H-3395.1
HOUSE BILL 2427
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State of Washington | 65th Legislature | 2018 Regular Session |
By Representatives Klippert, Irwin, Haler, Goodman, and Young
Read first time 01/09/18. Referred to Committee on Public Safety.
AN ACT Relating to making residential burglary a crime against persons; amending RCW
43.43.830; reenacting and amending RCW
9.94A.411; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 9.94A.411 and 2017 c 272 s 2 and 2017 c 266 s 5 are each reenacted and amended to read as follows:
(1) Decision not to prosecute.
STANDARD: A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.
GUIDELINE/COMMENTARY:
Examples
The following are examples of reasons not to prosecute which could satisfy the standard.
(a) Contrary to Legislative Intent - It may be proper to decline to charge where the application of criminal sanctions would be clearly contrary to the intent of the legislature in enacting the particular statute.
(b) Antiquated Statute - It may be proper to decline to charge where the statute in question is antiquated in that:
(i) It has not been enforced for many years; and
(ii) Most members of society act as if it were no longer in existence; and
(iii) It serves no deterrent or protective purpose in today's society; and
(iv) The statute has not been recently reconsidered by the legislature.
This reason is not to be construed as the basis for declining cases because the law in question is unpopular or because it is difficult to enforce.
(c) De Minimis Violation - It may be proper to decline to charge where the violation of law is only technical or insubstantial and where no public interest or deterrent purpose would be served by prosecution.
(d) Confinement on Other Charges - It may be proper to decline to charge because the accused has been sentenced on another charge to a lengthy period of confinement; and
(i) Conviction of the new offense would not merit any additional direct or collateral punishment;
(ii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and
(iii) Conviction of the new offense would not serve any significant deterrent purpose.
(e) Pending Conviction on Another Charge - It may be proper to decline to charge because the accused is facing a pending prosecution in the same or another county; and
(i) Conviction of the new offense would not merit any additional direct or collateral punishment;
(ii) Conviction in the pending prosecution is imminent;
(iii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and
(iv) Conviction of the new offense would not serve any significant deterrent purpose.
(f) High Disproportionate Cost of Prosecution - It may be proper to decline to charge where the cost of locating or transporting, or the burden on, prosecution witnesses is highly disproportionate to the importance of prosecuting the offense in question. This reason should be limited to minor cases and should not be relied upon in serious cases.
(g) Improper Motives of Complainant - It may be proper to decline charges because the motives of the complainant are improper and prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.
(h) Immunity - It may be proper to decline to charge where immunity is to be given to an accused in order to prosecute another where the accused's information or testimony will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest.
(i) Victim Request - It may be proper to decline to charge because the victim requests that no criminal charges be filed and the case involves the following crimes or situations:
(i) Assault cases where the victim has suffered little or no injury;
(ii) Crimes against property, not involving violence, where no major loss was suffered;
(iii) Where doing so would not jeopardize the safety of society.
Care should be taken to insure that the victim's request is freely made and is not the product of threats or pressure by the accused.
The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced.
Notification
The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not to prosecute.
(2) Decision to prosecute.
(a) STANDARD:
Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact finder. With regard to offenses prohibited by RCW
9A.44.040,
9A.44.050,
9A.44.073,
9A.44.076,
9A.44.079,
9A.44.083,
9A.44.086,
9A.44.089, and
9A.64.020 the prosecutor should avoid prefiling agreements or diversions intended to place the accused in a program of treatment or counseling, so that treatment, if determined to be beneficial, can be provided pursuant to RCW
9.94A.670.
Crimes against property/other crimes will be filed if the admissible evidence is of such convincing force as to make it probable that a reasonable and objective fact finder would convict after hearing all the admissible evidence and the most plausible defense that could be raised.
See table below for the crimes within these categories.
CATEGORIZATION OF CRIMES FOR PROSECUTING STANDARDS
CRIMES AGAINST PERSONS
4th Degree Assault (if a violation of RCW
9A.36.041(3))
1st Degree Assault of a Child (RCW
9A.36.120)
2nd Degree Assault of a Child (RCW
9A.36.130)
3rd Degree Assault of a Child (RCW
9A.36.140)
1st Degree Identity Theft (RCW
9.35.020(2))
2nd Degree Identity Theft (RCW
9.35.020(3))
1st Degree Criminal Mistreatment (RCW
9A.42.020)
2nd Degree Criminal Mistreatment (RCW
9A.42.030)
1st Degree Theft from a Vulnerable Adult (RCW
9A.56.400(1))
2nd Degree Theft from a Vulnerable Adult (RCW
9A.56.400(2))
1st Degree Promoting Prostitution (RCW
9A.88.070)
Intimidating a Public Servant (RCW
9A.76.180)
Bomb Threat (if against person) (RCW
9.61.160)
Criminal Mischief (if against person) (RCW
9A.84.010)
Counterfeiting (if a violation of RCW
9.16.035(4))
Felony Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor or Any Drug (RCW
46.61.502(6))
Felony Physical Control of a Motor Vehicle While Under the Influence of Intoxicating Liquor or Any Drug (RCW
46.61.504(6))
CRIMES AGAINST PROPERTY/OTHER CRIMES
1st Degree Introducing Contraband (RCW
9A.76.140)
2nd Degree Introducing Contraband (RCW
9A.76.150)
1st Degree Possession of Stolen Property (RCW
9A.56.150)
2nd Degree Possession of Stolen Property (RCW
9A.56.160)
Bomb Threat (if against property) (RCW
9.61.160)
1st Degree Malicious Mischief (RCW
9A.48.070)
2nd Degree Malicious Mischief (RCW
9A.48.080)
2nd Degree Promoting Prostitution (RCW
9A.88.080)
Receiving/Granting Unlawful Compensation (RCW
9A.68.030)
Eluding a Pursuing Police Vehicle (RCW
46.61.024)
Willful Failure to Return from Furlough
Escape from Community Custody
Criminal Mischief (if against property) (RCW
9A.84.010)
1st Degree Theft of Livestock (RCW
9A.56.080)
2nd Degree Theft of Livestock (RCW
9A.56.083)
ALL OTHER UNCLASSIFIED FELONIES
Selection of Charges/Degree of Charge
(i) The prosecutor should file charges which adequately describe the nature of defendant's conduct. Other offenses may be charged only if they are necessary to ensure that the charges:
(A) Will significantly enhance the strength of the state's case at trial; or
(B) Will result in restitution to all victims.
(ii) The prosecutor should not overcharge to obtain a guilty plea. Overcharging includes:
(A) Charging a higher degree;
(B) Charging additional counts.
This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and seriousness of a defendant's criminal conduct, but to decline to charge crimes which are not necessary to such an indication. Crimes which do not merge as a matter of law, but which arise from the same course of conduct, do not all have to be charged.
(b) GUIDELINES/COMMENTARY:
(i) Police Investigation
A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the following:
(A) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible;
(B) The completion of necessary laboratory tests; and
(C) The obtaining, in accordance with constitutional requirements, of the suspect's version of the events.
If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include.
(ii) Exceptions
In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if:
(A) Probable cause exists to believe the suspect is guilty; and
(B) The suspect presents a danger to the community or is likely to flee if not apprehended; or
(C) The arrest of the suspect is necessary to complete the investigation of the crime.
In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner. If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed.
(iii) Investigation Techniques
The prosecutor should be fully advised of the investigatory techniques that were used in the case investigation including:
(A) Polygraph testing;
(B) Hypnosis;
(C) Electronic surveillance;
(D) Use of informants.
(iv) Prefiling Discussions with Defendant
Discussions with the defendant or his/her representative regarding the selection or disposition of charges may occur prior to the filing of charges, and potential agreements can be reached.
(v) Prefiling Discussions with Victim(s)
Discussions with the victim(s) or victims' representatives regarding the selection or disposition of charges may occur before the filing of charges. The discussions may be considered by the prosecutor in charging and disposition decisions, and should be considered before reaching any agreement with the defendant regarding these decisions.
Sec. 2. RCW 43.43.830 and 2017 c 272 s 5 are each amended to read as follows:
Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW
43.43.830 through
43.43.845.
(1) "Agency" means any person, firm, partnership, association, corporation, or facility which receives, provides services to, houses or otherwise cares for vulnerable adults, juveniles, or children, or which provides child day care, early learning, or early childhood education services.
(2) "Applicant" means:
(a) Any prospective employee who will or may have unsupervised access to children under sixteen years of age or developmentally disabled persons or vulnerable adults during the course of his or her employment or involvement with the business or organization;
(b) Any prospective volunteer who will have regularly scheduled unsupervised access to children under sixteen years of age, developmentally disabled persons, or vulnerable adults during the course of his or her employment or involvement with the business or organization under circumstances where such access will or may involve groups of (i) five or fewer children under twelve years of age, (ii) three or fewer children between twelve and sixteen years of age, (iii) developmentally disabled persons, or (iv) vulnerable adults;
(c) Any prospective adoptive parent, as defined in RCW
26.33.020; or
(d) Any prospective custodian in a nonparental custody proceeding under chapter
26.10 RCW.
(3) "Business or organization" means a person, business, or organization licensed in this state, any agency of the state, or other governmental entity, that educates, trains, treats, supervises, houses, or provides recreation to developmentally disabled persons, vulnerable adults, or children under sixteen years of age, or that provides child day care, early learning, or early learning childhood education services, including but not limited to public housing authorities, school districts, and educational service districts.
(4) "Civil adjudication proceeding" is a judicial or administrative adjudicative proceeding that results in a finding of, or upholds an agency finding of, domestic violence, abuse, sexual abuse, neglect, abandonment, violation of a professional licensing standard regarding a child or vulnerable adult, or exploitation or financial exploitation of a child or vulnerable adult under any provision of law, including but not limited to chapter
13.34, 26.44, or
74.34 RCW, or rules adopted under chapters
18.51 and
74.42 RCW. "Civil adjudication proceeding" also includes judicial or administrative findings that become final due to the failure of the alleged perpetrator to timely exercise a legal right to administratively challenge such findings.
(5) "Client" or "resident" means a child, person with developmental disabilities, or vulnerable adult applying for housing assistance from a business or organization.
(6) "Conviction record" means "conviction record" information as defined in RCW
10.97.030 and
10.97.050 relating to a crime committed by either an adult or a juvenile. It does not include a conviction for an offense that has been the subject of an expungement, pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, or a conviction that has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. It does include convictions for offenses for which the defendant received a deferred or suspended sentence, unless the record has been expunged according to law.
(7) "Crime against children or other persons" means a conviction of any of the following offenses: Aggravated murder; first or second degree murder; first or second degree kidnapping; first, second, or third degree assault; fourth degree assault (if a violation of RCW
9A.36.041(3)); first, second, or third degree assault of a child; first, second, or third degree rape; first, second, or third degree rape of a child; first or second degree robbery; first degree arson; first degree burglary;
residential burglary; first or second degree manslaughter; first or second degree extortion; indecent liberties; incest; vehicular homicide; first degree promoting prostitution; communication with a minor; unlawful imprisonment; simple assault; sexual exploitation of minors; first or second degree criminal mistreatment; endangerment with a controlled substance; child abuse or neglect as defined in RCW
26.44.020; first or second degree custodial interference; first or second degree custodial sexual misconduct; malicious harassment; first, second, or third degree child molestation; first or second degree sexual misconduct with a minor; commercial sexual abuse of a minor; child abandonment; promoting pornography; selling or distributing erotic material to a minor; custodial assault; violation of child abuse restraining order; child buying or selling; prostitution; felony indecent exposure; criminal abandonment; or any of these crimes as they may be renamed in the future.
(8) "Crimes relating to drugs" means a conviction of a crime to manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance.
(9) "Crimes relating to financial exploitation" means a conviction for first, second, or third degree extortion; first, second, or third degree theft; first or second degree robbery; forgery; or any of these crimes as they may be renamed in the future.
(10) "Financial exploitation" means "financial exploitation" as defined in RCW
74.34.020.
(11) "Health care facility" means a nursing home licensed under chapter
18.51 RCW,
((a [an])) an assisted living facility licensed under chapter
18.20 RCW, or an adult family home licensed under chapter
70.128 RCW.
(12) "Peer counselor" means a nonprofessional person who has equal standing with another person, providing advice on a topic about which the nonprofessional person is more experienced or knowledgeable, and who is a counselor for a peer counseling program that contracts with or is otherwise approved by the department, another state or local agency, or the court.
(13) "Unsupervised" means not in the presence of:
(a) Another employee or volunteer from the same business or organization as the applicant; or
(b) Any relative or guardian of any of the children or developmentally disabled persons or vulnerable adults to which the applicant has access during the course of his or her employment or involvement with the business or organization.
With regard to peer counselors, "unsupervised" does not include incidental contact with children under age sixteen at the location at which the peer counseling is taking place. "Incidental contact" means minor or casual contact with a child in an area accessible to and within visual or auditory range of others. It could include passing a child while walking down a hallway but would not include being alone with a child for any period of time in a closed room or office.
(14) "Vulnerable adult" means "vulnerable adult" as defined in chapter
74.34 RCW, except that for the purposes of requesting and receiving background checks pursuant to RCW
43.43.832, it shall also include adults of any age who lack the functional, mental, or physical ability to care for themselves.
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