source: Caselaw Access Project

author: Siddoway, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. Shalin E. ALLTUS, Appellant.
    No. 34677-3-III
    Court of Appeals of Washington, Division 3.
    FILED AUGUST 22, 2019
    Kristina M. Nichols, Jill Shumaker Reuter, Eastern Washington Appellate Law, P.O. Box 8302, Spokane, WA, 99203-0302, for Appellant.
    Arian Noma, Okanogan County Prosecuting Attorney, P.O. Box 1130, Okanogan, WA, 98840-1130, for Respondent.
    OPINION PUBLISHED IN PART
   Siddoway, J.

¶1 Shalin Alltus appeals her convictions and sentence for the 2014 premeditated murder of her uncle and related crimes, committed when she was 16 years old. We affirm the convictions but in the published portion of the opinion hold that the trial court abused its discretion when it denied Ms. Alltus's request to bifurcate her sentencing, order a presentence report, and afford her lawyers sufficient time to present evidence of mitigating circumstances related to her youth. We remand with directions to order a presentence report and conduct a new sentencing hearing.

BACKGROUND FACTS

¶2 On October 5, 2014, Patrick Alltus was found dead in his Riverside, Washington, home. He was found wrapped in blankets with a plastic bag over his head. He had gunshot wounds and a blunt force injury to his forehead. A bullet had passed through his right wrist and re-entered his right bicep. From the angle of the wounds, his arm had to be bent at the elbow at the time he was shot. He had been shot in the face with a shotgun, with the pellets and wadding entering his jaw, breaking teeth, lacerating the left internal carotid artery and jugular vein, and striking his vertebrae.

¶3 The cause of death was determined to be bleeding out, probably within 30 minutes of the shotgun blast. The bullet that struck him in the wrist and bicep was consistent with a .22 caliber rifle and the pellets and wadding in his face were consistent with a .410 shotgun.

¶4 The last time anyone had heard from Mr. Alltus was late on September 30, 2014, when his girlfriend had received a text message. Although Mr. Alltus's 16-year-old niece Shalin Alltus and another teen, Parker Bachtold, had been living with Mr. Alltus, no one else was on the property when his body was found. One of Patrick Alltus's pickup trucks was missing. Law enforcement issued a statewide alert for the missing truck and listed Ms. Alltus and Mr. Bachtold as potential suspects.

¶5 On October 6, 2014, Ms. Alltus and Mr. Bachtold were arrested at a motel in Oregon, where Mr. Bachtold's father and stepmother had been staying. Mr. Alltus's missing truck was located at the motel and his .22 rifle and .410 shotgun were found in Mr. Bachtold's parents' motel room.

¶6 Mr. Bachtold and Ms. Alltus were both questioned by police. Although both originally denied any knowledge of Patrick Alltus's death, Mr. Bachtold eventually admitted to his role in the shooting.

¶7 According to Mr. Bachtold, he was sleeping in a bedroom on the night Mr. Alltus was shot. Around midnight, he was awakened by a gunshot. He picked up the .410 shotgun that was in the room, loaded it, and stepped into the hallway. Looking down the hallway, Mr. Bachtold saw Ms. Alltus in the living room, behind a couch. Patrick Alltus's .22 rifle was on the ground. Mr. Alltus was coming around the side of the couch, angrily saying something to the effect, "Fuck," "God damn it," "you shot me." 2 Report of Proceedings (2 RP) at 345. There was blood on his head and blood running down his hand. As Mr. Alltus approached Ms. Alltus, Mr. Bachtold shot him in the head with the .410 shotgun.

¶8 After shooting Mr. Alltus, Mr. Bachtold claims he covered his body with a blanket and Ms. Alltus placed a plastic bag over his head. Ms. Alltus and Mr. Bachtold then grabbed a few items from the home, including the shotgun and rifle, and fled in Mr. Alltus's truck. They drove to Curtin, Oregon, where Mr. Bachtold knew his father and stepmother were staying at the time. He was aware that they had purchased a store there, and would be remodeling it.

¶9 Mr. Bachtold and Ms. Alltus had arrived in the Curtin area when the truck ran out of gas near the store being purchased by the Bachtold parents. Mr. Bachtold was trying to push the car when an Oregon state trooper stopped and questioned him and Ms. Alltus. The trooper asked for their names, and both Ms. Alltus and Mr. Bachtold provided false identities. When asked by the trooper for identification, Ms. Alltus told him she did not have identification with her, which was false. The trooper was called away to another incident and after he left, Mr. Bachtold put the .410 shotgun and .22 rifle in the store building.

¶10 The next morning, Mr. Bachtold and Ms. Alltus met up with Mr. Bachtold's father and stepmother at the motel where the parents were staying. Mr. Bachtold's stepmother asked him whose truck he was driving and where all the items in his possession came from. Mr. Bachtold answered that he had been working for Ms. Alltus's uncle and had earned them, which Ms. Alltus affirmed.

¶11 Mr. Bachtold's parents rented a second motel room for Mr. Bachtold and Ms. Alltus, where they stayed until the teens were located by police and taken into custody shortly thereafter, on October 6. During their stay, Mr. Bachtold spent a substantial amount of time working with his father at the store, leaving Ms. Alltus behind at the motel.

¶12 A few days into their stay, Mr. Bachtold showed his father the two guns taken from Mr. Alltus's home. The senior Mr. Bachtold took them and stored them in his motel room, where they were later recovered by police. The senior Mr. Bachtold explained that he took the guns because he disapproved of his son having them in his possession.

¶13 Ms. Alltus was eventually charged, as a principal or an accomplice, with first degree aggravated murder, first degree robbery, theft of a motor vehicle, and two counts of theft of a firearm. Being a juvenile, she was also charged with two counts of second degree unlawful possession of a firearm by a juvenile.

¶14 During the five-day jury trial, witnesses testified to the discovery of Mr. Alltus's death, the police and forensic work that followed, and Mr. Bachtold's and Ms. Alltus's actions following Mr. Alltus's death.

¶15 There was also testimony that within the week before Mr. Alltus was shot, he, Ms. Alltus, and Mr. Bachtold visited a neighboring 17-year-old who had previously worked on Patrick Alltus's ranch. During the visit, Ms. Alltus and Mr. Bachtold shot the .410 shotgun Patrick Alltus had brought, as well as the young ranch hand's .22 rifle. The ranch hand testified that Ms. Alltus shot the .410 shotgun once or twice and seemed nervous about shooting it, while Mr. Bachtold shot almost an entire box of ammunition.

¶16 The State also offered the testimony of Ms. Alltus's father's former girlfriend, who had visited Ms. Alltus in jail following her arrest. She testified that Ms. Alltus told her "that Patrick [Alltus] had been teaching her how to shoot and that she had liked it." 1 RP at 323. She testified that Ms. Alltus also stated that Mr. Alltus had been shot in his hand and the bullet had exited his elbow-facts consistent with the wounds caused by the rifle, but that had not been disclosed to Ms. Alltus by law enforcement.

¶17 The State called Mr. Bachtold as one of its last witnesses, on the fourth day of trial, and he testified to his version of his and Ms. Alltus's involvement in the murder.

¶18 In the defense case, Ms. Alltus recalled Mr. Bachtold for additional questioning and testified in her own defense. She denied any involvement in her uncle's murder, claiming she was sleeping when awakened by the sound of Mr. Bachtold's shots. She told jurors that she joined Mr. Bachtold in his flight and failed to report to anyone what had happened because she was afraid of Mr. Bachtold.

¶19 The jury found Ms. Alltus guilty of all of the charges, but did not find any aggravators the State had alleged for its premeditated murder charge. Although the jury returned its verdict at 9:23 p.m. on the fifth trial day, the State asked for sentencing to be scheduled "as early as tomorrow" because it had "several family members of the victim present." 3 RP at 211. The trial court agreed, indicating it would sentence Ms. Alltus at 10:00 a.m. the next morning. Id . After defense counsel told the trial court, "[W]e cannot possibly prepare the mitigation necessary by ten o'clock tomorrow morning" and asked that it be scheduled on Wednesday, which would have been two days later, the trial court stated it would sentence Ms. Alltus at 3:30 p.m. the following day. 3 RP at 211-12.

¶20 The following day, before the sentencing hearing, Ms. Alltus filed a motion asking the court to continue the sentencing hearing and order a presentence report. She argued that the court could not make an informed decision without knowing more about her difficult family background, certain traumas, and her mental health history. At the hearing, defense counsel said she had no objection to bifurcating the process so that family members could make statements at that time, with the remainder of the sentencing to be completed later. The trial court observed that the defense attorney's contract services were ending the following day, to which she responded she would nonetheless make herself available for a continued hearing. The trial court went forward anyway, observing that the presentence report would add nothing significant from its perspective.

¶21 After hearing from the parties and the witnesses, the court sentenced Ms. Alltus to 460 months of total confinement. Ms. Alltus appeals.

ANALYSIS

¶22 Ms. Alltus makes eight assignments of error that require review. We first address her challenges to the court's refusal to continue her sentencing hearing and to its conduct of that hearing. In the unpublished portion of the opinion we provide additional procedural background and address the remaining assignments of error.

I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO BIFURCATE THE SENTENCING HEARING AND ORDER A PRESENTENCING REPORT

¶23 Ms. Alltus challenges the trial court's conduct of the sentencing hearing on three grounds. Because we conclude that the trial court abused its discretion by denying Ms. Alltus's request for a continuance and preparation of a presentence report, we need not address her two related arguments that her sentence was a de facto life sentence that required a Miller hearing.

¶24 A sentencing hearing shall be held within 40 court days following conviction, and the time for conducting the hearing can be continued for good cause. RCW 9.94A.500(1). The trial court has broad discretion to determine whether there is good cause to postpone sentencing. State v. Roberts , 77 Wash. App. 678, 685, 894 P.2d 1340 (1995). We review a court's timing decision for abuse of discretion.

¶25 CrR 7.1(a) provides that after a defendant pleads or is found guilty, "the court may order that a risk assessment or presentence investigation and report be prepared by the Department of Corrections, when authorized by law." CrR 7.1(b) identifies what the report is to contain:

The report of the presentence investigation shall contain the defendant's criminal history, as defined by RCW 9.94A.030, such information about the defendant's characteristics, financial condition, and the circumstances affecting the defendant's behavior as may be relevant in imposing sentence or in the correctional treatment of the defendant, information about the victim, and such other information as may be required by the court.

A comment to the rule states that it "giv[es] the court a measure of discretion to dispense with a report when the appropriate sentence can readily be determined on the basis of the sentencing guidelines score sheet." CrR 7.1, cmt.

¶26 "Where the decision of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion." Farmer v. Davis , 161 Wash. App. 420, 430, 250 P.3d 138 (2011). Here, the trial court explained that Ms. Alltus did not have any criminal history or finances that would be identified by the report, and it did not believe the report would be helpful to the court in sentencing. 3 RP at 224-26.

¶27 The responsibilities of a court in sentencing a juvenile must be taken into consideration by the court in exercising its discretion on the timing of the sentencing hearing and whether to order a presentence report. In State v. Scott , 190 Wash.2d 586, 416 P.3d 1182 (2018), our Supreme Court reiterated its earlier holding in State v. Houston-Sconiers , 188 Wash.2d 1, 20, 391 P.3d 409 (2017) that the Eighth Amendment requires sentencing courts to treat children differently, with discretion, and with consideration of mitigating factors. As the court explained in Scott :

Applying Miller , this court held that "[t]rial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA [ (Sentencing Reform Act of 1981, ch. 9.94A RCW) ] range and/or sentence enhancements." [ Houston-Sconiers , 188 Wn.2d] at 21 [391 P.3d 409] (emphasis added). This court explained in Houston-Sconiers , "Critically, the Eighth Amendment requires trial courts to exercise this discretion at the time of sentencing itself , regardless of what opportunities for discretionary release may occur down the line." Id. at 20, 391 P.3d 409 (emphasis added).

190 Wash.2d at 594-95, 416 P.3d 1182 (some alterations in original). The requirements announced in Houston-Sconiers are not limited to juveniles who receive de facto life sentences; in Houston-Sconiers the teenaged defendants faced sentences of only 26 and 31 years.

¶28 The Supreme Court recently reiterated the extent of consideration required:

[T]he court must consider the mitigating circumstances related to the defendant's youth, including, but not limited to, the juvenile's immaturity, impetuosity, and failure to appreciate risks and consequences-the nature of the juvenile's surrounding environment and family circumstances, the extent of the juvenile's participation in the crime, the way familial and peer pressures may have affected him or her, how youth impacted any legal defense, and any factors suggesting that the juvenile might be successfully rehabilitated.

State v. Gilbert , 193 Wash.2d 169, 176, 438 P.3d 133 (2019) (citing Houston-Sconiers , 188 Wash.2d at 23, 391 P.3d 409 (quoting and citing Miller , 567 U.S. at 477, 132 S.Ct. 2455 )).

¶29 In requesting that the court bifurcate the sentencing, hear from the victim family members first, and then continue the balance of the sentencing hearing in order to obtain a presentence investigation, Ms. Alltus identified the following matters on which the court should be fully informed:

Defendant has mental health records from Okanogan Behavioral Health from April 28, 2015 to August 17, 2016 reflecting her ongoing therapy with Lisa Orr, which include:
Behavioral Health AssessmentDiagnostic SummaryInitial Treatment PlanSuicide Risk Assessment34 Separate Mental Health Progress Notes
Defendant is currently prescribed and taking psychotropic medication.
Defendant was the victim of a Rape/Kidnapping at the age of 13 where the perpetrator was convicted and sentenced to prison.
Defendant[,] who was less than two months past her 16th birthday at the time of the crimes she has been convicted for[,] has significant family issues including extensive CPS interaction, records for which the defense does not possess.
Defendant's biological mother gave up parental rights to her.
Defendant had at least one order of protection with her biological father.

CP at 65 (original numbering omitted).

¶30 While the trial court did not need criminal history or financial information, the matters identified by Ms. Alltus were "defendant's characteristics" and "circumstances affecting the defendant's behavior as may be relevant in imposing sentence"-matters that would be covered by a presentence report.

CrR 7.1(b). The matters identified were the type of matters our Supreme Court requires sentencing courts to consider when a juvenile is involved, and matters the defense could not reasonably be expected to compile itself in less than a day.

¶31 Under these circumstances, we hold that it was an abuse of discretion for the trial court to deny Ms. Alltus's request that the court bifurcate her sentencing hearing and order a presentence report.

¶32 The convictions are affirmed. The sentence is reversed and the case is remanded with directions to order a presentence report and, when it has been provided, conduct a new sentencing hearing.

¶33 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR:

Lawrence-Berrey, C.J.

Fearing, J.

      We cite in this opinion to three of seven volumes of reported proceedings. The three volumes cited are not consecutively paginated. We cite the volume that contains voir dire and other proceedings taking place on August 23 and 24, 2016, as "1 RP." We cite the volume that contains trial proceedings taking place beginning on August 25, 2016, and continuing through closing argument as "2 RP." We cite the volume that contains some pretrial proceedings, the jury's verdict, and the sentencing hearing as "3 RP."

      A due process challenge to the automatic decline procedure raised by Ms. Alltus has since been rejected by the Supreme Court in State v. Watkins , 191 Wash.2d 530, 423 P.3d 830 (2018) (reaffirming In re Boot , 130 Wash.2d 553, 925 P.2d 964 (1996) ).
      Ms. Alltus pre-emptively asks us not to impose costs if the State is the substantially prevailing party on appeal, but panels of the court no longer entertain such argument. A recent general order of this court announced that our clerk or commissioner will henceforth decide these cost issues. See Gen. Order to Rescind (Wash. Ct. App. Feb. 19, 2019), http://www.courts.wa.gov/appellate_trial_courts/div3/Order-Rescind%20Deny%20Request%20to%20Award%20Costs%20General%20Order%202-19-19.pdf.
      Ms. Alltus's identification of an alleged scrivener's error in the judgment and sentence is rendered moot by our reversal of her sentence and remand for resentencing.

      Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).


author: Dwyer, J.

text:
    Jeffrey K. MARKOFF and Alicia Markoff, individually and as a married couple; Edward C. Newell and Troy-Lynn Newell, individually and as a married couple; Charles Meyer and Julie Meyer, individually and as a married couple; Joey P. Haugen and Myung K. Haugen, individually and as a married couple; Nathan A. Buck, individually; Michael S. Camlin and Candace M. Camlin, individually and as a married couple; Richard Martell-Scott, individually; and Steve Roberts, individually, Appellants, v. PUGET SOUND ENERGY, INC., a Washington corporation; Pilchuck Contractors, Inc., a Washington corporation; and Michels Corporation, a Wisconsin corporation, Respondents.
    No. 77785-8-I
    Court of Appeals of Washington, Division 1.
    FILED: August 19, 2019 MOTION FOR RECONSIDERATION DENIED: October 9, 2019
    Darrell L. Cochran, Kevin Michael Hastings, Pfau Cochran Vertetis Amala PLLC, 911 Pacific Ave. Ste. 200, Tacoma, WA, 98402-4413, for Appellants.
    Jeffrey M. Thomas, Mark A. Wilner, Gordon Tilden Thomas & Cordell LLP, 600 University St. Ste. 2915, Seattle, WA, 98101-4172, Dennis Gregory Woods, Jimmy Brown Meeks Jr., Holt, Woods & Scisciani, LLP, 701 Pike St. Ste. 2200, Seattle, WA, 98101-2358, Matthew R. Wojcik, Holly D. Brauchli, Bullivant Houser Bailey PC, 1700 7th Ave. Ste. 1810, Seattle, WA, 98101-1820, for Respondents.
    Alexander John Skalbania, Emmal Skalbania & Vinnedge PLLC, 3600 15th Ave. W. Ste. 201, Seattle, WA, 98119-1330, Thomas A. Woodley, William W. Li, Woodley & McGillivary LLP, 1101 Vermont Ave. Nw., Suite 1000, Washington, DC, 20005, as Amicus Curiae on behalf of International Association of Firefighters.
    PUBLISHED OPINION
   Dwyer, J.

¶1 Nine firefighters responded to a report of a natural gas leak. Gas from a pipeline ignited, causing an explosion and injuring the firefighters. The firefighters sued Puget Sound Energy Inc. (PSE) and its contractors, alleging, among their causes of action, that negligence or recklessness in the decommissioning of the leaking pipeline was a cause of the explosion. The trial court granted PSE's motion to dismiss on the basis that the professional rescuer doctrine barred all of the firefighters' claims. We affirm.

I

¶2 On March 9, 2016, the Seattle Fire Department received a 911 telephone call reporting a natural gas leak on the 8400 block of Greenwood Avenue North in Seattle. Nine firefighters arrived on the scene at 1:09 a.m. and notified PSE of the leak at 1:11 a.m. PSE did not take action to shut off the natural gas pipeline that was the source of the leak until much later. After notifying PSE of the leak's existence, the firefighters inspected a narrow passageway between 8411 and 8415 Greenwood Avenue North and determined that the gas was escaping from a threaded coupling along a steel service line attached to the building at the 8411 address. The firefighters were unaware that gas had also escaped into and underneath this building. As the firefighters continued investigating, an unknown source ignited the gas at 1:43 a.m., causing an explosion that leveled both buildings and injured the firefighters.

¶3 A subsequent investigation by the Washington Utilities and Transportation Commission (WUTC) culminated in a report detailing the explosion's causes. WUTC found that the gas leak and subsequent explosion would not have occurred but for an improper decommissioning of the gas service line in 2004. This work had been performed by an independent contractor, Pilchuck Contractors Inc. Pilchuck had recorded the line as being cut and capped despite failing to actually cut and cap the line. However, WUTC also determined that the immediate cause of the leak was external damage to the threaded coupling, likely the result of individuals storing personal property in (and using the narrow space) between the two buildings. WUTC's subsequent administrative proceeding against PSE concluded in a settlement pursuant to which PSE was to pay a $2.75 million fine, with the contingency that $1.25 million of the fine would be suspended if PSE completed inspection and remediation of its deactivated gas lines. There was no appeal from this final agency determination, and WUTC is not a party to this case.

¶4 Not long after, on May 12, 2017, Jeffrey Markoff, one of the injured firefighters, along with his wife Alicia, sued PSE, Pilchuck Contractors, and Michels Corporation, Pilchuck's parent company. The complaint alleged strict liability under the public utility statute; common law negligence, willfulness, and strict liability; outrage; infliction of emotional distress; loss of consortium; punitive damages; and a right to injunctive relief. Subsequently, Markoff amended his complaint to add other injured firefighters as plaintiffs and to advocate for a change in the existing law governing liability to professional rescuers.

¶5 PSE moved to dismiss the firefighters' first amended complaint, arguing that the negligence and intentional tort claims were barred by the professional rescuer doctrine, that the injunctive relief claim was both subject to the primary jurisdiction of the WUTC's administrative proceeding and was also moot due to PSE's settlement with the WUTC, and that there was no independent cause of action to assert under the pertinent section of the public utility statute. The trial court dismissed all of the firefighters' common law, statutory, and strict liability claims with prejudice, but reserved ruling on the injunctive relief claim to allow for further briefing.

¶6 Applying the professional rescuer doctrine was appropriate, the trial court reasoned, because the firefighters had been called to the scene to address a gas leak, and a well-known and foreseeable danger of gas leaks is that the gas may ignite and explode. The court also accepted PSE's reasoning that the pertinent section of the public utility statute, RCW 80.04.440, did not create an independent cause of action or revive causes of action otherwise barred by an affirmative defense such as the professional rescuer doctrine. The trial court pointed to the state's workers' compensation fund as an existing system of accounting for the risk of injury assumed by professional rescuers.

¶7 Subsequently, PSE submitted the requested supplemental briefing in support of its motion to dismiss the firefighters' injunctive relief claim. The firefighters, however, did not submit supplemental briefing on the issue and instead moved to voluntarily dismiss the injunctive relief claim without prejudice. The firefighters' motion for voluntary dismissal was premised on their perception that the trial court had not, in fact, held a hearing on the injunctive relief issue or otherwise exercised its discretion to address it. The trial court disagreed, explaining,

I think it's worth noting that in my opinion I have exercised discretion on the issue that is noted for a hearing today in front of me with regard to the injunctive relief.
I heard that first hearing. I read all the briefing, and then I exercised discretion to have another hearing to delay, to say I need to do more research, I need the parties to educate me more through their briefing....
And I needed that in order to go forward. And I didn't have to. That's the definition of discretion.
I could have said I will decide it. I will let you know in two weeks. I'm going to do the research. That's my discretion.
I could have said we'll decide it in 90 days, but I want more briefing. That's what I did.
I could have also just decided it right then that day in September, but I didn't. I exercised that discretion.
That hearing [on PSE's Motion to Dismiss] had started. In my view, there's no question about that. There's always shades of gray. It's nice to think of things in black and white, but the reality is between when the first brief is filed and when the final decision is entered, there's a lot of shades of gray [on] when a [CR] 41 [motion] can or cannot be filed.
In my view, this case crosses that line because we had a hearing, there was briefing on it, and I was cued up to make a decision, and I did make a decision, and I did exercise discretion, and that was to make the decision at a later date after more briefing and more education for the Court.

¶8 The trial court also gave an alternative ground for ruling in favor of PSE:

I am going to grant Puget Sound the defense's motion on the merits based on the lack of response and the fact, frankly, that I am convinced that their position is correct in light of all of the facts and law that have been presented to me over the course of two substantive hearings.

¶9 Accordingly, the trial court dismissed the firefighters' claim for injunctive relief with prejudice. The firefighters appeal from the orders of dismissal, averring that the professional rescuer doctrine should not bar their common law and statutory tort claims and that dismissal without prejudice was the proper remedy for their injunctive relief claim.

II

A

¶10 A trial court's ruling on a motion to dismiss under CR 12(b)(6) is a question of law that we review de novo. Cutler v. Phillips Petrol. Co., 124 Wash.2d 749, 755, 881 P.2d 216 (1994). A CR 12(b)(6) motion questions only the legal sufficiency of the allegations in a pleading, asking whether there is an insuperable bar to relief. Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 742, 565 P.2d 1173 (1977). The purpose of CR 12(b)(6) is to weed out complaints where, even if that which plaintiff alleges is true, the law does not provide a remedy. McCurry v. Chevy Chase Bank, FSB, 169 Wash.2d 96, 101, 233 P.3d 861 (2010).

¶11 Under the generous standard of CR 12(b)(6), a complaint survives a motion to dismiss unless " 'it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief.' " Hoffer v. State, 110 Wash.2d 415, 420, 755 P.2d 781 (1988) (internal quotation marks omitted) (quoting Orwick v. City of Seattle, 103 Wash.2d 249, 254, 692 P.2d 793 (1984) ). The "court may consider hypothetical facts not part of the formal record." Hoffer, 110 Wash.2d at 420, 755 P.2d 781.

B

The general rule in Washington is that a person who is injured while rescuing another may recover from the party whose negligence created the need for rescue. However, because professional rescuers assume certain risks as part of their profession, the general rule does not apply. When a professional rescuer is injured by a known hazard associated with a particular rescue activity, the rescuer may not recover from the party whose negligence caused the rescuer's presence at the scene.

Loiland v. State, 1 Wash. App. 2d 861, 862, 407 P.3d 377 (2017), review denied, 190 Wash.2d 1013, 415 P.3d 1196 (2018).

¶12 The professional rescuer doctrine is based on a broad policy of assumption of risk. Professional rescuers assume certain risks inherent in their jobs and may not collect damages from those whose negligence brings about such risks. Maltman v. Sauer, 84 Wash.2d 975, 978, 530 P.2d 254 (1975). A professional rescuer may not collect damages from a negligent imperiled person when the "hazard ultimately responsible for causing the [rescuer's] injury is inherently within the ambit of those dangers which are unique to and generally associated with the particular rescue activity." Maltman, 84 Wash.2d at 979, 530 P.2d 254. Washington courts broadly apply this doctrine to bar recovery for anyone who is fully aware of a hazard caused by another's negligence and who voluntarily confronts the risk in exchange for compensation. Black Indus., Inc. v. Emco Helicopters, Inc., 19 Wash. App. 697, 699-700, 577 P.2d 610 (1978).

C

¶13 The professional rescuer doctrine was first recognized by our Supreme Court in Maltman, 84 Wash.2d at 979, 530 P.2d 254. The court therein also recognized the existence of an exception to the rule when a professional rescuer is injured by a " 'hidden, unknown, [or] extrahazardous ' " danger that is not inherently associated with the particular rescue activity. Maltman, 84 Wash.2d at 978, 530 P.2d 254 (quoting Jackson v. Velveray Corp., 82 N.J. Super. 469, 198 A.2d 115, 119 (1964) ). Since Maltman, the court has also recognized an exception to the doctrine that applies when "negligent or intentional acts of intervening parties not responsible for bringing the rescuer to the scene" cause the rescuer's injury. Beaupre v. Pierce County, 161 Wash.2d 568, 575, 166 P.3d 712 (2007).

¶14 We recently applied the doctrine to bar recovery when a firefighter alleged that negligence on the part of multiple parties placed him in harm's way. See Loiland, 1 Wash. App. 2d 861, 407 P.3d 377. Therein, Lopez, a driver, lost control of his vehicle on an icy highway with low visibility. The vehicle rolled onto its side in a ditch. A Washington State Patrol trooper stopped to assist and called for a tow truck. However, while awaiting the tow truck's arrival, the trooper observed several other vehicles slide or stall on the ice. Loiland, 1 Wash. App. 2d at 863, 407 P.3d 377. The trooper determined that the tow truck would be of limited use in the prevailing conditions and that waiting for one to arrive was dangerous. Hence, the trooper left the scene with Lopez, but without marking the vehicle to indicate that he had responded to the accident. Loiland, 1 Wash. App. 2d at 863-64, 407 P.3d 377.

¶15 Subsequently, Wynn Loiland, a firefighter, arrived on the scene in response to a 911 call. Loiland, 1 Wash. App. 2d at 864, 407 P.3d 377. Unaware that a trooper had already responded, Loiland had begun marking the abandoned vehicle when he was struck by a vehicle driven by Perez, who lost control on the ice. Loiland, 1 Wash. App. 2d at 864, 407 P.3d 377.

¶16 Loiland later filed suit against Lopez and the State, alleging that negligence on the part of Lopez, Perez, and the State (through the Department of Transportation and the State Patrol) had caused his injuries. Loiland, 1 Wash. App. 2d at 864, 407 P.3d 377.

¶17 The trial court, invoking the professional rescuer doctrine, granted summary judgment to Lopez and the State. Loiland, 1 Wash. App. 2d at 864, 407 P.3d 377. We affirmed, reasoning that the claim was premised upon the assertions that the Department of Transportation was negligent in failing to deice the road, the State Patrol was negligent in failing to mark the abandoned vehicle, and Lopez was negligent in driving off the road-all acts or omissions that resulted in Loiland, a professional rescuer, appearing at the scene. Loiland, 1 Wash. App. 2d at 866, 407 P.3d 377. We held that "where the negligent acts of multiple parties cause the public safety issue that necessitates the [professional] rescuer's presence, the professional rescuer doctrine bars recovery from each of these parties." Loiland, 1 Wash. App. 2d at 867, 407 P.3d 377.

¶18 We also rejected Loiland's assertions that the doctrine could not apply to his claim because of intervening negligence on the part of the State.

In Beaupre, Sutton [v. Shufelberger, 31 Wn. App. 579, 587, 643 P.2d 920 (1982) ], and Ward [v. Torjussen, 52 Wn. App. 280, 287, 758 P.2d 1012 (1988) ], a negligent third party injured a professional rescuer while the rescuer was responding to a public safety issue. The intervening negligence was unrelated to the act that caused the professional to be at the scene. The same is not true in this case. Neither [Department of Transportation (DOT) ] nor [Washington State Patrol] injured Loiland while he was responding to a roadside accident. The agencies' alleged negligence occurred before Loiland responded to the scene. And, as discussed above, the agencies' failures were not independent of the public safety issue to which Loiland responded.
Loiland asserts, however, that his claim against DOT is not based on the agency's failure to deice before the Lopez crash but on its continuing failure to deice after the Lopez crash. He contends that DOT had an ongoing duty to deice and its failure to deice after the Lopez crash was separate and independent from its failure to deice before the Lopez crash.
Loiland provides no support for the proposition that ongoing negligence is the equivalent of independent, intervening negligence. We reject the assertion that DOT'S failure to deice after the Lopez accident amounts to the independent negligence of an intervening party.

Loiland, 1 Wash. App. 2d at 869-70, 407 P.3d 377 (footnotes omitted). Thus, we give significance to the distinction between ongoing negligence and intervening negligence.

¶19 Here, the firefighters aver that PSE's negligence created a hidden, unknown or extrahazardous danger of the type that would bring it within the ambit of the doctrine's recognized exception. The "hidden" danger, they argue, was that the firefighters did not know of PSE's and its contractors' negligence and that gas leaks had previously been reported in the same area, or that gas was escaping not only into the alley where the firefighters could perceive it but also into an underground space beneath the 8411 building. Further, they argue that PSE's alleged negligence in failing to deactivate the line between 1:11 a.m., when it was notified of the leak, and 1:43 a.m., when the explosion occurred, created an additional unforeseeable risk.

¶20 The firefighters do not allege facts indicating that they would have responded differently to the leak than they did had they known of the improper cutting and capping of the line or the previous reports of gas leaks. Nor do they allege that they would have responded differently had they known of the pooling of gas underneath the 8411 building.

¶21 All of the dangers created by the past negligence of PSE and its contractors, created by those who misused the narrow space between the buildings, and of the gas leaking into an underground space, were part of the same hazard that the firefighters were called to the scene to address: a gas leak. Injury from a fire or explosion is a risk inherent in addressing a natural gas leak, given that natural gas is known to be volatile and highly explosive. See New Meadows Holding Co. by Raugust v. Wash. Water Power Co., 102 Wash.2d 495, 501, 687 P.2d 212 (1984). The firefighters do not show that the circumstances of this leak created a "new or unknown risk" of a type not inherent in the danger of responding to a natural gas leak. Loiland, 1 Wash. App. 2d at 872, 407 P.3d 377.

¶22 The firefighters next allege that PSE's negligence created a risk that did not exist at the time of the firefighters' arrival at the scene: the risk that the escaped gas would build up to dangerous levels due to PSE's failure to deactivate the line after being notified of the leak. In response, PSE asserts that this claim is akin to the assertion of the firefighter in Loiland that DOT'S continuing failure to deice the road after the first crash enhanced the risk of another collision such that the buildup of ice and moisture created a "new or unknown risk." 1 Wash. App. 2d at 872, 407 P.3d 377. That claim failed, PSE points out, because ongoing negligence does not constitute an intervening act or "independent negligence." Loiland, 1 Wash. App. 2d at 870, 407 P.3d 377. Moreover, the rule at issue is that "[t]he doctrine does not apply to negligent or intentional acts of intervening parties not responsible for bringing the rescuer to the scene." Beaupre, 161 Wash.2d at 575, 166 P.3d 712. Here, of course, PSE's negligence was responsible for bringing the firefighters to the scene.

¶23 In support of their argument, the firefighters rely on Kaiser v. Northern States Power Co., 353 N.W.2d 899 (Minn. 1984). Therein, eight firefighters responded to a gas explosion and notified the gas company. The gas company did not deactivate the gas line before a second explosion occurred, injuring the firefighters. Kaiser, 353 N.W.2d at 902. The Minnesota Supreme Court, determining whether the firefighters' suit against the company was barred, stated that the professional rescuer doctrine did not apply when a party's active negligence at the scene "materially enhances the risk or creates a new risk of harm." Kaiser, 353 N.W.2d at 905. Because there was a question of fact as to whether the utility's active negligence at the scene had this effect, the court ruled that denial of the utility's motion for summary judgment was called for. Kaiser, 353 N.W.2d at 906.

¶24 This decision provides no comfort to the firefighters. The opinion recognized only that the professional rescuer doctrine might not apply when a party's active negligence at the scene materially enhanced the risk that brought professional rescuers on site. Kaiser, 353 N.W.2d at 905. PSE's negligence after the firefighters' arrival, as the firefighters allege it to have occurred, was passive negligence (failing to shut off natural gas in the already-leaking pipe). There was no new negligent act or omission after the firefighters' arrival; PSE simply allowed the condition that brought the firefighters to the premises to continue.

¶25 In addition, the Kaiser court declined to apply the professional rescuer doctrine because it perceived there to be a question of fact as to what, if anything, the firefighters in that case would have done differently had they known of the risk of a second explosion from the still-escaping gas. 353 N.W.2d at 905-06. However, the firefighters herein do not allege that they would have addressed the situation any differently had they known that PSE would not deactivate the line within 30 minutes.

¶26 The hazards faced by the firefighters, while significant, were inherent in the risks associated with responding to a natural gas leak. The trial court correctly applied the professional rescuer doctrine in dismissing all of the firefighters' common law tort claims.

D

¶27 In the alternative, the firefighters argue for an expansion of the law. They urge that we adopt a new exception to the professional rescuer doctrine excluding from its ambit rescues resulting from willful, wanton, or reckless conduct that places a professional rescuer in harm's way. We decline to do so. The intent of the person whose actions caused the need for rescue has never been a relevant inquiry in determining whether a professional rescuer assumed a risk. Washington courts have not looked to the conduct of a person in creating a hazard to establish whether the professional rescuer doctrine applies. Rather, our courts have always analyzed whether the professional rescuer assumed a risk inherent in the nature of the rescue at issue. Maltman, 84 Wash.2d at 979, 530 P.2d 254 ; Black Indus., 19 Wash. App. at 699, 577 P.2d 610.

¶28 The firefighters point to Ballou v. Nelson, 67 Wash. App. 67, 834 P.2d 97 (1992), to support their advocacy for an intent exception. Therein, we held that the professional rescuer doctrine did not bar police officers from recovering against two hotel patrons who assaulted them. Ballou, 67 Wash. App. at 70, 834 P.2d 97. While the police officers had been dispatched to detain these patrons, the assault was an independent act of active misconduct that occurred after the officers' arrival. Ballou, 67 Wash. App. at 69, 834 P.2d 97. Further, the officers did not arrive at the scene to rescue the patrons but, rather, to restrain them from committing further acts of assault against others at the hotel. Ballou, 67 Wash. App. at 73, 834 P.2d 97. Thus, we ruled, the professional rescuer doctrine did not apply. This is in sharp contrast to the situation herein, in which the firefighters were called to the scene to protect others from danger, and were not injured as a result of independent acts of active misconduct. Ballou does not militate in favor of the adoption of the new proposed rule.

¶29 The firefighters also point to authority from other states in which an intent exception is recognized, chiefly a Louisiana Court of Appeals case, Chinigo v. Geismar Marine, Inc., 512 So. 2d 487 (La. Ct. App. 1987). Therein, a sheriff's deputy responded to a report that a tank truck was leaking unknown fluid onto a road. Chinigo, 512 So. 2d at 488. The truck did not possess the required placard designating the substance being transported, and its driver did not inform the deputy that the fluid was a volatile and toxic chemical. Chinigo, 512 So. 2d at 489. The deputy, experiencing serious side effects of exposure to the chemical, sued the trucking company, which raised the professional rescuer doctrine as a defense. Chinigo, 512 So. 2d at 489-90. The court held that the risk confronted by the deputy, created by improper handling of a hazardous chemical in a wanton manner, was "extraordinary and one which was beyond the training and experience of [the deputy] to remedy," precluding application of the professional rescuer doctrine. Chinigo, 512 So. 2d at 492. This is inapposite to the case before us for the simple reason that the explosion was not an unanticipated risk of the gas leak.

¶30 Further, to the extent that the Louisiana court's recognition of an exception was not based on the hidden, unknown, or extrahazardous danger created by the unknown fluid-a situation already accounted for in our state's law-it was based on the desire to impose punitive damages. Chinigo, 512 So. 2d at 491. This is not a concern in Washington. We decline to adopt a new exception to the professional rescuer doctrine employing an intent component.

III

¶31 The firefighters next assign error to the trial court's dismissal of their claims against all three defendants for liability under RCW 80.04.440. The trial court dismissed these statutory liability claims on the basis that RCW 80.04.440 does not create a private cause of action for the firefighters to assert. This subsection of Washington's public utility statute provides that:

In case any public service company shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by any law of this state, by this title or by any order or rule of the commission, such public service company shall be liable to the persons or corporations affected thereby for all loss, damage or injury caused thereby or resulting therefrom, and in case of recovery if the court shall find that such act or omission was willful, it may, in its discretion, fix a reasonable counsel or attorney's fee, which shall be taxed and collected as part of the costs in the case. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.

RCW 80.04.440.

¶32 "Significantly, liability under [ RCW 80.04.440 ] is predicated upon a finding of a violation of law or safety regulation." Zamora v. Mobil Corp., 104 Wash.2d 199, 209, 704 P.2d 584 (1985). Neither party disputes the requirement of a predicate violation; however, the firefighters aver that the statute creates a private cause of action separate and independent of their common law claims.

¶33 Employing a plain language reading, the statute does nothing more than preserve causes of action for private claims related to utility misconduct while adding the potential for recovery of attorney fees by successful claimants. It does not allow for such claims to be asserted free of the limitations to which they are subject when otherwise asserted. See Fisk v. City of Kirkland, 164 Wash.2d 891, 896, 194 P.3d 984 (2008) (cause of action pursuant to RCW 80.04.440 not viable in the absence of underlying duty on part of utility); Citoli v. City of Seattle, 115 Wash. App. 459, 479-80, 61 P.3d 1165 (2002) (utility's alleged violation of regulation requiring minimization of service interruptions did not support RCW 80.04.440 claim due to city ordinance limiting utility's liability).

¶34 Hence, a party seeking the benefit of RCW 80.04.440 must demonstrate that the underlying claim is viable and not subject to an affirmative defense. This the firefighters have not done. They assert that the statute's lack of reference to the professional rescuer doctrine implies that said doctrine does not apply, ignoring the fact that the statute's enactment predated Maltman by 14 years. Nothing in the statute's language evinces an intent to render inapplicable otherwise applicable affirmative defenses. The trial court did not err in dismissing the firefighters' claims pursuant to RCW 80.04.440.

IV

¶35 The trial court gave alternative reasons for dismissal of the firefighters' injunctive relief claim with prejudice: first, that the firefighters had not responded to the assertions contained in PSE's motion to dismiss that claim and, second, that there was no reason to grant a voluntary dismissal without prejudice. The trial court did not specify the assertion it was adopting in granting PSE's motion to dismiss, stating at oral argument only that the motion would be granted "on the merits based on the lack of response and the fact, frankly, [because] I am convinced that their position is correct in light of all of the facts and law that have been presented to me over the course of two substantive hearings." We may affirm a trial court ruling on any ground supported in the record. LaMon v. Butler, 112 Wash.2d 193, 200-01, 770 P.2d 1027 (1989).

¶36 "One who seeks relief by permanent injunction must show: (1) that he has a clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of are either resulting in, or will result in, actual and sustained injury to him." Tyler v. Van Aelst, 9 Wash. App. 441, 443, 512 P.2d 760 (1973) (citing Port of Seattle v. Int'l Longshoremen's & Warehousemen's Union, 52 Wash.2d 317, 319, 324 P.2d 1099 (1958) ). "The complainant must make out a prima facie case." Isthmian S. S. Co. v. Nat'l Marine Eng'rs' Beneficial Ass'n, 41 Wash.2d 106, 118, 247 P.2d 549 (1952). " 'An injunction will not issue to protect a right not in esse and which may never arise.' " State ex rel. Hays v. Wilson, 17 Wash.2d 670, 673, 137 P.2d 105 (1943) (quoting 32 C.J. Injunctions § 14, at 35 (1923)).

¶37 The firefighters' first amended complaint gives the following basis for requesting an injunction:

24. Injunctive Relief. Based on the paragraphs set forth and alleged above, and in light of their reckless and wanton misconduct, Defendant PSE should be enjoined under RCW 7.40 et seq. and Washington law be required to perform a comprehensive inspection of its Washington State gas pipes, especially abandoned pipes, and engage in immediate remediation to protect the public from a grave foreseeable harm.

¶38 The "paragraphs set forth and alleged above" asserted rights of action arising from PSE, Pilchuck and Michels's alleged negligence. The trial judge properly dismissed the substantive claims on which the request for injunctive relief was based. At that point, the firefighters no longer had a right that could be vindicated or protected by the injunction. In short, an injunction is a remedy, not an independent cause of action. Dismissal with prejudice was proper.

¶39 Affirmed.

WE CONCUR:

Andrus, J.

Schindler, J.

      The firefighters, recognizing that Washington law does not allow for the assessment of punitive damages, nonetheless sought them under Wisconsin law. Michels Corporation is a Wisconsin corporation.

      The firefighters do not appeal the trial court's ruling that strict liability did not apply.

      The International Association of Fire Fighters, as amicus curiae, argues that a question of fact exists as to whether these hazards were hidden, unknown, or extrahazardous, and that the existence of this fact question precludes dismissal. For the reasons stated, the pleadings do not support the inference that these dangers were not inherent in any gas leak situation. Thus, no genuine issue of material fact exists.

      The law in Minnesota is that "[a] landowner or person in control owes firefighters a duty 'to exercise ordinary care to avoid imperiling [them] by any active conduct.' " Kaiser, 353 N.W.2d at 905 (alteration in original) (quoting Mulcrone v. Wagner, 212 Minn. 478, 482, 4 N.W.2d 97, 99 (1942) ). When such active "misconduct at the fire scene materially enhances the risk or creates a new risk of harm and causes injury to firefighters," the professional doctrine does not apply. Kaiser, 353 N.W.2d at 905. We can decide this case without deciding if the law in Washington is identical.

      RCW 80.04.440 supports causes of action against "any public service company." "Public service company" is defined, for purposes of the statute, as "every gas company, electrical company, telecommunications company, wastewater company, and water company." RCW 80.04.010(23). In turn, a "[g]as company" is defined inclusively as "every corporation, company, association, joint stock association, partnership and person, their lessees, trustees or receiver appointed by any court whatsoever, and every city or town, owning, controlling, operating or managing any gas plant within this state." RCW 80.04.010(14). Independent contractors performing maintenance work on behalf of a gas company are not included in this definition.
      The firefighters' first amended complaint did not allege that either Pilchuck Contractors or Michels Corporation was a public service company as would be necessary to bring them within the ambit of the statute. Instead, it stated that Pilchuck "conducted pipeline maintenance and other general contracting business throughout the State on behalf of PSE and others," and that Michels "is a company incorporated in the State of Wisconsin and bought Pilchuck Contractors in or around 1999 to conduct business in Washington State."
      In their reply brief, the firefighters point to RCW 80.04.010(15), defining "[g]as plant" to include "all real estate, fixtures and personal property, owned, leased, controlled, used or to be used for or in connection with the transmission, distribution, sale or furnishing of natural gas, or the manufacture, transmission, distribution, sale or furnishing of other type gas, for light, heat or power." They contend that, because Pilchuck was contracted by PSE to maintain the "fixture" of the pipeline, it was in fact "controlling, operating or managing any gas plant." However, even taking all of the firefighters' allegations as true, as we must, they do not raise the inference that Pilchuck was "controlling, operating or managing" a gas plant except on behalf of PSE-as explicitly stated in the firefighters' first amended complaint. Thus, Pilchuck was and is not a "gas company" as would be necessary to make it a "public service company" to bring it within the meaning of the statute.
      Because the pleadings did not support an inference that Pilchuck was a public service company, they in turn do not support the inference that Michels, the parent company of Pilchuck, could be held liable under the utility statute. Thus, dismissal of the RCW 80.04.440 claim against Pilchuck and Michels was proper even if the statute did create the firefighters' proposed independent cause of action.

      Nowhere in their opening or reply briefs do the firefighters point to the specific WUTC regulations, the violation of which would give rise to a cause of action under RCW 80.04.440. An enumeration of these regulations is contained in their first amended complaint. However, to the extent that the firefighters rely on specific findings of the WUTC to support their cause of action, they are asserting a claim "involving" an order of the WUTC without serving notice to the same in contravention of RCW 80.04.420.


author: Leach, J.

text:
    STATE of Washington, Respondent, v. Dylan James DOWNEY, Appellant.
    No. 78004-2-I
    Court of Appeals of Washington, Division 1.
    FILED: August 19, 2019
    Washington Appellate Project, Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant(s).
    Seth Aaron Fine, Snohomish Co. Pros. Ofc., Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, J. Scott Halloran, Snohomish Co. Prosecuting Atty.-Criminal, 3000 Rockefeller Ave. # Ms504, Everett, WA, 98201-4046, for Respondent(s).
    PUBLISHED OPINION
   Leach, J.

¶ 1 Dylan James Downey appeals his conviction for vehicular assault. He raises two constitutional issues. First, he claims that the court violated his right to present a defense by refusing his request to instruct the jury that one alternative means of committing vehicular assault is a lesser-included offense of committing the same crime by a different means. This claim fails because the lesser-included-offense rule requires a comparison of the elements of two separate crimes and does not apply to different means of committing a single crime.

¶ 2 Second, he claims that the court violated his right to notice of the offense charged when the trial court instructed the jury on an uncharged means of committing vehicular assault after he asked the court to instruct on this means as a lesser-included offense. Because Downey fails to show a lack of notice or prejudice, we reject this claim too. We affirm.

FACTS

¶ 3 In July 2014, Downey gave his friend, Brittney Wright, a motorcycle ride. Downey was driving over the speed limit when he failed to negotiate a curve and crashed, ejecting him and Wright from the motorcycle. The lower half of one of Downey's legs was severed, and Wright had compound fractures of both legs. The State charged Downey with possession of a stolen vehicle and vehicular assault committed by the alternative means of operating a vehicle in a reckless manner.

¶ 4 At trial, Downey asked the court to instruct the jury on a second means of committing vehicular assault, operating a vehicle with disregard for the safety of others, which he characterized as the "lesser-included offense" of the reckless manner prong. The trial court ruled that disregard for the safety of others prong was not a lesser-included offense of the reckless manner prong but, rather, an alternative means of committing vehicular assault. The court instructed the jury on both alternative means. The jury acquitted Downey of possession of a stolen vehicle but found him guilty of vehicular assault. The jury's answers to the special interrogatory verdict form showed that it was not unanimous about the means. The court entered a conviction for the alternative means of disregard for the safety of others. Downey appeals.

ANALYSIS

¶ 5 Downey asserts that the trial court violated his due process rights by not giving the jury his proposed lesser-included-offense instruction and violated his constitutional right to notice when it instead instructed the jury on an uncharged alternative means. We disagree.

¶ 6 First, Downey contends that the trial court erred in not instructing the jury that vehicular assault committed by the alternative means of disregard for the safety of others was a lesser-included offense of vehicular assault committed by the alternative means of reckless manner. A person commits vehicular assault if he causes substantial bodily harm to another while driving a vehicle (1) in a reckless manner, (2) while under the influence of intoxicating liquor or any drugs, or (3) with disregard for the safety of others. The parties agree that vehicular assault is an alternative means statute. This means that vehicular assault is a single crime that can be committed in three different ways.

¶ 7 At issue here are alternative means (1) and (3). "Reckless manner" means " 'driving in a rash or heedless manner, indifferent to the consequences.' " " 'Disregard for the safety of others' " is "an aggravated kind of negligence, falling short of recklessness, but more serious than ordinary negligence."

¶ 8 The due process clause of the Fourteenth Amendment requires that criminal defendants have a meaningful opportunity to present a defense. "Parties are entitled to instructions that, when taken as a whole, properly instruct the jury on the applicable law, are not misleading, and allow each party the opportunity to argue their theory of the case."

¶ 9 Under the two-part test our Supreme Court established in State v. Workman, a defendant is entitled to a lesser-included-offense instruction if (1) each element of the lesser offense is a necessary element of the offense charged (the "legal prong") and (2) the evidence in the case supports an inference that the defendant committed only the lesser crime (the "factual prong"). This court reviews the trial court's determination of the legal prong de novo and the factual prong for an abuse of discretion.

¶ 10 But, here, we need not apply the Workman test because Downey does not establish that Workman's lesser-included-offense analysis applies to alternative means of the same offense as opposed to separate offenses. The test requires a comparison of the elements of two separate crimes. This case involves only one crime. And Workman does not involve a comparison of the penalties for different crimes.

¶ 11 In State v. Huyen Bich Nguyen, our Supreme Court examined RCW 10.61.006, the "[i]ncluded offenses" statute. RCW 10.61.006 states, "[T]he defendant may be found guilty of an offense the commission of which is necessarily included within that with which he or she is charged in the indictment or information." In holding that physical control while under the influence of alcohol or drugs is an included offense of driving while under the influence of alcohol or drugs, the court stated, "[T]here is no requirement that an included offense must have a lesser penalty than the charged offense." Both the included offenses statute and our Supreme Court thus define a "lesser-included offense" as an offense separate from the charged offense. Neither the statute nor the Workman test looks at penalties.

¶ 12 Downey cites no authority holding that an alternative means of committing the same crime as the charged offense may qualify as a lesser-included offense of the charged offense. He offers no persuasive explanation for how a single crime could be a lesser-included crime of itself. Nor does he offer any policy reason for this result.

¶ 13 We hold that because vehicular assault committed by the alternative means of reckless manner and by the alternative means of disregard for the safety of others are alternative means of committing the same crime, not separate crimes, disregard for the safety of others is not a lesser-included offense of reckless manner.

¶ 14 Even if disregard for the safety of others were a lesser-included offense of reckless manner, the trial court did, in fact, instruct the jury on disregard for the safety of others as an alternative means. Downey cites no case requiring a court to affirmatively instruct a jury that an alternative crime it can consider is called "a lesser-included offense." And the special verdict form answers preclude any jury unanimity argument. So he shows no harm.

¶ 15 The special verdict form shows that at least one juror found that Downey committed that offense by driving a vehicle in a reckless manner and causing substantial bodily harm. The jurors not agreeing with this finding found that Downey committed the offense by driving a vehicle with disregard for the safety of others and causing substantial bodily harm. Since a finding of driving in a reckless manner includes a finding of driving a vehicle with disregard for the safety of others, all jurors agreed that Downey at least had operated a vehicle with disregard for the safety of others and caused substantial bodily injury. One or more jurors decided that he had committed that crime but also did so recklessly.

¶ 16 Second, Downey claims that because the trial court instructed the jury that disregard for the safety of others, a means the State never charged, was an alternative means of vehicular assault, he did not receive his constitutionally mandated notice. The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution require that all charges be included in a charging document to afford the defendant notice. Downey relies on our Supreme Court's ruling in State v. Pelkey, adopting a per se rule that "[a] criminal charge may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense."

¶ 17 Regardless of whether disregard for the safety of others is a lesser-included offense of reckless manner, Pelkey does not apply. Here, the trial court entered a conviction for vehicular assault committed by the alternative means of disregard for the safety of others. RCW 9.94A.515 assigns reckless manner a seriousness level of four and disregard for the safety of others a seriousness level of three. The court thus entered a conviction for the less serious alternative means. Further, Pelkey states that its per se rule does not apply to lesser-included offenses. In addition, the State did not ask to amend the information; the trial court instructed the jury on the alternative means of disregard for the safety of others following Downey's request for a lesser-included instruction on that offense. Downey does not show that he did not receive notice or that any lack of notice prejudiced him.

Statement of Additional Grounds for Review

¶ 18 In Downey's statement of additional grounds for review, he makes three claims based on the fact that the jury was not unanimous as to either of the alternative means of vehicular assault. He claims that the jury implicitly acquitted him of vehicular assault, double jeopardy bars his retrial because of this implied acquittal, and the trial court violated his right to a jury trial. But the case that he relies on examines whether double jeopardy bars the State from retrying a defendant on the greater charge when a jury convicted the defendant of the lesser charge and was silent as to the greater charge. Here, the trial court instructed the jury on alternative means, not greater and lesser offenses. And our Supreme Court has held that "when there is sufficient evidence to support each of the alternative means of committing the crime, express jury unanimity as to which means is not required." Although Downey states, "[l]t seems clear that there was insufficient evidence introduced at trial to establish the alternative means of reckless manner and disregard for the safety of others," he does not support this assertion with evidence from the record. We reject Downey's claims.

CONCLUSION

¶ 19 We affirm.

WE CONCUR:

Schindler, J.

Appelwick, C.J.

      The speed limit was 35 m.p.h.; Downey's expert testified that Downey was most probably driving between 45 and 50 m.p.h.; responding officer Craig Davis testified that Downey's speed was between 49 and 73 m.p.h.; Wright testified that not long before the crash, the speedometer showed 100 m.p.h.

      Before trial, the State agreed not to pursue the impairment alternative of vehicular assault that appears in the amended information.

      RCW 46.61.522(1)(a)-(c).

      See State v. Roggenkamp, 153 Wash.2d 614, 626, 106 P.3d 196 (2005).

      Roggenkamp, 153 Wash.2d at 618, 106 P.3d 196.

      State v. Jacobsen, 78 Wash.2d 491, 498, 477 P.2d 1 (1970).

      California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).

      State v. Redmond, 150 Wash.2d 489, 493, 78 P.3d 1001 (2003).

      90 Wash.2d 443, 447-48, 584 P.2d 382 (1978) ; State v. Berlin, 133 Wash.2d 541, 545-46, 947 P.2d 700 (1997).

      State v. Walker, 136 Wash.2d 767, 771-72, 966 P.2d 883 (1998).

      165 Wash.2d 428, 437-38, 197 P.3d 673 (2008).

      Huyen Bich Nguyen, 165 Wash.2d at 438-39, 197 P.3d 673 (emphasis added).

      State v. Ferguson, 76 Wash. App. 560, 569, 886 P.2d 1164 (1995).

      "In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation." U.S. Const. , amend. VI.

      "In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him." Wash. Const. art. I, § 22.

      State v. Kjorsvik, 117 Wash.2d 93, 97, 812 P.2d 86 (1991).

      109 Wash.2d 484, 491, 745 P.2d 854 (1987) ; see State v. Schaffer, 120 Wash.2d 616, 620, 845 P.2d 281 (1993) ("[l]n Pelkey, this court adopted a per se rule limiting the ability to amend an information once the State has rested its case" unless an exception applies.).

      Downey cites State v. Linton, 156 Wash.2d 777, 779, 132 P.3d 127 (2006) (affirming the court of appeals decision that double jeopardy barred the State from retrying Linton for first degree assault after a jury convicted him of second degree assault but was not unanimous as to the first degree assault charge).

      State v. Owens, 180 Wash.2d 90, 95, 323 P.3d 1030 (2014).