BILL REQ. #: S-3291.2
| State of Washington | 61st Legislature | 2010 Regular Session |
Read first time 01/18/10. Referred to Committee on Judiciary.
AN ACT Relating to criminal offenses involving animals or natural resources; amending RCW 9A.82.010, 9A.82.090, 9A.82.100, and 9A.82.120; reenacting and amending RCW 9.94A.515 and 9.94A.535; adding a new chapter to Title 9A RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Activity involving animals" means any lawful activity
involving the use of animals or animal parts, including:
(a) Hunting, fishing, and trapping;
(b) Food production, processing, and preparation;
(c) Clothing manufacturing and distribution;
(d) Medical or other research;
(e) Entertainment and recreation;
(f) Agriculture; or
(g) Any other services involving the use of animals.
(2) "Activity involving natural resources" means any lawful
activity involving the use of a natural resource with an economic
value, including mining, foresting, harvesting, or processing natural
resources.
(3) "Animal" means any warm or cold-blooded animal or insect which
is lawfully being used in food, fur, or fiber production, agriculture,
research, testing, or education. "Animal" does not include any animal
or insect held primarily as a pet.
(4) "Animal facility" means a vehicle, building, structure,
research facility, nature preserve, or other premises where an animal
is lawfully:
(a) Housed, exhibited, bred, or offered for sale, including a zoo,
amusement park, or preserve, or a location at which a circus or a rodeo
or other competitive event is held; or
(b) Used for scientific purposes, including research, testing, and
experiments.
(5) "Animal rights or ecological terrorist organization" means any
association, organization, entity, coalition, or combination of two or
more persons with the primary or incidental purpose of intimidating,
coercing, causing fear with the intent to obstruct, or impeding any
person from participating in an activity involving animals, activity
involving natural resources, or an animal facility, horticultural
facility, or research facility, or the lawful activity of mining,
foresting, harvesting, gathering, or processing natural resources.
(6) "Effective consent" means consent by the owner or by a person
legally authorized to act for the owner. Consent is not effective if
it is:
(a) Induced by force or threat;
(b) Given by a person that the offender knows or reasonably should
have known is not an agent for the owner; or
(c) Given by a person who by reason of youth, mental disease, or
defect, or being under the influence of drugs or alcohol is known by
the offender to be unable to make reasonable decisions.
(7) "Horticultural facility" means any horticultural premises as
defined in RCW 15.08.010, any horticultural facility as defined in RCW
15.13.250, or any premises used for horticultural research or
educational purposes.
(8) "Natural resource" means a material source of wealth, such as
timber, fresh water, or a mineral deposit, that occurs in a natural
state and has economic value.
NEW SECTION. Sec. 2 (1) It is unlawful for an animal or
ecological terrorist organization or any person acting on its behalf or
at its request or for its benefit or any individual to intentionally:
(a) Deprive the owner of an animal or natural resource from
lawfully participating in an activity involving animals, an activity
involving natural resources, or lawful use of a horticultural facility
by:
(i) Obstructing the lawful use of an animal, natural resource,
horticultural facility, or other property from the owner permanently or
for such a period of time that a significant portion of the value or
enjoyment of the animal, natural resource, or property is lost to the
owner;
(ii) Taking or detaining an animal, natural resource, or other
property and agreeing to restore it only upon reward or other
compensation; or
(iii) Damaging or disposing of an animal, natural resource, or
other property or to so alter its condition or usefulness that the
value of the animal, natural resource, or other property is
substantially reduced.
(b) Obstruct or impede the use of an animal facility or
horticultural facility or the use of a natural resource without the
effective consent of the owner by:
(i) Damaging or destroying an animal or horticultural facility or
other property in or on the premises;
(ii) Entering an animal or horticultural facility that is at the
time closed to the public;
(iii) Remaining concealed in an animal or horticultural facility
with the intent to commit an act prohibited by this chapter;
(iv) Entering an animal or horticultural facility and committing or
attempting to commit an act prohibited by this chapter;
(v) Entering an animal or horticultural facility to take pictures
by photograph, video camera, or other means with the intent to commit
criminal activities;
(vi) Entering or remaining on the premises of an animal or
horticultural facility if the person or organization:
(A) Had notice that the entry was forbidden; or
(B) Received notice to depart but failed to do so; or
(c) Participate in or support animal or ecological terrorism,
including raising, soliciting, collecting, or providing any person with
material, financial support, or other resources such as lodging,
training, safe houses, false documentation, or identification,
communications, equipment, or transportation that will be used in whole
or in part to encourage, plan, prepare, carry out, publicize, promote,
or aid an act of animal or ecological terrorism, the concealment of, or
an escape from an act of animal or ecological terrorism.
(2) It is an exception to the application of subsection (1) of this
section that the conduct is engaged in by:
(a) A government agency or an employee of a government agency
acting in the course and scope of his or her employment;
(b) An employee of a financial institution or other secured party
acting in the course and scope of his or her employment;
(c) An employee of an animal control authority or a recognized
animal shelter or humane society acting in the course and scope of his
or her employment;
(d) An employee or employee organization participating in a strike,
work slowdown, or stoppage of any kind, or other labor-related dispute,
lawfully picketing, or providing the public with truthful information
regarding the existence of a dispute with the employer.
NEW SECTION. Sec. 3 (1) A person convicted of an act that
violates section 2 of this act and that results in five thousand
dollars or less in physical damage or destruction of property is guilty
of a gross misdemeanor and shall be punished according to chapter 9A.20
RCW.
(2) A person convicted of an act that violates section 2 of this
act and that results in more than five thousand dollars in physical
damage or destruction of property is guilty of a class C felony and
shall be punished according to chapter 9A.20 RCW.
(3) Any person convicted of an act that violates section 2 of this
act, and such act intentionally or negligently results in bodily harm
to any individual, is guilty of a class B felony and shall be punished
according to chapter 9A.20 RCW.
(4) If conduct that constitutes an offense under this section also
constitutes an offense under any other law, the defendant may be
prosecuted under either law or both laws.
Sec. 4 RCW 9A.82.010 and 2008 c 108 s 24 are each 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, or an
offense, including an anticipatory or completed offense, or a lawfully
obtained and otherwise admissible confession to have completed an
offense, that is defined in chapter 9A.-- RCW (sections 1 through 3 of
this act), whether or not 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); )) Unlawful shipment of cigarettes in violation of RCW
82.24.110(2);
(mm)
(((nn))) (mm) Unauthorized sale or procurement of telephone records
in violation of RCW 9.26A.140;
(((oo))) (nn) Theft with the intent to resell, as defined in RCW
9A.56.340;
(((pp))) (oo) Organized retail theft, as defined in RCW 9A.56.350;
((or)) (pp) Mortgage fraud, as defined in RCW 19.144.080; or
(qq)
(qq) A violation of chapter 9A.-- RCW (sections 1 through 3 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. 5 RCW 9A.82.090 and 2003 c 267 s 5 are each amended to read
as follows:
During the pendency of any criminal case charging a violation of
RCW 9A.82.060 or 9A.82.080, ((or)) an offense defined in RCW 9A.40.100,
or an offense, including an anticipatory or completed offense, or a
lawfully obtained and otherwise admissible confession to have completed
an offense, that is defined in chapter 9A.-- RCW (sections 1 through 3
of this act), whether or not committed for financial gain, the superior
court may, in addition to its other powers, issue an order pursuant to
RCW 9A.82.100 (2) or (3). Upon conviction of a person for a violation
of RCW 9A.82.060 or 9A.82.080, ((or)) an offense defined in RCW
9A.40.100, or an offense, including an anticipatory or completed
offense, or a lawfully obtained and otherwise admissible confession to
have completed an offense, that is defined in chapter 9A.-- RCW
(sections 1 through 3 of this act), whether or not committed for
financial gain, the superior court may, in addition to its other powers
of disposition, issue an order pursuant to RCW 9A.82.100.
Sec. 6 RCW 9A.82.100 and 2003 c 267 s 6 are each amended to read
as follows:
(1)(a) A person who sustains injury to his or her person, business,
or property by an act of criminal profiteering that is part of a
pattern of criminal profiteering activity, or by an offense defined in
RCW 9A.40.100, or an offense, including an anticipatory or completed
offense, or a lawfully obtained and otherwise admissible confession to
have completed an offense, that is defined in chapter 9A.-- RCW
(sections 1 through 3 of this act), whether or not committed for
financial gain, or by a violation of RCW 9A.82.060 or 9A.82.080 may
file an action in superior court for the recovery of damages and the
costs of the suit, including reasonable investigative and attorney's
fees.
(b) The attorney general or county prosecuting attorney may file an
action: (i) On behalf of those persons injured or, respectively, on
behalf of the state or county if the entity has sustained damages, or
(ii) to prevent, restrain, or remedy a pattern of criminal profiteering
activity, or an offense defined in RCW 9A.40.100, or an offense,
including an anticipatory or completed offense, or a lawfully obtained
and otherwise admissible confession to have completed an offense, that
is defined in chapter 9A.-- RCW (sections 1 through 3 of this act),
whether or not committed for financial gain, or a violation of RCW
9A.82.060 or 9A.82.080.
(c) An action for damages filed by or on behalf of an injured
person, the state, or the county shall be for the recovery of damages
and the costs of the suit, including reasonable investigative and
attorney's fees.
(d) In an action filed to prevent, restrain, or remedy a pattern of
criminal profiteering activity, or an offense defined in RCW 9A.40.100,
or an offense, including an anticipatory or completed offense, or a
lawfully obtained and otherwise admissible confession to have completed
an offense, that is defined in chapter 9A.-- RCW (sections 1 through 3
of this act), whether or not committed for financial gain, or a
violation of RCW 9A.82.060 or 9A.82.080, the court, upon proof of the
violation, may impose a civil penalty not exceeding two hundred fifty
thousand dollars, in addition to awarding the cost of the suit,
including reasonable investigative and attorney's fees.
(2) The superior court has jurisdiction to prevent, restrain, and
remedy a pattern of criminal profiteering, or an offense defined in RCW
9A.40.100, or an offense, including an anticipatory or completed
offense, or a lawfully obtained and otherwise admissible confession to
have completed an offense, that is defined in chapter 9A.-- RCW
(sections 1 through 3 of this act), whether or not committed for
financial gain, or a violation of RCW 9A.82.060 or 9A.82.080 after
making provision for the rights of all innocent persons affected by the
violation and after hearing or trial, as appropriate, by issuing
appropriate orders.
(3) Prior to a determination of liability, orders issued under
subsection (2) of this section may include, but are not limited to,
entering restraining orders or prohibitions or taking such other
actions, including the acceptance of satisfactory performance bonds, in
connection with any property or other interest subject to damages,
forfeiture, or other restraints pursuant to this section as the court
deems proper. The orders may also include attachment, receivership, or
injunctive relief in regard to personal or real property pursuant to
Title 7 RCW. In shaping the reach or scope of receivership,
attachment, or injunctive relief, the superior court shall provide for
the protection of bona fide interests in property, including community
property, of persons who were not involved in the violation of this
chapter, except to the extent that such interests or property were
acquired or used in such a way as to be subject to forfeiture under RCW
9A.82.100(4)(f).
(4) Following a determination of liability, orders may include, but
are not limited to:
(a) Ordering any person to divest himself or herself of any
interest, direct or indirect, in any enterprise.
(b) Imposing reasonable restrictions on the future activities or
investments of any person, including prohibiting any person from
engaging in the same type of endeavor as the enterprise engaged in, the
activities of which affect the laws of this state, to the extent the
Constitutions of the United States and this state permit.
(c) Ordering dissolution or reorganization of any enterprise.
(d) Ordering the payment of actual damages sustained to those
persons injured by a violation of RCW 9A.82.060 or 9A.82.080, or an
offense defined in RCW 9A.40.100, or an offense, including an
anticipatory or completed offense, or a lawfully obtained and otherwise
admissible confession to have completed an offense, that is defined in
chapter 9A.-- RCW (sections 1 through 3 of this act), whether or not
committed for financial gain, or an act of criminal profiteering that
is part of a pattern of criminal profiteering, and in the court's
discretion, increasing the payment to an amount not exceeding three
times the actual damages sustained.
(e) Ordering the payment of all costs and expenses of the
prosecution and investigation of a pattern of criminal profiteering, or
an offense defined in RCW 9A.40.100, or an offense, including an
anticipatory or completed offense, or a lawfully obtained and otherwise
admissible confession to have completed an offense, that is defined in
chapter 9A.-- RCW (sections 1 through 3 of this act), whether or not
committed for financial gain, activity or a violation of RCW 9A.82.060
or 9A.82.080, civil and criminal, incurred by the state or county,
including any costs of defense provided at public expense, as
appropriate to the state general fund or the antiprofiteering revolving
fund of the county.
(f) Ordering forfeiture first as restitution to any person damaged
by an act of criminal profiteering that is part of a pattern of
criminal profiteering, or by an offense defined in RCW 9A.40.100, or an
offense, including an anticipatory or completed offense, or a lawfully
obtained and otherwise admissible confession to have completed an
offense, that is defined in chapter 9A.-- RCW (sections 1 through 3 of
this act), whether or not committed for financial gain, then to the
state general fund or antiprofiteering revolving fund of the county, as
appropriate, to the extent not already ordered to be paid in other
damages, of the following:
(i) Any property or other interest acquired or maintained in
violation of RCW 9A.82.060 or 9A.82.080 to the extent of the investment
of funds, and any appreciation or income attributable to the
investment, from a violation of RCW 9A.82.060 or 9A.82.080.
(ii) Any property, contractual right, or claim against property
used to influence any enterprise that a person has established,
operated, controlled, conducted, or participated in the conduct of, in
violation of RCW 9A.82.060 or 9A.82.080.
(iii) All proceeds traceable to or derived from an offense included
in the pattern of criminal profiteering activity, or an offense defined
in RCW 9A.40.100, or an offense, including an anticipatory or completed
offense, or a lawfully obtained and otherwise admissible confession to
have completed an offense, that is defined in chapter 9A.-- RCW
(sections 1 through 3 of this act), whether or not committed for
financial gain, and all moneys, negotiable instruments, securities, and
other things of value significantly used or intended to be used
significantly to facilitate commission of the offense.
(g) Ordering payment to the state general fund or antiprofiteering
revolving fund of the county, as appropriate, of an amount equal to the
gain a person has acquired or maintained through an offense included in
the definition of criminal profiteering.
(5) In addition to or in lieu of an action under this section, the
attorney general or county prosecuting attorney may file an action for
forfeiture to the state general fund or antiprofiteering revolving fund
of the county, as appropriate, to the extent not already ordered paid
pursuant to this section, of the following:
(a) Any interest acquired or maintained by a person in violation of
RCW 9A.82.060 or 9A.82.080 to the extent of the investment of funds
obtained from a violation of RCW 9A.82.060 or 9A.82.080 and any
appreciation or income attributable to the investment.
(b) Any property, contractual right, or claim against property used
to influence any enterprise that a person has established, operated,
controlled, conducted, or participated in the conduct of, in violation
of RCW 9A.82.060 or 9A.82.080.
(c) All proceeds traceable to or derived from an offense included
in the pattern of criminal profiteering activity, or an offense defined
in RCW 9A.40.100, or an offense, including an anticipatory or completed
offense, or a lawfully obtained and otherwise admissible confession to
have completed an offense, that is defined in chapter 9A.-- RCW
(sections 1 through 3 of this act), whether or not committed for
financial gain, and all moneys, negotiable instruments, securities, and
other things of value significantly used or intended to be used
significantly to facilitate the commission of the offense.
(6) A defendant convicted in any criminal proceeding is precluded
in any civil proceeding from denying the essential allegations of the
criminal offense proven in the criminal trial in which the defendant
was convicted. For the purposes of this subsection, a conviction shall
be deemed to have occurred upon a verdict, finding, or plea of guilty,
notwithstanding the fact that appellate review of the conviction and
sentence has been or may be sought. If a subsequent reversal of the
conviction occurs, any judgment that was based upon that conviction may
be reopened upon motion of the defendant.
(7) The initiation of civil proceedings under this section shall be
commenced within three years after discovery of the pattern of criminal
profiteering activity or after the pattern should reasonably have been
discovered or, in the case of an offense that is defined in RCW
9A.40.100 or chapter 9A.-- RCW (sections 1 through 3 of this act),
within three years after the final disposition of any criminal charges
relating to the offense, whichever is later.
(8) The attorney general or county prosecuting attorney may, in a
civil action brought pursuant to this section, file with the clerk of
the superior court a certificate stating that the case is of special
public importance. A copy of that certificate shall be furnished
immediately by the clerk to the presiding chief judge of the superior
court in which the action is pending and, upon receipt of the copy, the
judge shall immediately designate a judge to hear and determine the
action. The judge so designated shall promptly assign the action for
hearing, participate in the hearings and determination, and cause the
action to be expedited.
(9) The standard of proof in actions brought pursuant to this
section is the preponderance of the evidence test.
(10) A person other than the attorney general or county prosecuting
attorney who files an action under this section shall serve notice and
one copy of the pleading on the attorney general within thirty days
after the action is filed with the superior court. The notice shall
identify the action, the person, and the person's attorney. Service of
the notice does not limit or otherwise affect the right of the state to
maintain an action under this section or intervene in a pending action
nor does it authorize the person to name the state or the attorney
general as a party to the action.
(11) Except in cases filed by a county prosecuting attorney, the
attorney general may, upon timely application, intervene in any civil
action or proceeding brought under this section if the attorney general
certifies that in the attorney general's opinion the action is of
special public importance. Upon intervention, the attorney general may
assert any available claim and is entitled to the same relief as if the
attorney general had instituted a separate action.
(12) In addition to the attorney general's right to intervene as a
party in any action under this section, the attorney general may appear
as amicus curiae in any proceeding in which a claim under this section
has been asserted or in which a court is interpreting RCW 9A.82.010,
9A.82.080, 9A.82.090, 9A.82.110, or 9A.82.120, or this section.
(13) A private civil action under this section does not limit any
other civil or criminal action under this chapter or any other
provision. Private civil remedies provided under this section are
supplemental and not mutually exclusive.
(14) Upon motion by the defendant, the court may authorize the sale
or transfer of assets subject to an order or lien authorized by this
chapter for the purpose of paying actual attorney's fees and costs of
defense. The motion shall specify the assets for which sale or
transfer is sought and shall be accompanied by the defendant's sworn
statement that the defendant has no other assets available for such
purposes. No order authorizing such sale or transfer may be entered
unless the court finds that the assets involved are not subject to
possible forfeiture under RCW 9A.82.100(4)(f). Prior to disposition of
the motion, the court shall notify the state of the assets sought to be
sold or transferred and shall hear argument on the issue of whether the
assets are subject to forfeiture under RCW 9A.82.100(4)(f). Such a
motion may be made from time to time and shall be heard by the court on
an expedited basis.
(15) In an action brought under subsection (1)(a) and (b)(i) of
this section, either party has the right to a jury trial.
Sec. 7 RCW 9A.82.120 and 2003 c 267 s 7 are each amended to read
as follows:
(1) The state, upon filing a criminal action under RCW 9A.82.060 or
9A.82.080 or for an offense defined in RCW 9A.40.100, or an offense,
including an anticipatory or completed offense, or a lawfully obtained
and otherwise admissible confession to have completed an offense, that
is defined in chapter 9A.-- RCW (sections 1 through 3 of this act),
whether or not committed for financial gain, or a civil action under
RCW 9A.82.100, may file in accordance with this section a criminal
profiteering lien. A filing fee or other charge is not required for
filing a criminal profiteering lien.
(2) A criminal profiteering lien shall be signed by the attorney
general or the county prosecuting attorney representing the state in
the action and shall set forth the following information:
(a) The name of the defendant whose property or other interests are
to be subject to the lien;
(b) In the discretion of the attorney general or county prosecuting
attorney filing the lien, any aliases or fictitious names of the
defendant named in the lien;
(c) If known to the attorney general or county prosecuting attorney
filing the lien, the present residence or principal place of business
of the person named in the lien;
(d) A reference to the proceeding pursuant to which the lien is
filed, including the name of the court, the title of the action, and
the court's file number for the proceeding;
(e) The name and address of the attorney representing the state in
the proceeding pursuant to which the lien is filed;
(f) A statement that the notice is being filed pursuant to this
section;
(g) The amount that the state claims in the action or, with respect
to property or other interests that the state has requested forfeiture
to the state or county, a description of the property or interests
sought to be paid or forfeited;
(h) If known to the attorney general or county prosecuting attorney
filing the lien, a description of property that is subject to
forfeiture to the state or property in which the defendant has an
interest that is available to satisfy a judgment entered in favor of
the state; and
(i) Such other information as the attorney general or county
prosecuting attorney filing the lien deems appropriate.
(3) The attorney general or the county prosecuting attorney filing
the lien may amend a lien filed under this section at any time by
filing an amended criminal profiteering lien in accordance with this
section that identifies the prior lien amended.
(4) The attorney general or the county prosecuting attorney filing
the lien shall, as soon as practical after filing a criminal
profiteering lien, furnish to any person named in the lien a notice of
the filing of the lien. Failure to furnish notice under this
subsection does not invalidate or otherwise affect a criminal
profiteering lien filed in accordance with this section.
(5)(a) A criminal profiteering lien is perfected against interests
in personal property in the same manner as a security interest in like
property pursuant to RCW 62A.9A-301 through 62A.9A-316 or as otherwise
required to perfect a security interest in like property under
applicable law. In the case of perfection by filing, the state shall
file, in lieu of a financing statement in the form prescribed by RCW
62A.9A-502, a notice of lien in substantially the following form:
Sec. 8 RCW 9.94A.515 and 2008 c 108 s 23 and 2008 c 38 s 1 are
each reenacted and amended to read as follows:
| TABLE 2 | ||
| CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL | ||
| XVI | ||
| XV | ||
| XIV | ||
| XIII | ||
| XII | ||
| XI | ||
| X | ||
| Criminal Mistreatment 1 (RCW 9A.42.020) | ||
| IX | ||
| VIII | ||
| VII | ||
| VI | ||
| V | ||
| IV | ||
| III | ||
| Escape 2 (RCW 9A.76.120) | ||
| II | ||
| I | ||
Sec. 9 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 committed in violation of chapter 9A.-- RCW
(sections 1 through 3 of this act) and resulted in the death of a human
or the death or destruction of an animal.
NEW SECTION. Sec. 10 Sections 1 through 3 of this act constitute
a new chapter in Title