Passed by the House February 11, 2006 Yeas 95   ________________________________________ Speaker of the House of Representatives Passed by the Senate March 3, 2006 Yeas 47   ________________________________________ President of the Senate | I, Richard Nafziger, Chief Clerk of the House of Representatives of the State of Washington, do hereby certify that the attached is HOUSE BILL 2704 as passed by the House of Representatives and the Senate on the dates hereon set forth. ________________________________________ Chief Clerk | |
Approved ________________________________________ Governor of the State of Washington | Secretary of State State of Washington |
State of Washington | 59th Legislature | 2006 Regular Session |
Read first time 01/12/2006. Referred to Committee on Criminal Justice & Corrections.
AN ACT Relating to organized retail theft; amending RCW 9A.56.010; reenacting and amending RCW 9A.82.010 and 9.94A.515; adding new sections to chapter 9A.56 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 9A.56 RCW
to read as follows:
(1) A person is guilty of theft with the intent to resell if he or
she commits theft of property with a value of at least two hundred
fifty dollars from a mercantile establishment with the intent to resell
the property for monetary or other gain.
(2) The person is guilty of theft with the intent to resell in the
first degree if the property has a value of one thousand five hundred
dollars or more. Theft with the intent to resell in the first degree
is a class B felony.
(3) The person is guilty of theft with the intent to resell in the
second degree if the property has a value of at least two hundred fifty
dollars, but less than one thousand five hundred dollars. Theft with
the intent to resell in the second degree is a class C felony.
(4) For purposes of this section, a series of thefts committed by
the same person from one or more mercantile establishments over a
period of one hundred eighty days may be aggregated in one count and
the sum of the value of all the property shall be the value considered
in determining the degree of the theft with the intent to resell
involved. Thefts committed by the same person in different counties
that have been aggregated in one county may be prosecuted in any county
in which one of the thefts occurred.
NEW SECTION. Sec. 2 A new section is added to chapter 9A.56 RCW
to read as follows:
(1) A person is guilty of organized retail theft if he or she:
(a) Commits theft of property with a value of at least two hundred
fifty dollars from a mercantile establishment with an accomplice; or
(b) Possesses stolen property, as defined in RCW 9A.56.140, with a
value of at least two hundred fifty dollars from a mercantile
establishment with an accomplice.
(2) A person is guilty of organized retail theft in the first
degree if the property stolen or possessed has a value of one thousand
five hundred dollars or more. Organized retail theft in the first
degree is a class B felony.
(3) A person is guilty of organized retail theft in the second
degree if the property stolen or possessed has a value of at least two
hundred fifty dollars, but less than one thousand five hundred dollars.
Organized retail theft in the second degree is a class C felony.
(4) For purposes of this section, a series of thefts committed by
the same person from one or more mercantile establishments over a
period of one hundred eighty days may be aggregated in one count and
the sum of the value of all the property shall be the value considered
in determining the degree of the organized retail theft involved.
Thefts committed by the same person in different counties that have
been aggregated in one county may be prosecuted in any county in which
one of the thefts occurred.
NEW SECTION. Sec. 3 A new section is added to chapter 9A.56 RCW
to read as follows:
(1) A person commits retail theft with extenuating circumstances if
he or she commits theft of property from a mercantile establishment
with one of the following extenuating circumstances:
(a) To facilitate the theft, the person leaves the mercantile
establishment through a designated emergency exit;
(b) The person was, at the time of the theft, in possession of an
item, article, implement, or device designed to overcome security
systems including, but not limited to, lined bags or tag removers; or
(c) The person committed theft at three or more separate and
distinct mercantile establishments within a one hundred eighty-day
period.
(2) A person is guilty of retail theft with extenuating
circumstances in the first degree if the theft involved constitutes
theft in the first degree. Retail theft with extenuating circumstances
in the first degree is a class B felony.
(3) A person is guilty of retail theft with extenuating
circumstances in the second degree if the theft involved constitutes
theft in the second degree. Retail theft with extenuating
circumstances in the second degree is a class C felony.
(4) A person is guilty of retail theft with extenuating
circumstances in the third degree if the theft involved constitutes
theft in the third degree. Retail theft with extenuating circumstances
in the third degree is a class C felony.
Sec. 4 RCW 9A.56.010 and 2002 c 97 s 1 are each amended to read
as follows:
The following definitions are applicable in this chapter unless the
context otherwise requires:
(1) "Access device" means any card, plate, code, account number, or
other means of account access that can be used alone or in conjunction
with another access device to obtain money, goods, services, or
anything else of value, or that can be used to initiate a transfer of
funds, other than a transfer originated solely by paper instrument;
(2) "Appropriate lost or misdelivered property or services" means
obtaining or exerting control over the property or services of another
which the actor knows to have been lost or mislaid, or to have been
delivered under a mistake as to identity of the recipient or as to the
nature or amount of the property;
(3) "Beverage crate" means a plastic or metal box-like container
used by a manufacturer or distributor in the transportation or
distribution of individually packaged beverages to retail outlets, and
affixed with language stating "property of . . . . .," "owned by
. . . . .," or other markings or words identifying ownership;
(4) "By color or aid of deception" means that the deception
operated to bring about the obtaining of the property or services; it
is not necessary that deception be the sole means of obtaining the
property or services;
(5) "Deception" occurs when an actor knowingly:
(a) Creates or confirms another's false impression which the actor
knows to be false; or
(b) Fails to correct another's impression which the actor
previously has created or confirmed; or
(c) Prevents another from acquiring information material to the
disposition of the property involved; or
(d) Transfers or encumbers property without disclosing a lien,
adverse claim, or other legal impediment to the enjoyment of the
property, whether that impediment is or is not valid, or is or is not
a matter of official record; or
(e) Promises performance which the actor does not intend to perform
or knows will not be performed.
(6) "Deprive" in addition to its common meaning means to make
unauthorized use or an unauthorized copy of records, information, data,
trade secrets, or computer programs;
(7) "Merchandise pallet" means a wood or plastic carrier designed
and manufactured as an item on which products can be placed before or
during transport to retail outlets, manufacturers, or contractors, and
affixed with language stating "property of . . .," "owned by . . .," or
other markings or words identifying ownership;
(8) "Obtain control over" in addition to its common meaning, means:
(a) In relation to property, to bring about a transfer or purported
transfer to the obtainer or another of a legally recognized interest in
the property; or
(b) In relation to labor or service, to secure performance thereof
for the benefits of the obtainer or another;
(9) "Owner" means a person, other than the actor, who has
possession of or any other interest in the property or services
involved, and without whose consent the actor has no authority to exert
control over the property or services;
(10) "Parking area" means a parking lot or other property provided
by retailers for use by a customer for parking an automobile or other
vehicle;
(11) "Receive" includes, but is not limited to, acquiring title,
possession, control, or a security interest, or any other interest in
the property;
(12) "Services" includes, but is not limited to, labor,
professional services, transportation services, electronic computer
services, the supplying of hotel accommodations, restaurant services,
entertainment, the supplying of equipment for use, and the supplying of
commodities of a public utility nature such as gas, electricity, steam,
and water;
(13) "Shopping cart" means a basket mounted on wheels or similar
container generally used in a retail establishment by a customer for
the purpose of transporting goods of any kind;
(14) "Stolen" means obtained by theft, robbery, or extortion;
(15) "Subscription television service" means cable or encrypted
video and related audio and data services intended for viewing on a
home television by authorized members of the public only, who have
agreed to pay a fee for the service. Subscription services include but
are not limited to those video services presently delivered by coaxial
cable, fiber optic cable, terrestrial microwave, television broadcast,
and satellite transmission;
(16) "Telecommunication device" means (a) any type of instrument,
device, machine, or equipment that is capable of transmitting or
receiving telephonic or electronic communications; or (b) any part of
such an instrument, device, machine, or equipment, or any computer
circuit, computer chip, electronic mechanism, or other component, that
is capable of facilitating the transmission or reception of telephonic
or electronic communications;
(17) "Telecommunication service" includes any service other than
subscription television service provided for a charge or compensation
to facilitate the transmission, transfer, or reception of a telephonic
communication or an electronic communication;
(18) Value. (a) "Value" means the market value of the property or
services at the time and in the approximate area of the criminal act.
(b) Whether or not they have been issued or delivered, written
instruments, except those having a readily ascertained market value,
shall be evaluated as follows:
(i) The value of an instrument constituting an evidence of debt,
such as a check, draft, or promissory note, shall be deemed the amount
due or collectible thereon or thereby, that figure ordinarily being the
face amount of the indebtedness less any portion thereof which has been
satisfied;
(ii) The value of a ticket or equivalent instrument which evidences
a right to receive transportation, entertainment, or other service
shall be deemed the price stated thereon, if any; and if no price is
stated thereon, the value shall be deemed the price of such ticket or
equivalent instrument which the issuer charged the general public;
(iii) The value of any other instrument that creates, releases,
discharges, or otherwise affects any valuable legal right, privilege,
or obligation shall be deemed the greatest amount of economic loss
which the owner of the instrument might reasonably suffer by virtue of
the loss of the instrument.
(c) Except as provided in sections 1(4) and 2(4) of this act,
whenever any series of transactions which constitute theft, would, when
considered separately, constitute theft in the third degree because of
value, and said series of transactions are a part of a criminal episode
or a common scheme or plan, then the transactions may be aggregated in
one count and the sum of the value of all said transactions shall be
the value considered in determining the degree of theft involved.
For purposes of this subsection, "criminal episode" means a series
of thefts committed by the same person from one or more mercantile
establishments on three or more occasions within a five-day period.
(d) Whenever any person is charged with possessing stolen property
and such person has unlawfully in his possession at the same time the
stolen property of more than one person, then the stolen property
possessed may be aggregated in one count and the sum of the value of
all said stolen property shall be the value considered in determining
the degree of theft involved. Thefts committed by the same person in
different counties that have been aggregated in one county may be
prosecuted in any county in which one of the thefts occurred.
(e) Property or services having value that cannot be ascertained
pursuant to the standards set forth above shall be deemed to be of a
value not exceeding two hundred and fifty dollars;
(19) "Wrongfully obtains" or "exerts unauthorized control" means:
(a) To take the property or services of another;
(b) Having any property or services in one's possession, custody or
control as bailee, factor, lessee, pledgee, renter, servant, attorney,
agent, employee, trustee, executor, administrator, guardian, or officer
of any person, estate, association, or corporation, or as a public
officer, or person authorized by agreement or competent authority to
take or hold such possession, custody, or control, to secrete,
withhold, or appropriate the same to his or her own use or to the use
of any person other than the true owner or person entitled thereto; or
(c) Having any property or services in one's possession, custody,
or control as partner, to secrete, withhold, or appropriate the same to
his or her use or to the use of any person other than the true owner or
person entitled thereto, where the use is unauthorized by the
partnership agreement.
Sec. 5 RCW 9A.82.010 and 2003 c 119 s 6, 2003 c 113 s 3, and 2003
c 53 s 85 are each reenacted and amended to read as follows:
Unless the context requires the contrary, the definitions in this
section apply throughout this chapter.
(1)(a) "Beneficial interest" means:
(i) The interest of a person as a beneficiary under a trust
established under Title 11 RCW in which the trustee for the trust holds
legal or record title to real property;
(ii) The interest of a person as a beneficiary under any other
trust arrangement under which a trustee holds legal or record title to
real property for the benefit of the beneficiary; or
(iii) The interest of a person under any other form of express
fiduciary arrangement under which one person holds legal or record
title to real property for the benefit of the other person.
(b) "Beneficial interest" does not include the interest of a
stockholder in a corporation or the interest of a partner in a general
partnership or limited partnership.
(c) A beneficial interest is considered to be located where the
real property owned by the trustee is located.
(2) "Control" means the possession of a sufficient interest to
permit substantial direction over the affairs of an enterprise.
(3) "Creditor" means a person making an extension of credit or a
person claiming by, under, or through a person making an extension of
credit.
(4) "Criminal profiteering" means any act, including any
anticipatory or completed offense, committed for financial gain, that
is chargeable or indictable under the laws of the state in which the
act occurred and, if the act occurred in a state other than this state,
would be chargeable or indictable under the laws of this state had the
act occurred in this state and punishable as a felony and by
imprisonment for more than one year, regardless of whether the act is
charged or indicted, as any of the following:
(a) Murder, as defined in RCW 9A.32.030 and 9A.32.050;
(b) Robbery, as defined in RCW 9A.56.200 and 9A.56.210;
(c) Kidnapping, as defined in RCW 9A.40.020 and 9A.40.030;
(d) Forgery, as defined in RCW 9A.60.020 and 9A.60.030;
(e) Theft, as defined in RCW 9A.56.030, 9A.56.040, 9A.56.060,
9A.56.080, and 9A.56.083;
(f) Unlawful sale of subscription television services, as defined
in RCW 9A.56.230;
(g) Theft of telecommunication services or unlawful manufacture of
a telecommunication device, as defined in RCW 9A.56.262 and 9A.56.264;
(h) Child selling or child buying, as defined in RCW 9A.64.030;
(i) Bribery, as defined in RCW 9A.68.010, 9A.68.020, 9A.68.040, and
9A.68.050;
(j) Gambling, as defined in RCW 9.46.220 and 9.46.215 and 9.46.217;
(k) Extortion, as defined in RCW 9A.56.120 and 9A.56.130;
(l) Unlawful production of payment instruments, unlawful possession
of payment instruments, unlawful possession of a personal
identification device, unlawful possession of fictitious
identification, or unlawful possession of instruments of financial
fraud, as defined in RCW 9A.56.320;
(m) Extortionate extension of credit, as defined in RCW 9A.82.020;
(n) Advancing money for use in an extortionate extension of credit,
as defined in RCW 9A.82.030;
(o) Collection of an extortionate extension of credit, as defined
in RCW 9A.82.040;
(p) Collection of an unlawful debt, as defined in RCW 9A.82.045;
(q) Delivery or manufacture of controlled substances or possession
with intent to deliver or manufacture controlled substances under
chapter 69.50 RCW;
(r) Trafficking in stolen property, as defined in RCW 9A.82.050;
(s) Leading organized crime, as defined in RCW 9A.82.060;
(t) Money laundering, as defined in RCW 9A.83.020;
(u) Obstructing criminal investigations or prosecutions in
violation of RCW 9A.72.090, 9A.72.100, 9A.72.110, 9A.72.120, 9A.72.130,
9A.76.070, or 9A.76.180;
(v) Fraud in the purchase or sale of securities, as defined in RCW
21.20.010;
(w) Promoting pornography, as defined in RCW 9.68.140;
(x) Sexual exploitation of children, as defined in RCW 9.68A.040,
9.68A.050, and 9.68A.060;
(y) Promoting prostitution, as defined in RCW 9A.88.070 and
9A.88.080;
(z) Arson, as defined in RCW 9A.48.020 and 9A.48.030;
(aa) Assault, as defined in RCW 9A.36.011 and 9A.36.021;
(bb) Assault of a child, as defined in RCW 9A.36.120 and 9A.36.130;
(cc) A pattern of equity skimming, as defined in RCW 61.34.020;
(dd) Commercial telephone solicitation in violation of RCW
19.158.040(1);
(ee) Trafficking in insurance claims, as defined in RCW 48.30A.015;
(ff) Unlawful practice of law, as defined in RCW 2.48.180;
(gg) Commercial bribery, as defined in RCW 9A.68.060;
(hh) Health care false claims, as defined in RCW 48.80.030;
(ii) Unlicensed practice of a profession or business, as defined in
RCW 18.130.190(7);
(jj) Improperly obtaining financial information, as defined in RCW
9.35.010;
(kk) Identity theft, as defined in RCW 9.35.020;
(ll) Unlawful shipment of cigarettes in violation of RCW
70.155.105(6) (a) or (b); ((or))
(mm) Unlawful shipment of cigarettes in violation of RCW
82.24.110(2);
(nn) Theft with the intent to resell, as defined in section 1 of
this act; or
(oo) Organized retail theft, as defined in section 2 of this act.
(5) "Dealer in property" means a person who buys and sells property
as a business.
(6) "Debtor" means a person to whom an extension of credit is made
or a person who guarantees the repayment of an extension of credit or
in any manner undertakes to indemnify the creditor against loss
resulting from the failure of a person to whom an extension is made to
repay the same.
(7) "Documentary material" means any book, paper, document,
writing, drawing, graph, chart, photograph, phonograph record, magnetic
tape, computer printout, other data compilation from which information
can be obtained or from which information can be translated into usable
form, or other tangible item.
(8) "Enterprise" includes any individual, sole proprietorship,
partnership, corporation, business trust, or other profit or nonprofit
legal entity, and includes any union, association, or group of
individuals associated in fact although not a legal entity, and both
illicit and licit enterprises and governmental and nongovernmental
entities.
(9) "Extortionate extension of credit" means an extension of credit
with respect to which it is the understanding of the creditor and the
debtor at the time the extension is made that delay in making repayment
or failure to make repayment could result in the use of violence or
other criminal means to cause harm to the person, reputation, or
property of any person.
(10) "Extortionate means" means the use, or an express or implicit
threat of use, of violence or other criminal means to cause harm to the
person, reputation, or property of any person.
(11) "Financial institution" means any bank, trust company, savings
and loan association, savings bank, mutual savings bank, credit union,
or loan company under the jurisdiction of the state or an agency of the
United States.
(12) "Pattern of criminal profiteering activity" means engaging in
at least three acts of criminal profiteering, one of which occurred
after July 1, 1985, and the last of which occurred within five years,
excluding any period of imprisonment, after the commission of the
earliest act of criminal profiteering. In order to constitute a
pattern, the three acts must have the same or similar intent, results,
accomplices, principals, victims, or methods of commission, or be
otherwise interrelated by distinguishing characteristics including a
nexus to the same enterprise, and must not be isolated events.
However, in any civil proceedings brought pursuant to RCW 9A.82.100 by
any person other than the attorney general or county prosecuting
attorney in which one or more acts of fraud in the purchase or sale of
securities are asserted as acts of criminal profiteering activity, it
is a condition to civil liability under RCW 9A.82.100 that the
defendant has been convicted in a criminal proceeding of fraud in the
purchase or sale of securities under RCW 21.20.400 or under the laws of
another state or of the United States requiring the same elements of
proof, but such conviction need not relate to any act or acts asserted
as acts of criminal profiteering activity in such civil action under
RCW 9A.82.100.
(13) "Real property" means any real property or interest in real
property, including but not limited to a land sale contract, lease, or
mortgage of real property.
(14) "Records" means any book, paper, writing, record, computer
program, or other material.
(15) "Repayment of an extension of credit" means the repayment,
satisfaction, or discharge in whole or in part of a debt or claim,
acknowledged or disputed, valid or invalid, resulting from or in
connection with that extension of credit.
(16) "Stolen property" means property that has been obtained by
theft, robbery, or extortion.
(17) "To collect an extension of credit" means to induce in any way
a person to make repayment thereof.
(18) "To extend credit" means to make or renew a loan or to enter
into an agreement, tacit or express, whereby the repayment or
satisfaction of a debt or claim, whether acknowledged or disputed,
valid or invalid, and however arising, may or shall be deferred.
(19) "Traffic" means to sell, transfer, distribute, dispense, or
otherwise dispose of stolen property to another person, or to buy,
receive, possess, or obtain control of stolen property, with intent to
sell, transfer, distribute, dispense, or otherwise dispose of the
property to another person.
(20)(a) "Trustee" means:
(i) A person acting as a trustee under a trust established under
Title 11 RCW in which the trustee holds legal or record title to real
property;
(ii) A person who holds legal or record title to real property in
which another person has a beneficial interest; or
(iii) A successor trustee to a person who is a trustee under (a)(i)
or (ii) of this subsection.
(b) "Trustee" does not mean a person appointed or acting as:
(i) A personal representative under Title 11 RCW;
(ii) A trustee of any testamentary trust;
(iii) A trustee of any indenture of trust under which a bond is
issued; or
(iv) A trustee under a deed of trust.
(21) "Unlawful debt" means any money or other thing of value
constituting principal or interest of a debt that is legally
unenforceable in the state in full or in part because the debt was
incurred or contracted:
(a) In violation of any one of the following:
(i) Chapter 67.16 RCW relating to horse racing;
(ii) Chapter 9.46 RCW relating to gambling;
(b) In a gambling activity in violation of federal law; or
(c) In connection with the business of lending money or a thing of
value at a rate that is at least twice the permitted rate under the
applicable state or federal law relating to usury.
Sec. 6 RCW 9.94A.515 and 2005 c 458 s 2 and 2005 c 183 s 9 are
each reenacted and amended to read as follows:
TABLE 2 | ||
CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL | ||
XVI | ||
XV | ||
XIV | ||
XIII | ||
XII | ||
XI | ||
X | ||
IX | ||
VIII | ||
VII | ||
VI | ||
V | ||
IV | ||
III | ||
Escape 2 (RCW 9A.76.120) | ||
II | ||
I | ||