State v. Silva-Baltazar

• Decision Date: 15 December 1994
• Docket Number: No. 60748-6,SILVA-BALTAZA,P,60748-6
• Citation: 886 P.2d 138,125 Wn.2d 472
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Jose Luisetitioner. The STATE of Washington, Respondent, v. Antonio Lopez MENDOZA, Petitioner.

Page 472

125 Wn.2d 472

886 P.2d 138

The STATE of Washington, Respondent, v. Jose Luis SILVA-BALTAZAR, Petitioner.

The STATE of Washington, Respondent, v. Antonio Lopez MENDOZA, Petitioner.

No. 60748-6.

Supreme Court of Washington En Banc.

Dec. 15, 1994.

Prediletto, Halpin, Scharnikow, Bothwell & Smart, P.S., Thomas Bothwell, Yakima, for petitioner Silva-Baltazar.

Contreras-Trejo & Trejo, Inc., P.S., George P. Trejo, Jr., Yakima, for petitioner Mendoza.

Jeffrey C. Sullivan, Yakima County Prosecutor, Bruce Hanify, Steven R. Keller, Deputys, Yakima, for respondent.

Katherine S. Knox, Cheney, amicus curiae, for petitioners on Behalf of Washington Defender Ass'n.

BRACHTENBACH, Justice.

This case arises out of the convictions of Jose Silva-Baltazar and Antonio Mendoza for possession of cocaine with intent to deliver. The Defendants appealed on a number of issues. In an unpublished decision, the Court of Appeals affirmed the convictions and sentences. State v. Mendoza, noted at 70 Wash.App. 1036 (1993). The Defendants petitioned for review and this court accepted review only for resolution of two issues: whether RCW 69.50.435 defines an offense or a penalty enhancement, and if it is an enhancement, whether it applies to accomplices, 123 Wash.2d 1006, 866 P.2d 635. We hold that RCW 69.50.435 is an enhancement and that it does apply to accomplices who, like the Defendants here, are themselves present in locations specified by RCW 69.50.435 (hereinafter referred to as drug free zones), at the time the prohibited activity occurs. We expressly reserve the issue of whether the enhancement applies to accomplices who are not themselves within the drug free zone, but are liable for a crime of another who does conduct the prohibited drug activity in a drug free zone.

On February 27, 1990, an informant working with Yakima police officers arranged through a contact named Carlos Garcia to make a large purchase of drugs at the informant's house. Although Garcia first telephoned her on the appointed evening to tell the informant the deal would not go through, Garcia and four other men, in two cars, pulled up to her driveway a little later. Police had the area around the informant's home under surveillance. According to the informant's testimony, Garcia retrieved a 1-kilo bag of cocaine from the other car and brought it to his car. She testified she saw a gym bag in the second car containing a number of kilos of cocaine, and that Defendants Mendoza and Silva-Baltazar were involved in showing her these drugs. The informant told the men to come back later when she had the money. The men left in the cars. The informant called the police detective supervising the operation and gave a description of the cars (one description incorrect) and the license numbers.

Police officers stopped both cars nearby. When Garcia's car was stopped, Defendant Silva-Baltazar jumped from the car and ran. Another officer apprehended him a few blocks away and took him back to Garcia's car. One kilo of cocaine was retrieved from the car. Police stopped the second car, registered to Defendant Mendoza, at a nearby minimart. There were two people in the car, Mendoza and Vincente Diaz, and there was no gym bag with cocaine. The police never found the alleged fifth person or additional kilos of cocaine. The distance from the informant's house to a nearby school bus stop was measured at 582 feet.

Mendoza, Silva-Baltazar, and Diaz were tried together and found guilty of possession of a controlled substance with intent to deliver. The jury also returned a special verdict that the crime of possession of a controlled substance with intent to deliver occurred within 1,000 feet of a school bus stop. The court increased the Defendants' standard sentences by 24 months under RCW 9.94A.310(5) and RCW 69.50.435. The court additionally imposed an exceptional sentence above the standard range, citing as an aggravating factor that the controlled substance was in a quantity substantially larger than for personal use, as provided in RCW 9.94A.390(2)(d)(ii).

The numerous challenges to RCW 69.50.435 have left unresolved the issue of whether this statute is a sentencing enhancement, stiffening the penalty for the substantive offenses contained in RCW 69.50.401(a) or RCW 69.50.410, or whether it is itself a criminal offense. This distinction is important as it affects the charging of a defendant, the computation of the offender score, and potentially, as argued here, whether an accomplice may be subject to the increased penalty. An enhancement increases the presumptive or standard sentence. An enhanced sentence is not an exceptional sentence, which allows the court to sentence outside the presumptive or standard sentencing range. Compare RCW 9.94A.310 with RCW 9.94A.120.

RCW 69.50.401(a) provides that "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." When these drug activities take place in certain locations, then RCW 69.50.435 is applied. RCW 69.50.435 provides in relevant part:

Any person who violates RCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under that subsection ... to a person in a school or on a school bus or within one thousand feet of a school bus route stop designated by the school district or within one thousand feet of the perimeter of the school grounds, in a public park or on a public transit vehicle, or in a public transit stop shelter may be punished by a fine of up to twice the fine otherwise authorized by this chapter ... or by both such fine and imprisonment.

RCW 69.50.435(a).

In short, RCW 69.50.401 enumerates the maximum penalties, in fines and imprisonment, for certain drug crimes, and RCW 69.50.435 allows those penalties to be doubled when the crimes are committed in specified locations. The Legislature added RCW 69.50.435 to the Uniform Controlled Substances Act (UCSA) in 1989. The UCSA delineates offenses and establishes maximum penalties, but does not set out determinate sentence ranges, which are provided for in the Sentencing Reform Act of 1981 (SRA). The SRA contains a more specific penalty provision relating to RCW 69.50.435. RCW 9.94A.310(5) provides:

An additional twenty-four months shall be added to the presumptive sentence for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435.

There is conflict in Washington case law about the characterization of RCW 69.50.435 as an enhancement or an offense. Division Three of the Court of Appeals has construed RCW 69.50.435 as describing an offense. In State v. Zamora, 63 Wash.App. 220, 817 P.2d 880 (1991), the court determined, based on the language of the provision itself, that RCW 69.50.435 was a criminal offense, which must be charged and proved by the prosecution. The court noted that throughout the statute are references to a " 'prosecution for a violation of this section'." Zamora, at 224, 817 P.2d 880 (citing RCW 69.50.435(b), (c), (d)). Further, as the court pointed out, RCW 9.94A.310(5) provides for the additional time on the presumptive sentence " 'for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435.' " Zamora, at 225, 817 P.2d 880 (citing RCW 9.94A.310(5)). The court concluded that because the defendant was not charged with the violation of RCW 69.50.435 as an offense, the State could not seek a sentence enhancement. Zamora, at 225, 817 P.2d 880.

Division Three followed Zamora on this issue in State v. Graham, 68 Wash.App. 878, 881, 846 P.2d 578, review denied, 121 Wash.2d 1031, 856 P.2d 382 (1993). There the court stated:

RCW 69.50.401(a) describes a general drug offense, possession of a controlled substance with intent to deliver. RCW 69.50.435 describes a special drug offense, possession of a controlled substance with intent to deliver in a particular place or area. The special drug offense requires proof of an additional element. Both the general and special drug offenses must be charged and proved.

Graham, at 881. In a concurrence, Judge Munson took exception to the characterization of RCW 69.50.435 as an offense, instead, treating this provision as providing for an additional penalty for the substantive crimes specified in RCW 69.50.401(a).

In its unpublished opinion in this case, the Court of Appeals cites to Graham in upholding the sentence enhancement for the defendants, based on the reasoning that the liability of an accomplice is the same as that of the principal. Although we agree with this premise, we do not adopt the characterization of Graham that RCW 69.50.435 is a criminal offense.

Division One, contrary to Division Three, appears to have made the determination that RCW 69.50.435 is a penalty enhancement. Division One concluded: "RCW 69.50.401(a) prohibits drug dealing. RCW 69.50.435 provides an additional penalty for drug dealing within 1,000 feet of certain drug free zones, such as schools and school bus stops." State v. Williams, 70 Wash.App. 567, 570, 853 P.2d 1388 (1993), review denied, 123 Wash.2d 1011, 869 P.2d 1085 (1994).

No case before this court has explicitly raised as an issue the proper characterization of RCW 69.50.435. However, we have indicated in other contexts that the correct interpretation of the statute is that it provides for a sentence enhancement. In State v. McGee, 122 Wash.2d 783, 788, 864 P.2d 912 (1993) we said: "RCW 69.50.435(a) does not itself criminalize manufacturing, delivering, or possessing a controlled substance; it merely imposes an additional penalty for violating RCW 69.50.401(a) within a school zone." Also, in stating the interrelationship between RCW 69.50.401(a) and RCW 69.50.435, this court explained:

RCW 69.50.401(a) provides a general prohibition against drug dealing.... The statute primarily at...