Opinion
No. 61069-4-I.
February 2, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-04684-1, Anthony P. Wartnik, J. Pro. Tem., entered December 19, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED
Any willful violation of a no-contact provision of a court order is a criminal offense under both the current and former versions of RCW 26.50.110.Because the State proved at trial that Rigoberto Ventura committed a willful violation of a no-contact order under the former version of the statute, we affirm.
State v. Bunker, 144 Wn. App. 407, 416-20, 183 P.3d 1086 (2008), petition for review granted, No. 81921-1 (Wash. Dec. 2, 2008).
The State charged Rigoberto Ventura with one count of second-degree assault-domestic violence, alleging he assaulted Carrie Royal. On the same day, the court entered an order prohibiting contact between Ventura and Royal.
The State later amended the charges to include one count of third degree assault-domestic violence, three counts of tampering with a witness-domestic violence, and two counts of misdemeanor violation of a court order-domestic violence. The court order violations were based upon three telephone calls Ventura made to Royal from jail.
A jury convicted Ventura as charged.
Ventura appeals.
VIOLATION OF A NO-CONTACT ORDER
Ventura contends that there was insufficient evidence to convict him of two counts of violating a court order under former RCW 26.50.110. He argues that under the statute as it existed at the time of his crime, the State was required to prove that his act was one "for which an arrest is required under RCW 10.31.100(2)(a) or (b)." Ventura also argues that he was denied due process because the 2007 amendments to the statute cannot apply retroactively. We disagree.
This court addressed the proper interpretation of former RCW 26.50.110 in State v. Bunker.
144 Wn. App. 407, 183 P.3d 1086 (2008), petition for review granted, No. 81921-1 (Wash. Dec. 2, 2008).
Like Ventura, Bunker and Williams were charged under the former version of RCW 26.50.110(1), which stated:
Whenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100 (2) (a) or (b) , is a gross misdemeanor except as provided in subsections (4) and (5) of this section.
Former RCW 26.50.110(1) (2006) (emphasis added).
Former RCW 26.50.110(1) (2006) (emphasis added).
Bunker and Williams argued that the effect of the emphasized portion of the statute was to modify the preceding language so as to make a violation of a no-contact order a crime only "where the arrest of the violator is mandatory under either RCW 10.31.100(2)(a) or (b)." In other words, they argued that a violation of a no-contact order was a crime only when it occurred in an area specifically proscribed by the order, involved acts or threats of violence, or was a violation of a foreign protection order. The defendants argued that they could not be convicted of a crime for their conduct because they had not committed a violation that fell into one of those three categories.
Bunker, 144 Wn. App. at 414.
Arrest authorized under RCW 10.31.100(2)(a).
Arrest authorized under RCW 10.31.100(2)(a).
Arrest authorized under RCW 10.31.100(2)(b).
Bunker, 144 Wn. App. at 413.
The court rejected the defendants' arguments that the statute only imposed criminal penalties for certain types of violations. Instead, the court considered the meaning of the statute in light of related statutory provisions and 2007 amendments to the statute. The court concluded:
Id. at 420.
The legislature has amended RCW 26.50.110 explicitly to clarify that the construction of the statute that Bunker and Williams seek is incorrect. That amendment applies retroactively to Bunker and Williams because it was for the sole purpose of removing a statutory ambiguity, and changed no substantive law. Even had the legislature not amended RCW 26.50.110, however, Bunker's and Williams's construction of RCW 26.50.110 is itself implausible when RCW 26.50.110(1) is read in conjunction with related sections, as it must be. Accordingly, we conclude that Bunker's and Williams's conduct was criminal. . . .
Id.
Id.
In reaching this conclusion, the court rejected the defendants' arguments that the rule of lenity and "last antecedent rule" of statutory interpretation required a different result.
Id. at 418-20.
Because Bunker was decided on the same grounds Ventura argues, his appeal fails.
Nevertheless, we will address his remaining arguments.
Ventura argues that the application of the 2007 amendments to his case violates the prohibition on ex post facto laws. An argument that a law violates the ex post facto clause is a constitutional challenge to the enactment. A statute is presumed constitutional and the party challenging it has the burden to prove it is unconstitutional beyond a reasonable doubt.
State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994).
Id.
The ex post facto clauses of the state and federal constitutions "forbid the State from enacting any law which imposes punishment for an act which was not punishable when committed or increases the quantum of punishment annexed to the crime when it was committed."
Id. (citing U.S. Const. art. I, § 10; Const. art. I, § 23).
Here, Ventura has not shown that the 2007 amendments imposed punishment for an act that was not punishable when committed. As the court noted in Bunker, even if the legislature had not enacted the 2007 amendments, the acts in question would still be crimes. The 2007 amendments did not criminalize anything new. Rather, they clarified that the acts in question had always been criminal.
Bunker, 144 Wn. App. at 420.
Id. at 416-17.
Ventura next suggests that this court should disregard its decision in Bunker because it has "little support," pointing to two decisions from Division II that reached a contrary result: State v. Madrid and State v. Hogan. We disagree with those opinions and continue to follow Bunker.
145 Wn. App. 106, 192 P.3d 909 (2008).
145 Wn. App. 210, 192 P.3d 915 (2008).
We affirm the judgment and sentence.