State v. Silva-Baltazar , 125 Wash. 2d 472 ( 1994 )

Brachtenbach, J.

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 In an unpublished decision, the Court of Appeals affirmed the convictions and sentences.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 Wn. 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. 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 imprisonment of up to twice the imprisonment 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 Wn. 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 (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 (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.

Division Three followed Zamora on this issue in State v. Graham, 68 Wn. App. 878, 881, 846 P.2d 578, review denied, 121 Wn.2d 1031 (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 Wn. App. 567, 570, 853 P.2d 1388 (1993), review denied, 123 Wn.2d 1011 (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 Wn.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 issue in this case is RCW 69.50.435, which provides for an enhancement of the penalty imposed for violating RCW 69.50.401(a), if that violation occurred within 1,000 feet of certain places such as schools or school bus route stops.

State v. Coria, 120 Wn.2d 156, 161, 839 P.2d 890 (1992).

Most persuasive in determining that RCW 69.50.435 is an enhancement is the statutory scheme itself. If RCW 69.50.435 sets forth a criminal offense, rather than a penalty enhancement for another criminal offense, it should, like all offenses, have a presumptive sentence. RCW 9.94A.320, a section of the SRA, provides a table of the criminal offenses, listing the crimes included within each seriousness level. The level of the crime is then used to figure out the length of the sentence on the sentencing grid. Although RCW 69.50.401 is ranked in the table, RCW 69.50.435 is not. The only way to punish an offender for a violation of that provision is to figure out the presumptive sentence for another crime, RCW 69.50.401 or RCW 69.50.410. Once the presumptive sentence for the offense listed on the seriousness chart is determined, then RCW 9.94A.310(5) adds 24 months onto the presumptive sentence. Thus, one could be convicted and sentenced for a violation of RCW 69.50.401, but in and of itself, one could not be sentenced for a violation of RCW 69.50.435 using the sentencing grid.

In addition, legislative history, appropriate to turn to in situations of ambiguous statutory interpretation, further leads to the conclusion that RCW 69.50.435, and the corresponding provision in RCW 9.94A.310(5), were intended to enhance penalties, not create a separate crime. The bill analysis prepared by the House Committee on Judiciary states:

Additional penalties are provided for drug activities conducted within 1,000 feet of a public of [sic] private primary or secondary school. These penalties increase the maximum penalty imposable and also add two years to the presumptive sentence.

A 24[-]month enhancement is also added to the presumptive sentence for manufacturing, delivering, or possessing with intent to manufacture or deliver within 1,000 feet of a school.

House Comm, on Judiciary, HB 1793 Bill Analysis, Drug Sales Near Schools, 51st Legislature (1989). The final bill report provides:

Enhancements are also provided for sentences for various drug offenses.. . . The otherwise applicable maximum penalties are doubled and the presumptive sentence is increased by 24 months for certain drug offenses committed within 1,000 feet of a school or school bus stop.

(Italics ours.) House Comm, on Appropriations, House Comm, on Judiciary, Senate Comm, on Ways and Means, Final Bill Report, 2SHB 1793, 51st Legislature (1989).

In addition, both RCW 69.50.435 and RCW 9.94A.310(5) were enacted as part of the Omnibus Alcohol and Controlled Substances Act. Laws of 1989, ch. 271, §§ 112, 101. In this act, the Legislature revised both the sentencing grid and the table of offenses within each seriousness level. The Legislature did not add RCW 69.50.435 to the chart as an offense. Instead the Legislature added the 24-month increase in penalty to the statutory section providing for certain enhanced sentences, RCW 9.94A.310. This indicates that the two provisions, RCW 69.50.435 and RCW 9.94A.310(5), are intended to act together as an enhancement.

The next matter we must determine is whether the enhancement applies to accomplices.¹ We reiterate that this case involves Defendants who were themselves within 1,000 feet of a school bus stop during the events of the crime, and confine ourselves to the facts here present. We do not decide whether RCW 69.50.435 applies to accomplices who are not within the drug-free zone themselves when another participant in the crime engages in the specified drug activity within the drug-free zone.

Defendants argue that accomplices may be liable for committing a crime, but are not subject to the enhancement provisions of RCW 69.50.435.² The complicity rule in Washington is that any person who participates in the commission of the crime is guilty of the crime and is charged as a principal. State v. Carothers, 84 Wn.2d 256, 264, 525 P.2d 731 (1974), overruled on other grounds by State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984). RCW 9A.08.020, the complicity statute, provides:

(1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.

(2) A person is legally accountable for the conduct of another person when:

(c) He is an accomplice of such other person in the commission of the crime.

(3) A person is an accomplice of another person in the commission of a crime if:

(a) "With knowledge that it will promote or facilitate the commission of the crime, he

(i) solicits, commands, encourages, or requests such other person to commit it; or

(ii) aids or agrees to aid such other person in planning or committing it; or

(b) His conduct is expressly declared by law to establish his complicity.

This court in State v. McKim, 98 Wn.2d 111, 116, 653 P.2d 1040 (1982), a pre-SRA case involving the prior deadly weapon enhancement statute, RCW 9.95.040, stated that the applicability of the complicity statute, RCW 9A.08.020(1), was "limited to accountability for crimes”. The court determined that an accomplice is "equally liable only for the substantive crime — any sentence enhancement must depend on the accused’s own misconduct”. McKim, at 117. Therefore, the deadly weapon enhancement could not be activated by the complicity statute. The court noted that there is no provision in the complicity statute that an accomplice is to be punished as a principal, unlike the previous complicity statute which did so provide. McKim, at 116.

The court went on to determine that the accused could be subject to the deadly weapon enhancement if the accused was actually or constructively armed with a deadly weapon. For an accused to be constructively armed, the other participant would have to be armed and the accused would have to know that the other participant was armed. Thus, the court said, the deadly weapon statute reaches both those who are armed and "also those who know an accomplice is armed”. McKim, at 118. The changes made by the Sentencing Reform Act of 1981 to the deadly weapon enhancement provision have superseded McKim. State v. Bilal, 54 Wn. App. 778, 776 P.2d 153, review denied, 113 Wn.2d 1020 (1989). RCW 9.94A.310(3) now provides that the "following additional times shall be added to the presumptive sentence if the offender or an accomplice was armed with a deadly weapon”. (Italics ours.) RCW 9.94A.125, providing for a special verdict in regard to the deadly weapon issue, refers to "an accused or an accomplice”. Knowledge is no longer required.

McKim and its reasoning are not applicable to this case. The analysis of this court in McKim was based on the fact that under RCW 9A.08.020, there is no strict liability for the conduct of another in regard to a sentence enhancement provision. The court stated that although in most crimes involving deadly weapons, the coparticipants are aware that one or more of them is armed, that is no reason to impose strict liability on all coparticipants regardless of each participant’s knowledge that another is armed. McKim, at 117.

However, unlike the deadly weapon enhancement, RCW 69.50.435 does not require knowledge on the part of any of the participants. It is irrelevant whether a person is aware that he or she is carrying on the prohibited drug activity in a drug-free zone. RCW 69.50.435(b) provides that:

It is not a defense to a prosecution for a violation of this section that the person was unaware that the prohibited conduct took place while in a school or school bus or within one thousand feet of the school or school bus route stop, in a public park, on a public transit vehicle, or in a public transit stop shelter.

Further, this court has held that "due process does not require drug dealers know they are within a drug free zone for purposes of . . . RCW 69.50.435.” State v. Coria, 120 Wn.2d 156, 166, 839 P.2d 890 (1992). Unlike the deadly weapon enhancement in McKim, RCW 69.50.435 is a strict liability statute.

In holding that an accomplice may be liable for first degree robbery whether or not the accomplice knew the principal was armed, this court in State v. Davis, 101 Wn.2d 654, 659, 682 P.2d 883 (1984) noted that the Legislature has an interest in discouraging deadly weapons by imposing strict liability on all those involved in a robbery. In this way, RCW 69.50.435 is more akin to the first degree robbery statute in Davis than it is to the prior deadly weapon enhancement interpreted in McKim. Not only does the Legislature have an interest in imposing strict liability for certain drug activity in specific locations, it has explicitly done so. Therefore, although Davis involves a substantive crime and McKim involves a sentence enhancement, the analysis in Davis is more persuasive here.

The Defendants and amicus curiae argue that the omission of the term "accomplice” in RCW 69.50.435 and RCW 9.94A.310(5), when contrasted with the inclusion of the term "accomplice” in the other two enhancement provisions in RCW 9.94A.310, indicates that the Legislature did not intend RCW 69.50.435 to apply to accomplices. However, aside from the establishment of the length of time a defendant’s sentence is to be enhanced, the main text of the drug-free zone enhancement is located in RCW 69.50, not in the SRA. It is not surprising, then, that the language of the drug-free zone enhancement does not parallel the language of the other two enhancements. In addition, the Legislature added the term "accomplice” to the deadly weapon enhancement after this court excluded accomplices from the operation of that enhancement in order to avoid strict liability. Given that the Legislature explicitly provided for strict liability under the drug-free zone enhancement, the Legislature may not have viewed it as necessary to include the term accomplice within the enhancement.

Furthermore, we have identified the purpose of RCW 69.50.435 as discouraging "the development of the violent and destructive drug culture in areas where there are children.” Coria, at 172-73. All participants who are in areas in which the Legislature has determined that children are likely to be present pose an equal threat to the children in terms of exposure to drug activity.

Here the Defendants are liable for violating RCW 69.50.401, and have been found guilty of possession of cocaine with the intent to sell. They were also participating in this activity within a drug-free zone. We can see no reason why RCW 69.50.435 should not apply to the Defendants. We hold that all participants who are liable for the substantive crimes referred to in RCW 69.50.435, and who are themselves participating in this criminal activity within a drug-free zone, are subject to the enhancement.

We affirm the enhancement of Defendants’ sentences under RCW 69.50.435 and RCW 9.94A.310(5).

Andersen, C. J., and Dolltver, Durham, Smith, and Guy, JJ., concur.

1 The trial court instructed the jury that it could convict each Defendant if either he or an accomplice possessed cocaine with an intent to deliver. It is unclear whether the jury convicted on the ground that the Defendant himself possessed the cocaine with intent to deliver or on the ground that an accomplice possessed the cocaine with the intent to deliver. However, in a conviction for a substantive crime, this distinction is irrelevant. An accomplice is guilty as a principal. State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991).

2 Defendant Mendoza presents this argument both in his Petition for Review and in his Court of Appeals Brief. Although Defendant Silva-Baltazar argues in his Brief to the Court of Appeals that an accomplice is not subject to a sentence enhancement under RCW 69.50.435, in his Petition for Review he argues that RCW 69.50.435 is a crime and that he was not properly charged with this crime.