BILL REQ. #:  S-0344.3 

Read first time 01/16/09.   Referred to Committee on Judiciary.

     AN ACT Relating to crimes against property; amending RCW 9A.48.070, 9A.48.080, 9A.48.090, 9A.56.030, 9A.56.040, 9A.56.050, 9A.56.060, 9A.56.096, 9A.56.150, 9A.56.160, and 9A.56.170; reenacting and amending RCW 9.94A.535; creating a new section; and prescribing penalties.

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

NEW SECTION.  Sec. 1   (1) An organized retail crime task force is created for the purpose of monitoring the effects of raising the monetary threshold amounts differentiating the various degrees of property crimes in Washington state. The task force shall also examine the impact of raising these values on (a) the retail industry; (b) the district and municipal courts; and (c) the county and city offices of the prosecuting attorney. In addition, the task force is directed to identify any policies or procedures which would enhance the successful investigation and prosecution of property crimes in Washington state.
     (2) The task force shall consist of the following members:
     (a) One member from each of the two largest caucuses of the house of representatives, appointed by the speaker of the house of representatives;
     (b) One member from each of the two largest caucuses of the senate, appointed by the president of the senate;
     (c) One member appointed by the Washington association of prosecuting attorneys;
     (d) One member appointed by the Washington association of criminal defense lawyers;
     (e) One member appointed by the association of Washington cities;
     (f) One member appointed by the association of Washington counties;
     (g) One member appointed by the food industry association of Washington representing retailers who own a single store or a chain with less than one million five hundred thousand dollars in gross revenues annually; and
     (h) One member appointed by the Washington association of retailers representing a retailer who owns a single store or a chain with one million five hundred thousand dollars or more in gross revenues annually.
     The superior court judges association and the district and municipal court judges association are each invited to select a judge to be a member of the task force.
     (3) The task force shall choose its chair from among its members and may conduct meetings, select officers, and prescribe rules of procedure.
     (4) Staff for the task force will be provided by the house and senate judiciary committees.
     (5) Legislative members of the task force shall be reimbursed for travel expenses in accordance with RCW 44.04.120. Nonlegislative members are entitled to be reimbursed for travel expenses in accordance with RCW 43.03.050 and 43.03.060.
     (6) The task force is subject to the open public meetings act, chapter 42.30 RCW.
     (7) The task force shall report its findings and recommendations to the appropriate committees of the legislature eighteen months after the effective date of this section.

Sec. 2   RCW 9A.48.070 and 1983 1st ex.s. c 4 s 1 are each amended to read as follows:
     (1) A person is guilty of malicious mischief in the first degree if he or she knowingly and maliciously:
     (a) Causes physical damage to the property of another in an amount exceeding ((one)) five thousand ((five hundred)) dollars;
     (b) Causes an interruption or impairment of service rendered to the public by physically damaging or tampering with an emergency vehicle or property of the state, a political subdivision thereof, or a public utility or mode of public transportation, power, or communication; or
     (c) Causes an impairment of the safety, efficiency, or operation of an aircraft by physically damaging or tampering with the aircraft or aircraft equipment, fuel, lubricant, or parts.
     (2) Malicious mischief in the first degree is a class B felony.

Sec. 3   RCW 9A.48.080 and 1994 c 261 s 17 are each amended to read as follows:
     (1) A person is guilty of malicious mischief in the second degree if he or she knowingly and maliciously:
     (a) Causes physical damage to the property of another in an amount exceeding ((two hundred fifty)) one thousand dollars; or
     (b) Creates a substantial risk of interruption or impairment of service rendered to the public, by physically damaging or tampering with an emergency vehicle or property of the state, a political subdivision thereof, or a public utility or mode of public transportation, power, or communication.
     (2) Malicious mischief in the second degree is a class C felony.

Sec. 4   RCW 9A.48.090 and 2003 c 53 s 71 are each amended to read as follows:
     (1) A person is guilty of malicious mischief in the third degree if he or she:
     (a) Knowingly and maliciously causes physical damage to the property of another, under circumstances not amounting to malicious mischief in the first or second degree; or
     (b) Writes, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person unless the person has obtained the express permission of the owner or operator of the property, under circumstances not amounting to malicious mischief in the first or second degree.
     (2)(((a))) Malicious mischief in the third degree ((under subsection (1)(a) of this section is a gross misdemeanor if the damage to the property is in an amount exceeding fifty dollars.
     (b) Malicious mischief in the third degree under subsection (1)(a) of this section is a misdemeanor if the damage to the property is fifty dollars or less.
     (c) Malicious mischief in the third degree under subsection (1)(b) of this section)) is a gross misdemeanor.

Sec. 5   RCW 9A.56.030 and 2007 c 199 s 3 are each amended to read as follows:
     (1) A person is guilty of theft in the first degree if he or she commits theft of:
     (a) Property or services which exceed(s) ((one)) five thousand ((five hundred)) dollars in value other than a firearm as defined in RCW 9.41.010;
     (b) Property of any value, other than a firearm as defined in RCW 9.41.010 or a motor vehicle, taken from the person of another; or
     (c) A search and rescue dog, as defined in RCW 9.91.175, while the search and rescue dog is on duty.
     (2) Theft in the first degree is a class B felony.

Sec. 6   RCW 9A.56.040 and 2007 c 199 s 4 are each amended to read as follows:
     (1) A person is guilty of theft in the second degree if he or she commits theft of:
     (a) Property or services which exceed(s) ((two hundred fifty)) one thousand dollars in value but does not exceed ((one)) five thousand ((five hundred)) dollars in value, other than a firearm as defined in RCW 9.41.010 or a motor vehicle; or
     (b) A public record, writing, or instrument kept, filed, or deposited according to law with or in the keeping of any public office or public servant; or
     (c) An access device.
     (2) Theft in the second degree is a class C felony.

Sec. 7   RCW 9A.56.050 and 1998 c 236 s 4 are each amended to read as follows:
     (1) A person is guilty of theft in the third degree if he or she commits theft of property or services which (a) does not exceed ((two hundred and fifty)) one thousand dollars in value, or (b) includes ten or more merchandise pallets, or ten or more beverage crates, or a combination of ten or more merchandise pallets and beverage crates.
     (2) Theft in the third degree is a gross misdemeanor.

Sec. 8   RCW 9A.56.060 and 1982 c 138 s 1 are each amended to read as follows:
     (1) Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery, that he or she has not sufficient funds in, or credit with ((said)) the bank or other depository, to meet ((said)) the check or draft, in full upon its presentation, ((shall be)) is guilty of unlawful issuance of bank check. The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank or other depository for the payment of such check or draft, and the uttering or delivery of such a check or draft to another person without such fund or credit to meet the same shall be prima facie evidence of an intent to defraud.
     (2) Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft on a bank or other depository for the payment of money and who issues a stop-payment order directing the bank or depository on which the check is drawn not to honor ((said)) the check, and who fails to make payment of money in the amount of the check or draft or otherwise arrange a settlement agreed upon by the holder of the check within twenty days of issuing ((said)) the check or draft ((shall be)) is guilty of unlawful issuance of a bank check.
     (3) When any series of transactions which constitute unlawful issuance of a bank check would, when considered separately, constitute unlawful issuance of a bank check in an amount of ((two hundred fifty)) one thousand dollars or less because of value, and the series of transactions are a part of a common scheme or plan, the transactions may be aggregated in one count and the sum of the value of all of the transactions shall be the value considered in determining whether the unlawful issuance of a bank check is to be punished as a class C felony or a gross misdemeanor.
     (4) Unlawful issuance of a bank check in an amount greater than ((two hundred fifty)) one thousand dollars is a class C felony.
     (5) Unlawful issuance of a bank check in an amount of ((two hundred fifty)) one thousand dollars or less is a gross misdemeanor and shall be punished as follows:
     (a) The court shall order the defendant to make full restitution;
     (b) The defendant need not be imprisoned, but the court shall impose a minimum fine of five hundred dollars. Of the fine imposed, at least fifty dollars shall not be suspended or deferred. Upon conviction for a second offense within any twelve-month period, the court may suspend or defer only that portion of the fine which is in excess of five hundred dollars.

Sec. 9   RCW 9A.56.096 and 2007 c 199 s 17 are each amended to read as follows:
     (1) A person who, with intent to deprive the owner or owner's agent, wrongfully obtains, or exerts unauthorized control over, or by color or aid of deception gains control of personal property that is rented, leased, or loaned by written agreement to the person, is guilty of theft of rental, leased, lease-purchased, or loaned property.
     (2) The finder of fact may presume intent to deprive if the finder of fact finds either of the following:
     (a) That the person who rented or leased the property failed to return or make arrangements acceptable to the owner of the property or the owner's agent to return the property to the owner or the owner's agent within seventy-two hours after receipt of proper notice following the due date of the rental, lease, lease-purchase, or loan agreement; or
     (b) That the renter, lessee, or borrower presented identification to the owner or the owner's agent that was materially false, fictitious, or not current with respect to name, address, place of employment, or other appropriate items.
     (3) As used in subsection (2) of this section, "proper notice" consists of a written demand by the owner or the owner's agent made after the due date of the rental, lease, lease-purchase, or loan period, mailed by certified or registered mail to the renter, lessee, or borrower at: (a) The address the renter, lessee, or borrower gave when the contract was made; or (b) the renter, lessee, or borrower's last known address if later furnished in writing by the renter, lessee, borrower, or the agent of the renter, lessee, or borrower.
     (4) The replacement value of the property obtained must be utilized in determining the amount involved in the theft of rental, leased, lease-purchased, or loaned property.
     (5)(a) Theft of rental, leased, lease-purchased, or loaned property is a class B felony if the rental, leased, lease-purchased, or loaned property is valued at ((one)) five thousand ((five hundred)) dollars or more.
     (b) Theft of rental, leased, lease-purchased, or loaned property is a class C felony if the rental, leased, lease-purchased, or loaned property is valued at ((two hundred fifty)) one thousand dollars or more but less than ((one)) five thousand ((five hundred)) dollars.
     (c) Theft of rental, leased, lease-purchased, or loaned property is a gross misdemeanor if the rental, leased, lease-purchased, or loaned property is valued at less than ((two hundred fifty)) one thousand dollars.
     (6) This section applies to rental agreements that provide that the renter may return the property any time within the rental period and pay only for the time the renter actually retained the property, in addition to any minimum rental fee, to lease agreements, to lease-purchase agreements as defined under RCW 63.19.010, and to vehicles loaned to prospective purchasers borrowing a vehicle by written agreement from a motor vehicle dealer licensed under chapter 46.70 RCW. This section does not apply to rental or leasing of real property under the residential landlord-tenant act, chapter 59.18 RCW.

Sec. 10   RCW 9A.56.150 and 2007 c 199 s 6 are each amended to read as follows:
     (1) A person is guilty of possessing stolen property in the first degree if he or she possesses stolen property, other than a firearm as defined in RCW 9.41.010 or a motor vehicle, which exceeds ((one)) five thousand ((five hundred)) dollars in value.
     (2) Possessing stolen property in the first degree is a class B felony.

Sec. 11   RCW 9A.56.160 and 2007 c 199 s 7 are each amended to read as follows:
     (1) A person is guilty of possessing stolen property in the second degree if:
     (a) He or she possesses stolen property, other than a firearm as defined in RCW 9.41.010 or a motor vehicle, which exceeds ((two hundred fifty)) one thousand dollars in value but does not exceed ((one)) five thousand ((five hundred)) dollars in value; or
     (b) He or she possesses a stolen public record, writing or instrument kept, filed, or deposited according to law; or
     (c) He or she possesses a stolen access device.
     (2) Possessing stolen property in the second degree is a class C felony.

Sec. 12   RCW 9A.56.170 and 1998 c 236 s 2 are each amended to read as follows:
     (1) A person is guilty of possessing stolen property in the third degree if he or she possesses (a) stolen property which does not exceed ((two hundred fifty)) one thousand dollars in value, or (b) ten or more stolen merchandise pallets, or ten or more stolen beverage crates, or a combination of ten or more stolen merchandise pallets and beverage crates.
     (2) Possessing stolen property in the third degree is a gross misdemeanor.

Sec. 13   RCW 9.94A.535 and 2008 c 276 s 303 and 2008 c 233 s 9 are each reenacted and amended to read as follows:
     The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.
     Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard sentence range shall be a determinate sentence.
     If the sentencing court finds that an exceptional sentence outside the standard sentence range should be imposed, the sentence is subject to review only as provided for in RCW 9.94A.585(4).
     A departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section, and may be appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through (6).
     (1) Mitigating Circumstances - Court to Consider
     The court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.
     (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 or her conduct, or to conform his or her 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.589 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 - Considered and Imposed by the Court
     The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:
     (a) The defendant and the state both stipulate that justice is best served by the imposition of an exceptional sentence outside the standard range, and the court finds the exceptional sentence to be consistent with and in furtherance of the interests of justice and the purposes of the sentencing reform act.
     (b) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history 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.
     (c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
     (d) The failure to consider the defendant's prior criminal history which was omitted from the offender score calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient.
     (3) Aggravating Circumstances - Considered by a Jury -Imposed by the Court
     Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range. Such facts should be determined by procedures specified in RCW 9.94A.537.
     (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.
     (c) The current offense was a violent offense, and the defendant knew that the victim of the current offense was pregnant.
     (d) 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; or
     (iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
     (e) 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;
     (ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use;
     (iii) The current offense involved the manufacture of controlled substances for use by other parties;
     (iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;
     (v) The current offense involved a high degree of sophistication or planning, 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).
     (f) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.835.
     (g) 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.
     (h) The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present:
     (i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;
     (ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years; or
     (iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.
     (i) The offense resulted in the pregnancy of a child victim of rape.
     (j) The defendant knew that the victim of the current offense was a youth who was not residing with a legal custodian and the defendant established or promoted the relationship for the primary purpose of victimization.
     (k) The offense was committed with the intent to obstruct or impair human or animal health care or agricultural or forestry research or commercial production.
     (l) The current offense is trafficking in the first degree or trafficking in the second degree and any victim was a minor at the time of the offense.
     (m) The offense involved a high degree of sophistication or planning.
     (n) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
     (o) The defendant committed a current sex offense, has a history of sex offenses, and is not amenable to treatment.
     (p) The offense involved an invasion of the victim's privacy.
     (q) The defendant demonstrated or displayed an egregious lack of remorse.
     (r) The offense involved a destructive and foreseeable impact on persons other than the victim.
     (s) The defendant committed the offense to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group.
     (t) The defendant committed the current offense shortly after being released from incarceration.
     (u) The current offense is a burglary and the victim of the burglary was present in the building or residence when the crime was committed.
     (v) The offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim's status as a law enforcement officer is not an element of the offense.
     (w) The defendant committed the offense against a victim who was acting as a good samaritan.
     (x) The defendant committed the offense against a public official or officer of the court in retaliation of the public official's performance of his or her duty to the criminal justice system.
     (y) The victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense. This aggravator is not an exception to RCW 9.94A.530(2).
     (z)(i)(A) The current offense is theft in the first degree, theft in the second degree, possession of stolen property in the first degree, or possession of stolen property in the second degree; (B) the stolen property involved is metal property; and (C) the property damage to the victim caused in the course of the theft of metal property is more than three times the value of the stolen metal property, or the theft of the metal property creates a public hazard.
     (ii) For purposes of this subsection, "metal property" means commercial metal property, private metal property, or nonferrous metal property, as defined in RCW 19.290.010.
     (aa) The defendant committed the offense with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang as defined in RCW 9.94A.030, its reputation, influence, or membership.
     (bb) The offense was for a single or aggregated series of offenses constituting theft, unlawful issuance of a check or draft, or forgery with a total monetary value over two hundred thousand dollars.