WPIC 50.61 Enhanced Sentence—Controlled Substance Violations Under RCW 69.50.435—No Statutory D...
11 WAPRAC WPIC 50.61Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 50.61 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part VIII. Drugs and Controlled Substances
WPIC CHAPTER 50.60. Enhanced Sentence—Controlled Substance Violations
WPIC 50.61 Enhanced Sentence—Controlled Substance Violations Under RCW 69.50.435—No Statutory Defense—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 manufacture a controlled substance
[in a school or on a school bus] [or]
[within one thousand feet of a school bus route stop designated by a school district] [or]
[within one thousand feet of the perimeter of a school ground] [or]
[in a public park] [or]
[in a public housing project designated by a local governing authority as a drug-free zone] [or]
[on a public transit vehicle] [or]
[in a public transit stop shelter] [or]
[at (or within one thousand feet of the perimeter of) a civic center designated by the local governing authority as a drug-free zone]?
[QUESTION: Did the defendant deliver a controlled substance to a person (insert one of the bracketed locational phrases listed above)?]
[QUESTION: Did the defendant possess a controlled substance (insert one of the bracketed locational phrases listed above) with intent to [manufacture] [or] [deliver] the controlled substance at any location?]
ANSWER:(Write “yes” or “no”)
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 69.50.435 and the statutory defense is not at issue. If the statutory defense is at issue, use WPIC 50.61.01 (Enhanced Sentence—Controlled Substance Violations under RCW 69.50.435—Statutory Defense—Special Verdict) instead of this instruction.
Use WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements) with this instruction.
Select from among the three bracketed questions depending on whether the State has alleged manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance.
For cases in which the State has alleged more than one “protected zone” location from WPIC 69.50.435(4), the applicable question above should be repeated for each location that is alleged and supported by the evidence.
Use bracketed material as applicable. With this instruction, use WPIC 50.62 (School—Definition), WPIC 50.63 (School Bus—Definition), WPIC 50.65 (Public Park—Definition), and WPIC 50.66 (Public Transit Vehicle—Transit Authority—Stop Shelter—Definition) as applicable.
The opinion in State v. Carter, 64 Wn.App. 90, 823 P.2d 523 (1992), holds that no mens rea is required for the enhancement and that the sentence enhancement statutes do not offend constitutional guarantees by denying a defense based on lack of knowledge.
RCW 69.50.435, allowing doubling of penalties when drug crimes are committed in specified locations, is a sentencing enhancement and does not define a separate offense. State v. Silva-Baltazar, 125 Wn.2d 472, 886 P.2d 138 (1994).
RCW 69.50.435 does not specifically authorize imposition of an enhancement based upon accomplice liability. An accomplice may only receive a school zone enhancement when the accomplice is physically present in the school zone. State v. Silva-Baltazar, 125 Wn.2d at 480–84. In State v. Pineda-Pineda, 154 Wn.App. 653, 226 P.3d 164 (2010), the court held that an accomplice who is not within the drug-free zone themselves when another participant in the crime engages in the specified drug activity within the drug-free zone is not subject to a RCW 69.50.435 enhancement. Subsequent to Pineda-Pineda, however, the Washington Supreme Court held in State v. Hayes, 182 Wn.2d 556, 342 P.3d 1144 (2015), that a RCW 9.94A.535(3)(c) sentencing enhancement can apply to an accomplice who does not personally perform the act that satisfies the enhancement if the accomplice knew that the principle's conduct would satisfy the enhancement. If the accomplice was not personally within the drug-free zone and the court determines that Hayes applies to RCW 69.50.435 enhancements, the special verdict question must be modified. See WPIC 50.71 (Enhanced Sentence—County Jail or State Correctional Facility—Special Verdict).
Under RCW 69.50.435, “[a]ny person who violates RCW 69.50.401 by manufacturing, selling, delivering or possessing with intent to manufacture, sell or deliver a controlled substance” in certain specified locations is subject to a sentence enhancement. RCW 69.50.435(1) (emphasis added). The WPI Committee has not included the word “sell” in the pattern instruction because there is a discrepancy between the language of RCW 69.50.435 and RCW 69.50.401. RCW 69.50.401(1) makes it an offense to “possess with intent to manufacture or deliver a controlled substance.” RCW 69.50.401(1) does not mention possessing with intent to sell a controlled substance.
In State v. Lua, 62 Wn.App. 34, 813 P.2d 588 (1991), the court held that the portion of the statute that provides for an enhanced sentence if the controlled substance offense occurred within 1,000 feet of a school ground does not violate a defendant's constitutional right to equal protection under the law.
The court in State v. Coria, 120 Wn.2d 156, 839 P.2d 890 (1992), held that the portion of the statute that provides for an enhanced sentence if the controlled substance offense occurred within a 1,000-foot radius of a school bus route stop is not unconstitutionally vague as applied under the particular facts of the case. Coria also holds that the statute does not offend constitutional principles of equal protection.
When the enhancement is applied to the crime of possession with intent to deliver, only the possession needs to take place within the drug-free zone. The intended delivery may be at any location. State v. McGee, 122 Wn.2d 783, 864 P.2d 912 (1993).
The prohibited zone is to be measured as the radius of a circle emanating from the perimeter of the school grounds. State v. Wimbs, 68 Wn.App. 673, 847 P.2d 8 (1993), overruled on other grounds by State v. McGee, 122 Wn.2d 783, 864 P.2d 912 (1993).
The penalty enhancement for activity within 1,000 feet of school grounds,
plainly extends the zone of protection outward from all real property comprising the school and supporting its activities. … “School grounds” is broader than shrubbery or playgrounds; it includes both the physical plant and appurtenant property, if any. Therefore, the absence of appurtenant property does not deprive a school of the drug free zone protection because the school's physical plant is part and parcel of “school grounds.”
State v. Shannon, 77 Wn.App. 379, 382, 892 P.2d 757 (1995).
The constitutionality of RCW 69.50.435 or its application has been upheld in State v. Acevedo, 78 Wn.App. 886, 899 P.2d 31 (1995) (single subject rule); State v. Wimbs, 74 Wn.App. 511, 874 P.2d 193 (1994) (no violation of due process in school zone provision on basis of unascertainable standard); State v. Vinson, 74 Wn.App. 32, 871 P.2d 1120 (1994) (rational basis for school and transit zone protections so no violation of equal protection); and State v. Graham, 68 Wn.App. 878, 846 P.2d 578 (1993), overruled on other grounds by State v. Silva-Baltazar, 125 Wn.2d 472, 886 P.2d 138 (1994) (no constitutional violation even though there is no requirement that the State prove that the defendant knew drug trafficking within 1,000 feet of a school would expose the defendant to additional penalties).
Marijuana offenses in violation of RCW 69.50.401 are not excluded from the enhancement provisions of RCW 69.60.435(a). State v. Pierce, 78 Wn.App. 1, 895 P.2d 25 (1995).
In State v. Becker, 132 Wn.2d 54, 935 P.2d 1321 (1997), the special verdict form asked the jury whether the defendants were “within 1000 feet of the perimeter of school grounds, to-wit: Youth Employment Education Program School at the time of the commission of the crime?” (Emphases added.) At trial the State argued and the defense contested that the GED educational program in question was a “school” within the meaning of RCW 69.50.435. According to the Court's majority:
[The Youth Employment Program] is not now nor has it ever been called the “Youth Employment Education Program School.” By so identifying YEP in the special verdict form, the trial court literally instructed the jury that YEP was a school. This error amounted to an impermissible comment on the evidence in violation of [Washington Constitution] art. IV, § 16.
State v. Becker, 132 Wn.2d at 65. Cf. State v. Akers, 88 Wn.App. 891, 946 P.2d 1222 (1997) (contrary result when the special verdict form referred only to the institution's name, i.e., the Youth Education Program).
[Current as of November 2019.]
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