Bill Summary – FastDemocracy

H-1032.1
                           SUBSTITUTE HOUSE BILL 1268
     State of Washington         68th Legislature       2023 Regular Session
     By House Community Safety, Justice, & Reentry (originally sponsored
     by Representatives Goodman, Simmons, Walen, and Eslick)
     READ FIRST TIME 02/03/23.
     AN ACT Relating to sentencing enhancements; amending RCW
 9.94A.030, 9.94A.599, 9.94A.729, 10.01.210, and 72.01.410; reenacting
 and amending RCW 9.94A.533; and repealing RCW 9.94A.833 and
 69.50.435.
 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     Sec. 1.   RCW 9.94A.030 and 2022 c 231 s 11 are each amended to
 read as follows:
     Unless the context clearly requires otherwise, the definitions in
 this section apply throughout this chapter.
     (1) "Board" means the indeterminate sentence review board created
 under chapter 9.95 RCW.
     (2) "Collect," or any derivative thereof, "collect and remit," or
 "collect and deliver," when used with reference to the department,
 means that the department, either directly or through a collection
 agreement authorized by RCW 9.94A.760, is responsible for monitoring
 and enforcing the offender's sentence with regard to the legal
 financial obligation, receiving payment thereof from the offender,
 and, consistent with current law, delivering daily the entire payment
 to the superior court clerk without depositing it in a departmental
 account.
     (3) "Commission" means the sentencing guidelines commission.
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     (4) "Community corrections officer" means an employee of the
 department who is responsible for carrying out specific duties in
 supervision of sentenced offenders and monitoring of sentence
 conditions.
     (5) "Community custody" means that portion of an offender's
 sentence of confinement in lieu of earned release time or imposed as
 part of a sentence under this chapter and served in the community
 subject to controls placed on the offender's movement and activities
 by the department.
     (6) "Community protection zone" means the area within 880 feet of
 the facilities and grounds of a public or private school.
     (7) "Community restitution" means compulsory service, without
 compensation, performed for the benefit of the community by the
 offender.
     (8) "Confinement" means total or partial confinement.
     (9) "Conviction" means an adjudication of guilt pursuant to Title
 10 or 13 RCW and includes a verdict of guilty, a finding of guilty,
 and acceptance of a plea of guilty.
     (10) "Crime-related prohibition" means an order of a court
 prohibiting conduct that directly relates to the circumstances of the
 crime for which the offender has been convicted, and shall not be
 construed to mean orders directing an offender affirmatively to
 participate in rehabilitative programs or to otherwise perform
 affirmative conduct. However, affirmative acts necessary to monitor
 compliance with the order of a court may be required by the
 department.
     (11) "Criminal history" means the list of a defendant's prior
 convictions and juvenile adjudications, whether in this state, in
 federal court, or elsewhere, and any issued certificates of
 restoration of opportunity pursuant to RCW 9.97.020.
     (a) The history shall include, where known, for each conviction
 (i) whether the defendant has been placed on probation and the length
 and terms thereof; and (ii) whether the defendant has been
 incarcerated and the length of incarceration.
     (b) A conviction may be removed from a defendant's criminal
 history only if it is vacated pursuant to RCW 9.96.060, 9.94A.640,
 9.95.240, or a similar out-of-state statute, or if the conviction has
 been vacated pursuant to a governor's pardon. However, when a
 defendant is charged with a recidivist offense, "criminal history"
 includes a vacated prior conviction for the sole purpose of
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 establishing that such vacated prior conviction constitutes an
 element of the present recidivist offense as provided in RCW
 9.94A.640(4)(b) and 9.96.060(7)(c).
     (c) The determination of a defendant's criminal history is
 distinct from the determination of an offender score. A prior
 conviction that was not included in an offender score calculated
 pursuant to a former version of the sentencing reform act remains
 part of the defendant's criminal history.
     (12) "Criminal street gang" means any ongoing organization,
 association, or group of three or more persons, whether formal or
 informal, having a common name or common identifying sign or symbol,
 having as one of its primary activities the commission of criminal
 acts, and whose members or associates individually or collectively
 engage in or have engaged in a pattern of criminal street gang
 activity. This definition does not apply to employees engaged in
 concerted activities for their mutual aid and protection, or to the
 activities of labor and bona fide nonprofit organizations or their
 members or agents.
     (13) "Criminal street gang associate or member" means any person
 who actively participates in any criminal street gang and who
 intentionally promotes, furthers, or assists in any criminal act by
 the criminal street gang.
     (14) "Criminal street gang-related offense" means any felony or
 misdemeanor offense, whether in this state or elsewhere, that is
 committed for the benefit of, at the direction of, or in association
 with any criminal street gang, or is committed with the intent to
 promote, further, or assist in any criminal conduct by the gang, or
 is committed for one or more of the following reasons:
     (a) To gain admission, prestige, or promotion within the gang;
     (b) To increase or maintain the gang's size, membership,
 prestige, dominance, or control in any geographical area;
     (c) To exact revenge or retribution for the gang or any member of
 the gang;
     (d) To obstruct justice, or intimidate or eliminate any witness
 against the gang or any member of the gang;
     (e) To directly or indirectly cause any benefit, aggrandizement,
 gain, profit, or other advantage for the gang, its reputation,
 influence, or membership; or
     (f) To provide the gang with any advantage in, or any control or
 dominance over any criminal market sector, including, but not limited
                                     p. 3                         SHB 1268
 to, manufacturing, delivering, or selling any controlled substance
 (chapter 69.50 RCW); arson (chapter 9A.48 RCW); trafficking in stolen
 property (chapter 9A.82 RCW); promoting prostitution (chapter 9A.88
 RCW); human trafficking (RCW 9A.40.100); promoting commercial sexual
 abuse of a minor (RCW 9.68A.101); or promoting pornography (chapter
 9.68 RCW).
     (15) "Day fine" means a fine imposed by the sentencing court that
 equals the difference between the offender's net daily income and the
 reasonable obligations that the offender has for the support of the
 offender and any dependents.
     (16) "Day reporting" means a program of enhanced supervision
 designed to monitor the offender's daily activities and compliance
 with sentence conditions, and in which the offender is required to
 report daily to a specific location designated by the department or
 the sentencing court.
     (17) "Department" means the department of corrections.
     (18) "Determinate sentence" means a sentence that states with
 exactitude the number of actual years, months, or days of total
 confinement, of partial confinement, of community custody, the number
 of actual hours or days of community restitution work, or dollars or
 terms of a legal financial obligation. The fact that an offender
 through earned release can reduce the actual period of confinement
 shall not affect the classification of the sentence as a determinate
 sentence.
     (19) "Disposable earnings" means that part of the earnings of an
 offender remaining after the deduction from those earnings of any
 amount required by law to be withheld. For the purposes of this
 definition, "earnings" means compensation paid or payable for
 personal services, whether denominated as wages, salary, commission,
 bonuses, or otherwise, and, notwithstanding any other provision of
 law making the payments exempt from garnishment, attachment, or other
 process to satisfy a court-ordered legal financial obligation,
 specifically includes periodic payments pursuant to pension or
 retirement programs, or insurance policies of any type, but does not
 include payments made under Title 50 RCW, except as provided in RCW
 50.40.020 and 50.40.050, or Title 74 RCW.
     (20)(a) "Domestic violence" has the same meaning as defined in
 RCW 10.99.020.
     (b) "Domestic violence" also means: (i) Physical harm, bodily
 injury, assault, or the infliction of fear of imminent physical harm,
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 bodily injury, or assault, sexual assault, or stalking, as defined in
 RCW 9A.46.110, of one intimate partner by another intimate partner as
 defined in RCW 10.99.020; or (ii) physical harm, bodily injury,
 assault, or the infliction of fear of imminent physical harm, bodily
 injury, or assault, sexual assault, or stalking, as defined in RCW
 9A.46.110, of one family or household member by another family or
 household member as defined in RCW 10.99.020.
     (21) "Drug offender sentencing alternative" is a sentencing
 option available to persons convicted of a felony offense who are
 eligible for the option under RCW 9.94A.660.
     (22) "Drug offense" means:
     (a) Any felony violation of chapter 69.50 RCW except possession
 of a controlled substance (RCW 69.50.4013) or forged prescription for
 a controlled substance (RCW 69.50.403);
     (b) Any offense defined as a felony under federal law that
 relates   to    the   possession,   manufacture,    distribution,  or
 transportation of a controlled substance; or
     (c) Any out-of-state conviction for an offense that under the
 laws of this state would be a felony classified as a drug offense
 under (a) of this subsection.
     (23) "Earned release" means earned release from confinement as
 provided in RCW 9.94A.728.
     (24) "Electronic monitoring" means tracking the location of an
 individual through the use of technology that is capable of
 determining or identifying the monitored individual's presence or
 absence at a particular location including, but not limited to:
     (a) Radio frequency signaling technology, which detects if the
 monitored individual is or is not at an approved location and
 notifies the monitoring agency of the time that the monitored
 individual either leaves the approved location or tampers with or
 removes the monitoring device; or
     (b) Active or passive global positioning system technology, which
 detects the location of the monitored individual and notifies the
 monitoring agency of the monitored individual's location and which
 may also include electronic monitoring with victim notification
 technology that is capable of notifying a victim or protected party,
 either directly or through a monitoring agency, if the monitored
 individual enters within the restricted distance of a victim or
 protected party, or within the restricted distance of a designated
 location.
                                     p. 5                         SHB 1268
     (25) "Escape" means:
     (a) Sexually violent predator escape (RCW 9A.76.115), escape in
 the first degree (RCW 9A.76.110), escape in the second degree (RCW
 9A.76.120), willful failure to return from furlough (RCW 72.66.060),
 willful failure to return from work release (RCW 72.65.070), or
 willful failure to be available for supervision by the department
 while in community custody (RCW 72.09.310); or
     (b) Any federal or out-of-state conviction for an offense that
 under the laws of this state would be a felony classified as an
 escape under (a) of this subsection.
     (26) "Felony traffic offense" means:
     (a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW
 46.61.522), eluding a police officer (RCW 46.61.024), felony hit-and-
 run injury-accident (RCW 46.52.020(4)), felony driving while under
 the influence of intoxicating liquor or any drug (RCW 46.61.502(6)),
 or felony physical control of a vehicle while under the influence of
 intoxicating liquor or any drug (RCW 46.61.504(6)); or
     (b) Any federal or out-of-state conviction for an offense that
 under the laws of this state would be a felony classified as a felony
 traffic offense under (a) of this subsection.
     (27) "Fine" means a specific sum of money ordered by the
 sentencing court to be paid by the offender to the court over a
 specific period of time.
     (28) "First-time offender" means any person who has no prior
 convictions for a felony and is eligible for the first-time offender
 waiver under RCW 9.94A.650.
     (29) "Home detention" is a subset of electronic monitoring and
 means a program of partial confinement available to offenders wherein
 the offender is confined in a private residence 24 hours a day,
 unless an absence from the residence is approved, authorized, or
 otherwise permitted in the order by the court or other supervising
 agency that ordered home detention, and the offender is subject to
 electronic monitoring.
     (30) "Homelessness" or "homeless" means a condition where an
 individual lacks a fixed, regular, and adequate nighttime residence
 and who has a primary nighttime residence that is:
     (a) A supervised, publicly or privately operated shelter designed
 to provide temporary living accommodations;
     (b) A public or private place not designed for, or ordinarily
 used as, a regular sleeping accommodation for human beings; or
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     (c) A private residence where the individual stays as a transient
 invitee.
     (31) "Legal financial obligation" means a sum of money that is
 ordered by a superior court of the state of Washington for legal
 financial obligations which may include restitution to the victim,
 statutorily imposed crime victims' compensation fees as assessed
 pursuant to RCW 7.68.035, court costs, county or interlocal drug
 funds, court-appointed attorneys' fees, and costs of defense, fines,
 and any other financial obligation that is assessed to the offender
 as a result of a felony conviction. Upon conviction for vehicular
 assault while under the influence of intoxicating liquor or any drug,
 RCW 46.61.522(1)(b), or vehicular homicide while under the influence
 of intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal
 financial obligations may also include payment to a public agency of
 the expense of an emergency response to the incident resulting in the
 conviction, subject to RCW 38.52.430.
     (32) "Most serious offense" means any of the following felonies
 or a felony attempt to commit any of the following felonies:
     (a) Any felony defined under any law as a class A felony or
 criminal solicitation of or criminal conspiracy to commit a class A
 felony;
     (b) Assault in the second degree;
     (c) Assault of a child in the second degree;
     (d) Child molestation in the second degree;
     (e) Controlled substance homicide;
     (f) Extortion in the first degree;
     (g) Incest when committed against a child under age 14;
     (h) Indecent liberties;
     (i) Kidnapping in the second degree;
     (j) Leading organized crime;
     (k) Manslaughter in the first degree;
     (l) Manslaughter in the second degree;
     (m) Promoting prostitution in the first degree;
     (n) Rape in the third degree;
     (o) Sexual exploitation;
     (p) Vehicular assault, when caused by the operation or driving of
 a vehicle by a person while under the influence of intoxicating
 liquor or any drug or by the operation or driving of a vehicle in a
 reckless manner;
                                     p. 7                         SHB 1268
     (q) Vehicular homicide, when proximately caused by the driving of
 any vehicle by any person while under the influence of intoxicating
 liquor or any drug as defined by RCW 46.61.502, or by the operation
 of any vehicle in a reckless manner;
     (r) Any other class B felony offense with a finding of sexual
 motivation;
     (s) Any other felony with a deadly weapon verdict under RCW
 9.94A.825;
     (t) Any felony offense in effect at any time prior to December 2,
 1993, that is comparable to a most serious offense under this
 subsection, or any federal or out-of-state conviction for an offense
 that under the laws of this state would be a felony classified as a
 most serious offense under this subsection;
     (u)(i) A prior conviction for indecent liberties under RCW
 9A.44.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex.
 sess. as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b),
 and (c) as it existed from July 1, 1979, until June 11, 1986, and RCW
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