Opinion
No. 57855-7-II
08-27-2024
STATE of Washington, Respondent, v. Theodore Russell BONAPARTE, Appellant
Kate Huber, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant. Randall Avery Sutton, Kitsap County Prosecuting Attorney’s Office, 614 Division St. Ms-35, Port Orchard, WA, 98366-4681, Prosecutor’s Office - Criminal Division Kitsap County, 614 Division Street, Ms-35, Port Orchard, WA, 98367, John L. Cross, Kitsap County Prosecutor’s Office, 614 Division St., Port Orchard, WA, 98366-4681, for Respondent.
Appeal from Kitsap Superior Court, Docket No: 20-1-01376-3, Honorable Sally F. Olsen, Judge.
Kate Huber, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant.
Randall Avery Sutton, Kitsap County Prosecuting Attorney’s Office, 614 Division St. Ms-35, Port Orchard, WA, 98366-4681, Prosecutor’s Office - Criminal Division Kitsap County, 614 Division Street, Ms-35, Port Orchard, WA, 98367, John L. Cross, Kitsap County Prosecutor’s Office, 614 Division St., Port Orchard, WA, 98366-4681, for Respondent.
PART-PUBLISHED OPINION
Lee, J.
¶ 1 Theodore R. Bonaparte appeals his conviction for first degree unlawful possession of a firearm following a jury trial. Specifically, Bonaparte argues that his conviction is in violation of the Second Amendment because the State failed to prove a historical tradition of restricting firearms rights of individuals who have previously been convicted of first degree assault. We hold that because the Second Amendment right to keep and bear arms is not unlimited and Bonaparte is a convicted felon, Bonaparte’s Second Amendment claim fails. Accordingly, we affirm Bonaparte’s conviction.
¶2 In the unpublished portion of this opinion, we address Bonaparte’s argument that (1) the prosecutor committed misconduct by (a) violating court rulings, (b) misstating the law, (c) trivializing the State’s burden of proof, and (d) impermissibly shifting the burden of proof; (2) even if each individual instance of prosecutorial misconduct is not reversible error, the cumulative effect of the prosecutor’s misconduct necessitates reversal; and (3) the crime victim penalty assessment (CVPA) imposed by the trial court should be stricken because he is indigent.
¶ 3 We hold that because Bonaparte cannot demonstrate either improper conduct or prejudice, the prosecutor did not commit misconduct. However, because Bonaparte is indigent and his case is not yet final, the CVPA is improper. Therefore, we affirm Bonaparte’s conviction, but we remand for the trial court to strike the CVPA from Bonaparte’s judgment and sentence.
FACTS
¶4 On October 2, 2020, Detective Brandon Smith was dispatched to a hotel in Bremerton in response to a request for help to keep the peace. Bonaparte and his girlfriend, Amber Lewis, had been staying at the hotel for several days and had been trespassed from the premises at the end of September. When Bonaparte and Lewis were trespassed, they left behind "[a]n entire room of belongings." Verbatim Rep. of Proc. (VRP) (Dec. 28, 2022) at 251. Bonaparte and Lewis had arranged with the hotel a time to retrieve their items, and Bonaparte requested Detective Smith’s presence.
In October 2020, Detective Smith was a patrol officer.
¶5 When the hotel trespasses a guest, hotel policy directs hotel staff to record any belongings left behind and to store those items in a secure area. This includes identifying and logging general items in bags or suitcases. The hotel does so to avoid liability.
¶6 The hotel general manager, Chasaba Constable, and the maintenance manager, Thomas Christiansen, catalogued the items in Bonaparte and Lewis’s room. One of the items was a blue suitcase. Christiansen opened the suitcase to assess its contents. In the suitcase, Christiansen discovered a load- ed gun, along with an extended magazine and 20 extra bullets.
¶ 7 After Bonaparte’s request for law enforcement to accompany him to the hotel to retrieve his belongings, Detective Smith reached out to the hotel. Constable advised Detective Smith of the gun and expressed concern that Bonaparte "might retaliate for being trespassed." Clerk’s Papers (CP) at 3. Detective Smith informed Constable that he would arrive in advance of Bonaparte and Lewis to take possession of the gun. Detective Smith then ran both Bonaparte’s and Lewis’s names through police databases. He discovered that both Bonaparte and Lewis were felons and that Bonaparte was currently on community custody from a prior conviction.
¶8 When Detective Smith arrived at the hotel, the hotel staff had piled Bonaparte’s and Lewis’s belongings on luggage carts. Constable directed Detective Smith to a separate box in which staff had placed the gun and some other items—specifically drugs and drug paraphernalia. Constable told Detective Smith that she and Christiansen had found the gun in the "blue suitcase." VRP (Dec. 28, 2022) at 220. Detective Smith ran the gun’s serial number and determined that it had been stolen. He then secured the gun in his vehicle.
¶9 Detective Smith called Bonaparte, informed Bonaparte he was at the hotel for the standby, and asked about the gun. Bonaparte denied any knowledge of the gun. The hotel staff moved Bonaparte’s and Lewis’s items outside the hotel when Bonaparte and Lewis arrived.
¶10 While Bonaparte and Lewis collected their items, Detective Smith asked Bonaparte about the blue suitcase. Bonaparte replied that the suitcase was his and that it had " ‘been with [him] everywhere.’ " VRP (Dec. 28, 2022) at 222. Bonaparte and Lewis finished collecting their things and departed.
¶11 The next day, Detective Smith returned to the hotel to ask hotel staff follow-up questions regarding the gun. Specifically, Detective Smith sought to confirm the exact details of how the gun was discovered, other individuals who might have been in the vicinity, and places Bonaparte’s suitcase might have been left unattended. According to Constable, the property of trespassed individuals stays secured and is not generally accessible.
¶12 Based on a prior conviction for first degree assault, the State charged Bonaparte with one count of unlawful possession of a firearm in the first degree. Prior to trial, Bonaparte stipulated that he was convicted of a "serious offense" in August 2009. CP at 12. The trial court accepted Bonaparte’s stipulation.
Bonaparte’s conviction for first degree assault was based on an incident in which Bonaparte attempted to rob the driver of a vehicle by first punching the driver in the face and then during the ensuing struggle, shot the driver in the leg and then fired a second shot through the driver side window in an apparent miss.
¶13 The jury found Bonaparte guilty of first degree unlawful possession of a firearm. The trial court sentenced Bonaparte to 48 months’ total confinement.
¶14 Bonaparte appeals.
ANALYSIS
¶15 Bonaparte argues that under the Second Amendment and New York State Rifle & Pistol Association, Inc. v. Bruen, (New York State Rifle), the State must prove a "historical tradition of depriving a person of the right to possess a firearm based on a prior conviction for assault in the first degree." Br. of Appellant at 36. Specifically, Bonaparte asserts that the State has failed to prove any such historical tradition, and accordingly, his prohibition against possessing a firearm is unconstitutional and his conviction should be reversed and dismissed with prejudice. We disagree.
597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022).
A. Legal Principles
1. Second Amendment
[1] ¶16 The Second Amendment of the United States Constitution states: "A well-regulated Militia, being necessary to the se- curity of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Second Amendment protects the right of "ordinary, law-abiding citizen[s]." N.Y. State Rifle, 597 U.S. at 9, 142 S.Ct. 2111.
¶17 In District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment confers "an individual right to keep and bear arms." 554 U.S. 570, 595, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Heller addressed a District of Columbia prohibition on handguns in the home. Id. at 574-75, 128 S.Ct. 2783. The Court clarified that the individual right to keep and bear arms is not unlimited. Id. at 595, 128 S.Ct. 2783; accord United States v. Rahimi, 602 U.S. —, 144 S. Ct. 1889, 1897, 219 L. Ed. 2d 351 (2024) (stating "the right was never thought to sweep indiscriminately").
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Heller, 554 U.S. at 626-27, 128 S.Ct. 2783 (emphasis added).
¶18 This principle of limiting the right to possess firearms was echoed in McDonald v. City of Chicago, which addressed a similar ban on handguns in the home. 561 U.S. 742, 750, 786, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).
We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." We repeat those assurances here.
Id. at 786, 130 S.Ct. 3020 (citation omitted) (quoting Heller, 554 U.S. at 626-27, 128 S.Ct. 2783).
¶19 In New York State Rifle the Court, held "that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home." 597 U.S. at 10, 142 S.Ct. 2111. In that case, applicants challenged New York’s licensing scheme regarding the right to carry handguns in public for self-defense. Id. at 11, 142 S.Ct. 2111. New York conditioned "issuance of a license to carry on a citizen’s showing of some additional special need" rather than the purely objective criteria of a shall-issue licensing regime. Id.
¶20 As part of its analysis, New York State Rifle clarified a framework under which to analyze Second Amendment challenges. Id. at 17. Specifically, the Court held:
To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s "unqualified command."
Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 n.10, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961)).
[2] ¶21 Nevertheless, the Court also stated:
To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. … [A]nalogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
Id. at 30, 142 S.Ct. 2111 (emphasis in original). To that end, "shall-issue" licensing regimes, "which often require applicants to undergo a background check or pass a firearms safety course," are lawful because they do not infringe upon " ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry." Id. at 38 n.9, 81 S. Ct. 997 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783).
In his concurrence, Justice Alito stated that nothing in New York State Rifle "disturbed anything that [the Court] said in Heller or McDonald … about restrictions that may be imposed on the possession or carrying of guns." 597 U.S. at 72, 142 S.Ct. 2111 (Alito, J., concurring). Similarly, Justice Kavanaugh stated, "Properly interpreted, the Second Amendment allows a 'variety' of gun regulations," Id. at 80, 142 S.Ct. 2111 (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 636, 128 S.Ct. 2783).
[3] ¶22 Most recently in Rahimi, the United States Supreme Court held that "[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed" without violation of the Second Amendment. 144 S. Ct. at 1891. Rahimi reiterated Heller's directive that prohibitions on the possession of firearms by felons and the mentally ill are presumptively lawful. Id. at 1902. Further, Rahimi reemphasized the analysis under New York State Rifle that instructs courts to examine our Nation’s historical tradition of firearms regulations. Id. at 1896-99. Specifically, "the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition." Id. at 1998 (emphasis added). If a challenged regulation does not exactly "match its historical precursors," it may still pass constitutional muster. Id.; see id. at 1901 (discussing how historical surety laws and "going armed laws," though not historical twins, provided a sufficient analogue for 18 U.S.C. § 922(g)(8)).
2. Washington Unlawful Possession of a Firearm Statute
¶23 Washington’s unlawful possession of a firearm statute provides: "A person … is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, accesses, has in the person’s custody, control, or possession, or receives any firearm after having previously been convicted … in this state or elsewhere of any serious offense." RCW 9.41.040(1)(a). However, in certain circumstances, individuals who have been prohibited from possessing firearms under RCW 9.41.040 have a mechanism under which to restore their firearm rights. RCW 9.41.041.
[4, 5] ¶24 Courts presume statutes are constitutional and the challenger bears the burden of proving otherwise. State v. Batson, 196 Wash.2d 670, 674, 478 P.3d 75 (2020); State v. Ross, 28 Wash. App. 2d 644, 646, 537 P.3d 1114 (2023), review denied, 2 Wash.3d 1026, 544 P.3d 30 (2024). The constitutionality of a statute is reviewed de novo. Batson, 196 Wash.2d at 674, 478 P.3d 75.
¶25 In Ross, the court held that RCW 9.41.040(1) is facially constitutional. 28 Wash. App. 2d at 651, 537 P.3d 1114. Ross also held that "consistent with Heller, McDonald, and [New York State Rifle], the Second Amendment does not bar the state from prohibiting the possession of firearms by felons:" Id.
B. Bonaparte’s Second Amendment Claim Fails
[6, 7] ¶26 As discussed above, the Second Amendment does not bar the state from prohibiting the possession of firearms by felons. Heller, 554 U.S. at 626-27, 128 S.Ct. 2783. And RCW 9.41.040, which prohibits the possession of firearms by felons, is constitutional. Ross, 28 Wash. App. 2d at 651, 537 P.3d 1114.
[8] ¶27 However, Bonaparte highlights his specific prior conviction for first degree assault and challenges whether our nation has a historical tradition of restricting firearms rights of "people with prior assault convictions." Br. of Appellant at 40. Without saying so directly, Bonaparte appears to mount an as-applied challenge. Thus, our opinion addresses the constitutionality of RCW 9.41.040 as applied to Bonaparte.
¶28 Prior to trial, Bonaparte stipulated that he was convicted of a "serious offense." CP at 12. A prior conviction for a serious offense is a required element of unlawful possession of a firearm. RCW 9.41.040(1)(a). A jury found that the State met its burden as to the elements of unlawful possession of a firearm and found Bonaparte guilty. ¶29 Bonaparte’s case is similar to that of the appellant in Ross. Ross had been convicted of first degree unlawful possession of a firearm based on a prior conviction for second degree burglary, a serious offense. Ross, 28 Wash. App. 2d at 645-46, 537 P.3d 1114. Ross argued, as Bonaparte does here, that under the Second Amendment and New York State Rifle, RCW 9.41.040 was unconstitutional as applied to him. Id. at 645, 537 P.3d 1114. Specifically, and again similar to Bonaparte, Ross contended that the "government [could not] justify restricting the possession of firearms for those with nonviolent felony convictions." Id. at 646, 537 P.3d 1114. The court rejected Ross’ contention, largely based on the recognition by the United States Supreme Court that "the Second Amendment did not preclude prohibitions on felons possessing firearms." Id. at 649, 537 P.3d 1114. We hold the same.
Following submission of the parties' briefs, Ross was denied review by the Washington Supreme Court. State v. Ross, 2 Wash.3d 1026, 544 P.3d 30 (2024).
¶30 Bonaparte argues that " ‘[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.’" Br. of Appellant at 38 (quoting N.Y. State Rifle, 597 U.S. at 17, 142 S.Ct. 2111). Therefore, Bonaparte asserts, although he has a prior conviction for first degree assault, he has a constitutional right to keep and bear arms. However, the United States Supreme Court has stated and reiterated that the Second Amendment protects the right of "ordinary, law-abiding citizens" to keep and bear arms. N.Y. State Rifle, 597 U.S. at 9, 142 S.Ct. 2111; accord Rahimi, 144 S. Ct. at 1897. Bonaparte fails to persuade us that the Constitution prohibits a restriction on the right to keep and bear arms for persons convicted of a felony.
¶31 In New York State Rifle, the Court found the New York licensing regime unconstitutional because it restricted the rights of " ‘law-abiding, responsible citizens.’ " 597 U.S. at 38 n.9, 142 S.Ct. 2111 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783). New York State Rifle articulated that courts should analyze "how and why the [challenged] regulations burden a law-abiding citizen’s right to armed self-defense." Id. at 29, 142 S.Ct. 2111 (emphasis added).
[9] ¶32 Heller, McDonald, and Rahimi functionally recognized the same principle. Heller, 554 U.S. at 635, 128 S.Ct. 2783; McDonald, 561 U.S. at 786, 130 S.Ct. 3020; Rahimi, 144 S. Ct. at 1896. Indeed, "the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ " McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783). Thus, the framework articulated in New York State Rifle of the government’s need to demonstrate that a firearm restriction is "consistent with this Nation’s historical tradition" applies to restrictions on a law-abiding citizen’s right to bear arms and is simply not applicable here because Bonaparte has been convicted of a felony, first degree assault, which is a serious offense.
¶33 Bonaparte cites to Range v. Attorney General United States of America, 69 F.4th 96 (3d Cir. 2023), vacated and remanded sub nom, Garland v. Range, No. 23-374, — U.S. —, 144 S.Ct. 2706, — L.Ed.2d — (U.S. July 2, 2024), for the proposition that Second Amendment protections are not limited to only law-abiding, responsible citizens. In that case, Range sought a declaratory judgment that the federal "felon-in-possession" law violated the Second Amendment as applied to him. Range, 69 F.4th at 100. Range had pleaded guilty to "one count of making a false statement to obtain food stamps in violation of Pennsylvania law" and served three years’ probation as a result. Id. at 98. Even though the transgression was classified as a misdemeanor, the offense was technically punishable by up to five years in prison. Id. The federal statute at issue, 18 U.S.C. § 922(g)(1), prohibited possession of a firearm of one "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year." Therefore, Range’s prior conduct was captured by the federal statute.
¶34 The Third Circuit held that Range was included among " ‘the people’ " protected by the Second Amendment. Range, 69 F.4th at 106. Further, the government failed to demonstrate "a longstanding history and tradition" of restricting firearms rights of people like Range. Id.
[10, 11] ¶35 Range is distinguishable as it addressed an entirely different set of circumstances not applicable here. First, Bonaparte is a felon who committed a serious offense, unlike the challenger in Range. Second, the federal felon-in-possession statute is not comparable to Washington’s unlawful firearm possession statute. And third, we are not bound by the Third Circuit Court of Appeals. Moreover, we note that the Third Circuit’s holding was a "narrow one," and the United States Supreme Court recently granted certiorari, vacated judgment, and remanded to the Third Circuit "for further consideration" in light of Rahimi. Id.; Range, — U.S. at —, 144 S.Ct. 2706, 2024 WL 3259661, at *1.
Rahimi bolsters this distinction. Indeed, its holding aside, Rahimi states, "From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others." 144 S. Ct. at 1899. The record establishes, and as evidenced by his conviction for first degree assault, that Bonaparte harmed another.
¶36 Furthermore, other circuit courts post-New York State Rifle have recently upheld prohibitions on the possession of firearms by non-violent felons. In United States v. Dubois, appellant Andre Dubois, a convicted felon, attempted to ship a box containing firearms to the Commonwealth of Dominica. 94 F.4th 1284, 1288 (11th Cir. 2024). Dubois had a prior felony conviction for drug trafficking. Id. at 1291. He argued that the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), violated his Second Amendment right to bear arms and that New York State Rifle abrogated prior Circuit precedent upholding the federal felon-in-possession statute. Id.
¶37 In Dubois, the 11th Circuit articulated New York State Rifle’s holding—namely that it rejected "the second part of a two-step test that then prevailed in most circuits." Id. at 1292. However, the Dubois court noted that New York State Rifle approved the first step of the framework as " ‘broadly consistent with Heller,’ " which asks "whether the challenged law burdened conduct that falls within the scope of the Second Amendment," as historically understood. Id. (quoting N.Y. State Rifle, 597 U.S. at 19, 142 S.Ct. 2111). As discussed above, Heller has been interpreted "as limiting the [Second Amendment] right to ‘law-abiding and qualified individuals’ and as clearly excluding felons from those categories by referring to felon-in-possession bans as presumptively lawful." Id. at 1293 (quoting United States v. Rozier, 598 F.3d 768, 771 n.6 (11th Cir.), cert. denied, 560 U.S. 958, 130 S.Ct. 3399, 177 L.Ed.2d 313 (2010)). While Bonaparte may argue that New York State Rifle says nothing of felons, "[New York State Rifle] repeatedly stated that its decision was faithful to Heller," which clearly holds that longstanding prohibitions on the possession of firearms by felons is presumptively lawful. Id. at 1293.
¶38 Indeed, Bonaparte neglects to address the United States Supreme Court’s repeated articulation that prohibitions on the possession of firearms by felons are presumptively lawful or more general language that the Second Amendment right to keep and bear arms is "not unlimited." Heller, 554 U.S. at 595, 128 S.Ct. 2783. Only in his reply brief does Bonaparte assert that we should disregard such language because no court has "explain[ed]" the "historical basis" for presumptive lawfulness of such laws. Reply Br. of Appellant 18. This argument is unpersuasive.
¶39 Furthermore, Bonaparte’s attempt to distinguish "people with prior assault convictions" is, much like the appellant’s argument in Ross, a making of his own construct. See Ross, 28 Wash. App. 2d at 651, 537 P.3d 1114. As the Ross court stated, "Neither [New York State Rifle] nor Heller frame[s] the analysis in terms of violent versus nonviolent felons," let alone "people with prior assault convictions" versus "people with prior non-assault convictions." See id. Thus, the distinction of "people with prior assault convictions" is of no moment.
[12–15] ¶40 An individual’s right to keep and bear arms is not unlimited. Heller, 554 U.S. at 595, 128 S.Ct. 2783. In applying the "historical tradition" framework articulated in New York State Rifle, courts analyze "how and why the [challenged] regulations burden a law-abiding citizen’s right to armed self-defense." N.Y. State Rifle, 597 U.S. at 29, 142 S.Ct. 2111 (emphasis added). As the unlawful possession of a firearm statute, RCW 9.41.040(1)(a), does not burden a law-abiding citizen’s right to keep and bear arms and Bonaparte is a convicted felon, the "historical tradition" framework articulated in New York State Rifle is not applicable to his challenge. Therefore, we hold that Bonaparte’s claim fails.
Bonaparte also spends multiple pages of his brief discussing how gun restrictions historically prohibited people of color from possessing firearms and how race-neutral restrictions still disparately affect people of color, such as Bonaparte, today. Bonaparte argues, "By strictly limiting when the government can deprive a person of their firearm rights, this Court can achieve the goals of the Second Amendment and work to reduce racial disparity." Br. of Appellant at 45. However, Bonaparte does not appear to actually raise a racial disparity challenge to RCW 9.41.040 nor argue that he was treated in a discriminatory manner. To the extent this is a policy argument, "[p]olicy arguments ‘are more properly addressed to the Legislature, not to the courts.’ " Ross, 28 Wash. App. 2d at 653 n.4, 537 P.3d 1114 (quoting Blomster v. Nordstrom, Inc., 103 Wash. App. 252, 258, 11 P.3d 883 (2000)).
CONCLUSION
¶41 We affirm Bonaparte’s conviction for first degree unlawful possession of a firearm, but we remand for the trial court to strike the CVPA from Bonaparte’s judgment and sentence.
¶42 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Maxa, P.J.
Che, J.