* State Of Washington, Respondent V. Christian Alexander Quijas, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
CRISTIAN ALEXANDER QUIJAS,
Appellant.
No. 86476-9-I
DIVISION ONE
OPINION PUBLISHED IN PART
DÍAZ, J. — Cristian Alexander Quijas participated in two fights with other
inmates while incarcerated at the Skagit County Jail. A jury convicted Quijas inter
alia of two counts of prison riot under RCW 9.94.010. He now argues the statute
is unconstitutionally vague and overbroad. Alternatively, he claims that insufficient
evidence supported those convictions, that those counts should have been
severed, and that the State failed to provide sufficient evidence for the amount of
restitution ordered. 	We reverse the restitution order and remand for further
proceedings consistent with this opinion. Otherwise, we affirm Quijas’ convictions.
I. 	BACKGROUND
The following facts are undisputed on appeal. The two fights underlying this
appeal occurred in November and December 2022 at the Skagit County Jail. Both
fights occurred in a common area between two antagonistic groups of inmates.
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No. 86476-9-I/2
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Quijas participated in both fights and assaulted other inmates. 	Correctional
officers commanded the inmates, including Quijas, to stop fighting and physically
broke up the fights after approximately one minute. 	Joseph Nelson and Robert
Pierce were the main targets of the first and second fights respectively and
received medical treatment afterwards.
For each fight, the State charged Quijas with one count of prison riot and
one count of assault in the fourth degree. 	Prior to trial, Quijas unsuccessfully
moved to sever and, separately, to dismiss the prison riot charges, arguing in the
latter that the statute unconstitutionally lacked a mens rea element. Clerk’s Papers
(CP) at 105 (citing Blake, 197 Wn.2d 170, 481 P.3d 521 (2021)) . In response to
Quijas’ constitutional challenge, the court added the word “intentionally” to the “to-
convict” prison riot jury instructions.
In early 2024, a jury convicted Quijas on both prison riot counts and both
counts of assault in the fourth degree, the latter two of which he does not challenge
here. 	The court imposed a period of confinement and ordered Quijas to pay
restitution for Nelson and Pierce’s medical bills. Quijas now appeals only from his
convictions for prison riot and from the order of restitution.
II. 	ANALYSIS
A. 	Constitutional Challenges
Quijas first argues that Washington’s prison riot statute is unconstitutionally
vague and overbroad, the latter by criminalizing conduct protected by the First
Amendment. U.S. CONST. amend I. The statue, in full, states that:
(1) Whenever two or more inmates of a correctional institution
assemble for any purpose, and act in such a manner as to disturb
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the good order of the institution and contrary to the commands of
the officers of the institution, by the use of force or violence, or
the threat thereof, and whether acting in concert or not, they shall
be guilty of prison riot.
(2) Every inmate of a correctional institution who is guilty of prison
riot or of voluntarily participating therein by being present at, or
by instigating, aiding, or abetting the same, is guilty of a class B
felony 	and 	shall 	be 	punished 	by 	imprisonment 	in 	a 	state
correctional institution for not less than one year nor more than
ten years, which shall be in addition to the sentence being served.
RCW 9.94.010.
“When 	interpreting 	a 	statute, 	the 	court’s 	fundamental 	objective 	is 	to
ascertain and carry out the legislature’s intent.” 	State v. Sweany, 162 Wn. App.
223, 230, 256 P.3d 1230 (2011). We “begin[] by reading the text of the statute or
statutes involved. 	If the language is unambiguous, a reviewing court is to rely
solely on the statutory language.” 	State v. Roggenkamp, 153 Wn.2d 614, 621,
106 P.3d 196 (2005). 	“Where statutory language is amenable to more than one
reasonable interpretation, it is deemed to be ambiguous” and we may turn to
“[l]egislative history, principles of statutory construction, and relevant case law.”
Id. “We review a question of statutory construction de novo.” Id.
As for constitutional challenges more specifically, “[s]tatutes are presumed
constitutional.” 	State v. Batson, 196 Wn.2d 670, 674, 478 P.3d 75 (2020).
“‘Wherever possible, it is the duty of this court to construe a statute so as to uphold
its constitutionality.’” 	Id. (internal quotation marks omitted) (quoting State v.
Abrams, 163 Wn.2d 277, 282, 178 P.3d 1021 (2008)). 	As such, the challenging
party 	“has 	the 	burden 	of 	proving 	the 	statute 	is 	unconstitutional 	beyond 	a
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No. 86476-9-I/4
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reasonable doubt.”1 	State v. Watson, 130 Wn. App. 376, 378, 122 P.3d 939
(2005).
The parties do not claim that there is, and we have not found, a case which
squarely addresses the constitutionality of RCW 9.94.010 on the two bases
asserted 	here. 	Nonetheless, 	applying 	the 	foregoing 	principles 	of 	statutory
construction, and the relevant constitutional principles below, we disagree with
both arguments, which we address in turn.2
1. 	Vagueness
The “due process vagueness doctrine under the Fourteenth Amendment
and article I, section 3 of [Washington’s] constitution requires that citizens have fair
warning of proscribed conduct.” State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678
(2008); U.S. CONST. amend XIV. A statute is unconstitutionally vague if it “‘(1) . . .
does not define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is proscribed, or (2) . . . does not provide
1 “As used in this context, ‘beyond a reasonable doubt’ is not an evidentiary
standard but a reflection of ‘respect for the legislature.’” Quinn v. Dep’t of Revenue,
1 Wn.3d 453, 471 n.9, 526 P.3d 1 (2023) (quoting Sch. Dists.’ All. for Adequate
Funding of Special Educ. v. State, 170 Wn.2d 599, 606, 244 P.3d 1 (2010)). 	“It
signifies we will not invalidate a statute unless the challenger, ‘by argument and
research, convince[s] the court that there is no reasonable doubt that the statute
violates the constitution.’” Id. (alteration in original) (quoting Island County v. State,
135 Wn.2d 141, 147, 955 P.2d 377 (1998)).
2 The State preliminarily claims that Quijas failed to preserve both his vagueness
and overbreadth challenges. Even assuming arguendo one or more of his specific
arguments are unpreserved, we exercise our discretion under RAP 2.5 to review
each of his vagueness and overbreadth challenges, as both sets of issues are fully
briefed and interrelated to at least one admittedly preserved issue. See CP at 105
(citing State v. Blake, 197 Wn.2d 170, 182-83, 481 P.3d 521 (2021)); State v. Ford,
137 Wn.2d 472, 477, 973 P.2d 452 (1999) (holding that RAP 2.5 “never operates
as an absolute bar to review”).
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No. 86476-9-I/5
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ascertainable standards of guilt to protect against arbitrary enforcement.’” 	Id. at
752-53 (alterations in original) (quoting City of Spokane v. Douglass, 115 Wn.2d
171, 178, 795 P.2d 693 (1990)). 	The former is often called the common
intelligence requirement. As to the latter, a statute permits arbitrary enforcement
and “will be overturned only if the court is unable to place a sufficiently limiting
construction on a standardless sweep of legislation.” 	City of Tacoma v. Luvene,
118 Wn.2d 826, 840, 827 P.2d 1374 (1992).
“Vagueness must be considered in light of the entire statutory context,
‘afford[ing] a sensible, meaningful, and practical interpretation.’” State v. Birge, 16
Wn. App. 2d 16, 39, 478 P.3d 1144 (2021) (alteration in original) (quoting State v.
Evergreen Freedom Found., 192 Wn.2d 782, 796, 432 P.3d 805 (2019)). 	“[A]n
enactment is not facially vague if it is susceptible to a constitutional interpretation.”
Luvene, 118 Wn.2d at 844-45.3
“If either of [the above] requirements is not satisfied, the ordinance is
unconstitutionally vague.” 	Bahl, 164 Wn.2d at 753 (emphasis added). 	Here,
Quijas argues the statute fails both of the above “requirements,” which we address
in turn. Id.
3 It appears that Quijas initially asserted only that the statute is facially vague, as
his arguments were based on hypotheticals broader than his conduct. 	See State
v. Birge, 16 Wn. App. 2d 16, 39, 478 P.3d 1144 (2021) (defining a facial challenge
as one which alleges a statute is improper in any context, in contrast to an as
applied challenge which focuses on the matter’s specific facts). 	But, in his reply
brief, Quijas specifies that he is bringing an as applied vagueness challenge in the
“alternative” with no further elaboration or citation to the record. (Citing Douglass,
115 Wn.2d at 182). As neither party briefs the matter, we need not linger on this
distinction. 	And, given the way we resolve this matter, we need not reach the
State’s secondary argument that Quijas has no standing to bring a facial void-for-
vagueness challenge.
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No. 86476-9-I/6
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a. 	Common Intelligence Requirement
Under the first requirement, a “statute is void for vagueness if it is framed in
terms so vague that persons of common intelligence must necessarily guess at its
meaning and differ as to its applicability.” Luvene, 118 Wn.2d at 844. On the other
hand, a statute is constitutional if the “public has adequate notice of what conduct
is proscribed.” State v. Saunders, 132 Wn. App. 592, 599, 132 P.3d 743 (2006).
A “statute is not unconstitutionally vague merely because a person cannot
predict with complete certainty the exact point at which his actions would be
classified as prohibited conduct.” City of Seattle v. Abercrombie, 85 Wn. App. 393,
399-400, 945 P.2d 1132 (1997). “[S]ome degree of vagueness is inherent because
language must be used to proscribe the conduct.” In re Det. of Albrecht, 129 Wn.
App. 243, 254, 118 P.3d 909 (2005).
Quijas makes two overarching arguments as to why the statute fails the
common intelligence requirement, namely, that the statute improperly lacks a
mens rea and actus rea, which we address in turn.
i. 	Mens Rea
Quijas argues that, “[w]ithout an express mental state, the crime is a strict
liability offense,” which in turn “creates a trap for the innocent” as “any mental state
will suffice,” even “essentially innocent conduct.” 	We disagree.
We hold that RCW 9.94.010(1) includes various undefined terms that
contain an implied element of intent. “‘[N]onstatutory elements are implied’” if they
are “‘derived from our reasoned judgment as to legislative intent,’” including
“impliedly adding a mens rea element to a criminal statute.” State v. Moreno, 198
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No. 86476-9-I/7
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Wn.2d 737, 742, 499 P.3d 198 (2021) (quoting State v. Miller, 156 Wn.2d 23, 28,
123 P.3d 827 (2005)). “An undefined term is ‘given its plain and ordinary meaning
unless a contrary legislative intent is indicated.’” 	State v. Ervin, 169 Wn.2d 815,
820, 239 P.3d 354 (2010) (quoting Ravenscroft v. Wash. Water Power Co., 136
Wn.2d 911, 920–21, 969 P.2d 75 (1998)).
Namely, the pertinent portion of the statute requires a defendant-inmate to
“assemble for any purpose, and act in such a manner as to disturb the good order
of the institution and contrary to the commands of the officers of the institution.”
RCW 9.94.010(1) (emphasis added). 	“We may rely upon the dictionary when
statutory terms are undefined.” 	State v. Mitchell, 169 Wn.2d 437, 444, 237 P.3d
282 (2010).
“Assemble” is defined as “to come or meet together in a group . . . often
purposefully” and “to bring together (as in a particular place or for a particular
purpose).” 	W EBSTER’S 	T HIRD 	NEW 	I NTERNATIONAL 	DICTIONARY 	131 	(2002)
(emphasis added); MERRIAM-W EBSTER O NLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/assemble (last visited Jun. 13, 2025) (emphasis added).
“Act” is defined as “produc[ing] a desired effect” or “something done
voluntarily.” 	W EBSTER’S T HIRD NEW I NTERNATIONAL DICTIONARY at 20 (emphasis
added); 	MERRIAM-W EBSTER 	O NLINE 	D ICTIONARY, 	https://www.merriam-
webster.com/dictionary/act (last visited Jun. 13, 2025) (emphasis added).
“Contrary” is defined as “a self-willed opposition to others’ wishes” or
“temperamentally unwilling to accept control or advice.” 	W EBSTER’S T HIRD NEW
I NTERNATIONAL DICTIONARY at 495 (emphasis added); MERRIAM-W EBSTER O NLINE
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No. 86476-9-I/8
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DICTIONARY, 	https://www.merriam-webster.com/dictionary/contrary 	(last 	visited
Jun. 13, 2025).
The plain and ordinary meaning of the above words indicates that, to be
convicted of this crime, a defendant-inmate must have acted with intent or volition
in assembling, acting, and disregarding an officer’s commands.
Moreover, the following provision, RCW 9.94.010(2), states that “[e]very
inmate of a correctional institution . . . voluntarily participating [in a prison riot] by
being present at, or by instigating, aiding, or abetting the same [] is guilty of a class
B felony.” 	(Emphasis added.) 	Contrary to Quijas’ assertions, even RCW
9.94.010(2) does not “create[] a trap for the innocent.”
In short, the “plain language” of RCW 9.94.010 “as a whole” signals that the
legislature included an implicit intent requirement in its first provision. 	State v.
Myles, 127 Wn.2d 807, 813-14, 903 P.2d 979 (1995). As the “surest indication of
legislative intent is the language enacted by the legislature,” we hold the text of
RCW 9.94.010(1) contains at least an implied requirement of purposeful, desired,
or self-willed, i.e., intentional action, defeating Quijas’ argument that this statute is
vague because it lacks a mens rea. Ervin, 169 Wn.2d at 820.4
ii. 	Actus Reus
Quijas next asserts the prison riot statute is vague because it “lacks any
4 Relatedly, Quijas argues the phrase “‘to disturb the good order’ is highly
subjective and indefinite” as it implicates inmates “simply because they were
together.” Br. of Appellant at 20 (quoting RCW 9.94.010). He also similarly argues
“officers strictly control inmates’ grouping, schedule, and whereabouts” and “yet
[inmates] may be charged with prison riot simply because they are with others who
cause a disturbance” or if they “try to defend themselves.” 	These arguments fail
for the same reason.
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No. 86476-9-I/9
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clearly identified actus reus,” i.e., what physical actions or conduct are prohibited.
(Emphasis omitted.) 	He focuses on two phrases within RCW 9.94.010(1). 	First,
he claims that the statute’s requirement that the inmate “act in such a manner as
to disturb the good order of the institution” defines prison right “by its effect” and is
“highly subjective and indefinite” because an impact on the institution as innocuous
as “a simple delay or inconvenience . . . may constitute prison riot.” 	Second, he
asserts the statute may incriminate one inmate for the conduct of another inmate
as long as they “assemble for any purpose,” which is “not limited to unlawful
purposes.” RCW 9.94.010(1) (emphasis added).
Quijas’ 	argument 	presents 	an 	artificially 	constricted 	view 	of 	RCW
9.94.010(1). “[I]n a vagueness challenge the court does not analyze portions of a
statute in isolation; instead, a statute is viewed as a whole to see if it has the
required degree of specificity.” 	Myles, 127 Wn.2d at 814; see also State v.
Maloney, 78 Wn.2d 922, 924-25, 481 P.2d 1 (1971) (rejecting a vagueness
challenge to the term “disorderly” after considering the word “in its context”).
Here, the statute requires, not just that the good order of the institution be
disturbed 	or 	the 	defendant-inmate 	gather 	for 	some 	purpose, 	but 	that 	the
defendant-inmate utilize “force or violence, or the threat thereof” in doing so. RCW
9.94.010(1). That is, the use of force, of violence, or of threat thereof defines the
actus reus and allays any ambiguity in the terms “disturbs,” “good order”, and “any
purpose” when viewed in isolation. 	RCW 9.94.010(1). 	Even only as to threats,
"threats to harm the person or property of an individual, whether immediate or in
the future, require no additional element of intent because the defendant must
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No. 86476-9-I/10
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intentionally utter the words; one cannot innocently threaten harm to another.” City
of Seattle v. Ivan, 71 Wn. App. 145, 157, 856 P.2d 1116 (1993).5
In short, when viewing RCW 9.94.010(1) in its full context as we should,
Birge, 16 Wn. App. 2d at 39, we reject Quijas’ arguments that the statute fails the
common intelligence requirement.
b. 	Arbitrary Enforcement
As to the second Bahl requirement, Quijas argues RCW 9.94.010(1) “does
nothing to limit how it is enforced” in two new ways. 	First, he argues that the
element requiring an inmate to do something contrary to the officers’ commands
means that the “officers’ actions are directly related to whether an inmate
committed the offense,” such that an “officer’s actions . . . [are] part of the crime .
. . even if the officer issues . . . dangerous or impossible” orders. This fact could
lead to arbitrary enforcement, he argues, because it could allow an officer to
“intentionally . . . create a scenario that satisfies the statute.” Second, he argues
that “officers also control the circumstances that may lead to a disturbance that
constitutes prison riot," meaning that an officer could also negligently “create[]
circumstances that lead to,” e.g., a fight, as he claims happened here, when the
officer negligently permitted antagonistic groups to mix. 	In short, Quijas claims
5 Quijas also argues the “text does not clarify who or what the use or threat of
violence must be directed towards.” 	Again, a “statute is not unconstitutionally
vague merely because a person cannot predict with complete certainty the exact
point at which his actions would be classified as prohibited conduct.” Abercrombie,
85 Wn. App. at 399-400. 	Quijas otherwise presents no authorities that such
granularity is required. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126,
372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition,
the court is not required to search out authorities, but may assume that counsel,
after diligent search, has found none.”).
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No. 86476-9-I/11
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the statute grants officers “unfettered discretion.”
These arguments disregard the fact that RCW 9.94.010(1) only criminalizes
an inmate’s action that is, among other elements, contrary to an officer’s command
if and only if that action is done by “force or violence, or the threat thereof.” Even
assuming an inmate is given an intentionally or negligently dangerous order, a jury
could not convict them of this crime unless it is inter alia shown beyond a
reasonable doubt that the inmate intentionally chose to utilize “force or violence,
or the threat thereof” or voluntarily participated therein in specific ways. 	RCW
9.94.010(1)-(2). 	This case does not present a situation where an inmate is
attacked unprovoked and is forced to defend themselves, and immediately
desisted when commanded. 	We need not reach that question. 	For today, it is
sufficient that the force and violence clause provides ascertainable standards of
guilt to protect against arbitrary enforcement. 	See Luvene, 118 Wn.2d at 847
(holding that “prior decisions have stated that an intent element in an enactment
provides a sufficient limit on police discretion.”).6
Reading RCW 9.94.010(1) in its full context as we must, Birge, 16 Wn. App.
2d at 39, we hold Quijas failed to establish RCW 9.94.010 unconstitutionally
permits arbitrary enforcement. 	Bahl, 164 Wn.2d at 753. 	In turn, we hold Quijas
6 Largely repeating his claims above, Quijas also argues that the terms “disturb”
and “good order” are “‘inherently subjective’” allowing arbitrary enforcement,
quoting inter alia Myles, 127 Wn.2d at 812, and that the statute criminalizes
passive nonconduct. As explained above, RCW 9.94.010(1)’s layers of volitional
requirements distinguish it from the statute in Blake, where the court considered
“entirely passive” and even “unknowing” conduct, i.e., “standing outside” versus
“active trafficking.” 	197 Wn.2d at 182-83 (emphasis omitted). 	Thus, these
arguments fail too.
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No. 86476-9-I/12
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failed to establish, as is his burden, that RCW 9.94.010 is unconstitutionally vague
under either Bahl prong. Watson, 130 Wn. App. at 378.
2. 	Overbreadth
Our analysis of a claim that a statute is overbroad based on the First
Amendment is the same under both the federal and Washington’s constitutions.
State v. Patterson, 196 Wn. App. 451, 457, 389 P.3d 612 (2016). Preliminarily, we
must “determine whether the enactment at issue reaches a substantial amount of
constitutionally protected speech or expressive conduct.” 	Id. 	To do so, we
“undertake the task of weighing ‘the amount of protected speech proscribed by the
[law] 	against 	the 	amount 	of 	unprotected 	speech 	that 	the 	[law] 	legitimately
prohibits.’” Id. at 459 (alterations in original) (quoting State v. Immelt, 173 Wn.2d
1, 11, 267 P.3d 305 (2011)). This analysis applies to claims involving speech and
“expressive conduct.” 	State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797
(1998).
Under the above analysis, an “enactment is overbroad if it ‘sweeps within
its 	prohibitions’ 	a 	substantial 	amount 	of 	constitutionally 	protected 	conduct.”
Patterson, 196 Wn. App. at 457 (quoting Immelt, 173 Wn.2d at 6). 	“Criminal
statutes receive a more exacting scrutiny and may be facially invalid even if they
have a legitimate application.” Ivan, 71 Wn. App. at 150.
Quijas argues that RCW 9.94.010 reaches a substantial amount of First
Amendment conduct in two ways. First, he claims the statute infringes on the right
to assembly as it “sweeps in all inmates who are ‘assemble[d] ‘for any purpose’
even if there is no criminal or unlawful purpose.” 	Br. of Appellant at 39 (quoting
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RCW 9.94.010(1)). 	Second, he claims the statute “unduly infringes on inmates’
freedom of expression by prohibiting speech beyond ‘true threats’” as the “statute
does not include any mental element.” 	Id. at 39-40 (quoting Counterman v.
Colorado, 600 U.S. 66, 74, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023)).
Similar to our analysis of his vagueness claim, Quijas ignores those portions
of RCW 9.94.010 which require the defendant, to be convicted, to act with “force
or violence, or the threat thereof.” When part of the calculation, Quijas’ argument
fails because our Supreme Court has held that “rights of peaceable assembly and
freedom of speech are not abridged by laws which prohibit . . . formulat[ing] a
purpose to breach the peace, or injure persons or property or do any other unlawful
acts.” State v. Dixon, 78 Wn.2d 796, 807, 479 P.2d 931 (1971); see also State v.
Monschke, 133 Wn. App. 313, 331-32, 135 P.3d 566 (2006) (holding that violence
is unprotected by the First Amendment, even where such violence or force has
expressive content); Ivan, 71 Wn. App. at 150-51 (“[c]ommunications that are
‘fighting words’ and inflict injury or encourage immediate breach of the peace are
not protected speech under the First Amendment” as opposed to merely “offensive
and provocative speech” which “is protected.”).7
As to threats specifically, RCW 9.94.010(1) further clarifies it prohibits “force
or violence, or the threat thereof,” i.e. threats of force or violence. 	(Emphasis
added.) Such threats fall under the definition of “[t]rue threats,” defined as “‘serious
7 	Even 	“offensive 	and 	provocative 	speech” 	can 	lose 	its 	First 	Amendment
protections if “likely to produce a ‘clear and present danger of serious substantive
evil.’” Ivan, 71 Wn. App. at 151 (quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69
S. Ct. 894, 896, 93 L. Ed. 1131 (1949)).
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expression[s]’ conveying that a speaker means to ‘commit an act of unlawful
violence.’” 	Counterman, 600 U.S. at 74 (quoting Virginia v. Black, 538 U.S. 343,
359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003)). And we already rejected Quijas’
claim that the statute “does not include any mental element.” Even if that were the
case, the “existence of a threat depends not on ‘the mental state of the author,’ but
on ‘what the statement conveys’ to the person on the other end.” 	Id. (quoting
Elonis v. United States, 575 U.S. 723, 733, 135 S. Ct. 2001, 192 L. Ed. 2d 1
(2015)); see also Ivan, 71 Wn. App. at 157 ("threats to harm . . . require no
additional element of intent.”).8
Moreover, “a prison inmate retains those First Amendment rights that are
not inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.
Ct. 2800, 41 L. Ed. 2d 495 (1974). Quijas acknowledges this precedent, but offers
no substantive argument on how preventing inmates from disobeying orders
through violence or threats thereof falls outside such objectives.
As a final note, Quijas’ argument that RCW 9.94.010 “allows content-based
restrictions on the freedom of speech” is unavailing. 	He claims that the statute
8 Quijas’ reliance on State v. Bower, 28 Wn. App. 704, 626 P.2d 39 (1981) is
inapposite. 	Br. of App. at 47-48. 	There, this court focused squarely on the jury
instructions, the actual text of which the opinion did not reproduce. Id. at 706-08,
abrogated on other grounds by State v. Kjorsvik, 117 Wn.2d 93, 99 n.5, 812 P.2d
86 (1991). Indeed, the opinion focuses on the formatting of instructions at a high
level 	as 	opposed 	to 	their 	specific 	wording, 	including 	whether 	they 	were
“conjunctive” or “disjunctive.” 	Id. at 708. 	Further, Bower did not substantively
discuss the First Amendment, unconstitutional vagueness, or the actual text of the
underlying statute (former RCW 9.94.030 (1957)), which is nonetheless distinct
from RCW 9.94.010. Id. at 707-08. Here, Quijas does not challenge this matter’s
jury instructions.
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No. 86476-9-I/15
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“criminalizes the heckler’s veto” and “lawful expression simply because it may
‘disturb the good order.’” Br. of Appellant at 41 (quoting RCW 9.94.010). We are
unconvinced. The statute is “speech neutral, and focuses on the disruption rather
than the viewpoint expressed by the disrupter.” Patterson, 196 Wn. App. at 459.
We hold RCW 9.94.010’s plain and unambiguous focus on force or threats
thereof “does not reach a substantial amount of constitutionally protected speech”
because the statute only seeks to regulate violent assemblies—to which there is
no right, particularly in a penological setting—and is thus “not overbroad.” 	Id. at
460. In turn, we hold Quijas failed to establish RCW 9.94.010 is unconstitutionally
overbroad. Id. at 457, 459.
Therefore, we hold Quijas failed to show, as is his burden, that RCW
9.94.010 is unconstitutional. Watson, 130 Wn. App. at 378.
A majority of the panel determined that only the foregoing portion of this
opinion will be published in the Washington Appellate Reports. 	The remainder,
starting with this paragraph, shall be filed for public record pursuant to RCW
2.06.040.9
B. 	Alternative Challenges
In 	the 	alternative, 	Quijas 	claims 	insufficient 	evidence 	supports 	those
convictions and that the court erred in failing to sever those charges and in ordering
restitution. We address each in turn.
9 We deny the State’s motion to strike the amicus brief filed by the Center for Civil
Rights and Critical Justice at the Seattle University School of Law. 	Given the
manner in which we resolve this matter, i.e., on the statutes’ plain language on the
assignments of error Quijas actually brought, we need not address its arguments.
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No. 86476-9-I/16
16
1. 	Sufficient Evidence
Quijas claims both of his prison riot charges lacked sufficient evidence
because the State presented no evidence he “intended to disturb the good order
of the institution” as he claims was required in the jury instruction. We disagree.
The jury instructions in pertinent part stated that, to convict Quijas of the
crime of prison riot, the jury had to find beyond a reasonable doubt that:
(1) On or about November 23, 2022 the defendant was an inmate in
a correctional institution, and
(2) He did assemble with one or more other inmates for any purpose,
and
(3) By the use of force or violence, or the threat thereof, he did act in
such a manner as to disturb the good order of the institution, and
(4) He did so intentionally contrary to the commands of the officers
of the institution.
(Emphasis added.) 	These instructions track the language of RCW 9.94.010(1),
other than the fact that the court added the term “intentionally” in paragraph (4).
See 1 Rep. of Proc. (RP) (Feb. 14, 2024) at 356, 361-62 (where the court ruled
that “a proper reading of the statute requires a clear intent on that portion to avoid
confusion by the jurors, of which we had the last time, clearly based on their
questions and based on . . . Defense Counsel’s inappropriate arguments during
closing.”).
Quijas 	concedes 	that 	“[n]obody 	objected 	to 	the 	court’s 	to-convict
instruction,” and, thus, the above instruction serves as “the law of the case.” State
v. Johnson, 188 Wn.2d 742, 755, 399 P.3d 507 (2017) (holding that unchallenged
instructions serve as the “‘law of the case’” and “‘are treated as the properly
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No. 86476-9-I/17
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applicable law for purposes of appeal.’”) (quoting Roberson v. Perez, 156 Wn.2d
33, 41, 123 P.3d 844 (2005)).
Quijas argues that an “adverb modifies a verb, and the most obvious and
logical verb is found in the third element.” 	That is, he argues that “the adverb
‘intentionally’ modifies the phrase ‘did so’” and “‘did so’ refers to the previously
mentioned action, namely the verb in the third element: ‘he did an act in such a
manner as to disturb the good order of the institution.’” 	We disagree with this
reading.
It is true that “adverbs modify verbs,” but adverbs also modify “adjectives or
other adverbs” and, importantly, “typically precede the adjectives and adverbs they
seek to modify.” Confederated Tribes of Grand Ronde Cmty. of Oregon v. Jewell,
830 F.3d 552, 560 (D.C. Cir. 2016) (citing MICHAEL S TRUMPF & A URIEL DOUGLAS ,
T HE G RAMMAR B IBLE 112 (2004)).
Given this more fulsome grammatical understanding, we hold that the more
natural reading is that the term “intentionally,” which is an adverb, modifies the
adjective “contrary,” which is found immediately thereafter. W EBSTER ’S T HIRD NEW
I NTERNATIONAL DICTIONARY at 495, 1176. 	In turn, the court instructed the jury to
determine, not whether he intentionally disturbed the good order of the institution,
but whether the State proved inter alia that Quijas acted intentionally contrary “to
the commands of the officers of the institution.”
More substantively, Quijas’ argument also ignores that the court expressly
stated that it intended that “intentionally” apply or modify only paragraph (4), stating
“I am adopting the State’s argument as to strict liability with the exception of a
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No. 86476-9-I/18
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single clause and that will be an intentional clause” or “mens rea”. (Emphasis
added.)
With that understanding of the State’s burden, the “test for determining the
sufficiency of the evidence is whether, after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt” for every element. State v. Salinas, 119 Wn.2d 192, 201, 829
P.2d 1068 (1992). “[A]ll reasonable inferences from the evidence must be drawn
in favor of the State and interpreted most strongly against the defendant.” Id. This
“standard is a deferential one, and questions of credibility, persuasiveness, and
conflicting testimony must be left to the jury.” In re Pers. Restraint of Martinez, 171
Wn.2d 354, 364, 256 P.3d 277 (2011).
Trial testimony from multiple correctional officers provides ample evidence
that 	Quijas 	continued 	his 	assaults 	contrary 	to 	repeated 	commands 	from
corrections officers during both fights. Thus, we reject Quijas’ claim that the jury
had evidence insufficient to convict him of the crimes of prison riot.
2. 	Severance
Quijas argues the court erred when it refused to sever the charges. 	We
disagree.
“The court . . . on application of the defendant . . . shall grant a severance
of offenses” if it “determines that severance will promote a fair determination of the
defendant’s guilt or innocence of each offense.” CrR 4.4(b). “Prejudice may result
from joinder if the defendant is embarrassed in the presentation of separate
defenses, or if use of a single trial invites the jury to cumulate evidence to find guilt
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No. 86476-9-I/19
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or infer a criminal disposition.” 	State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d
747 (1994).
“In determining whether the potential for prejudice requires severance, a
trial court must consider (1) the strength of the State’s evidence on each count; (2)
the clarity of defenses as to each count; (3) court instructions to the jury to consider
each count separately; and (4) the admissibility of evidence of the other charges
even if not joined for trial.” Id. at 63. “In addition, any residual prejudice must be
weighed against the need for judicial economy.” Id. A “trial court’s refusal to sever
charges is reversible only where it constitutes a manifest abuse of discretion.” Id.
“The defendant bears the burden of demonstrating such abuse.” Id.
As a preliminary matter, Quijas argues that reversal is required as the court
failed to walk through all four factors on the record, specifically the fourth factor.
While it is best practice to do so, and the failure to do so risks reversal, the record
is sufficient for our review.
It is true that this court recently held that a court “abused its discretion by
failing to conduct a complete analysis of the prejudice to [the defendant] on the
record.” 	State v. McCabe, 26 Wn. App. 2d 86, 95-96, 526 P.3d 891 (2023)
(emphasis added). 	But even there, this court held that this failure was harmless
as we could still “ensure that its ‘exercise of discretion was based upon a careful
and thoughtful consideration of the issue’” and [the defendant’s] “broad[] claim[s]”
failed to show “specific prejudice” from the court’s omission. Id. at 95-97 (quoting
State v. Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017) (holding that a court
considering a pretrial joinder motion should conduct its analysis on the record)).
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No. 86476-9-I/20
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Thus, we reject Quijas’ procedural argument and proceed to the merits of his claim.
It was not an abuse of discretion to find that the first Russell factor—“the
strength of the State’s evidence on each count”—weighed against severance. 125
Wn.2d at 63. As described above, the strength of the evidence for the November
and December incidents is similar, as in both, multiple officers testified to each
element of the crimes and videos were admitted supporting that testimony.
It was not an abuse of discretion to find that the second Russell factor—“the
clarity of defenses as to each count”—also weighed against severance. 	125
Wn.2d at 63. Quijas presented a unified defense for both prison riot counts at trial,
focusing on the failure to show that Quijas did not disturb the order of the jail. For
example, 	his 	opening 	argument 	did 	not 	distinguish 	either 	charge, 	instead
emphasizing their similarities and summarizing the crux of his defense, namely,
that on “11/23/22 and 12/13/22, Mr. Quijas committed crimes against people, not
against the institution.”
It was not an abuse of discretion to find that the third Russell factor—
whether the “court instructions to the jury [required it] to consider each count
separately”—weighed against severance as well. 	125 Wn.2d at 63. 	In full, the
court instructed the jury that “[a] separate crime is charged in each count. 	You
must decide each count separately. Your verdict on one count should not control
your verdict on any other count.” 	This court approved the same instruction in
McCabe, 26 Wn. App. 2d at 93, 96. 	See also State v. Weaver, 198 Wn.2d 459,
469, 496 P.3d 1183 (2021) (holding that we presume jurors follow instructions).
Here, as in McCabe, it does not appear Quijas proposed an alternate instruction
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No. 86476-9-I/21
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nor does he claim otherwise on appeal. 26 Wn. App. 2d at 96.
Although the court made no finding on the record, we also cannot say that
it would have been an abuse of discretion to find that the fourth factor—“the
admissibility of evidence of the other charges even if not joined for trial”—weighed
against severance.10
Here, Quijas argues the court improperly allowed the State to call at least
nine officers in a single trial, “even though each officer could only testify about one
fight.” It is true that most officers only testified on one of the two incidents.11 Thus,
it may appear that these witnesses do not “overlap,” thus weighing in favor of
severance. State v. Slater 197 Wn.2d 600, 660, 486 P.3d 873 (2021).
But, we must consider the entirety of the officers' testimony and, in doing
so, we conclude there is significant overlap, beyond their individual involvement in
one of the incidents. Id. For example, multiple officers described the jail’s general
security protocols and how it aims to keep certain groups separated to prevent
violence. 	Numerous officers also contextualized the broader animosity between
the inmates in both incidents, which appeared to arise due to tensions from the jail
reassigning a “pod trustee” position.
10 This factor appears to largely revolve on “whether evidence of each count would
be cross admissible under ER 404(b).” Russell, 125 Wn.2d at 66. To admit other-
act evidence under ER 404(b), “‘the trial court must (1) find by a preponderance of
the evidence that the misconduct occurred, (2) identify the purpose for which the
evidence is sought to be introduced, (3) determine whether the evidence is
relevant to prove an element of the crime charged, and (4) weigh the probative
value against the prejudicial effect.’” State v. Gresham, 173 Wn.2d 405, 421, 269
P.3d 207 (2012) (quoting State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159
(2002)). Quijas does not address the ER 404(b) factors.
11 As acknowledged by Quijas, one officer testified to his involvement in both
events.
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No. 86476-9-I/22
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Additionally, the above overlap is buttressed by the State eliciting testimony
on each fight in a roughly sequential manner (i.e., discussing the November fight
before turning to witnesses for the December fight) with one exception. 	This
generally sequential presentation lessened the risk of jurors conflating the two
fights.
Thus, viewing the totality of the officers’ testimony in the full context of the
trial, we cannot say that it would have been a “manifest” abuse of discretion to hold
that this factor also weighs against severance. Russell, 125 Wn.2d at 63.
Finally, “any residual prejudice must be weighed against the need for
judicial economy.” 	Id. 	Quijas argues that “[a]ny benefit to judicial economy was
negligible,” repeating only that “[n]one of the State’s witnesses overlapped.”
This argument is unpersuasive. 	In State v. Bythrow, our Supreme Court
held that, although “[d]ifferent witnesses testified concerning different [robberies],”
given “the short [two day] trial, the relatively simple issues, the jury instructions,
and the strength of the State’s evidence, it does not appear likely that the jury was
influenced in determining the defendant’s guilt of either robbery by knowledge of
the other.” 	114 Wn.2d 713, 723, 790 P.2d 154 (1999) (noting also the general
benefits of joining trials, including “significantly” reducing the amount of “judicial
resources and public funds” expended as well as “reduced delay” which “serves
the public.”).
This case is similar to Bythrow. Quijas’ trial was relatively short, three days.
The issues were relatively simple, the instructions directed the jury to consider
each count separately, and the State provided ample evidence for both counts.
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No. 86476-9-I/23
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Thus, we hold any residual prejudice does not outweigh the need for judicial
economy. 	In turn, we hold the court did not manifestly err in denying Quijas’
motion.
3. 	Restitution
Finally, Quijas asks us to remand this matter for partial re-sentencing
because the “State failed to prove the amount of restitution it requested” and failed
to prove that he “caused any, much less all, of the injuries.” 	We agree.
At sentencing, the State requested $4,209.89 in restitution for “the injuries
and hospital bills for the [two] victims in the matter.” 	Quijas objected, asking the
court to “reserve on restitution” and argued the court “may waive any restitution
monies to be paid to the government” and the November incident “could not have
happened but for negligence of the jail.” The court ultimately granted the State’s
request.
This court reviews a restitution award for an abuse of discretion. 	State v.
Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). “Although there is no right to
a jury determination of facts supporting the amount of restitution, ‘[r]estitution is
allowed only for losses that are ‘causally connected’ to the crimes charged.’” 	Id.
(alteration in original) (quoting State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167
(2007)).
The State did not brief the merits of the restitution issue.12 State v. McNeair,
12 Rather, the State simply argues the restitution issue is unpreserved for appeal.
Br. of Resp’t at 65-66 (citing RAP 2.5). 	Even assuming arguendo the issue is
unpreserved, we exercise our discretion to consider the issue under RAP 2.5.
Ford, 137 Wn.2d at 477.
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No. 86476-9-I/24
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88 Wn. App. 331, 340, 944 P.2d 1099 (1997) (deeming the failure to put forth an
argument “a concession that” any opposition “has no merit.”).
The record indeed shows the State gave the court nothing more than a total
amount owed and claimed it related to the two victims. 	Our Supreme Court
rejected a restitution award based on more particularized and itemized testimony
in Griffith, 164 Wn.2d at 966-67. 	Even itemized “proof of expenditures” alone
isinsufficient to establish restitution given the need to guard against potential
overestimates and windfalls. State v. Dedonado, 99 Wn. App. 251, 257, 991 P.2d
1216 (2000).
Thus, we hold the State failed to prove restitution and the court abused its
discretion in ordering restitution. Griffith, 164 Wn.2d at 965. In turn, we vacate the
order of restitution and remand this matter for resentencing limited to any
restitution owed.
III. 	CONCLUSION
We otherwise affirm Quijas’ convictions.
WE CONCUR:
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