IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

VICTOR CERVANTES,

Appellant.

NO. 68936-3-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: July 15, 2013

CP,

vo

CT.'

—If

Lau, J. —When a principal or an accomplice removes a firearm from a home ;c\

during a burglary, he or she is "armed with a deadly weapon" for purposes of first

degree burglary. Because VictorCervantes or a coparticipant removed a handgun from

Michelle Richie's home during the burglary, we affirm his first degree burglary

conviction. And because sufficient evidence supports accomplice liability under the

general theft statute, that evidence also supports accomplice liability for theft of a

firearm. We find no error in the trial court's use of Washington Pattern Jury Instruction

(WPIC) 4.01's reasonable doubt instruction. We affirm Cervantes's first degree burglary

and theft of a firearm convictions.

FACTS

On July 28, 2011, Richie saw an unfamiliar car parked near her house as she

pulled into her driveway. She saw Cervantes approaching from the side of her house
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and used her cell phone to call her husband. She questioned Cervantes about his

presence at the house. Cervantes said the house was unlocked. Richie responded,

"[Tjhere's no reason to be going through anyone's house." Verbatim Report of

Proceedings (VRP) (May 14, 2012) at 32. After her husband answered the phone,

Richie told him Cervantes's license plate number. Cervantes shouted profanities and

struck the right side of Richie's head, scratching her face. Cervantes grabbed her

phone and fled in his car. Richie noticed two men run from the back of her house and

escape through a fence.

Richie and her husband met Skagit County Sheriff's deputies outside the house.

Richie noticed damage to the front door frame. Later, she noticed a loaded handgun

missing from the nightstand drawer in the master bedroom. Other valuable items,

including a television, video game systems, a laptop, and jewelry remained untouched.

Sheriff deputies never recovered Richie's gun and cell phone. They later

arrested Cervantes but never identified the other two men.

A juryfound Cervantes guilty offirst degree burglary, first degree robbery, and

theft of a firearm. The trial court sentenced Cervantes to 66 months' confinement.

Cervantes appeals hisfirst degree burglary and theft of a firearm convictions but not his

first degree robbery conviction.

ANALYSIS

Cervantes argues (1) insufficient evidence to support the first degree burglary

conviction because the State failed to prove that he or a coparticipant was "armed

with a deadly weapon" under RCW 9A.52.020(1 )(a)'s first degree burglary statute;

(2) insufficient evidence to support the theft of a firearm conviction because he lacked

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knowledge that the men planned to steal a gun; and (3) the reasonable doubt instruction

is erroneous.

Standard of Review

To determine whether sufficient evidence exists to support a conviction, we ask

"'whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found sufficient evidence to justify that conclusion

beyond a reasonable doubt.'" State v. Davis, 175 Wn.2d 287, 346, 290 P.3d 43 (2012)

(quoting State v. Yates. 161 Wn.2d 714, 786, 168 P.3d 359 (2007)). "[A]ll reasonable

inferences from the evidence must be drawn in favor of the State and interpreted most

strongly against the defendant." State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). Circumstantial evidence and directevidence carryequal weight. State v.

Goodman. 150 Wn.2d 774, 781, 83 P.3d 410 (2004). "[T]he specific criminal intent of

the accused may be inferred from the conduct where it is plainly indicated as a matterof

logical probability." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

First Degree Burglary

Under RCW 9A.52.020(1),

[a] person is guilty of burglary in the first degree if, with intentto commit a crime

against a person or property therein, he or she enters or remains unlawfully in a

building and if, in entering or while in the building or in immediate flight therefrom,

the actor or another participant in the crime ... is armed with a deadly

weapon .. . .[1]

1The court did not instruct the jury that first degree burglary also occurs when the

defendant "assaults any person" during the commission. RCW 9A.52.020(1 )(b).

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The legislature defined the phrase "deadly weapon"2 but not the term "armed."

Cervantes claims to prove "armed" requires the State to show a willingness and present

ability to use the gun.

In State v. Hall. 46 Wn. App. 689, 732 P.2d 524 (1987), the defendant was

convicted of first degree burglary on evidence that he and another man removed an

unloaded rifle and ammunition from a house. Division Three of this court defined the

principal issue:

[Wjhether possession of firearms taken in the course of a burglary constitutes

being "armed with a deadly weapon" as required by RCW 9A.52.020(1 )(a)for

conviction offirst degree burglary, when the guns are not loaded, but ammunition

is taken as well, and the guns and ammunition are transported to the trunk of a

car.

Hall. 46 Wn. App. at 693. Finding no controlling Washington case law, the court

adopted the definition of "armed" from a case involving a deadlyweapon sentence

enhancement. The court concluded that a defendant is armed for purposes of the first

degree burglary statute if "a weapon is'easily accessible and readily available for use

by the defendant for either offensive or defensive purposes.'" Hall, 46 Wn. App. at 694

(quoting State v. Sabala. 44 Wn. App. 444, 448, 723 P.2d 5 (1986)). The court

specifically rejected Hall's contention that "armed" requires evidence thatthe accused

must use the deadly weapon in a manner indicating a willingness or present ability to

2Under RCW 9A.04.110(6), "'[djeadly weapon' means any explosive or loaded or

unloaded firearm, and shall include any other weapon, device, instrument, article, or

substance, including a "vehicle" as defined in this section, which, under the

circumstances in which it is used, attempted to be used, or threatened to be used, is

readily capable of causing death or substantial bodily harm."

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use it.3 The court then held that if the weapon at issue is per se dangerous (i.e., all

firearms), then "no analysis of willingness or present ability to use a firearm as a deadly

weapon is needed." HaN, 46 Wn. App. at 695; accord State v. Speece. 56 Wn. App.

412, 416, 783 P.2d 1108 (1989), affd 115 Wn.2d 360, 798 P.2d 294 (1990). The court

concluded, "For purposes of first degree burglary, the defendant is armed with a deadly

weapon ifa firearm is 'easily accessible and readily available for use by the defendant

for either offensive or defensive purposes.'" Hall, 46 Wn. App. at 695 (quoting Sabala,

44 Wn. App. at 448).

Hall concluded that the defendant's removal of the rifle and ammunition was

"more than is required to be armed with a deadly weapon." Hal], 46 Wn. App. at 695-

96. The court noted that the ready availability of the rifle and ammunition created "a

possibility of violence to anyone discovering the burglary in progress." Hall, 46 Wn.

App. at 695.

In State v. Faille. 53 Wn. App. 111, 766 P.2d 478 (1988), we applied Hall's

rationale to resolve a similar armed with a deadly weapon issue. The evidence

established that Faille and an accomplice took unloaded guns and other property from a

house and stashed them in nearby bushes. Faille. 53 Wn. App. at 112. On appeal,

Faille argued that since he took unloaded firearms during the burglary, they were not

easily accessible or readily available and he possessed no intent to load or use them,

as required under the armed with a deadly weapon burglary first degree statute.

Relying on Hall's rationale, we held that sufficient evidence supported the defendant's

3 In Sabala. the defendant possessed a loaded pistol found directly under the

driver's seat.

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first degree burglary conviction. Faille. 53 Wn. App. at 115. We concluded, "[T]he guns

were readily accessible and available for use, even though they were unloaded and

there is no evidence that Faille knew there was ammunition in the house." Faille. 53

Wn. App. at 115.

Relying on State v. Brown. 162 Wn.2d 422, 173 P.3d 245 (2007), Cervantes

argues that "armed" requires more than removal of a gun from a home during a

burglary. He asserts the State must establish that the defendant or accomplice

intended to or was willing to use the weapon to further the crime.

In Brown, the evidence established that Brown or his accomplice merely moved

an unloaded rifle from a closet to a nearby bed. They also removed property from

under the bed but left a pistol untouched. Brown. 162 Wn.2d at 430-31. Later, Brown

and his accomplice talked about guns and "expressed a desire to have gotten the

guns," but said nothing "indicating that either of them moved the rifle or knew of its

existence during the crime." Brown. 162 Wn.2d at 431. The court viewed the

dispositive issue as "whether under these facts, where a weapon was moved during a

burglary, ifthat evidence is sufficient to establish that a defendant is armed." Brown,

162 Wn.2d 431. Reversing Brown's conviction, the court reasoned:

mere close proximity of the weapon to the defendant, or constructive possession

alone is insufficient to show that the defendant is armed. ...

Here, the crime was burglary and the type of weapon was a rifle at the

scene. However, the circumstance under which the weapon was found does not

support a conclusion that Brown was "armed" as intended by the legislature. . . .

No evidence exists that Brown or his accomplice handled the rifle on the bed at

any time during the crime in a manner indicative of an intent or willingness to use

it in furtherance of the crime. In fact, Hill's testimony indicates that the weapon

here was regarded as nothing more than valuable property.

Brown. 162 Wn.2d 431-32.

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Unlike in Brown, Cervantes and his coparticipants removed the gun from the

home and left other valuable property behind. In responding to the dissent's criticism of

the intent or willingness to use the weapon requirement, the majority left intact the Hall

and Faille rationale, discussed above, "because in those cases weapons were removed

from the homes." Brown. 162 Wn.2d at 250 n.4. The circumstances here are nearly

identical to Hall and Faille.4

Finally, in In re Personal Restraint of Martinez. 171 Wn.2d 354, 256 P.3d 277

(2011),5 a case addressing whetherthe knife used in a burglary constituted a deadly

weapon, the court cited Hall with approval:

Conversely, State v. Hall. 46 Wn. App. 689, 732 P.2d 524 (1987), involved

deadly weapons per se, namely firearms taken in the course of a burglary.

Because the firearm was a deadly weapon per se, Division Three reasoned that

"no analysis of willingness or present ability to use a firearm as a deadly weapon"

was necessary under RCW 9A.04.110(6). Id. at 695; see also State v. Speece,

56 Wn. App. 412, 416, 783 P.2d 1108 (1989) (no inquiry into willingness or

present ability to use weapon is necessary for deadly weapon per se); State v.

Faille. 53 Wn. App. 111, 766 P.2d 478 (1988) (sufficient evidence to sustain first

degree burglary conviction where defendant was in possession of unloaded

firearms but did not intend to use them).

Martinez. 171 Wn.2d at 367. We conclude sufficient evidence supports Cervantes's first

degree burglary conviction.

Theft of a Firearm

Cervantes argues insufficient evidence to support his accomplice liability for theft

of a firearm. This claim fails because the evidence viewed in the light most favorable to

4The State relies on State v. Hernandez. 172 Wn. App. 537, 290 P.3d 1052

(2012), but that case is pending review before our Supreme Court.

5We note that neither party cites to Martinez.
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the State shows that Cervantes acted with general knowledge that he was promoting or

facilitating the theft of a firearm.

Under Washington's accomplice liability statute, a person is guilty of a crime

committed by another's conduct if he or she is an "accomplice of such other person in

the commission of the crime." RCW 9A.08.020(2)(c). The statute defines "accomplice"

as follows:

(3) A person is an accomplice of another person in the commission of a

crime if:

(a) With knowledge that itwill promote or facilitate the commission of the

crime, he or she:

(i) Solicits, commands, encourages, or requests such other person to

commit it; or

(ii) Aids or agrees to aid such other person in planning or committing it; or

(b) His or her conduct is expressly declared by law to establish his or her

complicity.

RCW9A.08.020(3). This definition indicates that the legislature "intended the culpability

of an accomplice not extend beyond the crimes of which the accomplice actually has

'knowledge,' the mens rea of RCW 9A.08.020." State v. Roberts. 142 Wn.2d 471, 511,

14 P.3d 713 (2000) (disapproving jury instruction stating in part, "'A person is legally

accountable for the conduct of another person when he is an accomplice of such other

person in the commission of a crime.'") (emphasis added)).

Though an accomplice must act with knowledge that he or she is promoting or

facilitating the charged crime, he or she "need not have knowledge of each element of

the principal's crime in order to be convicted under RCW 9A.08.020." Roberts. 142

Wn.2d at 513. "General knowledge of 'the crime' is sufficient." Roberts. 142 Wn.2d at

513. Accordingly, an accomplice need not act with knowledge that he or she is
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promoting or facilitating a particular degree of the charged crime. State v. Cronin. 142

Wn.2d 568, 581-82, 14 P.3d 752 (2000).

Here, the charged crime was theft of a firearm. "A person is guilty of theft of a

firearm if he or she commits a theft of any firearm." RCW 9A.56.300(1). A "firearm" is

"a weapon or device from which a projectile or projectiles may be fired by an explosive

such as gunpowder." RCW 9.41.010(7); RCW 9A.56.300(5). There is no dispute that

Cervantes or one of the men removed a "firearm" from Richie's house.

The evidence supports accomplice liability ifCervantes aided another person in

planning or committing the theft of a firearm, with general knowledge that he was

promoting or facilitating that crime. RCW 9A.08.020(3); Roberts. 142 Wn.2d at 513.

The parties disagree whether any of the men specifically intended to steal a gun. But

Cervantes does not dispute, nor could he, that the evidence was sufficient to sustain

accomplice liability under the general theft statute, RCW 9A.56.020 - .050.6

The evidence viewed in the light most favorable to the State establishes that

Cervantes drove two men to Richie's house and at least two of them broke in to look for

items to steal. Inside the house, the men opened a laundry room cabinet, a dresser

drawer, and a nightstand drawer. One of the men took a gun hidden under a stack of

clothing in the nightstand drawer. The men fled when Richie interrupted the burglary.

Cervantes aided their escape by attacking Richie and grabbing her phone when she

tried to relay license plate information to her husband. From this evidence, a rational

trier of fact could find that Cervantes was at least an accomplice to theft.

6 Under RCW9A.56.020(1)(a), "theft" means: "To wrongfully obtain or exert

unauthorized control over the property or services of another or the value thereof, with

intent to deprive him or her of such property or services . . . ."
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The core issue is whether evidence sufficient to sustain accomplice liability for

"theft" is also sufficient to sustain accomplice liability for "theft of a firearm," when the

only property taken is a gun. Relying on Roberts and Cronin. Cervantes maintains that

because theft and theft of a firearm are technically different crimes, an accomplice to

theft is not an accomplice to theft of a firearm. The State argues that for purposes of

accomplice liability, no principled distinction exists between theft and theft of a firearm.

Although theft and theft of a firearm are different crimes, the offenses are closely

related. As originally enacted, the theft of a firearm statute did not define theft. See

Laws of 1994, 1st Spec. Sess., ch. 7, §432. But in 1995, as part of the Hard Time for

Armed Crime Act (Initiative 159), the legislature clarified, "The definition of 'theft' and the

defense allowed against the prosecution for theft under RCW 9A.56.020 [the general

theft statute] shall apply to the crime of theft of a firearm." Lawsof 1995, ch. 129, § 10

(emphasis added), now codified as RCW 9A.56.300(4); see State v. Miller. 92 Wn. App.

693, 705, 964 P.2d 1196 (1998). Thus, as a substantive matter, theft of a firearm is

simply a "theft" where the propertytaken is a gun. We conclude that, for purposes of

Cervantes's accomplice liability under Roberts and Cronin. the "crime charged" istheft.

Cervantes argues that theft of a firearm is distinct from theft for purposes of

accomplice liability because the former carries a higher seriousness level than any

degree oftheft. But the potential for punishment is hardly dispositive. In Sarausad v.

State, 109 Wn. App. 824, 39 P.3d 308 (2001), we reasoned that a defendant who

generally knows he or she isfacilitating a homicide can be convicted as an accomplice

to first degree murder, second degree murder, or manslaughter. Sarausad. 109Wn.

App. at 836. The vast range of punishments associated with these crimes shows that

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the potential for punishment is not a reliable indicator of whether separate crimes are

distinct for purposes of accomplice liability under Roberts and Cronin.

The critical factor is the conduct that forms the basis for a set of crimes. The

Roberts court established this principle by relying on the comment to Model Penal Code

§ 2.06(3)(a), which is identical to Washington's accomplice liability statute. The Model

Penal Code comment states that an accomplice is one who has "'the purpose to

promote or facilitate the particular conduct that forms the basis for the charge . . ..'"

Roberts. 142 Wn.2d at 510 (quoting Model Penal Code § 2.06, cmt. 6(b) (1985)).

Here, the "particular conduct" that forms the basis for both theft and theft of a firearm is

the same—both crimes require a "theft," as defined by the general theft statute (RCW

9A.56.020). Theft of a firearm is distinguishable from theft only by the nature of the

property taken. Sufficient evidence supports Cervantes's theft of a firearm conviction.

Jury Instruction

Cervantes contends jury instruction 3 misstates the reasonable doubt standard.

The instruction provides, in part:

A reasonable doubt is one for which a reason exists and may arise from

the evidence or lack of evidence. It is such a doubt as would exist in the mind of

a reasonable person after fully, fairly, and carefully considering all of the

evidence or lack of evidence. If, from such consideration, you have an abiding

belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

He argues that the instruction misstates the reasonable doubt standard by "equating

proof beyond a reasonable doubt with a 'belief in the truth' of the charge . . . ."7 Br. of

7To the extent Cervantes argues that the prosecutor committed misconduct by

paraphrasing and discussing instruction 3's "abiding belief language during closing

arguments, the argument is inadequately briefed. See Palmerv. Jensen. 81 Wn. App.

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Appellant at 16. The court's instruction used WPIC 4.01's reasonable doubt definition,

which our Supreme Court expressly approved in State v. Bennett. 161 Wn.2d 303, 165

P.3d 1241 (2007). In Bennett, the court stated, "Trial courts are instructed to use the

WPIC 4.01 instruction to inform the jury of the government's burden to prove every

element of the charged crime beyond a reasonable doubt." Bennett. 161 Wn.2d at 318.

Cervantes argues that Bennett's unequivocal approval of WPIC 4.01 was called

into doubt by the Supreme Court's recent decision in State v. Emery. 174 Wn.2d 741,

760, 278 P.3d 653 (2012). In Emery, the prosecutor stated during closing arguments

that the jury's verdict "'should speak the truth.'" Emery. 174 Wn.2d at 751. On appeal,

the court held that the reference to truth was improper, but any error was harmless.

Emery, 174 Wn.2d at 765. The court's opinion contained no discussion of WPIC 4.01 or

its "abiding belief language. The claim fails under Bennett.

CONCLUSION

For the reasons discussed above, we affirm Cervantes's convictions.

WE CONCUR:

V_^wi?a,r^

148, 153, 913 P.2d 413 (1996) ("Passing treatment of an issue or lack of reasoned

argument is insufficient to merit judicial consideration.").

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