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State v. Sandoval

Court of Appeals of Washington, Division 2

April 2, 2019

STATE OF WASHINGTON, Respondent,
v.
MARY E. SANDOVAL, Appellant.

          Melnick, J.

         Mary Sandoval appeals her convictions for possession of stolen property in the second degree and possession of a controlled substance.[1] She argues that insufficient evidence supports the jury's finding that the credit card found in her possession was an "access device," and that the jury instruction defining "access device" misstated the law and constituted an improper comment on the evidence. Sandoval also argues that she received ineffective assistance of counsel when her attorney failed to request an "unwitting possession" jury instruction. Finally, Sandoval argues that we should remand for the trial court to inquire into her ability to pay legal financial obligations (LFOs).

         We affirm the convictions but remand for the trial court to reconsider the imposition of LFOs.

         FACTS

         I. Incident

         On March 6, Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it.

         After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

         On April 2, the police found Sandoval and her husband in the stolen vehicle at the address listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and searched her incident to that arrest. In Sandoval's purse, the police found a credit card with somebody else's name on it, Sandoval's sister's birth certificate, and a pipe with methamphetamine residue.

         The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card's owner cancelled the card.

         The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

         II. Trial and Sentencing

         As relevant here, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

         The court defined an access device as, "any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value." Clerk's Papers (CP) at 47. In the same instruction, the court stated, "The phrase 'can be used' refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time." CP at 47.

         The jury convicted Sandoval on all charges except identity theft in the second degree. The State dismissed that charge.

         At sentencing, the court imposed numerous LFOs, including a $250 jury-demand fee. Sandoval appeals.

         ANALYSIS

         I. Access Device Defined

         Sandoval makes three assignments of error which are premised on her argument that the court incorrectly instructed the jury on the definition of the term "access device." According to Sandoval, an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner. Sandoval argues that insufficient evidence supports her conviction for possession of stolen property in the second degree, that the trial court erroneously instructed the jury on the definition of access device, and that the court impermissibly commented on the evidence with the instruction. We disagree with Sandoval.

         A. Legal Principles

         RCW 9A.56.010(1) defines "access device." The definition contains the phrase "can be used." "Can be used" is not statutorily defined. Sandoval argues that the court's jury instruction contained an erroneous definition for the phrase "can be used." Sandoval's argument is two-fold. First, Sandoval argues that we should not follow State v. Schloredt, 97 Wn.App. 789, 987 P.2d 647 (1999), [2] which interpreted the phrase "can be used," because it is not supported by sound reasoning. Sandoval argues in the alternative that State v. Rose, 175 Wn.2d 10, 282 P.3d 1087 (2012), effectively overruled Schloredt. We disagree with both arguments.

         We review questions of statutory interpretation de novo. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). Our primary duty in interpreting statutes is to determine and implement the legislature's intent. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). If the statute's plain language and ordinary meaning is clear, we look only to the statute's language to determine intent. Wentz, 149 Wn.2d at 346. "[W]e discern plain meaning from 'all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.'" State v. Sanchez, 177 Wn.2d 835, 843, 306 P.3d 935 (2013) (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). We consider "'all the terms and provisions of the act in relation to the subject of the legislation, the nature of the act, the general object to be accomplished and consequences that would result from construing the particular statute in one way or another.'" State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994) (quoting State v. Huntzinger, 92 Wn.2d 128, 133, 594 P.2d 917 (1979)). "[W]e presume the legislature does not intend absurd results and, where possible, interpret ambiguous language to avoid such absurdity." State v. Ervin, 169 Wn.2d 815, 823-24, 239 P.3d 354 (2010).

         "[L]egislative inaction following a judicial decision interpreting a statute is often deemed to indicate legislative acquiescence in or acceptance of the decision." State v. Stalker, 152 Wn.App. 805, 813, 219 P.3d 722 (2009). "'[E]vidence of legislative acquiescence is not conclusive, but is merely one factor to consider.'" Fast v. Kennewick Pub. Hosp. Dist., 187 Wn.2d 27, 39, 384 P.3d 232 (2016) (quoting Safeco Ins. Cos. v. Meyering, 102 Wn.2d 385, 392, 687 P.2d 195 (1984)).

         RCW 9A.56.010(1) defines "access device" as

any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, ...

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