WPIC 61.02.02 Vehicle Prowling—Second Degree—Felony—Elements

With this instruction, use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 65.02 (Enters or Remains Unlawfully—Definition), substituting the word “vehicle” for the word “premises.” As applicable, also use WPIC 61.05 (Motor Home—Definition).

RCW 9A.52.100(3).

Vehicle prowling in the second degree is a felony if the defendant has two or more prior separate convictions for the same offense. Prior convictions charged in the same charging document and prior convictions which took place on the same date do not count separately. RCW 9A.52.100(3). But see State v. LaPointe, Jr., 1 Wn.App 2d 261, 404 P.3d 610 (2017) (convictions that take place on the same day do not occur “on at least two separate occasions” and do not supply the predicate for the felony).

Title of crime. For ease of reference, the WPI Committee has referred to this crime as “felony vehicle prowling in the second degree.” The word felony should not be included if the jury is not also being instructed on the gross misdemeanor form of the crime, WPIC 61.04. Juries are routinely instructed that they should not consider potential punishment during their deliberations. See, e.g., WPIC 1.02 (Conclusion of Trial—Introductory Instruction). Referring to crimes as a “felony” to some extent is inconsistent with this mandate. Other suggestions include referring to the crime as “aggravated” or “serious.”

Distinction between felony and gross misdemeanor offenses. The court in State v. Chapman, 140 Wn.2d 436, 448–49, 998 P.2d 282 (2000), held that when a gross misdemeanor offense requires the State to prove an element that is not required proof for the felony version, the gross misdemeanor offense is not a lesser crime of the felony offense. Because the violations are contained within the same statute, the WPI Committee believes it is a lesser degree crime. See State v. Tamalini, 134 Wn.2d 725, 731–32, 953 P.2d 450 (1998):

See discussion in Comment to WPIC 4.11 (Lesser Included Crime or Lesser Degree). See also State v. Joseph, 189 Wn.2d 645, 405 P.3d 993 (2017) (criminal trespass in the second degree can be a lesser included offense of vehicle prowling in the second degree).

Under some circumstances, it may be necessary to specify and define the crime alleged to have been intended by the defendant, if the defendant so requests. See Comment to WPIC 61.02 (Vehicle Prowling—First Degree—Elements).

In State v. Lass, 55 Wn.App. 300, 777 P.2d 539 (1989), Division Three of the Court of Appeals held that second degree vehicle prowling merges into a charge of taking a motor vehicle without permission. Division One reached a contrary conclusion, at least in a case in which there was malicious mischief committed inside the car in addition to its being driven. State v. L.U., 137 Wn.App. 410, 153 P. 3d 894 (2007), affirmed on other grounds, 165 Wn.2d 95, 196 P.3d 645 (2008).

See WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)) if there is a request by the defendant for a stipulation as to prior convictions.