve a term of community supervision as indicated in option A or option B of schedule D-1, RCW 13.40.0357 except as provided in subsections (5) and (6) of this section.  If the court determines that a disposition of community supervision would effectuate a manifest injustice the court may impose another disposition under option C of schedule D-1, RCW 13.40.0357.  Except as provided in subsection (5) of this section, a disposition other than a community supervision may be imposed only after the court enters reasons upon which it bases its conclusions that imposition of community supervision would effectuate a manifest injustice.  When a judge finds a manifest injustice and imposes a sentence of confinement exceeding thirty days, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range.  The court's finding of manifest injustice shall be supported by clear and convincing evidence.

    Except for disposition of community supervision or a disposition imposed pursuant to subsection (5) of this section, a  disposition may be appealed as provided in RCW 13.40.230 by the state or the respondent.  A disposition of community supervision or a disposition imposed pursuant to subsection (5) of this section may not be appealed under RCW 13.40.230.

    (3) Where a respondent is found to have committed an offense for which the respondent declined to enter into a diversion agreement, the court shall impose a term of community supervision limited to the conditions allowed in a diversion agreement as provided in RCW 13.40.080(2).

    (4) If a respondent is found to be a middle offender:

    (a) The court shall impose a determinate disposition within the standard range(s) for such offense, as indicated in option A of schedule D-2, RCW 13.40.0357 except as provided in subsections (5) ((and)), (6), and (7) of this section.  If the standard range includes a term of confinement exceeding thirty days, commitment shall be to the department for the standard range of confinement; or

    (b) If the middle offender has less than 110 points, the court shall impose a determinate disposition of community supervision and/or up to thirty days confinement, as indicated in option B of schedule D-2, RCW 13.40.0357 in which case, if confinement has been imposed, the court shall state either aggravating or mitigating factors as set forth in RCW 13.40.150.  If the middle offender has 110 points or more, the court may impose a disposition under option A and may suspend the disposition on the condition that the offender serve up to thirty days of confinement and follow all conditions of community supervision.  If the offender violates any condition of the disposition including conditions of a probation bond, the court may impose sanctions pursuant to RCW 13.40.200 or may revoke the suspension and order execution of the disposition.  The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked.

    (c) Only if the court concludes, and enters reasons for its conclusions, that disposition as provided in subsection (4)(a) or (b) of this section would effectuate a manifest injustice, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range.  The court's finding of manifest injustice shall be supported by clear and convincing evidence.

    (d) A disposition pursuant to subsection (4)(c) of this section is appealable under RCW 13.40.230 by the state or the respondent.  A disposition pursuant to subsection (4)(a) or (b) of this section is not appealable under RCW 13.40.230.

    (5) When a serious, middle, or minor first offender is found to have committed a sex offense, other than a sex offense that is also a serious violent offense as defined by RCW 9.94A.030, and has no history of a prior sex offense, the court, on its own motion or the motion of the state or the respondent, may order an examination to determine whether the respondent is amenable to treatment.

    The report of the examination shall include at a minimum the following:  The respondent's version of the facts and the official version of the facts, the respondent's offense history, an assessment of problems in addition to alleged deviant behaviors, the respondent's social, educational, and employment situation, and other evaluation measures used.  The report shall set forth the sources of the evaluator's information.

    The examiner shall assess and report regarding the respondent's amenability to treatment and relative risk to the community.  A proposed treatment plan shall be provided and shall include, at a minimum:

    (a)(i) Frequency and type of contact between the offender and therapist;

    (ii) Specific issues to be addressed in the treatment and description of planned treatment modalities;

    (iii) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members, legal guardians, or others;

    (iv) Anticipated length of treatment; and

    (v) Recommended crime-related prohibitions.

    The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender's amenability to treatment.  The evaluator shall be selected by the party making the motion.  The defendant shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.

    After receipt of reports of the examination, the court shall then consider whether the offender and the community will benefit from use of this special sex offender disposition alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this section.  If the court determines that this special sex offender disposition alternative is appropriate, then the court shall impose a determinate disposition within the standard range for the offense, and the court may suspend the execution of the disposition and place the offender on community supervision for up to two years.  As a condition of the suspended disposition, the court may impose the conditions of community supervision and other conditions, including up to thirty days of confinement and requirements that the offender do any one or more of the following:

    (b)(i) Devote time to a specific education, employment, or occupation;

    (ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense.  A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment.  The respondent shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the probation counselor, and the court, and shall not change providers without court approval after a hearing if the prosecutor or probation counselor object to the change;

    (iii) Remain within prescribed geographical boundaries and notify the court or the probation counselor prior to any change in the offender's address, educational program, or employment;

    (iv) Report to the prosecutor and the probation counselor prior to any change in a sex offender treatment provider.  This change shall have prior approval by the court;

    (v) Report as directed to the court and a probation counselor;

    (vi) Pay all court-ordered legal financial obligations, perform community service, or any combination thereof;

    (vii) Make restitution to the victim for the cost of any counseling reasonably related to the offense; or

    (viii) Comply with the conditions of any court-ordered probation bond.

    The sex offender treatment provider shall submit quarterly reports on the respondent's progress in treatment to the court and the parties.  The reports shall reference the treatment plan and include at a minimum the following:  Dates of attendance, respondent's compliance with requirements, treatment activities, the respondent's relative progress in treatment, and any other material specified by the court at the time of the disposition.

    At the time of the disposition, the court may set treatment review hearings as the court considers appropriate.

    Except as provided in this subsection (5), after July 1, 1991, examinations and treatment ordered pursuant to this subsection shall only be conducted by sex offender treatment providers certified by the department of health pursuant to chapter 18.155 RCW.  A sex offender therapist who examines or treats a juvenile sex offender pursuant to this subsection does not have to be certified by the department of health pursuant to chapter 18.155 RCW if the court finds that:  (A) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; (B) no certified providers are available for treatment within a reasonable geographical distance of the offender's home; and (C) the evaluation and treatment plan comply with this subsection (5) and the rules adopted by the department of health.

    If the offender violates any condition of the disposition or the court finds that the respondent is failing to make satisfactory progress in treatment, the court may revoke the suspension and order execution of the disposition or the court may impose a penalty of up to thirty days' confinement for violating conditions of the disposition.  The court may order both execution of the disposition and up to thirty days' confinement for the violation of the conditions of the disposition.  The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked.

    For purposes of this section, "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.  "Victim" may also include a known parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense.

    (6) RCW 13.40.193 shall govern the disposition of any juvenile adjudicated of possessing a firearm in violation of RCW 9.41.040(1)(((e))) (b)(iii) or any crime in which a special finding is entered that the juvenile was armed with a firearm.

    (7) Section 2 of this act governs the disposition of any juvenile adjudicated of a felony offense committed for the benefit of, at the direction of, or in association with a street gang.

(8) Whenever a juvenile offender is entitled to credit for time spent in detention prior to a dispositional order, the dispositional order shall specifically state the number of days of credit for time served.

    (((8))) (9) Except as provided for in subsection (4)(b) or (5) of this section or RCW 13.40.125, the court shall not suspend or defer the imposition or the execution of the disposition.

    (((9))) (10) In no case shall the term of confinement imposed by the court at disposition exceed that to which an adult could be subjected for the same offense.

NEW SECTION. Sec. 4.  If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 1997, in the omnibus appropriations act, this act is null and void."

2SHB 1522 - S COMM AMD

By Committee on Law & Justice

    On page 1, line 1 of the title, after "sentencing;" strike the remainder of the title and insert "amending RCW 13.40.160; adding a new section to chapter 9.94A RCW; adding a new section to chapter 13.40 RCW; creating a new section; and prescribing penalties."

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