State v. Sandoval

• Court: Washington Court of Appeals
• Writing for the Court: Melnick, J.
• Citation: State v. Sandoval, 438 P.3d 165 (Wash. App. 2019)
• Decision Date: 02 April 2019
• Docket Number: No. 50814-1-II
• Parties: STATE of Washington, Respondent, v. Mary E. SANDOVAL, Appellant.

438 P.3d 165

STATE of Washington, Respondent,

v.Mary E. SANDOVAL, Appellant.

No. 50814-1-II

Court of Appeals of Washington, Division 2.

Filed April 2, 2019

Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.

PUBLISHED OPINION

Melnick, J.

¶1 Mary Sandoval appeals her convictions for possession of stolen property in the second degree and possession of a controlled substance.¹ She argues that insufficient evidence supports the jury’s finding that the credit card found in her possession was an "access device," and that the jury instruction defining "access device" misstated the law and constituted an improper comment on the evidence. Sandoval also argues that she received ineffective assistance of counsel when her attorney failed to request an "unwitting possession" jury instruction. Finally, Sandoval argues that we should remand for the trial court to inquire into her ability to pay legal financial obligations (LFOs).

¶2 We affirm the convictions but remand for the trial court to reconsider the imposition of LFOs.

FACTS

I. INCIDENT

¶3 On March 6, Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it.

¶4 After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

¶5 On April 2, the police found Sandoval and her husband in the stolen vehicle at the address listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and searched her incident to that arrest. In Sandoval’s purse, the police found a credit card with somebody else’s name on it, Sandoval’s sister’s birth certificate, and a pipe with methamphetamine residue.

¶6 The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card’s owner cancelled the card.

¶7 The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

II. TRIAL AND SENTENCING

¶8 As relevant here, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

¶9 The court defined an access device as, "any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value." Clerk’s Papers (CP) at 47. In the same instruction, the court stated, "The phrase ‘can be used’ refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time." CP at 47.

¶10 The jury convicted Sandoval on all charges except identity theft in the second degree. The State dismissed that charge.

¶11 At sentencing, the court imposed numerous LFOs, including a $ 250 jury-demand fee. Sandoval appeals.

ANALYSIS

I. ACCESS DEVICE DEFINED

¶12 Sandoval makes three assignments of error which are premised on her argument that the court incorrectly instructed the jury on the definition of the term "access device." According to Sandoval, an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner. Sandoval argues that insufficient evidence supports her conviction for possession of stolen property in the second degree, that the trial court erroneously instructed the jury on the definition of access device, and that the court impermissibly commented on the evidence with the instruction. We disagree with Sandoval.

A. Legal Principles

¶13 RCW 9A.56.010(1) defines "access device." The definition contains the phrase "can be used." "Can be used" is not statutorily defined. Sandoval argues that the court’s jury instruction contained an erroneous definition for the phrase "can be used." Sandoval’s argument is two-fold. First, Sandoval argues that we should not follow State v. Schloredt , 97 Wash. App. 789, 987 P.2d 647 (1999),² which interpreted the phrase "can be used," because it is not supported by sound reasoning. Sandoval argues in the alternative that State v. Rose , 175 Wash.2d 10, 282 P.3d 1087 (2012), effectively overruled Schloredt . We disagree with both arguments.

¶14 We review questions of statutory interpretation de novo. State v. Wentz , 149 Wash.2d 342, 346, 68 P.3d 282 (2003). Our primary duty in interpreting statutes is to determine and implement the legislature’s intent. State v. J.P. , 149 Wash.2d 444, 450, 69 P.3d 318 (2003). If the statute’s plain language and ordinary meaning is clear, we look only to the statute’s language to determine intent. Wentz , 149 Wash.2d at 346, 68 P.3d 282. "[W]e discern plain meaning from ‘all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.’ " State v. Sanchez , 177 Wash.2d 835, 843, 306 P.3d 935 (2013) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 11, 43 P.3d 4 (2002) ). We consider " ‘all the terms and provisions of the act in relation to the subject of the legislation, the nature of the act, the general object to be accomplished and consequences that would result from construing the particular statute in one way or another.’ " State v. Krall , 125 Wash.2d 146, 148, 881 P.2d 1040 (1994) (quoting State v. Huntzinger , 92 Wash.2d 128, 133, 594 P.2d 917 (1979) ). "[W]e presume the legislature does not intend absurd results and, where possible, interpret ambiguous language to avoid such absurdity." State v. Ervin , 169 Wash.2d 815, 823-24, 239 P.3d 354 (2010).

¶15 "[L]egislative inaction following a judicial decision interpreting a statute is often deemed to indicate legislative acquiescence in or acceptance of the decision."

State v. Stalker , 152 Wash. App. 805, 813, 219 P.3d 722 (2009). " ‘[E]vidence of legislative acquiescence is not conclusive, but is merely one factor to consider.’ " Fast v. Kennewick Pub. Hosp. Dist. , 187 Wash.2d 27, 39, 384 P.3d 232 (2016) (quoting Safeco Ins. Cos. v. Meyering , 102 Wash.2d 385, 392, 687 P.2d 195 (1984) ).

¶16 RCW 9A.56.010(1) defines "access device" as

any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

(Emphasis added.)

¶17 In Schloredt , the court affirmed the defendant’s convictions for possession of stolen property in the second degree based on his possession of four stolen credit cards. 97 Wash. App. at 790-91, 987 P.2d 647. Schloredt made the same argument that Sandoval makes. He argued that because the term "can be used" in RCW 9A.56.0101(1) is written in the present tense, the state must show that an access device can be used at the time the device is found on a defendant. Schloredt , 97 Wash. App. at 793, 987 P.2d 647. Thus, Schloredt argued that insufficient evidence supported his convictions because the state "failed to prove [that the cards] were ‘operational’ on the date [he] possessed them." Schloredt , 97 Wash. App. at 793, 987 P.2d 647. He argued that cancelled cards cannot be used to obtain something of value and therefore cancelled cards are not "access devices" under the statute. Schloredt , 97 Wash. App. at 793, 987 P.2d 647.

¶18 The court rejected the argument. It concluded that the language "can be used" referred "to the status of the access device when last in possession of its lawful owner." Schloredt , 97 Wash. App. at 794, 987 P.2d 647. The court looked to the legislative history and intent of RCW 9A.56.010(1), and reasoned that whether a victim cancelled his or her account prior to a defendant’s arrest was irrelevant in determining whether stolen credit cards were "access devices" under the statute. Schloredt , 97 Wash. App. at 794, 987 P.2d 647. The court concluded that a contrary result would be an absurdity and would contravene the legislature’s intent to broadly construe the term "access device." Schloredt , 97 Wash. App. at 793-94, 987 P.2d 647. "It begs reason to assume the legislature intended that a defendant could not be charged with possessing a stolen credit card or other access device solely because the victim discovered the theft and cancelled the account on the stolen card before the defendant was apprehended." Schloredt , 97 Wash. App. at 794, 987 P.2d 647. We agree that Sandoval’s interpretation leads to an absurd result.

¶19 Since Schloredt was decided in 1999, the legislature has amended RCW 9A.56.010 four times. LAWS OF 2017 ch. 266, § 7; LAWS OF 2011 ch. 164, § 2; LAWS OF 2006 ch. 277, § 4; LAWS OF 2002 ch. 97, § 1. Not once has the legislature amended the definition of "access device."

¶20 We conclude that Schloredt accurately interpreted the phrase "can be used" as that phrase is used in the definition of "access device." Moreover, we conclude that the legislature’s inaction following Schloredt indicates its acquiescence in Schloredt ’s interpretation of the phrase "can be used."

¶21 Sandoval next argues that Rose overruled Schloredt . In Rose , the victim testified that she received a credit card offer which included an unactivated credit card in her name. 175 Wash.2d at 13, 282 P.3d 1087. The victim never activated the card and threw it away. 175 Wash.2d at 13, 282 P.3d 1087. Because she never activated the card, no account was associated with it. Rose , 175 Wash.2d at 13-15, 282...