State of Washington v. Richard Eugene Yallup, Jr. ( 2017 )

FILED
OCTOBER 10, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34076-7-111
Respondent, ) (consolidated with
) No. 34957-8-111)
v. )
)
RICHARD EUGENE YALL UP, )
)
Appellant. ) UNPUBLISHED OPINION
)
)
In the Matter of the Personal Restraint of )
)
RICHARD EUGENE YALLUP, )
)
Petitioner. )
KORSMO, J. -Richard Yallup, by appeal and personal res.traint petition (PRP),
challenges aspects of the judgment entered against him by the Yakima County Superior
Court following convictions on 11 felony offenses. 1 We affirm the convictions, but
remand for either a restitution hearing or correction of the judgment and sentence.
1
One count of second degree assault was merged into a conviction for first degree
robbery, leaving only ten counts for sentencing.
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup
FACTS
Although the numerous convictions reflect an extensive evening of criminal
behavior that was the subject of a significant amount of trial time, little of that background
is relevant to the issues we consider on appeal. The one aspect of the trial that presents an
issue on appeal involved Mr. Yallup's flight from a gun battle with law enforcement into a
house and his action in taking the occupants hostage.
The State charged Y all up with three counts of first degree kidnapping arising from
the intrusion into the house, but one of those counts was dropped at the conclusion of the
State's case.2 The remaining two victims were a husband and wife. The wife had been
injured by a gunshot and took refuge in the bathroom at the outset of the defendant's
entry into the house; Mr, Yallup did not know about her presence until later in the
incident. Upon discovering her, he set her free.
After a lengthy discussion, the trial court, on each of the remaining kidnapping
counts, instructed the jury on both first degree kidnapping and the inferior degree offense
of second degree kidnapping, but refused to give instructions on the lesser included
offense of unlawful imprisonment. The jury returned a verdict of guilty on first degree
kidnapping of the husband, but found Mr. Y all up guilty only of second degree
kidnapping of the wife.
2
Mr. Yallup did not testify and the defense did not call any witnesses.
2
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup
II
At sentencing, the defense opposed restitution to the insurance company and I!
requested a restitution hearing on any restitution sought by the city of Sunnyside for I
damage to its police vehicles. Report of Proceedings (RP) at 556. No hearing was held.
The court ordered the entire $56,350.66 sought by the prosecutor for restitution, a figure I
that included restitution to the city of Sunnyside. RP at 565; Clerk's Papers (CP) at 344.
I
II
The court also imposed costs of incarceration in the local jail up to a maximum of $1,000.
RP at 566; CP at 344. An exceptional sentence was imposed on one count that was I!
ordered to run consecutive to the other sentences. RP at 564; CP at 342. I
Mr. Yallup timely appealed to this court. His appointed counsel filed a brief in I
support of his appeal. Mr. Yallup also filed a PRP that he personally prepared. The two I!
cases were consolidated and considered by a panel without argument.
I
ANALYSIS I
I
The appeal challenges the failure to give instructions on the included offense of
unlawful imprisonment and also challenges the restitution and incarceration cost awards. 3 II
I
The PRP alleges judicial bias and a conspiracy by the attorneys involved in his case. We
I
will address first the instructional issue, then jointly address the financial arguments, and lI
finally give the PRP brief consideration. I
l
I
l
i
i
3 !
Counsel also asks that we waive appellate costs in the event that the State I
prevailed on appeal. Since both parties prevail on some claims, there is no substantially
prevailing party on appeal and no costs are awarded to either side.
3
II
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup
Lesser Include Offense Instruction Request
On appeal, Mr. Yallup argues that the trial court erred in failing to instruct on
unlawful imprisonment as an included offense to the first degree kidnapping counts. His
argument fails because there was no factual reason for believing that only unlawful
imprisonment occurred.
The law governing this issue is very well settled. By statute, either party in a
criminal case is entitled to an instruction on a lesser included offense in appropriate
circumstances. RCW 10.61.006. 4 In order to instruct on an included offense, the crime
actually must be an included offense and there must be a factual basis for believing that
the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382(1978). These are known as the "legal" and "factual" prongs. State v. Berlin, 133 Wn.2d
541, 545-46, 947 P.2d 700 (1997).
The factual prong is satisfied when there is affirmative evidence showing that only
the lesser crime actually was committed. State v. Speece, 115 Wn.2d 360, 362-363, 798
P.2d 294 (1990); State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990). The factual
prong is not established merely by the fact that the jury might disregard some of the
evidence in the case. "Instead, some evidence must be presented which affirmatively
4
I
Statutes also provide that parties are entitled to instructions on inferior degree
offenses and attempted crimes. RCW 10.61.003, .010.
4
I
I
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup
establishes the defendant's theory on the lesser included offense before an instruction will
be given." Fowler, 114 Wn.2d at 67. 5
The parties do not dispute that unlawful imprisonment is a lesser included offense
of second degree kidnapping. The question remaining is whether there was a factual
basis for believing that only unlawful imprisonment was committed. The trial court
correctly concluded that the evidence failed to make that showing.
In order to establish first degree kidnapping, as charged in this case, the State was
required to establish that Mr. Yallup abducted the victims to hold them as shields or
hostages. CP at 186, 188. To establish second degree kidnapping, the State needed to
show only that the defendant abducted the victims. CP at 190-192. "Abduct" was
defined as restraining a person in a place where the person was not likely to be found, or
restraining the person by using or threatening to use force. CP at 187. In order to
establish unlawful imprisonment, the prosecutor would have only needed to show that
Mr. Yallup knowingly restrained his victims. RCW 9A.40.040(1).
5
This court at one time had held the opposite, deciding that the factual prong
could be satisfied by a failure of proof. State v. Wilson, 41 Wn. App. 397, 704 P.2d 1217,
review denied, 105 Wn.2d 1003 ( 1985). Speece subsequently noted that Wilson was no
longer good law after Fowler. 115 Wn.2d at 363 n.4. This court later concurred in that
assessment. State v. Johnson, 59 Wn. App. 867, 873, 802 P.2d 137 (1990), rev'd on
other grounds, 119 Wn.2d 143,829 P.2d 1078 (1992).
5
No. 34076-7-III; 34957-8-III
State v. Yallup; In re Pers. Restraint of Yallup
The distinction between the two kidnapping offenses was the purpose for which
the defendant had abducted the victims, while the difference between kidnapping and
unlawful imprisonment was whether the defendant had abducted his victims or merely
restrained them. All that defense counsel could argue as a factual basis for the unlawful
imprisonment instruction was the fact that the jury did not have to believe the State's
evidence concerning the reason for taking the hostages. The trial judge accurately noted
that argument is insufficient. There must, instead, be some evidence that only unlawful
imprisonment was committed. For instance, if Mr. Yallup (or one of the victims) had
testified that he only restrained the victims without abducting them by using his gun, then
there would be a factual basis for the instruction.
However, there was no evidence presented that would have allowed the jury to
find that the victims had been restrained rather than abducted. While the reason the
victims had been abducted was in dispute, the fact that they had been abducted was not.
There was no factual basis on which to instruct the jury on unlawful imprisonment. 6
6
With respect to the kidnapping of the husband, any error in failing to give the
instruction would have been harmless. It has long been recognized that the failure to
instruct on a lesser included offense is not prejudicial error when the jury has been
instructed on a different included offense and still returns a verdict on the greater crime.
See State v. Guilliot, 106 Wn. App. 355, 368-369, 22 P.3d 1266 (discussing cases),
review denied, 145 Wn.2d 1004 (2001); State v. Hansen, 46 Wn. App. 292, 297-298, 730
P.2d 706, 737 P.2d 670 (1987).
6
No. 34076-7-III; 34957-8-III
State v. Yallup; In re Pers. Restraint of Yallup
The trial court correctly rejected the requested lesser included offense instruction.
There was no error.
Restitution Hearing and Incarceration Costs
The State concedes that Mr. Yallup was denied his restitution hearing and agrees
with appellant's request that the case be remanded for that purpose. The State also agrees
that the trial court imposed incarceration costs without conducting a proper inquiry into
Mr. Yallup's ability to pay those costs. It asks that we remand for the trial court to strike
the requirement rather than undergo the expense of returning Mr. Yallup for a
resentencing hearing. We partially accept these concessions.
By statute, Mr. Yallup had a right to request a restitution hearing. RCW
9.94A.753. As a component of a sentencing hearing, Mr. Yallup also has a right to be
present for the hearing. State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038 (1993);
CrR 3.4(a).
At sentencing, Mr. Yallup's counsel asked the court to ignore the restitution
requests by insurance companies, arguing that they had accepted the risk of loss due to
their contracts with the victims. He also made the following argument:
The same is true for the Washington Cities Insurance Fund and the self-
insurance for the city of Sunnyside. I haven't seen any bills from the city
of Sunnyside or from the Washington Insurance Authority. If the court
7
No. 34076-7-111; 34957-8-111
State v. Yallup; In re Pers. Restraint of Yallup
wants to impose those, I'd simply ask that we do a restitution hearing with
respect to those matters.
RP at 556. The trial court apparently rejected his contention that the insurance
companies were not entitled to restitution. 7 The court did not address counsel's request
for a restitution hearing. That was error.
We thus remand for a restitution hearing. However, that hearing is limited to the
restitution related to the city of Sunnyside's losses because that was the only request
made by defense counsel; his challenge to the insurance company claims was a meritless
legal argument. The trial court has discretion, if it so desires, to broaden the scope of the
hearing on remand. If there is a restitution hearing, the court can take up the matter of the
defendant's ability to pay incarceration costs.
If the State elects to not pursue restitution for the city, then the court can enter an
amended restitution order by agreement without the need of a hearing. It may also enter
an order striking the incarceration costs at that time.
We remand these issues for further proceedings as described.
Personal Restraint Petition
Mr. Yallup in his PRP contends that his various attorneys have conspired against
him and that the judge who heard a pretrial motion was biased against him. He presents
7
It is entirely appropriate to order restitution to insurance companies that have had
lI
to pay for losses caused by a defendant's criminal actions. State v. Ewing, 102 Wn. App.
349, 7 P.3d 835 (2000).
i
'
8 I
Ir
I
No. 34076-7-III; 34957-8-III
State v. Yallup; In re Pers. Restraint of Yallup
insufficient evidence to establish his conspiracy claim and fails to demonstrate judicial
bias.
We begin by noting the petitioner's heavy burdens in this action. Because of the
significant societal costs of collateral litigation often brought years after a conviction and
the need for finality, relief will only be granted in a PRP if there is constitutional error
that caused substantial actual prejudice or if a nonconstitutional error resulted in a
fundamental defect constituting a complete miscarriage of justice. In re Pers. Restraint
of Woods, 154 Wn.2d 400,409, 114 P.3d 607 (2005). It is the petitioner's burden to
establish this "threshold requirement." Id. To do so, a PRP must present competent
evidence in support of its claims. In re Pers. Restraint ofRice, 118 Wn.2d 876, 885-886,
828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). If the facts alleged would potentially
entitle the petitioner to relief, a reference hearing may be ordered to resolve the factual
allegations. Id. at 886-887.
Here, Mr. Yallup has presented no evidence in support of his conspiracy contentions.
Accordingly, we do not further discuss mention them. Thanks to a very helpful PRP
response from the State, we have an understanding of Mr. Yallup's bias argument.
On the eve of a trial date, nearly two years after the incidents that gave rise to the
charges, the State provided disclosure of a recorded statement made by Mr. Yallup while in
the hospital and a police report concerning that interview. His counsel moved to dismiss
the case for governmental mismanagement due to the late disclosure. The motion judge,
9
No. 34076-7-III; 34957-8-III
State v. Yallup; In re Pers. Restraint of Yallup
the Honorable David Elofson, instead decided to exclude the evidence and found that trial
counsel had not rendered ineffective assistance in failing to investigate the episode. The
court, however, also let defense counsel withdraw and a new attorney was appointed.
No transcript of the hearing before Judge Elofson was ordered up for the appeal.
Mr. Yallup complains about that fact, as well as the fact that there is a gap in the recorded
911 call. The PRP fails to establish how these alleged deficiencies prejudiced him at trial
or on appeal. He also fails to establish that Judge Elofson was biased against him. The
fact that the judge did not rule as Mr. Yallup desired simply does not establish bias.
Neither does it establish that the judge was a participant in a conspiracy against him.
The PRP fails to meet its burdens of proving facts that support the claims and that
there was prejudicial error entitling him to relief.
The PRP is dismissed. The convictions are affirmed and the restitution matter is
remanded for further proceedings consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
10