Opinion
No. 59657-8-I.
September 2, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-04662-1, Richard A. Jones, J., entered February 26, 2007.
William Oesterle appeals his conviction for residential burglary, arguing that the trial court's accomplice liability instruction was ambiguous and violated due process. The challenged instruction is materially indistinguishable from instructions previously upheld by Washington courts in the face of arguments like those advanced by Oesterle in this case. Oesterle does not contend otherwise, but argues instead that the instruction is flawed under the reasoning in Sarausad v. Porter, 479 F.3d 671, 689-90 (9 Cir. 2007).
State v. Davis, 101 Wn.2d 654, 656, 682 P.2d 883 (1984) (upholding instruction identical to the instruction given in this case); State v. Roberts, 142 Wn.2d 471, 511-12, 14 P.3d 713 (2000) (expressly approving of Davis instruction); State v. Allen, 116 Wn. App. 454, 66 P.3d 653 (2003); State v. Mullin-Coston, 115 Wn. App. 679, 64 P.3d 40 (2003), affirmed, 152 Wn.2d 107, 95 P.3d 321 (2004); State v. Mangan, 109 Wn. App. 73, 34 P.3d 254 (2001).
Sarausad, however, is not binding here and conflicts with decisions of the Washington Supreme Court that are binding on this court. Accordingly, we lift the stay previously imposed in this case and affirm.
In re Parmelee, 115 Wn. App. 273, 63 P.3d 800 (2003).
See note 1, infra.