State Of Washington, Respondent V. Emmanuel David Martinez, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
EMMANUEL MARTINEZ,
Appellant.
Trickey, 	A.C.J. 	— 	Emmanuel 	Martinez 	appeals 	his 	judgment 	and
sentence for his conviction of assault in the second degree. 	He argues that the
trial court erred when it imposed a term of 18 months of community custody.
Martinez contends that the correct community custody term is 12 months. 	We
disagree and therefore affirm.
FACTS
The State charged Martinez with one count of assault in the first degree
based on an incident that occurred on May 8, 2014. 	The State alleged that
Martinez beat his neighbor by repeatedly hitting him and kicking him even after
he lost consciousness. 	The charge included an aggravating circumstance that
the victim was particularly vulnerable or incapable of resistance.
Following a trial, a jury convicted Martinez of the lesser included charge of
assault in the second degree. The jury also found that Martinez knew, or should
have 	known, 	that 	the 	victim 	was 	particularly 	vulnerable 	or 	incapable 	of
resistance.
) 	No. 73453-9-1
) 	DIVISION ONE en,
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) 	UNPUBLISHED OPINION 	CD
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) 	FILED: October 10, 2016 	cr;
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No. 73453-9-1 / 2
At sentencing, the trial court 	imposed an 	exceptional sentence of 100
months 	in custody. 	The 	trial court also 	imposed 	a 	term 	of 	18 	months 	of
community custody.
Martinez appeals.
ANALYSIS
Martinez's sole argument on appeal is that the trial court erred when it
imposed a term of 18 months of community custody. 	Martinez contends that the
community custody statute, RCW 9.94A.701, is ambiguous as to the length of the
community custody term for assault in the second degree because assault in the
second degree is both a "violent offense" requiring 	18 months of community
custody under RCW 9.94A.701(2), as well as a "crime against persons" requiring
12 months of community custody under RCW 9.94A.701(3)(a).1 	Martinez further
contends that the rule of lenity requires the imposition of the lesser term. 	We
disagree, and adopt the reasoning and analysis of State v. Hood, in deciding this
issue. 	State v. Hood. No. 73401-6-1, 2016 WL 5375194 (Wash. Ct. App. Sept.
26,2016).
RCW 9.94A.701 	is the statute controlling Martinez's term of community
custody. 	In relevant part, that statute provides:
(2) A court shall, in addition to the other terms of the sentence,
sentence an offender to community custody for eighteen months
when 	the 	court 	sentences 	the 	person 	to 	the 	custody 	of 	the
department for a violent offense that is not considered a serious
violent offense.
(3) A court shall, in addition to the other terms of the sentence,
sentence an offender to community custody for one year when the
1 Br. of Appellant at 1-6.

No. 73453-9-1 / 3
court sentences the person to the custody of the department for:
(a) Any crime against persons under RCW 9.94A.411 (2).
RCW9.94A.701(2), (3)(a).
Assault 	in 	the 	second 	degree 	is 	a 	"violent 	offense" 	under 	RCW
9.94A.030(55)(viii). Thus, it falls within the plain language of RCW 9.94A.701(2),
which requires a community custody term of 18 months. 	Assault in the second
degree is also a "[c]rime against persons" under RCW 9.94A.411(2)). 	Thus, it
also falls within the plain language of RCW 9.94A.701(3)(a), which 	requires a
community custody term of 12 months.
Nevertheless, the only reasonable reading of RCW 9.94A.701 is that the
statute requires a term of 18 months of community custody for assault in the
second degree. 	As we decided 	in Hood, the statutory scheme as a whole
establishes that the legislature clearly intended for individuals who commit violent
offenses to receive a longer term of community custody than individuals who
commit less violent crimes against persons. 	2016 WL 5375194, at *6; see RCW
9.94A.701, .702. 	This is consistent with the legislature's purpose to "[ejnsure
that the punishment for a criminal offense is proportionate to the seriousness of
the offense and the offender's criminal history." 	RCW 9.94A.010(1).
Moreover, 	"'[statutes 	must 	be 	interpreted 	and 	construed 	so 	that 	all
language 	used 	is 	given 	effect, 	with 	no 	portion 	rendered 	meaningless 	or
superfluous.'" 	State v. J.P.. 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (internal
quotation marks omitted) (quoting Davis v. Dep't of Licensing, 137 Wn.2d 957,
963, 977 P.2d 554 (1999)). 	If we were to hold that the 12 month community

No. 73453-9-1/4
custody term of RCW 9.94A.701(3)(a) applied to all crimes against persons-
even violent offenses—RCW 9.94A.701(2) would be rendered meaningless.
As 	we 	stated 	in 	Hood, 	"[bjecause 	the 	potential 	ambiguity 	can 	be
reconciled in a way that reflects the legislature's clear intent, we do not apply the
rule of lenity. 	State v. Oaklev. 117 Wn. App. 730, 734, 72 P.3d 1114 (2003),
review denied. 151 Wn.2d 1007[, 87 P.3d 1185] (2004)." 	2016 WL 5375194, at
*6. 	We therefore conclude that RCW 9.94A.701 	is not ambiguous as to the
length of the community custody term for assault in the second degree. 	Because
assault in the second degree is a violent offense, the trial court correctly applied
RCW 9.94A.701(2) and sentenced Martinez to 18 months of community custody.
We affirm the judgment and sentence.
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WE CONCUR:
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