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UNPUBLISHED OPINION FILED: July 15, 2013 CP,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 firearmfrom 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 underthe 

### general theft statute, that evidence also supports accomplice liability for theft of a firearm. We find no error inthe trial court's use ofWashington Pattern Jury Instruction 

### (WPIC)4.01's reasonable doubt instruction. We affirm Cervantes's firstdegree burglary and theft of a firearm convictions. FACTS 

### On July 28, 2011, Richie saw an unfamiliarcar parked near her house as she pulled into her driveway. She saw Cervantes approaching from the side of her house68936-3-1/2 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 struckthe right side ofRichie's head, scratching her face. Cervantes grabbed her 

### phone and fled in his car. Richie noticed two men runfrom 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 doorframe. Later, she noticed a loaded handgun 

### missingfrom the nightstand drawer in the masterbedroom. Other valuable items, including a television, video game systems, a laptop, and jewelry remained untouched. Sheriffdeputies never recovered Richie's gun and cell phone. They later arrested Cervantes but never identified the other two men. 

### A juryfoundCervantes 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) insufficientevidence to supportthe firstdegree burglary conviction because the State failed to prove that he or a coparticipantwas "armed 

### with a deadly weapon" under RCW9A.52.020(1 )(a)'s firstdegree burglary statute; 

### (2)insufficientevidence to support the theft of a firearm conviction because he lacked
-2-68936-3-1/3 knowledge thatthe 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, afterviewing the evidence inthe lightmostfavorable to the prosecution, any rational trier offact 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 ofthe State and interpreted most 

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

### (1992). Circumstantial evidence and directevidence carryequalweight. State v. Goodman. 150 Wn.2d 774, 781, 83 P.3d 410 (2004). "[T]hespecific criminal intent of 

### the accused may be inferred from the conduct whereit isplainly 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 isguilty ofburglary in the first degree if, with intentto commit a crime 

### against a person orpropertytherein, he or she enters or remainsunlawfully in a building and if, in entering orwhile in the building orin immediateflight therefrom, the actor or another participant in the crime
... is armed with a deadly 

### weapon .. . .[1]

1The court did not instruct the jury that firstdegree burglary also occurs when the defendant "assaults any person" during the commission. RCW9A.52.020(1 )(b).

-3-68936-3-1/4 

### The legislaturedefined thephrase "deadlyweapon"2 butnottheterm "armed." Cervantes claims to prove "armed" requires the State to show a willingness and present ability to use the gun. InState v. Hall. 46 Wn. App. 689, 732 P.2d 524 (1987), the defendant was 

### convicted of firstdegree 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 deadlyweapon" as required byRCW 9A.52.020(1 )(a)for conviction offirst degree burglary, when the guns are not loaded, butammunition is taken as well, and the guns and ammunition are transported to the trunk of a

car. 

### Hall. 46Wn. App. at 693. Finding nocontrolling Washingtoncase law, the court 

### adopted thedefinition of"armed" from a case involving a deadlyweapon sentence enhancement. The court concluded that a defendant is armed for purposes ofthe first 

### degreeburglary statuteif"a weapon is'easily accessible andreadily available for use bythedefendantfor eitheroffensive ordefensive purposes.'" Hall, 46Wn. App. at694 (quoting Statev. Sabala. 44Wn. App. 444, 448, 723 P.2d 5 (1986)). Thecourt 

### specifically rejected Hall's contention that"armed" requires evidencethattheaccused must use the deadly weapon in a manner indicating a willingness or present ability to

2UnderRCW 9A.04.110(6), "'[djeadly weapon' means any explosive or loaded or unloaded firearm, and shall include any otherweapon, 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, orthreatened to be used, is 

### readily capable of causing death or substantial bodily harm." -4-68936-3-1/5



### use it.3 The court then held thatifthe weapon at issue is per se dangerous (i.e., all firearms), then "no analysis ofwillingness 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 bythe 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 ofthe 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 ofthe rifle and ammunition created "a 

### possibility of violence to anyone discovering the burglary in progress." Hall, 46 Wn. App. at 695. InState 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 innearby bushes. Faille. 53 Wn. App. at 112. On appeal, 

### Failleargued 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 underthe armed with a deadly weapon burglary firstdegree statute. 

### Relying on Hall's rationale, we held that sufficient evidence supported the defendant's
3In Sabala. the defendant possessed a loaded pistol found directly under the driver's seat. -5-68936-3-1/6 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 underthe 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 underthese 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 ofthe 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 ofweapon was a rifle at the scene. However, the circumstance under which the weapon was found does not 

### support a conclusion that Brownwas "armed" as intended bythe 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 infurtherance ofthe crime. Infact, Hill'stestimony indicates that the weapon here was regarded as nothing more than valuable property. Brown. 162 Wn.2d 431-32.
-6-68936-3-1/7
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 ofMartinez. 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 inthe course of a burglary. Because the firearm was a deadly weapon per se, Division Three reasoned that 

### "no analysis ofwillingness 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 fordeadly weapon per se); State v. Faille. 53 Wn. App. 111, 766 P.2d 478 (1988) (sufficientevidence to sustain first 

### degree burglary conviction where defendantwas inpossession ofunloaded 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 insufficientevidence 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.68936-3-1/8 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 ofsuch other person in the commission ofthe crime." RCW 9A.08.020(2)(c). The statute defines "accomplice"

as follows: 

### (3) Aperson is an accomplice ofanother 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 orcommitting it; or 

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

### RCW9A.08.020(3). Thisdefinition indicates that the legislature "intended the culpability of an accomplice not extend beyond the crimes ofwhich the accomplice actually has 

### 'knowledge,' the mens rea ofRCW 9A.08.020." State v. Roberts. 142Wn.2d 471, 511, 14 P.3d 713 (2000) (disapproving juryinstruction stating in part, "'A person is legally accountable forthe conduct ofanother person when he is an accomplice ofsuch other 

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

### Though an accomplice must actwith knowledge that he orshe ispromoting or 

### facilitating the chargedcrime, he or she "need not haveknowledge of each element of the principal's crimein order to be convicted underRCW 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 orshe is68936-3-1/9 promoting or facilitating a particular degree ofthe 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. "Aperson is guilty oftheft of a firearm ifhe 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 ofthe 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 facilitatingthat crime. RCW 9A.08.020(3); Roberts. 142 Wn.2d at 513. The parties disagree whether any ofthe men specifically intended to steal a gun. But Cervantes does not dispute, nor could he, thatthe evidence was sufficient to sustain 

### accomplice liability underthegeneral theft statute, RCW9A.56.020

-.050.6 The evidence viewed inthe lightmostfavorable to the State establishes that Cervantes drove two men to Richie's house and at least two ofthem 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 offact could find that Cervantes was at least an accomplice to theft. 

### 6Under RCW9A.56.020(1)(a), "theft" means: "To wrongfully obtain or exert unauthorized control overthe property or services ofanother or the value thereof, with intent to deprive him or her ofsuch property or services . . . ."68936-3-1/10 The core issue is whether evidence sufficientto 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 thatfor 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 Lawsof 1994, 1st Spec. Sess., ch. 7, §432. Butin 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 RCW9A.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. 92Wn. 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 distinctfrom theft forpurposes of accomplice liability because the former carries a higher seriousness level than any 

### degree oftheft. Butthe potential for punishment ishardly 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 tofirst degree murder, second degree murder, ormanslaughter. Sarausad. 109Wn. App. at 836. The vast range of punishments associated with these crimes shows that
-10-68936-3-1/11 the potential for punishment is not a reliable indicator ofwhether separate crimes are distinctfor purposes ofaccomplice liability under Roberts and Cronin. The critical factor is the conduct that forms the basis for a set ofcrimes. 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 particularconductthat 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. Sufficientevidence supports Cervantes's theft of a firearm conviction. Jury Instruction 

### Cervantes contendsjury 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 ofevidence. 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 ofevidence. If, from such consideration, you have an abiding belief inthe truth ofthe charge, you are satisfied beyond a reasonable doubt. 

### Heargues that the instruction misstates the reasonable doubt standard by "equating 

## proofbeyond areasonabledoubtwith a'beliefinthetruth' ofthe charge
. . . ."7 Br. of

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

### paraphrasing and discussing instruction 3's "abiding belieflanguage during closing 

### arguments, the argument isinadequately briefed. See Palmerv. Jensen. 81 Wn. App. -11-68936-3-1/12 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, "Trialcourts are instructed to use the WPIC 4.01 instruction to inform thejury ofthe 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 bythe Supreme Court's recent decision inState v. Emery. 174 Wn.2d 741, 760, 278 P.3d 653 (2012). InEmery, the prosecutor stated during closing arguments 

### that the jury's verdict"'shouldspeakthe truth.'" Emery. 174Wn.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 Forthe 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 ofreasoned 

### argument is insufficientto meritjudicial consideration."). -12-