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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Petitioner/Cross-Respondent,
v. CHRISTOPHERJOHN MONFORT, ) ) ) ) ) ) ) ) No. 88522-2 EnBanc
)

______________ ) Filed
___ 

### NO_V_1_4_2_0_13
__ _ Respondent/Cross-Petitioner. OWENS, J.

-- The King County prosecuting attorney charged Christopher Monfort with one count ofaggravated first degree murder for the death ofa law enforcement officer. He then filed a notice ofspecial sentencing proceeding (hereinafter "deathpenalty notice") pursuantto RCW 10.95.040(1). The statute provides, "Ifa person is charged with aggravated first degree murder
... , the prosecuting attorney shall file_written notice ofa special sentencing proceeding to determine whether or notthe deathpenalty should be imposed when there is reason to believe that there are notsufficientmitigating circumstances to merit leniency." RCW 10.95.040(1) (emphasis added). Monfort's defense (hereinafter "the defense") moved to strike the notice onthe basis thatthe county prosecutor consideredthe factsState v. Monfort No. 88522-2 ofthe crime and lacked a factual basis for making a determinationunderthe statute. The trial court denied the defense's motion onthe first basis but granted it onthe second. It statedthatthe countyprosecutor had failed to exercise discretion as required by constitutional and statutory law. The State moved for discretionary review, as did the defense, and we granted review. After considering the parties' arguments, we reverse the trial court. Furthermore, wehold that a countyprosecutor may consider the facts ofthe crime when deciding whetherto file a deathpenalty notice, and thejudiciary may review only whether a prosecutor has a "reasonto believe that there are not sufficient mitigating circumstances" underRCW 10.95.040(1). ISSUES I. Didthe trial court err in not striking the death penalty notice because the county prosecutor considered the facts ofthe crime? II. Did the trial court err in strikingthe deathpenalty notice because the county prosecutor did not consider enough mitigation evidence? FACTUALAND PROCEDURAL HISTORY A person is guilty ofaggravated first degree murder ifhe or she commits first degree murder involving one ormore statutory aggravating factors (e.g., a victim who
was serving as a law enforcement officer). RCW 10.95.020(1). InNovember 2009, the King Countyprosecuting attorney charged Monfort with one count ofaggravated

2State v. Monfort No. 88522-2 first degree murder for the death ofa law enforcement officer as well as one count of first degree arson and three counts offirst degreeattempted murder. InDecember 2009, the superior court arraigned Monfort. Absent a showing ofgood cause, Washington statutory law requires a countyprosecutorto file and serve a death penalty notice within 30 days after arraignment (here, January 13, 2010). RCW 10.95.040(2). Ifa countyprosecutor fails to give timely notice, he or she may not seek the deathpenalty. RCW 10.95.040(3). Moreover, before a county prosecutor
can file a deathpenalty notice, he or she must determine whether "there is reason to believe that there are not sufficientmitigating circumstances to merit leniency." RCW 10.95.040(1). Onthe day ofarraignment, the countyprosecutor sentthe defense an offer to extend the 30-day filing period to six months (June 2010), requestedthat defense counsel submit his mitigation materials in five months for review, and invited defense counsel to discuss the prosecutor's decision two weeks before the deadline. The defense agreed, and the trial court extended the statutory filing deadline to June 2010. InFebruary 2010, the defense wrote the prosecutor that it did not expect to meetthe deadline because the AmericanBarAssociation's Guidelinesfor the AppointmentandPerformance of Defense Counsel in DeathPenalty Cases (2003) required it to exhaustively investigate Monfort's life. Itexplained that Monfort's age (41), lack ofcriminal history, and residency in multiple states complicated the

3State v. Monfort No. 88522-2 investigation. InApril 2010, the defense moved to extend the filing deadline to December 2010. Itargued that it needed more time to complete a mitigation investigationthat would meet standards ofeffective assistance ofcounsel and the ABA 

### Guidelines. At a hearing, the trial court notedthat ex parte status reports showed that the defense and prosecution were investigating expeditiously. Notably, the defense statedthat it would not share any mitigation evidence withtheprosecution bythe current deadline. Inthe end, the trial court ordered the defense to meet withthe county prosecutor and set a follow-up status conference. InMay 2010, the defense met withthe prosecutiontwice (but notthe county prosecutor himself) and reaffirmed its positionnotto share mitigation evidence until its investigationwas complete. Ultimately, the countyprosecutor acknowledged the defense's challenges and met it halfway by agreeing to extendthe deadline bythree months (to September 2010) and asking the defense to submit its mitigation evidence byAugust 2010. The county prosecutor also renewed his offer to meet withthe defense before making his decision. The defense refused to promise to give the prosecution a "competentmitigationpackage" by August 2010. Clerk's Papers at 138. In response, the prosecution asked the defense to provide any mitigation evidence in its possession at thattime. The defense then revealed that issues with funding and experts had delayed the start ofits investigationuntil April 2010. The trial court extended the statutory filing deadline to September 2010.

4State v. Monfort No. 88522-2
In July 2010, the defense informed the prosecution it would not meetthe August deadline and renewed its request for a December deadline. Theprosecution acknowledged that the defense was refusing to provide any mitigation evidence by the August deadline, noted it had shared evidence, including evidence gathered by its private investigator, and declined to agree to an extension. The defense replied that it regretted that the prosecution would not afford it time to complete a mitigation package that metthe ABA Guidelines and noted that it had interviewed 14 acquaintances, friends, andrelatives ofMonfort and gathered information from 5 states, butthat itneeded to interview 40 more persons in 15 states. InAugust 2010, the defense again moved to extend the filing deadline to December 201 0. The prosecution opposedthe motion butreiterated that itwould consider the defense's mitigation evidence at any time. The trial court denied the defense's motion. The defense sought discretionaryreview in this court, whichwas denied. In September 2010, the countyprosecutor filed a death penalty notice. Almosttwo years later the defense moved to strike the death penalty notice. Among other things, the defense argued that the notice should be struck becausethe county prosecutor had insufficient facts to make a determination under RCW 10.95.040(1) and because the countyprosecutor consideredthe facts ofthe crime whenmaking his determination under the same. The trial court held a hearing onthe motions in October 2012. In January 2013, the defense stated it would share its

5State v. Monfort No. 88522-2 mitigation package with the prosecution the following month. (In its briefto this court, the prosecution stated that it had notreceived the defense's mitigation package
as ofApril2013.) InFebruary 2013, the trial court announced its ruling. The trial court denied the defense's motion to strike the death penalty notice because the countyprosecutor considered the facts ofthe crime. As for the other motion, the trial court made four determinations: (1) the defense had consistently maintained that it was preparing a mitigationpackage for the penaltyphase and for the prosecutor's determination whether to file a deathpenalty notice; (2) the prosecutor knewthe defense was not developing its mitigationpackage to delay the fact-finding investigation; (3) the court assured the prosecutorthatthe defense was proceeding to develop its mitigation package in accordance with the ABA Guidelines; and (4) the prosecutor "reliedupon
a flawed, practically useless mitigation investigationprepared by its own investigator." Verbatim Report ofProceedings (VRP) (Feb. 22, 2013) at 33-34. The trial courtthen concluded that the county prosecutor "failed bothto exercise the discretion it is statutorily and constitutionally obliged to exercise" and struckthe death penalty notice. 1 !d. at 34-35. InFebruary 2012, the trial court clarified that it had not reviewed the State's private investigation but had instead based its ruling on the defense's briefand attachments in support ofthe defense motion from July 20,2012,

1In March 2013, the trial court issued written orders on the motions and rested on its reasoning at the February hearing. 6State v. Monfort No. 88522-2 and the State's response brieffrom September 6, 2012. InMarch 2013, the prosecution moved for discretionaryreviewbythis court, as did the defense, and we granted discretionary review. STANDARD OF REVIEW We review questions ofstatutory interpretation as well as constitutional law de
novo. State v. Bradshaw, 152 Wn.2d 528,531,98 P.3d 1190 (2004). Yet, whilethe parties agree that our review is de novo, Monfort contends de novo review inthis case
means that we shouldreviewthe countyprosecutor's decision de novo, including examining the evidence in front ofhim, even ifsuch information was not before the trial court. Monfort's contention is not well taken. When we review a trial court's decision de novo, we review the facts in front ofthe trial court; we do not consider evidence outside the record. See In re DisciplinaryProceedingAgainst Turco, 137 Wn.2d 227, 245-46, 970 P.2d 731 (1999) (stating that de novo review does notmean that the court holds a new evidentiary hearing); State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997) (stating that de novo review is limited to the legal conclusions the trial court drew from its findings offact). Accordingly, our review is limited to the trial court record. ANALYSIS We review (I) the trial court's denial ofthe motionto strike because the county prosecutor consideredthe facts ofthe crime and (II) the trial court's grant ofthe

7State v. Monfort No. 88522-2 motionto strike because the county prosecutor did not consider enough mitigation evidence. I. The Trial Court CorrectlyDeniedthe Motion To Strike the DeathPenaltyNotice Because the County Prosecutor Consideredthe Facts of the Crime On cross appeal Monfort argues that a county prosecutor may not consider the facts ofthe crime under RCW 10.95.040(1). The trial court below disagreed with this argument and dismissed the defense's motion to strike the death penalty notice on these grounds. Monfort claims this was legal error. He is incorrect. We construe statutes to ascertain and carry outthe legislature's intent. State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012). To construe a statute, we examine the whole statute "and considerthe entire sequence ofall statutes relating to the same subjectmatter." 

### !d. More broadly, we consider all statutes relating to the
same subject matter, pursuantto the principle ofreading statutes inpari materia. Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 146, 18 P.3d 540 (2001). Here, the plain language ofRCW 10.95.040(1) refers to the facts ofthe crime at two points. First, the statute applies only ifa person is charged with "aggravated first degree murder." RCW 10.95.040(1). Thus, a county prosecutor must considerthe facts of the crime to determine whether the statute applies at all. Second, the statute requires a county prosecutorto consider "mitigating circumstances." 

### !d. Because the term is statutorily undefined, weresort to a dictionary definition for clarification. State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). The dictionary defines the verb
8State v. Monfort No. 88522-2 "mitigate" as "to make less severe, violent, cruel, intense, [or] painful." WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY 1447 (2002). Thus, the term means either to lessenthe penalty orto lessenthe crime withthe same result (i.e., lessening the penalty). Fromthe plain language ofRCW 10.95.040(1) it follows that a county prosecutor may consider the facts ofthe crime being mitigated or lessened. Indeed, it would be illogical and contrary to common sense for a county prosecutorto consider mitigating circumstances in a vacuum. Otherprovisions in chapter 10.95 RCW also indicate that a county prosecutor may considerthe facts ofthe crime. For instance, RCW 10.95.060(4) directs thejury to consider "'the crime"' when consideringmitigating circumstances. And RCW 10.95.070 provides thejurywith a nonexhaustive list ofmitigating factors to consider, including possible facts ofthe crime. RCW 10.95.070(2)-(7). Thus, the plain language of-otherprovisions in chapter 10.95 RCW indi.cates thatthe legislature intended that the facts ofthe crime be considered when evaluating mitigating circumstances underRCW 10.95.040(1). Furthermore, our case law suggests that a county prosecutor may considerthe facts ofthe crime under RCW 10.95.040(1). See, e.g., In re Pers. Restraint of Harris, 111 Wn.2d 691, 694, 763 P.2d 823 (1988) (noting that the statutory mitigating factors relate to the crime itself); State v. Rupe, 101 Wn.2d 664, 699-700, 683 P.2d 571 (1984) (upholding RCW 10.95.040(1) inpart because it allows prosecutors to considerthe "seriousness ofthe crime"). In sum, the

9State v. Monfort No. 88522-2 plain language ofthe statute and related statutes and our case law all support concluding that a county prosecutor may consider the facts ofthe crime under RCW 1

0.95.040(1). Accordingly, we affirm the trial court's denial ofthe motionto strike. II. The Trial CourtErrantly Struck the County Prosecutor's DeathPenaltyNotice Ourreview ofthe trial court's decision to grantthe other motionto strike the deathpenalty notice revolves around (A) whether a county prosecutormust complete
an exhaustive investigation ofmitigating circumstances and (B) whether the county prosecutor inthis case properly exercised his discretion. A. A CountyProsecutorDoesNotHave To Complete an ExhaustiveInvestigation of Mitigating Circumstances Before Filing aDeathPenaltyNotice Monfort argues that a countyprosecutor is required to conductthe same level ofinvestigationwhen determining whetherto file a death penalty notice as the defense is required to conductwhenpreparing for the penaltyphase ofa capital case. The trial court appeared to agree because it held the prosecution's investigation to the standard governing the defense's investigation and struckthe deathpenalty notice, in part, for the prosecution's failure to meet it. The plain language ofRCW 10.95.040(1) and our case law showthatthe defense and trial court are incorrect. The ultimate focus ofthe defense's investigation into mitigation evidence is the penalty phase oftrial, whenthejury confronts the question ofwhether it is '"convincedbeyonda reasonable doubt that there are not sufficient mitigating circumstances to merit leniency."' RCW 10.95.060(4) (emphasis added). Naturally,
10State v. Monfort No. 88522-2 the defense's aim is to preventthejury from being convinced beyond areasonable doubt that there are not sufficientmitigating circumstances. In contrast, a prosecution's investigation into mitigation evidence initially focuses onthe question ofwhetherto file a death penalty notice, where he or she must determine whether "there is reason to believe that there are not sufficientmitigating circumstances to merit leniency." RCW 10.95.040(1) (emphasis added). Under the plain language of RCW 10.95.040(1), a countyprosecutor does not have to be convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency. Since a countyprosecutor does not have to be convinced beyond a reasonable doubt, it follows boththathe or she does not have to investigate mitigating circumstances to that extent and thus does nothave to performthe same degree of investigation as the defense. Similarly, a countyprosecutor's investigation does not have to comply withthe ABA Guidelines and standards ofeffective assistance of counsel such as those found in Wiggins v. Smith, 539 U.S. 510, 522-35, 123 S. Ct. 2527, 156 L. Ed. 2d471 (2003), because those standards apply only to the defense. Although Monfort argues to the contrary, he provides no legal support for the conclusionthat such standards somehow apply to the prosecution, whichhas no attorney-client relationship withthe defendant. The trial court concludedthat a county prosecutor's death penalty notice decision must rest on "full mitigation information" under this court's case law. VRP

11State v. Monfort No. 88522-2 (Feb. 22, 2013) at 27-30. The trial court drew this conclusion from State v. Pirtle, 127 Wn.2d 628,904 P.2d 245 (1995). Among other things, Pirtle stands for the proposition that a countyprosecutorhas a sufficientbasis for determining whether to file a death penalty notice whenthe defendant's criminal history provides information
on most ofthe statutory mitigating factors provided under RCW 10.95.070, notwithstanding input from the defense. 127 Wn.2d at 642-43. Itdoes not, however, provide that less information renders the prosecutor's decision an abuse ofdiscretion. Besides, the plain language ofRCW 10.95.070 provides thatthe list offactors is nonexhaustive. Thus, RCW 10.95.070 is not a recipe for full mitigation information, whatever that maybe, and the trial court's reading ofPirtle is incorrect. In sum, the plain language ofRCW 10.95.040(1) and our case law do not demonstrate that a county prosecutor must complete an exhaustive investigation ofmitigating circumstances. A county prosecutor's investigation satisfies RCW 10.95.040(1) so long as it enables him orherto determine whether "there is reason to believethat there are not sufficient mitigating circumstances to merit leniency." B. The CountyProsecutorProperlyExercisedHis Discretion To File aDeath PenaltyNotice As stated above, the trial courtbelow held that the county prosecutor failed to exercise his discretion in accordance with constitutional and statutory law. We disagree.

12State v. Monfort No. 88522-2 When a county prosecutor determines whether "there is reason to believe that there are not sufficient mitigating circumstances to merit leniency" under RCW 10.95.040(1), he or she is constitutionally required to "perform individualized weighing ofthe mitigating factors" and may not adopt "aninflexible policy." 

### Pirtle, 127 Wn.2d at 642. Here, the trial court ostensibly concluded that the county prosecutor had adopted an inflexible policybecause he decided not to continue to wait for the defense's mitigation evidence. To the extentthat the trial court made this conclusion, its ruling is legal error. In

### Pirtle, on the day the county prosecutor brought charges against the defendant, he announced his intentto file a deathpenalty notice. Buthe offeredto wait 30 days to file and specifically cautioned that he would consider the defense's mitigating evidence during that time. 

### !d. at 641-42. The county prosecutor adhered to the deadline and filed the notice without the benefit of the defense's evidence. 

### !d. at 642. This court held that the county prosecutor's willingness to wait 30 days and consider any mitigating evidence during thattime demonstrated an individualized approach. 

### !d. In this case, the county prosecutor ultimately agreed to wait about nine months before filing a death penaltynotice, explicitly stated he would considerthe defense's mitigation evidence at any time and meet with the defense, and even suggested he might ask the trial courtto strike the notice ifthe defense presented sufficient evidence after he filed. Set against

### Pirtle,

13State v. Monfort No. 88522-2 the county prosecutor's policy was flexible and individualized as constitutionally required, and the trial court's ruling to the contrary was legal error. As for statutory compliance, the trial court essentially held thatthe county prosecutor abused his discretion under RCW 10.95.040(1) because (1) he did not have
reason to believe the defense had insufficient mitigation evidence and (2) he did not consider a full mitigationpackage. These determinations by the trial court do not demonstrate thatthe county prosecutor failed to properly exercise his discretion under the statute. Moreover, the trial court's ruling ignores the subjective nature ofthe decision to file a death penalty notice. The first determination does not supportthe trial court's legal conclusion for two reasons. First, receiving mitigation evidence from the defense is "normally desirable,"

### Pirtle, 127 Wn.2d at 642, but notrequired by the plain language ofthe statute, 

### see supra partII.A. Therefore, the county prosecutor did not abuse his discretion merely by choosing not to wait for the defense to share what information it possessed. Second, the record shows the county prosecutorhadreason to believe that the defense had insufficient mitigation evidence. The prosecutor explainedto the trial courtthathe understood the defense's recalcitrance to mean one oftwo things: either the defense did not want to showthe prosecution its evidence before trial or it had insufficient mitigating evidence. The defense responded that it had decided notto share its evidence for bothreasons. Thus, the defense's response gave rise to a reason

14State v. Monfort No. 88522-2
to believe that there were not sufficientmitigating circumstances to merit leniency. And the trial court's assurances that the defense was preparing a mitigationpackage in accordance withthe ABA 

### Guidelines does not preclude the countyprosecutor from concluding thatthe defense's future mitigation evidence would also be insufficient. The second determination-thatthe countyprosecutor did not consider a full mitigation package-also does not supportthe trial court's legal conclusion for two
reasons. First, as explained in part II.A, a countyprosecutor does not have to consider
a full mitigationpackage under the statute. Second, this case is very similar to 

### Pirtle, where this courtheldthat the county prosecutorhad sufficient informationto make a determinationunder the statute, 127 Wn.2d at 642-43. In

### Pirtle, the county prosecutor's information allowed him to draw conclusions "about each ofthe statutory mitigating factors, with the possible exception ofthe Defendant's mental state at the time ofthe crime." 

### ld. at 643. Here, the facts ofthe crime and Monfort's criminal history allowed the countyprosecutor to draw conclusions about five and possibly six ofthe eight statutory mitigating factors. 

### See RCW 10.95.070(1) (criminal history), (3) (consent), (4) (minor accomplice), (5) (duress), (7) (age), and (8) (risk of future danger). As in

### Pirtle, the exception appears to be Monfort's mental state at the time ofthe crime. 

### See id. at (2) (mental disturbance), (6) (mental disease). Thus, the county prosecutor exercised his discretion in accordance with our statutory and case law. Accordingly, we reverse the trial court's grant ofthe motionto strike.

15State v. Monfort No. 88522-2 The foregoing analysis demonstrates thatthe county prosecutor's decision comported with constitutional requirements, RCW 10.95.040(1), andPirtle. Butwhat it leaves out, and what calls for emphasis, is that a countyprosecutor's deathpenalty notice decision is a "subjective determination." Harris, 111 Wn.2d at 694; see State
v. Campbell, 103 Wn.2d 1, 25 n.l, 691 P.2d 929 (1984) ("Thejudge orjury at the sentencing phase mustbe free to consider any individual circumstances whichwould argue against imposition ofthe deathpenalty."); Rupe, 101 Wn.2d at 700 ("The courts may assume thatprosecutors exercise their discretion in a manner which reflects their judgment concerning the seriousness ofthe crime or insufficiency ofthe evidence."). RCW 10.95.040(1) requires onlythat the county prosecutorhave "reasonto believe that there are not sufficient mitigating circumstances to merit leniency" before filing a deathpenalty notice. As we have thoroughly established, the statute does notrequire thatthe countyprosecutorbase his orher determination on a checklist ofmitigating factors or according to guidelines, which mightbeputunder objective scrutiny. Nor does it require that ajudge or defense share a county prosecutor's belief. Inthis case, the trial court intruded upon the countyprosecutor's determination by going beyond the question ofwhetherthe county prosecutor had his reasons to hold him to a higher standard, which formed the basis ofhis ruling. In future cases, courts shouldrestrict their review to this reason-to-believe standard, as such a course ofreview is consistent withthe plain language ofthe statute and thejudiciary's authority to review for

16State v. Monfort No. 88522-2 statutory compliance. See State v. Dearbone, 125 Wn.2d 173, 883 P.2d 303 (1994) (reviewing a county prosecutor's failure to abide by the time limit inRCW 1

0.95.040). CONCLUSION We make four holdings. We hold that a county prosecutor may consider the facts ofa crime as a mitigating circumstance or lack thereofunder RCW 10.95.040(1). We hold that a county prosecutor does nothave to complete an exhaustive investigation ofmitigating circumstances before filing a death penalty notice. We hold that the county prosecutor inthis case properly exercisedhis discretionto file a deathpenaltynotice. And wehold that thetrial court improperly intruded uponthat subjective determination when it held the prosecutor to a higher standard. Accordingly, the death penalty notice against Monfort is reinstated, and the matter is remanded to the trial court for proceedings consistent withthis opinion.

17State v. Monfort No.**88522~2**



### WE CONCUR:

18

### State v. Monfort (Christopher John)

No. 88522-2 GORDON McCLOUD, 

### J. (concurring)-The majority begins with the assumption that the judiciary has the power to review whether a prosecutor's decision to file a notice of special sentencing proceeding complies with RCW 10.95.040 and constitutional requirements. I agree. 1

### The majority continues thatthe prosecutor's decision to consider "the facts ofthe crime" in Christopher Monfort's
case complied with that statute. I agree with that conclusion, too. RCW 1

0.95.040(1) gives the prosecutorthe discretionto file a notice ofspecial sentencing prbceeding after considering the factors listed in that statute; properly interpreted, that statute requires the prosecutor to consider mitigating factors in context; and

1Thejudiciary certainly has the power and duty to review executive, like legislative, acts, to determine their constitutionality. Marbury v. Madison, 5U.S. (1 Cranch) 137, 177, 2L. Ed. 60 (1803) ("It is emphatically the province and duty ofthejudicial department to say what the law is.
. .. Iftwo laws conflict with each other, the courts must decide on the operationofeach."). Specifically,thejudiciaryhas the power and duty to reviewexecutive action for compliancewith statutory mandates. Harmon v. Brucker, 355 U.S. 579, 581-82, 78 S. Ct. 433, 2 L. Ed. 2d 503 (1958).State v. Monfort (Christopher John), No. 

### 88522-2 (Gordon McCloud, J., 

### concurring)

context includes the evidence ofthe crime. Indeed, that is precisely the conclusion this courtjustreached in State v. McEnroe, No. 88410-2 (Wash. Sept. 5, 2013). The majority then states that the courts have the powerto review whether the prosecutor conducted a sufficientbackground investigation before deciding to file a notice ofspecial sentencingproceeding and thatthe prosecutor in this case did so. I agree withthose conclusions, too. The majority, however, writes more broadlythan that, by stating that we must uphold the filing of a death notice whenever the prosecutor states that he or she subjectively believes that "'there are not sufficient mitigating circumstances to merit leniency."' Majority at 13, 14 (quoting RCW 1

0.95.040(1) and referencing "the subjective nature ofthe decision to file a death penalty notice"). I write separately because RCW 10.95.040(1)'s plain language actually contains an objective standard. It 

### requires not just that the prosecutor subjectively believe that there are not sufficient mitigating circumstances to merit leniency before seeking the death penalty but also that the prosecutor's subjective decision onthatpointbe objectively reasonable. RCW 10.95.040(1) states, "If

### apersonis chargedwith aggravated first degree murder as defined by RCW 10.95.020, the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not 2State v. Monfort (Christopher John), No. 88522-2 (Gordon McCloud, J., concurring)

sufficient mitigating circumstances to merit leniency." (Emphasis added.) As both the United States Supreme Court and Washington courts have consistently recognized, the "reasonto believe" standard is an 

### objective standard.2 The State argues that inln 

### re PersonalRestraintof Lord, 123 Wn.2d 296, 868 P.2d 835 (1994), this court held that RCW 10.95.040(1)'s "reason to believe" requirement established a purely subjective standard. Wash. Supreme Court oral argument, 

### State v. Monfort, No. 88522-2 (June 27, 2013), at 38 min., 4 sec., 

### audio recording by TVW, Washington State's Public Affairs Network, available at

2 UnitedStates v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed. 2d (1980) (whether "reasonable person would have believed that he was not free to leave" depends on objective facts surrounding encounter with law enforcement); Cowell v. Good Samaritan Cmty. Health Care, 153 Wn. App. 911, 925, 225 P.3d 294 (2009) (Health Care QualityImprovementAct of1986, 42 U.S.C. § 11112(a)(1), sets forth "objective" standard where it requires that action be taken "'in the reasonable belief that [it] was in the furtherance ofquality health care"');State v. Holmes, 108 Wn. App. 511,519,31 P.3d 716 (2001) ("whether officers reasonably believe in third person's authority to consent [to search] isjudged against an objective standard"); State v. Sheldon, 38 Wn. App. 195, 197- 98, 684 P.2d 1350 (1984) (instruction permittingjury "to find knowledge ifyou find that the defendant has information which would lead a reasonable person in the same situation to believe that [certain] facts exist" permittedjury to apply an "objective standard"); see Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) (determination whether "'the facts available to the officer at the moment [would] warrant a man ofreasonable caution in the beliefthat the consenting party had authority over the premises" is an "objective standard'" (internal quotation marks omitted) (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 148 (1968))); Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 130, 769 P.2d 298 (1989) (in action for wrongful termination, "requirement that the just cause determination be reasonable" establishes an objective standard). 3State v. Monfort (Christopher John), 

### No. 88522-2 

### (Gordon McCloud, J., 

### concurring)
http://www.tvw.org. On this basis, the State contends that rev1ewmg the prosecutor's charging decision would invade his personal thought processes and violate workproductprotections. 

### Id. at 9min., 35 sec. It

### is truethatinLord

### this court characterizedRCW 10.95.040(1) as mandating
a "subjective determination." Lord, 

### 123 Wn.2d at 305 ("[t]he decisionto impose the death penalty requires the prosecutor to make the 'subjective determination of whether there is reason to believe that there are not sufficient mitigating circumstances to merit leniency'" (internal quotation marks omitted) (quotingIn re Pers. Restraint of Harris, 

### 111 Wn.2d 691, 694, 763 P.2d 823 (1988))). However, neither Lord

### norHarris-the 

### case on which Lord

### relied for that characterizationrequired the court to determine whether RCW 10.95.040(1)'s "reason to believe" standard had been satisfied. In Lord, 

### the petitioner argued that the prosecutor had failed to exercise any 

### ofthe discretion required under the statute, instead filing the deathpenaltynotice "automatically." Id. 

### at 304. InHarris 

### the petitioner challenged the prosecutor's policy ofseeking the death penalty in every aggravated first degree murder case unless the defendant brought evidence ofmitigating circumstances to the State's attention. Harris, 

### 111 Wn.2d at 693. Neither petitioner challenged the objective reasonableness ofthe prosecutor's belief"that there [were] not sufficient mitigating circumstances to merit leniency." RCW 10.95.040(1). Thus, this court's 4State v. Monfort (Christopher John), No. 88522-2 (Gordon McCloud, J., concurring)


### passing references in Harris 

### and Lord

### to the "subjective" nature ofthe "reason to believe" determination are dicta.3 

### Those references must not be treated as controlling interpretations ofRCW 10.95.040(1) for two reasons. First, proper statutory interpretation must begin with the language ofthe statute. The language at issue here is the phrase "reason to believe" in RCW 10.95.040(1). As discussed above, in every other context that phrase is always construed as imposing an objective, reasonable person, standard. The legislature is presumed to be aware of such prior interpretations when it incorporates such aterm ofart into a statute, as it did in 1981 when it enacted RCW 1

0.95.040(1). See Gimlettv. Gimlett, 

### 95 Wn.2d 699, 702, 629 P.2d450 (1981). Any implication to the contrary inLord

### is inconsistent with the statute's plain language. Second, as a practical matter it makes far more sense to interpret RCW 1

0.95.040(1) as establishing an objective standard than as establishing a purely

3 Indeed, in Harris this court did not even suggest that the prosecutor's decision under RCW 10.95.040(1) ispurely subjective. Rather, itstated thatthe determination ofwhether there is '"reason to believe that there are not sufficient mitigating circumstances to merit leniency"' is "more subjective"thanthe decision whetherto file habitual criminal charges, sincethe latterrests primarily on "matters ofpublicrecord." Harris, 111 Wn.2d at 693-94 (quotingRCW 10.95.040(1)). Itwas onthis passage from Harris thattheLordcourtrelied when it stated that "[t]he decision to impose the death penalty requires the prosecutor to make[a] 'subjectivedetermination."' Lord, 123 Wn.2dat305 (quotingHarris, 111 Wn.2d at 694). 

### 5State v. Monfort (Christopher John), No. 88522-2 

### (Gordon McCloud, J., 

### concurring)
subjective one. Indeed, the State cannot even charge a misdemeanor crime like trespass without establishing probable cause based on a reviewable, objective standard. It

### would be anomalous to let aprosecutor file a death penalty notice with less objective justification. Further, it would be difficult for a court to review a prosecutor's subjective beliefs without invading his or her thought processes, confidentiality, and work product. But courts review decisions based on the objective criterion ofreasonableness in a wide variety ofcontexts. Courts review, for example, whether there was "reasonable suspicion" to stop a suspect. State 

### v. Larson, 

### 93 Wn.2d 638, 644-45, 611 P.2d 771 (1980) (citing Delaware 

### v. Prouse, 

### 440 U.S. 648, 653-55, 99 S. Ct. 1391, 59 L. 

### Ed. 2d 660 (1979)). Courts review whether a civil defendant's actions met the "reasonable person" standard. Ranger Ins. Co. 

### v. Pierce County, 

### 164 Wn.2d 545, 553, 192 P.3d 886 (2008) (municipality is negligent ifit fails to exercise '"that care which an ordinarily reasonable person would exercise under the same or similar circumstances"' (quoting Berglund 

### v. Spokane County, 

### 4 Wn.2d 309, 315, 103 P.2d 355 (1940))); Rosendahl 

### v. Lesourd Methodist Church, 

### 68 Wn.2d 180, 182, 412 P.2d 109 (1966) (test for contributory negligence is whether plaintiff "'exercised that reasonable care for his own safety which a reasonable man would have used under the existing facts and



### 6State v. Monfort (Christopher John), No. 88522-2 (Gordon McCloud, J., concurring)

circumstances"' (quoting 

### Heinlen v. Martin Miller Orchards, Inc., 40 Wn.2d 356, 360, 242 P.2d 1054 (1952))).4 Reviewing similar filing decisions at the charging stage is routine, not anomalous. Our court, for example, has reviewed a prosecutor's blanketpolicy of charging an enhanced penalty in every case without exercising discretion-at the charging stage. 

### State v. Pettitt, 93 Wn.2d 288, 296, 609 P.2d 1364 (1980) ("this fixed formula
. . . constitutes an abuse ofthe discretionary power lodged in the prosecuting attorney"). Ourcourthas reviewedthe sufficiency offactual allegations to supportaninformation-also atthe charging stage. 

### State v. Knapstad, 107 Wn.2d 346, 347, 729 P.2d 48 (1986). Courts review charging decisions, at the charging stage, for compliance with timing rules. 

### State v. Dearbone, 125 Wn.2d 173, 178, 883 P.2d 303 (1994) ("[t]his court will review de novo the trial court's finding of good cause [to reopen the period for service of notice of special sentencing proceeding] under RCW 10.95.040").5

4 Similarly, fact finders review whether a defendant claiming self-defense had a "reasonable belief' that he or she was in imminent danger. State v. Bradley, 141 Wn.2d 731,737, 10 PJd 358 (2000); accordState v. Walker, 136 Wn.2d 767,772,966 P.2d 883 (1998) ("personrelying onthe self-defense claimmusthavehad areasonable apprehension ofgreat bodily harm" (citing State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993))).
5 Thejudiciary also has the power and duty to review charging decisions at later stages of the case. E.g., State v. Kjorsvik, 117 Wn.2d 93, 97-102, 812 P.2d 86 (1991) (to meet 7State v. Monfort (Christopher John), 

### No. 88522-2 (Gordon McCloud, J., 

### concurring)
Reviewing similarfiling decisions atthe charging stage is notburdensome. A defendant's argument that the prosecutor lacks "reason to believe" under RCW 10.95.040(1) is analogous to a 

### Knapstad challenge, which alleges that the facts supporting the charging document are insufficient as a matter of law to sustain a conviction. 

### Knapstad, 107 Wn.2d at 347. Theprocedure for addressing a

### Knapstad challenge thus provides a good template for how a challenge under RCW 10.95.040(1) shouldproceed. With 

### aKnapstadchallenge, the courts rely on a short and simple statement of the facts, usually the prosecutor's certification for determination ofprobable cause. With an RCW 10.95.040(1) challenge, the courts
can do essentiallythe samething. The State'spresentationneednotbe swornby the prosecutor. 6 

### Following 

### Knapstad, itneed not be extensive. 

### See id. at 356. And in light ofthe language, purpose, and context ofRCW 10.95.040(1), the statement's description ofthe prosecutor's mitigating factors inquiry need not meet the same standard as that expected of the defense counsel. The State's affidavit must, however, showthattheprosecutor's filing decisionwas 

### objectivelyreasonable-that
constitutional notice requirements, charging document must include all essential elements ofthe crime charged); State v. Kenyon, 

### 150 Wn. App. 826, 832-35, 208 P.3d 1291 (2009) (under CrR 4.3, prosecutor has no discretion to delay charge for related offense "as a tactical maneuver").
6 CfKalina v. Fletcher, 

### 522 U.S. 

### 118, 130-31, 118 S. 

### Ct. 502, 139 L. 

### Ed. 2d 471 (1997). 8State v. Morifort (Christopher John), 

### No. 88522-2 (Gordon McCloud, J., 

### concurring)

the prosecutor fulfilled the statutory duty to "reasonabl[y]"decidewhetherthere are "not sufficientmitigating circumstances to merit leniency." RCW 10.95.040(1). Here, there is no supporting affidavit concerning the death notice to review. This court instead reviewed the defense's summary of the contents of the prosecutor's mitigation investigation, since the State agreed that that summary was accurate. Wash. Supreme Court oral argument, supra, 

### at 3 min., 50 sec. That summary states that the prosecution's investigator did 24 phone interviews and one e-mail interview, that she introduced herselfin those interviews as working for the prosecutor but did not specify that she was seeking mitigating information, that she also gathered apparently aggravating information, andthat she failedto talkwiththe two people who knew Monfort best and for the longest time: his mother and aunt. 

### Id.; App. to Monfort's Cross-Mot. for Discretionary Review at 191-92; Monfort's Resp. to State's Mot. for Discretionary Review at 8 n.2. Certainly, this is far more than the prosecutor did in 

### State v. Pirtle, 127 Wn.2d 628, 642-43, 904 P.2d 245 (1995), likely because of advances in what we consider to be reasonable

9State v. Monfort (Christopher John), No. 88522-2 (Gordon McCloud, J., concurring)
investigation since the time that Pirtle was decided.7 Certainly, it is far less than what is required ofeffective defense counsel.8 I therefore concur with the majority's conclusion that this was reasonable. I write separately to emphasize that under the language ofthe applicable statute, the

7 In Pirtle, the prosecutor agreed to consider mitigating evidence presentedby the defense but did not undertake any investigation ofhis own, instead relying solely on information contained in the defendant's criminal record. Pirtle, 127 Wn.2d at 642-43.
8 See, e.g., ABA, SUPPLEMENTARY GUIDELINES FOR THE MITIGATION FUNCTION OF DEFENSE TEAMS INDEATH PENALTY CASES guidelines 10.11 B., C. (2008), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representati on/Standards/National/2008_July_CC1_Guidelines.authcheckdam.pdf (last visited Nov. 12, 2013) ("The defense team must conduct an ongoing, exhaustive and independent investigation of every aspect of the client's character, history, record and any circumstances ofthe offense, or other factors, which may provide a basis for a sentence less than death
.... Team members must conduct in-person, face-to-face, one-on-one interviews with the client, the client's family, and other witnesses who are familiar with the client's life, history, or family history or who would support a sentence less than death. Multiple interviews will be necessary to establish trust, elicit sensitive information and conduct a thorough and reliable life-history investigation."); ABA, GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES guidelines 10.4 C. 2. a., 10.11 D., F.l (rev. ed. Feb. 2003), available at http://www.americanbar.org/content/dam/aba/migrated/2011_ build/death _penalty _repres entation/2003guidelines.authcheckdam.pdf (last visited Nov. 12, 2013) (defense team should include "at least one mitigation specialist and one fact investigator"; counsel "at every stage ofthe case should discuss with the client
... means by which the mitigation presentation might be strengthened, and the strategy for meeting the prosecution's case in aggravation" in penalty phase counsel should consider "[ w]itnesses familiar with and evidence relating to the client's life and development, from conception to the time of sentencing").
10State v. Monfort (Christopher John), No. 88522-2 (Gordon McCloud, J., concurring)
prosecutor's investigation was objectively reasonable andjudicially reviewablenotjustthathe subjectively believed it was reasonable.

11State v. Monfort (Christopher John), No. 88522-2 (Gordon McCloud, J., Concurring)

12