text:
    STATE of Washington, Respondent, v. William PHILLIP, Jr., Appellant.
    No. 77175-2-I
    Court of Appeals of Washington, Division 1.
    FILED: July 1, 2019
    Nancy P. Collins, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101-3647, for Petitioner.
    James Morrissey Whisman, King County Prosecutor's Office, Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, 516 3rd Ave., W554 King County Courthouse, Seattle, WA, 98104-2385, for Respondent.
    PUBLISHED OPINION
    Mann, A.C.J.
    ¶1 In the digital age that we live in, cell phones are now a "pervasive and insistent part of daily life." But with the advent of this new technology, comes the potential for its abuse. Cell phone data, for example, represents a new frontier in police investigative tactics. Cell-site location information (CSLI) is highly detailed data, which can create a historical map of where a particular cell phone traveled during a set period of time. Based on this technology, police are able to look back in time and find out precisely where anyone was at a given time, buttressed only by the retention policy of the individual's wireless provider.
    ¶2 The protection against abuse of this highly detailed and personal information is through a familiar mechanism: the constitutional requirements of a warrant. A warrant, supported by probable cause and meeting the particularity requirement, provides an individual with the constitutionally required protections against privacy invasions by the state.
    ¶3 William Phillip sought discretionary review of a trial court order approving a subpoena issued to Phillip's wireless provider requiring the provider to release Phillip's CSLI records. Because the State failed to seek issuance of a warrant, and State and trial court failed to recognize Phillip's privacy interest in the CSLI records, we reverse, vacate the subpoena, and remand for further proceedings.

      Riley v. California, 573 U.S. 373, 385, 134 S. Ct. 2473, 2484, 189 L. Ed. 2d 430 (2014).

   I.

¶4 In May 2010, Phillip lived in Portland, Oregon. Seth Frankel lived in Auburn, Washington. Frankel's girlfriend, Bonnie Johnson, lived part-time with Frankel in Auburn and part-time in Portland where she worked.

¶5 On May 21, 2010, Johnson became concerned when she was unable to reach Frankel by phone. Johnson contacted Frankel's neighbor, who went to Frankel's house and observed a body lying on the floor. The Auburn police department responded and discovered Frankel was dead due to a knife wound to his throat. An 18-inch black zip tie was attached to one of Frankel's wrists and another zip tie was found near his body. Frankel's house was locked and appeared orderly other than the area immediately surrounding Frankel's body. A medical examiner estimated Frankel's time of death as between 8:00 p.m. May 21 and 4:30 a.m. May 22, 2010.

¶6 Over the next few days, Auburn police interviewed Johnson multiple times. During these interviews and a consensual search of Johnson's cell phone, police discovered that Johnson had been in frequent contact by telephone with Phillip and another man from Sacramento, California. Text messages between Johnson and Phillip appeared flirtatious.

¶7 On May 25, 2010, at the request of the Auburn police, a Portland police Officer visited Phillip. Without telling him that Johnson was dead or that he was investigating a murder, the officer asked if Phillip knew Johnson. Phillip stated that Johnson was a friend. When asked if he had been to Auburn recently, Phillip responded that he wanted to exercise his right to counsel.

¶8 Over the course of their investigation, the Auburn police obtained a total of five warrants. First, on May 27, 2010, the Auburn Police obtained a warrant requiring AT & T to provide them with Phillip's CSLI records. The affidavit for the May 2010 warrant described the crime scene, that Johnson and Frankel were in a relationship, and that Johnson continued to speak to her previous boyfriend, Phillip.

¶9 On June 9, 2010, the police visited the convention center where Phillip worked. Phillip's supervisor explained that Phillip commonly used zip ties in his job. The zip ties used at Phillip's work were identical to the zip ties found in Frankel's home.

¶10 The police received Phillip's CSLI records from AT & T on June 20, 2010. The records revealed that on the day of Frankel's murder Phillip traveled from Portland, Oregon to Auburn, Washington. Phillip remained in Auburn-at times within blocks of Frankel's home-until approximately 9:00 p.m., and then traveled back to Portland.

¶11 On June 22, 2010, the police obtained a warrant to search Phillip's apartment, vehicle, and person. While executing that warrant, the police seized Phillip's cell phone and journal. In his journal, Phillip expressed that he was obsessed with Johnson and that Frankel was not good enough for her.

¶12 Auburn police then spoke with Katy Sanguino, Phillip's mother. She explained that Phillip, who only owned a motorcycle, had borrowed her car from May 21 to May 22, 2010. Sanguino gave the police consent to search her vehicle, where police found traces of blood on the inside driver's door handle.

¶13 In August of 2010, the Washington State Patrol Seattle Crime Laboratory determined that a bloodstained towel from the crime scene revealed two different deoxyribonucleic acid (DNA) types. The first type was from Frankel, the second was from an unknown male. On November 5, 2010, the police obtained a warrant for Phillip's DNA. That DNA sample revealed that Phillip was a possible contributor of the second DNA sample and only about 1 in 2.2 million individuals could have contributed the sample. After the DNA results came in, police arrested Phillip and charged him with first degree murder.

¶14 The police's fourth warrant came on January 25, 2012, and allowed the police to search the physical contents of Phillip's cell phone. In March 2012, Wyman Yip, the King County Prosecutor assigned to Phillip's case, asked the Auburn police to seek a more thorough warrant for Phillip's CSLI records. Yip stated that the May 2010 warrant was defensible, but the affidavit could have included other facts that were known at the time. Police prepared a new affidavit that incorporated the affidavit used to obtain the May 2010 warrant and provided further details about the crime scene and Johnson's relationship with Phillip. The trial court issued the warrant for Phillip's CSLI records on March 22, 2012.

¶15 Pre-trial, Phillip moved to suppress all evidence obtained during the execution of the search warrants. The trial court denied the motion. Although the court found that the May 2010 warrant was not supported by probable cause, it determined that the March 2012 warrant was supported by probable cause and met the requirements of the independent source doctrine. The trial court also determined that the remaining warrants were valid.

¶16 Phillip was tried for first degree murder. After his first trial ended in a hung jury, a second jury convicted Phillip of Frankel's murder. Phillip appealed his conviction to this court.

¶17 On appeal, we concluded that the facts in the affidavits used to obtain the May 2010 and March 2012 warrants for Phillip's CSLI records failed to provide a sufficient factual basis from which to infer that evidence of the crime would likely be found on Phillip's CSLI records. As we explained:

The March 2012 affidavit incorporates the May 2010 affidavit and thus includes the earlier affidavit's brief description of the crime scene, identification of Johnson as Frankel's girlfriend, information that Johnson asked the neighbor to check on Frankel, and description of Phillip as a man with whom Johnson had a close relationship. The March 2012 affidavit provides further details about the crime scene, including the fact that doors were locked and that, except for the area immediately surrounding the body, the apartment appeared untouched. It also includes Johnson's statements that Phillip had served in the military, he was the only person she knew who had ever spoken ill of Frankel, he was the only person she could think of who would want to hurt Frankel, and he was extremely upset when she broke up with him. The affidavit reports Phillip's statement to the Portland police that Johnson was "just a friend" and his invocation of the right to counsel when asked if he had ever been in Auburn.
The affidavit includes copies of text messages between Johnson and Phillip in the week of Frankel's death. The text messages appear flirtatious. In one message, Phillip refers to Frankel as an "unhot old man." In Johnson's reply, she tells Phillip not to speak about Frankel like that. The text messages do not express any intent to harm Frankel.
The facts in the affidavit indicate that Phillip had a close relationship with Johnson and frequently communicated with her by telephone. Johnson said that Phillip was the only person she could think of who had spoken ill of Frankel and who might want to harm Frankel. But the only evidence supporting these assertions was Phillip's text referring to Frankel as an "unhot old man" and Johnson's claim that Phillip was very upset when she broke up with him. These facts at most suggest that Phillip may have been jealous of Frankel's relationship with Johnson. But they do not create a reasonable inference that Phillip was involved in Frankel's death or that evidence relating to Frankel's death would likely be found in Phillip's cell phone records.
The affidavit also establishes that Phillip did not want to discuss with police whether he had traveled to Auburn. This fact may have indicated to police that further investigation was warranted, but it does not establish a connection sufficient to infer that evidence of the crime would likely be found in Phillip's cell phone records. "Absent a sufficient basis in fact from which to conclude evidence of illegal activity will likely be found at the place to be searched, a reasonable nexus is not established as a matter of law." Thein, 138 Wn.2d at 147 [977 P.2d 582].[ ] See, e.g., State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869 (1980) ; State v. Helmka, 86 Wn.2d 91, 92-93, 542 P.2d 115 (1975) ; State v. Patterson, 83 Wn.2d 49, 52, 61, 515 P.2d 496 (1973).
The State argues that the facts in the affidavit give rise to a chain of inferences supporting probable cause. The State argued below that Phillip's relationship with Johnson gave him a motive to harm Frankel, Phillip could have obtained a key to the apartment from Johnson, and Phillip thus may have had access to Frankel. The State further argued that Johnson and Phillip may have been jointly involved in the crime and that if either of them was the killer, evidence of the crime would likely be found in Phillip's phone records.
These are mere speculations. The facts in the affidavit provide no basis for inferring that Johnson and Phillip conspired to harm Frankel and that evidence of this Conspiracy would be found in Phillip's phone records. To the contrary, in the text messages, Johnson defends Frankel and instructs Phillip not to speak badly of him. Conclusory statements, speculations, and suspicions do not provide a factual basis that supports probable cause. Thein, 138 Wn.2d at 147, 977 P.2d 582.

Phillip, slip op. at 9-12 (internal footnote omitted).

¶18 Accordingly, we reversed Phillip's conviction because the warrants for Phillip's CSLI records were not supported by probable cause.

¶19 On remand, the State moved the trial court for issuance of a subpoena duces tecum directed to AT & T for Phillip's CSLI records. Rather than offering a new affidavit in support of the subpoena, the State filed a memorandum that attached six previously filed affidavits including: (1) the December 8, 2010, certification for determination of probable cause that included information from the tainted May 2010 CSLI records, (2) the affidavit for the May 22, 2010, search warrant for the CSLI records that the trial court held insufficient, (3) an unsworn June 22, 2010, affidavit for the warrant to search Phillip's apartment, vehicle, and person, that included information from the tainted May 2010 CSLI records, (4) the affidavit for the November 5, 2010 warrant for Phillip's DNA, (5) the affidavit for the January 25, 2012 warrant for Phillip's cell phone that included information from the tainted May 2010 CSLI record, and (6) the affidavit for the March 22, 2012, renewed warrant for Phillip's CSLI records that included information from the tainted CSLI record AND that this court held insufficient.

¶20 In its accompanying legal memorandum, the State recited the evidence contained in the attached affidavits, including a recitation of the information contained in the tainted CSLI records. While the State's memorandum urged the trial court to apply a probable cause standard for issuance of the subpoena, the memorandum also incorrectly asserted that our decision in Phillip "noted that the facts established that the State would have sought the cell phone usage records via the second warrant even without knowledge of what the [tainted CSLI] records showed." The State's memorandum further argued that, while it was requesting a subpoena, it should not need either a subpoena or probable cause because Phillip did not have a legitimate expectation of privacy in the cell phone records. Finally, the State argued that the independent source doctrine applied. The State asserted that Phillip "implicitly held that the [cell phone] records would have been admissible under the independent source rule if there had been sufficient probable cause set forth in the affidavit."

¶21 The trial court granted the subpoena for Phillip's CSLI records on July 24, 2017. In doing so, the court determined that Phillip had a lower expectation of privacy in the historic cell tower records than he did in his personal cell phone and apartment. The trial court subsequently granted Phillip's motion to stay the execution of the subpoena, and certified its decision for interlocutory appeal. RAP 2.3(b). We granted discretionary review.

II.

¶22 Phillip argues that the subpoena authorizing release of his CSLI records violates article I, section 7 of the Washington Constitution and the Fourth Amendment to the U.S. Constitution. We agree.

¶23 Article I, section 7 of the Washington Constitution provides that "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Article 1, section 7 "provides greater protection to individual privacy rights than the Fourth Amendment." State v. Betancourth, 190 Wash.2d 357, 366, 413 P.3d 566 (2018). "Whereas the Fourth Amendment prohibits 'unreasonable searches and seizures,' article 1, section 7 of our State constitution prohibits any invasion of an individual's right to privacy without 'authority of law.' " Betancourth, 190 Wash.2d at 366, 413 P.3d 566. Further, "[i]n contrast to the Fourth Amendment, article I, section 7 'recognizes an individual's right to privacy with no express limitations.' "

Id. (quoting State v. Winterstein, 167 Wash.2d 620, 631-32, 220 P.3d 1226 (2009) ).

¶24 "Unlike its federal counterpart, Washington's exclusionary rule is 'nearly categorical.' " Id. (quoting State v. Afana, 169 Wash.2d 169, 180, 233 P.3d 879 (2010) ). Also in contrast with the Fourth Amendment, Washington does not allow a "good faith" or "reasonableness" exception to the exclusionary rule. "Under article I, section 7, the requisite 'authority of law' is generally a valid search warrant." Betancourth, 190 Wash.2d at 367, 413 P.3d 566.

A.

¶25 The parties devote the majority of their argument to the issue of whether the trial court properly applied the independent source doctrine-an exception to exclusionary rule-to authorize issuance of the July 2017 subpoena. We do not address application of the independent source doctrine because the subpoena fails as a matter of law. Under the Supreme Court's recent decision in Carpenter, an individual maintains an expectation of privacy in CSLI records, and the way to obtain such records is through a warrant.

¶26 CLSI records include precise data that can be used to create a historical map of where a particular cell phone traveled during a set period of time. As described by the United States Supreme Court in Carpenter v. United States, --- U.S. ----, 138 S. Ct. 2206, 2211-12, 201 L. Ed. 2d 507 (2018) :

There are 396 million cell phone service accounts in the United States-for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called "cell sites." Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors.
Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone's features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI) ....
Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying "roaming" charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here. While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.

¶27 In Carpenter, the State sought and obtained court orders compelling two wireless carriers to disclose CSLI records for Carpenter's cell phone covering a time period where Carpenter was suspected of committing multiple robberies. The CSLI records confirmed that Carpenter's phone was in the vicinity of the charged robberies at the times they were committed. The Court of Appeals for the Sixth Circuit affirmed admission of the records at trial, holding that Carpenter lacked a reasonable expectation of privacy for the CSLI records because cell phone users voluntarily convey cell location data to their carriers in order to establish service. United States, v. Carpenter, 819 F.3d 880, 888 (6th Cir. 2016).

¶28 The Supreme Court granted certiorari and reversed. In doing so, the Court first addressed whether, as argued by the State in this case, an individual maintains an expectation of privacy in CSLI records. In answering in the positive, the Court explained that CSLI records "provide[ ] an intimate window into a person's life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations."

Carpenter, 138 S. Ct. at 2217. "With just the click of a button, the Government can access ... deep repositor[ies] of historical location information at practically no expense." Carpenter, 138 S. Ct. at 2218. Indeed, CSLI records actually "present even greater privacy concerns than the GPS monitoring of a vehicle" as considered in United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), because "a cell phone-almost a feature of human anatomy-tracks nearly exactly the movements of its owners." "A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor's offices, political headquarters, and other potentially revealing locales." Carpenter, 138 S. Ct. at 2218. "When the Government tracks the location of a cell phone it achieves near perfect surveillance ... [and] the retrospective quality of the data here gives police access to a category of information otherwise unknowable." Carpenter, 138 S. Ct. at 2218.

¶29 The Court further explained that "[T]he Government can now travel back in time to retrace a person's whereabouts, subject only to the retention policies of the wireless carriers." Carpenter, 138 S. Ct. at 2218. "Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for ... years, and the police may-in the Government's view-call upon the results of that surveillance without regard to the constraints of the Fourth Amendment." Carpenter, 138 S. Ct. at 2218.

¶30 The Court concluded that accessing CSLI data from wireless carriers invades an individual's "reasonable expectation of privacy in the whole of his physical movements." Carpenter, 138 S. Ct. at 2219. And, as a result, "[b]efore compelling a wireless carrier to turn over a subscribers CSLI, the Government's obligation is a familiar one-get a warrant." Carpenter, 138 S. Ct. at 2221.

¶31 The Court's concerns in Carpenter apply with even more persuasive force here. Just as in Carpenter, Phillip's cell phone data provided the State an intimate view into Phillip's life. Similar to Carpenter, Phillip's cell phone data precisely tracked his movements. Just as in Carpenter, the State traveled back in time to retrace Phillip's whereabouts: the State effectively tailed Phillip every moment, and the police may-in the State's view-call upon the results of that surveillance without regard to the constraints of article I, section 7. And just as in Carpenter, this court is "obligated-as '[s]ubtler and more far-reaching means of invading privacy have become available to the Government'-to ensure that the 'progress of science' does not erode Fourth Amendment protections." Carpenter, 138 S. Ct. at 2223 (quoting Olmstead v. United States, 277 U.S. 438, 473-74, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissent), overruled in part by Berger v. State of New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967) ).

¶32 Yet even more concerning is that the primary concern of article I, section 7 is to protect privacy. "[A] disturbance of private affairs must satisfy article I, section 7 's authority of law requirement." State v. Miles, 160 Wash.2d 236, 249, 156 P.3d 864 (2007). Article I, section 7 "recognizes an individual's right to privacy with no express limitations[,]" Winterstein, 167 Wash.2d at 631-32, 220 P.3d 1226, and "the paramount concern of our state's exclusionary rule is protecting an individual's right of privacy." Betancourth, 190 Wash.2d at 367, 413 P.3d 566.

¶33 The State argued below that Phillip had no expectation of privacy in the CSLI records because he voluntarily shared this data with his cell phone provider. Based on the State's argument, the trial court agreed that it was applying a lower threshold of protection for cell phone data: "[o]ne could certainly hold that Mr. Phillip's expectation of privacy in his personal cell phone and apartment is higher than his expectation of privacy in the historic cell tower location records." The State's argument and trial court's determination is in direct odds with the holding in Carpenter. This was in error as Phillip has a reasonable expectation of privacy in his cell phone records, which was seriously impeded when the police obtained those records without a valid warrant or probable cause.

B.

¶34 In addition to misstating Phillip's reasonable expectation of privacy in his CSLI records, the State also failed to apply for and obtain a warrant based on probable cause. The State argues that it was justified in requesting a subpoena using a probable cause standard because the probable cause standard, regardless of what mechanism it is attached to, sufficiently satisfied the authority of law requirement of article I, section 7. Because of the expectation of privacy associated with CSLI records, we disagree.

¶35 The State attempts to distinguish Carpenter by arguing that the Supreme Court did not say that a warrant was required in all situations, but instead said that a subpoena or court order based on a reasonable grounds standard was insufficient. While the State is correct that the court order in Carpenter was based on a reasonable ground standard, this does not diminish the Supreme Court's mandate: "Before compelling a wireless carrier to turn over a subscriber's CSLI, the Government's obligation is a familiar one-get a warrant." Carpenter, 138 S. Ct. at 2221 (emphasis added). And as the Court further explained "this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy." Id.

¶36 The State also cites to State v. Garcia-Salgado, 170 Wash.2d 176, 240 P.3d 153 (2010), as support for its argument that the subpoena here was the functional equivalent of a warrant. While in Garcia-Salgado, our Supreme Court held that "the warrant requirement of the Fourth Amendment and article I, section 7 may be satisfied by a court order[,]" 170 Wash.2d at 186, 240 P.3d 153, we disagree with the State that this ends our analysis. First, the United States Supreme Court established a clear mandate that in order to obtain cell phone records the government must get a warrant. Carpenter, 138 S. Ct. at 2221. And as Garcia-Salgado was decided eight years before Carpenter, our Supreme Court did not consider its analysis of judicial orders in light of Carpenter.

¶37 But more importantly, our Supreme Court in Garcia-Salgado did not find that a court order per se met the article I, section 7 authority of law requirement. Instead, the court found that "[a] court order may function as a warrant as long as it meets constitutional requirements." Garcia-Salgado, 170 Wash.2d at 186, 240 P.3d 153 (emphasis added). For a court order to sufficiently replace a warrant, the order

must be entered by a neutral and detached magistrate, must describe the place to be searched and items to be seized; and must be supported by probable cause based on oath or affirmation, and there must be a clear indication that the desired evidence will be found, the method of intrusion must be reasonable, and the intrusion must be performed in a reasonable manner.

Garcia-Salgado, 170 Wash.2d at 186, 240 P.3d 153.

¶38 The State did not meet this standard. The State failed to support its revised subpoena request with an updated affidavit of probable cause. Instead, the State simply attached its previous affidavits. Four of those six affidavits submitted included the specific details of, and argument about, Phillip's illegally obtained cell phone records. Moreover, this court held in Phillip that the two affidavits used to obtain the CSLI records failed to demonstrate probable cause. To be constitutionally valid, a warrant must not only be supported by probable cause but it must also specifically tie the facts known to the State to the specific evidence it seeks to obtain. See Garcia-Salgado, 170 Wash.2d at 186, 240 P.3d 153. The State made no effort to connect the facts known to the State to the need for Phillip's CSLI records.

¶39 The trial court then followed the State's recommendation and granted the requested subpoena. But the trial court's order also failed to include any particularized finding of what fact supported a conclusion that the State had met its probable cause burden for Phillip's cell phone records. When combined with the trial court's mistaken belief that Phillip had a reduced expectation of privacy in his CSLI records, its impossible, from this record, to determine whether the State had probable cause, compliant with the independent source doctrine, to obtain a warrant for Phillip's CSLI records.

¶40 We reverse, vacate the subpoena, and remand for further proceedings.

WE CONCUR:

Schindler, J.

Appelwick, C.J.

      The background facts are taken from this court's opinion in State v. Phillip, No. 72120-8-I, 195 Wash.App. 1051 (Wash. Ct. App. Aug. 29, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/721208.pdf

      Auburn police eliminated the California man as a potential suspect because his cell phone records revealed that at the time Frankel was murdered, the man was in the Sacramento, California area.

      State v. Thein, 138 Wash.2d 133, 977 P.2d 582 (1999).

      We concluded that the three additional warrants police obtained during their investigation of Phillip were validly based on evidence independent from the evidence collected through the two invalid warrants.

      The State's memorandum includes the following quote from our opinion in Phillip to argue that a warrant was unnecessary:
      Police obtained the cell phone records from AT & T on June 20. The facts in the affidavit amply demonstrate that Phillip was a person of interest under active investigation prior to that date. We conclude that based on the information gathered in their investigation prior to June 20, the police had probable cause to believe Phillip was involved in the crime and would have sought the additional warrants even without knowledge of [what the AT & T cell phone usage records showed],
      (Paraphrase in original memorandum) (quoting Phillip, slip op. at 16 ).
      We disagree with the State's interpretation of our decision. We specifically stated:
      The trial court did not err in admitting the evidence obtained from executing the warrant on Phillip's apartment and vehicle.
      Under the same analysis, the November 2010 warrant authorizing search of Phillip's DNA was also valid. The warrant affidavit incorporates the previous warrants and additionally states that the bloodstained towel recovered from the murder scene had yielded a partial DNA sample from an unknown male.5 Police did not have a known sample of Phillip's DNA to compare with the sample obtained from the crime scene.
      We conclude that the trial court did not err in denying Phillip's motion to suppress the evidence seized in executing the warrants for Phillip's apartment, motorcycle, email, cell phone, person, and DNA. But because the trial court erred in denying Phillip's motion to suppress his phone records and the cell phone records related to the number Phillip dialed on the night of the crime, we reverse and remand for further proceedings.
      Phillip, slip op. at 16-17 (emphasis added).
      Contrary to the State's representation to the trial court, our opinion only stated that the untainted evidence supported the warrants for Phillip's DNA, and to search his apartment, person, vehicle and cell phone. Our opinion did not state or imply that the untainted evidence supported a warrant for Phillip's CSLI records.

      While in Miles l, the Supreme Court concluded that a "search of personal banking records without a judicially issued warrant or subpoena ... violated article I, section 7 [,]" 160 Wash.2d at 252, 156 P.3d 864 (emphasis added), it did not consider the validity of a subpoena versus a warrant when the State attempted to invade an individual's reasonable expectation of privacy, especially in consideration of the U.S. Supreme Court's opinion in Carpenter, 138 S. Ct. at 2221.


source: Caselaw Access Project

author: Verellen, J.

license: Public Domain

text:
    STATE of Washington, Appellant, v. S.M.G., JR., d.o.b. XX/XX/XX, Respondent.
    No. 79039-1-I consolidated with No. 79135-4-I
    Court of Appeals of Washington, Division 1.
    FILED: July 1, 2019
    Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, James Morrissey Whisman, King County Prosecutor's Office, Ian Ith, King County Prosecuting Attorney's Office, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2385, Nielsen Broman Koch PLLC, Attorney at Law, Elizabeth Rania Rampersad, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.
    Nielsen Broman Koch PLLC, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122, Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, James Morrissey Whisman, King County Prosecutor's Office, Ian Ith, King County Prosecuting Attorney's Office, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2385, for Respondent.
    PUBLISHED OPINION
   Verellen, J.

¶1 The State challenges the juvenile court's calculation of S.M.G.'s criminal history. Specifically, the State contends the court erred in excluding S.M.G.'s pending deferred disposition. This case turns on the definition of criminal history contained in RCW 13.40.020(8)(b) of the Juvenile Justice Act (JJA). Because the plain meaning of section (8)(b) requires the court to exclude all deferred dispositions, including pending deferred dispositions, the court did not err when it excluded S.M.G.'s pending deferred disposition from his criminal history.

¶2 Therefore, we affirm.

FACTS

¶3 In March 2018, the State charged S.M.G. with unlawful possession of methamphetamine with intent to manufacture or deliver and one count of misdemeanor harassment. On September 17, 2018, S.M.G. pleaded guilty to the possession charge in exchange for the State dismissing the harassment charge.

¶4 At the time of imposing disposition, S.M.G. had a prior felony adjudication from 2016 and a pending deferred disposition from 2017. Over the State's objection, the juvenile court calculated S.M.G.'s criminal history as 1 based on the 2016 adjudication. The juvenile court declined the State's request to count the 2017 deferred disposition as criminal history. The juvenile court sentenced S.M.G. to a 15 to 36 week standard range commitment at the Juvenile Rehabilitation Administration. At the same hearing, the court also revoked the 2017 deferred disposition.

¶5 The State appeals.

ANALYSIS

¶6 The State contends the juvenile court miscalculated S.M.G.'s criminal history. This case turns exclusively on RCW 13.40.020(8). Statutory interpretation is a question of law we review de novo.

¶7 When interpreting a statute, our " 'objective is to determine the legislature's intent.' " The first step is to examine the plain meaning of a statute. To determine the plain meaning, we must look to "the text of the statutory provision in question, as well as 'the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.' "

¶8 "[I]f the meaning of a statute is plain on its face, we 'give effect to that plain meaning.' " But if "the statute is susceptible to more than one reasonable interpretation, it is ambiguous." If a statute is ambiguous, we may look to " 'statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent.' "

¶9 Under the JJA, in certain cases, "[t]he juvenile court may ... continue the case for disposition for a period not to exceed one year from the date the juvenile is found guilty." Any juvenile who agrees to a deferral of disposition shall:

(a) Stipulate to the admissibility of the facts contained in the written police report;
(b) Acknowledge that the report will be entered and used to support a finding of guilt and to impose a disposition if the juvenile fails to comply with terms of supervision;
(c) Waive the following rights to: (i) A speedy disposition; and (ii) call and confront witnesses; and
(d) Acknowledge the direct consequences of being found guilty and the direct consequences that will happen if an order of disposition is entered.[ ]

¶10 "Following the stipulation, acknowledgment, waiver, and entry of a finding or plea of guilt, the court shall defer entry of an order of disposition of the juvenile." During the deferral period, the juvenile "shall be placed under community supervision" and "[t]he court may impose any conditions of supervision that it deems appropriate." At the conclusion of the deferral period, "[i]f the court finds the juvenile is entitled to dismissal of the deferred disposition ... the juvenile's conviction shall be vacated and the court shall dismiss the case with prejudice."

¶11 A deferred disposition may affect the court's calculation of the juvenile's criminal history at sentencing for a future offense. Generally, under the JJA, "[t]he standard range disposition for each offense is determined by ... the prior adjudications and ... the current offense category." To calculate the juvenile's criminal history, the juvenile court is directed to count "[e]ach prior felony adjudication ... as one point" and "[e]ach prior violation, misdemeanor, and gross misdemeanor adjudication ... as 1/4 point."

"Criminal history" includes all criminal complaints against the respondent for which, prior to the commission of a current offense:
(a) The allegations were found correct by a court. If a respondent is convicted of two or more charges arising out of the same course of conduct, only the highest charge from among these shall count as an offense for the purposes of this chapter; or
(b) The criminal complaint was diverted by a prosecutor pursuant to the provisions of this chapter on agreement of the respondent and after an advisement to the respondent that the criminal complaint would be considered as part of the respondent's criminal history. A successfully completed deferred adjudication that was entered before July 1, 1998, or a deferred disposition shall not be considered part of the respondent's criminal history.[ ]

¶12 The State contends, under the final sentence of section (8)(b), the juvenile court is required to exclude only successfully completed deferred dispositions from a juvenile's criminal history. S.M.G. argues the juvenile court is required to exclude all deferred dispositions.

¶13 When analyzing the plain meaning of a statute, we may rely on the "traditional rules of grammar." In the final sentence of RCW 13.40.020(8)(b), the legislature used the singular article, "a," in front of "successfully completed deferred adjudication" and again in front of "deferred disposition."

Because articles have a demonstrative value, the meaning of a phrase may shift depending on the article used. For example, an officer and gentleman escorted Princess Grace to her car suggests (though ambiguously) that the escort was one man with two descriptive characteristics. But an officer and a friend escorted Princess Grace to her car suggests that two people acted as escorts.[ ]

¶14 Here, the legislature's use of the singular article before each direct object indicates deferred adjudications and deferred dispositions are distinct concepts with different consequences.

¶15 The placement of the phrase "successfully completed" further illustrates the legislature's intent to treat deferred dispositions differently than deferred adjudications. "Successfully completed" is an adverbial phrase. Generally, adverbs, or adverbial phrases, should "be placed as near as possible to the word it is intended to modify." "Successfully completed" clearly modifies the immediately following direct object, "deferred adjudication." But "successfully completed" does not modify "deferred disposition."

¶16 Under the State's analysis, we would be required to either delete the second "a" from the sentence, e.g., "A successfully completed deferred adjudication or a deferred disposition," or add a second "successfully completed" into the sentence, e.g., "A successfully completed deferred adjudication or successfully completed deferred disposition." We decline to rewrite the sentence drafted by the legislature. Under the traditional rules of grammar, the plain language of the final sentence of section (8)(b) requires the juvenile court to exclude all pending deferred dispositions from a juvenile's criminal history.

¶17 The State contends this interpretation contradicts the language in RCW 13.40.020(8)(a) and RCW 13.40.127. Although we do not apply the rules of grammar "if other factors, such as context and language in related statutes, indicate contrary legislative intent or if applying the rule would result in an absurd or nonsensical interpretation," the surrounding statutes do not reveal a contradictory legislative intent.

¶18 When calculating a juvenile's criminal history, RCW 13.40.020(8)(a) directs the juvenile court to include "all criminal complaints against the respondent for which, prior to the commission of a current offense ... [t]he allegations were found correct by a court." The State argues section (8)(a) requires the juvenile court to include pending deferred dispositions in a juvenile's criminal history. But " 'we interpret a statute to give effect to all language, so as to render no portion meaningless or superfluous.' " The State's rationale is that a pending deferred disposition is an allegation found correct by a court because the juvenile must plead guilty before the court may grant a deferred disposition. But this rationale conflicts with the phrase in the final sentence of section (8)(b), which excepts "a deferred disposition" from a juvenile's criminal history.

¶19 Although a pending deferred disposition technically falls under section (8)(a) because the juvenile must plead guilty before the court may grant a deferred disposition, section (8)(b) expressly excepts deferred dispositions from a juvenile's criminal history. Section (8)(b) includes guilty verdicts following a bench trial and guilty pleas entered outside the context of a deferred disposition.

It is not absurd for the legislature to narrowly except deferred dispositions from section (8)(a). And the State's interpretation of section (8)(a) would render section (8)(b) superfluous as to deferred dispositions.

¶20 RCW 13.40.127(9)(c) provides, in part, "[a] deferred disposition shall remain a conviction unless the case is dismissed and the conviction is vacated pursuant to (b) of this subsection or sealed pursuant to RCW 13.50.260." The State argues the legislature's general categorization of deferred dispositions as convictions demonstrates the legislature's intent to include pending deferred dispositions in a juvenile's criminal history. But the legislature's reference to deferred dispositions as convictions does not necessarily require the court to consider pending deferred dispositions in a juvenile's criminal history.

¶21 The State's argument appears to assume that a new charge during the supervision period for a pending deferred disposition will automatically result in revocation of the pending deferred disposition. But the court has discretion, when a juvenile violates the conditions of a pending deferred disposition, to impose sanctions without revocation. RCW 13.40.127(7)(b) provides:

If the court finds the juvenile failed to comply with the terms of the deferred disposition, the court may:
(i) Revoke the deferred disposition and enter an order of disposition; or
(ii) Impose sanctions for the violation.[ ]

¶22 If the court elects to impose sanctions, rather than revoking the deferred disposition, it would be inconsistent with the purpose of the deferred disposition statutory scheme to automatically include a deferred disposition in the juvenile's criminal history.

¶23 The State's argument also ignores the purpose of the JJA.

Although the JJA seeks a balance between the poles of rehabilitation and retribution, the purposes of accountability and punishment are tempered by and at times must give way to the purposes of responding to the needs of the juvenile. Moreover, unlike the Sentencing Reform Act of 1981 applicable in adult criminal proceedings, juvenile restitution is remedial, not punitive.[ ]

¶24 This remedial policy is reflected in RCW 13.40.127(2), which provides, "[i]n all cases where the juvenile is eligible for a deferred disposition," juvenile courts are required to apply "a strong presumption that the deferred disposition will be granted." Consistent with this remedial policy, it is not absurd for the legislature to exclude pending deferred dispositions from a juvenile's criminal history. The juvenile is held accountable because they must plead guilty before disposition will be deferred. At the same time, this accountability is balanced by exclusion of a pending deferred disposition from the juvenile's criminal history.

¶25 Here, at the same hearing, after excluding the pending deferred disposition from S.M.G.'s criminal history for the disposition on the possession offense, the trial court revoked the pending 2017 deferred disposition. The State argues it would be odd for the calculation of a juvenile's criminal history in these circumstances to depend on the chronology of the disposition on the possession offense and revocation of the pending deferred disposition, especially when they are part of the same hearing. But it was the prosecutor who proposed the order of events.

¶26 If the legislature wanted the juvenile court to exclude only successfully completed deferred dispositions from criminal history, the legislature could have included "successfully completed" immediately before "deferred disposition" in the final sentence of RCW 13.40.020(8)(b). Absent such language, the juvenile court is bound to the plain language of the section. And under the plain language, RCW 13.40.020(8) requires the juvenile court to exclude all pending deferred dispositions from a juvenile's criminal history.

¶27 We conclude the juvenile court correctly calculated S.M.G.'s offender score. Therefore, we affirm.

WE CONCUR:

Smith, J.

Andrus, J.

      Clerk's Papers (CP) at 133-34.

      CP at 125-36.

      The court sentenced S.M.G. on September 17, 2018. On October 5, 2018, the court entered an order amending the September 2018 disposition order to reflect the State's objection to the court's calculation of S.M.G.'s offender score. CP at 140. The State appeals from the October 2018 order.

      CP at 137.

      Report of Proceedings (RP) (Sept. 17, 2018) at 44.

      CP at 137-38. If the court had calculated S.M.G.'s criminal history at 2 instead of 1, the standard range would have been 52 to 65 weeks.

      CP at 135.

      State v. Ervin, 169 Wash.2d 815, 820, 239 P.3d 354 (2010).

      Id. (quoting State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005) ).

      Id. (quoting Jacobs, 154 Wash.2d at 600, 115 P.3d 281 ).

      Id. (internal quotation marks omitted) (quoting Jacobs, 154 Wash.2d at 600, 115 P.3d 281 ).

      Id. (internal quotation marks omitted) (quoting Christensen v. Ellsworth, 162 Wash.2d 365, 373, 173 P.3d 228 (2007) ).

      Id. (quoting Christensen, 162 Wash.2d at 373, 173 P.3d 228 ).

      RCW 13.40.127(2).

      RCW 13.40.127(3).

      RCW 13.40.127(4) (emphasis added).

      RCW 13.40.127(5).

      RCW 13.40.127(9)(b) (emphasis added).

      RCW 13.40.0357(3) ("Juvenile offender sentencing standards").

      RCW 13.40.0357(2) ("Juvenile offender sentencing standards").

      RCW 13.40.020(8) (emphasis added). In 1997, the legislature amended the JJA to replace deferred adjudications with deferred dispositions. Under former RCW 13.40.125 (1994), the juvenile court had the authority "to continue the case for adjudication for a period not to exceed one year." Unlike a deferred disposition, prior to granting a deferred adjudication, the juvenile court did not find the juvenile guilty.

      State v. Bunker, 169 Wash.2d 571, 578, 238 P.3d 487 (2010).

      The Chicago Manual of Style § 5.76, at 250 (University of Chicago Press, 17th ed. 2017).

      Id. § 5.167, at 277.

      See State v. Delgado, 148 Wash.2d 723, 727, 63 P.3d 792 (2003) ("We cannot add words or clauses to an unambiguous statute when the legislature has chosen not to include that language.").

      Bunker, 169 Wash.2d at 578, 238 P.3d 487.

      Ervin, 169 Wash.2d at 823, 239 P.3d 354 (quoting Rivard v. State, 168 Wash.2d 775, 783, 231 P.3d 186 (2010) ).

      (Emphasis added.)

      (Emphasis added.)

      State v. J.A., 105 Wash. App. 879, 886, 20 P.3d 487 (2001) (emphasis added).

      RP (Sept. 17, 2018) at 2 ("We are here for several motions as well as the plea and disposition. I would propose that we do the scoring motion first.").

      Because the meaning of section (8)(b) is plain on its face, we give effect to that meaning. We decline to consider the legislative history submitted by the State.


author: Dwyer, J.

text:
    STATE of Washington, Respondent, v. Earl Ray PHILLIPS, Appellant.
    No. 77562-6-I
    Court of Appeals of Washington, Division 1.
    FILED: July 1, 2019
    Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
    Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, Donna Lynn Wise, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
    PUBLISHED OPINION
   Dwyer, J.

¶1 Earl Ray Phillips was charged with robbery in the second degree and convicted after a jury trial. On appeal, he avers that the information charging him with the offense was constitutionally defective in that it did not include all of the elements of the offense of robbery in the second degree. He also perceives error in the absence of a jury instruction on the defense of good faith claim of title. Finally, he asserts that he received ineffective assistance of counsel because his attorney did not propose a good faith claim of title instruction. Finding no error, we affirm.

I

¶2 Clifford Van Horne, night manager at a Red Apple Market in Seattle, saw Earl Phillips enter the store, select a case of 18 beer bottles from the refrigerator, and walk past the store's checkout counter without paying for the item. Van Horne followed Phillips past the counter. Accosting Phillips as he was leaving the building, Van Horne grabbed the case of beer and told Phillips to return the item. Phillips attempted to strike Van Horne, but Van Horne ducked and was not hit.

¶3 Oscar Cerrillo, a store cashier on duty at the time, also saw Phillips attempt to leave without paying for the beer. Cerrillo followed Van Horne and attempted to assist him in the physical struggle with Phillips. Phillips, for his part, pushed back and refused to surrender the beer.

¶4 Phillips insisted that he had a receipt for the item, but both Van Horne and Cerrillo, having seen him bypass the checkout counter without paying for it, did not believe him. Both employees told Phillips that he would be free to go upon relinquishment of the beer, but Phillips did not yield. As this struggle was ongoing, the case of beer fell to the ground, breaking some of the glass bottles within.

¶5 At this point, Troy Jenks, a regular customer at the Red Apple, drove into the store's parking lot and saw the two employees scuffling with Phillips. Jenks was able to restrain Phillips and held him on the ground while Van Horne left to telephone the police. While he was being restrained by Jenks, Phillips bit Jenks's bicep with sufficient force to puncture the skin. Jenks continued to restrain Phillips until the police arrived on the scene. Upon arrival, Seattle Police Officer Nathan Bertsch searched Phillips and did not find a receipt for purchase of the beer.

¶6 Phillips was charged with robbery in the second degree and assault in the third degree. The information charging Phillips with robbery in the second degree stated:

That the defendant Earl Ray Phillips in King County, Washington, on or about February 8, 2017, did unlawfully and with intent to commit theft take personal property of another, to-wit: merchandise, from the person and in the presence of Clifford Van Horne and Oscar [Cerrillo], who had an ownership, representative, or possessory interest in that property, against his will, by the use or threatened use of immediate force, violence and fear of injury to such person or his property and to the person or property of another;
Contrary to RCW 9A.56.210 and 9A.56.190, and against the peace and dignity of the State of Washington.

¶7 At the close of the trial, the jury found Phillips guilty on both counts. However, prior to sentencing, Phillips moved for a new trial based on his trial counsel's failure to propose a jury instruction on self-defense. The trial court granted the motion only as to Phillips's conviction for assault in the third degree. The State chose not to retry the assault charge and it was dismissed. The trial court imposed a standard range sentence of 70 months of incarceration on the robbery conviction.

II

¶8 Phillips first contends that the information charging him with robbery in the second degree was constitutionally deficient. This is so, he avers, because it did not specifically state that he had used force or fear to obtain or retain possession of the property at issue. We disagree with his contention that this is an essential element of robbery such that its omission amounted to constitutional error.

¶9 Pursuant to both the Constitution of the United States and the Washington Constitution, an accused has a right to be informed of the criminal charges against him or her to enable adequate preparation of a defense. U.S. CONST . amend. VI ; WASH. CONST . art. I, § 22 (amend. X). To ensure the protection of this right, a defendant must be provided a charging document setting forth every material element of the charge or charges against the defendant, along with all essential supporting facts. State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000).

¶10 "The standard of review for evaluating the sufficiency of a charging document is determined by the time at which the motion challenging its sufficiency is made." State v. Taylor, 140 Wash.2d 229, 237, 996 P.2d 571 (2000). When a defendant challenges the sufficiency of the charging document before a verdict is rendered, the charging language must be strictly construed. Taylor, 140 Wash.2d at 237, 996 P.2d 571. If the defendant challenges the sufficiency after the verdict is rendered, the charging document must be construed liberally in favor of validity. Taylor, 140 Wash.2d at 237, 996 P.2d 571.

¶11 A challenge to the sufficiency of a charging document involves a question of constitutional due process and may be raised for the first time on appeal. See State v. Leach, 113 Wash.2d 679, 691, 782 P.2d 552 (1989) ("An appellant may at any time claim an error which was not raised in the trial court if the error affects a constitutional right."); RAP 2.5(a)(3). When an appellant raises such a challenge for the first time on appeal, as here, we employ the two-prong test set forth in State v. Kjorsvik, 117 Wash.2d 93, 106, 812 P.2d 86 (1991) ("The standard of review we here adopt will require at least some language in the information giving notice of the allegedly missing element(s) and if the language is vague, an inquiry may be required into whether there was actual prejudice to the defendant.").

¶12 To satisfy the first prong, we must liberally construe the language of the charging document to determine if it contains the necessary elements of the crime charged. McCarty, 140 Wash.2d at 425, 998 P.2d 296. If the charging document can be construed as containing the required elements, even if only in vague terms, we must then determine if the language resulted in any actual prejudice to the defendant (the second prong of the test). McCarty, 140 Wash.2d at 425, 998 P.2d 296. However, if the necessary elements cannot be found in or even fairly inferred from the charging document, we presume prejudice without reaching the second prong of the test. McCarty, 140 Wash.2d at 425, 998 P.2d 296. The remedy for an insufficient charging document is reversal and dismissal of the charges without prejudice to the State's ability to refile. State v. Quismundo, 164 Wash.2d 499, 504, 192 P.3d 342 (2008).

¶13 "A person is guilty of robbery in the second degree if he or she commits robbery." RCW 9A.56.210(1). The elements of robbery are set forth in the definitional statute, RCW 9A.56.190 :

A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.

(Emphasis added.)

¶14 Phillips contends that the information in his case did not properly set forth all of the essential elements of the crime of robbery in the second degree, as it did not recite the second sentence of RCW 9A.56.190 (emphasized above). In response, the State asserts that this sentence is merely definitional and exists only to explain the "transactional" understanding of how robbery occurs, and not to broaden the elements of robbery set forth in the first sentence. Given that Phillips did not raise this issue in the trial court, we apply the standard of review set forth in Kjorsvik, 117 Wash.2d at 106, 812 P.2d 86. Thus, we must first determine whether the language of the amended information included all of the essential elements of the crime of robbery in the second degree. This requires us to explicate the essential elements of that crime.

¶15 Washington law incorporates a "transactional" view of the crime of robbery, meaning that a robbery need not involve the use of force in the initial taking of property but, rather, may involve the use of force to retain property already taken or to impede the rightful owner's efforts to retrieve it. State v. Handburgh, 119 Wash.2d 284, 293, 830 P.2d 641 (1992). Under this transactional view, a taking of property is "ongoing until the assailant has effected an escape." State v. Truong, 168 Wash. App. 529, 535-36, 277 P.3d 74 (2012).

¶16 A Supreme Court decision, State v. Johnson, 155 Wash.2d 609, 121 P.3d 91 (2005), illustrates the implications of this transactional view. There, a man who used force to effect an escape only after abandoning stolen property was held not to have committed robbery. The court explained:

The trial court's unchallenged findings of fact state that Johnson was trying to escape when he punched the security guard in the nose. And the trial court concluded that even though Johnson did not use force to obtain or retain the property, he was guilty of the crime because the transactional view of robbery includes force used during an escape. But as noted above, the force must relate to the taking or retention of the property, either as force used directly in the taking or retention or as force used to prevent or overcome resistance "to the taking." Johnson was not attempting to retain the property when he punched the guard but was attempting to escape after abandoning it.

Johnson, 155 Wash.2d at 611, 121 P.3d 91.

¶17 This decision makes clear the relationship between the first and second sentences of RCW 9A.56.190. The first sentence, which sets forth the statutory elements of robbery, includes the element of "the use or threatened use of immediate force, violence, or fear of injury." The second sentence defines "force," and "fear," as used in sentence one. "Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial." (Emphasis added.) It also defines to "obtain" or "retain" as a form of "take," as used in sentence one.

¶18 Similarly, the third sentence, which begins, "Such taking ..." is plainly referencing and defining the word "takes," as used in sentence one. It is definitional and does not broaden the statutory elements of robbery.

¶19 Our view that the statutory elements of robbery are set forth in the first sentence while sentences two and three are mere definitional statements is supported by Supreme Court precedent. In Handburgh, the court discussed the interplay between sentences one and two, concluding that "a forceful retention of stolen property in the owner's presence is the type of 'taking' contemplated by the robbery statute." 119 Wash.2d at 290, 830 P.2d 641. Thus, a "retention" is a type of "taking." A "retention" is not different from a "taking." A "retention" is included within a "taking." A "retention" is not in addition to, or an alternative to, a "taking."

¶20 Seven years ago, we were called on to resolve a sufficiency of the evidence challenge to a conviction of robbery in the first degree. Truong, 168 Wash. App. 529, 277 P.3d 74. Resolving the challenge required us to set forth the essential elements of the offense. Truong, 168 Wash. App. at 534, 277 P.3d 74 ("Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." (emphasis added)). We did so, delineating the essential elements of robbery as "(1) the unlawful taking (2) of personal property (3) from the person or presence of another (4) against his will and (5) by the use or threatened use of immediate force." Truong, 168 Wash. App. at 537, 277 P.3d 74 (citing RCW 9A.56.190 ; State v. Handburgh, 61 Wash. App. 763, 765, 812 P.2d 131 (1991), rev'd on other grounds, 119 Wash.2d 284, 830 P.2d 641 (1992) ).

¶21 Truong, however, citing to Johnson, maintained that possession was an essential element of the crime of robbery and that proof of this element was required to support a conviction for that crime. Truong, 168 Wash. App. at 536, 277 P.3d 74. Truong had used force to take property, but had immediately passed that property on to an accomplice. She contended that, pursuant to the second sentence of RCW 9A.56.190, an individual's act could not meet the force element of robbery if that individual did not have actual or constructive possession of the property. Truong, 168 Wash. App. at 535, 277 P.3d 74.

¶22 We first noted that no case authority set forth possession as an essential element of robbery. Truong, 168 Wash. App. at 537, 277 P.3d 74. Next, applying the same transactional analysis as that employed in Johnson, we held that Truong's use of force to prevent the victim from retrieving her property, although the property was no longer in Truong's possession, satisfied the force element of robbery. Truong, 168 Wash. App. at 537-38, 277 P.3d 74. Thus, the evidence was sufficient to support a verdict that Truong was guilty of robbery in the first degree. Truong, 168 Wash. App. at 542, 277 P.3d 74.

¶23 Several months later, a decision of Division Two also posited that the essential statutory elements of robbery were contained within the first sentence of RCW 9A.56.190 and thus rejected the argument that omission of the second sentence of the statute in an information rendered it deficient. State v. Witherspoon, 171 Wash. App. 271, 294-95, 286 P.3d 996 (2012) (Quinn-Brintnall, J., lead opinion), 171 Wash. App. at 315, 286 P.3d 996 (Hunt, J., concurring and dissenting in part), aff'd, 180 Wash.2d 875, 329 P.3d 888 (2014).

¶24 Phillips's present assertion, that Truong and Witherspoon were wrongly decided, relies on a recent Division Three opinion. Indeed, in that opinion, Division Three identifies the use of force to obtain or retain possession of property as a statutory element of robbery. State v. Todd, 200 Wash. App. 879, 885-86, 403 P.3d 867 (2017). The Todd opinion is best understood in light of its assertion that the Supreme Court has identified force or fear being used to obtain or retain possession of property as an element of robbery. See 200 Wash. App. at 885-86, 403 P.3d 867. In fact, the Supreme Court opinion to which the Todd opinion cited for this proposition, State v. Allen, 159 Wash.2d 1, 147 P.3d 581 (2006), did not so hold.

¶25 Allen involved a sufficiency of the evidence challenge in a prosecution for aggravated first degree murder with robbery in the first or second degree as the aggravator. The opinion language cited to by the Todd court was this:

Thus, to establish the aggravating factor of robbery in this case, the State had to prove beyond a reasonable doubt that Allen: (1) took the cashbox from his mother's person or in her presence (2) against her will and (3) used force or fear to take the cashbox or to prevent his mother from resisting the taking.

Allen, 159 Wash.2d at 9, 147 P.3d 581 (cited by Todd, 200 Wash. App. at 885-86, 403 P.3d 867 ).

¶26 As the quotation clarifies, the Allen court was not engaged in announcing a new statutory element of robbery. Rather, it was discussing what the State-in that case, as the case had been tried-had to establish to prove guilt of the charge. There are no statutory elements of robbery requiring proof of "cashboxes" or "mothers." Instead, the court was referencing the State's theory of the case at hand-and the court was evaluating whether the evidence adduced actually proved that theory. The Allen opinion did not purport to add to the statutory elements of robbery.

¶27 In addition to Todd, Phillips relies on an older Division Two case, State v. Phillips, 98 Wash. App. 936, 991 P.2d 1195 (2000). Therein, the court listed the statutory elements of robbery as " '(1) a taking of personal property; (2) from the person or in one's presence; (3) by the use or threatened use of force, or violence, or fear of injury; (4) such force or fear being used to obtain or retain the property.' " Phillips, 98 Wash. App. at 943, 991 P.2d 1195 (quoting State v. Strong, 56 Wash. App. 715, 719, 785 P.2d 464 (1990) ). Strong, a still-older Division Two opinion, was the sole authority relied on by the Phillips court for this proposition. However, the statutory elements of robbery were not at issue in Strong; the issue before the Strong court was, instead, whether the information was required to allege the common law robbery element of intent to deprive the victim of the property. 56 Wash. App. at 716, 785 P.2d 464.

¶28 In fact, in both Phillips and Strong, charging documents omitting the second sentence of RCW 9A.56.190 were held to be constitutionally sufficient and inclusive of all of the statutory elements of the crime. Phillips, 98 Wash. App. at 939, 943, 991 P.2d 1195 ; Strong, 56 Wash. App. at 716, 719, 785 P.2d 464. Furthermore, neither the majority, concurring or dissenting opinions in Witherspoon, a more recent Division Two decision, cite to either of these cases. Division Two plainly does not view them as controlling on the issue presented; neither do we.

¶29 In light of all of this, we adhere to our holding in Truong as to the statutory elements of robbery. Thus, given that the information herein satisfied the first prong of the Kjorsvik standard, Phillips must show actual prejudice flowing from any vagueness in the charging document to obtain relief. He has neither shown, nor even alleged, such prejudice. The information charging Phillips with robbery in the second degree was constitutionally sufficient.

III

¶30 Phillips next asserts, also for the first time on appeal, that he acted with a good faith claim of title to the case of beer. Accordingly, Phillips argues, the trial court should have instructed the jury on good faith claim of title as a defense to the charge of robbery in the second degree, notwithstanding that neither the State nor defense counsel requested such an instruction. We disagree.

A

¶31 At trial, Phillips did not request that the jury be instructed on the defense of good faith claim of title. Our inquiry, then, is whether the trial court was required to, sua sponte, interject such an instruction into the case. We conclude that the trial court had no such duty.

¶32 Coinciding with a defendant's right to present a full defense, and to have the jury be fully instructed on the defense theory of the case, is a defendant's right to control that defense. State v. Jones, 99 Wash.2d 735, 740-41, 664 P.2d 1216 (1983) ; State v. McSorley, 128 Wash. App. 598, 604, 116 P.3d 431 (2005). Accordingly, courts may not force a defense on a criminal defendant when the defendant neither advances nor evidences a desire to advance such a defense. Jones, 99 Wash.2d at 743, 664 P.2d 1216 ; McSorley, 128 Wash. App. at 604, 116 P.3d 431 (neither State nor trial court may compel defendant to raise or rely on an affirmative defense not advanced by defendant). In Jones, our Supreme Court, in reviewing a trial court's imposition of a plea of not guilty by reason of insanity on an unwilling defendant, stated:

A defendant who is not guilty because of insanity is no more blameless than a defendant who has a valid alibi defense or who acted in legitimate self-defense. Yet courts do not impose these other defenses on unwilling defendants.

99 Wash.2d at 743, 664 P.2d 1216.

¶33 Phillips was entitled to defend himself against the offense with which he was charged without utilizing the defense of a good faith claim of title as to that charge. The record indicates that Phillips's trial counsel sought acquittal on the robbery charge by maintaining that no robbery occurred. The jury was instructed that, in order to convict Phillips of robbery in the second degree, the State needed to prove beyond a reasonable doubt that Phillips unlawfully took personal property from the person of or in the presence of another. Had the jurors accepted Phillips's argument and evidence, including his contention that he had paid for the beer, an acquittal on the charge of robbery would have followed.

¶34 The rule for which Phillips advocates would contravene a criminal defendant's right to control his or her own defense strategy. A trial court interposing, sua sponte, jury instructions related to a defense that the defendant neither advanced nor tailored the defense strategy to address, after the defense rests its case, might prejudice the defendant. The law does not envision such trial court behavior but, rather, provides that a defendant has a right to have the jury fully instructed on the defense theory of the case, State v. Staley, 123 Wash.2d 794, 803, 872 P.2d 502 (1994), which is effectuated by defense counsel proposing the desired instructions to the court. See CrR 6.15. Courts may not impose unwanted defenses on unwilling defendants. Jones, 99 Wash.2d at 743, 664 P.2d 1216.

¶35 The jury instructions given by the trial court met the applicable standard. They allowed Phillips to argue his theory of the case and properly informed the jury of the applicable law. State v. Barnes, 153 Wash.2d 378, 382, 103 P.3d 1219 (2005). There was no requirement that the court interpose an additional defense theory via jury instruction sua sponte.

B

¶36 As to the merits of Phillips's contention, they are absent. A defendant is not entitled to an instruction which inaccurately states the law or for which there is no evidentiary support. State v. Crittenden, 146 Wash. App. 361, 369, 189 P.3d 849 (2008). A trial court errs by giving an instruction that is not supported by the evidence. State v. Hoffman, 116 Wash.2d 51, 110-11, 804 P.2d 577 (1991). Here, the trial evidence did not support issuance of the referenced instruction.

Intent to steal is an essential element of the crime of robbery. State v. Hicks, 102 Wn.2d 182, 683 P.2d 186 (1984) ; State v. Steele, 150 Wash. 466, 273 P. 742 (1929). Therefore, a person cannot be guilty of robbery in forcibly taking property from another if he does so under the good faith belief that he is the owner, or entitled to possession of the property. This good faith belief negates the requisite intent to steal. State v. Steele, supra.
However, the defense of good faith claim of title is available only where self-help is used to recover specific property. State v. Brown, 36 Wn. App. 549, 676 P.2d 525, review denied, 101 Wn.2d 1024 (1984). Thus, where a person uses force to collect a debt with no claim of ownership in the specific property acquired, the requisite intent to steal is present and the defense is unavailable. State v. Larsen, 23 Wn. App. 218, 596 P.2d 1089 (1979) ; State v. Brown, supra.

State v. Self, 42 Wash. App. 654, 657, 713 P.2d 142 (1986).

¶37 Here, there was no evidence that Phillips had an ownership interest in any particular case of beer prior to going into the store. As discussed in Self:

Here, the record is totally devoid of any evidence that Self or Lewis [Self's cohort] had a claim of title to the specific cash, wallet, keys, credit cards and other property that were taken by force. ... [T]he defense is not available when a debt is unliquidated.

42 Wash. App. at 657, 713 P.2d 142.

¶38 Phillips did not claim that he had earlier paid for that exact case of beer and simply went to the Red Apple to obtain it. To the contrary, his present assertion of a good faith claim of title defense is that he first selected the case of beer, then paid for it at a checkout stand, and then was accosted as he was leaving the store. But this scenario, if accepted by the jury, establishes a defense to the robbery. It does not establish the defense of good faith claim of title. If the jury believed that Phillips paid for the beer after obtaining it then there would be no theft of the beer and, hence, no robbery. The good faith claim of title defense would be surplusage-simply unnecessary. However, if the jury did not believe that Phillips paid for the beer there would be a theft-and no good faith claim of title defense. The instruction was unwarranted.

¶39 Affirmed.

WE CONCUR:

Chun, J.

Verellen, J.

      Phillips's motion to supplement the record with certain proposed jury instructions is granted.

      There is also a nonstatutory element of robbery, intent to commit theft, that is not at issue herein. State v. Allen, 159 Wash.2d 1, 9 n.3, 147 P.3d 581 (2006).

      The decision was rendered by a split panel. Judge Hunt concurred in the portion of the lead opinion discussed herein, while Judge Armstrong, also on the panel, agreed that the statutory elements of robbery were the same as those discussed in Truong. Witherspoon, 171 Wash. App. at 315, 320, 286 P.3d 996.

      The Todd court acknowledged that its holding was at variance with our decision in Truong and Division Two's decision in State v. Ralph, 175 Wash. App. 814, 308 P.3d 729 (2013). Todd, 200 Wash. App. at 885, 403 P.3d 867.

      In the alternative to his argument that the trial court abused its discretion by not, sua sponte, instructing the jury on the good faith claim of title defense, Phillips avers that he received ineffective assistance of counsel because his attorney did not request such an instruction. This assertion, too, is without merit.
      In order to establish ineffective assistance of counsel, the defendant must establish both that his attorney's performance was deficient and that this deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ; State v. Weaville, 162 Wash. App. 801, 822-23, 256 P.3d 426 (2011). "Where the claim of ineffective assistance is based upon counsel's failure to request a particular jury instruction, the defendant must show he was entitled to the instruction, counsel's performance was deficient in failing to request it, and the failure to request the instruction caused prejudice." State v. Thompson, 169 Wash. App. 436, 495, 290 P.3d 996 (2012) (citing State v. Johnston, 143 Wash. App. 1, 21, 177 P.3d 1127 (2007) ). There is a strong presumption that defense counsel's performance was reasonable. Weaville, 162 Wash. App. at 823, 256 P.3d 426.
      As Phillips has not shown an entitlement to the instruction, the premise for his averment-that his attorney's performance was deficient-is not established. Thompson, 169 Wash. App. at 495, 290 P.3d 996. The claim fails.