Opinion
No. 60704-9-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-01881-2, Cheryl B. Carey, J., entered September 10, 2007.
Affirmed by unpublished per curiam opinion.
Where a special statute punishes conduct that is in each instance also punishable under a general statute, the statutes are concurrent and principles of statutory construction require the defendant to be charged under the special statute. The general statute for first degree theft and the special statute for second degree taking of a motor vehicle without permission are not concurrent. Thus, the State was not required to charge Skyler Kaizuka under the latter statute.
State v. Walker, 75 Wn. App. 101, 105, 879 P.2d 957 (1994).
A defendant's right to equal protection of the law is violated when the State, by selecting the crime to be charged, can arbitrarily obtain varying degrees of punishment while proving the same elements. There is no equal protection violation here because the statutes in question require proof of different elements.
State v. Williams, 62 Wn. App. 748, 754, 815 P.2d 825 (1991).
There is sufficient evidence in the record to support the conviction of first degree theft. Finally, the trial court dismissed the charge on which Kaizuka bases his claim of double jeopardy. Thus, that claim is moot.
We affirm.
The appellant, Skyler Kaizuka, had a penchant for stealing Toyota Camrys. Between January and April of 2007, he was involved in stealing at least twelve different automobiles.
Among other crimes, a jury found Kaizuka guilty of nine counts of second degree taking of a motor vehicle without permission and three counts of first degree theft.
Kaizuka appeals.
PECIAL AND GENERAL STATUTES
Kaizuka argues that the State should have only charged him with the more specific crime of second degree taking of a motor vehicle without permission rather than the three counts of first degree theft. We disagree.
"It is a well-settled rule of statutory construction that where a special statute punishes conduct that is punished under a general statute, the defendant must be charged under the special statute." "Criminal statutes are concurrent when a general statute is violated in each instance the special statute is violated." In determining whether statutes are concurrent, "the deciding factor is not whether a defendant's specific conduct violates both the special and general statute. Rather, the special statute will supersede the general only `[s]o long as it is not possible to commit the special crime without also committing the general crime.'" "Additional elements in the special statute are irrelevant to this determination."
Walker, 75 Wn. App. at 105 (citing Williams, 62 Wn. App. at 750; State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984); State v. Cann, 92 Wn.2d 193, 196, 595 P.2d 912 (1979)).
State v. Hupe, 50 Wn. App. 277, 279, 748 P.2d 263 (1988) (citing Shriner, 101 Wn.2d at 579-80).
Williams, 62 Wn. App. at 753-54 (quoting Shriner, 101 Wn.2d at 583) (emphasis added in Williams).
Walker, 75 Wn. App. at 105 (citing Shriner, 101 Wn.2d at 583).
Here, Kaizuka argues that because his "modus operandi" was the same for each of the 12 automobiles that he was charged with stealing, the State was required to charge him with only the special offense of second degree taking of a motor vehicle without permission. Kaizuka's argument is without merit because it fails to address whether second degree taking of a motor vehicle without permission and first degree theft are concurrent, thus requiring application of the special statute.
The applicable elements of first degree theft are "(1) wrongfully obtaining or exerting unauthorized control over (2) the property of another valued in excess of $1,500 (3) with intent to deprive." First degree theft is a class B felony.
Walker, 75 Wn. App. at 106 (extrapolating statutory elements from RCW 9A.56.020(1)(a) (defining "Theft") and RCW 9A.56.030(1)(a) (elements of first degree theft)).
The crime of second degree taking of a motor vehicle without permission can be committed by two alternative means.
Under the "taking" prong, the elements are: (1) taking or driving away without the owner's permission (2) a motor vehicle (3) intentionally. Under the riding prong, the elements are: (1) voluntarily riding in a motor vehicle (2) with knowledge that it was unlawfully taken.
Walker, 75 Wn. App. at 106 (extrapolating elements of second degree taking of a motor vehicle without permission from statutory language since re codified under RCW 9A.56.075(1)).
Violation of either prong is a class C felony.
By taking a motor vehicle worth less than $1,500, one can commit second degree taking of a motor vehicle without permission without committing first degree theft. In essence, it is entirely possible to violate the special statute for second degree taking of a motor vehicle without permission without violating the general statute for first degree theft. Therefore, the statutes in this case are not concurrent.
We applied the same reasoning in State v. Walker. There, the defendant, like Kaizuka, argued that first degree theft and second degree taking of a motor vehicle without permission were concurrent and that the State, therefore, should have charged him with the more specific crime. Applying the reasoning above, this court disagreed, stating that "the [second degree taking of a motor vehicle without permission] statute can be violated without violating the first degree theft statute." Now, as then, the statutes are not concurrent.
75 Wn. App. 101, 106, 879 P.2d 957 (1994).
Id. at 105.
Id. at 106.
Because the statutes in question are not concurrent, the State was not required to charge Kaizuka with second degree taking of a motor vehicle without permission. The theft convictions stand.
EQUAL PROTECTION
Kaizuka next argues that the State's charging decision violated his right to equal protection. We disagree.
"Equal protection is violated when two statutes declare the same acts to be crimes, but the penalty is more severe under one statute than the other." Said differently, the State, by selecting the crime to be charged, may not obtain varying degrees of punishment while proving identical elements. However, "we have long held that there is no equal protection violation when the crimes the prosecutor has discretion to charge require proof of different elements." When crimes have different elements, the prosecutor's discretion is not arbitrary, but is constrained by which elements can be proved under the circumstances.
Williams, 62 Wn. App. at 754 (citing State v. Leech, 114 Wn.2d 700, 711, 790 P.2d 160 (1990)).
State v. Karp, 69 Wn. App. 369, 372, 848 P.2d 1304 (1993) (citing Hupe, 50 Wn. App. at 280). See also Cann, 92 Wn.2d at 196 ("equal protection . . . is denied when a prosecutor is permitted to seek varying degrees of punishment when proving identical criminal elements.").
In re Taylor, 105 Wn.2d 67, 68, 711 P.2d 345 (1985) (citing State v. Wanrow, 91 Wn.2d 301, 312, 588 P.2d 1320 (1978); State v. Reid, 66 Wn.2d 243, 401 P.2d 988 (1965)). See also Leech, 114 Wn.2d at 711 (citing Taylor).
City of Kennewick v. Fountain, 116 Wn.2d 189, 193, 802 P.2d 1371 (1991).
Here, the statutes for second degree taking of a motor vehicle without permission and first degree theft require proof of different elements. While Kaizuka contends that his actions in stealing each automobile were identical, none of his arguments address the glaring distinction between the elements of second degree taking of a motor vehicle without permission and first degree theft, namely, a $1,500 value requirement.
Nonetheless, Kaizuka contends that "principles of equality demand the State not select to charge greater crimes depending on the person."
Brief of Appellant at 10.
In support of his argument, Kaizuka relies on State v. Collins. There, the defendant, who had killed a pedestrian while driving, argued that the State could not charge him with the general crime of manslaughter over the more specific crime of negligent homicide. The court noted that manslaughter required proof of ordinary negligence while negligent homicide required proof of more than ordinary negligence. It held that "in all cases where the negligent homicide statute is applicable, it supersedes the manslaughter statute." The court went on to state that "[t]he principle of equality before the law is inconsistent with the existence of a power in a prosecuting attorney to elect, from person to person committing this offense, which degree of proof shall apply to his particular case."
55 Wn.2d 469, 348 P.2d 214 (1960).
Id. at 469.
Id. at 470 (citations omitted).
Id. at 470.
Id.
Kaizuka's reliance on Collins, and particularly the preceding language concerning equality, is misplaced. First, the pronouncement is dicta. Second, the Collins decision has been limited to situations where the elements of two different statutes are identical except in the burdens of proof they require (i.e., negligence versus more than ordinary negligence). Finally, any suggestion from Collins that a prosecutor cannot charge a defendant with different crimes when those crimes have different elements has been contradicted by subsequent decisions.
State v. Foster, 91 Wn.2d 466, 475-76, 589 P.2d 789 (1979) (noting that the Collins statement was dicta); City of Seattle v. Barrett, 58 Wn. App. 698, 701, 794 P.2d 862 (1990) ("[The Collins court] statement is clearly dicta. . . .").
Foster, 91 Wn.2d at 475 (holding second degree assault statute, which provides five different ways to commit the offense, constitutional because "unlike the statutes involved in Collins, the subsections of the statute in question here do not, on their face impose different burdens of proof for the same act.").
Taylor, 105 Wn.2d at 70 ("[D]ecision to charge petitioner with first degree theft instead of a violation of RCW 50.36.010 was not based on the prosecutor's unfettered discretion, but on the ability to prove the additional elements of theft."); Wanrow, 91 Wn.2d at 312 ("[N]o constitutional defect exists when the crimes which the prosecutor has discretion to charge have different elements."); Reid, 66 Wn.2d at 248 ("[D]efendant's constitutional right to equal protection of the laws is not violated by the prosecutor's exercising a discretion in deciding to prosecute or not to prosecute violation of a criminal statute."). See also Barrett, 58 Wn. App. at 701 ("[T]his statement [in Collins] . . . is inconsistent with the long standing general rule referred to in cases subsequent to Collins that when there are two statutes requiring different elements of proof, the prosecutor's decision to proceed under either or both does not violate a person's right to equal protection of the laws.").
In short, there is no equal protection violation.
SUFFICIENCY OF THE EVIDENCE
Kaizuka also contends that his convictions should be overturned because the State failed to prove the intent element of theft. We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. We will reverse a conviction for insufficient evidence only where no rational trier of fact could find that all elements of the crime were proved beyond a reasonable doubt.
State v. Hendrickson, 129 Wn.2d 61, 81, 917 P.2d 563 (1996).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005).
The words of the statute do not expressly state that the legislature intended that the theft statute incorporate the common law requirement of intent to permanently deprive. However, in Walker, we stated that "the `intent to deprive' element nevertheless implies that the deprivation be of a greater duration than that required for [second degree] taking of a motor vehicle without permission."
State v. Komok, 113 Wn.2d 810, 816-17, 783 P.2d 1061 (1989).
Here, ample evidence exists to support the jury's finding that Kaizuka intended to deprive Elaine London, Rickie Beavers, and Lien Phung of their automobiles. The evidence shows that Kaizuka stole London's car from University Village in Seattle and drove it intermittently for more than a week. The car was impounded by police at Kaizuka's brother's apartment complex. The evidence shows that Kaizuka stole Beavers's car at a Safeway in Renton and drove it to Bellevue where it was recovered several hours later when the police arrested Kaizuka at Factoria Mall. Finally, the evidence shows that Kaizuka stole Phung's car from her house and drove it for approximately two days. That vehicle was recovered after Kaizuka, then under police surveillance, fled upon seeing an officer near the vehicle at a strip mall in Renton.
These are the owners of the vehicles for which Kaizuka was charged with first degree theft in counts X, XI, and XIII, respectively. Clerk's Papers at 141-42 (Second Amended Information).
In all three cases, Kaizuka never returned the vehicle to the owner or notified the owners of the whereabouts of their vehicles. Instead, Kaizuka continued to drive each stolen car until it was impounded (London's car), he was arrested in it (Beavers's car), or he was forced to abandon it while eluding police (Phung's car). The facts and inferences here, viewed in the light most favorable to the State, are sufficient to permit a rational finder of fact to find that Kaizuka intended to deprive these victims of their automobiles.
Nonetheless, Kaizuka relies on Walker to argue that theft, in the context of vehicles, "requires intent to deprive for a longer duration than required for taking a motor vehicle. . . ." That longer duration, Kaizuka argues, is "continued or permanent unauthorized use." Accordingly, Kaizuka contends that his theft convictions should be overturned because the State presented no evidence that he possessed the three Camrys, for which he was charged with theft, any longer than those for which he was charged with taking of a motor vehicle without permission.
Brief of Appellant at 7-8. Although Respondent does not make the argument, appellant's suggestion that theft requires an additional element of duration, if true, seems to undermine appellant's equal protection claim. Duration would constitute a differing element between the offenses in question, thus affording the prosecutor charging discretion.
Brief of Appellant at 9 (quoting Walker, 75 Wn. App. at 108) (emphasis omitted).
In Walker, we contemplated the duration of theft relative to second degree taking of a motor vehicle without permission. Specifically, we stated:
[T]he [second degree taking of a motor vehicle without permission] statute would be violated by taking a motor vehicle without permission for a spin around the block. In contrast, the theft statute would be violated only if the defendant intended to deprive the owner of its use, as is the case when the motor vehicle is taken for a substantial period of time.
Walker, 75 Wn. App. at 106.
Assuming without deciding that Kaizuka's characterization of a theft duration requirement is accurate, the fact remains that sufficient evidence supports the jury's finding that Kaizuka intended to continually deprive London, Beavers, and Phung of the use of their vehicles. As discussed, Kaizuka continued to exercise control over each of those vehicles until circumstances made such control impossible. Certainly, a jury could conclude from this evidence that the vehicles were taken for a substantial period of time and not merely a spin around the block.
Moreover, Walker does not demand, as Kaizuka appears to contend, that every instance of first degree theft be for a duration longer than those second degree taking of a motor vehicle without permission violations committed by the same defendant. That the State demonstrated that Kaizuka took nine vehicles, for which he was convicted of second degree taking of a motor vehicle without permission, for significant durations of time does not somehow raise the bar, requiring that the State prove he intended to take the three other vehicles for longer.
The State has satisfied its burden for first degree theft by providing evidence sufficient to demonstrate that Kaizuka intended to deprive London, Beavers, and Phung of the use of their vehicles.
DOUBLE JEOPARDY
Kaizuka argues that he was erroneously convicted of both first degree possession of stolen property, to wit an automobile, and third degree possession of stolen property for items in that automobile. This issue is moot.
Any potential double jeopardy concerns were resolved when the trial court dismissed the third degree possession count both orally and in its judgment and sentence.
STATEMENT OF ADDITIONAL GROUNDS
Kaizuka argues in his statement of additional grounds that he was erroneously convicted of trafficking in stolen property in the first degree. Due to the value of the property, Kaizuka believes that he should have been convicted of trafficking in stolen property in the second degree. We disagree.
The statutes for first and second degree trafficking in stolen property do not contemplate the value of the stolen property. Rather, the key distinction between those statutes is the mens rea of the accused (i.e. "knowingly" versus "recklessly"). Thus, Kaizuka was properly charged and convicted.
RCW 9A.82.050(1) provides: "A person who knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics in stolen property, is guilty of trafficking in stolen property in the first degree." (emphasis added).
RCW 9A.82.055(1) provides: "A person who recklessly traffics in stolen property is guilty of trafficking in stolen property in the second degree." (emphasis added).
We affirm the judgment and sentence.