State of Washington v. Manuel Mejia Penaloza

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
MANUEL MEJIA PENALOZA,
Appellant.
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No. 36481-0-III
UNPUBLISHED OPINION
PENNELL , C.J. — Manuel Penaloza appeals his conviction for second degree
assault of a child, arguing the statutes underlying his conviction are unconstitutionally
vague. We disagree and affirm.
BACKGROUND
Mr. Penaloza used a belt to “spank” his 13-year-old daughter after prior attempts at
discipline failed. According to witness testimony, Mr. Penaloza struck his daughter
approximately 25 times. Afterward, the girl was crying and bleeding from her mouth. Her
glasses were broken. The belt strikes left deep bruises along the girl’s entire back
that remained visible two days later. Photographs of the injuries call to mind a whipping.
An examining physician detected blood in the girl’s urine, consistent with internal
injuries from nonaccidental trauma.
FILED
MARCH 31, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 36481-0-III
State v. Penaloza
2
The State charged Mr. Penaloza with one count of second degree assault, alleging
he “intentionally assaulted [his daughter], and thereby recklessly inflicted substantial
bodily harm.” Clerk’s Papers (CP) at 4.
The case proceeded to a jury trial. Pursuant to RCW 9A.36.021(1)(a), the court
instructed the jury that the State had the burden of proving Mr. Penaloza intentionally
assaulted his daughter and thereby recklessly inflicted substantial bodily harm. The
jury was also provided the definition of “substantial bodily harm” consistent with
RCW 9A.04.110(4)(b): “Substantial bodily harm means bodily injury that involves a
temporary but substantial disfigurement.” CP at 18.
The court granted Mr. Penaloza’s request for an instruction on parental discipline,
pursuant to WPIC 17.071 and RCW 9A.16.100. Like the statute, the instruction informed
jurors that a parent’s use of “physical discipline of a child is lawful when it is reasonable
and moderate.” CP at 22. Additionally, both the statute and the instruction provide that
jurors
may, but are not required to, infer that it is unreasonable to do the following
act(s) to correct or restrain a child: throwing, kicking, burning, or cutting a
child, striking a child with a closed fist, shaking a child under age three,
1 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY I NSTRUCTIONS:
CRIMINAL 17.07 (4th ed. 2016) (WPIC) (This pattern instruction was inadvertently
omitted from the bound fourth edition of the WPIC when it was published in October
2016, and has not otherwise been supplemented to the bound volume. It is available in an
electronic version at the following Perma Link) [https://perma.cc/GYG9-UGS4].

No. 36481-0-III
State v. Penaloza
3
interfering with a child’s breathing, threatening a child with a deadly
weapon, doing any act that is likely to cause, and that does cause, bodily
harm greater than transient pain or minor temporary marks. You shall
consider the age, size, and condition of the child, and the location of the
injury, when determining whether the bodily harm is reasonable or
moderate. This inference is not binding upon you, and it is for you to
determine what weight, if any, such inference is to be given.
Id.
The jury returned a guilty verdict. The court sentenced Mr. Penaloza to five
months’ imprisonment with credit for time served. Mr. Penaloza appeals.
ANALYSIS
Mr. Penaloza challenges two statutes relevant to his conviction. The first is
RCW 9A.04.110(4)(b), which defines “substantial bodily harm” as “bodily injury which
involves a temporary but substantial disfigurement.” (emphasis added). The second is
RCW 9A.16.100, which allows parents to employ “physical discipline” to a child so long
as such discipline is “reasonable and moderate.”
Although Mr. Penaloza did not assert a vagueness claim at trial, his constitutional
challenge may be raised for the first time on appeal. RAP 2.5(a)(3).
A statute can be vague in two ways: (1) it can fail to provide fair notice and (2) it
can be “so standardless that it invites arbitrary enforcement.” Johnson v. United States,
___ U.S. ___, 135 S. Ct. 2551, 2556, 192 L. Ed. 2d 569 (2015). We review vagueness
challenges that do not implicate the First Amendment to the United States Constitution

No. 36481-0-III
State v. Penaloza
4
on an as-applied basis. State v. Schilling, 9 Wn. App. 2d 115, 119, 442 P.3d 262 (2019).
The question is whether a statute is so vague that a person of reasonable intelligence must
guess at its meaning. State v. Duncalf, 177 Wn.2d 289, 297, 300 P.3d 352 (2013).
Mr. Penaloza first argues the term “substantial disfigurement,” set forth in
RCW 9A.04.110(4)(b), is impermissibly vague. We are unpersuaded. Our state Supreme
Court has rejected a similar claim in Duncalf. As the Duncalf court explained, “the term
‘substantial’ is used in a number of criminal statutes that have withstood due process
vagueness challenges.” 177 Wn.2d at 297-98. A person of reasonable understanding
would not have to guess that causing visible bruises lasting for several days constitutes
temporary but substantial disfigurement. See State v. McKague, 172 Wn.2d 802, 805-06,
262 P.3d 1225 (2011) (bruising lasting several days sufficiently severe to permit finding
of substantial but temporary disfigurement). Mr. Penaloza’s vagueness challenge to
RCW 9A.04.110(4)(b) therefore fails.
Mr. Penaloza next challenges RCW 9A.16.100, which allows parents to use
physical force in “restraining or correcting” a child, provided such force is “reasonable
and moderate.” Mr. Penaloza claims the phrase “reasonable and moderate” is subject to
divergent generational and cultural interpretations, resulting in unconstitutionally
subjective enforcement standards. We disagree.

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The statute’s language protects against arbitrary enforcement by providing a
detailed discussion, including a nonexclusive illustrative list, of the type of force that may
be considered unreasonable in the disciplinary context.2 A person of reasonable
intelligence would understand that striking a child in a manner causing multiple lasting
bruises, as well as possible internal injuries, is too severe to constitute parental discipline.
Indeed, Mr. Penaloza even conceded on cross-examination that his discipline of his
2 RCW 9A.16.100 reads, in full:
It is the policy of this state to protect children from assault and abuse
and to encourage parents, teachers, and their authorized agents to use
methods of correction and restraint of children that are not dangerous to the
children. However, the physical discipline of a child is not unlawful when it
is reasonable and moderate and is inflicted by a parent, teacher, or guardian
for purposes of restraining or correcting the child. Any use of force on a
child by any other person is unlawful unless it is reasonable and moderate
and is authorized in advance by the child's parent or guardian for purposes
of restraining or correcting the child.
The following actions are presumed unreasonable when used to
correct or restrain a child: (1) Throwing, kicking, burning, or cutting a
child; (2) striking a child with a closed fist; (3) shaking a child under age
three; (4) interfering with a child's breathing; (5) threatening a child with a
deadly weapon; or (6) doing any other act that is likely to cause and which
does cause bodily harm greater than transient pain or minor temporary
marks. The age, size, and condition of the child and the location of the
injury shall be considered when determining whether the bodily harm is
reasonable or moderate. This list is illustrative of unreasonable actions and
is not intended to be exclusive.

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daughter had gone “too far.” 3 Report of Proceedings (Oct. 25, 2018) at 161. His
vagueness challenge fails.
CONCLUSION
The judgment of conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, C.J.
WE CONCUR:
Siddoway, J.
Fearing, J.