IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 87154-4-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JOHNATHAN STANLEY,
Appellant.
MANN, J. — Johnathan Stanley was convicted after a bench trial of unlawful possession of a firearm. Stanley appeals and argues that: (1) he did not knowingly, intelligently, and voluntarily waive his right to a jury trial; (2) his conviction violates the Second Amendment; (3) the trial court violated the real facts doctrine; (4) his juvenile convictions were erroneously included in his offender score; and (5) the information charging him was constitutionally defective. We disagree with his arguments and affirm.
I
On May 11, 2022, Stanley shot and killed Tony Cannon in a motel parking lot in north Seattle. Stanley was on active Department of Corrections (DOC) supervision at the time of the shooting and was prohibited from possessing a firearm.
The State charged Stanley with murder in the second degree and unlawful possession of a firearm in the first degree. Stanley moved to bifurcate the murder and unlawful possession charge. The murder charge proceeded to a jury where Stanley’s theory was that he acted in self-defense. The jury acquitted Stanley.
At a bench trial for the unlawful possession of a firearm, the trial court found Stanley guilty. The trial court imposed a sentence at the top end of the standard range, totaling 116 months.
Stanley appeals.
II
Stanley argues that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial for the unlawful possession of a firearm charge. We disagree.
A
Stanley moved in limine to bifurcate the murder and firearm charges, and the State stipulated to bifurcation. At a pretrial hearing, Stanley’s counsel stated:
I think our position is it would be the same jury. They would be instructed on the murder case, they would come back, and then whether we’d still proceed as a jury I think would be an open question potentially that Mr.
Stanley and I will discuss . . . But then it would be the same jury and then we would just re-instruct them with a very brief opening presentation and closing.
The next day, Stanley’s counsel, with Stanley sitting next to him, stated, “[j]ust also to let the parties and the Court know, Mr. Stanley and I discussed yesterday on the bifurcated [firearm charge], we are going to waive jury on that.” The trial court responded “Okay,” and there was no further discussion.
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After Stanley was acquitted of the murder charge, the trial court asked Stanley how he wished to proceed, and defense counsel stated, “[o]bviously this is very emotional. We would ask if we could set a date for that. I think it will be a very short hearing.” The bench trial occurred a few days later, and the State summarized the evidence that Stanley was not eligible to possess a firearm the day he shot Cannon. Stanley offered no evidence or argument during the bench trial. The trial court found Stanley guilty and entered written findings of fact and conclusions of law.
B
A defendant may waive their right to a jury trial provided that the record shows the waiver was knowing, intelligent, and voluntary. State v. Pierce, 134 Wn. App. 763, 771, 142 P.3d 610 (2006). Because an extensive on-the-record colloquy is not required, “the right to a jury trial is easier to waive than other constitutional rights.” State v. Benitez, 175 Wn. App. 116, 128-29, 302 P.3d 877 (2013). Washington law requires some “personal expression of waiver from the defendant.” State v. Stegall, 124 Wn.2d 719, 725, 881 P.2d 979 (1994). The State has the burden of proving the waiver was valid. State v. Wicke, 91 Wn.2d 638, 645, 591 P.2d 452 (1979). We review a jury trial waiver de novo. Benitez, 175 Wn. App. at 128.
Stanley cites Wicke to support his argument. There, defense counsel orally waived a jury trial with his client sitting next to him. Wicke, 91 Wn.2d at 641. On appeal, the Supreme Court stated that no written waiver was constitutionally required. But the court held that because there was no evidence of the defendant’s concurrence with the waiver, or that he had discussed the matter with his attorney, the record was
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insufficient to demonstrate that the defendant knowingly, voluntarily, and intelligently waived his constitutional right to a jury trial. Wicke, 91 Wn.2d at 642.
Stanley also relies on State v. Hos, 154 Wn. App. 238, 225 P.3d 389 (2010).
There, defense counsel informed the trial court that the defendant’s intent was to ask the court to review documents on stipulated facts for a bench trial. Hos, 154 Wn. App. at 251. There was no evidence of a discussion regarding waiver of the jury trial and no written waiver. Hos, 154 Wn. App. at 252. The court rejected the contention that Hos acquiesced to a bench trial based on her attorney’s statements. Hos, 154 Wn. App. at 252. Accordingly, the court reversed her conviction because the record failed to demonstrate Hos’s personal expression of waiver of her right to a jury trial. Hos, 154 Wn. App. at 252.
The State urges this court to rely on State v. Cham, 165 Wn. App. 438, 267 P.3d 528 (2011). There, defense counsel told the court, outside the presence of the defendant, that she spoke with Cham and that he agreed to waive his right to a jury trial. Cham, 165 Wn. App. at 449. Later, with Cham in attendance, defense counsel again stated that Cham, after they consulted, waived his right to a jury. Cham, 165 Wn. App. at 449. Cham also showed his knowledge of the function of the jury when the court engaged in a colloquy about the adequacy of his interpreters. Cham, 165 Wn. App. at 449. Further, Cham invoked his right to a jury trial twice on underlying charges. Cham, 165 Wn. App. at 449. Accordingly, the court held that the record established an informed acquiescence. Cham, 165 Wn. App. at 449.
This case is more like Cham. Defense counsel initially indicated that they may have the same jury for the bifurcated trial, but they needed to discuss further. Then, the
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next day, while Stanley was sitting there, defense counsel stated that they were going to waive the jury trial. Stanley’s inaction indicates that he made a strategic decision for the waiver and that it was discussed between Stanley and his defense counsel. Moreover, after the jury trial, nothing in the record indicates that Stanley wanted to revoke his waiver or that he did not understand he waived a jury for the firearm charge, particularly after he observed the functions of a jury in his trial. Therefore, unlike Wicke and Hos, the record establishes that Stanley knowingly, intelligently, and voluntarily waived his right to a jury.
III
Stanley argues that his unlawful possession of a firearm conviction violates his constitutional right to bear arms. Specifically, Stanley argues that the trial court relied upon unconstitutional facts to support the conviction because he had a constitutional right to defend himself. We disagree.
The trial court made the following findings of fact when it convicted Stanley:
1. On May 11, 2022, the Defendant, Johnathan Stanley, was in possession of a firearm.
2. The Defendant has previously been convicted of a serious offense as defined by RCW 9.41.010 in Washington State as evidenced by a signed stipulation as well as a certified judgement and sentence:
Robbery in the First Degree (KCSC 10-C-02764-1, 08-06-10).
3. The Defendant gave a statement to SPD Detective Don Waters on June 4, 2022. In that statement, the Defendant admitted to being in possession of a firearm and shooting Tony Cannon, with the knowledge that he was on supervision with the Department of Corrections at the time and had previously been convicted of a felony.
The fact that Stanley may have acted in lawful self-defense when he shot Cannon does not negate that Stanley was carrying a firearm and possessed it before the episode of
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self-defense. The basis for Stanley’s conviction is not that he used the gun, but that he possessed the gun before using it. The police interview admitted at the bench trial established that Stanley had the gun in his possession for nearly two years before the incident with Cannon. Therefore, the trial court did not err in finding that Stanley was unlawfully in possession of a firearm on the day that he shot Cannon, so we need not reach the merits of his constitutional argument.
IV
Stanley argues that the trial court erred at sentencing by relying on acquitted conduct in violation of the real facts doctrine and due process. Because he waived his objection, we decline to reach the merits of his argument.
A
Stanley’s offender score was 9. The standard range was 87-116 months. The State recommended the high-end of the range, 116 months, and asked for no contact with Cannon’s family. The State also requested the trial court to hear a victim impact statement from Cannon’s family. Stanley objected to the victim impact statement for sentencing on the gun possession charge, but the court overruled the objection.
Stanley proposed a mental health sentencing alternative (MHSA) with a suspended sentence and community custody of 36 months and a follow up treatment plan. In the alternative, Stanley requested a sentence at the low end of the range.
The court ultimately sentenced Stanley to 116 months reasoning:
. . . [T]he jury did come back with an acquittal on the murder charge, although I will say that while I normally respect a jury’s decision even if I disagree with it, the concerning part of the whole aspect of the jury deliberations was that they came back with a decision within about an hour. This was a three-plus week trial, and even Mr. Dubow in his closing
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argument, invited the jurors to watch all of the surveillance videos that we all watched during trial. We all—I also watched during pretrial hearings, and it’s clear to this Court that they couldn’t have done that in the short amount of time that they were in deliberations.
....
Now he comes before the court, granted acquitted of the murder charge, but nonetheless facing significant time on the unlawful possession of a firearm in the first degree charge. Now he wants me to believe that he is sincere, that he’s gotten the message, that someone has died, and now he fully intends to turn his life around and to engage fully in all of the services and the supports that are clearly here for him.
I have no doubt whatsoever about the sincerity of Mr. Harris or frankly any of those who have spoken on the defendant’s behalf. But what I have to look at is beyond his criminal history, which is frighteningly extensive and littered frankly with a number of violent offenses, some of which were pled out or dismissed in exchange for various plea resolutions. But I don’t have, looking at his history, including his most recent history of being afforded the opportunity to get into a DOSA program, to get himself at least somewhat turned around, basically whether it was him thumbing his nose, being insincere, not really caring, not getting the message, whatever it is, he did not avail himself even frankly partially of the services that were offered to him. And not long after being placed on SOSA, he armed himself with a firearm. And frankly, I don’t think anyone believed for a moment that it was just on this night in question that he was armed with a firearm, given his history of being unlawfully in possession of a firearm.
He engaged in an extremely violent enterprise, as I stated, exploited people and took a human life. And so I am not convinced, and with all due respect to the DOC, which I understand has limited resources, but clearly, months and months and frankly decades of community supervision, even though it may not have been very involved supervision, has done nothing to keep you on the clean and narrow path. In fact, every opportunity you've been given, you’ve re-engaged in criminal activity, violent criminal activity and have been returned to prison and/or jail numerous times.
I just don’t have any confidence that if he were placed on community supervision, even for 36 months, even with a detailed program or plan that the mitigation specialists have come up with that it serves the best interest to the community. This is unusual in the sense that an UPFA doesn’t technically have a victim, but we do have a victim here in the sense that even though UPFA charge does not involve a victim, this was related to a homicide, one that a jury has determined nonetheless to be justifiable.
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And so it’s clear that the representative of Tony Cannon’s family has also voiced it’s her opinion that the defendant should be afforded or given a maximum sentence.
So for all of those reasons, I am going to impose the top end of the range and impose 116 months of confinement with the full understanding that this, in the long run, because it does not avail him or provide him with the services he needs, is frankly probably going to be just another revolving door.
B
Generally, sentences within the standard sentence range are not appealable.
RCW 9.94A.585(1); State v. Osman, 157 Wn.2d 474, 481, 139 P.3d 334 (2006). The trial court has discretion to sentence a defendant within the sentence range, and so long as the sentence falls within the standard sentence range, there can be no abuse of discretion as to the sentence’s length. RCW 9.94A.530(1); State v. Williams, 149 Wn.2d 143, 146-47, 65 P.3d 1214 (2003). A defendant may appeal a standard range sentence if the sentencing court failed to comply with the procedural requirements of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, or constitutional requirements. Osman, 157 Wn.2d at 481-82.
One of the procedural requirements of the SRA is the real facts doctrine which requires a defendant’s sentence to be based on their current conviction, their criminal history, and the circumstances of the crime. State v. Morreira, 107 Wn. App. 450, 458- 59, 27 P.3d 639 (2001). The real facts doctrine is based on the SRA, specifically RCW 9.94A.530(2), which provides:
[i]n determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Where the
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defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point.
But to be able to raise a real facts doctrine issue, Stanley must first show that he raised a timely and specific objection to the sentencing court’s consideration of the allegedly improper information. State v. Handley, 115 Wn.2d 275, 283, 796 P.2d 1266 (1990); Mail, 121 Wn.2d at 712; State v. Grayson, 154 Wn.2d 333, 338-39, 111 P.3d 1183 (2005). Here, Stanley did not object when the sentencing court provided its reasons for the sentence. He did not make a timely and specific objection to the trial court’s consideration of his acquitted conduct. For that reason, the issue is waived.
V
Stanley argues that the trial court erred by including juvenile convictions in his offender score. We disagree.
In 2022, when Stanley committed the crime, prior juvenile felony convictions were included in an adult defendant’s offender score. Former RCW 9.94A.525(2)(g) (2021). Effective July 23, 2023, the legislature amended RCW 9.94A.525(1)(b) to exclude most juvenile convictions from calculation of an offender score. LAWS OF 2023, ch. 415, § 2. But the timing statute, RCW 9.94A.345, 1 and the general saving clause statute, RCW 10.01.040, 2 require that the trial court apply the sentencing laws in effect
1 RCW 9.94A.345 provides: “Except as otherwise provided in this chapter, any sentence
imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.”
2 RCW 10.01.040 provides:
Whenever any criminal of penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to
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at the time of the offense. State v. Solomon Gibson, 33 Wn. App. 2d 618, 622-23, 563 P.3d 1079, review denied, 4 Wn.3d 1035 (2025) (holding that amendments to RCW 9.94A.525 do not apply to crimes committed before the effective date of the amendments). Here, the underlying offense took place in 2022 before the amendment took effect. Therefore, the trial court did not err in including Stanley’s juvenile convictions in his offender score.
VI
In a supplemental assignment of error, Stanley argues that the information charging him with unlawful possession of a firearm violated state and federal due process by failing to allege that he knew that he had been convicted of a felony. Stanley argues that this court should hold that RCW 9.41.040(1)(a) requires knowledge of felony status. We disagree.
Under the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution, charging documents must include all of the essential elements of the charged crime. State v. Pry, 194 Wn.2d 745, 751, 452 P.3d 536 (2019). “‘An essential element is one whose specification is necessary to establish the very illegality of the behavior charged.’” State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal quotation marks omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)).
When the charging document is challenged for the first time on appeal, the court adopts a more liberal standard of review. State v. Kjorsvik, 117 Wn.2d 93, 103, 812
recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.
(Emphasis added.)
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P.2d 86 (1991). Under this standard, we determine (1) whether the necessary elements appear in any form, or by fair construction, on the face of the document and, if so, (2) whether the defendant can still show prejudice from the inartful language. Kjorsvik, 117 Wn.2d at 105-06. If the charging document, when read “as a whole and in a common sense manner,” informs the defendant of the charges against them, it is sufficient even if it does not include an essential element. Kjorsvik, 117 Wn.2d at 110-11.
The charging document here provided:
That the defendant JOHNATHAN STANLEY in King County, Washington, on or about May 11, 2022, previously having been convicted in King County Superior Court of the crime of Robbery in the First Degree, a serious offense as defined in RCW 9.41.010, knowingly did own, have in his possession, or have in his control, a handgun, a firearm as defined in RCW 9.41.010;
Contrary to RCW 9.41.040(1), and against the peace and dignity of the State of Washington.
In the trial court’s findings of fact and conclusions of law, it concluded that the State proved the following elements beyond a reasonable doubt:
1. On May 11, 2022, the Defendant knowingly had a firearm in his possession or control;
2. The Defendant had previously been convicted of a serious offense as defined by RCW 9.41.010.
3. That the possession or control of the firearm occurred in the State of Washington.
Accordingly, the trial court found Stanley guilty of unlawful possession of a firearm in the first degree.
In State v. Semakula, 88 Wn. App. 719, 726, 946 P.2d 795 (1997), the court held that a convicted felon’s knowledge that his right to gun ownership is prohibited is not an
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element of the crime of unlawful possession of a firearm. The court explained “[k]nowledge that possession is unlawful is not an element of the crime of unlawful possession of a firearm nor does good faith belief that a certain activity does not violate the law provide a defense in a criminal prosecution.” Semakula, 88 Wn. App. at 725.
In State v. Anderson, 141 Wn.2d 357, 360, 5 P.3d 1247 (2000), the court analyzed whether second degree unlawful possession of a firearm is a strict liability crime. The court noted that Semakula decided that knowledge that possession is unlawful is not an element of the crime. Anderson, 141 Wn.2d at 361. The court explained the legislature’s failure to provide in the statute for the affirmative defense of unwitting conduct or to expressly limit lack of knowledge as a defense were indicative of legislative intent to make mens rea an element of the crime. Anderson, 141 Wn.2d 362- 63. Accordingly, the court concluded that the statute also requires that the State prove the defendant was knowingly in possession. Anderson, 141 Wn.2d at 366.
Citing Rehaif v. United States, 588 U.S. 225, 139 S. Ct. 2191, 204 L. Ed. 2d 594 (2019), Stanley argues the U.S. Supreme Court has held that the federal felon-in- possession statute does require knowledge of prohibited status. Rehaif concerned a prosecution under a federal statute that criminalized gun possession while unlawfully being in the United States. After Rehaif’s student visa expired, he went shooting at a gun range and was charged with unlawful possession of a firearm. Rehaif, 588 U.S. at 227-28. The Supreme Court held that the government had to prove that Rehaif knew he was unlawfully in the country as well as knowingly possessed a firearm. Rehaif, 588 U.S. at 237.
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Rehaif does not control. First, the scope of the Supreme Court’s review was limited to ordinary statutory interpretation of congressional intent. See Rehaif, 588 U.S. at 229. It decided the congressional intent of “knowingly” as it appeared in the federal statute. It did not announce a rule of constitutional law. Accordingly, this holding does not bind Washington state courts. See State v. Moreno, 198 Wn.2d 737, 751, 499 P.3d 198 (2021) (declining to adopt Rehaif’s reasoning to first degree burglary statute).
Stanley also argues that Semakula’s reasoning is inconsistent with the Washington Supreme Court’s opinion in State v. Williams, 158 Wn.2d 904, 148 P.3d 993 (2006). There, the court analyzed whether the legislature intended to hold strictly liable those who possess certain firearms, including short-barreled shotguns, because the statute contains no express knowledge element. Williams, 158 Wn.2d at 908. The State charged the defendant with one count of unlawful possession of a firearm after an officer found a short-barreled shotgun in the bathroom of the defendant’s grandmother’s house. Williams, 158 Wn.2d at 906-07. As the court held, a defendant must know the characteristics of the firearm that make the firearm illegal to be convicted under the statute. Williams, 158 Wn.2d at 916.
We decline Stanley’s invitation to overrule Semakula. There is already a mens rea element that the State needs to prove, which makes it not a strict liability crime. There is also an affirmative defense to unlawful possession that the person did not receive notice. Therefore, unlike the reasoning in Anderson, this is indicative of legislature’s intent to exclude a mens rea element as to felony status. See RCW 9.41.047(1)(a) (“At the time a person is convicted . . . the court shall notify the person, orally and in writing . . . that the person may not possess a firearm unless the person’s
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right to do so is restored.”). Accordingly, whether a defendant knew they were a felon is not an element of the crime, and the information is not defective for failing to allege that.
We affirm.
WE CONCUR: