State of Washington v. Adelemo Beltran, Jr.

FILED
MAR 21, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30004-8-111
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ADELELMO BELTRAN, JR., )
)
Appellant. )
KORSMO, C.J. - Adelelmo Beltran Jr. challenges his exceptional sentence,
arguing that the rapid recidivism factor is unconstitutionally vague. We disagree and
affirm the conviction and sentence.
FACTS
Mr. Beltran was charged with custodial assault after he fought with community
corrections officers around 6:00 p.m. on February 9, 2011. He had been released from
the Grant County Jail the previous day at 11 :50 a.m. after completing a sentence on a
third degree assault conviction. One condition of that judgment and sentence was that he
was to have no contact with his brother, Gumaro Beltran Santos.
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State v. Beltran
The two corrections officers, accompanied by three officers from the Quincy
Police Department, performed a home visit in Quincy the day following his release. Mr.
Beltran answered the door and admitted to the officers that his brother was inside the
residence. The community corrections officers advised Mr. Beltran he was under arrest
for violating the no contact order. A fight ensued.
Mr. Beltran was charged with two counts of third degree assault of the corrections
officers, felony harassment, resisting arrest, and violation ofthe no contact order. The
prosecutor also sought an exceptional sentence on the felony offenses due to rapid
recidivism. The harassment charge was dismissed during trial. The jury convicted on
one oftwo counts of custodial assault and acquitted on the other count. The jury also
found Mr. Beltran guilty of resisting arrest and violating the no contact order. The jury
also unanimously returned a special verdict that found that the custodial assault had been
committed shortly after release from incarceration.
The trial court sentenced Mr. Beltran on the custodial assault count to the top end
of the standard range, 12 months, and imposed an additional 12 months due to the rapid
recidivism finding. The other counts received lesser concurrent sentences. Mr. Beltran
timely appealed to this court.
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ANALYSIS
Both of Mr. Beltran's issues attack the 24-month sentence for custodial assault due
to the rapid recidivism finding. In particular, he argues- that the aggravating factor is
unconstitutionally vague and that the jury was erroneously instructed on the need to reach
unanimity on the special verdict.
RCW 9.94A.535(3)(t) provides that it is an aggravating factor that "[t]he
defendant committed the current offense shortly after being released from incarceration."
Mr. Beltran argues that the words "shortly after" give insufficient notice and are therefore
vague. This court has previously rejected this argument.
A statute is unconstitutionally vague if (1) it does not define the offense with
sufficient definiteness so that ordinary people can understand what conduct is prohibited,
or (2) it does not provide ascertainable standards of guilt to protect against arbitrary
enforcement. City o/Spokane v. Douglass, 115 Wash. 2d 171, 178, 795 P.2d 693 (1990).
The reviewing court presumes that a statute is constitutional, and the party challenging
the statute's constitutionality bears the burden of proving the statute's invalidity beyond a
reasonable doubt. City o/Seattle v. Eze, 111 Wn.2d 22,26, 759 P.2d 366 (1988).
This court most recently considered RCW 9.94A.535(3)(t) in State v. Zigan, 166
Wn. App. 597,270 P.3d 625, review denied, 174 Wash. 2d 1014 (2012). There the
defendant challenged on vagueness grounds application of the rapid recidivism factor to a
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State v. Beltran
vehicular homicide which occurred two months after he was released from prison. Id. at
600,603. This court ruled that while the statute requires some subjective evaluation, it
was not unconstitutionally vague. Id. at 605. We concluded that "[n]o reasonable person
could believe that the circumstances presented here constitute anything other' [t]han the
defendant committed the current offense shortly after being released. '" Id. (second
alteration in original) (quoting RCW 9.94A.535(3)(t)).
Our courts have considered RCW 9.94A.535(3)(t) and the term "shortly after" on
mUltiple occasions. See, e.g., State v. Williams, 159 Wash. App. 298, 320, 244 P.3d 1018(rejecting vagueness challenge and upholding exceptional sentence where current third
degree assault was committed within 24 hours of release on a prior third degree assault
conviction), review denied, 171 Wash. 2d 1025 (2011); State v. Combs, 156 Wash. App. 502,
506, 232 P.3d 1179 (2010) (holding that an eluding offense committed six months after
release from prison was not an offense committed "shortly after being released"); State
v. Saltz, 137 Wash. App. 576, 585, 154 P.3d 282 (2007) (affinning exceptional sentence
where the defendant committed malicious mischief 30 days after release); State v. Butler,
75 Wash. App. 47, 55, 876 P.2d 481 (1994) (upholding exceptional sentence where
defendant committed two offenses on the same day he was released from prison).
These cases bear out our observation in Combs that "what constitutes a short
period of time" necessarily ''will vary with the circumstances of the crime involved."
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156 Wn. App. at 506. Williams is very close factually to this case. There a third degree
assault committed 24 hours after release from a sentence on another third degree assault
was "shortly after being released." Similarly here, Mr. Beltran's release from custody on
a third degree assault occurred only 30 hours before he committed the similar offense of
custodial assault. As with the Williams court, we agree that the current offense was
committed "shortly after" being released from custody.
Mr. Beltran has failed to meet his burden to show that RCW 9.94A.535(3)(t) is
void for vagueness. A statute is not unconstitutional merely because it requires a
subjective evaluation. Douglass, 115 Wn.2d at 181. Whether an offense is committed
"shortly after" release is inherently a factual question left to the trier-of-fact. RCW
9.94A.535(3)(t) is not vague as applied here. An ordinary person would believe that
committing any similar new crime within 30 hours of release would be considered
"shortly after" under RCW 9.94A.535(3)(t).
Mr. Beltran also argues that the trial court erred in requiring the jury to be
unanimous in its special verdict. Subsequent to the filing of the appellant's brief, the
Washington Supreme Court unanimously rejected his argument in State v. Guzman
Nunez, 174 Wash. 2d 707, 285 PJd 21 (2012). In light of Guzman Nunez, his argument has
no merit.
The convictions and sentence are affirmed.
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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:
I
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