BILL REQ. #: Z-0033.5
| State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/12/11. Referred to Committee on Public Safety & Emergency Preparedness.
AN ACT Relating to criminal street gangs; amending RCW 13.40.127, 9A.46.120, 9A.48.105, 9.94A.533, 9.94A.702, and 70.41.440; reenacting and amending RCW 9.94A.515 and 9.94A.030; adding a new section to chapter 43.20A RCW; adding a new section to chapter 9A.46 RCW; adding a new section to chapter 9.94A RCW; adding a new chapter to Title 7 RCW; adding a new chapter to Title 10 RCW; creating a new section; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that gang violence is
an increasingly serious problem that threatens the long-term economic,
social, and public safety interests of the state, counties, and cities.
The scourge of gangs plaguing our streets is a clear and present danger
to our communities. Those who live where gang membership and activity
is on the rise find themselves living with the daily threat of
intimidation and harassment. Gangs terrorize neighborhoods and
adversely impact our quality of life by engaging in violence, drugs,
and associated criminal activities. Individual gang members, gang
cliques, or entire gang organizations traffic in drugs and gun running
and commit assault, rape, robbery, burglary, extortion, auto theft,
shootings, murder, and other felonies. Gang members are coming to
Washington from other states and foreign countries with many supported
by the sale of crack cocaine, heroin, and other illegal drugs. In many
neighborhoods, children are born into or must contend with second and
third-generation street gangs. The loss of life, property, happiness,
security, and a positive opportunity for growth caused by gang violence
has reached intolerable levels. Increased gang activity has seriously
strained the budgets of many local jurisdictions, as well as threatened
the ability of the educational system to educate our youth. The
destruction and fear generated by gangs in many communities have
greatly elevated the critical importance of enacting effective measures
to combat gang-related crime. Communities overwhelmed by violent gang
activity must have relief from the blight of gang crime before
revitalization, initiatives to strengthen families, school
improvements, and other desired interventions can succeed. Local
communities, law enforcement agencies, and prosecutors require
assistance to combat this clear and present danger to the law-abiding
residents of Washington. They must have the tools they need to
aggressively combat gang-related crime and build strong cases that
remove violent gang members from the streets. They need additional
prevention and intervention measures, civil remedies, and criminal
sanctions to ensure that our young are helped to avoid gang membership
and activities and that those who do commit gang-related crimes are
held fully accountable for the harm and suffering they inflict on
society. It is the intent of this act to provide the criminal justice
community and local communities with the effective tools they need to
better protect the citizens of Washington from gang-related crime.
NEW SECTION. Sec. 2 A new section is added to chapter 43.20A RCW
to read as follows:
Grants authorized.
(1) In general. The state department of social and health
services, office of juvenile justice, shall seek funding from the
United States department of justice, office of justice programs, office
of juvenile justice and delinquency prevention, for the purpose of
establishing a competitive statewide gang prevention and intervention
grant program.
(2) Grant program implementation. Upon receipt of federal funds or
signing of a federal grant agreement, the state office of juvenile
justice, in consultation with the Washington state partnership council
on juvenile justice, shall award grants to eligible entities described
in subsection (3) of this section to carry out local projects focused
on criminal street gang prevention and intervention programs. The
executive director of the Washington association of sheriffs and police
chiefs or his or her designee and the attorney general or his or her
designee shall serve on the grant application review committee, as well
as additional representatives of local government and nongovernmental
organizations to be appointed at the discretion of the secretary of the
department of social and health services. Each of these respective
organizations shall have a vote when determining awards.
(3) Term. The director of the Washington state partnership council
on juvenile justice shall award grants under this section for a period
of one fiscal year or twelve calendar months.
(4) Eligible entities. Eligible entities under this section are:
(a) Nonprofit, nongovernmental organizations, or coalitions that
serve the targeted populations that:
(i) Have a documented history of creating and administering
effective projects; or
(ii) Work in partnership with an organization that has a documented
history of creating and administering effective projects;
(b) Governmental entities that demonstrate a partnership with an
organization described in (a) of this subsection.
(5)(a) Applications. An eligible entity desiring a grant under
this section shall submit an application to the director of the
Washington state partnership council on juvenile justice at such time,
in such form, and in such manner as the director may prescribe.
Applications, at a minimum, shall demonstrate:
(i) That a significant gang problem exists in the jurisdiction or
jurisdictions receiving the grant;
(ii) How the funds will be used to offer services to prevent the
expansion of criminal street gang membership or support criminal street
gang membership intervention;
(iii) How the funds will be used to provide services to a targeted
population; and
(iv) That the costs of administration shall not exceed four percent
of appropriated funding.
(b) Consideration for grant awards shall primarily be given to, but
not limited to, those applicants that show that gang violence is an
increasing problem in their respective jurisdictions and that
addressing the impact of street gangs is a high priority within their
local community, and:
(i) Propose to conduct a community gang assessment utilizing proven
evidence-based practices, such as the office of juvenile justice and
office of delinquency programs comprehensive gang model; or
(ii) Where such an assessment has been conducted, to implement a
prevention or intervention program utilizing either evidence-based or
innovative and culturally relevant practices.
(6) No supplanting. Grant funds awarded under this section shall
be used to supplement, not supplant, other moneys that are available
for prevention and intervention programs.
(7) Reports. Each eligible entity receiving a grant under this
section shall submit within one month of the one-year anniversary of
receiving the award to the director of the Washington state partnership
council on juvenile justice a report describing the activities carried
out with the grant funds.
(8) The department of social and health services, office of
juvenile justice, shall report back to the legislature regarding the
status of those activities prescribed in subsections (1) through (7) of
this section by January 9, 2012.
Sec. 3 RCW 13.40.127 and 2009 c 236 s 1 are each amended to read
as follows:
(1) A juvenile is eligible for deferred disposition unless he or
she:
(a) Is charged with a sex or violent offense;
(b) Has a criminal history which includes any felony;
(c) Has a prior deferred disposition or deferred adjudication;
((or))
(d) Has two or more adjudications; or
(e) Is charged with a firearm offense under chapter 9.41 RCW and
the crime is alleged to be a criminal street gang-related offense as
defined in RCW 9.94A.030.
(2) The juvenile court may, upon motion at least fourteen days
before commencement of trial and, after consulting the juvenile's
custodial parent or parents or guardian and with the consent of the
juvenile, continue the case for disposition for a period not to exceed
one year from the date the juvenile is found guilty. The court shall
consider whether the offender and the community will benefit from a
deferred disposition before deferring the disposition.
(3) Any juvenile who agrees to a deferral of disposition shall:
(a) Stipulate to the admissibility of the facts contained in the
written police report;
(b) Acknowledge that the report will be entered and used to support
a finding of guilt and to impose a disposition if the juvenile fails to
comply with terms of supervision; and
(c) Waive the following rights to: (i) A speedy disposition; and
(ii) call and confront witnesses.
The adjudicatory hearing shall be limited to a reading of the
court's record.
(4) Following the stipulation, acknowledgment, waiver, and entry of
a finding or plea of guilt, the court shall defer entry of an order of
disposition of the juvenile.
(5) Any juvenile granted a deferral of disposition under this
section shall be placed under community supervision. The court may
impose any conditions of supervision that it deems appropriate
including posting a probation bond. Payment of restitution under RCW
13.40.190 shall be a condition of community supervision under this
section.
The court may require a juvenile offender convicted of animal
cruelty in the first degree to submit to a mental health evaluation to
determine if the offender would benefit from treatment and such
intervention would promote the safety of the community. After
consideration of the results of the evaluation, as a condition of
community supervision, the court may order the offender to attend
treatment to address issues pertinent to the offense.
(6) A parent who signed for a probation bond has the right to
notify the counselor if the juvenile fails to comply with the bond or
conditions of supervision. The counselor shall notify the court and
surety of any failure to comply. A surety shall notify the court of
the juvenile's failure to comply with the probation bond. The state
shall bear the burden to prove, by a preponderance of the evidence,
that the juvenile has failed to comply with the terms of community
supervision.
(7) A juvenile's lack of compliance shall be determined by the
judge upon written motion by the prosecutor or the juvenile's juvenile
court community supervision counselor. If a juvenile fails to comply
with terms of supervision, the court shall enter an order of
disposition.
(8) At any time following deferral of disposition the court may,
following a hearing, continue the case for an additional one-year
period for good cause.
(9) At the conclusion of the period set forth in the order of
deferral and upon a finding by the court of full compliance with
conditions of supervision and payment of full restitution, the
respondent's conviction shall be vacated and the court shall dismiss
the case with prejudice, except that a conviction under RCW 16.52.205
shall not be vacated.
(10)(a) Records of deferred disposition cases vacated under
subsection (9) of this section shall be sealed no later than thirty
days after the juvenile's eighteenth birthday provided that the
juvenile does not have any charges pending at that time. If a juvenile
has already reached his or her eighteenth birthday before July 26,
2009, and does not have any charges pending, he or she may request that
the court issue an order sealing the records of his or her deferred
disposition cases vacated under subsection (9) of this section, and
this request shall be granted. Nothing in this subsection shall
preclude a juvenile from petitioning the court to have the records of
his or her deferred dispositions sealed under RCW 13.50.050 (11) and
(12).
(b) Records sealed under this provision shall have the same legal
status as records sealed under RCW 13.50.050.
NEW SECTION. Sec. 4 A new section is added to chapter 9A.46 RCW
to read as follows:
(1) A person commits the offense of criminal gang intimidation if
the person threatens another person with bodily injury because the
other person refuses to join or has attempted to withdraw from a
criminal street gang, as defined in RCW 9.94A.030.
(2) Criminal gang intimidation is a class C felony.
Sec. 5 RCW 9A.46.120 and 1997 c 266 s 3 are each amended to read
as follows:
(1) A person commits the offense of school criminal gang
intimidation if the person threatens another person with bodily injury
because the other person refuses to join or has attempted to withdraw
from a gang, as defined in RCW 28A.600.455, if the person who threatens
the victim or the victim attends or is registered in a public or
alternative school.
(2) School criminal gang intimidation is a class C felony.
Sec. 6 RCW 9.94A.515 and 2010 c 289 s 11 and 2010 c 227 s 9 are
each reenacted and amended to read as follows:
| TABLE 2 | ||
| CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL | ||
| XVI | ||
| XV | ||
| XIV | ||
| XIII | ||
| XII | ||
| XI | ||
| X | ||
| Criminal Mistreatment 1 (RCW 9A.42.020) | ||
| IX | ||
| VIII | ||
| VII | ||
| VI | ||
| V | ||
| IV | ||
| III | ||
| Escape 2 (RCW 9A.76.120) | ||
| School Criminal Gang Intimidation (RCW 9A.46.120) | ||
| II | ||
| I | ||
Sec. 7 RCW 9A.48.105 and 2008 c 276 s 306 are each amended to
read as follows:
(1) A person is guilty of criminal street gang tagging and graffiti
if he or she commits malicious mischief in the third degree under RCW
9A.48.090(1)(b) and he or she:
(a) Has multiple current convictions for malicious mischief in the
third degree offenses under RCW 9A.48.090(1)(b); or
(b) Has previously been convicted for a malicious mischief in the
third degree offense under RCW 9A.48.090(1)(b) or a comparable offense
under a municipal code provision of any city or town; and
(c) The current offense or one of the current offenses is a
"criminal street gang-related offense" as defined in RCW 9.94A.030.
(2) Criminal street gang tagging and graffiti is a gross
misdemeanor offense.
(3) In addition to any other penalty imposed for a violation of
this section, the court may impose as a condition of the sentence that
the person perform one hundred hours of community service.
Sec. 8 RCW 9.94A.533 and 2009 c 141 s 2 are each amended to read
as follows:
(1) The provisions of this section apply to the standard sentence
ranges determined by RCW 9.94A.510 or 9.94A.517.
(2) For persons convicted of the anticipatory offenses of criminal
attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the
standard sentence range is determined by locating the sentencing grid
sentence range defined by the appropriate offender score and the
seriousness level of the completed crime, and multiplying the range by
seventy-five percent.
(3) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a firearm as defined in RCW
9.41.010 and the offender is being sentenced for one of the crimes
listed in this subsection as eligible for any firearm enhancements
based on the classification of the completed felony crime. If the
offender is being sentenced for more than one offense, the firearm
enhancement or enhancements must be added to the total period of
confinement for all offenses, regardless of which underlying offense is
subject to a firearm enhancement. If the offender or an accomplice was
armed with a firearm as defined in RCW 9.41.010 and the offender is
being sentenced for an anticipatory offense under chapter 9A.28 RCW to
commit one of the crimes listed in this subsection as eligible for any
firearm enhancements, the following additional times shall be added to
the standard sentence range determined under subsection (2) of this
section based on the felony crime of conviction as classified under RCW
9A.28.020:
(a) Five years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both, and not covered under (f) of this subsection;
(b) Three years for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both, and
not covered under (f) of this subsection;
(c) Eighteen months for any felony defined under any law as a class
C felony or with a statutory maximum sentence of five years, or both,
and not covered under (f) of this subsection;
(d) If the offender is being sentenced for any firearm enhancements
under (a), (b), and/or (c) of this subsection and the offender has
previously been sentenced for any deadly weapon enhancements after July
23, 1995, under (a), (b), and/or (c) of this subsection or subsection
(4)(a), (b), and/or (c) of this section, or both, all firearm
enhancements under this subsection shall be twice the amount of the
enhancement listed;
(e) Notwithstanding any other provision of law, all firearm
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements, for
all offenses sentenced under this chapter. However, whether or not a
mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(((4))) (3);
(f) The firearm enhancements in this section shall apply to all
felony crimes except the following: Possession of a machine gun,
possessing a stolen firearm, drive-by shooting, theft of a firearm,
unlawful possession of a firearm in the first and second degree, and
use of a machine gun in a felony;
(g) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a firearm enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(4) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a deadly weapon other than a
firearm as defined in RCW 9.41.010 and the offender is being sentenced
for one of the crimes listed in this subsection as eligible for any
deadly weapon enhancements based on the classification of the completed
felony crime. If the offender is being sentenced for more than one
offense, the deadly weapon enhancement or enhancements must be added to
the total period of confinement for all offenses, regardless of which
underlying offense is subject to a deadly weapon enhancement. If the
offender or an accomplice was armed with a deadly weapon other than a
firearm as defined in RCW 9.41.010 and the offender is being sentenced
for an anticipatory offense under chapter 9A.28 RCW to commit one of
the crimes listed in this subsection as eligible for any deadly weapon
enhancements, the following additional times shall be added to the
standard sentence range determined under subsection (2) of this section
based on the felony crime of conviction as classified under RCW
9A.28.020:
(a) Two years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both, and not covered under (f) of this subsection;
(b) One year for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both, and
not covered under (f) of this subsection;
(c) Six months for any felony defined under any law as a class C
felony or with a statutory maximum sentence of five years, or both, and
not covered under (f) of this subsection;
(d) If the offender is being sentenced under (a), (b), and/or (c)
of this subsection for any deadly weapon enhancements and the offender
has previously been sentenced for any deadly weapon enhancements after
July 23, 1995, under (a), (b), and/or (c) of this subsection or
subsection (3)(a), (b), and/or (c) of this section, or both, all deadly
weapon enhancements under this subsection shall be twice the amount of
the enhancement listed;
(e) Notwithstanding any other provision of law, all deadly weapon
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements, for
all offenses sentenced under this chapter. However, whether or not a
mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(((4))) (3);
(f) The deadly weapon enhancements in this section shall apply to
all felony crimes except the following: Possession of a machine gun,
possessing a stolen firearm, drive-by shooting, theft of a firearm,
unlawful possession of a firearm in the first and second degree, and
use of a machine gun in a felony;
(g) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a deadly weapon enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(5) The following additional times shall be added to the standard
sentence range if the offender or an accomplice committed the offense
while in a county jail or state correctional facility and the offender
is being sentenced for one of the crimes listed in this subsection. If
the offender or an accomplice committed one of the crimes listed in
this subsection while in a county jail or state correctional facility,
and the offender is being sentenced for an anticipatory offense under
chapter 9A.28 RCW to commit one of the crimes listed in this
subsection, the following additional times shall be added to the
standard sentence range determined under subsection (2) of this
section:
(a) Eighteen months for offenses committed under RCW 69.50.401(2)
(a) or (b) or 69.50.410;
(b) Fifteen months for offenses committed under RCW 69.50.401(2)
(c), (d), or (e);
(c) Twelve months for offenses committed under RCW 69.50.4013.
For the purposes of this subsection, all of the real property of a
state correctional facility or county jail shall be deemed to be part
of that facility or county jail.
(6) An additional twenty-four months shall be added to the standard
sentence range for any ranked offense involving a violation of chapter
69.50 RCW if the offense was also a violation of RCW 69.50.435 or
((9.94A.605)) 9.94A.827. All enhancements under this subsection shall
run consecutively to all other sentencing provisions, for all offenses
sentenced under this chapter.
(7) An additional two years shall be added to the standard sentence
range for vehicular homicide committed while under the influence of
intoxicating liquor or any drug as defined by RCW 46.61.502 for each
prior offense as defined in RCW 46.61.5055.
(8)(a) The following additional times shall be added to the
standard sentence range for felony crimes committed on or after July 1,
2006, if the offense was committed with sexual motivation, as that term
is defined in RCW 9.94A.030. If the offender is being sentenced for
more than one offense, the sexual motivation enhancement must be added
to the total period of total confinement for all offenses, regardless
of which underlying offense is subject to a sexual motivation
enhancement. If the offender committed the offense with sexual
motivation and the offender is being sentenced for an anticipatory
offense under chapter 9A.28 RCW, the following additional times shall
be added to the standard sentence range determined under subsection (2)
of this section based on the felony crime of conviction as classified
under RCW 9A.28.020:
(i) Two years for any felony defined under the law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both;
(ii) Eighteen months for any felony defined under any law as a
class B felony or with a statutory maximum sentence of ten years, or
both;
(iii) One year for any felony defined under any law as a class C
felony or with a statutory maximum sentence of five years, or both;
(iv) If the offender is being sentenced for any sexual motivation
enhancements under (i), (ii), and/or (iii) of this subsection and the
offender has previously been sentenced for any sexual motivation
enhancements on or after July 1, 2006, under (i), (ii), and/or (iii) of
this subsection, all sexual motivation enhancements under this
subsection shall be twice the amount of the enhancement listed;
(b) Notwithstanding any other provision of law, all sexual
motivation enhancements under this subsection are mandatory, shall be
served in total confinement, and shall run consecutively to all other
sentencing provisions, including other sexual motivation enhancements,
for all offenses sentenced under this chapter. However, whether or not
a mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(((4))) (3);
(c) The sexual motivation enhancements in this subsection apply to
all felony crimes;
(d) If the standard sentence range under this subsection exceeds
the statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a sexual motivation
enhancement increases the sentence so that it would exceed the
statutory maximum for the offense, the portion of the sentence
representing the enhancement may not be reduced;
(e) The portion of the total confinement sentence which the
offender must serve under this subsection shall be calculated before
any earned early release time is credited to the offender;
(f) Nothing in this subsection prevents a sentencing court from
imposing a sentence outside the standard sentence range pursuant to RCW
9.94A.535.
(9) An additional one-year enhancement shall be added to the
standard sentence range for the felony crimes of RCW 9A.44.073,
9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, or 9A.44.089 committed on
or after July 22, 2007, if the offender engaged, agreed, or offered to
engage the victim in the sexual conduct in return for a fee. If the
offender is being sentenced for more than one offense, the one-year
enhancement must be added to the total period of total confinement for
all offenses, regardless of which underlying offense is subject to the
enhancement. If the offender is being sentenced for an anticipatory
offense for the felony crimes of RCW 9A.44.073, 9A.44.076, 9A.44.079,
9A.44.083, 9A.44.086, or 9A.44.089, and the offender attempted,
solicited another, or conspired to engage, agree, or offer to engage
the victim in the sexual conduct in return for a fee, an additional
one-year enhancement shall be added to the standard sentence range
determined under subsection (2) of this section. For purposes of this
subsection, "sexual conduct" means sexual intercourse or sexual
contact, both as defined in chapter 9A.44 RCW.
(10)(a) For a person age eighteen or older convicted of any
criminal street gang-related felony offense for which the person
compensated, threatened, or solicited a minor in order to involve the
minor in the commission of the felony offense, the standard sentence
range is determined by locating the sentencing grid sentence range
defined by the appropriate offender score and the seriousness level of
the completed crime, and multiplying the range by one hundred twenty-five percent. If the standard sentence range under this subsection
exceeds the statutory maximum sentence for the offense, the statutory
maximum sentence is the presumptive sentence unless the offender is a
persistent offender.
(b) This subsection does not apply to any criminal street gang-related felony offense for which involving a minor in the commission of
the felony offense is an element of the offense.
(c) The increased penalty specified in (a) of this subsection is
unavailable in the event that the prosecution gives notice that it will
seek an exceptional sentence based on an aggravating factor under RCW
9.94A.535.
(11) An additional twelve months and one day shall be added to the
standard sentence range for a conviction of attempting to elude a
police vehicle as defined by RCW 46.61.024, if the conviction included
a finding by special allegation of endangering one or more persons
under RCW 9.94A.834.
(12) An additional twelve months shall be added to the standard
sentence range for an offense that is also a violation of RCW
9.94A.831.
(13) The following additional times shall be added to the standard
sentence range for felony crimes if the offender is being sentenced for
an offense found pursuant to section 9 of this act to be a criminal
street gang-related offense as defined in RCW 9.94A.030. If the
offender is being sentenced for more than one offense, the criminal
street gang enhancement must be added to the total period of
confinement for all offenses, regardless of which underlying offense is
subject to a criminal street gang enhancement. If the criminal street
gang-related offense is an anticipatory offense under chapter 9A.28
RCW, the following additional times shall be added to the standard
sentence range determined under subsection (2) of this section based on
the felony crime of conviction as classified under RCW 9A.28.020:
(a) Twenty-four months for any felony defined under any law as a
class A felony or with a statutory maximum sentence of at least twenty
years, or both;
(b) Eighteen months for any felony defined under any law as a class
B felony or with a statutory maximum sentence of ten years, or both;
(c) Twelve months for any felony defined under any law as a class
C felony or with a statutory maximum sentence of five years, or both;
(d) All criminal street gang-related enhancements under this
section are mandatory, shall be served in total confinement, and shall
run consecutively to all other sentencing provisions. However, whether
or not a mandatory minimum term has expired, an offender serving a
sentence under this subsection may be granted an extraordinary medical
placement when authorized under RCW 9.94A.728(3);
(e) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be presumptive unless the offender is a persistent
offender. If the addition of a criminal street gang-related
enhancement increases the sentence so that it would exceed the
statutory maximum for the offense, the portion of the sentence
representing the enhancement may not be reduced;
(f) The criminal street gang-related enhancement is unavailable in
the event that the prosecution gives notice that it will seek an
exceptional sentence based on the criminal street gang-related
aggravating factor provided by RCW 9.94A.535(3)(aa).
NEW SECTION. Sec. 9 A new section is added to chapter 9.94A RCW
to read as follows:
(1) Where the prosecuting attorney charges a person with a felony
offense, the prosecuting attorney may file a special allegation
charging that the offense is a criminal street gang-related offense as
defined in RCW 9.94A.030.
(2) The facts supporting the criminal street gang-related offense
allegation shall be proved to a jury beyond a reasonable doubt. The
jury's verdict on the allegation must be unanimous, and by special
interrogatory. If a jury is waived, proof shall be to the court beyond
a reasonable doubt, unless the defendant stipulates to the special
allegation.
(3) Evidence regarding the criminal street gang-related offense
special allegation shall be presented to the jury during the trial of
the alleged crime if:
(a) The facts supporting the allegation are part of the res gestae
of the crime or are otherwise admissible; and
(b) The probative value of the evidence to the criminal street
gang-related offense special allegation is not substantially outweighed
by its prejudicial effect on the jury's ability to determine guilt or
innocence for the underlying crime.
(4) If the evidence regarding the criminal street gang-related
offense special allegation is not presented to the jury during the
trial of the alleged crime, the court shall conduct a separate
proceeding to determine the existence of this special allegation. The
proceeding shall immediately follow the trial on the underlying
conviction, if possible. If any person who served on the jury is
unable to continue, the court shall substitute an alternate juror.
Sec. 10 RCW 9.94A.702 and 2010 c 267 s 12 are each amended to
read as follows:
(1) If an offender is sentenced to a term of confinement for one
year or less for one of the following offenses, the court may impose up
to one year of community custody:
(a) A sex offense;
(b) A violent offense;
(c) A crime against a person under RCW 9.94A.411;
(d) A felony violation of chapter 69.50 or 69.52 RCW, or an
attempt, conspiracy, or solicitation to commit such a crime; ((or))
(e) A felony violation of RCW 9A.44.132(1) (failure to register);
or
(f) A felony that is a criminal street gang-related offense under
RCW 9.94A.030.
(2) If an offender is sentenced to a first-time offender waiver,
the court may impose community custody as provided in RCW 9.94A.650.
Sec. 11 RCW 9.94A.030 and 2010 c 274 s 401, 2010 c 267 s 9, 2010
c 227 s 11, and 2010 c 224 s 1 are each reenacted and amended to read
as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Board" means the indeterminate sentence review board created
under chapter 9.95 RCW.
(2) "Collect," or any derivative thereof, "collect and remit," or
"collect and deliver," when used with reference to the department,
means that the department, either directly or through a collection
agreement authorized by RCW 9.94A.760, is responsible for monitoring
and enforcing the offender's sentence with regard to the legal
financial obligation, receiving payment thereof from the offender, and,
consistent with current law, delivering daily the entire payment to the
superior court clerk without depositing it in a departmental account.
(3) "Commission" means the sentencing guidelines commission.
(4) "Community corrections officer" means an employee of the
department who is responsible for carrying out specific duties in
supervision of sentenced offenders and monitoring of sentence
conditions.
(5) "Community custody" means that portion of an offender's
sentence of confinement in lieu of earned release time or imposed as
part of a sentence under this chapter and served in the community
subject to controls placed on the offender's movement and activities by
the department.
(6) "Community protection zone" means the area within eight hundred
eighty feet of the facilities and grounds of a public or private
school.
(7) "Community restitution" means compulsory service, without
compensation, performed for the benefit of the community by the
offender.
(8) "Confinement" means total or partial confinement.
(9) "Conviction" means an adjudication of guilt pursuant to Title
10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and
acceptance of a plea of guilty.
(10) "Crime-related prohibition" means an order of a court
prohibiting conduct that directly relates to the circumstances of the
crime for which the offender has been convicted, and shall not be
construed to mean orders directing an offender affirmatively to
participate in rehabilitative programs or to otherwise perform
affirmative conduct. However, affirmative acts necessary to monitor
compliance with the order of a court may be required by the department.
(11) "Criminal history" means the list of a defendant's prior
convictions and juvenile adjudications, whether in this state, in
federal court, or elsewhere.
(a) The history shall include, where known, for each conviction (i)
whether the defendant has been placed on probation and the length and
terms thereof; and (ii) whether the defendant has been incarcerated and
the length of incarceration.
(b) A conviction may be removed from a defendant's criminal history
only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or
a similar out-of-state statute, or if the conviction has been vacated
pursuant to a governor's pardon.
(c) The determination of a defendant's criminal history is distinct
from the determination of an offender score. A prior conviction that
was not included in an offender score calculated pursuant to a former
version of the sentencing reform act remains part of the defendant's
criminal history.
(12) "Criminal street gang" means any ongoing organization,
association, or group of three or more persons, whether formal or
informal, having a common name or common identifying sign or symbol,
having as one of its primary activities the commission of criminal
acts, and whose members or associates individually or collectively
engage in or have engaged in a pattern of criminal street gang
activity. This definition does not apply to employees engaged in
concerted activities for their mutual aid and protection, or to the
activities of labor and bona fide nonprofit organizations or their
members or agents.
(13) "Criminal street gang associate or member" means any person
who actively participates in any criminal street gang and who
intentionally promotes, furthers, or assists in any criminal act by the
criminal street gang.
(14) "Criminal street gang-related offense" means any felony or
misdemeanor offense, whether in this state or elsewhere, that is
committed for the benefit of, at the direction of, or in association
with any criminal street gang, or is committed with the intent to
promote, further, or assist in any criminal conduct by the gang, or is
committed for one or more of the following reasons:
(a) To gain admission, prestige, or promotion within the gang;
(b) To increase or maintain the gang's size, membership, prestige,
dominance, or control in any geographical area;
(c) To exact revenge or retribution for the gang or any member of
the gang;
(d) To obstruct justice, or intimidate or eliminate any witness
against the gang or any member of the gang;
(e) To directly or indirectly cause any benefit, aggrandizement,
gain, profit, or other advantage for the gang, its reputation,
influence, or membership; or
(f) To provide the gang with any advantage in, or any control or
dominance over any criminal market sector, including, but not limited
to, manufacturing, delivering, or selling any controlled substance
(chapter 69.50 RCW); arson (chapter 9A.48 RCW); trafficking in stolen
property (chapter 9A.82 RCW); promoting prostitution (chapter 9A.88
RCW); human trafficking (RCW 9A.40.100); ((or)) promoting pornography
(chapter 9.68 RCW); or commercial sexual exploitation of a minor (RCW
9.68A.100).
(15) "Day fine" means a fine imposed by the sentencing court that
equals the difference between the offender's net daily income and the
reasonable obligations that the offender has for the support of the
offender and any dependents.
(16) "Day reporting" means a program of enhanced supervision
designed to monitor the offender's daily activities and compliance with
sentence conditions, and in which the offender is required to report
daily to a specific location designated by the department or the
sentencing court.
(17) "Department" means the department of corrections.
(18) "Determinate sentence" means a sentence that states with
exactitude the number of actual years, months, or days of total
confinement, of partial confinement, of community custody, the number
of actual hours or days of community restitution work, or dollars or
terms of a legal financial obligation. The fact that an offender
through earned release can reduce the actual period of confinement
shall not affect the classification of the sentence as a determinate
sentence.
(19) "Disposable earnings" means that part of the earnings of an
offender remaining after the deduction from those earnings of any
amount required by law to be withheld. For the purposes of this
definition, "earnings" means compensation paid or payable for personal
services, whether denominated as wages, salary, commission, bonuses, or
otherwise, and, notwithstanding any other provision of law making the
payments exempt from garnishment, attachment, or other process to
satisfy a court-ordered legal financial obligation, specifically
includes periodic payments pursuant to pension or retirement programs,
or insurance policies of any type, but does not include payments made
under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050,
or Title 74 RCW.
(20) "Domestic violence" has the same meaning as defined in RCW
10.99.020 and 26.50.010.
(21) "Drug offender sentencing alternative" is a sentencing option
available to persons convicted of a felony offense other than a violent
offense or a sex offense and who are eligible for the option under RCW
9.94A.660.
(22) "Drug offense" means:
(a) Any felony violation of chapter 69.50 RCW except possession of
a controlled substance (RCW 69.50.4013) or forged prescription for a
controlled substance (RCW 69.50.403);
(b) Any offense defined as a felony under federal law that relates
to the possession, manufacture, distribution, or transportation of a
controlled substance; or
(c) Any out-of-state conviction for an offense that under the laws
of this state would be a felony classified as a drug offense under (a)
of this subsection.
(23) "Earned release" means earned release from confinement as
provided in RCW 9.94A.728.
(24) "Escape" means:
(a) Sexually violent predator escape (RCW 9A.76.115), escape in the
first degree (RCW 9A.76.110), escape in the second degree (RCW
9A.76.120), willful failure to return from furlough (RCW 72.66.060),
willful failure to return from work release (RCW 72.65.070), or willful
failure to be available for supervision by the department while in
community custody (RCW 72.09.310); or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as an escape
under (a) of this subsection.
(25) "Felony traffic offense" means:
(a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW
46.61.522), eluding a police officer (RCW 46.61.024), felony hit-and-run injury-accident (RCW 46.52.020(4)), felony driving while under the
influence of intoxicating liquor or any drug (RCW 46.61.502(6)), or
felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug (RCW 46.61.504(6)); or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a felony
traffic offense under (a) of this subsection.
(26) "Fine" means a specific sum of money ordered by the sentencing
court to be paid by the offender to the court over a specific period of
time.
(27) "First-time offender" means any person who has no prior
convictions for a felony and is eligible for the first-time offender
waiver under RCW 9.94A.650.
(28) "Home detention" means a program of partial confinement
available to offenders wherein the offender is confined in a private
residence subject to electronic surveillance.
(29) "Legal financial obligation" means a sum of money that is
ordered by a superior court of the state of Washington for legal
financial obligations which may include restitution to the victim,
statutorily imposed crime victims' compensation fees as assessed
pursuant to RCW 7.68.035, court costs, county or interlocal drug funds,
court-appointed attorneys' fees, and costs of defense, fines, and any
other financial obligation that is assessed to the offender as a result
of a felony conviction. Upon conviction for vehicular assault while
under the influence of intoxicating liquor or any drug, RCW
46.61.522(1)(b), or vehicular homicide while under the influence of
intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial
obligations may also include payment to a public agency of the expense
of an emergency response to the incident resulting in the conviction,
subject to RCW 38.52.430.
(30) "Minor child" means a biological or adopted child of the
offender who is under age eighteen at the time of the offender's
current offense.
(31) "Most serious offense" means any of the following felonies or
a felony attempt to commit any of the following felonies:
(a) Any felony defined under any law as a class A felony or
criminal solicitation of or criminal conspiracy to commit a class A
felony;
(b) Assault in the second degree;
(c) Assault of a child in the second degree;
(d) Child molestation in the second degree;
(e) Controlled substance homicide;
(f) Extortion in the first degree;
(g) Incest when committed against a child under age fourteen;
(h) Indecent liberties;
(i) Kidnapping in the second degree;
(j) Leading organized crime;
(k) Manslaughter in the first degree;
(l) Manslaughter in the second degree;
(m) Promoting prostitution in the first degree;
(n) Rape in the third degree;
(o) Robbery in the second degree;
(p) Sexual exploitation;
(q) Vehicular assault, when caused by the operation or driving of
a vehicle by a person while under the influence of intoxicating liquor
or any drug or by the operation or driving of a vehicle in a reckless
manner;
(r) Vehicular homicide, when proximately caused by the driving of
any vehicle by any person while under the influence of intoxicating
liquor or any drug as defined by RCW 46.61.502, or by the operation of
any vehicle in a reckless manner;
(s) Any other class B felony offense with a finding of sexual
motivation;
(t) Any other felony with a deadly weapon verdict under RCW
9.94A.825;
(u) Any felony offense in effect at any time prior to December 2,
1993, that is comparable to a most serious offense under this
subsection, or any federal or out-of-state conviction for an offense
that under the laws of this state would be a felony classified as a
most serious offense under this subsection;
(v)(i) A prior conviction for indecent liberties under RCW
9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess.
as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as
it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1)
(a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988;
(ii) A prior conviction for indecent liberties under RCW
9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988,
if: (A) The crime was committed against a child under the age of
fourteen; or (B) the relationship between the victim and perpetrator is
included in the definition of indecent liberties under RCW
9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997,
or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993,
through July 27, 1997;
(w) Any out-of-state conviction for a felony offense with a finding
of sexual motivation if the minimum sentence imposed was ten years or
more; provided that the out-of-state felony offense must be comparable
to a felony offense under Title 9 or 9A RCW and the out-of-state
definition of sexual motivation must be comparable to the definition of
sexual motivation contained in this section.
(32) "Nonviolent offense" means an offense which is not a violent
offense.
(33) "Offender" means a person who has committed a felony
established by state law and is eighteen years of age or older or is
less than eighteen years of age but whose case is under superior court
jurisdiction under RCW 13.04.030 or has been transferred by the
appropriate juvenile court to a criminal court pursuant to RCW
13.40.110. In addition, for the purpose of community custody
requirements under this chapter, "offender" also means a misdemeanor or
gross misdemeanor probationer convicted of an offense included in RCW
9.94A.501(1) and ordered by a superior court to probation under the
supervision of the department pursuant to RCW 9.92.060, 9.95.204, or
9.95.210. Throughout this chapter, the terms "offender" and
"defendant" are used interchangeably.
(34) "Partial confinement" means confinement for no more than one
year in a facility or institution operated or utilized under contract
by the state or any other unit of government, or, if home detention or
work crew has been ordered by the court or home detention has been
ordered by the department as part of the parenting program, in an
approved residence, for a substantial portion of each day with the
balance of the day spent in the community. Partial confinement
includes work release, home detention, work crew, and a combination of
work crew and home detention.
(35) "Pattern of criminal street gang activity" means:
(a) The commission, attempt, conspiracy, or solicitation of, or any
prior juvenile adjudication of or adult conviction of, two or more of
the following criminal street gang-related offenses:
(i) Any "serious violent" felony offense as defined in this
section, excluding Homicide by Abuse (RCW 9A.32.055) and Assault of a
Child 1 (RCW 9A.36.120);
(ii) Any "violent" offense as defined by this section, excluding
Assault of a Child 2 (RCW 9A.36.130);
(iii) Deliver or Possession with Intent to Deliver a Controlled
Substance (chapter 69.50 RCW);
(iv) Any violation of the firearms and dangerous weapon act
(chapter 9.41 RCW);
(v) Theft of a Firearm (RCW 9A.56.300);
(vi) Possession of a Stolen Firearm (RCW 9A.56.310);
(vii) Malicious Harassment (RCW 9A.36.080);
(viii) Harassment where a subsequent violation or deadly threat is
made (RCW 9A.46.020(2)(b));
(ix) Criminal Gang Intimidation (((RCW 9A.46.120))) (section 4 of
this act);
(x) School Criminal Gang Intimidation (RCW 9A.46.120);
(xi) Any felony conviction by a person eighteen years of age or
older with a special finding of involving a juvenile in a felony
offense under RCW 9.94A.833;
(((xi))) (xii) Residential Burglary (RCW 9A.52.025);
(((xii))) (xiii) Burglary 2 (RCW 9A.52.030);
(((xiii))) (xiv) Malicious Mischief 1 (RCW 9A.48.070);
(((xiv))) (xv) Malicious Mischief 2 (RCW 9A.48.080);
(((xv))) (xvi) Theft of a Motor Vehicle (RCW 9A.56.065);
(((xvi))) (xvii) Possession of a Stolen Motor Vehicle (RCW
9A.56.068);
(((xvii))) (xviii) Taking a Motor Vehicle Without Permission 1 (RCW
9A.56.070);
(((xviii))) (xix) Taking a Motor Vehicle Without Permission 2 (RCW
9A.56.075);
(((xix))) (xx) Extortion 1 (RCW 9A.56.120);
(((xx))) (xxi) Extortion 2 (RCW 9A.56.130);
(((xxi))) (xxii) Intimidating a Witness (RCW 9A.72.110);
(((xxii))) (xxiii) Tampering with a Witness (RCW 9A.72.120);
(((xxiii))) (xxiv) Reckless Endangerment (RCW 9A.36.050);
(((xxiv))) (xxv) Coercion (RCW 9A.36.070);
(((xxv))) (xxvi) Harassment (RCW 9A.46.020); or
(((xxvi))) (xxvii) Malicious Mischief 3 (RCW 9A.48.090);
(b) That at least one of the offenses listed in (a) of this
subsection shall have occurred after July 1, 2008;
(c) That the most recent committed offense listed in (a) of this
subsection occurred within three years of a prior offense listed in (a)
of this subsection; and
(d) Of the offenses that were committed in (a) of this subsection,
the offenses occurred on separate occasions or were committed by two or
more persons.
(36) "Persistent offender" is an offender who:
(a)(i) Has been convicted in this state of any felony considered a
most serious offense; and
(ii) Has, before the commission of the offense under (a) of this
subsection, been convicted as an offender on at least two separate
occasions, whether in this state or elsewhere, of felonies that under
the laws of this state would be considered most serious offenses and
would be included in the offender score under RCW 9.94A.525; provided
that of the two or more previous convictions, at least one conviction
must have occurred before the commission of any of the other most
serious offenses for which the offender was previously convicted; or
(b)(i) Has been convicted of: (A) Rape in the first degree, rape
of a child in the first degree, child molestation in the first degree,
rape in the second degree, rape of a child in the second degree, or
indecent liberties by forcible compulsion; (B) any of the following
offenses with a finding of sexual motivation: Murder in the first
degree, murder in the second degree, homicide by abuse, kidnapping in
the first degree, kidnapping in the second degree, assault in the first
degree, assault in the second degree, assault of a child in the first
degree, assault of a child in the second degree, or burglary in the
first degree; or (C) an attempt to commit any crime listed in this
subsection (36)(b)(i); and
(ii) Has, before the commission of the offense under (b)(i) of this
subsection, been convicted as an offender on at least one occasion,
whether in this state or elsewhere, of an offense listed in (b)(i) of
this subsection or any federal or out-of-state offense or offense under
prior Washington law that is comparable to the offenses listed in
(b)(i) of this subsection. A conviction for rape of a child in the
first degree constitutes a conviction under (b)(i) of this subsection
only when the offender was sixteen years of age or older when the
offender committed the offense. A conviction for rape of a child in
the second degree constitutes a conviction under (b)(i) of this
subsection only when the offender was eighteen years of age or older
when the offender committed the offense.
(37) "Predatory" means: (a) The perpetrator of the crime was a
stranger to the victim, as defined in this section; (b) the perpetrator
established or promoted a relationship with the victim prior to the
offense and the victimization of the victim was a significant reason
the perpetrator established or promoted the relationship; or (c) the
perpetrator was: (i) A teacher, counselor, volunteer, or other person
in authority in any public or private school and the victim was a
student of the school under his or her authority or supervision. For
purposes of this subsection, "school" does not include home-based
instruction as defined in RCW 28A.225.010; (ii) a coach, trainer,
volunteer, or other person in authority in any recreational activity
and the victim was a participant in the activity under his or her
authority or supervision; (iii) a pastor, elder, volunteer, or other
person in authority in any church or religious organization, and the
victim was a member or participant of the organization under his or her
authority; or (iv) a teacher, counselor, volunteer, or other person in
authority providing home-based instruction and the victim was a student
receiving home-based instruction while under his or her authority or
supervision. For purposes of this subsection: (A) "Home-based
instruction" has the same meaning as defined in RCW 28A.225.010; and
(B) "teacher, counselor, volunteer, or other person in authority" does
not include the parent or legal guardian of the victim.
(38) "Private school" means a school regulated under chapter
28A.195 or 28A.205 RCW.
(39) "Public school" has the same meaning as in RCW 28A.150.010.
(40) "Repetitive domestic violence offense" means any:
(a)(i) Domestic violence assault that is not a felony offense under
RCW 9A.36.041;
(ii) Domestic violence violation of a no-contact order under
chapter 10.99 RCW that is not a felony offense;
(iii) Domestic violence violation of a protection order under
chapter 26.09, 26.10, 26.26, or 26.50 RCW that is not a felony offense;
(iv) Domestic violence harassment offense under RCW 9A.46.020 that
is not a felony offense; or
(v) Domestic violence stalking offense under RCW 9A.46.110 that is
not a felony offense; or
(b) Any federal, out-of-state, tribal court, military, county, or
municipal conviction for an offense that under the laws of this state
would be classified as a repetitive domestic violence offense under (a)
of this subsection.
(41) "Restitution" means a specific sum of money ordered by the
sentencing court to be paid by the offender to the court over a
specified period of time as payment of damages. The sum may include
both public and private costs.
(42) "Risk assessment" means the application of the risk instrument
recommended to the department by the Washington state institute for
public policy as having the highest degree of predictive accuracy for
assessing an offender's risk of reoffense.
(43) "Serious traffic offense" means:
(a) Nonfelony driving while under the influence of intoxicating
liquor or any drug (RCW 46.61.502), nonfelony actual physical control
while under the influence of intoxicating liquor or any drug (RCW
46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an
attended vehicle (RCW 46.52.020(5)); or
(b) Any federal, out-of-state, county, or municipal conviction for
an offense that under the laws of this state would be classified as a
serious traffic offense under (a) of this subsection.
(44) "Serious violent offense" is a subcategory of violent offense
and means:
(a)(i) Murder in the first degree;
(ii) Homicide by abuse;
(iii) Murder in the second degree;
(iv) Manslaughter in the first degree;
(v) Assault in the first degree;
(vi) Kidnapping in the first degree;
(vii) Rape in the first degree;
(viii) Assault of a child in the first degree; or
(ix) An attempt, criminal solicitation, or criminal conspiracy to
commit one of these felonies; or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a serious
violent offense under (a) of this subsection.
(45) "Sex offense" means:
(a)(i) A felony that is a violation of chapter 9A.44 RCW other than
RCW 9A.44.132;
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation of chapter 9.68A RCW other than
RCW 9.68A.080;
(iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt,
criminal solicitation, or criminal conspiracy to commit such crimes; or
(v) A felony violation of RCW 9A.44.132(1) (failure to register) if
the person has been convicted of violating RCW 9A.44.132(1) (failure to
register) on at least one prior occasion;
(b) Any conviction for a felony offense in effect at any time prior
to July 1, 1976, that is comparable to a felony classified as a sex
offense in (a) of this subsection;
(c) A felony with a finding of sexual motivation under RCW
9.94A.835 or 13.40.135; or
(d) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a sex
offense under (a) of this subsection.
(46) "Sexual motivation" means that one of the purposes for which
the defendant committed the crime was for the purpose of his or her
sexual gratification.
(47) "Standard sentence range" means the sentencing court's
discretionary range in imposing a nonappealable sentence.
(48) "Statutory maximum sentence" means the maximum length of time
for which an offender may be confined as punishment for a crime as
prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining the
crime, or other statute defining the maximum penalty for a crime.
(49) "Stranger" means that the victim did not know the offender
twenty-four hours before the offense.
(50) "Total confinement" means confinement inside the physical
boundaries of a facility or institution operated or utilized under
contract by the state or any other unit of government for twenty-four
hours a day, or pursuant to RCW 72.64.050 and 72.64.060.
(51) "Transition training" means written and verbal instructions
and assistance provided by the department to the offender during the
two weeks prior to the offender's successful completion of the work
ethic camp program. The transition training shall include instructions
in the offender's requirements and obligations during the offender's
period of community custody.
(52) "Victim" means any person who has sustained emotional,
psychological, physical, or financial injury to person or property as
a direct result of the crime charged.
(53) "Violent offense" means:
(a) Any of the following felonies:
(i) Any felony defined under any law as a class A felony or an
attempt to commit a class A felony;
(ii) Criminal solicitation of or criminal conspiracy to commit a
class A felony;
(iii) Manslaughter in the first degree;
(iv) Manslaughter in the second degree;
(v) Indecent liberties if committed by forcible compulsion;
(vi) Kidnapping in the second degree;
(vii) Arson in the second degree;
(viii) Assault in the second degree;
(ix) Assault of a child in the second degree;
(x) Extortion in the first degree;
(xi) Robbery in the second degree;
(xii) Drive-by shooting;
(xiii) Vehicular assault, when caused by the operation or driving
of a vehicle by a person while under the influence of intoxicating
liquor or any drug or by the operation or driving of a vehicle in a
reckless manner; and
(xiv) Vehicular homicide, when proximately caused by the driving of
any vehicle by any person while under the influence of intoxicating
liquor or any drug as defined by RCW 46.61.502, or by the operation of
any vehicle in a reckless manner;
(b) Any conviction for a felony offense in effect at any time prior
to July 1, 1976, that is comparable to a felony classified as a violent
offense in (a) of this subsection; and
(c) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a violent
offense under (a) or (b) of this subsection.
(54) "Work crew" means a program of partial confinement consisting
of civic improvement tasks for the benefit of the community that
complies with RCW 9.94A.725.
(55) "Work ethic camp" means an alternative incarceration program
as provided in RCW 9.94A.690 designed to reduce recidivism and lower
the cost of corrections by requiring offenders to complete a
comprehensive array of real-world job and vocational experiences,
character-building work ethics training, life management skills
development, substance abuse rehabilitation, counseling, literacy
training, and basic adult education.
(56) "Work release" means a program of partial confinement
available to offenders who are employed or engaged as a student in a
regular course of study at school.
NEW SECTION. Sec. 12 (1) Every piece of real property, building,
or unit within a building upon or within which three or more unrelated
criminal street gang-related offenses, as defined in RCW 9.94A.030,
have occurred in the prior year is a nuisance which may be enjoined,
abated, and prevented, whether it is a public or private nuisance.
(2) As used in this chapter:
(a) "Building" includes, but is not limited to, any structure or
any separate part or portion thereof, whether permanent or not, or the
ground itself.
(b) "Unrelated" means offenses that are temporally separate and
distinct from one another and not part of the same criminal incident.
It does not require that different perpetrators commit the offenses.
Offenses that occur in retaliation for or in response to prior crimes
are unrelated to those prior crimes for purposes of this chapter.
NEW SECTION. Sec. 13 (1) The action provided for in this chapter
may be brought by a county or municipal government entity in the
superior court in the county in which the property is located. The
action shall be commenced by the filing of a complaint alleging the
facts constituting the nuisance.
(2) Any complaint filed under this chapter shall be verified or
accompanied by affidavit. For purposes of showing that the owner of
the property or his or her agent has had an opportunity to abate the
nuisance, the affidavit shall contain a description of all attempts by
the applicant to notify and locate the owner of the property or the
owner's agent.
(3) In addition, the affidavit shall describe in detail the adverse
impact associated with the property on the surrounding neighborhood.
"Adverse impact" includes, but is not limited to, the following: Any
search warrants served on the property; investigative purchases of
controlled substances on or near the property by law enforcement or
their agents; arrests of persons who frequent the property for criminal
street gang-related offenses; the number of complaints made to law
enforcement of criminal street gang-related activity associated with
the property; and the existence of criminal street gang-related
graffiti within a one-eighth mile distance from the property.
(4) After filing the complaint, the court shall grant a hearing
within three business days after the filing.
(5) Any action filed under this chapter does not prevent county and
municipal governments from instituting similar abatement actions
pursuant to local ordinances.
NEW SECTION. Sec. 14 (1) Upon application for a temporary
restraining order or preliminary injunction, the court may, upon a
showing of good cause, issue an ex parte restraining order or
preliminary injunction, preventing the defendant and all other persons
from removing or in any manner interfering with the personal property
and contents of the place where the nuisance is alleged to exist and
may grant such preliminary equitable relief as is necessary to prevent
the continuance or recurrence of the nuisance pending final resolution
of the matter on the merits. However, pending the decision, the stock
in trade may not be so restrained, but an inventory and full accounting
of all business transactions may be required.
(2) The restraining order or preliminary injunction may be served
by handing to and leaving a copy with any person in charge of the place
or residing in the place, or by posting a copy in a conspicuous place
at or upon one or more of the principal doors or entrances to the
place, or by both delivery and posting. The officer serving the order
or injunction shall forthwith make and return into court an inventory
of the personal property and contents situated in and used in
conducting or maintaining the nuisance.
(3) Any violation of the order or injunction is a contempt of
court, and where such order or injunction is posted, mutilation or
removal thereof while the same remains in force is a contempt of court
if such posted order or injunction contains a notice to that effect.
NEW SECTION. Sec. 15 An action under this chapter shall have
precedence over all other actions, except prior matters of the same
character, criminal proceedings, election contests, hearings on
temporary restraining orders and injunctions, and actions to forfeit
vehicles used in violation of the uniform controlled substances act.
NEW SECTION. Sec. 16 A copy of the complaint, together with a
notice of the time and place of the hearing of the action, shall be
served upon the defendant at least one business day before the hearing.
Service may also be made by posting the papers in the same manner as is
provided for in section 14 of this act. If the hearing is then
continued at the request of any defendant, all temporary orders and
injunctions shall be extended as a matter of course.
NEW SECTION. Sec. 17 (1) Except as provided in subsection (2) of
this section, if the existence of the nuisance is established in the
action, an order of abatement shall be entered as part of the final
judgment in the case. The plaintiff's costs in the action, including
those of abatement, are a lien upon the real property, building, or
unit within a building. The lien is enforceable and collectible by
execution issued by order of the court.
(2) If the court finds and concludes that the owner of the real
property, building, or unit within a building: (a) Had no knowledge of
the existence of the nuisance or has been making reasonable efforts to
abate the nuisance; (b) has not been guilty of any contempt of court in
the proceedings; and (c) will immediately abate any such nuisance that
may exist at the real property, building, or unit within a building and
prevent it from being a nuisance within a period of one year
thereafter, the court shall, if satisfied of the owner's good faith,
order the real property, building, or unit within a building to be
delivered to the owner, and no order of abatement shall be entered. If
an order of abatement has been entered and the owner subsequently meets
the requirements of this subsection, the order of abatement shall be
canceled.
NEW SECTION. Sec. 18 Any final order of abatement issued under
this chapter may:
(1) Provide for the immediate closure of the real property,
building, or unit within a building against its use for any purpose,
and for keeping it closed for a period of one year unless released
sooner as provided in this chapter; and
(2) State that while the order of abatement remains in effect the
building or unit within a building shall remain in the custody of the
court; or
(3) Provide for any other relief necessary and proper under the
circumstances.
NEW SECTION. Sec. 19 An intentional violation of a restraining
order, preliminary injunction, or order of abatement under this chapter
is a contempt of court as provided in chapter 7.21 RCW.
NEW SECTION. Sec. 20 Whenever the owner of real property,
building, or unit within a building upon which the act or acts
constituting the contempt have been committed, or the owner of any
interest in the real property, building, or unit within a building has
been found in contempt of court, and fined in any proceedings under
this chapter, the fine is a lien upon the real property, building, or
unit within a building to the extent of the owner's interest. The lien
is enforceable and collectible by execution issued by order of the
court.
NEW SECTION. Sec. 21 The abatement of a nuisance under this
chapter does not prejudice the right of any person to recover damages
for its past existence.
NEW SECTION. Sec. 22 The legislature finds that the presence of
criminal street gangs and the gang-related crimes they commit is
increasing in Washington. In communities where criminal street gangs
have become established, the gangs' criminal activities have become a
blight on the community, endangering the physical safety of the
citizens living there, negatively affecting the communities' economic
vitality, and reducing the citizens' right to fully enjoy their liberty
and property rights. The legislature further finds that the government
has a compelling interest in protecting the physical safety and the
property and liberty interests of its citizens. Finally, the
legislature finds that these compelling interests will be served by
permitting a local or municipal government to apply for a protection
order that is narrowly tailored to a specific area where a gang and its
individual members' have become a blight on the community in order to
break the gang's hold over that area.
NEW SECTION. Sec. 23 (1) "Criminal street gang" has the same
meaning as in RCW 9.94A.030.
(2) "Criminal street gang associate or member" has the same meaning
as in RCW 9.94A.030. However, in determining whether a person is a
criminal street gang associate or member, the court may also consider
all other relevant evidence including, but not limited to, admissions
by a person that he or she is a member or associate of a criminal
street gang.
(3) "Protection zone" means a specific geographic area within which
the provisions of the injunctive relief sought and ordered by the court
are operable and enforceable.
NEW SECTION. Sec. 24 An action seeking a protection order
against a criminal street gang and associates or members thereof may be
brought by the county prosecuting attorney or municipal attorney in any
county or municipality where the protection zone sought pursuant to the
action is located.
NEW SECTION. Sec. 25 (1) A party seeking a protection order
under this chapter may file a petition seeking such relief in superior
court in the county in which the protection zone sought pursuant to the
action is located.
(2) The petition must:
(a) Be supported with an affidavit providing the factual bases
supporting the issuance of a protection order including, but not
limited to, the factual bases of support for the issuance of the order
as to each respondent whose activities and behavior the petition seeks
to enjoin;
(b) Contain a specific description of the protection zone within
which the petitioner seeks to have the protection order operate; and
(c) Contain a specific list of the activities in the protection
zone sought to be enjoined.
(3) The court shall order a hearing on the petition, which shall be
held not later than fourteen days after the petition is filed.
(4) Persons whose activities and behavior the protection order
would apply must be personally served with a copy of the petition,
notice of the date and time of the hearing, and notice that they are
entitled to appear in person and respond to the allegations contained
in the petition not less than five court days before the hearing. If
timely personal service cannot be made, the court shall set a new
hearing date and shall either require additional attempts at obtaining
personal service or permit service by publication as provided by RCW
10.14.085. If the court permits service by publication, the court
shall set the hearing date not later than twenty-four days from the
date the court enters the order permitting service by publication.
(5) At the hearing, the burden is on the petitioner to prove by
clear and convincing evidence that:
(a) A criminal street gang exists in a specified geographic area;
(b) A substantial amount of the criminal street gang's activities
have occurred in that specified geographic area; and
(c) The named respondent is a member or associate of that criminal
street gang.
NEW SECTION. Sec. 26 If the court finds the petitioner has
satisfied his burden under section 25(5) of this act, the court shall
enter an order:
(1) Specifically describing the geographic boundaries within which
the protection order will apply;
(2) Providing for all relief necessary and proper under the
circumstances including, but not limited to, an order that the
respondent which the court has found to be a criminal street gang
associate or member shall not:
(a) Associate or communicate directly or indirectly with any other
person found by the court to be a criminal street gang associate or
member;
(b) Engage in any intimidation of any person;
(c) Possess firearms, imitation firearms, or dangerous weapons;
(d) Possess or consume drugs or alcohol;
(e) Trespass;
(f) Engage in gang-related graffiti or possess graffiti tools;
(g) Forcibly recruit any person into the criminal street gang or
prevent any criminal street gang associate or member from leaving the
criminal street gang;
(h) Violate any law;
(i) Violate any curfew set by the court;
(j) Go on the grounds of any named public and private schools, not
including home-based instruction, as defined in RCW 28A.225.010;
(k) Go to any other designated locations;
(l) Directly or indirectly contact minors going to and from
schools;
(m) Wear gang clothing in public; and
(n) Directly or indirectly contact specified individuals such as
persons on probation or parole;
(3) Providing the expiration date of the order, which shall be one
year from the date the order is entered;
(4) Providing that a respondent who knows of the order may be found
in contempt of court as provided in chapter 7.21 RCW and subject to the
penalties therein, including but not limited to:
(a) For persons over eighteen years of age who are found to have
willfully violated the order, a fine of not more than five thousand
dollars or imprisonment for not more than one year, or both; or
(b) For persons less than eighteen years of age who are found to
have willfully violated the order, commitment of the person to juvenile
detention for a period of time not to exceed seven days;
(5) With respect to any condition imposed pursuant to subsection
(1)(a), (j), (k), (l), and (n) of this section, the condition shall not
apply to enjoin a person from:
(a) Communicating with another criminal street gang associate or
member who:
(i) Resides with the person and they are related by blood or
marriage or have a dating relationship;
(ii) Is married to the person;
(iii) Has a child with the person, regardless of whether they have
been married; or
(iv) Has a biological or legal parent-child, grandparent-child, or
sibling relationship with the person;
(b) Communicating with a minor or another criminal street gang
associate or member on school grounds where the communication is
necessary for legitimate educational purposes;
(c) Communicating with another criminal street gang associate or
member on the grounds of a church, synagogue, mosque, or similar
property where the communication is necessary for religious purposes;
(d) Going on the grounds of any public or private school, not
including home-based instruction, where the visit is for legitimate
educational purposes; or
(e) Going on the grounds of any church, synagogue, mosque, or
similar property where the visit is for religious purposes.
NEW SECTION. Sec. 27 (1) If the court issues a protection order
under this chapter, all persons who are subject to the court's order
must be personally served with a copy of the order. However, if the
order issued by the court recites that the respondent appeared in
person before the court, the necessity for further service is waived
and proof of service of that order is not necessary.
(2) If personal service cannot be made, the petitioner may apply to
the court for permission to serve a copy of the order on the respondent
by publication consistent with the procedures found in RCW 10.14.085.
NEW SECTION. Sec. 28 (1) Any respondent who willfully disobeys
any protection order issued pursuant to this chapter shall be guilty of
a gross misdemeanor.
(2) However, the sentence imposed for any willful violation of such
an order shall include at least seven days in jail for an adult or
seven days in detention for a juvenile if the violation occurs:
(a) In a school;
(b) On a school bus;
(c) Within three hundred feet of a school bus route stop designated
by the school district;
(d) Within one thousand feet of the perimeter of the school
grounds; or
(e) In a public park.
NEW SECTION. Sec. 29 (1) An order issued pursuant to this
chapter shall be effective for one year.
(2) The petitioner may reapply for a continuation of the order by
filing a new petition no more than thirty days prior to the expiration
of the current order. However, the petition must comply in all
respects with the procedures governing the issuance of the initial
order found in section 25 of this act.
NEW SECTION. Sec. 30 (1) The petitioner or any person to whom an
order issued pursuant to this chapter applies may petition the court to
modify the terms and conditions of the order. However, the court may
only consider such a motion where all parties which may be affected by
the modifications are provided notice consistent with the provisions of
this chapter.
(2) Where the requested modification is to exempt from the
provisions of the order a particular respondent, notice of the motion
and the contents thereof need not be served on other respondents but
only the petitioner and the respondent who seeks exemption from the
order.
(3) The court may grant any requested modifications of the terms
and conditions of the order that it deems necessary and proper under
the circumstances and considering the evidence presented at the hearing
at which the order was issued, as well as the evidence presented at the
modification hearing.
NEW SECTION. Sec. 31 Nothing in this chapter shall preclude a
petitioner's right to utilize other existing civil remedies.
Sec. 32 RCW 70.41.440 and 2009 c 359 s 2 are each amended to read
as follows:
(1) A hospital shall report to a local law enforcement authority as
soon as reasonably possible, taking into consideration a patient's
emergency care needs, when the hospital provides treatment for a bullet
wound, gunshot wound, or stab wound to a patient ((who is
unconscious)). A hospital shall establish a written policy to identify
the person or persons responsible for making the report.
(2) The report required under subsection (1) of this section must
include the following information, if known:
(a) The name, residence, sex, and age of the patient;
(b) Whether the patient has received a bullet wound, gunshot wound,
or stab wound; and
(c) The name of the health care provider providing treatment for
the bullet wound, gunshot wound, or stab wound.
(3) Nothing in this section shall limit a person's duty to report
under RCW 26.44.030 or 74.34.035.
(4) Any bullets, clothing, or other foreign objects that are
removed from a patient for whom a hospital is required to make a report
pursuant to subsection (1) of this section shall be preserved and kept
in custody in such a way that the identity and integrity thereof are
reasonably maintained until the bullets, clothing, or other foreign
objects are taken into possession by a law enforcement authority or the
hospital's normal period for retention of such items expires, whichever
occurs first.
(5) Any hospital or person who in good faith, and without gross
negligence or willful or wanton misconduct, makes a report required by
this section, cooperates in an investigation or criminal or judicial
proceeding related to such report, or maintains bullets, clothing, or
other foreign objects, or provides such items to a law enforcement
authority as described in subsection (4) of this section, is immune
from civil or criminal liability or professional licensure action
arising out of or related to the report and its contents or the absence
of information in the report, cooperation in an investigation or
criminal or judicial proceeding, and the maintenance or provision to a
law enforcement authority of bullets, clothing, or other foreign
objects under subsection (4) of this section.
(6) The physician-patient privilege described in RCW 5.60.060(4),
the registered nurse-patient privilege described in RCW 5.62.020, and
any other health care provider-patient privilege created or recognized
by law are not a basis for excluding as evidence in any criminal
proceeding any report, or information contained in a report made under
this section.
(7) All reporting, preservation, or other requirements of this
section are secondary to patient care needs and may be delayed or
compromised without penalty to the hospital or person required to
fulfill the requirements of this section.
NEW SECTION. Sec. 33 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 34 Sections 12 through 21 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 35 Sections 22 through 31 of this act
constitute a new chapter in Title