State v. Gilbert

• Decision Date: 11 January 1993
• Docket Number: No. 28725-7-I,28725-7-I
• Citation: 842 P.2d 1029,68 Wn.App. 379
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Arthur Leroy GILBERT, Appellant.

Page 379

68 Wn.App. 379

842 P.2d 1029

STATE of Washington, Respondent, v. Arthur Leroy GILBERT, Appellant.

No. 28725-7-I.

Court of Appeals of Washington,

Division 1.

Jan. 11, 1993.

Barry M. Ward, Seattle, for appellant

Norm Maleng, Pros. Atty., and Linda K. Jacke, Deputy Pros. Atty., Seattle, for respondent.

FORREST, Judge.

Arthur Leroy Gilbert appeals his conviction for first degree burglary contending the evidence does not support the conviction because the assault did not occur within the dwelling burgled. ¹ We agree and reverse.

The facts are not in dispute. At about noon on February 7, 1991, Gilbert and accomplice Damon Clarke broke into Toni Ciccanti's house in Seattle. A third accomplice waited in a car in the driveway. Charles Mastro and Mianne Heltberg were walking by and noticed the unfamiliar car in the driveway. Mastro co-owned the house with his estranged wife, Ciccanti, but no longer lived in the house.

Mastro walked up the driveway to investigate, and saw a CD player and several CDs belonging to Ciccanti in the back seat of the car. Mastro took the keys out of the car's ignition as Gilbert emerged from the house with Ciccanti's jewelry box in hand. Mastro was standing between the car and the house when he verbally confronted Gilbert and The police apprehended Gilbert and Clarke the next day, and Mastro and Heltberg positively identified Gilbert in a lineup.

                Clarke.   They both responded by beating Mastro with their fists and a rock.   Heltberg distracted Gilbert and Clarke long enough for Mastro to break free and throw the car keys into the bushes.   Gilbert and Clarke immediately retrieved the keys and drove away
                

Gilbert was charged by information with first degree burglary. At a bench trial on May 9, 1991, Gilbert objected to the sufficiency of the evidence for a finding of guilt, arguing that the assault did not take place either in the house, or against an occupant of the house. Judge Carmen Otero rejected the argument, and found Gilbert guilty as charged beyond a reasonable doubt. On June 14, 1991, Judge Otero ordered Gilbert to serve 41 months, the top of the standard range based on an offender score of three.

Gilbert timely appealed to this court.

DISCUSSION

Burglary in the first degree. (1) A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a dwelling and if, in entering or while in the dwelling or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person therein.

RCW 9A.52.020. Since the assault concededly took place outside the dwelling, Gilbert urges that he cannot be found guilty of first degree burglary because he did not assault "any person therein". In State v. Gilbert, 33 Wash.App. 753, 756, 657 P.2d 350 (1983) (involving a different Gilbert), Division III of this court reached a contrary conclusion:

We perceive the Legislature's intent in passing the first degree burglary statute as seeking to outlaw burglaries where the perpetrator is either armed with a deadly weapon or assaults someone during the course of the crime. Therefore, we hold the words "assaults any person therein" refer to any person who is assaulted while the perpetrator is entering the dwelling, while he is in the dwelling, or while he is in immediate flight from the dwelling.

Stating the matter succinctly, this holding strikes "therein" from the statute.

With all due respect, we do not find this analysis persuasive. The court cites no legislative history in support of its finding of legislative intent but merely decides on the basis of the language of the statute that the Legislature must have meant something other than what it said. The prior burglary statute did include assaults committed during flight as an aggravating circumstance raising second degree burglary to first degree burglary. ² Changes in statutory wording are presumed to indicate a change in legal rights. ³ A fortiori there is a change in legal rights when the new language is directly contrary to the old language.

The State urges that the statute is internally inconsistent because the language "if, in entering or while in the dwelling or in immediate flight therefrom" encompasses a broader range of conduct than that provided by "assaults any person therein." RCW 9A.52.020(1). While more meticulous draftsmanship would easily have avoided the problem by using separate sentences to describe the two alternative aggravating circumstances: (1) being armed with a deadly weapon or (2) assaulting any person therein, that furnishes no reason to completely ignore the specific limitation on the assault prong.

It is well established that "[s]tatutes should be construed as a whole, all language used should be given effect, and related statutes should be considered in relation to each other and whenever possible harmonized." (Emphasis added.) State v. Walter, 66 Wash.App. 862, 870, 833 P.2d 440 (1992). The language is easily harmonized by recognizing that the first general statement applies in toto to being armed with a deadly weapon, but that some of the language is surplusage as to some assaults committed in connection with the burglary.

                It is also well established that if a statute is "reasonably susceptible of more than one meaning" the court "must adopt that reasonable meaning most favorable to the accused."  State v. Sayler, 36 Wash.App. 230, 235, 673 P.2d 870 (1983).   [842 P.2d 1032] Likewise, it is well-established that penal statutes should be construed strictly.  State v. Rinkes, 49 Wash.2d 664, 306 P.2d 205 (1957), and the cases cited therein
                

We agree with the following statement quoted by the State from Rinkes, at 667, 306 P.2d 205:

Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes. It does not mean that a forced, narrow, and over-strict construction should be applied to defeat the obvious intent of the legislature.

However, we do not agree that giving meaning to "therein" is giving a forced, narrow, over-strict construction. Rather it seems the natural construction, whereas striking "therein" is a forced overbroad construction.

More significantly, we find no reason to believe our interpretation frustrates the intent of the Legislature. The Legislature chose the words "assaults any person therein". It seems perfectly reasonable to us that the Legislature might choose to make an assault within the dwelling, always the central object of protection in a burglary statute, an element elevating the crime to first degree, while at the same time believing that assaults in flight therefrom can adequately be dealt with as independent assaults subject to the penalties prescribed in the assault statutes. Our interpretation will not result in assaults such as Gilbert's going unpunished. Here, Gilbert could have been charged and convicted of residential burglary and second degree assault. In that case, the burglary anti-merger statute ⁴ would have permitted the court to impose punishment for residential burglary and for second degree assault.

We conclude that settled canons of statutory construction require that meaning be given to the word "therein."

                Accordingly, an assault outside a burglarized dwelling does not elevate residential burglary to first degree burglary.   In order to find a defendant guilty of a crime, the State must prove each element beyond a reasonable doubt.  In re Winship. 5  The State did not prove every element of first degree burglary here.   Gilbert was neither armed with a deadly weapon nor did he "assault any person therein" within the meaning of RCW 9A.52.020.   The first degree conviction must be vacated
                

REMAND

This court "may reverse, affirm, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may require." RAP 12.2. If we simply reverse Gilbert's conviction, and if the prosecutor thereafter charged Gilbert with residential burglary, he would have a meritorious claim of double jeopardy for being tried a second time on the same facts. ⁶ If Gilbert had been charged alternatively with the offense of residential burglary, it is well established that we could remand for resentencing because the finding of guilt on first degree burglary on these facts necessarily constituted a finding of every element of residential burglary. State v. Green. ⁷

We are aware of the Supreme Court's admonishment that "[i]n general, a remand for simple resentencing on a 'lesser included offense' is only permissible when the jury has been explicitly instructed thereon." State v. Green, 94 Wash.2d 216, 234, 616 P.2d 628 (1980). However, that statement was dictum, ⁸ and unsupported by any citation to authority. ⁹ Nor has our research revealed any authority which supports that proposition. Logically, in fact, the dispositive issue should not be whether the jury was instructed on the lesser included offense, but rather whether the jury necessarily found each element of the lesser included offense in reaching their verdict on the crime charged.

We find no logical reason, when each element of the lesser included offense has been found, that the trial court's failure to instruct on the lesser included offense should prevent this court from directing the trial court to enter such a conviction. See State v. Plakke, 31 Wn.App. 262, 267, 639 P.2d 796 (1982), overruled on other grounds in State v. Davis, 35 Wn.App. 506, 667 P.2d 1117 (1983), aff'd, 101 Wn.2d 654, 682 P.2d 883 (1984).

State v. Brown, 50 Wash.App. 873, 878-79, 751 P.2d 331 (1988); accord State v. Ellard, 46 Wash.App. 242, 730 P.2d 109 (1986), review denied, 108 Wash.2d 1011 (1987) where Division II vacated convictions on two counts of first degree theft and remanded for sentencing on one...