Opinion
No. 53586-2-I
Filed: August 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-09189-6. Judgment or order under review. Date filed: 12/04/2003. Judge signing: Hon. Palmer Robinson.
Counsel for Appellant(s), Catherine Lynn Floit, Attorney at Law, PO Box 27713, Seattle, WA 98165.
Dana M Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Amy R Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Because there was sufficient evidence to support a finding that appellant John Shay both unlawfully entered and unlawfully remained in a friend's apartment, the court did not err in convicting him of first-degree burglary. And we find no error in the sentencing condition requiring him to submit a biological sample for DNA (Deoxyribonucleic acid) identification analysis. Finally, the domestic violence designation will stand as it is not a finding that must be made by a jury.
FACTS
According to the unchallenged findings of fact, John Shay met Ms. Scriver in the fall of 2002 and they had an intimate relationship. Shay was with Scriver on the morning of October 23. As they parted ways that morning, Scriver told Shay he could not come to her apartment that night because she had dinner plans with her friend, Mr. Randall.
At about 8:30 p.m. on October 23, Shay called and spoke with Scriver on the telephone. He wanted to come over to her apartment that night. Scriver told Shay she would talk to him the next day. Shay called several more times and left messages on Scriver's answering machine to the effect that he wanted to come over. Scriver did not answer the telephone.
Shay arrived at Scriver's apartment sometime around 10:30 p.m. and yelled obscenities from the parking lot of the apartment building. Scriver and her friend Randall ignored Shay. Shay climbed up onto Scriver's second floor balcony and banged on her sliding glass door to let him inside. Scriver and Randall ignored him.
Shay went to the apartment manager's apartment and told her that he and Scriver had been locked out of her apartment. The manager called Scriver's apartment. Scriver said not to let Shay into her apartment. When Shay got on the telephone, Scriver told him she would talk to him the next day. Shay immediately went to Scriver's locked door and broke it down with his shoulder. Once the door was open, Shay rushed inside and punched Randall, who was in the entryway.
Shay waived his right to a jury trial and a judge convicted him of first-degree burglary. Shay appeals from this judgment and sentence.
BURGLARY
Shay does not challenge the findings of fact. He contends that the trial court's findings of fact do not support the court's conclusion that he committed first-degree burglary. Specifically, he objects to the court's conclusion that he both unlawfully entered and unlawfully remained in Scriver's apartment.
A person commits first degree burglary `if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building' and `assaults any person.' RCW 9A.52.020(1)(b). Shay relies on State v. Klimes, 117 Wn. App. 758, 73 P.3d 416 (2003), where this court held that unlawful entry and unlawful remaining, alternate means of committing burglary, are repugnant to each other. Shay argues that under Klimes, the State can prove the alternate means of unlawful remaining only where a person originally has a right to enter. Shay did not have permission to enter Scriver's apartment that evening. His theory is that because he unlawfully entered, he could not also have unlawfully remained. We have now retreated from the reasoning in Klimes. State v. Allen, ___ Wn. App. ___, 110 P.3d 849 (2005). Allen explicitly rejects the proposition that unlawful remaining, for purposes of burglary, occurs only when the initial entry is lawful. Allen, 110 P.2d at 853. Under Allen, Shay's continuing presence in Scriver's apartment satisfies the statutory definition of unlawful remaining. The court's findings support its conclusion that the State proved both means of committing burglary.
COMPELLED DNA SAMPLE
As a sentencing condition, the trial court ordered Shay to provide a biological sample for DNA identification analysis. The Legislature has authorized the State to collect DNA from convicted felons for purposes of DNA identification analysis. RCW 43.43.754. Shay contends the statute violates Fourth Amendment protections against unreasonable searches because it does not require an individualized suspicion of wrongdoing. We have rejected this argument in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004), review accepted, 111 P.3d 1190 (2005). Following Surge, we reject Shay's Fourth Amendment challenge to RCW 43.43.754.
METHOD OF SAMPLE
Washington's statute does not specify a particular method of collecting a `biological sample' for DNA identification analysis. RCW 43.43.754. Shay contends a blood sample is the only legal method of collecting DNA under WAC 446-75-060. He argues that the cheek swab, King County's preferred method for collecting DNA, is illegal.
A case decided after Shay filed his brief held that `WAC 446-75-060 does not restrict the means of collection of samples for DNA analysis to blood draws.' State v. S.S., 122 Wn. App. 725, 729, 94 P.3d 1002 (2004). There we concluded the references to blood samples in the administrative code provision `simply clarify that blood samples, when taken, are to be handled by the protocol for other biological samples.' State v. S.S., 122 Wn. App. at 729.
DOMESTIC VIOLENCE FINDING
The trial court designated Shay's first-degree burglary conviction as a crime of domestic violence. As a result of the domestic violence designation, the court entered a no-contact order under RCW 10.99.050, which is part of the Domestic Violence Act. The Legislature enacted the Domestic Violence Act `to recognize the importance of domestic violence as a serious crime against society and to assure the victim of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide.' RCW 10.99.010. The Domestic Violence Act created no new crimes, but rather emphasized the need to enforce existing criminal statutes in an evenhanded manner to protect the victim, regardless of whether the victim was involved with the aggressor. State v. Goodman, 108 Wn. App. 355, 30 P.3d 516, review denied, 145 Wn.2d 1036, 43 P.3d 20 (2001).
Shay claims that a domestic violence finding is one that must be made by a jury upon proof beyond a reasonable doubt under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). He contends that the finding increased the penalty for his crime in two ways: because it led to the no-contact order, and because it reduces his eligibility for earned early release.
We have already rejected the argument that a no-contact order entered because of a criminal conviction constitutes punishment for purposes of the constitutional right to a jury determination of necessary facts. State v. Felix, 125 Wn. App. 575, 105 P.3d 427 (2005).
The other argument refers to a statute, RCW 9.9A.728(1)(b), which allows certain defendants to qualify for up to 50 percent earned early release time. Shay is ineligible under this statute, not only because of the finding that his crime is a felony involving domestic violence, but also because his felony was a crime against a person. See RCW 9.94A.728(1)(b)(ii); RCW 9.94A.411. Since his burglary makes him ineligible in any event, the domestic violence designation did not impact any right he might have otherwise had to a reduction in the length of his confinement. Further, he has not explained how a non-jury finding that impacts his early release eligibility can be violative of Blakely when it will not result in confinement beyond the standard range.
Because Shay did not have a right to a jury determination of the domestic violence designation, necessarily there is no basis for his additional argument that the failure to advise him that he had such a right rendered his jury waiver invalid.
Affirmed.
BECKER, COX and AGID, JJ., Concur.