BILL REQ. #:  H-0841.1 

Read first time 01/24/2003.   Referred to Committee on Juvenile Justice & Family Law.

     AN ACT Relating to sentencing enhancements for criminal gang activity; amending RCW 13.40.160; adding a new section to chapter 13.40 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION.  Sec. 1   (1) The legislature finds and declares that:
     (a) Criminal gang activity is a prevalent problem throughout this state and gang violence has had a tremendous impact on our communities and families;
     (b) Gang members often view their gang as their "family." Gangs provide their members with negative guidance and undesirable values. This gang subculture perpetuates itself and leads to increased violence and crime;
     (c) Current law does not sufficiently deter criminal street gang activity.
     (2) By increasing penalties when an offense is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in criminal conduct by gang members, the legislature intends to convey that involvement in criminal street gangs is unacceptable. The legislature intends to deter criminal street gang activity by providing a sentencing enhancement.

NEW SECTION.  Sec. 2   A new section is added to chapter 13.40 RCW to read as follows:
     (1) A juvenile adjudicated of a felony offense that is committed for the benefit of, at the direction of, or in association with a criminal street gang, with the intent to promote, further, or assist in criminal conduct by gang members, must receive a sentence enhancement of ninety to one hundred twenty days confinement, at the discretion of the court, as provided in subsection (3) of this section.
     (2)(a) As used in this section, "criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, having a common name or common identifying sign or symbol, and having as one of its primary activities the commission of one or more of the criminal acts enumerated in (b) of this subsection, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
(b) As used in this section, "pattern of criminal gang activity" means the conviction or juvenile adjudication of two or more of the following offenses, provided at least one of these offenses occurred on or after the effective date of this section, and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons:
     (i) Murder, as defined in RCW 9A.32.030 or 9A.32.050;
     (ii) Robbery, as defined in RCW 9A.56.200 or 9A.56.210;
     (iii) Kidnapping, as defined in RCW 9A.40.020 or 9A.40.030;
     (iv) Theft, as defined in RCW 9A.56.030, 9A.56.040, or 9A.56.050;
     (v) Assault, as defined in RCW 9A.36.011 or 9A.36.021;
     (vi) Delivery or manufacture of controlled substances or possession with intent to deliver or manufacture controlled substances under chapter 69.50 RCW;
     (vii) Drive-by shooting, as defined in RCW 9A.36.045;
     (viii) Reckless endangerment, as defined in RCW 9A.36.050;
     (ix) Arson, as defined in RCW 9A.48.020 or 9A.48.030;
     (x) Intimidating a witness, as defined in RCW 9A.72.110;
     (xi) Taking a motor vehicle without permission, as defined in RCW 9A.56.070;
     (xii) Burglary, as defined in RCW 9A.52.020, 9A.52.025, or 9A.52.030;
     (xiii) Rape, as defined in RCW 9A.44.040, 9A.44.050, or 9A.44.060;
     (xiv) Money laundering, as defined in RCW 9A.83.020;
     (xv) Extortion, as defined in RCW 9A.56.120 or 9A.56.130;
     (xvi) Malicious mischief, as defined in RCW 9A.48.070, 9A.48.080, or 9A.48.090;
     (xvii) Unlawful possession of a firearm, as defined in RCW 9.41.040(1) (a) or (b).
     (3)(a) The court must determine the standard range disposition for the offense for which the respondent was adjudicated under RCW 13.40.160. One hundred five days must be added to the entire standard range disposition of confinement, except as provided in (b) of this subsection.
     (b) If the court finds that there are aggravating circumstances, the court may order the imposition of a disposition enhancement that is in excess of one hundred five days, but not to exceed one hundred twenty days. If the court finds that there are mitigating circumstances, the court may impose a disposition enhancement of less than one hundred five days, but not less than ninety days. The court must state the reasons for its choice of sentence enhancements on the record at the time of the disposition.
(4) 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 2002 c 175 s 22 are each amended to read as follows:
     (1) The standard range disposition for a juvenile adjudicated of an offense is determined according to RCW 13.40.0357.
     (a) When the court sentences an offender to a local sanction as provided in RCW 13.40.0357 option A, the court shall impose a determinate disposition within the standard ranges, except as provided in subsections (2), (3), and (4) of this section. The disposition may be comprised of one or more local sanctions.
     (b) When the court sentences an offender to a standard range as provided in RCW 13.40.0357 option A that includes a term of confinement exceeding thirty days, commitment shall be to the department for the standard range of confinement, except as provided in subsections (2), (3), and (4) of this section.
     (2) 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 C of 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.
     (3) When a juvenile 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, or if the court concludes, and enters reasons for its conclusions, that such disposition would cause a manifest injustice, the court shall impose a disposition under option C, and the court may suspend the execution of the disposition and place the offender on community supervision for at least 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 restitution, or any combination thereof;
     (vii) Make restitution to the victim for the cost of any counseling reasonably related to the offense;
     (viii) Comply with the conditions of any court-ordered probation bond; or
     (ix) The court shall order that the offender may not attend the public or approved private elementary, middle, or high school attended by the victim or the victim's siblings. The parents or legal guardians of the offender are responsible for transportation or other costs associated with the offender's change of school that would otherwise be paid by the school district. The court shall send notice of the disposition and restriction on attending the same school as the victim or victim's siblings to the public or approved private school the juvenile will attend, if known, or if unknown, to the approved private schools and the public school district board of directors of the district in which the juvenile resides or intends to reside. This notice must be sent at the earliest possible date but not later than ten calendar days after entry of the disposition.
     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 (3), 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 (3) 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.
     A disposition entered under this subsection (3) is not appealable under RCW 13.40.230.
     (4) If the juvenile offender is subject to a standard range disposition of local sanctions or 15 to 36 weeks of confinement and has not committed an A- or B+ offense, the court may impose the disposition alternative under RCW 13.40.165.
     (5) RCW 13.40.193 shall govern the disposition of any juvenile adjudicated of possessing a firearm in violation of RCW 9.41.040(1)(b)(iii) or any crime in which a special finding is entered that the juvenile was armed with a firearm.
     (6) 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 criminal street gang, with the intent of promoting, furthering, or assisting in criminal conduct by gang members.
     (7) 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.
     (((7))) (8) Except as provided under subsection (3) or (4) of this section or RCW 13.40.127, the court shall not suspend or defer the imposition or the execution of the disposition.
     (((8))) (9) 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.