author: FAIRHURST, C.J. YU, J. (concurring)

text:
    STATE of Washington, Respondent, v. Anthony Allen MORETTI, Petitioner.
    State of Washington, Respondent, v. Hung Van Nguyen, Petitioner.
    State of Washington, Respondent, v. Frederick Del Orr, Petitioner.
    No. 95263-9 No. 95510-7 No. 96061-5
    Supreme Court of Washington.
    Filed August 15, 2019 Argued May 28, 2019
    Susan Marie Gasch, Gasch Law Office, P.O. Box 30339, Spokane, WA 99223-3005, Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th Street, Seattle, WA 98115-6655, for Petitioners.
    Erin Christine Riley, Attorney at Law, 102 W. Broadway Avenue Room 102, Montesano, WA 98563-3621, Larry D. Steinmetz, County Prosecuting Attorney's Office, 1100 W. Mallon Avenue, Spokane, WA 99260-2043, Donna Lynn Wise, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for Respondents.
    Ulrike Buschbacher Connelly, Lindsay Jeanne McAleer, Miehelle Leigh Maley, Perkins Coie LLP, 1201 3rd Avenue, Suite 4900, Seattle, WA 98101-3099, Nancy Lynn Talner, Antoinette M. Davis, Attorney at Law, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, for Amicus Curiae (American Civil Liberties Union of Washington).
    Jessica Levin, Seattle University School of Law, 901 12th Avenue, Korematsu Center For Law & Equality, Seattle, WA 98122-4411, for Amicus Curiae (Fred T. Korematsu Center for Law and Equality).
    Kimberly Noel Gordon, Law Offices of Gordon & Saunders PLLC, 1000 2nd Avenue, Suite 3140, Seattle, WA 98104, Marsha I. Levick, Juvenile Law Center, 1315 Walnut Street, 4th Floor, Philadelphia, PA 19107, for Amicus Curiae (Washington Association of Criminal Defense Lawyers, Washington Defenders Association).
   FAIRHURST, C.J.

¶1 Under the Persistent Offender Accountability Act (POAA), the third time a person is convicted of a "most serious offense," they must be sentenced to life in prison without the possibility of parole.

RCW 9.94A.030(38)(a), .570. This statute is colloquially known as the "three strikes and you're out" law. State v. Thorne, 129 Wash.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people who were in their 30s or 40s when they committed their third strike but were young adults when they committed their first strike.

¶2 We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison without the possibility of parole for fully developed adult offenders who committed one of their prior strikes as young adults. We also hold that the sentences in these cases are not grossly disproportionate to the crimes.

I. FACTS AND PROCEDURAL HISTORY

A. Anthony Allen Moretti

¶3 Anthony Allen Moretti was born on April 22, 1983. When he was 20 years old, he was charged with breaking into a vacant home and setting fire to it. He pleaded guilty to arson in the first degree and was sentenced to 28 months in prison.

¶4 When he was 26 years old, he was driving while intoxicated and caused an accident in which someone was injured. He pleaded guilty to vehicular assault causing substantial bodily harm to another while under the influence of alcohol and was sentenced to 13 months in prison.

¶5 At age 32, Moretti assaulted and robbed two men at a boat launch. One of his victims, Michael Knapp, had recently won $1,250 at a local casino. Knapp and his friend, Tyson Ball, wanted to use some of the money to buy methamphetamine. Ball arranged to meet a woman at a boat launch in order to buy the drugs, but instead of completing their purchase, Ball and Knapp were assaulted by two men, later identified as Moretti and Sam Hill. Hill assaulted Ball while Moretti beat Knapp with a bat, demanding that he give them the money. Moretti and Hill left after Knapp complied. Moretti and Hill were both later identified and arrested. Moretti proceeded to trial and was convicted of first degree robbery of Knapp and second degree assault of Ball. Because Moretti had previously been convicted of two separate most serious offenses, he was labeled a "persistent offender" under RCW 9.94A.570 and was given the mandatory sentence of life in prison without the possibility of parole.

¶6 Moretti appealed, arguing, among other things, that his mandatory life without parole sentence was a violation of article I, section 14 of our constitution and the Eighth Amendment to the United States Constitution. He claimed that this sentence was cruel because the judge was not permitted to consider his youth at the time of his prior strike offenses. Division Two of the Court of Appeals, by a majority, affirmed on this issue. State v. Moretti , No. 47868-4-II, slip op. at 19, 2017 WL 4899567 (Wash. Ct. App. Oct. 31, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2047868-4-II%20Unpublished%200pinion.pdf.

B. Hung Van Nguyen

¶7 Hung Van Nguyen was born on July 30, 1973. He grew up in Vietnam and moved to the United States in 1990. He did not receive any formal education in Vietnam or in the United States. Psychological evaluations have suggested that he may suffer from some cognitive difficulties. When he was 20 years old, he was convicted of first degree burglary and was sentenced to 18 months in prison. The facts underlying the burglary are not in the record.

¶8 When he was 39 years old, Nguyen pleaded guilty to second degree assault by strangulation after he put his hands around his sister's throat during an argument, in front of her 6 year old son. He was sentenced to 17 months in prison. He does not argue that he was a young adult when he committed this strike.

¶9 At age 41, Nguyen was staying with his friend Thu Nguyen. She had asked him to leave more than once, but he refused. She called the police repeatedly over the course of 10 days in order to force him to leave, but the police were not helpful, so she eventually locked him outside while he was speaking to police officers. The next day, Thu Nguyen was taking a nap with her 4 year old grandson. She woke up to Nguyen walking out of her bedroom closet, holding a knife. He told her that he was going to kill her and then stabbed her 10 times, repeatedly catching her as she tried to escape. At that moment, Thu Nguyen's friend Linh Truong arrived for a visit. Truong knocked on the door, and Thu Nguyen's grandson opened the door to let her in. Truong saw Nguyen on top of Thu Nguyen and threw a chair at him to get him off her. The chair missed, but Nguyen turned and stabbed Truong, giving Thu Nguyen the chance to escape. Both victims were able to make it outside, and Truong called 911. Nguyen was arrested and was found competent to stand trial after a psychological evaluation. The jury convicted him of first and second degree assault, i both while armed with a deadly weapon.

¶10 Because Nguyen had previously been convicted of two separate most serious offenses, he was labeled a "persistent offender" under RCW 9.94A.570 and was given the mandatory sentence of life in prison without the possibility of parole. Nguyen appealed, and Division One of the Court of Appeals affirmed his sentence. State v. Hung Van Nguyen, No. 74962-5-1, slip op. at 7-8, 2018 WL 417969 (Wash. Ct. App. Jan. 16, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/749625.pdf.

C. Frederick Del Orr

¶11 Frederick Del Orr was born on April 8, 1974. When he was 19 years old, a police report alleges that he approached a one-legged man in downtown Spokane and demanded money. The man gave him $6 in cash and some change. Orr became angry at the low amount and demanded the man's bank card. The man refused. Orr struck him in the face with a broken beer bottle, grabbed the crutch that the man used to walk, struck him again, and then left. Orr did not remember committing the crime, but he entered an Alford plea of guilty to second degree of robbery and was sentenced to 6 months in the county jail.

¶12 When he was 21 years old, Orr was charged with first degree robbery. The statement of probable cause alleges that he was drinking beer at a man's apartment when he started acting strangely and was asked to leave. Orr hit the man, and the man hit him back. Orr then grabbed a paring knife and threatened to kill the man and his roommate before eventually leaving with the man's Toshiba portable stereo. The man tried to stop him from taking the stereo, but Orr raised the knife and chased him down the hallway. Orr entered an Alford plea of guilty to first degree robbery and was sentenced to 50 months in prison.

¶13 At age 41, Orr was living on the streets of Spokane. An acquaintance had allegedly told him that a man named Sasquatch was holding children against their will at a house in the area and was sexually abusing them. Orr was abused as a child | i himself and had heard sex offenders discuss their abuse of children while he was in prison. He became deeply upset and decided to investigate. He went to the house in question carrying a large metal pipe. He investigated and eventually decided to break in. The owner of the house was inside with her 2 year old child. She saw Orr searching around. When he saw her, he left the house and sat down on the porch. Meanwhile, a neighbor had seen what had happened and went to confront Orr. The neighbor had a gun. An argument ensued, and Orr swung the pipe at the neighbor's head several times, telling the neighbor to shoot him. Orr eventually acknowledged that he had the wrong house and dropped the metal pipe. He was arrested and was later convicted of first degree burglary and second degree assault, both with a deadly weapon.

¶14 Because Orr had previously been convicted of two separate most serious offenses, he was labeled a "persistent offender" under RCW 9.94A.570 and was given the mandatory sentence of life in prison without the possibility of parole. Orr appealed, and Division Three of the Court of Appeals affirmed his sentence. State v. Orr, No. 34729-0-III, slip op. at 9-10, 2018 WL 1960197 (Wash. Ct. App. Apr. 26, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/347290_unp.pdf.

¶15 Moretti, Nguyen, and Orr each sought review of the constitutionality of their sentences in this court. We accepted review and consolidated these cases.

II. ANALYSIS

¶16 We have repeatedly upheld sentences of life in prison without the possibility of parole for adults who commit a third most serious offense after having been convicted of most serious offenses on two separate prior occasions. We now hold that it is not categorically cruel under article I, section 14 of the Washington Constitution to impose mandatory sentences of life without the possibility of parole under the POAA on adult offenders who committed one of their prior most serious offenses as young adults. The petitioners in these cases have not shown a national consensus against this sentencing practice, and in our own independent judgment, the concerns applicable to sentencing juveniles do not apply to adults who continue to reoffend after their brains have fully developed. Because we have previously held that article I, section 14 offers more protection than the federal constitution in the context of sentencing both recidivists and juveniles, we do not address the petitioners' argument that this punishment is cruel and unusual under the Eighth Amendment to the United States Constitution.

¶17 We also hold that the sentences in these cases are not grossly disproportionate to the offenses under the four Fain factors: "(1) the nature of the offense; (2) the i legislative purpose behind the habitual criminal statute; (3) the punishment defendant would have received in other jurisdictions for the same offense; and (4) the punishment meted out for other offenses in the same jurisdiction." State v. Fain, 94 Wash.2d 387, 397, 617 P.2d 720 (1980).

A. History of the POAA

¶18 In 1993, 76 percent of the voters in Washington State approved the passage of the POAA. Under the POAA, "persistent offenders" must be sentenced to life in prison without the possibility of parole. RCW 9.94A.570. A "persistent offender" is a person who commits a third most serious offense after having been convicted on two separate prior occasions of most serious offenses or their out-of-state equivalents. RCW 9.94A.030(38). "Most serious offense" means any class A felony or certain class B felonies that are violent, sexual, or dangerous. See RCW 9.94A.030(33). The age of majority in Washington State is 18 years old, RCW 26.28.010, and juvenile adjudications are not included as strikes under the POAA. Thorne, 129 Wash.2d at 748, 921 P.2d 514 ; RCW 9.94A.030(35).

¶19 We have continually upheld sentences imposed under the POAA as constitutional and not cruel under article I, section 14. See, e.g., State v. Witherspoon, 180 Wash.2d 875, 889, 329 P.3d 888 (2014) ; State v. Magers , 164 Wash.2d 174, 193, 189 P.3d 126 (2008) (plurality opinion); State v. Manussier, 129 Wash.2d 652, 667, 921 P.2d 473 (1996) ; State v. Rivers , 129 Wash.2d 697, 715, 921 P.2d 495 (1996) ; Thorne, 129 Wash.2d at 772-73, 921 P.2d 514 ; see also State v. Davis, 133 Wash.2d 187, 190, 943 P.2d 283 (1997) (agreeing that the offenders' crimes are not distinguishable from Manussier, Rivers, and Thorne and, therefore, that a challenge arguing that the sentences were cruel would be frivolous).

B. Sentencing an older adult recidivist who committed a prior crime as a young adult to life in prison without parole is not categorically unconstitutional

¶20 Moretti, Nguyen, and Orr each challenge their POAA sentences, claiming that imposing a mandatory sentence of life without the possibility of parole on a person who committed at least one, but not all, of their strike offenses as a young adult categorically violates article I, section 14 of the Washington Constitution and the Eighth Amendment to the United States Constitution. We have previously held that article I, section 14 is more protective than the Eighth Amendment when evaluating both the proportionality of the POAA, Witherspoon, 180 Wash.2d at 887, 329 P.3d 888, and juvenile sentencing, State v. Bassett, 192 Wash.2d 67, 82, 428 P.3d 343 (2018). Therefore, if it is not cruel under article I, section 14 to apply the POAA to offenders who committed a prior strike offense as a young adult, then it is necessarily not cruel and unusual under the Eighth Amendment. "We review a statute's constitutionality, like questions of law, de novo." Id. at 77, 428 P.3d 343.

1. There is no evidence of a national consensus against using a crime committed as a young adult to enhance the sentence of an adult who continues to offend

¶21 "The first step in the categorical bar analysis is to determine whether there is a national consensus against" the sentencing practice at issue. Id. at 85, 428 P.3d 343. To determine this, we consider " 'objective indicia of society's standards, as expressed in legislative enactments and state practice.' " Id. (internal quotation marks omitted) (quoting Graham v. Florida , 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) ). " 'It is not so much the number of these States that is significant, but the consistency of the direction of change.' " Id. at 86, 428 P.3d 343 (quoting Atkins v. Virginia , 536 U.S. 304, 315, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) ). The United States Supreme Court has stated that the burden is on the offender to show that a national consensus exists. See Stanford v. Kentucky, 492 U.S. 361, 373, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), overruled on other grounds by Roper v. Simmons, 543 U.S. 551, 574, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) ; cf. Bassett, 192 Wash.2d at 86, 428 P.3d 343 (explaining that the offender was "correct" that the direction of change was in his favor).

¶22 None of the petitioners have provided information about whether other states allow the use of a crime committed as a young adult to enhance a sentence imposed on an offender who commits a third strike as an older adult. In his amended supplemental brief, Nguyen argues that "states overwhelmingly prohibit the use of juvenile offenses to drastically enhance later sentences under recidivist schemes." Am. Suppl. Br. of Pet'r Nguyen at 9 (emphasis added). But the POAA already prohibits counting a juvenile adjudication as a strike offense. RCW 9.94A.030(35).

¶23 A review of the case law shows that many state courts have held that when sentencing an adult recidivist, it is not cruel and unusual to consider strike offenses committed when the offender was not just a young adult, but a juvenile. See, e.g., Counts v. State, 2014 WY 151, 338 P.3d 902 (holding that it was constitutional to sentence an adult to life in prison as a habitual offender even though one of his prior qualifying felony convictions was committed at age 16); State v. Green, 412 S.C. 65, 85-87, 770 S.E.2d 424 (Ct. App. 2015) (holding that it was constitutional to impose a life without parole sentence on adult recidivist whose prior strike was committed at age 17). Similarly, federal courts have routinely found that it does not violate the Eighth Amendment to impose mandatory minimum sentences on adult recidivists whose prior crimes were committed not just as young adults, but as juveniles. See, e.g., United States v. Hoffman, 710 F.3d 1228, 1233 (11th Cir. 2013) ("Nothing in Miller[ ] suggests that an adult offender who has committed prior crimes as a juvenile should not receive a mandatory life sentence as an adult, after committing a further crime as an adult." (emphasis omitted)); United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010) ("Scott was twenty-five years old at the time he committed the conspiracy offense in this case [and was sentenced to a mandatory term of life without parole]. ... The [Supreme] Court in Graham did not call into question the constitutionality of using prior convictions, juvenile or otherwise, to enhance the sentence of a convicted adult."); United States v. Mays, 466 F.3d 335, 340 (5th Cir. 2006) (affirming a mandatory sentence of life without parole imposed on an adult recidivist who committed his first strike offense at age 17 and explaining that "[t]here is not a national consensus that a sentencing enhancement to life imprisonment based, in part, upon a juvenile conviction contravenes modern standards of decency").

¶24 We see no evidence of a national consensus against applying recidivist statutes to adults who committed prior strike offenses as young adults. This step of the inquiry weighs against a categorical bar. But "[c]ommunity consensus, while 'entitled to great weight,' is not itself determinative of whether a punishment is cruel." Graham, 560 U.S. at 67, 130 S.Ct. 2011 (quoting Kennedy v. Louisiana, 554 U.S. 407, 434, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) ).

2. Independent judgment shows that the concerns raised by our new understanding of adolescent brain development are not present here

¶25 The second step in the categorical bar analysis requires us to exercise our independent judgment. Bassett, 192 Wash.2d at 87, 428 P.3d 343. We consider " 'the culpability of the offenders at issue in light of their crimes and characteristics, along! with the severity of the punishment in question' " and " 'whether the challenged sentencing practice serves legitimate penological goals.' " Id. (quoting Graham, 560 U.S. at 67, 130 S.Ct. 2011 ).

a. There has been no showing of reduced culpability here

¶26 First, we must assess the culpability of these petitioners in light of their crimes and characteristics. We now understand that "children are less criminally culpable than adults." Id. Petitioners rely on cases and "psychological and neurological studies showing that the 'parts of the brain involved in behavior control' continue to develop well into a person's 20s" to argue that they are less culpable than other POAA offenders. State v. O'Dell, 183 Wash.2d 680, 691-92, 358 P.3d 359 (2015) (footnote omitted) (quoting Miller, 567 U.S. at 472, 132 S.Ct. 2455 ); see also MIT Young Adult Development Project: Brain Changes, MASS. INST. OF TECH. , https://hr.mit.edu/static/worklife/youngadult/brain.html [https://perma.cc/C9B8-MWDU] ("The brain isn't fully mature at ... 18, when we are allowed to vote, or at 21, when we are allowed to drink, but closer to 25, when we are allowed to rent a car."). "These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure." O'Dell, 183 Wash.2d at 692, 358 P.3d 359 (footnotes omitted). The United States Supreme Court has relied on this science to hold that "[b]ecause juveniles have diminished culpability and greater prospects for reform, ... 'they are less deserving of the most severe punishments.' " Miller, 567 U.S. at 471, 132 S.Ct. 2455 (quoting Graham, 560 U.S. at 68, 130 S.Ct. 2011 ).

¶27 It is true that our new understanding of juvenile brains "establish[es] a clear connection between youth and decreased moral culpability for criminal conduct." O'Dell, 183 Wash.2d at 695, 358 P.3d 359. And in O'Dell, we recognized that "age may well mitigate a defendant's culpability, even if that defendant is over the age of 18." Id. But "age is not a per se mitigating factor automatically entitling every youthful defendant to an exceptional sentence." Id. Instead, we held that trial courts are statutorily allowed to consider evidence that a "youth in fact diminished [the young adult] defendant's culpability."

Id. at 689, 358 P.3d 359. Moretti, Nguyen, and Orr have not produced any evidence that their youth contributed to the commission of the instant offenses, or even that youth contributed to their prior offenses. They have not suggested that the brains of 32 or 41 year old men are not fully mature. Nothing in this record suggests that they are any less culpable than any other adult offender.

¶28 Many of the cases exempting juveniles from harsh sentencing practices have relied on the strong prospects of juveniles for change. For example, in Bassett, we explained that a life without parole sentence is inappropriate for juveniles in part because it means that " 'good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the child], he will remain in prison for the rest of his days.' " 192 Wash.2d at 88, 428 P.3d 343 (alteration in original) (internal quotation marks omitted) (quoting Graham, 560 U.S. at 70, 130 S.Ct. 2011 ). In Bassett, we also noted that a life without parole sentence "is 'especially harsh' for children, who will 'on average serve more years and a greater percentage of [their] li[ves] in prison than an adult offender.' " Id. (alterations in original) (quoting Graham, 560 U.S. at 70, 130 S.Ct. 2011 ). This is not the case here. These petitioners are fully developed adults who were repeatedly given opportunities to prove they could change. Moretti, Nguyen, and Orr each committed a most serious offense, were sentenced and released, then committed another most serious offense, were sentenced and released, and then chose to commit yet another most serious offense. It was their decisions to commit their third most serious offenses that triggered the mandatory sentences of life without the possibility of parole. The POAA gives offenders a chance to show that they can be reformed, but the petitioners failed to do so. ¶29 The petitioners' argument depends on the assumption that these sentences punish them for crimes they committed as young adults. But these sentences are for the most serious offenses they committed at either age 32 (Moretti) or age 41 (Nguyen and Orr), well into adulthood. These POAA sentences are not punishment for the crimes the petitioners committed as young adults because recidivist statutes do not impose "cumulative punishment for prior crimes. The repetition of criminal conduct aggravates the guilt of the last conviction and justifies a heavier penalty for the crime." State v. Lee, 87 Wash.2d 932, 937, 558 P.2d 236 (1976) ; see also State v. Le Pitre, 54 Wash. 166, 168, 103 P. 27 (1909) (The habitual criminal statute did not "inflict a cruel or unusual punishment, or impose a penalty for crimes committed outside of the state. It merely provide[d] an increased punishment for the last offense."). The United States Supreme Court has explained that

an offense committed by a repeat offender is often thought to reflect greater culpability and thus to merit greater punishment. Similarly, a second or subsequent offense is often regarded as more serious because it portends greater future danger and therefore warrants an increased sentence for purposes of deterrence and incapacitation.

United States v. Rodriquez, 553 U.S. 377, 385, 128 S. Ct. 1783, 170 L. Ed. 2d 719 (2008). "[The] state is justified in punishing a recidivist more severely than it punishes a first offender." Thorne, 129 Wash.2d at 772, 921 P.2d 514.

¶30 Because; the petitioners have made no showing that the factors that lessen the culpability of juveniles apply to offenders well into adulthood, they have not shown that they are less culpable than any other POAA offender.

b. The goals of punishment justify this sentence

¶31 The next question is "whether the penological goals of retribution, deterrence, incapacitation, and rehabilitation are served by this sentence." Bassett, 192 Wash.2d at 88, 428 P.3d 343. A sentence of life without the possibility of parole will never serve the goal of rehabilitation because sentencing someone to spend the rest of their life in prison " 'forswears altogether the rehabilitative ideal.' " Id. (internal quotation marks omitted) (quoting Miller, 567 U.S. at 473, 132 S.Ct. 2455 ). However, these sentences do serve the other goals of punishment.

¶32 In Bassett, we recognized that "the case for retribution is weakened for children because ' "[t]he heart of the retribution rationale" relates to an offender's blameworthiness' and children have diminished culpability." Id. (alteration in original) (quoting Miller, 567 U.S. at 472, 132 S.Ct. 2455 (quoting Graham, 560 U.S. at 71-74, 130 S.Ct. 2011 )). But these petitioners were each well into adulthood when they committed the instant offenses. They have not shown that they are less blameworthy than other adults for these choices. It is true that the case for retribution against the petitioners is less strong than, for example, someone who committed multiple aggravated murders. But each of the crimes before us did involve violence or attempted violence. The people of Washington are entitled to condemn adults who chose to commit serious crimes after having twice been given a chance to reform themselves. Retribution may not be sufficient to support the sentences in and of itself, but it does not detract from their constitutionality. Cf. Graham, 560 U.S. at 71, 130 S.Ct. 2011 ("Society is entitled to impose severe sanctions on a juvenile nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense.").

¶33 The main purposes of the POAA are " 'deterrence of criminals who commit three "most serious offenses" and the segregation of those criminals from the rest of society.' " Witherspoon, 180 Wash.2d at 888, 329 P.3d 888 (quoting Rivers, 129 Wash.2d at 712, 921 P.2d 495 ); Thorne, 129 Wash.2d at 775, 921 P.2d 514 ; cf. Ewing v. California, 538 U.S. 11, 29, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (plurality opinion) (finding that these are goals of recidivist statutes in general); Rummel v. Estelle, 445 U.S. 263, 284, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) (same). In Bassett, we explained that deterrence cannot justify life without parole sentences for juveniles because " 'the same characteristics that render juveniles less culpable than adults-their immaturity, recklessness, and impetuosity-make them less likely to consider potential punishment.' " 192 Wash.2d at 88, 428 P.3d 343 (internal quotation marks omitted) (quoting Miller, 567 U.S. at 472, 132 S.Ct. 2455 ). But, again, the petitioners have made no showing that their youth at the time of their prior offenses made them less culpable than a typical POAA offender. The POAA makes it clear that every offender who commits a third most serious offense will be sentenced to life in prison without the possibility of parole. Each of these petitioners had been imprisoned twice before for committing most serious offenses. There is no evidence before us that adults in their 30s or 40s are less likely than any other adult to consider the consequences of choosing to reoffend.

¶34 Incapacitation is a particularly strong justification in this context. As the United States Supreme Court has recognized, "[r]ecidivism is a serious risk to public safety, and so incapacitation is an important goal." Graham, 560 U.S. at 72, 130 S.Ct. 2011. In passing the POAA, the voters explained, "Community protection from persistent offenders is a priority," and by passing this law, "the people intend[ed] to ... [i]mprove public safety." RCW 9.94A.555.

¶35 In Bassett, we explained that incapacitation could not justify sentencing a juvenile to life in prison without the possibility of parole because this "sentence 'makes an irrevocable judgment about that person[ ]' that is at odds with what we know about children's capacity for change." 192 Wash.2d at 89, 428 P.3d 343 (alteration in original) (quoting Graham, 560 U.S. at 74, 130 S.Ct. 2011 ). We noted that "children have 'diminished culpability and heightened capacity for change.' " Id. (internal quotation marks omitted) (quoting State v. Ramos, 187 Wash.2d 420, 444, 387 P.3d 650 (2017) ). Similarly, in Miller, the Supreme Court held that "[d]eciding that a 'juvenile offender forever will be a danger to society' would require 'mak[ing] a judgment that [he] is incorrigible'-but 'incorrigibility is inconsistent with youth.' " 567 U.S. at 472-73, 132 S.Ct. 2455 (second and third alterations in original) (internal quotation marks omitted) (quoting Graham, 560 U.S. at 72-73, 130 S.Ct. 2011 ); see also Montgomery v. Louisiana, --- U.S. ----, 136 S. Ct. 718, 733, 193 L. Ed. 2d 599 (2016) ("The need for incapacitation is lessened, too, because ordinary adolescent development diminishes the likelihood that a juvenile offender 'forever will be a danger to society.' " (internal quotation marks omitted) (quoting Miller, 567 U.S. at 472, 132 S.Ct. 2455 )). Montgomery clarified that life without the possibility of parole was an unconstitutional sentence for all juvenile offenders "whose crimes reflect the transient immaturity of youth." 136 S. Ct. at 734. These judgments relied on the principle that most juveniles are capable of change and will not continue to recidivate into adulthood. As we noted in Bassett, " 'It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.' " 192 Wash.2d at 89, 428 P.3d 343 (quoting Roper, 543 U.S. at 573, 125 S.Ct. 1183 ).

¶36 But the petitioners are neither juveniles nor young adults. We do not have to guess whether they will continue committing crimes into adulthood because they already have. Moretti was the youngest of the petitioners when he chose to commit his third most serious offense, but even he was 32 years old. This is well past the age when courts have recognized that youth may mitigate criminal culpability. See O'Dell, 183 Wash.2d at 692 n.5, 358 P.3d 359 (citing reports that the brain may not fully mature until age 25). Because Moretti, Nguyen, and Orr each committed their third most serious offense as adults in their 30s and 40s, they have shown that they are part of this rare group of offenders who are "simply unable to bring [their] conduct within the social norms prescribed by the criminal law." Rummel, 445 U.S. at 284, 100 S.Ct. 1133. It was rational for the people to decide that offenders like the petitioners must be incarcerated in order to protect the public.

¶37 Regardless of any personal opinions as to the wisdom of this statute, we have "long deferred to the legislative judgment that repeat offenders may face an enhanced penalty because of their recidivism." Fain, 94 Wash.2d at 390-91, 402, 617 P.2d 720 (explaining that a challenge to the constitutionality of the habitual criminal statute would have failed based on this deference because "we must and do defer to the legislative decision to impose an enhanced penalty on recidivists"). The petitioners have failed to establish a national consensus against the sentencing practice at issue here and our own independent judgment confirms that these sentences are supported by legitimate penological goals. We hold that article I, section 14 does not categorically prohibit imposing a life without parole sentence on a fully developed adult offender who committed one of their prior strike offenses as a young adult.

C. These sentences are proportional under the Fain factors

¶38 A sentence may also be cruel under article I, section 14 if it is grossly disproportionate to the offense. When conducting a proportionality analysis, we consider " '(1) the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the punishment meted out for other offenses in the same jurisdiction.' " Witherspoon , 180 Wash.2d at 887, 329 P.3d 888 (quoting Rivers, 129 Wash.2d at 713, 921 P.2d 495 (citing Fain, 94 Wash.2d at 397, 617 P.2d 720 )). Under the Fain factors, these sentences are not grossly disproportionate to the offenses.

¶39 The first factor is the nature of the offense. Moretti was convicted of first degree robbery and second degree assault; Nguyen was convicted of first and second degree assault with a deadly weapon; and Orr was convicted of first degree burglary and second degree assault, both with a deadly weapon. Each of the petitioners was convicted of two most serious offenses, one of which was a class A felony.

Under RCW 9A.20.021, class A felonies are punishable by a maximum of life in prison even for people who are not persistent offenders.

¶40 The instant offenses were serious, violent crimes. Moretti beat a man with a bat in order to rob him, breaking the bat against the victim's arms as he struggled to defend himself. Moretti and his companion also attacked a second man, splitting open his forehead, the back of his head, and his ear. Nguyen told Thu Nguyen that he was going to kill her and then stabbed her 10 times in front of her four year old grandson. His knife penetrated and partially broke her skull, narrowly missing her brain. His victim only escaped because a friend stopped by the house and was able to intervene, but the friend did not escape unscathed. Nguyen stabbed her in the side when she attempted to rescue Thu Nguyen. Orr's crime was the least violent, but he too assaulted another person. Orr broke into a woman's house while she was there with her child, intending to beat up a man who he had heard was inside, and then swung a large metal pipe at the head of a neighbor several times. These crimes are each more violent than those that we held supported a POAA sentence in Witherspoon, 180 Wash.2d at 888, 329 P.3d 888, and in Rivers, 129 Wash.2d at 713, 921 P.2d 495. Each offender here either injured another person or attempted to do so. These crimes are therefore "far more serious offense[s] than the second degree theft" found to be disproportionate in Fain . Id.

¶41 As the State recognized in oral argument, this factor demands consideration of not only the nature of the crime but also the culpability of the offender who committed it. The petitioners in these cases argue that their sentences are disproportionate because they were either 19 or 20 years old when they committed their first strike offense and their relative youth therefore made them less culpable. But our proportionality review focuses on the nature of the current offense, not the nature of past offenses. Moretti was 32 when he committed the instant offense, and both Nguyen and Orr were 41. None of the petitioners have shown that their culpability was reduced when they committed the instant offenses. Far from showing that "as the years go by ... [their] 'deficiencies will be reformed,' " the petitioners have continued to recidivate after their brains were fully developed and have shown " 'entrenched patterns of problem behavior.' " Miller , 567 U.S. at 472-73, 471, 132 S.Ct. 2455 (internal quotation marks omitted) (quoting Graham, 560 U.S. at 68, 130 S.Ct. 2011 ; Roper, 543 U.S. at 570, 125 S.Ct. 1183 ). This factor indicates that these sentences are not grossly disproportionate.

¶42 The second factor is the legislative purpose of the statute. We have previously recognized that the purpose of the POAA is to deter criminals who commit three most serious offenses and to incapacitate them by segregating them from the rest of society. See Thorne, 129 Wash.2d at 774-75, 921 P.2d 514. As discussed above, supra, Section B.2.b, these goals are served by these sentences. Moretti, Nguyen, and Orr all committed dangerous felonies time and time again. They have shown that they are unwilling to stop endangering the public. This factor also suggests that these sentences are not grossly disproportionate.

¶43 The third factor is the punishment that the offenders would have received in other jurisdictions. The petitioners did not address this factor in their briefing. According to the State's brief from Spokane County, it appears as though 13 other states impose mandatory sentences of life without parole on offenders who continue to recidivate. Am. Suppl. Br. of Resp't, Attach. A. A total of 34 states appear to have some sort of habitual offender statute, many of which allow or require imposing life sentences. Id. Because each state has a different threshold for what qualifies as a strike offense, it is unclear exactly how each of the petitioners would have fared in other jurisdictions. But even if they would have received shorter sentences in some other jurisdictions, "this factor alone is not dispositive." Witherspoon, 180 Wash.2d at 888, 329 P.3d 888.

¶44 The fourth and final Fain factor is the punishment the offenders would have received for a different crime in the same jurisdiction. Mandatory life in prison without the possibility of parole is the harshest sentence currently available in Washington. See State v. Gregory, 192 Wash.2d 1, 5, 427 P.3d 621 (2018) (plurality opinion) (abolishing the death penalty as currently applied). But, "[i]n Washington, all adult offenders convicted of three 'most serious offenses' are sentenced to life in prison without the possibility of release under the POAA." Witherspoon, 180 Wash.2d at 888, 329 P.3d 888. These petitioners would have received the same sentence if they had committed any other most serious offenses. This final factor supports the constitutionality of these sentences.

¶45 Therefore, these sentences are not grossly disproportionate to the offenses.

III. CONCLUSION

¶46 Petitioners argued that sentencing adult offenders to mandatory sentences of life without the possibility of parole under the POAA when one of their prior strike offenses was committed as young adults is either cruel, in violation of article I, section 14 of the Washington Constitution, or cruel and unusual, in violation of the Eighth Amendment to the United States constitution. We hold that it is not.

¶47 The petitioners have not shown a national consensus against this sentencing practice, and our own independent judgment confirms that there is nothing to suggest that these petitioners are less culpable than other POAA offenders. The sentences in these cases do! not categorically violate the Washington Constitution. Because our constitution is more protective than the federal constitution in this context, we need not analyze this question under the Eighth Amendment. Finally, we hold that these sentences are not grossly disproportionate to the offenses under the Fain factors.

¶48 We affirm the Court of Appeals.

WE CONCUR:

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

Gordon McCloud, J.

YU, J. (concurring)

¶49 This case touches on the issue of sentencing individuals to life without the possibility of parole for a wide range of lower level offenses. I agree with the court's narrow holding that there is currently no categorical constitutional bar to the inclusion of an offense committed as a young adult as a predicate for purposes of the Persistent Offender Accountability Act ("Three Strikes Law"), RCW 9.94A.570. See majority at 610-11. But a punishment that may be constitutionally permissible today may not pass muster tomorrow. I therefore write separately to express my growing discomfort with the routine practice of sentencing individuals to life without the possibility of parole, regardless of the offense or the age of the offender.

¶50 This court's decision in State v. Gregory limited the array of punishments that may be imposed for the most serious offenses by eliminating the death penalty. 192 Wash.2d 1, 427 P.3d 621 (2018) (plurality opinion). Every death sentence in this state has been commuted to the next most severe punishment available-life without the possibility of parole. Id. at 36, 427 P.3d 621. As a result, the range of offenses that require imposition of the most severe punishment the state can impose has been expanded. Persistent offenders who have committed robberies and assaults are now grouped with offenders who have committed the most violent of crimes, including aggravated murder and multiple rapes. The gradation of sentences that once existed before Gregory have now been condensed. As a result, a serious reexamination of our mandatory sentencing practices is required to ensure a just and proportionate sentencing scheme.

¶51 Our invalidation of the death penalty signified an effort to align this state's sentencing practices with society's expectations of a criminal justice system that is both fair and free of bias and imposes punishment that is proportional to the crime. In recent years, we have also seen challenges to the death penalty in courts all over the country, including the United States Supreme Court, which evidences the public's discomfort with the imposition of death sentences. Though a number of states still utilize the death penalty, 37 states have not performed an execution in the last five years. States with No Recent Executions, DEATH PENALTY INFO. CTR. (July 8, 2019), https://deathpenaltyinfo.org/executions/executions-overview/states-with-no-recent-executions [https://perma.cc/ZY98-WYGC]. A nationwide decline in the use of the death penalty suggests that society's appreciation for the risk of error and recognition of the finality of such a sentence has become a limiting principle on the application of this most severe sentence. But the elimination of the death penalty only partially addresses these underlying concerns. In my view, our entire sentencing structure should also be reassessed.

¶52 There are similarities between the death penalty and life without parole. Justice Kennedy touched on these similarities in a case discussing the imposition of life without parole for juvenile offenders:

The State does not execute the offender sentenced to life without parole, but the sentence alters the offender's life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency-the remote possibility of which does not mitigate the harshness of the sentence.

Graham v. Florida, 560 U.S. 48, 69-70, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Like the death penalty, a life sentence without the possibility of parole is the deprivation of hope. It is the forfeiture of liberty for life.

¶53 Proportionality in sentencing is required by both article I, section 14 of the Washington Constitution and the Eighth Amendment to the United States Constitution. E .g. , Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) ; State v . Fain, 94 Wash.2d 387, 402, 617 P.2d 720 (1980). It is well settled that our state constitution provides more protection for criminal offenders as it prohibits the imposition of cruel punishment, whereas the Eighth Amendment prohibits the imposition of cruel and unusual punishment. Fain , 94 Wash.2d at 393, 617 P.2d 720. Despite this heightened protection, this court has been reluctant to hold that life sentences without the possibility of parole are disproportionate and thus in violation of article I, section 14. See, e.g., State v. Witherspoon, 180 Wash.2d 875, 887-91, 329 P.3d 888 (2014) ; State v. Magers, 164 Wash.2d 174, 192-94, 189 P.3d 126 (2008) (plurality opinion); State v. Rivers, 129 Wash.2d 697, 712-15, 921 P.2d 495 (1996) ; State v. Manussier, 129 Wash.2d 652, 674-79, 921 P.2d 473 (1996).

¶54 The petitioners advocate for a proportionality analysis that considers the characteristics of the offender, including relative youth and culpability, in addition to the Fain factors. Although the current case law does not support this argument, there have been significant advancements in the scientific community to suggest that "emerging adults" should be treated as a distinct developmental stage in the criminal justice system.

¶55 Those sentenced to life without a possibility of parole are treated as irredeemable and incapable of rehabilitation.

The indefinite isolation of an individual conflicts with the prohibition on cruel punishment because removing the possibility of redemption is the definition of cruel. It may be difficult to understand how some of the most violent criminals could safely reenter society after incarceration. But even the most violent of criminals are entitled to have their constitutional rights respected. Life without parole sentences represent a " 'denial of hope; it means that good behavior and character improvement are immaterial.' " State v. Bassett, 192 Wash.2d 67, 88, 428 P.3d 343 (2018) (internal quotation marks omitted) (quoting Graham, 560 U.S. at 70, 130 S.Ct. 2011 ).

¶56 The penological goals thought to be advanced by long term incarceration are retribution, deterrence, incapacitation, and rehabilitation. As the majority notes, retribution and incapacitation may be achieved in some circumstances but deterrence and rehabilitation are not likely to be achieved by sentencing someone to life without parole. Majority at 617. When penological goals are not furthered by the imposition of a long term sentence such as life without parole, " 'it "is nothing more than the purposeless and needless imposition of pain and suffering," and hence an unconstitutional punishment.' " Gregory, 192 Wash.2d at 24-25, 427 P.3d 621 (quoting Enmund v. Florida, 458 U.S. 782, 798, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) (quoting Coker, 433 U.S. at 592, 97 S.Ct. 2861 )).

¶57 The criminal justice system is not one size fits all. Courts have been entrusted with discretion in sentencing because our society understands that each case is different. To assign one sentence for such a wide range of offenses is to disregard our notions of fairness and justice. Our analysis of proportionality must consider both the nature of the offense and the characteristics of the offender. Courts have already shown a willingness to consider the characteristics of an offender when it comes to age or intellectual disability. See Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) ; Graham , 560 U.S. 48, 130 S.Ct. 2011. However, judicial mercy should not be restricted to considerations of youthfulness or competency. There are adults who are also deserving of leniency and an individualized inquiry as to their level of culpability and capacity for rehabilitation. A judge cannot measure at sentencing an individual's capacity for change. Shon Hopwood, Second Looks & Second Chances, CARDOZO L. REV. (forthcoming 2019) (manuscript at 4) (https://ssrn.com/abstract=3404899); see also Michael M. O'Hear, Not Just Kid Stuff? Extending Graham and Miller to Adults, 78 MO. L. REV. 1087 (2013) (analyzing Graham, Miller, Ewing, and Harmelin and reconciling the varying outcomes of each case based on principles of culpability, legislative deference, and aversion to certain sentencing practices).

¶58 When considering life sentences, it is also important to recognize the disparate impacts that the criminal justice system has on people of color. This i necessarily results in disparate impact in the imposition of life sentences. One size fits all approaches to sentencing reveal the institutional and systemic biases of our society. See Amicus Curiae Br. of the Am. Civil Liberties Union of Wash. 8-11. The effects of disproportionate enforcement of criminal laws against people of color, especially African-Americans, will continue-exaggerated by laws that limit the discretion of trial judges in sentencing decisions.

¶59 We can and must avoid the imposition of a cruel punishment by providing an opportunity for release to every convicted defendant. One way to do this would the Sentencing! Reform Act of 1981, ch. 9.94A RCW. Such a board could provide an opportunity for a confined individual to show evidence of rehabilitation and genuine transformation.

¶60 In recent years, a robust academic discussion has developed regarding the impacts that incarceration has on family, friends, and the greater community. See, e.g., Hopwood, supra. Longer sentences exacerbate these consequences while decreasing the potential for rehabilitation. Id. (manuscript at 8). We should not be satisfied with the status quo; permanent incarceration has neither reduced crime nor increased confidence in our criminal justice system. The principles set forth in Gregory compel us to ask the same questions about a life sentence without the possibility of parole. Is it fairly applied? Is there a disproportionate impact on minority populations? Are there state constitutional limitations to such a sentence? I dare say that these questions are not just academic. They also reflect our values and beliefs about punishment and our criminal justice system. We should join the national movement favoring release upon a showing of rehabilitation and inject into our sentencing practices the exercise of mercy, compassion, and the fact that we know not a person's capacity to change. As Shakespeare so eloquently put it, "And earthly power doth then show likest God's When mercy seasons justice." WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE , act 4, sc. 1.

González, J.

Madsen, J.

      All of tile petitioners have criminal histories beyond the strike offenses. However, each defendant was sentenced to life in prison without the possibility of parole based solely on the fact that these strike offenses qualified them as persistent offenders.

      Thu Nguyen is not related to Hung Van Nguyen. To avoid confusion, we will use her full name when referring to her.

      North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

      At the time these defendants committed the instant offenses, "most serious offenses" included, among other crimes, all class A felonies; assault in the second degree; robbery in the second degree; vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug; and any felony with a deadly weapon verdict. RCW 9.94A.030(33). The legislature recently removed robbery in the second degree from the list of most serious offenses. Engrossed Substitute S.B. 5288, 66th Leg., Reg. Sess. (Wash. 2019). Language making this change retroactive was removed by amendment. Amend. 5288-S AMS PADD S2657.1 to Engrossed Substitute S.B. 5288.

      We express no opinion on whether it is constitutional to apply the POAA to an offender who committed a strike offense as a juvenile and was convicted in adult court.

      Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (holding that it is unconstitutional to sentence a juvenile to life in prison without the possibility of parole without an individualized determination of their culpability in light of their youth).

      Just as risk taking peaks during adolescence, studies that have been conducted in different historical epochs and in countries around the world have found that crime engagement peaks at about age seventeen (slightly younger for nonviolent crimes and slightly older for violent ones), and declines significantly thereafter. Longitudinal studies have shown that the majority of adolescents who commit crime desist as they mature into adulthood. Only a small percentage-generally between five and ten percent-become chronic offenders or continue offending during adulthood. Elizabeth Cauffman et al., How Developmental Science Influences Juvenile Justice Reform, 8 UC Irvine L. Rev. 21, 26 (2018) (footnotes omitted). The petitioners have proved that they are part of this rare group of chronic offenders.

      In reality, the petitioners had more than two chances to show that they were reformed. Moretti was convicted of and sentenced for five other felony offenses and several other misdemeanors before committing his third strike offense. Nguyen was convicted of a host of misdemeanor offenses over a 20 year period, including domestic violence assault, before he committed his third strike offense. After committing his first two strike offenses, Orr pleaded guilty to unlawful possession of a firearm, assault in the third degree, two counts of residential burglary, and harassment. He was sentenced to 20 years and committed his third strike offense 15 months after he was released.

      If Moretti had not been a persistent offender, his standard range sentence for his class A first degree robbery conviction would have been 129-171 months, or approximately 11 to 14 years. RCW 9.94A.510. If Nguyen had not been a persistent offender, his standard range sentence for his class A first degree assault conviction would have been 178-236 months with a 24 month enhancement for using a deadly weapon, and a 12 month deadly weapon enhancement for his class B second degree assault conviction would have had to run consecutively to any sentence, resulting in a standard range of approximately 16 to 21 years. Id. If Orr had not been a persistent offender, his standard range sentence for his class A first degree burglary conviction would have been 87-116 months with a 24 month enhancement for using a deadly weapon, and a 12 month deadly weapon enhancement for his class B second degree assault conviction would have had to run consecutively to any sentence, resulting in a standard range sentence of approximately 10 to 13 years. Id.

      Nguyen also argues that his sentence is disproportionate because of his "possible intellectual disability," Am. Suppl. Br. of Pet'r Nguyen at 17, but this claim is not supported by the record. Although there was previously a suggestion that he may have a mild intellectual disability, his most recent forensic mental health evaluation reported that he seemed to be pretending to be unable to remember details about the charges against him and found that this was "not a function of impaired memory, cognitive impairment, or underlying mood or thought disorder." Nguyen Clerk's Papers at 31.

      These states are Alabama ( Ala. Code § 13A-5-9(c)(4) ), California ( Cal. Penal Code § 667.7(a)(2) ), Delaware ( Del. Code Ann. tit. 11, § 4214(d), (e) ), Georgia ( Ga. Code Ann. § 17-10-7(b)(2) ), Louisiana ( La. Rev. Stat. Ann. § 15:529.1A(3)(b)), Maryland ( Md. Code Ann., Crim. Law § 14-101 ), Mississippi ( Miss. Code Ann. § 99-19-83 ), Montana ( Mont. Code Ann. § 46-18-219 ), North Carolina (N.C. Gen. Stat. Ann. § 14-7.12 ), South Carolina (S.C. Code Ann. § 17-25-45 ), Tennessee ( Tenn. Code Ann. § 40-35-120(g) ), Virginia ( Va. Code. Ann. § 19.2-297.1 ), and Wisconsin ( Wis. Stat. Ann. § 939.62(2m)(c) ). Alabama, California, and Maryland only impose life without parole after the fourth qualifying offense, while Georgia, Montana, and South Carolina impose this sentence after the second qualifying offense for particularly egregious crimes. Hawaii, West Virginia, Pennsylvania, and the District of Columbia will also impose this sentence in certain circumstances. Haw. Rev. Stat. Ann. §§ 706-661, -662 ; W. Va. Code Ann. § 61-11-18 ; 42 Pa. Cons. Stat. Ann. § 9714(a) ; D.C. Code § 22-1804a.

      Interpretation of the Eighth Amendment to the United States Constitution is not static but, instead, " 'draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.' " Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (alteration in original) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion)). This holds true for article I, section 14 of our state constitution as well.

      Dr. Jeffrey Arnett first coined the term "emerging adult" in 2000. Selen Siringil Perker et al., Columbia Univ. Justice Lab, Emerging Adult Justice in Illinois: Towards an Age-Appropriate Approach 2 (2019), https://justicelab.columbia.edu/sites/default/files/content/EAJ%20in%20Illinois%20Report%20Final.pdf [https://perma.cc/TJ4C-NVYM]. Further research has concluded that persons age 18 to 25 tend to act impulsively and are more susceptible to peer pressure and emotions, but they also have a greater capacity for reform than older adults. Anjali Tsui, How Brain Science Is Changing How Long Teens Spend in Prison, Frontline (May 2, 2017), https://www.pbs.org/wgbh/frontline/article/how-brain-science-is-changing-how-long-teens-spend-in-prison [https://perma.cc/8CAZ-AB6K]. These findings have already influenced legislation in many states-including Washington-that is geared toward providing emerging adults with age-appropriate services during incarceration through the juvenile justice system. See generally RCW 13.04.030 ; State v. Watkins, 191 Wash.2d 530, 547-52, 423 P.3d 830 (2018) (Yu, J., dissenting); Clare Ryan, The Law of Emerging Adults, 97 Wash. U. L. Rev. (forthcoming 2019); Stephanie Tabashneck, "Raise the Age" Legislation: Developmentally Tailored Justice, 32 Crim. Just ., no. 4, 2018, at 13 (papers.ssrn.com/so13/papers.cfm?abstract_id=3336932).

      Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991).

      The federal system has also been exploring policy options that will increase reentry for incarcerated individuals. See, e.g., First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 ; 28 C.F.R. § 572.40 (compassionate release under 18 U.S.C. § 4205(g) ).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Kimberly J. GERLACH, Respondent, v. The COVE APARTMENTS, LLC, a Washington corporation; and Weidner Property Management, LLC, a Washington corporation, Appellants, and Weidner Apartment Homes, a Washington business entity, dba The Cove Apartments, and Weidner Asset Management LLC, a Washington corporation, Defendants.
    No. 77179-5-I
    Court of Appeals of Washington, Division 1.
    FILED: May 13, 2019
    Pauline Victoria Smetka, Helsell Fetterman LLP, 1001 4th Ave. Ste. 4200, Seattle, WA, 98154-1154, Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw, Third Floor, Ste. C, Seattle, WA, 98126-2138, for Appellants.
    Benjamin Franklin Barcus, Paul Alexander Lindenmuth, Ben F. Barcus & Associates PLLC, 4303 Ruston Way, Tacoma, WA, 98402-5313, Simon Henri Forgette, Attorney at Law, Janis Mary Nevler, Simon H. Forgette P.S., 406 Market St. Ste. A, Kirkland, WA, 98033-6135, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, for Respondent.
    PUBLISHED OPINION
   Smith, J.

¶1 Kimberly Gerlach sued The Cove Apartments LLC and Weidner Property Management LLC (collectively Cove) after she fell from a second story apartment balcony with a rotted railing and suffered life threatening injuries. Gerlach was extremely intoxicated at the time of the fall. At trial, Cove sought to limit its liability by proving that Gerlach's intoxication was the proximate cause of her damages and that she was more than 50 percent at fault, in accordance with the affirmative defense of voluntary intoxication under RCW 5.40.060(1). Because the trial court abused its discretion by excluding evidence of Gerlach's blood alcohol level at the time of the accident and that exclusion prejudiced Cove's ability to prove Gerlach's intoxication proximately caused her injuries, we reverse and remand for a new trial.

FACTS

¶2 On October 26, 2012, Gerlach and her boyfriend Nathan Miller, along with Colin and Brodie Liddell, went to a birthday party and then to a bar within walking distance of Miller's apartment. Miller lived in a second story unit at The Cove Apartments in Federal Way, which were owned by The Cove Apartments LLC and managed by Weidner Property Management LLC. After the bar closed in the early hours of October 27, Miller and Colin stopped by a convenience store to buy beer, while Gerlach and Brodie returned to Miller's apartment. Brodie stopped to smoke a cigarette before going inside. While he was smoking, he heard a snap and turned in time to see Gerlach in midair, just before she landed head-first on a concrete step on the ground floor. A rotted railing from Miller's balcony also fell near Gerlach. Gerlach suffered a life threatening head injury as a result of the fall.

¶3 Gerlach sued Cove, alleging breach of contract, violations of the Residential Landlord-Tenant Act of 1973 (RLTA), chapter 59.18 RCW, and negligence. The breach of contract claim was dismissed on summary judgment because Gerlach was not a tenant and had no contractual relationship with Cove.

¶4 Although no one witnessed how Gerlach fell and Gerlach does not remember the events of that night, her theory at trial was that the severely rotted railing on Miller's balcony gave way while she was leaning on it, causing her to fall to the ground. Relying on testimony from a biomechanical expert, Cove proffered an alternative theory: that Gerlach did not have a key to the front door, tried to enter the apartment via the balcony, and fell while trying to climb over the balcony railing from the outside. This theory supported Cove's affirmative defense under RCW 5.40.060(1) that Gerlach was intoxicated at the time of the accident, her intoxication was a proximate cause of her injuries, and she was more than 50 percent at fault. To this end, Cove attempted to introduce evidence that Gerlach's blood alcohol concentration (BAC) at the time of the accident was .238 and expert testimony on how a BAC of that level would affect a person's judgment, psychomotor functions, and cognitive abilities. The trial court excluded this evidence and testimony because it found they were more prejudicial than probative. Instead, the trial court instructed the jury that Gerlach "was under the influence of intoxicating liquor at the time of the accident."

¶5 The jury found that Cove was negligent and that its negligence proximately caused Gerlach's injuries. It also found that Gerlach was contributorily negligent and seven percent at fault. The jury verdict was $3,799,793.78, and the net award to Gerlach was $3,533,808.23.

¶6 Cove appeals.

ANALYSIS

Exclusion of Gerlach's Blood Alcohol Level

¶7 Cove argues that the trial court abused its discretion by excluding evidence of Gerlach's blood alcohol level and that the exclusion was prejudicial. We agree.

¶8 We reverse a trial court's evidentiary rulings only upon a showing of abuse of discretion. Subia v. Riveland, 104 Wash. App. 105, 113-14, 15 P.3d 658 (2001). "A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons." In re Marriage of Littlefield, 133 Wash.2d 39, 46-47, 940 P.2d 1362 (1997). But an error does not require reversal unless it is prejudicial, and "[e]rror will not be considered prejudicial unless it affects, or presumptively affects, the outcome of the trial."

Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wash.2d 188, 196, 668 P.2d 571 (1983).

¶9 "All relevant evidence is admissible unless its admissibility is otherwise limited." Salas v. Hi-Tech Erectors, 168 Wash.2d 664, 669, 230 P.3d 583 (2010) ; ER 402. "Evidence is relevant if it has 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' " Salas, 168 Wash.2d at 669, 230 P.3d 583 (quoting ER 401). ER 403 allows a trial court to exclude relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice ...." "When evidence is likely to stimulate an emotional response rather than a rational decision, a danger of unfair prejudice exists." Salas, 168 Wash.2d at 671, 230 P.3d 583. Where evidence is undeniably probative of a central issue in the case, the ability of the danger of unfair prejudice to substantially outweigh the probative value of the evidence is " 'quite slim.' " Sisley v. Seattle Sch. Dist. No. 1, 171 Wash. App. 227, 232, 286 P.3d 974 (2012) (internal quotation marks omitted) (quoting Carson v. Fine, 123 Wash.2d 206, 224, 867 P.2d 610 (1994) ).

¶10 Here, Cove asserted a voluntary intoxication defense against Gerlach. This defense, codified as RCW 5.40.060(1), provides a complete defense to Gerlach's action for personal injury if she was intoxicated, her intoxication was a proximate cause of her injury, and she was more than 50 percent at fault. RCW 5.40.060(1) states:

[I]t is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault.

¶11 Before trial, Gerlach moved in limine to exclude evidence of a blood test taken by the hospital less than an hour after the accident. The test showed that her serum alcohol measurement was 252 mg/dL, which roughly translates to a BAC of .238. After several hearings, the trial court granted Gerlach's motion because Gerlach offered to stipulate to the jury that she was intoxicated at the time of the accident. The court determined that if Gerlach admitted she was intoxicated, evidence of her blood alcohol level was not necessary to establish a defense under RCW 5.40.060(1). The trial court explained that, under Peralta v. State, 187 Wash.2d 888, 389 P.3d 596 (2017), an admission of intoxication was sufficient to establish intoxication under RCW 5.40.060(1) and the admission of Gerlach's blood alcohol level would have been more prejudicial than probative under ER 403. Because the trial court misapplied Peralta and ER 403, its exclusion of the blood alcohol evidence was an abuse of discretion.

¶12 ER 403 does not support the exclusion of the blood alcohol evidence. Although evidence of Gerlach's blood alcohol level was irrelevant to establish intoxication once she admitted that she was intoxicated, that evidence was still relevant to prove the extent to which her intoxication proximately caused her injuries. To that end, Cove was prepared to offer expert testimony that a person's physical and cognitive limitations at a BAC of .238 make it less likely that she could safely stand on a balcony or climb over a railing. Although Gerlach's high blood alcohol level could stimulate an emotional response in a jury, it is not so prejudicial that its probative value is outweighed. Because Gerlach's percentage of fault was reserved for the jury, the jury should have been able to consider Gerlach's level of intoxication and how it may have affected her physical and cognitive abilities. Geschwind v. Flanagan, 121 Wash.2d 833, 837-38, 854 P.2d 1061 (1993) (the determination of the percentage of total fault attributable to each party is specifically reserved for the trier of fact).

¶13 Furthermore, the trial court's error in excluding the blood alcohol evidence affected the outcome of the trial. Because of the error, Cove did not have the opportunity to present evidence on a key factual issue: whether Gerlach was predominantly liable for her injuries due to her level of intoxication. See Geschwind, 121 Wash.2d at 839, 854 P.2d 1061 ("[W]hen a person has voluntarily engaged in behavior which increases the risk of injury, he or she may be held to be predominantly liable for the injuries occurring as a result thereof."). Therefore, the error was not harmless.

¶14 Additionally, the trial court's reliance on Peralta was misplaced. In Peralta, a Washington State Patrol car hit Deborah Peralta after she walked directly into the street and in front of the car. Peralta, 187 Wash.2d at 892, 389 P.3d 596. Peralta sued the State for damages, and the State raised the voluntary intoxication defense in its answer. Peralta, 187 Wash.2d at 892, 389 P.3d 596. During discovery, the State sent Peralta a request to admit or deny that at the time of the collision, she " 'was under the influence of intoxicating liquors.' " Peralta, 187 Wash.2d at 893, 389 P.3d 596. Peralta admitted without qualification that she was. Peralta, 187 Wash.2d at 893, 389 P.3d 596. Based on this admission, the trial court concluded as a matter of law that the first element of RCW 5.40.060(1) was met and it excluded Peralta's evidence that she did not appear intoxicated before the accident. Peralta, 187 Wash.2d at 893-94, 389 P.3d 596. The Supreme Court held that Peralta's admission was clearly an admission of intoxication under RCW 5.40.060(1). Peralta, 187 Wash.2d at 899, 389 P.3d 596. It also held that if she did not intend to admit "intoxication" as that term is statutorily defined (i.e., having a BAC greater than .08 or being unable to drive a motor vehicle), Peralta was required to clarify her admission to reflect that distinction. Peralta, 187 Wash.2d at 904-05, 389 P.3d 596. Because it was not relevant to the issues on appeal, the court did not address whether Peralta's level of intoxication contributed to the jury's finding that her intoxication was a proximate cause of her injuries or its finding that she was more than 50 percent at fault. But the Supreme Court did note that there was ample evidence to support the State's voluntary intoxication defense, meaning there was evidence, other than Peralta's admission, of her intoxication presented at trial. Peralta, 187 Wash.2d at 900 n.6, 389 P.3d 596. Here, by contrast, the exclusion of Gerlach's blood alcohol evidence resulted in a complete absence of evidence as to the extent of her intoxication. For this reason, Peralta does not support the trial court's decision to exclude Gerlach's blood alcohol level.

¶15 Gerlach argues that even if the trial court erred in excluding the blood alcohol evidence, the error did not prejudice Cove because Cove "extensively examined Gerlach's companions concerning the extent and degree of their alcohol consumption before returning to the Cove." The record does not support this contention. None of Gerlach's companions testified as to how many drinks Gerlach consumed that night or that she was extremely intoxicated. For example, Brodie testified that Gerlach was drinking that night but that he could not remember what she had to drink. Colin testified that they all "had a drink" at the birthday party and shared a pitcher of beer at the bar and that based on his own observations, he had no reason to believe Gerlach was impaired that night. Finally, Miller testified that he couldn't remember Gerlach drinking but "would guess that she was." The lack of evidence of Gerlach's degree of intoxication prejudiced Cove's ability to prove its affirmative defense.

¶16 Alternatively, Gerlach argues that evidence of her blood alcohol level was properly excluded because there was no evidence that the required standards were met. This argument is not persuasive.

¶17 RCW 5.40.060(1) provides that for purposes of the voluntary intoxication defense,

[t]he standard for determining whether a person was under the influence of intoxicating liquor or drugs shall be the same standard established for criminal convictions under RCW 46.61.502, and evidence that a person was under the influence of intoxicating liquor or drugs under the standard established by RCW 46.61.502 shall be conclusive proof that such person was under the influence of intoxicating liquor or drugs.

RCW 46.61.502 states:

(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state:
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506 ; or
....
(c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or (d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.

Notably, only subsection (1)(a) of RCW 46.61.502, which sets forth the standard for "per se" intoxication, refers to specific testing standards that must be met for a person's measured level of intoxication to be used against him or her at trial. These testing standards, which are set forth in RCW 46.61.506, need not be met to show that someone is intoxicated under a non-per-se method such as that described in subsection (1)(c) of RCW 46.61.502. State v. Donahue, 105 Wash. App. 67, 76-77, 18 P.3d 608 (2001) (holding that evidence of intoxication from an Oregon hospital blood alcohol test that did not comply with RCW 46.61.506 standards was admissible to prove a non-per-se offense under RCW 46.61.502 ).

¶18 At trial, Cove specifically argued that Gerlach's blood alcohol evidence could be proved using the non-per-se method under RCW 46.61.502(1)(c). Because the blood alcohol evidence in this case could be evidence of intoxication under that non-per-se method, the test used need not comply with the requirements of RCW 46.61.506 to be admissible. This was not a proper basis for excluding the evidence.

¶19 Because the trial court abused its discretion in excluding the evidence of Gerlach's blood alcohol level at the time of the accident and the exclusion prejudiced Cove's ability to prove its affirmative defense of voluntary intoxication, reversal is required. We address the following issues, also raised on appeal, because they are likely to arise again on remand.

Expert Testimony

¶20 Cove argues that the trial court abused its discretion by limiting the testimony of Cove's experts, Dr. Frank Vincenzi, Dr. Michael Carhart, and Dr. Thomas Wickizer. We agree that the trial court erred in limiting Dr. Vincenzi's testimony but disagree as to the testimony of Dr. Carhart and Dr. Wickizer.

¶21 "Generally, expert testimony is admissible if (1) the expert is qualified, (2) the expert relies on generally accepted theories in the scientific community, and (3) the testimony would be helpful to the trier of fact." Johnston-Forbes v. Matsunaga, 181 Wash.2d 346, 352, 333 P.3d 388 (2014). "When applying this test, trial courts are afforded wide discretion, and trial court expert opinion decisions will not be disturbed on appeal absent an abuse of such discretion." Johnston-Forbes, 181 Wash.2d at 355, 333 P.3d 388.

¶22 If a witness does not have the specialized training or experience necessary to draw the inference offered, the opinion lacks a proper foundation and is inadmissible under ER 702. Simmons v. City of Othello, 199 Wash. App. 384, 392-93, 399 P.3d 546 (2017). Accordingly, even if an expert witness is qualified, testimony from that witness is not admissible if the issue lies outside the witness's area of expertise. Simmons, 199 Wash. App. at 392, 399 P.3d 546. " 'Where there is no basis for the expert opinion other than theoretical speculation, the expert testimony should be excluded.' " Simmons, 199 Wash. App. at 393, 399 P.3d 546 (quoting Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wash.2d 50, 103, 891 P.2d 718 (1995) ).

Dr. Vincenzi

¶23 On appeal, the parties do not dispute that Dr. Vincenzi was a qualified expert as to the effects of alcohol upon the human body. Dr. Vincenzi completed an analysis that included a conversion of Gerlach's serum alcohol measurement of 252 mg/dL at the hospital to the more commonly used BAC number of .238 at the time of the accident. He also testified in an offer of proof as to the effect of the consumption of alcohol on a person based on his or her blood alcohol level. He opined that a person with a BAC of .200 or higher would experience severe psychomotor impairment. ¶24 The trial court excluded Dr. Vincenzi's testimony at the same time that it erroneously excluded the evidence of Gerlach's blood alcohol level. Dr. Vincenzi's testimony would have been helpful to the jury in understanding the effects of intoxication on a person with a high blood alcohol level. To the extent that the trial court excluded Dr. Vincenzi's testimony based on its erroneous ruling on Gerlach's blood alcohol level, that exclusion was in error.

¶25 Gerlach argues that Dr. Vincenzi's testimony was speculative and without foundation because it was based on the hospital blood test that did not comply with the testing standards of RCW 46.61.506. As explained in the previous section, those testing standards do not bar admission. Therefore, this argument is not persuasive.

¶26 Gerlach also argues that Dr. Vincenzi's testimony was properly excluded based on Purchase v. Meyer, 108 Wash.2d 220, 737 P.2d 661 (1987), because evidence of how alcohol affected a person's behavior cannot be based on a blood alcohol test alone. But Purchase was a dramshop liability case and is distinguishable. To find an establishment liable for over-serving alcohol under a dramshop theory, a plaintiff must prove that a server furnished intoxicating beverages to an obviously intoxicated person. Purchase, 108 Wash.2d at 225, 737 P.2d 661. In Purchase, the relevant issue was whether or not it was obvious to a server that the person being served was intoxicated. Purchase, 108 Wash.2d at 227, 737 P.2d 661. The court held that evidence of a person's blood alcohol level alone could not support a finding that a person was "obviously intoxicated" because people can exhibit the effects of intoxication differently. Purchase, 108 Wash.2d at 225-27, 737 P.2d 661.

¶27 This is not a dramshop liability case, and here, there is no requirement that Cove prove Gerlach's intoxication was obvious to others. Rather, the issue in this case is the extent to which Gerlach's extreme intoxication contributed to her injuries. Therefore, Purchase does not control.

¶28 Finally, Gerlach argues that Dr. Vincenzi's testimony was properly excluded because testimony explaining that alcohol impairs a person's judgment is a matter of common knowledge understood by the average juror and, therefore, not helpful. But, Dr. Vincenzi's testimony was not limited to this basic fact. He explained that a person with a blood alcohol level of .200 or above will have a decrease in inhibitions, psychomotor impairment, and cognitive impairment. He also opined that "[p]sychomotor impairment really starts at levels of .05 (unintelligible), about .05 to .06 or thereabouts and gets worse and worse, more and more impairment, and severe impairment in essentially everyone at levels of [.]200 or above." Dr. Vincenzi's opinion on how a person's physical and cognitive abilities are affected by his or her BAC would have been helpful to the jury and should have been admitted.

Dr. Carhart

¶29 The trial court did not err in limiting Dr. Carhart's testimony. Dr. Carhart is an expert "in the biomechanics of human injury and accident reconstruction, specializing in the areas of musculoskeletal dynamics, occupant dynamics, human injury tolerance, vehicular rollover, and occupant-to-glazing interaction." Dr. Carhart was prepared to testify that Gerlach's intoxication would have caused her to have "diminished stability, psychomotor functioning, reaction time performance, and ability to manage complex motor tasks, such as trying to maneuver over a railing." He based this opinion on two studies that he cited as authoritative sources. But Dr. Carhart is not an expert in how alcohol affects the human body, and his testimony on this issue would have been speculative. Therefore, the trial court properly excluded Dr. Carhart's testimony on this issue.

Dr. Wickizer

¶30 The trial court also did not abuse its discretion by excluding Dr. Wickizer's expert testimony on the reasonable value of Gerlach's medical expenses.

¶31 A plaintiff "may recover only the reasonable value of medical services received, not the total of all bills paid." Patterson v. Horton, 84 Wash. App. 531, 543, 929 P.2d 1125 (1997). "Thus, the plaintiff must prove that medical costs were reasonable and, in doing so, cannot rely solely on medical records and bills." Patterson, 84 Wash. App. at 543, 929 P.2d 1125. "In other words, medical records and bills are relevant to prove past medical expenses only if supported by additional evidence that the treatment and the bills were both necessary and reasonable." Patterson, 84 Wash. App. at 543, 929 P.2d 1125.

¶32 Here, Cove intended to call Dr. Wickizer, a health economist, as an expert witness to testify about the medical billing process and provide a comparative analysis of the cost of medical services. Specifically, Dr. Wickizer authored an analysis on the reasonableness of Gerlach's medical expenses, in which he explained that billing for the same procedures can vary greatly from hospital to hospital and the billed amount is not necessarily reasonable. In the analysis, he recalculated the "reasonable value" of all of Gerlach's medical expenses by applying a cost-to-charge ratio from the hospital's Federal Cost Report to each hospital inpatient charge. The Federal Cost Reports are compiled by the federal government and include cost and revenue information for all patients receiving care at that hospital. Additionally, Dr. Wickizer estimated the reasonable value of Gerlach's physician charges by applying the physician's agreed Medicare reimbursement rate to each physician charge. Cove intended this testimony to assist the jury in evaluating the reasonableness of Gerlach's medical bills.

¶33 The trial court properly excluded Dr. Wickizer's testimony. Evidence of what Gerlach's physicians accept from Medicaid and how the inpatient charges are affected by Dr. Wickizer's cost-to-charge ratio is not proof that Gerlach's medical expenses were unreasonable. In Hayes v. Wieber Enterprises, Inc., 105 Wash. App. 611, 616, 20 P.3d 496 (2001), the Court of Appeals held that the trial court did not abuse its discretion in refusing to admit evidence of the amount a plaintiff's doctor actually accepted as payment from the insurance company to refute the reasonableness of the billed medical expenses. It reasoned that "[t]he fact that the doctor accepted the first party insurance carrier's limit for his services does not tend to prove his charge for these services was unreasonable." Hayes, 105 Wash. App. at 616, 20 P.3d 496.

¶34 The same is true here. Evidence that, on average, a procedure costs less than the amount charged or that Gerlach's physicians accept a lesser payment for services from Medicare is not helpful to the jury in determining whether her medical expenses were reasonable. Furthermore, Gerlach met her burden to prove the reasonableness of her medical expenses under Patterson because she presented expert testimony other than the medical records and bills themselves. Dr. Lowell Finkleman testified that the medical treatment Gerlach received and the resulting charges were reasonable and customary for this community and consistent with charges he had seen over the years. Therefore, the trial court did not abuse its discretion by refusing to allow Dr. Wickizer to testify.

¶35 Cove argues that Hayes is distinguishable because Dr. Wickizer was not testifying on what was charged versus what was paid. We disagree. Although it is not clear from Dr. Wickizer's analysis whether the revenue figure used in the cost-to-charge ratios reflects the amounts billed or the amounts ultimately received for inpatient services, Dr. Wickizer's analysis of Gerlach's physician charges was based on the physicians' agreed Medicare reimbursement rate. Therefore, the court did not abuse its discretion in refusing to allow Dr. Wickizer to testify as to his analysis.

Instruction on Voluntary Intoxication

¶36 Cove argues that the trial court erred by failing to give Cove's proposed jury instruction on its voluntary intoxication defense, which closely followed the pattern instruction. We disagree.

¶37 Jury instructions are sufficient when they allow a party to argue their theory of the case, are not misleading and, when read as a whole, properly inform the jury of the applicable law. Bodin v. City of Stanwood, 130 Wash.2d 726, 732, 927 P.2d 240 (1996). As long as these conditions are met, the trial court may refuse to give augmenting instructions or instructions that are cumulative, collateral, or repetitive. Bodin, 130 Wash.2d at 732, 927 P.2d 240 ; Havens v. C&D Plastics, Inc., 124 Wash.2d 158, 165-66, 876 P.2d 435 (1994). "The pattern [jury] instructions are not authoritative primary sources of the law' and are not binding on trial courts." Univ. of Wash. v. Gov't Emps. Ins. Co., 200 Wash. App. 455, 475, 404 P.3d 559 (2017) (alteration in original) (quoting 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 0.10, at 3 (6th ed. 2012)).

¶38 Whether a jury instruction reflects an accurate statement of law is reviewed de novo. Joyce v. Dep't of Corrs., 155 Wash.2d 306, 323, 119 P.3d 825 (2005). But " '[t]he number and specific language of the instructions are matters left to the trial court's discretion.' " Leeper v. Dep't of Labor & Indus., 123 Wash.2d 803, 809, 872 P.2d 507 (1994) (quoting Douglas v. Freeman, 117 Wash.2d 242, 256, 814 P.2d 1160 (1991) ).

¶39 The pattern instruction for the voluntary intoxication defense under RCW 5.40.060(1) states:

It is a defense to an action for damages for [personal injuries] [wrongful death] that the [person injured] [person killed] was then under the influence of [alcohol] [or] [any drug], that this condition was a proximate cause of the [injury] [death], and that the [person injured] [person killed] was more than fifty percent at fault.

6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 16.03, at 213 (6th ed. 2012) (WPI). This instruction is an accurate statement of the law.

¶40 Here, the trial court instructed the jury that

[a] person who becomes voluntarily intoxicated is held to the same standard of care as one who is not so affected. The intoxication of the plaintiff at the time of the occurrence may be considered by the jury, together with all the other facts and circumstances, in determining whether that person was negligent.

The court also instructed on contributory negligence:

If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, attributable to the person claiming injury or damage. The court will furnish you a special verdict form for this purpose. Your answers to the questions in the special verdict form will furnish the basis by which the court will apportion damages, if any.

Cove did not object to either of these instructions. But Cove did object to the trial court's failure to give its proposed instruction on the voluntary intoxication defense, which closely followed WPI 16.03.

¶41 Although the instructions given by the trial court were not an inaccurate statement of the law, they were not particularly clear. To establish its voluntary intoxication defense, Cove was required to prove that (1) Gerlach was under the influence of intoxicating liquor, (2) her condition was a proximate cause of her injury, and (3) she was more than 50 percent at fault. RCW 5.40.060(1). Instructions 20 and 21, as given, allowed Cove to argue its voluntary intoxication defense. The jury was already instructed that Gerlach was "under the influence of intoxicating liquor at the time of the accident," satisfying the first requirement. Instruction 20 instructed the jury to consider whether Gerlach was negligent as a result of that intoxication, satisfying the second requirement of the defense. And, instruction 21 instructed the jury to determine the percentage of fault attributable to Gerlach, satisfying the third requirement. Given these instructions, Cove was able to argue that Gerlach's intoxication was a proximate cause of her accident and that she was more than 50 percent at fault. But, WPI 16.03 contains a more succinct statement of the elements of the voluntary intoxication defense, and while the trial court did not abuse its discretion by giving instructions 20 and 21, WP116.03 is a more appropriate instruction and should be used on remand. Cove's Duty to Gerlach under the RLTA

¶42 Cove argues that because Gerlach was not Cove's tenant, the trial court erred in instructing the jury that Cove owed a duty to Gerlach based on the RLTA. We agree.

¶43 In a negligence case, the plaintiff must prove duty, breach, causation, and damages. Nivens v. 7-11 Hoagy's Corner, 133 Wash.2d 192, 198, 943 P.2d 286 (1997). Whether an actionable duty was owed to a plaintiff is a threshold determination and a question of law that this court reviews de novo. Munich v. Skagit Emergency Commc'n Ctr., 175 Wash.2d 871, 877, 288 P.3d 328 (2012).

¶44 Under the RLTA, landlords have an implied warranty of habitability to tenants. See RCW 59.18.060 ; Foisy v. Wyman, 83 Wash.2d 22, 28, 515 P.2d 160 (1973). This duty to keep the premises in habitable condition provides tenants with a negligence cause of action against landlords who fail to do so. See Lian v. Stalick, 106 Wash. App. 811, 818, 25 P.3d 467 (2001). But Restatement (Second) of Property § 17.6 (1977) states:

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.

(Emphasis added.) Arguably, the language of section 17.6 permits a tenant's guest to recover from a landlord directly for breach of an implied warranty of habitability, a statute, or a regulation. But, we recently held that Washington has only adopted section 17.6 in cases where a landlord's negligence is alleged by a tenant and that the section has not been adopted in the context of claims by nontenants. Phillips v. Greco, 7 Wash. App. 2d 1, 433 P.3d 509, 511 (2019). Therefore, Gerlach cannot base any duty owed by Cove upon section 17.6.

¶45 Here, Gerlach sued Cove for negligence, claiming it breached its implied and statutory warranty of habitability to Gerlach by failing to repair the rotted railing. Cove moved for partial summary judgment, arguing that Gerlach's negligence claim could not proceed because Gerlach was not a tenant and the implied and statutory warranty of habitability only applies to tenants under the RLTA. The trial court denied Cove's motion for summary judgment and instructed the jury on a landlord's duties under the RLTA. Because no Washington law has extended section 17.6 to apply to nontenants, the trial court erred by denying Cove's motion for summary judgment on this cause of action and instructing the jury that Cove could be liable to Gerlach for a violation of the RLTA. We hold that this cause of action cannot go forward on remand.

¶46 We reverse the jury verdict in favor of Gerlach and remand for retrial of the issues of liability and allocation of fault in Gerlach's negligence action against Cove.

WE CONCUR:

Andrus, J.

Schindler, J.

      Because Colin and Brodie Liddell have the same last name, this opinion refers to each by his first name.