State Of Washington v. D.j.m., L.d.m., & L.k.m. ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
February 21, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48093-0-II
(Cons. w/ Nos. 48096-4-II & 48103-1-II)
Respondent,
v. UNPUBLISHED OPINION
D. J. M.,
Appellant.
STATE OF WASHINGTON,
48096-4-II
Respondent,
v. UNPUBLISHED OPINION
L. D. M.,
Appellants
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
STATE OF WASHINGTON, No. 48103-1-II
Respondent,
v. UNPUBLISHED OPINION
L. K. M.,
Appellant.
SUTTON, J. — Three siblings, DJM,1 LDM, and LKM were adjudicated guilty of second
degree assault after a fight at their high school with another student, CH.2 DJM, LKM, and LDM
appeal, arguing that (1) they did not validly waive the conflict of interest resulting from joint
representation, (2) the juvenile court misapplied the doctrines of self-defense and the defense of
others, (3) they were constitutionally entitled to a jury trial, and (4) the juvenile court improperly
imposed additional terms of disposition including no-contact orders. We affirm the juvenile
adjudications but remand to the juvenile court to strike the additional conditions of disposition.3
1
Per ruling of April 25, 2016, we refer to the appellants by their initials.
2
We use initials for the victim and the witnesses to provide anonymity.
3
The appellants also ask us to exercise our discretion and not impose appellate costs. Under RAP
14.2, a commissioner or clerk of this court has the ability to determine whether appellate costs
should be imposed based on the appellants’ ability to pay and prior determinations regarding
indigency. If the State decides to pursue costs for this appeal, a commissioner will make a
determination as to whether costs should be imposed.
2
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
FACTS
On February 23, 2015, DJM and her brothers, LKM and LDM, arrived at Washington High
School. All three siblings entered the school cafeteria to have breakfast before school started. CH
was already in the cafeteria sitting at a table eating breakfast with his friends, DH and JB. DJM
walked up to CH and punched him several times, knocking CH out of his chair and onto the floor.
As CH got up and walked around the other end of the table, LKM joined his sister. Then, LDM
joined his siblings. At the same time, the school security officer, Jim Wiedow, attempted to
intervene by putting himself between CH and DJM, LKM, and LDM. However, LKM and LDM
continued trying to get past Wiedow in order to get to CH.
As the fight between LKM, DJM, and CH escalated, LDM engaged in a second, separate
fight with CH’s friend, DH, to prevent DH from intervening in the fight. Wiedow continued his
efforts to separate DJM and LKM from CH. After a few minutes, Wiedow was able to successfully
intervene and stop the fight. After the fight, CH had a swollen lip and several broken teeth.
The next day the State charged DJM, LKM, and LDM with second degree assault.
I. JOINT REPRESENTATION
Before trial, the juvenile court heard a motion to waive conflict of interest and consent to
joint representation for all three siblings. The juvenile court expressed concern about the joint
representation:
[A]ssuming that each one of the. . . respondents wishes to go forward with joint
representation, I need that confirmation on the record from each one of you. And
again, I will tell you that it would not be my choice to have you go forward with
the same counsel because where it’s one event, which in this case it’s one event,
and-help me here, what is the exact charge?
3
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
....
Assault in the second degree is a very, very serious crime, it’s a strike
offense. And where there is an assault that takes place allegedly with the
participation of three individuals; there is, I believe, a huge potential for there being
conflict as between the respondents because one might see it slightly differently
than another, and one might say I didn’t do it but I saw this. And that’s where the
conflict comes in. So I want to be very clear with each one of you that you
understand that potential conflict and you’re waiving the conflict and you wish to
go forward with joint representation.
Verbatim Report of Proceedings (VRP) at 6. However, all the siblings told the juvenile court that
they wanted to be represented by the same attorney, that they waived any conflict of interest, and
that they consented to joint representation. The juvenile court agreed to allow the joint
representation. Each of the siblings also entered written waivers of the conflict of interest.
On the day of trial, the juvenile court confirmed that the siblings waived the potential
conflict of interest and wanted to proceed with joint representation at trial:
[COURT]: DJM, you are aware that potential conflicts could arise with
respect to yourself and the other respondents in this case. Is it still your desire to
waive any conflict and proceed with one attorney?
[DEFENSE ATTORNEY]: Do you understand?
[DJM]: No, I don’t.
[DEFENSE ATTORNEY]: This is the same—this is the same issue we had
the briefing about before.
....
[DEFENSE ATTORNEY]: Your Honor, may I have the Court’s
permission to sort of translate?
[COURT]: Yes.
....
[COURT]: . . . . So having now had a chance to discuss the matter once
again with your attorney, and it is the same motion that Judge Serko previously
ruled upon, is it your wish, DJM, to waive any potential conflict of interest with the
4
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
other two respondents and proceed to trial with all three of you using the same
lawyer?
[DJM]: Yes, Your Honor.
[COURT]: And LKM?
[LKM]: Yes, Your Honor.
....
[COURT]: Do you have the same answer as DJM, that you wish to waive
any potential conflict and use the same lawyer?
[LKM]: Yes, Your Honor.
[COURT]: And LDM, do you wish to waive any actual or potential conflict
of interest and use the same lawyer?
[LDM]: Yes, Your Honor.
VRP at 9-11.
II. TRIAL TESTIMONY
CH testified at trial. CH was generally obtrusive and unforthcoming. CH stated on
multiple occasions that he did not want to talk about the events on February 23 and refused to
answer the State’s questions. However, CH did testify that the pictures of his broken teeth and
swollen lip accurately represented his condition after the fight. And CH testified that neither his
teeth nor his lip were in that condition that morning when he arrived at school.
Rebecca Patterson is a paraeducator who was assigned to monitor breakfast in the cafeteria
on February 23. Patterson testified that she saw DJM walk up to CH, punch him, and knock him
down. CH got up and started to walk away from DJM. While the fight was going on, Patterson
noticed a second fight going on in the cafeteria. She attempted to keep other students from getting
involved in that fight or starting any additional fights.
5
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
Wiedow testified that he was also monitoring the cafeteria the morning of February 23. He
had been talking to Patterson when he saw DJM walk up to CH, hit him on the head, and knock
CH out of his chair and onto the ground. Wiedow saw CH walk around the other end of the table
and move toward the cafeteria exit. Wiedow attempted to shield CH in order to prevent any further
conflict. However, Wiedow testified that LKM and LDM were attempting to push past him to
reach CH. While Wiedow was attempting to shield CH from LKM, DJM continued to assault CH.
The State introduced several different videos showing the fight. The first video is from the
school’s surveillance camera and shows both fights. Wiedow reviewed the surveillance video and
explained what was happening in the video. The surveillance video is consistent with Wiedow’s
trial testimony. The State also introduced a surveillance video showing DJM immediately after
the fight. In the video, DJM is jumping around and laughing with friends. The State also
introduced two cell phone videos of the fight. The first video shows DJM walk up to CH while he
is eating breakfast. It also shows DJM hit CH and knock him out of his chair. The second cell
phone video shows CH walk around the end of the table where he is confronted by DJM, LKM,
and LDM. The video also shows Wiedow attempting to intervene and stop the fight.
DJM, LKM, and LDM testified at trial. DJM testified that CH had been harassing her both
verbally and on Facebook. And she testified that on the morning of February 23, CH made a face
“like a smirk” at her. VRP at 289. When CH smirked at DJM, she “just got angry.” VRP at 296.
DJM stated that after she hit CH and knocked him out of the chair, she just stood there waiting to
see what would happen. LKM testified that he saw DJM hit CH and then he moved in front of
DJM in order to protect her. LDM testified that he was getting his breakfast when he saw DJM
6
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
start fighting CH, and then he saw CH fall out of his chair. When LDM saw DJM and LKM
engage in the continued confrontation with CH, he intervened by confronting CH’s friend, DH, in
order to prevent DH from aiding CH.
III. JUVENILE COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
After the trial, the juvenile court entered findings of fact and conclusions of law. The
juvenile court found Wiedow’s and Patterson’s testimony credible. The juvenile court also found
that, when CH got up from getting knocked out of the chair, he walked around the table in order
to move toward the exit. The juvenile court concluded that both DJM and LKM were aggressors
in the fight and neither one of them could claim self-defense.
The juvenile court also found that CH did not respond to DJM’s initial assault and instead
moved away from her. And when Wiedow attempted to intervene and keep the parties separated,
DJM, LKM, and LDM ignored him and continued to pursue CH. The juvenile court also found
that CH was not an aggressor in the fight and thus, he was entitled to use self-defense.
7
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
The juvenile court found that LDM engaged in a fight with DH specifically to prevent DH
from interfering in DJM’s and LKM’s assault on CH. And the juvenile court found that LDM
could not reasonably have believed that his siblings were innocent aggressors in the fight. 4
Therefore, defense of others was not available to LDM as a defense.
Based on its findings of fact, the juvenile court concluded that DJM, LKM, and LDM were
guilty beyond a reasonable doubt of second degree assault.
IV. SENTENCING AND DISPOSITION
At sentencing, the State argued that DJM, LDM, and LKM should receive standard range
sentences. DJM, LDM, and LKM requested that they be granted a manifest injustice sentence
below the standard range. Each sibling presented a mental health evaluation that demonstrated
each had mental health issues, such as anxiety and depression, which contributed to the assault on
CH. Each also presented a comprehensive plan of mental health treatment and mentorship that
would treat their mental health issues and help them build skills to deal effectively with problems
and confrontations.
The juvenile court found that DJM, LKM, and LDM did not meet the criteria for a manifest
injustice sentence below the standard range. The juvenile court imposed a standard range sentence
of 15-36 weeks confinement for each sibling. The juvenile court also ordered additional conditions
of disposition as to each, including prohibiting contact with CH.
4
The trial court’s findings of fact regarding the availability of defense of others for LDM were
entered after we remanded to the trial court to make supplemental findings of fact.
8
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
DJM, LKM, and LDM appeal. In the interests of justice, we consider all arguments as if
they had been adopted by each co-appellant. RAP 1.2.
ANALYSIS
I. JOINT REPRESENTATION
DJM argues that she did not execute a valid, fully informed waiver of the potential conflict
of interest created by the joint representation. Criminal defendants have a Sixth Amendment right
to conflict-free counsel. State v. Dhaliwal, 113 Wash. App. 226, 232, 53 P.3d 65 (2002). Here,
DJM, LKM, and LDM waived their right to conflict-free counsel. Accordingly, we affirm their
convictions.
A. WAIVER
DJM argues that her waiver of the potential conflict of interest arising from joint
representation was invalid because it was not “fully informed,” as required by RCW
13.40.140(10). Br. of Appellant at 11. We disagree.
A juvenile has the right to be represented by counsel at all critical stages of the proceedings.
RCW 13.40.140(2). The right to counsel includes the right to conflict-free counsel. Dhaliwal,
113 Wash. App. at 232. RCW 13.40.140(10) provides that a juvenile’s waiver of the right to counsel
“must be an express waiver intelligently made by the juvenile after the juvenile has been fully
informed of the right being waived.”
DJM argues that, because of a juvenile’s immaturity and lack of experience, perspective,
and judgment, juveniles must be given extensive information in order to be fully informed of their
rights before waiving them. According to DJM, the juvenile court’s limited explanation of the
9
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
potential conflict involved was insufficient because it did not educate DJM as to all aspects of
potential conflict that could arise. Specifically, DJM asserts that, to have been fully informed
regarding the potential conflict, the juvenile court was required to inform her that there was a
potential for conflict to arise in investigation, presentation of evidence, cross-examination,
presentation of defenses, objections, and pretrial motions. She also asserts that she should have
been informed that she no longer had completely privileged and confidential communications with
her attorney because information could be shared with her siblings. And she should have been
informed that a conflict could arise regarding negotiation of a plea agreement.
DJM supports her argument by relying on Saenz and Bailey. State v. Saenz, 175 Wash. 2d
167, 283 P.3d 1094 (2012); State v. Bailey, 179 Wash. App. 433, 335 P.3d 942 (2014). In Saenz,
our Supreme Court held that a juvenile who waived juvenile court jurisdiction was not fully
informed because there was no record of what the juvenile actually knew about the protection of
the juvenile justice system at the time of the waiver. 175 Wash. 2d at 177. And, in Bailey, Division
Three of this court held that a juvenile was not fully informed regarding his decision to waive
juvenile jurisdiction because he was not informed of the specific statutory rights and protections
of the juvenile justice system. 179 Wash. App. at 440-41. Here, however, the meaning of being
“fully informed” for the purposes of waiving juvenile court jurisdiction does not inform our
analysis.
Saenz and Bailey enumerate the multitude of rights and protections available to juveniles
in the juvenile justice system. It makes sense that to be fully informed regarding the waiver of
these rights and protections, a juvenile must be informed of each right and protection. But in the
10
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
context of waiving a potential conflict of interest, similar concrete rights and protections do not
exist. Because the issue is whether DJM waived the potential conflict of interest, the relevant
inquiry is whether DJM was fully informed that the potential for a conflict of interest existed before
she waived it.
DJM was repeatedly informed that there were concerns about joint representation because
of the potential for a conflict of interest to arise. And the juvenile court illustrated the potential
conflict of interest with the example of what might happen if the siblings began developing slightly
different explanations about what happened. The juvenile court also warned DJM that additional
conflicts might arise as the case developed, resulting in the issue of being raised again later.
Together these warnings demonstrate that DJM was fully informed about the potential for a
conflict of interest to arise and that she intelligently waived that risk. Because the juvenile court
followed the same waiver process with LKM and LDM, and they were fully informed about the
potential for a conflict of interest to arise, their waivers were also fully informed. Accordingly,
we affirm the juvenile court’s decision to allow joint representation for DJM, LKM, and LDM.
11
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
B. ACTUAL CONFLICT OF INTEREST
Although DJM, LKM, and LDM executed a valid waiver of their right to conflict-free
counsel, we note that, because they fail to establish an actual conflict of interest supported by the
record, they would not be entitled to reversal regardless of whether the waiver was valid. Even
when the potential conflict of interest was not properly waived, joint representation is not a per se
constitutional violation of the right to conflict-free counsel. State v. Byrd, 30 Wash. App. 794, 798,
638 P.2d 601 (1981). To be entitled to reversal, the appellant must show an actual conflict of
interest adversely affecting the lawyer’s performance. Dhaliwal, 113 Wash. App. at 234-35.
The appellant bears the burden of demonstrating that an actual, as opposed to a potential,
conflict of interest exists. Dhaliwal, 113 Wash. App. at 237. The actual conflict of interest must be
readily apparent on the record. Dhaliwal, 113 Wash. App. at 237. An actual conflict of interest
exists if “‘the defendants’ interests diverge with respect to a material factual or legal issue or to a
course of action’” or “‘where counsel must slight the defense of one defendant to protect another.’”
Dhaliwal, 113 Wash. App. at 237 (quoting State v. Robinson, 79 Wash. App. 386, 394, 902 P.2d 652
(1995)); State v. James, 48 Wash. App. 353, 369, 739 P.2d 1161 (1987).
DJM presents two examples of the alleged actual conflict of interest present in her case.
First, she claims that actual prejudice existed because the attorney jointly representing the children
could not negotiate a plea deal for her. Second, she claims that, at sentencing, the attorney could
not argue that some of the siblings were less culpable than others because that would indicate
higher culpability for another child.
12
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
Although DJM’s allegations demonstrate potential conflicts of interest that could have
arisen in the joint representation, she does not point to anything in the record to support her claims.
There is nothing in the record that supports the allegation that, but for the joint representation,
DJM could or would have negotiated a plea deal.
Nor can DJM demonstrate an actual conflict in regards to sentencing. DJM alleges that an
actual conflict existed at sentencing because her attorney was precluded from arguing relative
culpability among the siblings. She also alleges broadly that trial counsel was unable to argue
individually for each appellant. The record belies the assertion that an actual conflict existed at
sentencing. First, there was no conflict regarding relative culpability. Each juvenile was faced
with standard range sentences.5 Accordingly, the siblings’ attorney argued for a manifest injustice
disposition below the standard range.6
A “manifest injustice” is “a disposition that would either impose an excessive penalty on
the juvenile or would impose a serious, and clear danger to society in light of the purposes of this
chapter.” Former RCW 13.40.020 (2014). The “relative culpability” of the siblings regarding the
same fight has no bearing on the statutory criteria for imposing a manifest injustice sentence below
5
Former RCW 13.40.0357 (2013) sets the standard range sentences for juvenile offenses. In some
situations, the juvenile court has the discretion to impose “option B” (suspended confinement) or
“option C” (mental health/chemical dependency treatment) alternatives to confinement. However,
because the siblings were all adjudicated of second degree assault, none of them were eligible for
any sentencing alternatives.
6
RCW 13.40.160(6).
13
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
the standard range. Accordingly, there can be no actual conflict based on the failure to argue
something that does not apply to the siblings’ sentencing.
Although DJM has alleged two potential conflicts of interest, she has failed to point to
specific areas of the record that demonstrate an actual conflict of interest. LKM and LDM do not
assert any other argument supporting actual prejudice. Accordingly, the siblings’ joint
representation did not violate their right to conflict free counsel.
II. SELF-DEFENSE AND DEFENSE OF OTHERS
At trial, all three siblings alleged some form of self-defense or the defense of others. DJM
alleged that she was acting in self-defense because she feared CH due to bullying and harassment.
LKM alleged that he began fighting to protect DJM. And LDM alleged that he began fighting
with CH’s friend, DH, to protect his siblings by preventing DH from intervening in the fight
between DJM, LKM, and CH.
A. LEGAL STANDARDS
There are three elements to self-defense: (1) the defendant subjectively feared imminent
danger of bodily harm, (2) the defendant’s belief was objectively reasonable, and (3) the defendant
exercised no more force than reasonably necessary. State v. Werner, 170 Wash. 2d 333, 337, 241
P.3d 410 (2010). The defendant’s belief is not objectively reasonable if the apprehension of great
bodily harm is based on words alone. State v. Riley, 137 Wash. 2d 904, 912, 976 P.2d 624 (1999).
[I]n general, the right of self-defense cannot be successfully invoked by an
aggressor or one who provokes an altercation, unless he or she in good faith first
withdraws from the combat at a time and in a manner to let the other person know
that he or she is withdrawing or intends to withdraw from further aggressive action.
14
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
Riley, 137 Wash. 2d at 909.
An individual who acts in defense of another person, reasonably believing
him to be the innocent party and in danger, is justified in using force necessary to
protect that person even if, in fact, the party whom he is defending was the
aggressor.
State v. Bernardy, 25 Wash. App. 146, 148, 605 P.2d 791 (1980).
B. DJM’S SELF-DEFENSE CLAIM
On appeal, DJM argues that the juvenile court erred by concluding that she was the primary
aggressor because the combination of bullying and smirking was sufficient provocation to make
CH the primary aggressor. DJM also argues that she was entitled to self-defense because, even if
she was the primary aggressor, she withdrew from the conflict. Both of these arguments fail. The
juvenile court properly concluded that DJM was not entitled to assert self-defense.7
It is undisputed that, on the day of the fight, CH was sitting down at a table eating breakfast
when DJM walked up to him, punched him in the back of the head, and knocked him from his
chair to the floor. However, DJM claims that CH was the aggressor because he had repeatedly
harassed DJM. And on the day of the fight, DJM claims that CH smirked at her. Neither of these
allegations support a self-defense claim.
7
We note that DJM assigns error to findings of fact VI, VII, X, XIV, and XXVI. However, DJM
does not argue that those findings are not supported by substantial evidence. We do not consider
assignments of error unsupported by argument and authority. RAP 10.3(a)(6).
15
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
First, DJM claims that CH had repeatedly harassed her by making fun of her skin color and
insulting her. DJM does not claim that any of CH’s harassment resulted in physical violence
toward her. In general, harassment that is purely verbal in nature cannot justify the use of force
because mere words alone do not create a reasonable apprehension of great bodily harm. Riley,
137 Wash. 2d at 912. Moreover, if words alone cannot support a self-defense claim, it stands to
reason that a facial expression made by someone sitting and eating at a table, cannot create a
reasonable apprehension of great bodily harm.
DJM also claims that the juvenile court erred by concluding that she did not act in self-
defense because she had withdrawn from the fight after knocking CH out of the chair. In order to
have withdrawn from the conflict, DJM must have acted in a manner that let CH know that she
was withdrawing or intended to withdraw from the confrontation. But all the evidence establishes
that after DJM punched CH and knocked him out of the chair, she just stood there. She did not
say anything and she did not walk away. None of the facts, including her own testimony, establish
that DJM took any action that would indicate she was withdrawing from the conflict. Accordingly,
DJM cannot claim that she was entitled to use self-defense because she withdrew from the conflict
after she initiated it.
C. LKM’S CLAIMS
LKM adopted the arguments in DJM’s brief without additional argument or briefing. The
juvenile court found that both DJM and LKM were aggressors against CH and, as a result, self-
defense was not available to either of them. However, LKM testified that he began fighting CH
because he wanted to protect his sister. DJM’s self-defense argument relies on two assertions: (1)
16
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
that CH provoked the conflict through a pattern of harassment and smirking at her, and (2) that she
withdrew from the conflict. Neither of these arguments apply to LKM. Nothing in the record
establishes that CH had a history of harassing LKM. Nor was there any evidence that CH was
smirking at LKM. In addition, there was not any evidence that LKM attempted to withdraw from
the fight after engaging CH.
Because LKM has failed to present any argument or authority regarding the juvenile court’s
application of self-defense or the defense of others to his specific case, we decline to address it
any further. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828
P.2d 549 (1992) (we do not consider grounds unsupported by argument or citation to authority).
D. LDM’S CLAIMS
LDM argues that there is insufficient evidence to support his adjudication because the State
did not prove that LDM did not act in defense of others. Because LDM does not argue that the
superior court erred by concluding that he was not entitled to raise a defense of others claim, his
argument fails.
LDM argues that there is insufficient evidence to support his adjudication because the State
did not prove that LDM did not act in defense of others. LDM assigns error to the juvenile court’s
findings of fact VIII, IX, X, XII, XIII, XVI, XIX, XX, and XXIX. However, LDM presents
arguments only regarding finding of fact XX. Finding of fact XX states,
17
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
Given Mr. Wiedow’s directions and actions being ignored by his siblings,
LDM could not reasonable (sic) believe either of his siblings were innocent parties
in the altercation with CH.
Clerk’s Papers at 99. Thus, we review only the challenge to finding of fact XX. RAP 10.3(a)(6).
We review whether substantial evidence supports the juvenile court’s findings of fact and, in turn,
whether the findings support the conclusions of law. State v. Homan, 181 Wash. 2d 102, 105-06, 330
P.3d 182 (2014), as corrected, 191 Wash. App. 759 (2016).
LDM argues that this finding is unsupported because there was no evidence demonstrating
that LDM knew what Wiedow had concluded about who was the initial aggressor in the fight. But
this finding of fact does not impute Wiedow’s conclusions to LDM. Instead, it is based on LDM’s
reactions to what LDM observed—specifically his siblings refusing to comply with instructions to
stop fighting and resisting Wiedow’s attempts to break up the altercation. Wiedow testified that
DJM and LKM continued the altercation after he intervened and tried to break up the fight.
Therefore, finding of fact XX is supported by substantial evidence.
LDM also argues that, legally, finding of fact XX does not support the conclusion that
LDM was not acting in defense of his siblings. We disagree. To have been acting in defense of
his siblings, LDM had to have had a reasonable belief that his siblings were innocent parties and
in danger. Bernardy, 25 Wash. App. at 148. Here, DJM’s and LKM’s refusal to comply with
Wiedow’s attempts to stop the fight makes it unreasonable to believe that they were innocent
parties because innocent parties to a fight would not attempt to continue the fight after security
intervenes. Therefore, the juvenile court properly concluded that, based on observing DJM and
LKM repeatedly refusing to comply with Wiedow’s attempts to intervene and stop the fight, LDM
18
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
did not reasonably believe that DJM and LKM were innocent parties in the fight. Thus, the
juvenile court’s findings of fact supports the court’s conclusion that LDM was not acting in defense
of his sibling.
III. RIGHT TO JURY TRIAL
DJM argues that “the time has come” to grant juvenile defendants the right to a jury trial.
Br. of Appellant at 21-22. DJM urges us to declare RCW 13.04.021(2) unconstitutional because
juvenile adjudications are now indistinguishable from adult adjudications. RCW 13.04.021(2)
explicitly states that “[c]ases in juvenile court shall be tried without a jury.”
Whether RCW 13.04.021(2) is unconstitutional because juveniles are entitled to a jury trial
is a question of law that we review de novo. State v. Womac, 160 Wash. 2d 643, 649, 160 P.3d 40
(2007). Our Supreme Court resolved this issue in State v. Chavez, 163 Wash. 2d 262, 272, 180 P.3d
1250 (2008). In Chavez, our Supreme Court unequivocally rejected the argument that juveniles
are entitled to a jury trial under the Sixth Amendment of the United States Constitution and under
article 1, sections 21 and 22 of the Washington Constitution. 163 Wash. 2d at 272, 274. Chavez
controls here, therefore, DJM’s argument fails.
IV. CONDITIONS OF DISPOSITION
LKM argues the juvenile court erred by entering indefinite no-contact orders protecting
CH as conditions of his disposition. The State concedes that the juvenile court exceeded its
authority under the Juvenile Justice Act, chapter 13.40 RCW, by imposing the no-contact orders.
The State’s concession is proper. Accordingly, we reverse the juvenile court’s imposition of a no-
contact order as a condition of disposition and remand for the juvenile court to strike it.
19
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
RCW 13.40.185 governs how a juvenile court designates confinement in a disposition
order. And former RCW 13.40.190 (2014) allows the juvenile court to impose restitution in a
disposition order. Only RCW 13.40.210 addresses imposing additional conditions on juveniles
following a disposition. RCW 13.40.210(3)(b) states:
The secretary [of the Department of Social and Health Services] shall, for the period
of parole, facilitate the juvenile’s reintegration into his or her community and to
further this goal shall require the juvenile to refrain from possessing a firearm or
using a deadly weapon and refrain from committing new offenses and may require
the juvenile to: (i) Undergo available medical, psychiatric, drug and alcohol, sex
offender, mental health, and other offense-related treatment services; . . . (ix) refrain
from contact with specific individuals or a specified class of individuals; (x) meet
other conditions determined by the parole officer to further enhance the juvenile’s
reintegration into the community.
Here, the relevant statutes provide the secretary of the Department of Social and Health Services,
not the juvenile court, the authority to impose additional conditions following release from
confinement. Accordingly, the juvenile court exceeded its authority by imposing additional
conditions of disposition on DJM, LKM, and LDM. We reverse the juvenile court’s imposition
of additional conditions of disposition on DJM, LKM, and LDM and remand to strike the
conditions.
We affirm DJM’s, LKM’s, and LDM’s adjudications for second degree assault, but reverse
the juvenile court’s additional conditions of disposition. We remand for further
20
No. 48093-0-II
(Cons. w/ Nos. 48096-4-II
and 48103-1-II)
proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Sutton, J.
We concur:
Worswick, J.
Maxa, A.C.J.
21