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WPIC 50.71 Enhanced Sentence—County Jail or State Correctional Facility—Special Verdict

11 WAPRAC WPIC 50.71Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 50.71 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VIII. Drugs and Controlled Substances
WPIC CHAPTER 50.60. Enhanced Sentence—Controlled Substance Violations
WPIC 50.71 Enhanced Sentence—County Jail or State Correctional Facility—Special Verdict
(Insert case caption.)
(This special verdict is to be answered only if the jury finds the defendant guilty of (fill in crime) [as charged in count ].)
We, the jury, return a special verdict by answering as follows:
[QUESTION: Did the defendant voluntarily [[manufacture] [deliver] [or] [possess with intent to deliver] a controlled substance] [or] [sell for profit a [controlled substance] [or] [counterfeit substance]] [[while in a county jail] [or] [while in a state correctional facility] [or] [while on the real property of a county jail] [or] [while on the real property of a state correctional facility]]?]
[QUESTION: If the defendant did not personally [[manufacture] [deliver] [or] [possess with intent to deliver] a controlled substance] [or] [sell for profit a [controlled substance] [or] [counterfeit substance]] [[while in a county jail] [or] [while in a state correctional facility] [or] [while on the real property of a county jail] [or] [while on the real property of a state correctional facility]], did he know that the offense would be committed [[in a county jail] [or] [in a state correctional facility] [or] [on the real property of a county jail] [or] [on the real property of a state correctional facility]]?]
ANSWER: (Write “yes” or “no”)
DATE:
Presiding Juror
NOTE ON USE
Use this special verdict if it is alleged that the defendant should be subject to enhanced sentencing because the controlled substance offense was committed in an area specified in RCW 9.94A.533(5).
Use WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements) with this instruction.
Use bracketed material as applicable. The second question will only be used when the defendant is an accomplice. With this instruction, use WPIC 50.72 (County Jail—Definition) and WPIC 50.73 (State Correctional Facility—Definition), as applicable.
COMMENT
RCW 9.94A.533(5).
Volitional act. RCW 9.94A.533(5) simply requires that the State show the defendant was in a jail or correctional facility while possessing a controlled substance. The State is not required to prove that a defendant intended to be in the enhancement zone or that the defendant knew that he or she was in the enhancement zone. State v. Eaton, 168 Wn.2d 476, 485 n.5, 229 P.3d 704 (2010). The State must, however, prove beyond a reasonable doubt that the defendant's decision to bring the controlled substance into the protected zone or to possess the controlled substance within the protected zone was voluntary. State v. Eaton, 168 Wn.2d at 485. The Eaton court did not define the word “voluntary.”
Accomplices. RCW 9.94A.533(5) provides in pertinent part that “[t]he following additional times shall be added to the standard sentence range if the offender or an accomplice committed the offense within a county jail or state correctional facility and the offender is being sentenced for one of the crimes listed in this subsection.” Since the statute contains express triggering language applying it to accomplices, an accomplice is subject to the enhancement even if not personally present in the county jail or state correctional institution. State v. Allen, 182 Wn.2d 364, 383, 341 P.3d 268, 277 (2015) (when a sentencing enhancement statute “contains express triggering language applying it to accomplices, then it clearly applies …”). If the defendant did not personally commit the acts, the enhancement will only apply if the defendant knew the crime occurred within a county jail or correctional facility. State v. Hayes, 182 Wn.2d 556, 342 P.3d 1144 (2015).
[Current as of November 2019.]
End of Document