State v. Montejano

147 Wash. App. 696
CourtCourt of Appeals of Washington
DecidedDecember 11, 2008
DocketNo. 26805-5-III
StatusPublished
Cited by5 cases

This text of 147 Wash. App. 696 (State v. Montejano) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Montejano, 147 Wash. App. 696 (Wash. Ct. App. 2008).

Opinion

Schultheis, C.J.

¶1 The felony riot statute provides, “A person is guilty ... if, acting with three or more other persons, he or she knowingly and unlawfully uses or threatens to use force, or in any way participates in the use of such force, against any other person or against property” and “the actor is armed with a deadly weapon.” RCW 9A.84.010(1), (2)(b). The sole issue on appeal is whether the crime can be committed by complicity under RCW 9 A. 08-.020 when the accused was not armed and did not know that the other participants were armed. We conclude that, because the riot statute defines the nature and extent of accomplice liability and the defendant in this case was not himself armed, he cannot be convicted of felony riot. We therefore reverse and remand.

FACTS

¶2 Michael Montejano was charged with “Riot - While Armed - by Complicity” pursuant to RCW 9A.84.010(2)(b) (riot statute) and RCW 9A.08.020 (accomplice liability statute). Clerk’s Papers at 10. The charge arose from an incident on November 28, 2007 in which Mr. Montejano and four or five other juvenile males confronted and threatened to assault some women and their friends on the streets of Moses Lake, Washington.

[699]*699¶3 At his adjudication hearing, the judge found that Mr. Montejano was not armed and did not know that other participants of his group were armed. He was adjudicated guilty. The juvenile court imposed 52-65 weeks at the Juvenile Rehabilitation Administration. Mr. Montejano appealed the adjudication of guilt and moved for accelerated review. A commissioner of this court ruled that, because the case involved a statutory interpretation issue of first impression, it should be decided by a three-judge panel.

ANALYSIS

¶4 Because this case involves statutory interpretation and application to undisputed facts, our review is de novo. State v. Jackson, 91 Wn. App. 488, 491, 957 P.2d 1270 (1998).

¶5 A statute must be construed so that no word, clause, or sentence is superfluous or insignificant. State v. Thomas, 121 Wn.2d 504, 512, 851 P.2d 673 (1993). When the language of a rule is clear, a court cannot construe it contrary to its plain statement. Id. The primary objective of any statutory construction inquiry is “to ascertain and carry out the intent of the Legislature.” Rozner v. City of Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991).

¶6 The riot statute provides:

A person is guilty of the crime of riot if, acting with three or more other persons, he or she knowingly and unlawfully uses or threatens to use force, or in any way participates in the use of such force, against any other person or against property.

RCW 9A.84.010(1) (emphasis added).

¶7 The offense is a misdemeanor unless “the actor is armed with a deadly weapon,” which elevates the crime to a class C felony. RCW 9A.84.010(2) (emphasis added).

¶8 Mr. Montejano asserts that because felony riot requires that the defendant be armed with a deadly weapon, he cannot be adjudicated guilty of felony riot by complicity. We agree.

[700]*700¶9 It is clear from the plain language of the statute that guilt for riot is predicated on group conduct — “[a] person ... acting with three or more other persons” — which is a felony if “the actor is armed with a deadly weapon.” RCW 9A.84.010(1), (2)(b). In this context, “the actor” with a deadly weapon refers to “[a] person . . . acting” to commit the crime. RCW 9A.84.010(2)(b), (1). The statute further distinguishes “[a] person . . . acting” from the “other persons.”1 RCW 9A.84.010(1). It is plain that, in the context of this statute, the term “actor” refers to the accused. For the commission of a felony, the accused must be the one with the deadly weapon.

¶10 The statutory requirement that the accused be armed for a felony riot conviction is also reflected in our pattern to-convict instruction. According to the instruction, in order to convict on felony riot, the State must prove that “the defendant was armed with a deadly weapon.” 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 126.02, at 323 (2d ed. 1994) (emphasis added). The comment section goes on to state, “If the defendant was armed with a deadly weapon, riot is a class C felony; otherwise it is a gross misdemeanor. Being so armed is an element of the felony offense.” Id. cmt. at 324 (emphasis added).

¶11 The State argues that the terms “person” or “actor” as used in the statute mean the same thing. RCW 9A.84.010(1), (2). This interpretation is contrary to the rule that different language should not be read to mean the same thing. Densley v. Dep’t of Retirement Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007). Instead, “[w]hen the legislature uses two different terms in the same statute, courts presume the legislature intends the terms to have different meanings.” Id. (citing Koenig v. City of Des Moines, 158 Wn.2d 173, 182, 142 P.3d 162 (2006)).

[701]*701¶12 The State also argues that the use of the term “actor” in the statute is to differentiate actors from spectators. RCW 9A.84.010(2). It points out that older statutes punished the participants in a riot as well as persons who were merely present.* 2 Former RCW 9.27.050 (Laws of 1909, ch. 249, § 297), repealed by Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.92.010. The former statute was subsequently interpreted to require proof of some act by the defendant to show his or her participation or at least his or her willingness to assist the rioters. State v. Moe, 174 Wash. 303, 305-06, 24 P.2d 638 (1933). The use of the term “actor” in the current statute requires no differentiation from spectators because spectators have not been punished for rioting since 1933.

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Bluebook (online)
147 Wash. App. 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-montejano-washctapp-2008.