Category Archives: Assault

Is Spanking A Child Legal?

Image result for spanking a child
 Every so often, I have Clients who are parents accused of Criminal Mistreatment, Child Abuse/Neglect, Assault in the Fourth Degree  or other crimes involving the abuse of children.
As a parent, you expect decisions about your own child’s well-being to be up to you.  Can the law interfere with your ability to discipline your child?  Can the law forbid you from spanking your child?

In Washington, parents are entitled to raise and reasonably discipline their children, so long as that discipline does not interfere with the children’s health, welfare, or safety.  Parents may reasonably use corporal punishment (like spanking) to discipline.

But what does the law in Washington really mean by “reasonably discipline”?  Under Washington law, the physical discipline of a child is not against the law when it is “reasonable and moderate.”  But what does “reasonable and moderate” mean?  Couldn’t those broad guidelines mean different things to different people?

To provide further guidance, Washington law elaborates that physical discipline is reasonable and moderate when it is “inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child.”  Physical punishment should be in direct response to a child’s disobedience or acting-out, rather than a blanket response to general bad behavior.  Any person besides a parent, teacher, or guardian must be authorized in advance by the child’s parent or guardian to use reasonable, moderate force to correct or restrain the child when it is appropriate.

Washington’s law also provides a list of actions that are presumed to be unreasonable methods of disciplining a child, including:

  • throwing, kicking, burning, or cutting
  • striking a child with a closed fist
  • shaking a child under age three
  • choking or otherwise interfering with a child’s breathing
  • threatening a child with a deadly weapon
  • any other act that is likely to cause bodily harm greater than transient pain or minor temporary marks

So if we know what going way too far looks like, but we also know that physical punishment is okay when it’s reasonably tailored to correct a child’s behavior, where is the line between discipline and abuse, and how can parents avoid crossing it?

In Washington, child “abuse” is defined as “injury of a child by any person under circumstances which cause harm to the child’s health, welfare, or safety.”  When potential child abuse cases come before a court, the court will evaluate the child’s age, size, and health condition, as well as the location of the child’s injury and the surrounding circumstances, to help determine whether the acts at issue were reasonable discipline or abuse.

So ultimately, yes, parents, teachers and guardians are legally allowed to spank children for purposes of restraining or correcting the child. However, you must keep in mind (both for your sake as well as your child’s) that physical punishment should always be:

  • reasonable and moderate
  • inflicted by a parent, guardian, teacher, or someone with advance parental permission
  • intended to correct or restrain the child

If you find yourself facing child abuse allegations in response to perceptions about how you discipline your children, please contact attorney Alexander F. Ransom.  He is a compassionate, attentive, and experienced advocate who help parents in these difficult circumstances.

Marijuana and Violent Crime

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The Federal Bureau of Investigation reports violent crime rate in Washington has declined since voters here legalized recreational marijuana use in November 2012. The FBI numbers are based on crimes reported to law enforcement agencies.

2010: 313.5 offenses per 100,000 city inhabitants

2011: 294.6 offenses per 100,000 city inhabitants

2012: 295.6 offenses per 100,000 city inhabitants

2013: 289.1 offenses per 100,000 city inhabitants

2014: 285.8 offenses per 100,000 city inhabitants

2015: 284.4 offenses per 100,000 city inhabitants

The state’s rate of violent crime in 2015, the most recent year of data available, also was substantially lower than the national average, according to the FBI. Nationally, the estimated rate of violent crime was 372.6 per 100,000 inhabitants in 2015.

Affidavits of Prejudice

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In State v. Lile, the WA Supreme Court held that a judge’s granting a continuance is a discretionary ruling which effectively negates any affidavits of prejudice which the parties may file against  that judge afterward.

BACKGROUND FACTS

One evening in 2013, two intoxicated groups crossed paths on a Bellingham sidewalk. United States Navy sailor Lile (the Defendant) and his companions were walking in one direction on the sidewalk and another group moved toward them in the opposite direction. Lile’s group had recently left a party in which Lile had admittedly consumed alcohol over a period of about five hours.

Unfortunately, Mr. Lile’s group had negative interactions with the other group of individuals. This resulted in Liles being striking someone in the face, fracturing their jaw, knocking out some teeth, concussing the victim and rendering them briefly unconscious. Lile was pulled away by one of his companions. A nearby police officer witnessed the fracas and approached Lile, who ran away.

A chase ensued. Officer Woodward jumped onto Lile’s back. Lile struggled, striking Officer Woodward in the face. Officer Josh McKissick arrived shortly thereafter and assisted Officer Woodward in finally subduing and arresting Lile. Ultimately, Lile was charged with Assault in the Fourth Degree, Assault in the Third Degree, Assault in the Second Degree and Resisting Arrest under numerous counts.

CRIMINAL PROCEEDINGS & AFFIDAVIT OF PREJUDICE

The matter was set for a January 22, 2014 pretrial status hearing. During the hearing, the judge orally granted a 1-week continuance, issuing a written order to that effect February 3, 2014.

On February 4, 2014, Lile’s attorney submitted a motion to sever, asking the court to order separate trials for Lile’s alleged assaults on Millman and Rowles from his assault on Officer Woodward.

During the February 6, 2014 status hearing, before Judge Uhrig ruled on the motion to sever, Lile’s attorney informed Judge Uhrig that Lile had filed an affidavit of prejudice against him.

Affidavit of Prejudice

For those who don’t know, an affidavit of prejudice (AOP) is a statutory pleading/device which gives either the Prosecutor of the Defense Attorney opportunity to dismiss/excuse a particular judge from deciding any issues on a pending criminal case. The AOP must be filed as soon as possible; preferably before the particular judge decides any issues on the case. Typically, AOP’s are not honored if they are filed after the judge has already made discretionary rulings on the case.

The Prosecutor asserted the affidavit was not timely because the judge’s ruling on the January 22, 2014 continuance motion preceded the affidavit and was discretionary. The judge agreed with the Prosecutor, indicating that the continuance ruling was indeed discretionary; as he had denied such requests in the past. As a result, he ruled the AOP untimely. He then denied Lile’s motion to sever. Lile did not later renew the motion to sever, an option provided by CrR 4.4(a)(2).

Months later, Lile’s case proceeded to jury trial, where a different judge handled the proceedings. Lile was convicted on all charges. Lile appealed to the WA Court of Appeals on a number of issues, however, the Court of Appeals affirmed his conviction. Afterward, Lile appealed to the WA Supreme Court.

ISSUE

For purposes of this blog entry, we focus on the issue of whether the joint continuance motion  was discretionary, making Lile’ s affidavit of prejudice untimely and leaving the original judge qualified to hear the motion to sever.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court decided that a ruling to continue a case is, in fact, a discretionary ruling. For those who don’t know, a discretionary ruling is an official, substantive decision from the judge using reason and judgment to choose from among acceptable alternatives.

The court reasoned that under an AOP, a party has the right to disqualify a trial judge for prejudice, without substantiating the claim, if the requirements of the statute are met. The statute says, “no Judge of a superior court … shall sit to hear or try any action or proceeding when it shall be established … that said judge is prejudiced against any party or attorney.”

To establish prejudice, a party can file a motion supported by an affidavit indicating
that the party cannot, or believes that it cannot, have a fair and impartial trial before
such judge. In order to be timely, however, an AOP must be made ‘before the judge presiding has made any order or ruling involving discretion. The statute also provides that the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the accused in a criminal action or the fixing of bail shall not be construed as a ruling or order involving discretion.

The Court reasoned that a trial court’s ruling on an opposed continuance is discretionary because the court must consider various factors; such as diligence, materiality, due process, a need for orderly procedure, and the possible impact of the result on the trial.

Furthermore, the WA Supreme Court held that the judge’s continuance ruling was discretionary. It reasoned that continuances, even when unopposed, have a significant impact on the efficient operation of our courts and the rights of the parties, particularly in criminal proceedings. Correspondingly, CrR 3 .3(h) gives trial courts discretion in granting them. Here, the continuance ruling here impacted the “duties and functions of the court, and therefore involved discretion.

In conclusion, the WA Supreme Court held that the judge’s continuance ruling was discretionary; which made him qualified to rule on Lile’ s severance motion.

JUDGE MADSEN’S CONCURRING OPINION

Although Judge Madsen concurred with the opinion, her reasoning differed. She did, in fact, find that the judge did not make a discretionary ruling when granting the continuance.

She reasoned that whether an order is discretionary is not about the form of the motion, but about whether there was something substantive related to the case underlying the motion.

“In the present case, I would find that the continuance ruling was not discretionary for purposes of RCW 4.12.050 because the court’s ruling indicated no predisposition on the issues in the case,” she said. She elaborated that, admittedly, granting or denying a motion necessarily involves some type of discretion, but the same is true of the other preliminary matters that the majority distinguishes. “Arranging the calendar, setting a matter for hearing or trial, arraigning an accused, and setting an amount for bail are all discretionary acts in the sense that the judge has the general freedom to make those decisions,” she said. However, the legislature has dictated that these acts will not be construed as rulings involving discretion within the meaning of RCW 4.12.050(1).

“The same is true of the agreed continuance in this case. The motion occurred pretrial and was unopposed. It was a calendaring matter, not a substantive ruling on an issue in the case.”

With that, Judge Madsen held that the judge erred in denying Lile’ s affidavit of prejudice.

My opinion? I must agree with Judge Madsen’s concurrence. Like her, I believe that arranging the calendar, setting a matter for hearing or trial, arraigning an accused, and setting an amount for bail can be seen as discretionary, however, the legislature has dictated that these acts will not be construed as rulings involving discretion within the meaning of the statute.

At any rate, the Court’s decision in this case highlights the fact that AOP’s must be filed by Defense Counsel as soon as possible.

 

DV Protection Orders

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In Rodriquez v. Zavala, the WA Supreme Court held that a person does not have to be a victim of domestic violence (DV) in order to be included in a DV protection order.

BACKGROUND FACTS

Esmeralda Rodriguez and Luis Zavala shared a history of domestic violence. Over the course of their relationship, Zavala repeatedly physically and emotionally assaulted Rodriguez. He shoved Rodriguez to the ground while she was pregnant with their infant child L.Z., attempted to smother her with a pillow, blamed her for his failings in life, pulled a knife on her and promised to cut her into tiny pieces, threatened to kidnap L.Z., and said he would do something so horrible to Rodriguez’s daughters from a prior relationship that she would want to kill herself. He threatened to kill her, her children, and himself. Zavala tried to control Rodriguez. He restricted her communication with friends and family members, and he appeared uninvited wherever she was when she failed to return his phone calls.

Zavala’s history of violence against Rodriguez reached its peak one day in June 2015 after the couple had separated. At 2:00 a.m. that morning and in violation of a previous restraining order, Zavala pounded on Rodriguez’s door, threatening to break windows unless she let him in. Rodriguez went to the door and opened it enough to tell Zavala to leave. Zavala pushed past Rodriguez, cornered her, and began choking her. He told Rodriguez he was going to “end what he started.” The police arrived and arrested Zavala.

A few days later, Rodriguez went to the court and petitioned for a domestic violence protection order for herself and her children, including L.Z. In her petition, Rodriguez described the assault and Zavala’s history of violence. The court issued a temporary order pending a full hearing. The temporary order restrained Zavala from contacting Rodriguez and all four children.

At the later protection order hearing, Zavala appeared. Rodriguez discussed the choking incident and told the court that L.Z. had been asleep in another room during the most recent attack. She feared Zavala would take their son based on previous threats. Zavala admitted to coming to the house because he wanted to see L.Z., but denied Rodriguez’s allegations of abuse.

The trial court issued a protective order for Rodriguez and her daughters, but excluded L.Z., explaining that the boy was not “present” during the assault or threatened at all. According to the trial judge, “L.Z. wasn’t involved in any of this.” The order was effective for one year, expiring on June 26, 2016.

Rodriguez appealed. Among other things, she argued that her son should have been included in the final protection order based on her fear that Zavala would hurt L.Z. The Court of Appeals affirmed, finding that a petitioner may seek relief based only on her fear of imminent harm to herself. The WA Supreme Court granted review.

ISSUE

Whether the definition of “domestic violence” in chapter 26.50 RCW contemplates a parent’s fear of harm for a child at the hands of another parent.

COURT’S ANALYSIS AND CONCLUSION

The Court reasoned that in order to commence a domestic violence protection order action, a person must file a petition “alleging that the person has been the victim of domestic violence committed by the respondent. Under the statute, “Domestic violence” is defined as the following:

“(a) physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member.”

The Court further explained that The Court of Appeals’s interpretation of the statute was unnecessarily narrow. “By relating the fear of harm back to the petitioner, it ignores the final prepositional phrase ‘between family or household members.'” Consequently, because domestic violence includes the infliction of fear of harm between family members generally, the definition includes a mother’s fear of harm to her child by that child’s father.

Also, the context of the statute, related provisions, and statutory scheme as a whole also indicate that “domestic violence” was intended to cover more than merely a petitioner and a perpetrator:

“This definition reflects the legislative recognition that violence in the home encompasses many different familial and household roles; violence does not distinguish on the basis of relationship.”

Moreover, the Court reasoned that a person does not have to be a victim of domestic violence to be included in a protection order. RCW 26.50.060 gives trial courts substantial discretion to protect victims and their loved ones. The provision explains that a trial court may bar a respondent from going to the “day care or school of a child” or having “any contact with the victim of domestic violence or the victim’s children or members of the victim’s household” and that, notably, the court may order “other relief as it deems necessary for the protection of the petitioner and other family or household members sought to be protected.”

Additionally, the Court said that the legislative intent of the Domestic Violence Prevention Act (DVPA) further supports that “domestic violence” includes a petitioner’s fear of harm between family members.

Finally, the Court explained that the plain language of RCW 26.50.010(3), related DV statutes, and the statutory scheme show that the definition of “domestic violence” allows a petitioner to seek relief based on a general fear of harm between family members. It said that deciding that “domestic violence” means the fear possessed only by the one seeking protection not only conflicts with the statute’s plain language, it would leave children unprotected:

“Even more acutely, such an interpretation would fail to protect infants and developmentally delayed children. These are the most vulnerable of our vulnerable populations. Excluding these children from protection orders because they fail to or cannot show fear of a harm they may not understand subjects them to violence the legislature expressly intended to prevent.”

Accordingly, the WA Supreme Court reversed the Court of Appeals because Zavala’s violent threats against L.Z. were “domestic violence” under the plain language of the statute, and Rodriguez properly petitioned for a protection order on L.Z.’s behalf based on her reasonable fear for him.

Prostitution Evidence Admitted During Defendant’s Assault Trial.

Image result for abused prostitutes

In State v. Woods, the WA Court of Appeals held that evidence that the defendant prostituted the victim was properly admitted in his prosecution for second degree assault by strangulation. These prior acts were necessary to explain to the jury why the victim was fearful of seeking help from her family or from the police.

BACKGROUND FACTS.

The Defendant Euran Woods and victim BrittanyEnglund began their volatile relationship in 2009. At that time, Woods and Englund sold drugs together and Englund herself was addicted to drugs. As Englund’s drug addiction grew, so did her dependency on Woods— who exploited this dependency to isolate Englund from her friends and family. In addition to being emotionally abusive, Woods physically abused Englund throughout their relationship.

In 2011, Woods began forcing Englund to prostitute herself. He conditioned Englund to comply with his demands by convincing her that her life of prostitution was only temporary and that one day they would both have normal jobs and be happy together.

Englund argued with Woods regarding the prostitution several times. On one occasion in August of 2011, Woods strangled Englund until she passed out. Englund did not inform the police or her family of the abuse or prostitution both out of fear that Woods would retaliate and because she felt that Woods loved her and was sorry.

However, Woods strangled Englund again in September of 2011 after she discovered  he had been taking suggestive pictures with other women. Woods threw Englund across the room, kicked her, stomped on her, and strangled her until she passed out. Woods later apologized to Englund, who decided to not call the police.

In April of 2012, Woods again assaulted Englund. Her mother drove her to the hospital. Englund disclosed the 2011 assaults for the first time during a subsequent interview with a police detective.

THE CHARGES, JURY TRIAL & BASIS FOR APPEAL.

Woods was charged with one count of assault in the second degree for the September 2011 strangulation, with a special allegation of domestic violence pursuant to RCW 10.99.020.

During trial, the court admitted evidence of the August 2011 strangulation and the prostitution evidence. It determined that such evidence was admissible because it aided the jurors in understanding the nature of the relationship, motive, and intent, and helped to illuminate the victim’s state of mind.  The trial court also noted that—in matters dealing with domestic violence—testimony regarding prior assaults may assist the jury in understanding the dynamics of the domestic violence relationship and in assessing the victim’s credibility.

The jury found Woods guilty. He timely appealed. Although his attorney filed an Anders brief on arguments that the appeal was frivolous, the WA Court of Appeals nevertheless granted review to resolve the issues presented.

THE COURT’S REASONING AND CONCLUSION.

ER 404(b) Evidence

The Court of Appeals illustrated that under ER 404(b), evidence of a defendant’s prior bad act is not admissible to prove the defendant’s character and to show action in conformity therewith. However, such evidence may be admissible for other purposes, depending on its relevance and the balancing of its probative value and danger of unfair prejudice. For evidence of a prior bad act to be admissible, a trial judge must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Under this analysis, the Court of Appeals reasoned that the trial court’s rulings herein werecorrect. Englund’s testimony as to how Woods forced her into prostitution and why she was unable to escape was necessary for the jurors to understand the dynamics of this domestic violence relationship. Furthermore, Woods’ forced prostitution of Englund was a source of shame and fear for Englund and was an important factor in understanding why she refused to seek help from her friends, family, and the police.

Ineffective Assistance of Counsel

The Court illustrated how Constitutionally ineffective assistance of counsel is established only when the defendant shows that (1) counsel’s performance, when considered in light of all the circumstances, fell below an objectively reasonable standard of performance, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

Under this analysis, the Court rejected Wood’s arguments that his counsel was ineffective for failing to object to the admission of the prostitution evidence.  It reasoned there was nothing objectionable about this evidence because it was properly admitted pursuant to ER 404(b). Moreover, Woods’ counsel expressly deferred an objection to the prostitution evidence after stating that he viewed that evidence as presenting a valuable area for cross examination: “Rather, the record demonstrates that a tactical decision was made.”

Woods also believed he received ineffective assistance of counsel because his attorney failed to request a limiting instruction regarding the prostitution evidence. However, the Court of Appeals held this was also a strategic decision on the part of Woods’ defense attorney: “Defense counsel argued to the jury that Woods did not cause Englund’s injuries. Rather, he posited, those injuries could have been a result of Englund’s prostitution.” Thus, deficient performance was not established.

With that, the COurt of Appeals held that Woods was not prejudiced and upheld his conviction.

Unlawful Property Seizure

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In State v. Rivera, the WA Court of Appeals Div. II decided a trial court lacks authority to order defendants to forfeit their property as a condition of their felony sentencing.

BACKGROUND & FACTS

On September 20, 2014, Alicia Clements arrived at defendant Kevin Rivera’s home to serve him papers concerning a civil matter. Ms. Clements exited her vehicle to tape the documents to a post near Mr. Rivera’s driveway. While Clements was posting the paperwork, Rivera and his wife came out the front door and into the driveway. Rivera yelled at Clements that she was trespassing and needed to leave.

As Clements was getting back into her car, Rivera took down the documents she posted and approached her car to return them. In the process of returning the documents, Rivera shattered the driver’s side window on Clements’s car, causing glass to cascade into the car and onto the street.

Ms. Clements claimed that her window was completely rolled up and that Rivera had deliberately punched through the window with the documents in hand, striking her twice with his fist in the process. However, Rivera stated that Clements’s window was still open when he returned the documents, but that because Clements was attempting to roll up her windows, his fingers caught the edge of the window causing it to shatter.

Both Rivera and Clements called 911. Pierce County Sheriff’s Deputies responded to the incident. Mr. Rivera for assault. The State charged Rivera with second degree assault by battery under RCW 9A.36.021(1)(a), felony harassment, and third degree malicious mischief.

At trial, Rivera conceded that he had broken Clements’s window, but argued he did so accidentally rather than intentionally. The jury convicted Rivera of second degree assault and third degree malicious mischief. As part of his sentence, Rivera was required to forfeit “all property.”

CONCLUSION & ANALYSIS.

The Court of Appeals held that the trial court lacked authority to order property forfeiture as a sentencing condition.

It reasoned that under State v. Roberts, 185 Wn. App. 94, 96, 339 P.3d 995 (2014), the authority to order forfeiture of property as part of a judgment and sentence is purely statutory.. In other words, a trial court has no inherent power to order forfeiture of property in connection with a criminal conviction.

With that, the Court of Appeals held that the trial court erred by ordering forfeiture of seized property as a sentencing condition.

My opinion? Good decision. I’ve never heard of courts seizing a defendant’s property as a condition of sentencing. Indeed, the Fifth Amendment states that a person may not be deprived of property by the government without “due process of law,” or fair procedures. Typically, if property is an issue, then courts can lawfully order a defendant to pay restitution to the victim for the loss or damage to victim’s property. This makes sense. But to actually take a defendant’s property as a sentencing condition? No.

Assault is “Lesser Included” Charge for Indecent Liberties.

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In State v. Bluford, the  WA Court of Appeals Div. I decided that Assault in the Fourth Degree satisfies the legal prong of the lesser included offense test for the crime of Indecent Liberties. Charles Bluford appealed his conviction for Indecent Liberties on arguments that the trial court failed to instruct the jury on the lesser charge of assault.

For those who don’t know, a “lesser-included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

Here, the Court reasoned that instructing juries on lesser included offenses “is crucial to the integrity of our criminal justice system,” and that  courts should therefore “err on the side of instructing juries on lesser included offenses.” Furthermore, the Court of Appeals reasoned that courts should instruct the jury about a lesser included offense if the jury could find that the defendant committed only the lesser included offense.

The Court analyzed whether a defendant is entitled to a lesser included offense instruction under the test announced in State v. Workman. Under this test, the defendant is entitled to a lesser included jury instruction when (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that the lesser crime was committed.

The court applied the Workman test and decided Bluford should have been granted a lesser included instruction for assault fourth degree. Here, the State charged Bluford with one count of Indecent Liberties. This requires that a person “knowingly cause another person who is not his or her spouse to have sexual contact with him or her or another.. . by forcible compulsion.” Accordingly, this crime requires knowledge as the mental state. Therefore, Workman’s factual prong was satisfied.

The common-law definition of assault that applies is an “unlawful touching with criminal intent.” Thus, reasoned the court, fourth-degree assault requires intent as the mental state.  Indecent liberties also requires “sexual contact.” Thus, the State must prove that the defendant acted with a sexual purpose. Accordingly, fourth-degree assault does not require a higher mental state than indecent liberties. Therefore, reasoned the Court, the Workman test’s legal prong is met here, as well.

Consequently, Bluford was entitled to a lesser included offense instruction on fourth-degree assault.

The court reversed his conviction.

My opinion? Good decision. Sometimes, Prosecutors “overcharge” the seriousness of criminal acts. For example, some offenses charged as Assault in the Second Degree should really be charged as Assault in the Fourth Degree. Consequently, it’s imperative for competent defense attorneys to try convincing judges to give more options to juries than “guilty” or “innocent” on overcharged offenses.

That’s why the “lesser included instruction” tactic is a valuable trial tool to seek reductions, especially for sex offenses, which are some of the most damaging criminal charges one could possibly face. A sexual assault or sex crime carries serious penalties, including loss of freedom, sexual deviancy treatment, lengthy registration requirements and negative public stigma. Sexual assault convictions also limit future job opportunities and possibly prevent people from seeing their families. The effects are devastating. For more information on sex offense defense, please read my practice area labelled Sex Offenses.

Apology Letters & Free Speech

In State v . K.H.-H., the WA Supreme Court held that a defendant’s First Amendment free speech rights are not violated by a requirement that the offender write an apology letter to the victim of the crime.

K.H.-H., a 17-year-old male, was charged with assault with sexual motivation after he forced himself on C.R., a female acquaintance who attended the same high school. The juvenile court found K.H.-H. guilty. At the disposition hearing, the Prosecutor requested the court order K.H.-H. to write a letter of apology to the victim. Defense Counsel objected, insisting that K.H.-H. maintained the right to control his speech. The Court followed the Prosecutor’s recommendations and ordered K.H.-H. to write an apology letter. The court also imposed three months of community supervision.

K.H.-H appealed. Eventually, his case ended up in the WA Supreme Court.

In short, the Court upheld the sentencing requirement that K.H.-H write the apology letter.

First, the Court acknowledged that because a forced apology involves making an offender say something he does not wish to say, it implicates the compelled speech doctrine. The compelled speech doctrine generally dictates that the State cannot force individuals to deliver messages that they do not wish to make.

Nevertheless, the Court also stated that First Amendment rights are not absolute, particularly in the context of prison and probation, where constitutional rights are lessened or not applicable. “Similarly, criminal convictions result in loss or lessening of constitutional rights.”

The Court also reasoned that a victim has an interest in receiving a letter of apology. This not only aims to rehabilitate the juvenile offender but also acknowledges the victim’s interest in receiving the apology:

“A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior. Additionally, an apology letter recognizes the victim’s interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts.

This further advances the rehabilitative goals of the statute. The outward manifestation of accepting and apologizing for the consequences of one’s actions is a rehabilitative step that attempts to improve K.H.-H.’s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. ‘s rehabilitation and the crime here. One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights.”

Justice McCloud dissented. Among other things, his dissent says the following:

“Compelling a false apology for a crime the defendant denies committing is far from the least restrictive means of achieving rehabilitation. In fact, it is probably the most ineffective way to achieve that result.”

An interesting case, no doubt.

My opinion?

I strive for reductions and dismissals in all of my cases. Sometimes that means taking accountability for what happened. Consequently, that also means apologizing. An apology letter to the judge is a great place to start. They are a great way to demonstrate responsibility and remorse for your actions. While an apology letter to the judge/magistrate is often an excellent way to show your remorse after you have committed an offence, it’s success will largely depend on how serious the crime was. Among other things, judges consider your likelihood at re-offending. A sincere apology letter may show you have learnt your lesson and may go some way to proving this. Writing a letter to the victim can be one way of repairing the harm caused. Remember, judges have a fair amount of discretion when sentencing. They can consider the fact that you have taken responsibility for your actions as well as paid for any loss or damage caused. Finally, many victims will be happy to receive a sign of your recognition of the harm that you have caused them, especially if your crime wasn’t intentional or didn’t cause a great deal of harm.

If you have any concerns or questions about your criminal case, speak to an experienced criminal lawyer to ensure you have the information to let you make the best possible decisions. Good luck!

Youth as Mitigating Factor

In State v. Solis-Diaz, the WA Court of Appeals Division II held that a juvenile defendant who was tried as an adult for numerous violent felony crimes involving firearms is entitled to a sentencing at which the judge must conduct a meaningful, individualized inquiry into whether the defendant’s youth should mitigate his sentence.

Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by shooting in Centralia. He was charged with six counts of Assault in the First Degree, each with a firearm sentencing enhancement; one count of Drive-by Shooting; and one count of Unlawful Possession of a Firearm in the Second Degree. He was tried as an adult. The jury found him guilty on all counts, and the trial court imposed a sentence of 1,111 months in prison.

Solis-Diaz requested an exceptional downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated diminished capacity to understand the wrongfulness and consequences of his actions. The judge denied the request and again imposed a standard-range sentence of 1,111 months in prison. Solis Diaz appealed.

The Court of Appeals held that under the SRA, a sentencing court must generally sentence a defendant within the standard range. Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious violent offenses are to be served consecutively and not concurrently.

This is important. For those who don’t know, a consecutive sentence is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are “tacked” together, so that sentences are served one after the other. In contrast, a concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is five years.

The Court of Appeals further reasoned that a court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. One such mitigating circumstance exists if the operation of the multiple offense policy results in a presumptive sentence that is clearly excessive.  When the resulting set of consecutive sentences is so clearly excessive under the circumstances that it provides “‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the sentencing court may grant that exceptional downward sentence.

Additionally, the Court of Appeals relied on the WA Supreme Court’s recent decision in State v. O’Dell. In that decision, and similar to the defendant here, O’Dell was a juvenile who was also tried and sentenced as an adult to a very serious felony crime (rape, in O’Dell’s case). At O’Dell’s sentencing, the trial court ruled that it could not consider O’Dell’s age as a mitigating circumstance and imposed a standard range sentence of 95 months.  The Supreme Court disagreed with O’Dell’s trial court: “[I]n light of what we know today about adolescents’ cognitive and emotional development, we conclude that youth may, in fact, “relate to a defendant’s crime.”

The Court of Appeals followed O’Dell and said the following:

“The same logic and policy that led the Supreme Court to require the consideration of the youth of a young adult offender would apply with magnified force to require the same of Solis-Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result: reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully consider whether youth diminished his culpability.”

The WA Court of Appeals even offered a litmus test in making these determinations:

“In short, a sentencing court must take into account the observations underlying Miller, Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of responsibility, increased impetuousness, increased susceptibility to outside pressures, including peer pressure, and a greater claim to forgiveness and time for amendment of life. Against this background, the sentencing court must consider whether youth diminished Soliz-Diaz’s culpability and make an individualized determination whether his “capacity to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law” was meaningfully impaired.”

The WA Court of Appeals concluded that the sentencing court erred in failing to consider whether the operation of the SRA and Solis-Diaz’s youth at the time he committed the crimes should mitigate his standard range sentence and warrant an exceptional downward sentence.

Consequently, the Court of Appeals vacated Solis-Diaz’s sentence and remanded for re-sentencing back to the trial court. The Court of Appeals also noted that Solis-Diaz may move to disqualify the prior sentencing judge.

My opinion? I’m very pleased Division II is embracing O’Dell, an opinion which I’ve discussed in my blog titled, “State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing.” Furthermore, I’m pleased that Division II also offered a workable litmus test in determining these issues juvenile sentencing for adult crimes. Very good. It not only shows the Courts are following O’Dell, they are also supporting it and offering guidelines for future decisions involving juvenile justice.

State v. Deleon: Court Strikes Evidence of “Gang Affiliation” Due To Defendant’s Music Preferences

In State v. Deleon, the  WA Supreme Court held that (1) a defendant’s musical preference does not establish gang membership, and their admittance to gang affiliation during jail  booking may not be used at trial.

The State prosecuted Mr. Deleon and two others for multiple counts of Assault in the First Degree with deadly weapon enhancements and with gang aggravators.  If convicted, these upward enhancements substantially increased Deleon’s prison sentence. At trial, the court admitted as evidence of gang affiliation statements the defendant made at booking about his gang affiliation and evidence of the type of music on his cell phone.  Also, the trial court allowed a police officer to testify as a gang expert regarding generalized information of gang affiliation.

Mr. Deleon was found guilty and sentenced to 1,002 months. He appealed on the issue of (1) whether the trial court violated his Fifth Amendment right against self incrimination improperly admitted the aforementioned evidence, and (2) whether the gang expert testimony regarding gang culture and behavior was irrelevant and thus improperly admitted.

The WA Supreme Court reasoned that the gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence. In short, it reasoned that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary:

“We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendant’s Fifth Amendment rights.”

The WA Supreme Court also ruled that the trial court mistakenly allowed evidence of the type of music on the defendant’s phone as evidence of gang affiliation. “Los Tigres del Norte is a prominent and popular Latin band and there is no evidence in the record to support that enjoying their music is evidence of gang affiliation . . .  We take this opportunity to remind courts to be far more cautious when drawing conclusions from a defendant’s musical preferences.”  This scathing wisdom reminded courts to be careful when admitting generalized evidence about gang affiliation.  “Such evidence is often highly prejudicial and must be tightly constrained to comply with the rules of evidence.”

Finally, the Court ruled that much of the generalized “gang evidence” was irrelevant and prejudicial, and thus should not have been admitted. The court reasoned that, under ER 402, evidence which is not relevant is not admissible. Here, the gang evidence produced by the State’s gang expert witness was highly prejudicial:

“We agree and urge courts to use caution when considering generalized gang evidence. Such evidence is often highly prejudicial, and must be tightly constrained to comply with the rules of evidence.”

With that, the WA Supreme Court held the defendant was entitled to a new trial. Therefore, the Court reversed the convictions and gang aggravators.

My opinion? I really enjoyed the rulings in this case. Sometimes, mainstream culture and music can be misconstrued as “gang evidence” when said music/culture is heard/exhibited by minorities. The Court attacked this veiled racism. Good on them. Also, they made good rulings on the 5th Amendment issues. A defendant’s gang affiliation when being booked into jail is a matter of personal security. The information should not be admitted at trial. Again, good rulings!